Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV33731A
ELIA, J.Antonio O. appeals from a judgment declaring him to be a ward of the court in a delinquency proceeding (Welf. & Inst. Code, §§ 602, 725). (Welf. & Inst. Code, § 800.) The court placed him on probation, granted him permission to participate in the Alternative Placement Academy, ordered him placed on its electronic monitoring program, and returned the minor to the custody of his parents under the supervision of a probation officer.
An amended section 602 petition alleged four counts of aggravated assault under Penal Code section 245, subdivision (a)(1), and associated gang enhancements under section 186.22, subdivision (b)(1)(B)). The juvenile court sustained the amended petition as to count one following the dismissal of counts two through four and following a contested jurisdiction hearing. Count one alleged that the minor had committed an assault upon Kevin Z. with a deadly weapon, a crowbar, and by means of force likely to produce great bodily injury. The court found count one's allegations and the gang enhancement allegation to be true. On appeal, the minor contends that the evidence was insufficient to show he committed the assault, either as a perpetrator or as an aider and abettor.
All further statutory references are to the Penal Code unless otherwise stated.
We affirm.
A. Evidence
The evidence, viewed in the light most favorable to the juvenile court's findings below (see People v. Johnson (1980) 26 Cal.3d 557, 578; In re Jesus O. (2007) 40 Cal.4th 859, 861), showed the following.
On October 30, 2007, at Mount Pleasant High School, Randy told Mario T., who was talking with his friend Socorro, to "shut the fuck up" "because you hurt my ears." According to Mario, Randy thought that Mario was being "too loud with [his] friends." Kevin Z. was there. During lunchtime later that day at school, Randy verbally confronted Kevin because, according to Kevin, Randy thought Kevin had looked at him wrong and they argued.
Right after school that day, Kevin, and his high school friends Francisco, Socorro, and Mario got into Francisco's truck. Francisco drove Soccoro and Mario to their soccer practice at a nearby school adjacent to a park. When Randy, Soccoro, and Mario got out of the truck near the park, Randy approached with a crowd of at least 10 males. Socorro saw Antonio getting out of a truck.
Antonio heard Randy arguing with Mario and Kevin. Randy asked Kevin why he tried to "start shit" earlier that day. Randy said to Mario, "Hey, I think he wants to fight with me." Soccoro saw Antonio merge into Randy's group. Mario saw Antonio, whom he knew from school, next to someone named Rubio in the group. Randy, who was about eight to ten feet away from Kevin, told the group to rush them. When Randy said to rush them, Mario saw Antonio swinging a black metal instrument. Mario believed the group was Norteno because he heard them saying, "Norte." Socorro heard "Norte" as well and also heard someone say "BRS" and heard someone say "scraps," a derogatory word for Surenos.
Randy and unidentified others attacked Kevin. Randy came at him from the front and punched him. Kevin began swinging in self defense. The others, whom Kevin did not see, came from the side and back and began hitting him. Kevin was "hit with something [other than a fist] around [his] face." After about 10 seconds, Kevin was able to get away.
Mario was grabbed by two males, who were not Antonio. They threw the first punch and began beating him up. Mario did not know where Antonio went at that point. Mario fell down and hurt his knee.
Socorro saw "guys hitting [Mario], kicking him, trying to get him down." Socorro saw a male with a stick go toward Mario. Two males, whom Socorro recognized from school but whose names he did not know, came at him. One of them tossed a rock aside and they both punched Socorro with fists. Socorro was knocked to the ground and hit again. Socorro did not see what Antonio was doing while he was under attack.
Kevin ran toward the street, where two members of Randy's group were attacking his friend Mario. Kevin saw Mario being hit with a fist. He saw a third male run toward Mario with a stick. Kevin saw Socorro being attacked by two guys in the street. When Kevin ran over to Mario, the others left. Mario did not see Antonio again.
The police were heard coming. Kevin and Mario ran toward the truck. The last person fighting with Socorro left.
As Kevin was leaving, he saw Antonio for the first time. Antonio was standing on the grass with a crowbar about 15 feet away. Antonio made one step toward Kevin but did not come at him. Antonio swung the crowbar, which scared Kevin, but Antonio was not close enough to hit him. Kevin picked up a piece of wood near the truck.
Francisco was standing against his truck. Some of Randy's group ran toward Francisco and Kevin as they were getting into the truck. Rocks were thrown at Francisco's truck. Kevin heard someone yell out "Norte" and "BRS."
The last time Socorro saw Antonio, Antonio was running toward his truck.
As to weapons wielded during the incident, Socorro saw a metal stick or pipe and rocks in addition to the crowbar held by Antonio. Kevin thought another person in Randy's group had a crowbar but Kevin did not witness anybody being hit with a crowbar. In addition to Randy's group, there were other girls and boys in the park watching the fight. Some of the soccer players were there.
Even though he was scared, Socorro stayed at the park for soccer practice because he believed the other soccer players would back him up. Mario also stayed for soccer practice. By the time the police arrived at the park, the attackers had left the area.
As a result of the attack, Mario's lip was torn. Socorro had a "busted lip," his shirt was ripped, and his chain broken. Later that day, Kevin went to the hospital. He had bruises and swelling around his left eye, left cheekbone, and back of his head and experienced facial pain.
Kevin recognized two of the attackers as members of the BRS, the Barrio Rio Seco gang, and the others were friends who "kick it with them." Kevin stated that neither he nor his friends were Surenos or in a gang. Socorro stated that he was not a Sureno and did not socialize with Sureno gang members.
San Jose Police Officer Junn Lee, who worked at Mount Pleasant High School, spoke with Kevin, Socorro, Mario, and Francisco at school the next day. All four identified Antonio as being present during the fight and reported that he was holding a black crowbar in his hand. Officer Lee interviewed Antonio, who admitted that he had been at the park and he had joined his group of friends but he claimed that he only watched the fighting and he did not have a weapon. Antonio told the officer that he just hung out with Nortenos but he was not a gang member.
According to Officer Lee, the primary gang at Mount Pleasant High School is the BRS, which is affiliated with the Nortenos. When Nortenos fight or commit an act as a gang, they "say things such as pure Norte, for the north" or call Surenos "scraps," a derogatory term. During an interview with Officer Lee, the victims identified seven suspects, including Antonio, from the school's photo database. Six of the seven suspects were still students at the high school. Officer Lee had observed those six students, which included Antonio, walking around school in groups, which consisted of Norteno gang members and their affiliates. He had personally observed the six, including Antonio, with red clothing at one time or another. The seventh suspect, who was no longer a student at Mount Pleasant, was someone named Rubio. The officer stated that the victims were not in a gang.
San Jose Police Officer Kevin Nishita, an expert on Hispanic street gangs, testified that in his opinion, based upon his training, experience, and review of the investigation, Antonio was acting as an active member of BRS on October 30, 2007. It was also his opinion that the assault on October 30, 2007 was committed for the benefit and at the direction of or in association with the criminal street gang BRS.
The Deputy District Attorney contended that Antonio had aided and abetted the assault on Kevin. The juvenile court believed the testimony that Antonio had "swung a black metal thing." It found the victims' testimony "way more credible than minor and his witnesses."
B. Aggravated Assault
"Assault is defined as 'an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.' (§ 240, italics added.) 'Once a defendant has attained the means and location to strike immediately he has the "present ability to injure." ' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366-367.) The word "immediately" "simply means that the defendant must have the ability to inflict injury on the present occasion." (People v. Chance (2008) 44 Cal.4th 1164, 1168, fn. omitted.) "Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Ibid.)
"[A]ssault 'lies on a definitional... continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault.' (Colantuono, supra, 7 Cal.4th at p. 216..., italics added.)" (People v. Williams (2001) 26 Cal.4th 779, 786.) "[I]t is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay." (People v. Chance, supra, 44 Cal.4th at p. 1172.)
"Section 245, subdivision (a)(1), punishes assaults committed by the following means: 'with a deadly weapon or instrument other than a firearm,' or by 'any means of force likely to produce great bodily injury.' One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] That the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established [citations]...." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
Although assault is considered a general intent crime, "a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (People v. Williams, supra, 26 Cal.4th at p. 788.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) Thus, "a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id. at p. 788, fn. 3.)
"Because section 31 defines as principals all who directly commit a given offense or who aid and abet in its commission, the same criminal liability attaches whether a defendant directly perpetrates the offense or aids and abets the perpetrator. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1038-1039, fn. omitted; see § 31.) "In order to hold the accused as an aider and abettor the test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." (People v. Villa (1957) 156 Cal.App.2d 128, 134; see People v. Lee (2003) 31 Cal.4th 613, 623-624.)
"[U]nder the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' (People v. Prettyman, supra, 14 Cal.4th at p. 260.) Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. (Id. at p. 267.)" (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
"It is elementary that one who merely stands by, watching an assault and even approving of it is not aiding and abetting. [Citation.]" (People v. Luna (1956) 140 Cal.App.2d 662, 664.) "[A]n individual's presence at the scene of a crime or failure to prevent its commission" is alone insufficient to establish aiding and abetting. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) However, such factors may be considered along with other circumstances in determining whether a person is an aider and abettor. (See People v. Villa, supra, 156 Cal.App.2d at p. 134, cited in People v. Durham (1969) 70 Cal.2d 171, 181.) Other relevant circumstances may include companionship, flight, and conduct before and after the crime. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) "Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. [Citations.]" (Ibid.)
To be guilty of a crime as an aider and abettor, there must be proof that the person "act[ed] 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. [Citations.]" (People v. Beeman (1984) 35 Cal.3d 547, 560.) The "intent to encourage or facilitate the actions of the perpetrator 'must be formed prior to or during "commission" of that offense.' [Citations.]" (People v. Montoya, supra, 7 Cal.4th at p. 1039.)
"Direct evidence of the mental state of the accused is rarely available except through his or her testimony. The trier of fact is and must be free to disbelieve the testimony and to infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the accused. Thus, an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intended to assist in fulfillment of the known criminal purpose." (People v. Beeman, supra, 35 Cal.3d 547, 558-559.)
Minor argues that there was insufficient evidence that he was a direct perpetrator of the assault on Kevin. He states there was no evidence that he had the "present ability" to injure Kevin at any time since "the evidence placed [minor] more than 15 feet from Kevin at all times." The evidence was not sufficient to find that Antonio was one of the persons hitting Kevin. In addition, the evidence was not sufficient to establish that Antonio was ever within striking distance of Kevin or committed any act that by its nature would probably and directly result in the application of physical force against Kevin.
Minor also maintains that he could not properly be determined to be an aider and abettor because the assault on Kevin occurred during the first 10 seconds of the fight, a several minute gap occurred "between the completion of the assault on Kevin and the moment when [he] was first seen swinging the crowbar," and the record shows no evidence of any other act by him that could be considered aiding and abetting the direct perpetrators of the assault on Kevin. Minor argues that neither his mere presence at the beginning of the fight nor his conduct of swinging the crowbar or metal instrument at the end of the fight constitute aiding and abetting. In sum, he asserts the evidence was insufficient to establish that he aided and abetted the assault on Kevin. We do not agree.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, 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....)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see In re Lynette G., supra, 54 Cal.App.3d at p. 1094 [all intendments are in favor of the judgment].) Viewed in such a light, the evidence was sufficient for a reasonable trier of fact to find beyond a reasonable doubt that Antonio was liable for the assault against Kevin as an aider and abettor.
At trial, Antonio admitted he was present at the park and he had walked ahead of the girls with whom he had arrived toward the group that was going to fight. Antonio heard Randy arguing with Mario and Kevin. Although Antonio denied being a member or affiliate of the BRS gang, denied having a crowbar in his hand during the incident, and claimed that he was simply watching the fight, there was evidence to the contrary. Antonio had admitted to Officer Lee that he had joined his group of friends at the park. Mario and Socorro saw Antonio with the group backing Randy before Kevin, Mario, and Socorro were attacked on Randy's direction. Randy, who was about eight to 10 feet away from Kevin, told his group to rush them. At this point, Mario saw Antonio swinging a black metal instrument. Antonio admitted that he had moved closer to the fighting after it started because he wanted to see what was happening and that he did not try to prevent or stop the fight. While "[i]t is legally and logically impossible to both form the requisite intent and in fact aid, promote, encourage, or facilitate commission of a crime after the commission of that crime has ended" (People v. Cooper (1991) 53 Cal.3d 1158, 1164), the evidence that Antonio threatened Kevin with a crowbar or metal instrument from a distance after Kevin had escaped his direct attackers and that Antonio fled the park after the fight ended were additional circumstances relevant to evaluating whether Antonio's conduct at the inception of the clash constituted aiding and abetting.
"It is well settled that, under the prevailing standard of review for a sufficiency [of the evidence] claim, we defer to the trier of fact's evaluation of credibility. (People v. Snow, supra, 30 Cal.4th at p. 66....) Moreover, the testimony of a single witness is sufficient for the proof of any fact. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885....)" (People v. Richardson (2008) 43 Cal.4th 959, 1030; see Evid.Code, § 411.) "[W]e must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.]" (People v. Huston (1943) 21 Cal.2d 690, 693, disapproved on other grounds in People v. Burton (1961) 55 Cal.2d 328, 352.)
The trial court could reasonably reject Antonio's assertions that he was merely an unarmed bystander. It could accept the testimony placing Antonio with the Norteno group backing Randy when Randy initially confronted Kevin and his friends and establishing that Antonio was swinging a metal instrument when Randy instructed them to attack. There was evidence from which it could be reasonably inferred that Antonio had formed the requisite intent to encourage or facilitate the actions of Randy, a direct perpetrator of the assault upon Kevin. Substantial evidence supports the finding that Antonio was liable for that assault as an aider and abettor.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.