Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 08CEJ600859-1. Timothy Alan Kams, Judge.
Neil D. Chhabra, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Hill, J.
The juvenile court found M.M. aided and abetted assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The juvenile court placed M.M. on probation in his parents’ home under standard terms and conditions. On appeal, M.M. contends there was insufficient evidence to support the finding that he aided and abetted assault with a deadly weapon. We disagree and will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL SUMMARY
On the night of June 9, 2008, M.M. and three friends were told to leave an apartment complex after harassing the security guard. They mocked him, “You think your [sic] bad with that gun” and “You think your [sic] tough.” One of the boys told the guard that the other boys were drunk. The guard threatened to call the police and went to his patrol car to note the incident in his logbook.
The security guard suddenly heard “a bunch of noise, like a guy screaming.” He ran toward the sounds and saw a man injured and bleeding. The victim, James Hanlon, had been attacked by two of the boys who had harassed the security guard.
Hanlon was walking to work when he passed M.M. and O.C. sitting on a curb. The boys stood as he passed, and Hanlon waved to acknowledge their presence. Suddenly, M.M. shoved Hanlon from behind. Hanlon turned to walk away but was shoved from behind again. As Hanlon turned to confront the boys, O.C. punched him in the face. Hanlon attempted to defend himself, but M.M. and O.C. continued to punch him. During the attack Hanlon felt as if someone punched him in the right side of his chest, and he fell to the ground. He heard the security guard yelling, and M.M. and O.C. immediately fled.
Hanlon had two stab wounds in his chest and abdomen. Surgery was required because the blade struck his liver and right lung. It left a scar from his chest to navel.
Hanlon never saw the knife he was stabbed with, and did not know whether O.C. or M.M. stabbed him. Hanlon described the two boys that participated in the attack to Fresno Police Officer Matthew Bogard. M.M., O.C., and O.C.’s brother A.C. were detained. M.M. and O.C. initially denied any involvement.
O.C. asked Officer Gregory Catton what would happen to A.C. and M.M. Officer Catton said that if they were innocent, they would be released. O.C. became very emotional and confessed, “I did it.… I did it to him.” O.C. claimed he stabbed Hanlon in self-defense.
Officer Catton told M.M. of O.C.’s confession. After M.M. spoke with O.C., M.M. also confessed, “I did it. I did it, too. I was there. We were both involved.” M.M. stated he knew the victim had been stabbed. They stated they were waiting on the curb when Hanlon called them “‘little bitches’” as he walked by, causing them to start the fight. The two boys together led Officer Catton to the knife on a nearby rooftop. It was a 15-inch kitchen knife with a 10-inch blade. O.C. said he had it in the waistband of his shorts before the stabbing.
The juvenile court found that although O.C. was the stabber, M.M. aided and abetted the stabbing by hitting and beating Hanlon. The juvenile court stated, “I’m not stating for the record … that it has been proven that [M.M.] was aware that his co-participant was stabbing Mr. Hanlon.” The juvenile court, however, continued, “[M.M.] participated in an assault and he assisted [O.C.] in carrying out his acts, or stabbing the victim. It appears to the Court that that would establish the requisite criminal intent and conduct on the Minor [M.M.] to be found guilty,” of a misdemeanor aiding and abetting assault with a deadly weapon.
DISCUSSION
M.M. contends there was insufficient evidence to support the conviction for aiding and abetting assault with a deadly weapon because the trial court did not find that he knew of the knife or of O.C.’s intent to use a deadly weapon. In addition, M.M. contends there was no substantial evidence to suggest the stabbing was a natural and probable consequence of the assault.
Standard of Review
To determine the sufficiency of evidence to support a conviction, an appellate court reviews the whole record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value, such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catley (2007) 148 Cal.App.4th 500, 504.) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard of review applies to juvenile cases. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
Analysis
All persons concerned in the commission of the crime, whether they are the direct perpetrator or aid and abet its commission, are principals in any crime so committed. (§ 31.) To “‘aid’” means to assist or supplement the efforts of another. (People v. Campbell (1994) 25 Cal.App.4th 402, 410 (Campbell).) To “‘abet’” means to incite or encourage. (Ibid.) Whether a person has aided and abetted is a question of fact. (People v. Herrera (1970) 6 Cal.App.3d 846, 852.)
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citations.]” (Campbell, supra, 25 Cal.App.4th at p. 409.)
Mere presence at the scene of a crime, or knowledge of a crime and failure to prevent it, are insufficient to support aider and abettor liability. (Campbell, supra, 25 Cal.App.4th at 409.) Factors that may be taken into account are the aider and abettor’s presence at the scene of the crime, companionship with the direct perpetrator, and conduct before and after the offense was committed. (Ibid.)
M.M. instigated the unprovoked attack against Hanlon, which O.C. immediately joined. The boys claimed that the attack was in response to Hanlon calling them “‘little bitches,’” although Hanlon claimed he waved only to acknowledge their presence. As Hanlon walked by, M.M. pushed him twice from behind. M.M. and O.C. then punched Hanlon repeatedly. M.M. continued punching Hanlon while O.C. stabbed him. M.M. was present for the entire incident, had been with O.C. for some time prior to the incident, and had harassed a security guard with O.C. moments before. He fled the scene of the stabbing with O.C., knew where the knife had been left, and confessed to the officers, “I did it. I did it, too. I was there. We were both involved.”
The juvenile court, however, made no finding that M.M. was aware that his coparticipant was stabbing Mr. Hanlon. Despite the trial court finding, M.M. aided and abetted assault with a deadly weapon because there was sufficient evidence that the stabbing was a natural and probable consequence of the target crime of assault.
An aider and abettor’s guilt extends to any natural and probable consequences of the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 254.) To trigger application of the “‘natural and probable consequences’” doctrine, there must be a close connection between the target crime aided and abetted and the offense committed. (Id. at p. 269.) Two additional elements are required for such a finding. (Id. at p. 262.) The trier of fact also must also find (1) the defendant’s confederate committed an offense other than the target crime, and (2) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (Ibid.)
The collateral act does not have to be planned or agreed upon, or even substantially certain to result from the commission of the planned act to be a “‘natural and probable’” consequence of the target crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) For example, murder generally is found to be a reasonably foreseeable result of a planned robbery or burglary despite its contingent and less than certain potential. (Ibid.) Also, death generally is found to be a reasonable and natural consequence of assault with fists, even though no deadly weapon was used. (People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5 (Godinez).)
M.M. contends that his case is analogous to People v. Butts (1965) 236 Cal.App.2d 817 (Butts). There, the court found that Butts was not a conspirator, and likely not an aider and abettor, to a stabbing committed by his coparticipant, William Otwell, during a brawl because Butts was not aware of the knife or that the stabbing occurred. (Id. at p. 837.)
Butts and Otwell were unexpectedly attacked by a group of people with whom they had an earlier altercation. (Butts, supra, 236 Cal.App.2d at p. 824.) Butts was fighting several attackers 45 to 100 feet away from Otwell when Otwell stabbed his attackers. (Id. at pp. 824-825.) It never was proven that Butts knew that Otwell had or used a knife until after the attack. (Id. at p. 836.) The individual character of the fights that Butts and Otwell were involved in was critical in finding that Butts likely had not aided and abetted Otwell in the stabbing.
We think Godinez is more applicable. There, the court found sufficient evidence that Godinez aided and abetted voluntary manslaughter after a fight in which the victim was stabbed, despite lack of evidence that Godinez knew of the knife or that it would be used. (Godinez, supra, 2 Cal.App.4th at p. 500.)
Godinez participated in a gang attack against the victim, who was beaten and stabbed. (Godinez, supra, 2 Cal.App.4that p. 496.) Godinez was identified as the instigator of the fight. (Id. at pp. 495-496.) Godinez initially made gang signs to the victim and pursued his vehicle, signaling a challenge. (Id. at p. 496.) As an aider and abettor of assault, Godinez was liable for any natural and probable consequences of the assault. (Ibid.) The appellate court found that death could be a natural and probable consequence of an assault during a gang fight. (Id. at p. 500.)
Although M.M. and O.C. were not in a gang fight, their attack was more similar to the fight in Godinez than the brawl in Butts. Like Godinez, M.M. aided and abetted the target assault. M.M. instigated an unprovoked attack, just as Godinez did, based solely on the perceived disrespect by Hanlon, who allegedly called them “‘little bitches.’” Instigating an attack based upon such a perceived disrespect is similar to a gang fight. (People v. Medina (2009) 49 Cal.4th 913, 922-923 [murder was a natural and probable consequence of assault where a gang fight began because a member of another gang “disrespected” defendant’s gang].) In contrast to M.M., Butts and Otwell were jumped unexpectedly by a group of attackers. Another critical distinction is that Butts and Otwell were fighting separate groups of people 45 to 100 feet apart. (Butts, supra, 236 Cal.App.2d at p. 824.) M.M., like Godinez, was assaulting the victim at the same time as his coparticipant was stabbing the victim. Also like Godinez, M.M.’s victim was outnumbered and unarmed.
M.M. aided and abetted the target crime of assault and, in this case, we conclude there was substantial evidence that assault with a deadly weapon was a natural and probable consequence of the assault.
DISPOSITION
The judgment is affirmed.