Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. J21216A
Duffy, J.
The juvenile court adjudged B. S. to be a ward of the court under the juvenile delinquency law. It sustained a petition alleging conduct that if committed by an adult would have amounted to aggravated assault. The minor appeals from the adjudication order, claiming that there was insufficient evidence to sustain the adjudication. We agree.
PROCEDURAL AND FACTUAL BACKGROUND
I. Results of Juvenile Court Adjudication
A petition filed on May 14, 2008, under Welfare and Institutions Code section 602 alleged that the minor committed assault with a deadly weapon and by means of force likely to cause great bodily injury, a felony (Pen. Code, §245, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
After a contested jurisdiction hearing, the juvenile court sustained the petition. It placed B. S. on probation.
II. Facts
A. Prosecution Case
On April 10, 2008, Judy Maitland-Lock, a physical education teacher at Soquel High School, was leading students in an off-campus fitness walk when she heard one or more catcalls coming from the shelter of two nearby trees. She heard the discharge of a firearm, felt an impact on her arm, and saw that she was bleeding. She then heard a “whoop of joy” coming from the area of the trees. She told the students that she believed she had been shot and hustled them back to school.
As will appear, the evidence of the catcall or catcalls and the exultant “whoop” will figure in our determination of this appeal. Additional testimony regarding the overheard yells will be set forth in detail in the discussion section.
Maitland-Lock’s immediate physical injury was minor, but she suffered aftereffects that were more serious. A surgeon removed a BB pellet from her arm under general anesthetic. Her teaching ability suffered and she became unwilling to escort students off-campus.
Acting on a hunch that a possible suspect might be living in an apartment complex near the trees from which Maitland-Lock believed the shot had been fired, a sheriff’s deputy interviewed L. D.
The deputy testified that L. D. told him that he and B. S. were shooting at cans with a pellet gun when they saw a group of girls walk by. L. D. “said the gun was pumped up by [B. S.,] who shot towards the group of kids.” L. D. “heard somebody yell that they had been hit and then the group quickly walked off.”
Under a continuing objection by counsel for B. S. that the juvenile court sustained, L. D.’s statement that B. S. fired toward the group was admitted only against L. D., and not against B. S.
Acting on the information provided by L. D., the deputy interviewed B. S. B. S. told the deputy that he and L. D. were shooting a BB gun at cans. “[S]ome of [L. D.’s] friend[s] had showed up there while they were shooting at the cans and one of their friends shot at the group or at the cans and then shot somebody in the group.” Counsel asked, “So his statement to you was that neither he nor [L. D.] shot at the teacher or the group but there [were] some other kids there?” The deputy answered, “That’s correct.” B. S. could not or would not identify the shooter; he stated only that L. D.’s friends “were Mexican males.”
A few weeks after the petition against B. S. was filed, the deputy, having received an allegation that B. S. was not the shooter, interviewed L. D. again. This time the juvenile court admitted L. D.’s statements against both L. D. and B. S. L. D. told the deputy that “he was the one who actually shot toward the group.” L. D. told the deputy that the shooting was an accident because L. D. was intending only to shoot cans. After the incident, the two minors stayed at the scene for about 20 minutes and then went home. L. D. confessed to the deputy because he “felt bad [B. S.] was blamed for” wounding the teacher.
At the close of the case on behalf of the juvenile delinquency petition, counsel for B. S. moved to dismiss the petition under the authority of Welfare and Institutions Code section 701.1 on the ground that the evidence of aggravated assault “clearly” was “insufficient.” The prosecutor replied that it was immaterial which minor fired the shot that wounded Maitland-Lock; “they’re in this together, aiders and abettors.” The juvenile court denied the motion, stating that the evidence of aiding and abetting by B. S. was substantial.
B. Defense Case
L. D. testified on direct examination by his own counsel, and elaborated during cross-examination, that he and B. S. were shooting at cans and bottles. As L. D. was shooting, B. S. reported hearing a cry of pain and L. D. stopped shooting. They moved to a location from which they could get a better view and were able to see a group of young people. They left the area a few minutes later. On cross-examination by counsel for B. S., L. D. affirmed that he was the shooter when Maitland-Lock was wounded.
On the prosecutor’s cross-examination, L. D. testified that he and B. S. were there alone; no group of Mexican youths joined them on that occasion. L. D. further testified that he was shooting when the group walked by and that B. S. had used the BB gun only a couple of times while they were there. In the main, B. S. was helping L. D. to shoot at cans and bottles by setting them up as stationary targets or launching them as moving ones, but neither minor was aware that L. D. could wound a member of the group that, unbeknownst to them, was walking by. L. D. became aware of the group’s nearby presence only after firing the wounding shot. B. S. alerted him that he had heard someone utter a cry of pain and the two minors then saw the group. L. D. feared that he had shot someone, but the group was not displaying any commotion or alarm, causing L. D. to conclude that there was no problem, and the two minors did not approach the fitness walkers but instead soon left the vicinity.
On recross-examination by B. S.’s counsel, L. D. testified that he never told the deputy, even in the first interview in which he falsely told the deputy that B. S. was the shooter, that B. S. intentionally shot at anyone. L. D. told a private investigator that he, L. D., fired the gun just before someone uttered a cry of pain.
L. D. also testified that he would exclaim exultantly if he hit a can or bottle and disappointedly if he missed.
At closing argument, counsel for B. S. repeated the insufficient-evidence argument, arguing that the state had not established the elements of section 245 beyond a reasonable doubt. He stated that there was no evidence that B. S. was the shooter and that with regard to aiding and abetting, “at most, if everything is accepted, all testimony today, we have [B. S.] throwing some cans up, which clearly demonstrates certainly anything other than a specific intent to aid [L. D.] in the intentional shooting of another individual.” There was “no evidence of any kind of conspiracy, discussing shooting another individual, anything, zero evidence whatsoever.”
The juvenile court sustained the juvenile delinquency petition. It rested its ruling on the evidence that the victim had heard catcalls and an exultant “whoop” at the time. We will quote extensively from its comments in the discussion section.
DISCUSSION
A minor can be adjudged a ward of the juvenile court for committing conduct that if committed by an adult would constitute a crime. (Welf. & Inst. Code, §§ 602, subd. (a), 725, subd. (b).)
I. Claim of Insufficiency of the Evidence
B. S. claims that the record shows constitutionally insufficient evidence to sustain the juvenile court’s disposition and that, under the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, the wardship order must be reversed. We agree.
A. Standard of Review
The standard of review is well settled. “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Jackson, of course, speaks of crimes committed by an adult, but “the same principles are applicable to a review on appeal of the sufficiency of the evidence to support a finding in a juvenile proceeding that the minor violated a criminal statute.” (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
The Jackson standard of constitutional review “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses 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.) “The court does not, however, limit its review to the evidence favorable to the respondent.... ‘[O]ur task... is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
Notwithstanding that we consider all of the evidence, not just the prosecution’s, “we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury [and here the juvenile court as the trier of fact] could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “ ‘We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ” (Ibid.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ ” the juvenile court’s assessment of the evidence and subsequent disposition of the case. (Ibid. [speaking of a verdict].)
B. Substantive Law
“[I]t is a defendant’s action enabling him to inflict a present injury that constitutes the actus reus of assault.” (People v. Chance (2008) 44 Cal.4th 1164, 1172.) “To ensure that an assault conviction cannot be based on facts unknown to a defendant,... a defendant must ‘actually know[] those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another.’ ” (Id. at p. 1169.)
An aider and abettor is liable as a principal (§ 31) if he or she “acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense. Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets.” (People v. Richardson (2008) 43 Cal.4th 959, 1023.)
Thus, for B. S. to be liable on the juvenile court’s theory that he aided and abetted L. D. in shooting the victim, he had to know that L. D. was going to either intentionally shoot at the group or intentionally shoot in such a way that the natural and probable consequences would be to wound a member of the group (People v. Williams (2001) 26 Cal.4th 779, 787-788), and he had to encourage or facilitate L. D.’s act. Under long-standing principles of aiding and abetting, B. S.’s mere presence at the scene would not be sufficient to establish his liability, nor would his mere failure to stop L. D. from shooting. (People v. Richardson, supra, 43 Cal.4th at p. 1024.)
The juvenile court ruled, in denying B. S.’s motion to dismiss the petition at the close of the prosecution case under Welfare and Institutions Code section 701.1, that B. S. was liable as an accomplice. “I think that the aiding and abetting [evidence under Penal Code section] 32 [sic] is substantial,” the court stated.
We have reviewed the entire record. Regarding the catcall or catcalls and the exultant “whoop” on which the juvenile court relied to find B. S. liable as an aider and abettor, the testimony on point was this:
“Q.... [Y]ou said you heard a sound that you described as a pichoo sound, and then you felt something hit your arm. Correct?
“A. Kind of simultaneous, yeah.
“Q. Now, did you hear anything else after this occurred or before this occurred?
“A. I heard a sound like a whoop of joy, or whoop of, we got it, or I don’t know exactly what it sounded like, but I don’t know exactly what they said, but there was a whoop, like woo-hoo.”
“Q.... And you heard one whoop?
“A. And some hootie hootie at some of the girls ahead.
“Q. But you have no idea if the hooting at the girls came from the same source?
“A. There is nothing really else there.
“Q. There is a large condo complex though on the one side. Correct?
“A. Behind the trees, yeah.
“THE COURT: At one point when you said there was hooting at the girls, did you also say ahead?
“THE WITNESS: Yeah. My class was about 40 girls.
“THE COURT: But so when you say ahead, that was before the shot?
“THE WITNESS: Yes.”
The juvenile court interpreted the foregoing testimony as follows:
“Ms. Maitland-Lock doesn’t say anybody did anything other than what she heard. She doesn’t say [L. D.] did anything. She doesn’t say [B. S.] did anything. She has no clue. She has no—and I hate to say it, but she has no dog in the fight. But she buries them because she pays—she’s the victim. She’s paying attention. [¶] She has a bunch of—I’m sort of paraphrasing, but she—I think she said 30 or 40 young girls that she is walking with as in her PE class. And I think it was questioning by [the prosecutor] of [L. D.], there is absolutely no one else in those trees except [L. D.] and [B. S.]. And yet as these girls go walking by, or as they come in the area, there’s cat calls. I don’t think that is the term that she used, but it’s my term. But there is some calling out, some noises being made in recognition that these young girls are walking by. And it was my question as to timing, because there were the—and again, my term, cat calls, and I can’t come back with the term she used, but cat calls, and then I asked which came first, the whoop or the—I think I paraphrased that as the sound of joy or the cat calls. And admittedly you could mix those, but she said cat calls, then the pain, and the whoop of joy.”
The juvenile court also found evidence of B. S.’s consciousness of guilt. He “misdirect[ed] [the sheriff’s deputy] back to a group of Mexicans,” whom the court implicitly found to be nonexistent.
“I see two kids who screwed up by doing an intentional act,” the juvenile court summarized.
The record, however, shows no sufficient evidence that B. S. aided and abetted L. D. Although we test B. S.’s due process claim against the evidence by viewing the evidence in the light most favorable to the prosecution (People v. Zamudio, supra, 43 Cal.4th at p. 357), “we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding....” (People v. Johnson, supra, 26 Cal.3d at p. 577.) And we cannot view bits and pieces of evidence in isolation, but must assess the whole record. (Ibid.)
Considering the entire record, but particularly taking into account the juvenile court’s reliance on the victim’s testimony that she heard “some hootie hootie” before the shooting and a “sound like a whoop of joy” immediately afterward, it is evident that the victim heard either B. S. or L. D. utter one or more catcalls before L. D. shot her and either B. S. or L. D. utter a whoop of joy afterward. A catcall or a yell of delight definitively uttered by B. S. would be evidence from which a rational trier of fact could infer that he encouraged L. D. to shoot at Maitland-Lock’s group of approximately 40 girls. But there is no substantial evidence that Maitland-Lock heard B. S. make catcalls or “whoop” or that both minors did either thing in unison.
There is, to be sure, a bare trace of such evidence in Maitland-Lock’s testimony that “I heard a sound like a whoop of joy, or whoop of, we got it, or I don’t know exactly what it sounded like, but I don’t know exactly what they said, but there was a whoop, like woo-hoo.” However, Maitland-Lock discounted the reference to “we got it” in the same breath by stating “I don’t know exactly what they said.” Nor is her use of the third person plural pronoun in the impersonal reference “they said” substantial evidence of criminal conduct by both minors. The impersonal use of “they” followed by a verb is recognized in the English language as having no known subject. Such phrases as “I hear they’re going to do drug testing at school” or “they say California has nice weather” are common and, when used impersonally as in these examples and in the victim’s testimony, do not refer to anyone in particular. (See, e.g., “Impersonal pronouns,” [as of Nov. 3, 2009].)
“ ‘ “[U]pon no hypothesis whatever is there sufficient substantial evidence to support” ’ ” (People v. Zamudio, supra, 43 Cal.4th at p. 357) the juvenile court’s assessment of the evidence and subsequent disposition of the case. Accordingly, B. S.’s due process claim is well founded and he is entitled to relief.
DISPOSITION
The juvenile court’s order of wardship is reversed. We remand the case for the juvenile court to enter a new order dismissing the petition with prejudice.
WE CONCUR: Rushing, P. J., McAdams, J.
Viewing the record as a whole, we conclude that the juvenile court implicitly found that B. S. was not the shooter. We agree that there was no competent evidence that he was. The court heard evidence that L. D. initially told the sheriff’s deputy that B. S. shot Maitland-Lock, but the court admitted that evidence only against L. D. Aside from that evidence, there was no evidence that B. S. shot Maitland-Lock.