Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. FJ45484. Robin Miller Sloan, Judge.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Respondent.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
Jose E. appeals from the order declaring him a ward of the juvenile court and directing him to camp placement, based on true findings that he aided and abetted the crime of exhibiting a firearm and twice willfully disobeyed an injunction against the Dogtown criminal street gang. We affirm the order as to the true finding on the aiding and abetting count and the injunction violations. We reverse the order as to the juvenile court’s disposition and remand for correction of Jose’s maximum period of confinement.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Welfare and Institutions Code Section 602 Petitions
A petition filed on June 12, 2009, pursuant to Welfare and Institutions Code section 602, alleged that, on or about May 7, 2009, Jose had willfully disobeyed a court order by violating the injunction against the Dogtown criminal street gang (Pen. Code, § 166, subd. (a)(4)).
Another Welfare and Institutions Code section 602 petition, filed on August 3, 2009, alleged that Jose had committed four offenses: (1) exhibiting a firearm in public (count 1; Pen. Code, § 417, subd. (a)(2)); (2) brandishing a replica gun (count 2; Pen. Code, § 417.4); (3) possessing a firearm as a minor (count 3; Pen. Code, § 12101, subd. (a)(1)); and (4) willfully disobeying a court order by again violating the injunction against the Dogtown criminal street gang, this time on or about June 7, 2009. As to counts 1 and 2, the petition alleged that Jose had committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (d)).
2. The Evidentiary Hearing
At a contested two-day hearing, the People called Bridgett Jackson as a witness. Jackson, who lived in the William Meade Housing Development in Los Angeles, testified that, about 3:00 a.m. on the morning of June 7, 2009, she was upstairs in her bedroom when she heard knocking at her front door. She looked out the window and saw Isaac Z., Jose and another boy, whom she could not identify, standing outside. Outside lights were on in the development. Isaac, who held a chrome revolver at his side, called for “the bitch of the house to come outside” and yelled the racial epithet “fucking niggers.” According to Jackson, Jose did not do or say anything. “He was just standing there”; “he never say nothing.” Jackson did not open the door, and she called the police. She later identified Isaac and Jose from a photographic lineup as the perpetrators. At the time of the incident, Jackson was on a wait list to move out of the housing development. She reported the incident to the property manager, who told her to make a police report and said she then could move out of the development. Jackson moved to a different location about two weeks after the incident. Jackson said that she never spoke to any of her neighbors, including one with the last name Castillo, about the incident.
Los Angeles Police Department Officer Tyler Fox, who testified as an expert on the Dogtown criminal street gang, explained that Dogtown is primarily composed of Hispanic members and claims the William Meade Housing Development as its territory. According to Officer Fox, the gang engaged in intimidation or threatening crimes against Black families who recently had moved into the neighborhood. Officer Fox opined that the actions against Jackson were for the benefit of, at the direction of, or in association with the Dogtown criminal street gang because they benefitted the gang by creating “a sense of fear and intimidation by the public” and elevated the status in the gang of the individuals committing the crime. Moreover, given that Jackson is Black and that racial slurs were uttered during the crime, the offense fit in with Dogtown’s “recent targeting” of Black families to “run” them out of the community.
Officer Fox also explained that a permanent injunction against Dogtown, filed on December 13, 2006, prevented its members from associating within a specified safety zone and that he and his partner had served the injunction on Jose on March 22, 2009. Although Jose never had admitted being a Dogtown member, Officer Fox opined that Jose was a Dogtown gang member based on a display on Jose’s cellular telephone of a dog paw tagged on a wall, a common sign of Dogtown, and the tattoo “Projekt Raze” on Jose’s arm, which followed the Dogtown pattern of not using the letter “C” because it represents the rival Clover gang. Officer Fox also opined that Isaac, who had been served with the injunction on December 2, 2008, was a Dogtown member because his brother was a member and Isaac had “numerous Dogtown paraphernalia, including a Detroit Tigers hat with the letter “D” on it, which Dogtown members use to represent their gang. Police observed Jose and Isaac, while in the injunction’s safety zone, riding a bicycle together on May 5, 2009 and walking side by side on June 8, 2009, and detained them on each occasion for violation of the injunction.
In defense, Jose’s stepfather, Henry Castillo, testified that he used to live near Jackson and asked her why she had accused Jose of “pull[ing] a gun on [her]” because he was in Whittier at the time of the alleged crime. According to Castillo, Jackson responded that Jose “didn’t do that” and that she “just said that because [she] wanted to get transferred out of [the housing development] and... had to make a police report to get transferred out of there.” Castillo said that Jackson explained “[t]hat [Jose] didn’t do nothing; that he wasn’t even there. She said she didn’t even see him. She said she just made that story up.” In addition, Jose’s great uncle, Robert Quinonez, testified that, on the night of June 6, 2009, he had received a telephone call from Jose, who was crying and asked Quinonez to pick him up from his house. Quinonez, who believed that Jose had argued with his mother, drove to Jose’s home, picked him up and returned to the Quinonez residence in Whittier, arriving no later than 11:30 p.m. Jose stayed at Quinonez’s house until about 11:00 p.m. the following day, June 7, 2009, when Quinonez drove Jose home. Quinonez said that, after learning of the allegations against Jose, he did not tell the police that his nephew had been at his house on the night of the alleged crime because, although he went to the station, the police did not want to talk to him given that he is not Jose’s father. Quinonez testified that he “know[s] for a fact [that] [Jose] is not a Dogtown gang member.”
Isaac and his mother both testified that Isaac was asleep at home on June 7, 2009 about 3:20 a.m. when the incident at Jackson’s apartment occurred.
3. The Juvenile Court’s Findings and Disposition
After hearing the evidence, the juvenile court found true the allegations in the June 12 and August 3, 2009 petitions that Jose had violated the injunction against the Dogtown criminal street gang. It also found true the allegation in count 1 of the August 3, 2009 petition, concluding that Jose had aided and abetted Isaac in the crime of exhibiting a firearm in public, and the special allegation that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. It dismissed counts 2 and 3 in the August 3, 2009 petition. The court then declared Jose a ward of the court, ordered him to a camp-community placement program for six months and set a maximum confinement period of four years four months. Jose filed a notice of appeal.
A third Welfare and Institutions Code section 602 petition, dated June 12, 2009, alleged a count of vandalism (Pen. Code, § 594). The People did not present evidence on this petition, and the juvenile court dismissed it. As discussed infra, this maximum confinement period exceeds by one year the maximum that was available to the court based on the counts of conviction.
DISCUSSION
1. The Evidence Is Sufficient to Support the Finding That Jose Aided and Abetted the Crime of Exhibiting a Firearm in Public
Jose contends the evidence is insufficient to support the juvenile court’s finding that he aided and abetted Isaac in the offense of exhibiting a firearm in public. We disagree.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649]; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237 [278 Cal.Rptr. 640, 805 P.2d 899].) The same standard applies when the conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) Although it is the [trier of fact’s] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. (Ibid.) ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ (People v. Thomas (1992) 2 Cal.4th 489, 514 [7 Cal.Rptr.2d 199, 828 P.2d 101].)” (People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.)
The same principles that govern the review on appeal of the sufficiency of the evidence to support a finding in a criminal conviction apply to an appellate review of the sufficiency of the evidence in a juvenile proceeding where there is a finding that the minor violated a criminal statute. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
The People charged Jose with exhibiting a firearm in public under Penal Code section 417, subdivision (a)(2), which makes it a crime for a “person [to], except in self-defense, in the presence of another person, draw[] or exhibit[] any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner....” As the evidence demonstrates that Isaac, not Jose, possessed the firearm, the People proceeded against Jose on the theory that he was guilty of the offense as an aider and abettor of Isaac.
“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259, citing Pen. Code, § 31.) “[A]n aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) Thus, “[a] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (Id. at p. 561.) Factors for determining aider and abetting liability include presence at the crime scene and companionship and conduct before and after the crime, including flight. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.) Although “[n]either presence at the scene of a crime, nor failure to take steps to attempt to prevent a crime, establish[es] that a person is an aider or abettor[, ]” such evidence is “considered along with other evidence in passing upon the question of guilt [citation].” (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287; see also People v. Ngyuen (1993) 21 Cal.App.4th 518, 529–530 [“Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility”].) “‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and [attendant] reasonable inferences must be resolved in favor of the judgment.’” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Jose relies on Jackson’s testimony that, while Isaac called for her to come outside and yelled a racial epithet, Jose did not do or say anything but “was just standing there.” He contends this evidence demonstrates that he did not aid and abet Isaac’s commission of the offense of exhibiting a firearm in public. Contrary to Jose’s contention, Jackson’s testimony that Jose stood there and did not say anything while outside her apartment with Isaac, does not negate his aider and abettor liability. Viewing the evidence in the light most favorable to the juvenile court’s findings and presuming the existence of every fact that can be reasonably deduced from the evidence, as we must, the circumstances of the crime support a reasonable inference that Jose aided and abetted Isaac’s commission of the crime of exhibiting a firearm in public. First, the evidence supports a finding that Jose went with Isaac and another individual to a location adjacent to Jackson’s front door at 3:00 a.m. with the intent to encourage and/or facilitate Isaac’s yelling racial epithets at Jackson’s apartment and Isaac’s issuance of a challenge for “the bitch of the house” to come outside. The reasonable inference from Isaac’s choice of words and the early morning time of the event is that Isaac, Jose, and their unidentified compatriot intended to evoke fear and confusion in Jackson and any other inhabitants of her apartment. Further, Isaac’s challenge to Jackson to come outside, in combination with his inflammatory language, indicates that the trio wanted a confrontation. Three individuals, not just Isaac, went to Jackson’s apartment: at least one of them “bamm[ed]” on the door; they brought a relative force majeure to confront the woman of the house, though they had only one voice. While Jackson could not remember in which hand Isaac held the chrome revolver, she stated that Jose was “standing right next to” Isaac. She also said that outside lights were on in the development. We find implausible that this group went to Jackson’s house organized for, and calling for, a confrontation “outside” without all members of the group being aware that Isaac had a firearm.
Beyond the events of the night, the facts established that a companionship existed between Jose and Isaac such that a trier of fact could reasonably conclude that Jose and Isaac were full partners—in terms of knowledge and intent—in the criminal acts against Jackson. Jose and Isaac were observed together weeks before the crime; and they were together when they were arrested the day after the crime.
Given Jose’s and Isaac’s companionship, the fact that three individuals went to Jackson’s apartment, Jose’s presence while Isaac shouted at Jackson, Jose’s “standing right next to” Isaac, and the fact that Isaac—bolstered by Jose and another individual—challenged Jackson to come outside, we conclude that the juvenile court reasonably inferred that Jose knew Isaac was displaying a firearm unlawfully, intended to facilitate commission of the crime of exhibiting a firearm in public and aided its commission. Accordingly, sufficient evidence supports the true finding that Jose aided and abetted Isaac in the crime of exhibiting a firearm in public.
2. The Evidence Is Sufficient to Support the True Finding on the Criminal Street Gang Enhancement
Jose contends that the enhancement of Penal Code section 186.22 was improperly applied to him because there was insufficient evidence both that he was an active gang member and that the crime was for the benefit of a street gang with the specific intent to further criminal conduct by gang members.
On appeal, the same standard of review applies to determinations regarding the sufficiency of the evidence to support an enhancement as would apply to a conviction. (People v. Gamez (1991) 235 Cal.App.3d 957, 977, disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) The substantial evidence standard of review applies to challenges to Penal Code section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
Officer Fox testified that both Isaac and Jose are members of the Dogtown gang. A search of Isaac’s residence revealed Dogtown paraphernalia and a Detroit Tigers hat, which had a “D” on it. Isaac’s brother was also a member of the Dogtown gang. During an encounter with Jose, Officer Fox noted that appellant had a picture of a dog paw “tagged” on a wall on his cellular telephone. Jose also had a tattoo which spelled the word “projekt” with a “K” instead of a “C.” Officer Fox opined that Dogtown gang members do not use the letter “C” because of their hatred for their rival Clover gang.
Moreover, Officer Fox testified that within the Dogtown gang territory, the gang committed various crimes to instill fear in the community. These crimes included the intimidation of black families who lived in their gang territory. Further, a Dogtown gang member had been convicted of making criminal threats against a family by coming to the door of their residence and saying, “This is Dogtown.” Undisputedly, the instant crime took place within Dogtown gang territory, namely the William Meade Housing Development. The crime involved the intimidation of a black family. Officer Fox indicated that these types of intimidation crimes against black families by the Dogtown gang were on the rise: “Recently we have been hit with numerous intimidation crimes or threatening crimes. We have had an influx of black families that have moved into the area, and because of that we have had some intimidation crimes where they have been trying to run out black families.” Officer Fox also testified that the instant crime was similar to a crime committed against a Hispanic family by a Dogtown member whom the family had somehow crossed: where a Dogtown member went to the family’s home door and caused them to feel threatened.
The California Supreme Court has held that the testimony of a gang expert may provide sufficient proof for the application of a Penal Code section 186.22 gang enhancement, if the relevant “culture and habits of criminal street gangs” testimony is sufficiently beyond common experience. (People v. Gardeley, supra, 14 Cal.4th at pp. 617–620.) A gang expert may testify as to whether a crime was committed to benefit or promote a criminal street gang, despite its coincidence with an issue to be determined by the trier of fact. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512, 1513–1514 [“an expert may properly testify about the size, composition, or existence of a gang; ‘motivation for a particular crime, generally retaliation or intimidation’; and ‘whether and how a crime was committed to benefit or promote a gang’”]; People v.Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [“‘Expert testimony repeatedly has been offered to show... “whether and how a crime was committed to benefit or promote a gang”’”].) Such testimony may include “an individual defendant’s membership in, or association with, a gang [citations], ” and “whether and how a crime was committed to benefit or promote a gang [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
Here, we find that the expert testimony was sufficient evidence to support the court’s application of the Penal Code section 186.22 enhancement.
3. The Evidence Is Sufficient to Support the True Findings that Jose Violated the Injunction Against the Dogtown Criminal Street Gang
The juvenile court found true the allegations that Jose violated the injunction against the Dogtown criminal street gang when, within the defined safety zone, he rode a bicycle with Isaac on May 5, 2009, and walked on the street with Isaac on June 8, 2009. Jose does not challenge Isaac’s membership in Dogtown or his appearance with Isaac in public view or a place accessible to the public on May 5 and June 8, 2009. Rather, Jose merely contends that, although he was served with a copy of the injunction, the evidence is insufficient to demonstrate that the injunction applies to him because it does not show that he “was anything more than a nominal participant or associate of the Dogtown gang.” We disagree.
The injunction applies to “Dogtown, all of its members, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with Dogtown” and prohibits them “from engaging in or performing directly or indirectly” enumerated activities within the safety zone. Among the activities, with two exceptions not relevant here, is: “Do Not Associate: Standing, sitting, walking, driving, gathering or appearing, anywhere in public view or anyplace accessible to the public, with any known member of the Dogtown gang....” Officer Fox, an expert on Dogtown, opined that Jose is a member of Dogtown, having seen a display on Jose’s cellular telephone of a dog paw tagged on a wall, a common sign of Dogtown, and the tattoo “Projekt Raze” on Jose’s arm, which followed the Dogtown pattern of not using the letter “C” because it represents the rival Clover gang. In addition, Officer Fox believed Isaac, with whom Jose was alleged to have violated the injunction, was a Dogtown gang member. This evidence is sufficient to establish Jose’s membership in Dogtown such that the injunction applies to him.
4. The Matter Must Be Remanded for the Juvenile Court to Correct Jose’s Maximum Period of Confinement
Jose contends and respondent agrees that the juvenile court erred by apparently using Penal Code section 186.22, subdivision (d) both to sentence him to a felony on count 1 and to add a separate sentencing enhancement on that count. Further, the trial court failed to make clear whether it intended to select the statutory sentence of one year, two years or three years. In any event, an enhancement of that felony sentence pursuant to Penal Code section 186.22, subdivision (d) is improper as that subsection is not a sentence enhancement mechanism. (Robert L. v Superior Court (2003) 30 Cal.4th 894, 898–899.) It appears that if the trial court intended to select the three-year sentence on count 1, the maximum period of confinement would have been three years four months (two months for each of the charged injunction violations from the June 12 and August 3, 2009 petitions), rather than the four years four months imposed by the trial court. Accordingly, we order that this matter be remanded to the trial court for resentencing. The trial court is directed to make an express determination of the period of confinement on count 1: one year, two years, or three years. The court must also determine the correct maximum period of confinement. Penal Code section 186.22, subdivision (d) may not be the basis for an additional sentence enhancement beyond the one, two, or three-year sentence.
DISPOSITION
The order is affirmed as to the true findings that Jose aided and abetted the crime of exhibiting a firearm in public and that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, and as to the true findings that Jose twice willfully violated the injunction against the Dogtown criminal street gang. The order is reversed as to the disposition and the matter is remanded for the juvenile court for resentencing on count 1. The trial court is directed to make an express determination of the period of confinement on count 1: one year, two years, or three years. Further, the trial court shall determine the maximum period of confinement and forward a copy of the amended order to the Department of Corrections and Rehabilitation, Division of Juvenile Justice.
I concur: CHANEY, J.
Rothschild, Acting P. J., Concurring and Dissenting
I concur in Part III of the Discussion in the majority opinion, concluding that sufficient evidence supports the true finding that Jose twice violated the injunction against the Dogtown criminal street gang. I disagree, however, with the majority’s conclusion in Part I of the Discussion that substantial evidence supports the true finding that Jose aided and abetted Isaac in the crime of exhibiting a firearm in public. I thus dissent from that portion of the opinion.
As the majority notes, the People charged Jose with exhibiting a firearm in public under Penal Code section 417, subdivision (a)(2), which makes it a crime to, “except in self-defense, in the presence of another person, draw[] or exhibit[] any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner....” The People proceeded against Jose on the theory that he aided and abetted Isaac in commission of the crime, as the undisputed evidence establishes that Isaac, not Jose, possessed the firearm.
The evidence simply is not sufficient to demonstrate that Jose aided and abetted Isaac in the crime of exhibiting a firearm in public. To establish aider and abettor liability, the People had to prove that Jose knew of Isaac’s unlawful purpose; had the intent or purpose to commit, encourage or facilitate commission of the crime; and aided promoted, encouraged or instigated commission of that crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Jose thus could not be guilty of aiding and abetting the crime of exhibiting a firearm in public unless he knew that Isaac was exhibiting a firearm in public.
No direct evidence establishes that Jose knew that Isaac was exhibiting a firearm in public or even that Isaac had a firearm with him on the night they went to Jackson’s apartment. The majority thus relies on circumstantial evidence—including the companionship between Jose and Isaac, their presence with a third individual at Jackson’s apartment at 3:00 a.m. while Isaac shouted at Jackson and challenged her to come outside, the outside lights in the housing development and Jose’s standing next to Isaac—to conclude sufficient evidence supports an inference that Jose knew Isaac was exhibiting a firearm in public. This circumstantial evidence, however, does not support an inference of knowledge. According to the evidence, Jackson could not say in which hand Isaac held the gun by his side and stated only that Jose stood next to Isaac. Jackson also did not say whether Jose stood on the side where Isaac held the gun or that Jose was in a position to see the gun. Instead, she testified that, during the crime, Jose “was just standing there” and did not do or say anything to her. As a result, the majority’s conclusion that the circumstantial evidence is sufficient to support an inference that Jose knew Isaac was exhibiting a firearm in public is speculation. “Speculation is not substantial evidence.” (People v. Killewbrew (2002) 103 Cal.App.4th 644, 652, 661 [conviction for conspiracy to possess a handgun reversed for insufficient evidence when based on expert’s improper testimony that defendant knew his fellow gang member possessed a gun because, “when one gang member in a car possesses a gun, every other gung member in the car knows of the gun and will constructively possess the gun”].)
To be sure, although the evidence is sufficient to show that Jose was aware that Isaac harassed the victim and supported Isaac in such regard, the People did not charge Jose with aiding and abetting harassment of some kind. Accordingly, although Jose theoretically could be guilty of aiding and abetting Isaac in some hypothetical fashion, we are required to look at the elements of the specific crime with which the People charged Jose to determine whether sufficient evidence supports his aider and abettor liability, which here must include, at a minimum, Jose’s knowledge that Isaac was carrying a gun on the night they went to Jackson’s apartment. “[A] conviction [as an aider and abettor] may not be based on [a] generalized belief that the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct.” (People v. Prettyman (1996) 14 Cal.4th 248, 268; see, e.g., People v. Leon (2008) 161 Cal.App.4th 149, 159 [evidence that defendant and perpetrator were members of the same gang and had been burglarizing cars together in a rival gang’s territory when the perpetrator intimidated a witness by firing a gun into the air was insufficient to support a conviction for aiding and abetting the offense of witness intimidation because the facts did not show that the defendant acted to promote the specific crime of intimidating the witness].) The majority overlooks this principle, downplaying the elements of the crime charged to affirm Jose’s conviction, which improperly punishes him for “unspecified ‘nefarious’ conduct.” (Prettyman, at p. 268.).
According to the majority, “Jackson’s testimony that Jose stood there and did not say anything while outside her apartment with Isaac[] does not negate his aider and abettor liability. (Maj. opn. at p. 8.) Jose, however, was not required to “negate” his liability. Rather, the People were required to prove it by substantial evidence. They did not do so.
Because I believe the evidence is not sufficient to support the true finding on the underlying offense of aiding and abetting the crime of exhibiting a firearm in public, the true finding on the criminal street gang allegation under Penal Code section 186.22, subdivision (d), with respect to that offense, discussed in Part II of the majority opinion, should necessarily fall as well. In addition, I would require the juvenile court to adjust any maximum period of confinement based only on the convictions for violating the criminal street gang injunction, rather than as specified in Part IV of the majority opinion.