While most people understand that the state can prosecute someone who is involved in a crime, even if that person didn’t actually commit the crime – many people don’t fully understand the crime of aiding and abetting and accessory after the fact. Collectively, these areas of the California Penal Code are known as accomplice liability. In addition, many people don’t understand the difference between aiding and abetting and accessory after the fact.

Aiding and Abetting: Penal Code § 31
Under California PC § 31, “All persons concerned in the commission of a crime…whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission…are principals in any crime so committed.” Note that the accomplice does not even have to be present when the crime occurs to be prosecuted under this section. Note also, that aiding and abetting is simply a theory in which someone who helped commit a crime can be prosecuted. The act of aiding and abetting is not technically a crime in itself; it is simply a theory the prosecutor uses to charge the aider/abettor with the same crime as the principal.

Some obvious examples of aiding and abetting include the role of the getaway driver or a lookout during the commission of the crime. Even though the aider/abettor may not be committing the crime, he still plays a role in helping the crime be committed. Some of the more indirect ways an aider/abettor can be charged under section 31 include helping someone else who has committed crime come up with an alibi or giving someone information that you know will be used to commit a crime.

If the prosecutor can show that you promoted, encouraged, or instigated the commission of the crime, you may be charged with aiding and abetting. The best way to distinguish an accomplice from the principal in a crime is to look at whether there was some form of independent contribution to committing the crime or simply limited help or encouragement.

Aiding and Abetting Defenses
There are several available defenses to those being accused of aiding and abetting. First, a good criminal defense attorney will explore the available defense that you simply were not involved in the crime. If this defense is not applicable, an attorney may argue that your role was so limited that it did not amount to aiding and abetting. Because the prosecution has the burden of proving your involvement does amount to aiding and abetting, the defense will argue the prosecution has not met that burden beyond a reasonable doubt.

The prosecution may also attempt to portray your lack of preventative action as aiding and abetting. However, a good criminal defense attorney will prove that you had no duty to prevent the commission of the crime, and you therefore do not fall under the category described in Penal Code § 31. In some circumstances, the aider/abettor’s involvement is coerced under the threat of injury or death. In these circumstances, your attorney should demonstrate that the principal forced your limited role in the commission of the crime, and that you should not be charged with the offense. Another common argument is that the defendant should actually be charged under a lesser offense, like accessory after the fact. In addition, if you withdrew your participation in the criminal activity during an early stage of the crime, your defense attorney can argue that your involvement did not aid, promote, or encourage the actual commission of the crime.

Punishment
California punishes those convicted of aiding and abetting the same way it punishes the person who actually committed the crime. Even if you indirectly aid and abet, you will face punishment as though you actually perpetrated the crime in California. In fact, under PC § 31, the prosecutor actually charges the aider/abettor under the same Penal Code section as the principal. The only difference is that you are charged under an aiding and abetting theory.

Accessory After the Fact
CA Penal Code § 32 defines what an accessory after the fact (AATF) means under California law. If you assist someone who has committed a crime by helping them escape arrest or prosecution for that crime, you may be charged under PC § 32 as an AATF. Some examples include lying to the police, concealing or destroying evidence, and helping the perpetrator flee the crime scene. As a wobbler, this charge can be filed by the prosecutor as either a misdemeanor or a felony depending on the facts of each case, as well as the defendant’s criminal background.

If you are convicted of AATF, you may face the following punishment:
Up to $5,000 fine, and/or;
Up to one year in jail if convicted of a misdemeanor
Up to three years in jail if convicted of a felony

The available defenses basically track the elements of the offense. Since the prosecutor must prove certain elements, a good criminal defense attorney will attack at least one of the elements as not met by the prosecution. These elements are:
Someone committed a felony
You knowingly harbored, concealed, or aided that individual
Knowing that he/she had either committed the felony, was charged with the felony, or was convicted of the felony
In order to protect him/her from arrest, trial, conviction, and/or sentencing

As you can see, defenses are available for almost each element. For example, the defense can argue you did not harbor, conceal or aid knowingly, or that you did not know that person committed a felony, or that your intention was not to protect him/her from arrest, trial, conviction or sentencing. Of course, each case will be very fact-specific, and an experienced attorney will know which elements to attack for lack of evidence.

PC § 32 In Immigration Cases
PC § 32 can be used as pleas in immigration cases, and are actually be very favorable to the defendant, especially in cases where the defendant is being charged with drug or gun charges. Because drug and gun charges often result in deportation, pleading down to an accessory after the fact charge means the defendant may escape immigration proceedings. Accessory after the fact differs from other accomplice liability theories (like aiding and abetting), in that AATF does not take on the character of the principal offense. This means an AATF is not charged with the crime that was actually committed, and the character of the principal offense is not introduced in immigration proceedings.

While the obvious advantage of and AATF plea is that the plea does not take on the character of the underlying offense, it also will not cause deportability regardless of the nature of the underlying offense. There are some disadvantages to taking an AATF plea – for example, while AATF in a drug trafficking case is not a controlled substances charge, it may provide the government with reason to believe the defendant assisted a drug trafficker – which can negatively affect the defendant from ever obtaining legal status in the U.S. An experienced criminal defense attorney will be able to advise you regarding the advantages and disadvantages of taking an AATF plea based on the facts of your individual case.

Accomplice liability cases are common in DRUG CRIMES, SALE, TRANSPORT, CULTIVATION & MANUFACTURE OF DRUGS, THEFT CRIMES , GANG CASES, and more.