State high court hears appeal of recalcitrant witness’ murder accessory conviction

The first recalcitrant witness convicted in California as an accessory to murder is guilty because her refusal to testify in a gang murder case, despite a grant of immunity, counts as an "affirmative act," a state prosecutor argued to the California Supreme Court.

The recalcitrant witness, Starletta Partee, acted with the intent of helping the alleged perpetrators in the murder case avoid prosecution, Deputy Attorney General Colleen M. Tiedemann argued Wednesday in People v. Partee, S248520. The murder case against Partee's four relatives was dropped when she refused to testify, said the prosecution.

Her defense argued she feared for her life and her daughter's life.

"Refusing to testify despite the grant of immunity [and the fact that] she was ordered to testify ... that is the affirmative act," said Tiedemann, according to an unofficial transcript provided by the court Thursday.

But the defense, represented by Berkeley-based attorney Paul R. Kleven, said an accessory after the fact conviction was not appropriate. "There is no doubt that refusing to testify when there is a duty to do so exposes a person to criminal liability," he argued. "But the exposure is defined as contempt, not accessory."

Asked by a justice whether this is the first case of an individual being convicted as an accessory for failing to testify, Tiedemann answered, "that I'm aware of."

Kleven appealed to the Supreme Court last spring, after the 2nd District Court of Appeal affirmed the Los Angeles County judge's decision to consider Partee's refusal to testify an affirmative act.

While a standard punishment for contempt is six months, Kleven told the high court Wednesday, "The district attorney basically was threatening Ms. Partee with possibly 12 years in prison, if she was convicted."

Partee came to the attention of the Los Angeles Police Department in 2006, when she reported her rental car stolen. Suspecting it had been driven by the perpetrators of a gang murder, Detective John Skaggs interviewed Partee about the possible involvement of her three brothers and cousin, and subsequently charged the four men with murder. When the case went to trial in 2008, Partee failed to show up despite being subpoenaed as a witness, and the case was dismissed.

In 2015, Partee was located but refused to testify at the preliminary hearing. The murder charges were dismissed again, and Partee was charged with four felonies of being an accessory after the fact to murder and one misdemeanor of contempt for refusing to testify. At her trial, she said she did not want her family members to go to prison because of her testimony, and that she feared for her safety.

"She was scared of retribution and scared for her daughter," Kleven said. "She received pressure from her family and death threats from gang associates."

Convicting Partee as an accessory would be "dangerous," Kleven added, because the decision "will not be limited to people who even necessarily know the people that they will testify against. ... The court should take a stand to not allow prosecutors to turn scared gang witnesses into potential felons."

Tiedemann denied that a successful conviction would "open the floodgates to prosecution."

"We are saying, in this limited, specific situation where [Partee's] refusal to testify did amount to an affirmative act, and she testified her intent was to help these men avoid murder prosecution, then she can be held as an accessory," Tiedemann said.

"The prosecutions for serious felonies can be stalled and thwarted by witnesses who engage in this type of behavior," Tiedemann later added.

One justice questioned this line of reasoning, asking Tiedemann, "Where was the police footwork and the investigation all these years that ... Ms. Partee [needs] to be the crowning witness? That is troubling to me that we put so much weight on the shoulders of the one witness to prove the case."

Both Tiedemann and Kleven declined to provide comment Thursday.