Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB055161, Brian S. McCarville, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jerome Moore.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Lee Duncantell.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Kevin Jerome Moore and Kenneth Lee Duncantell appeal their convictions arising out of an attempted robbery in the vicinity of an automated teller machine (ATM). We affirm their convictions but modify Moore’s sentence.
PROCEDURAL HISTORY
Defendants were found guilty of attempted first degree ATM robbery (count 1; Pen. Code, §§ 664/211 & 212.5, subd. (b)) and of assault as a lesser included offense of assault with a deadly weapon (count 2; § 240/245, subd. (a)(1)). In a bifurcated proceeding, the court found that both defendants had a strike prior (§ 667, subds. (b) – (i)), a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)). The court sentenced Duncantell to 10 years in state prison, and sentenced Moore to 10 years eight months, including a consecutive term for a probation violation in San Bernardino County case No. FSB047486.
All statutory citations refer to the Penal Code.
FACTS
On March 22, 2006, about 10:30 p.m., Judy Weidner went to a bank ATM to get some cash. Judy’s sister, Yvonne Enriquez, and Yvonne’s boyfriend, Raphael Soto, were in Judy’s car, which was parked a few feet from the ATM. As Judy walked back to the car, Yvonne saw Duncantell running toward the car from behind. Yvonne called to Judy to hurry and get into the car and lock the door. Before Judy could close the door, Duncantell grabbed the door. He was wearing an orange bandana over his face. He shoved what was apparently a toy gun into Judy’s face and fired several “shots” which made sparks. Judy panicked, put the car into reverse and stepped on the gas. Duncantell held onto the door as Judy sped backward. When Judy hit a lamppost, Duncantell fell off the door and started to run away.
The jury found untrue the allegations that defendants discharged a firearm in the commission of the crime.
Judy pulled forward a few feet, stopped the car, and began to call 911. She and Yvonne saw Duncantell and Moore running toward the car. Judy immediately drove away. She saw Duncantell and Moore walking “casually” along the street together.
Police detained defendants within minutes, and Judy identified both in a field show-up. Duncantell had a black bandana in his jacket pocket, while Moore had an orange bandana in his pants pocket.
LEGAL ANALYSIS
SECTION 212.5 IS NOT UNCONSTITUTIONALLY VAGUE
Section 212.5, subdivision (b) provides: “Every robbery of any person while using an automated teller machine or immediately after the person has used an automated teller machine and is in the vicinity of the automated teller machine is robbery of the first degree.” Defendants contend that the provision is unconstitutionally vague because it fails to define with precision the word “vicinity.” They contend that the statute fails to provide fair warning of the conduct which is prohibited and encourages arbitrary enforcement of the law.
This issue was resolved in People v. Ervin (1997) 53 Cal.App.4th 1323. Although defendants assert that Ervin is “poorly analyzed” and fails to “actually confront the question presented,” they do not explain in what manner Ervin’s analysis fails.
We agree with the analysis in People v. Ervin. Seeing no need to reinvent the wheel, we quote from that opinion:
“‘The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of “life, liberty, or property without due process of law,” as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must “‘be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.’” [Citations.]’ [Citation.] Several factors are involved: ‘“‘First . . . we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’” [Citations.]’ [Citation.]
“‘The starting point of our analysis is “the strong presumption that legislative enactments ‘must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.’” [Citation.]’ [Citation.] ‘Many, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may be unclear.’ [Citation.] However, ‘to succeed on a facial vagueness challenge to a legislative measure that does not threaten constitutionally protected conduct . . . a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that “the law is impermissibly vague in all of its applications.” [Citation.]’ [Citations.] ‘[A] statute will not be held void for vagueness at the behest of a defendant whose conduct falls clearly within its bounds. [Citation.]’ [Citation.]
“‘“The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage, and understanding.” [Citation.]’ (People v. Heilman (1994) 25 Cal.App.4th 391, 400 [‘repeatedly’ not unconstitutionally vague].) ‘A dictionary is a proper source to determine the usual and ordinary meaning of a word or phrase in a statute.’ (E.W. Bliss Co. v. Superior Court (198[9]) 210 Cal.App.3d 1254, 1258, fn. 2; see Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 365 [dictionary used to define ‘failure’ and ‘inability’ in DUI-related statute].)
“The dictionary defines ‘vicinity’ as: the quality or state of being near, proximity; a surrounding area or district; neighborhood. (Webster’s Collegiate Dict. (10th ed. 1995) p. 1316.) The similar phrase ‘in or about’ withstood a vagueness challenge in People v. Superior Court (Caswell) (1988) 46 Cal.3d 381. In Caswell, defendants were charged with loitering ‘“in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.”’ (Id. at p. 388.) Our Supreme Court explained the phrase ‘in or about any toilet open to the public’ was not ‘misleading or cryptic,’ and that it ‘is sufficiently definite such that no reasonable person could misunderstand its meaning.’ (Id. at p. 391.) The phrase ‘in the vicinity of an automated teller machine’ provides sufficiently definite notice that no reasonable person could misunderstand its meaning. Similarly, the phrase ‘immediately after’ is not unconstitutionally vague. ‘Immediately,’ in the context of time, means ‘without interval of time, straightway [sic].’ (Webster’s Collegiate Dict., supra, at p. 579.) Although Ervin presents a list of questions allegedly unanswered by Penal Code section 212.5, subdivision (b), ‘[a] statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.’ [Citation.]
“The phrases ‘in the vicinity’ and ‘immediately after’ have common dictionary meanings. Their usual definitions are easily understood. The courts have often approved similar statutory phrases. These statutory terms gave sufficient warning to Ervin that robbing someone who has just used an ATM is first degree robbery.” (People v. Ervin, supra, 53 Cal.App.4th at pp. 1328-1329.)
People v. Ervin was cited with approval in People v. Morgan (2007) 42 Cal.4th 593. (Id. at p. 606.) There, the California Supreme Court cited additional examples of “nonmathematical standards” of precision in statutory language which have withstood challenge on vagueness grounds: “‘The law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as “reasonable,” “prudent,” “necessary and proper,” “substantial,” and the like. Indeed, a wide spectrum of human activities is regulated by such terms: thus one man may be given a speeding ticket if he overestimates the “reasonable or prudent” speed to drive his car in the circumstances (Veh. Code, § 22350), while another may be incarcerated in state prison on a conviction of willful homicide if he misjudges the “reasonable” amount of force he may use in repelling an assault [citation]. As the Supreme Court stated in Go-Bart Importing Co. v. United States (1931) 282 U.S. 344, 357, “There is no formula for the determination of reasonableness.” Yet standards of this kind are not impermissively [sic] vague, provided their meaning can be objectively ascertained by reference to common experiences of mankind.’ [Citation.]” (People v. Morgan, supra, 42 Cal.4th at p. 606.)
Based on the foregoing, we reject defendants’ contention that section 212.5, subdivision (b) is unconstitutionally vague.
SUBSTANTIAL EVIDENCE SUPPORTS MOORE’S CONVICTION AS AN AIDER AND ABETTOR
Moore was prosecuted on an aiding and abetting theory. He contends that there was insufficient evidence to support his conviction because the evidence shows only that he was present in the vicinity when Duncantell approached the car.
“‘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.]” (People v. Hill (1998) 17 Cal.4th 800, 851.) Mere presence at the scene of a crime is not enough to establish aider and abettor liability. Instead, there must be substantial evidence that the defendant acted with knowledge of the criminal purpose of the perpetrator and with the intent of aiding, facilitating or encouraging the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.)
To support a conviction, there must be substantial evidence—that is, evidence which 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.) An appellate court must view all factual matters in the light most favorable to the judgment, resolving all conflicts and indulging all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) The court does not resolve credibility issues or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, Judy Weidner testified that after she crashed the car into the lamppost, dislodging Duncantell, she saw Duncantell and Moore both running away from the car. A few seconds later, Moore ran toward the car with Duncantell. As she pulled away onto the street, Judy saw both of them “casually” walking down the street together. Yvonne Enriquez also saw Moore running toward the car immediately after Duncantell was thrown off, and saw both defendants running back toward the car after it stopped. This evidence reasonably supports the inference that Moore was not “merely” present, but that he intended to assist Duncantell in completing the commission of the crime. The fact that when Moore was arrested he had an orange bandana, similar to the one worn by Duncantell during the attempted robbery, lends additional support to the inference that he intended to assist in the commission of the crime.
MOORE’S JUVENILE ADJUDICATION CANNOT BE USED AS A STRIKE PRIOR OR AS A PRIOR SERIOUS FELONY FOR SENTENCE ENHANCEMENT PURPOSES
The Attorney General concedes that the trial court improperly used a juvenile adjudication for assault with a deadly weapon, based on conduct which occurred when Moore was 15 years old, as both a strike prior and as a prior serious felony. On that basis, the court doubled the term on count 1 to four years and imposed a five-year enhancement.
Section 667, subdivision (a)(1) provides for a five-year sentence enhancement for each prior serious felony conviction. Juvenile adjudications do not qualify as criminal convictions for purposes of sentence enhancement under that provision. (People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; People v. West (1984) 154 Cal.App.3d 100, 108.) A juvenile adjudication may qualify as a prior felony conviction for purposes of the three strikes law if the juvenile was 16 years old or older when he or she committed the offense. (§ 667, subd. (d)(3)(A).) It is undisputed that Moore, who was born on January 30, 1982, was 15 years old on November 8, 1997, when he committed an assault with a deadly weapon for which he was later committed to the California Youth Authority. Thus, the adjudication does not qualify as a strike prior. Accordingly, we will remand with directions to modify Moore’s sentence on count 1 to the middle term of two years and to delete the five-year enhancement imposed pursuant to section 667, subdivision (a)(1).
DISPOSITION
As to Duncantell, the judgment is affirmed. As to Moore, the cause is remanded with directions to modify Moore’s sentence on count 1 to impose the undoubled middle term of two years and to delete the five-year enhancement imposed pursuant to section 667, subdivision (a)(1), for a total term of three years in San Bernardino County case No. FSB055161. The clerk of the superior court is directed to transmit an amended abstract of judgment reflecting this sentence to the Department of Corrections and Rehabilitation within 30 days of the date of this opinion.
We concur: Hollenhorst, Acting P.J., Richli, J.