Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. 510241 Nan Cohan Jacobs, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant was found guilty of assault, intimidating a witness, felony vandalism, and threatening a witness. At the dispositional hearing, the juvenile court placed appellant in juvenile hall until his 18th birthday. The juvenile court also determined that the maximum confinement time was 96 months. Finally, the juvenile court imposed certain terms and conditions of probation.
On appeal, appellant contends that there was insufficient evidence to sustain the charges of assault and intimidating a witness. He also contends that the sentence for threatening a witness should be stayed pursuant to Penal Code section 654. He further contends that certain probation conditions should be modified. Finally, he contends that the juvenile court should have determined whether three of the charged offenses were felonies or misdemeanors. For the following reasons, we affirm the convictions and remand to the juvenile court with instructions.
All further section citations are to the Penal Code, unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
On the evening of November 8, 2008, David Wainwright went to the local grocery store. As he exited the store, two young males who were outside the store asked Wainwright if he could purchase alcohol for them. After he placed the groceries in his car, Wainwright walked over to the males and said “No.” He told them that “[s]omebody around here gave my daughter alcohol that almost killed her, and when we find out who that person is, they’re going to jail.” Wainwright then returned to his car and left.
Upon arriving home, Wainwright called the police to report what had occurred. About 20 to 30 minutes later, the police called Wainwright and asked him to return to the store to identify the individuals. The police picked up Wainwright and drove him in a police cruiser to the grocery store. There, Wainwright identified appellant and another young man as the two individuals who had asked him to purchase alcohol for them. The police also had Wainwright sign a citizen’s arrest form and told him that they would call him if needed.
Two days later, on November 10, 2008, Wainwright was at his home with his wife and children. At approximately 8:00 p.m., he heard the sound of breaking glass coming from his 11-year old daughter’s bedroom. He ran down the hall and saw his daughter shaking glass from her hair and “all over.” She had been sitting close to the window when someone threw a 40-pound cinder block at the window. The light in her room was on; she had been reading a book.
Although there was broken glass on the daughter’s person and on her bed and dresser, the cinder block did not enter the bedroom because the windows had recently been replaced and were quite durable. The window was one of two large windows facing frontward, towards the street. The bottom of the windows were about one to two feet from the ground. The windows did not have blinds or drapes. Anyone who came close to throw the cinder block could have seen Wainwright’s daughter sitting near the window if the bedroom light was on. On that night, the bedroom of the other window was dark. That window was not damaged.
Through the broken window of his daughter’s room, Wainwright saw five or six males running from his yard. He ran outside with his son, yelling at the group to stop. As Wainwright was chasing the group of males, one of them fell. Wainwright noticed that the male that fell was the young male who was with appellant outside the grocery store on November 8, 2008. As soon as he realized who it was, Wainwright abandoned his pursuit of the group of males.
When Wainright returned to his home, he noticed that the word “rat” had been spray painted on his garage door. “Rat” was also spray painted on the passenger door of his car, and spelled backwards on the driver’s side door. Windows on the car were broken, and the body was scratched and dented throughout. It was stipulated that the damage to the house and car was over $400.
Wainright believed that the damage to his property was related to him calling the police and reporting the incident at the store with the two young men. The parties stipulated that, as of November 10, 2008, Wainwright had not testified against the two males who approached him outside the grocery store.
Three cinder blocks were found on Wainwright’s property after the incident; one cinder block by the window, one near his car, and one inside the car. Wainwright believed that the cinder blocks were taken from a nearby house, where the owner had been building a cinder block fence.
Police were called to the house. Wainwright told the officers that he had recognized one of the persons involved as one of the young males outside the grocery store on November 8, 2008. The officers called to dispatch to find the names and addresses of the youth, and then eventually located appellant walking on Creekside Drive.
Appellant had paint on his fingertips, pants, and shirt. The color of the paint was the same color that the word “rat” was spray painted on Wainwright’s garage door and on his car. Appellant initially claimed that the paint on his clothing was actually blood. He later said that it was paint, but claimed it came from him painting a wall at a friend’s house.
Appellant subsequently admitted to being at Wainwright’s house. However, he denied that he threw the cinder block. He said that “Andreas” spray-painted the house and “Anthony” threw the block. When asked why he was at the Wainwright house, appellant said, “Wouldn’t you be upset if somebody ratted you out?” Appellant claimed that he did not know who else, besides Andreas and Anthony, was with him that evening. Appellant talked about people doing damage for him, but he made no statement indicating that he or his companions intended to harm anyone at the Wainwright house. Appellant was subsequently taken home by a police officer.
On December 29, 2008, a second amended petition pursuant to Welfare and Institutions Code section 602, subdivision (a) was filed in Stanislaus County Juvenile Court charging appellant in count I with misdemeanor assault likely to produce great bodily injury in that he assaulted Wainwright’s daughter (§ 245, subd. (a)(1)); in count II with intimidating a witness, namely Wainwright (§ 136.1, subd. (c)(1)); in count III with felony vandalism of Wainwright’s car and house (§ 594, subd. (b)(1)); and in count IV with threatening a witness who assisted in prosecution (§ 140, subd. (a)).
On December 29, 2008, the trial court found true the allegations and sustained the petition. On January 21, 2009, a disposition hearing was conducted. The trial court ordered that appellant continue being a ward of the court. Appellant’s maximum commitment time was 96 months.
On February 9, 2009, appellant timely filed a notice of appeal.
DISCUSSION
A. Substantial Evidence of Intimidating a Witness and Assault
Appellant first contends that there was insufficient evidence to prove that he intimidated a witness or committed assault. Appellant contends that there was insufficient evidence to prove that he intended to dissuade Wainwright from testifying in the future because there is no evidence that appellant was aware that Wainwright would be called upon to testify in the future. At best, the charged crimes were in retaliation for past conduct. Appellant also contends that there was insufficient evidence to prove that he committed assault on the ground that he aided and abetted the other minors who actually committed the assault. Although there was evidence that appellant was present at the scene of the crime, appellant asserts that there was insufficient evidence that he was “aware that an assault on Wainwright’s daughter was planned or that appellant encouraged or facilitated the assault on Wainwright’s daughter.” We disagree.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘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.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 702.) The same standard of review applies to juvenile cases. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
1. Intimidating a Witness
Under section 136.1, subdivision (c)(1), any person who, through the use of force or threat of force, knowingly and maliciously prevents or dissuades, or attempts to prevent or dissuade, any witness from attending or giving testimony at any trial, proceeding, or inquiry authorized by law is guilty of a felony.
In this case, appellant used or participated in a common scheme to use force or threat of force against Wainwright. A 40-pound cinder block was thrown at a window occupied by a resident, in this case, Wainwright’s daughter. From the location of two other cinder blocks near Wainwright’s car, it can be reasonably inferred that appellant or his friends also damaged the car with the cinder blocks before being interrupted by Wainwright and his son. The spray-painting of the word “rat” on the house and car is an express or implied threat against Wainwright to punish him for being a “rat” (by informing the police that appellant attempted to purchase alcohol while under the legal age to do so) or to prevent or dissuade Wainwright from being a “rat” in the future.
Appellant asserts that any use of force was in retaliation for past conduct and not to prevent or dissuade future testimony. However, the mere fact that appellant did not inform Wainwright or told the police that the threat or use of force is to deter future testimony does not render a conviction for intimidating a witness invalid. Rather, we will examine the totality of the circumstances to determine whether appellant had the specific intent to use force or threat of force to prevent or dissuade Wainwright from testifying at a legal proceeding or inquiry.
In People v. Ford (1983) 145 Cal.App.3d 985, this court held that a threat against a witness which does not reference any future testimony can be interpreted in light of the circumstances as a warning or threat not to testify in the future. As explained in People v. Mendoza (1997) 59 Cal.App.4th 1333, “the fact appellant’s comments only referred to [the victim’s] past testimony does not immunize him from being found guilty of attempting to dissuade [the victim] from giving testimony in the future.” (Id. at p. 1344.) In People v. Young (2005) 34 Cal.4th 1149, 1210, the Supreme Court upheld a conviction where defendant “knew from his attorney that [the victim] was cooperating with the police” and it was reasonable to infer that the defendant “expected [the victim] to testify at trial.” (Id. at p. 1211.)
Here, the spray-painting of Wainwright’s house and car and the throwing of a 40-pound cinder block through a window constituted a threat against Wainwright either for his past cooperation with the police or to prevent future cooperation with the police or both. Appellant had a prior criminal history and was familiar with the court process. He knew that Wainwright had recently identified him, and should have been aware that Wainwright could testify against him in any proceeding for appellant’s citable offense of attempting to purchase alcohol while under the legal age to do so. In light of these circumstances, it is reasonable to infer from the evidence that appellant acted with specific intent to prevent or dissuade any future testimony by Wainwright
2. Assault Likely to Cause Great Bodily Injury
“All persons concerned in the commission of a crime, … whether they directly commit the act constituting the offense, or aid and abet its commission, … are principals in any crime so committed.” (§ 31.) 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 actually committed.” (Id. at p. 269.) Whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant is a “factual question to be resolved by the jury in light of all of the circumstances surrounding the incident.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) “A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.]” (Ibid.)
“[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409)
Here, all three factors were present. Appellant was at the scene of the crime. He admitted that he was with two friends. One of these friends threw a cinder block at the house. Finally, there is substantial evidence that appellant did not attempt to stop his friend from throwing the cinder block through the bedroom window.
There is evidence in the record that the three 40-pound cinder blocks that were found on Wainwright’s property were taken from a nearby fence. Two cinder blocks were found by the car and one cinder block by the house. It can reasonably be inferred that appellant knew that the group planned to throw the cinder blocks at the car and the house. However, he did nothing to dissuade the group from using the cinder blocks during the time period when the cinder blocks were transported from the nearby house to Wainwright’s house. After the incident, appellant told officers that he knew who had thrown the cinder block and that this person was among those people who would do “damage” for him. He also expressed anger at Wainwright for “ratting” on him.
There is also evidence that two large windows of Wainwright’s house were visible from the street. One window was dark; the other window showed a young girl reading a book. It is reasonable to infer that Wainwright saw that one room was occupied by the child as he came to the residence. Because only one cinder block was thrown at the house and it was thrown through the window where the young girl was reading, it can be reasonably inferred that one or more members of the group decided to commit assault against Wainwright’s daughter. It cannot be disputed that throwing a 40-pound cinder block through a window at a girl who was located nearby is likely to cause serious bodily injury. There is no evidence that appellant attempted to stop his friend from throwing the cinder block into the occupied room. Thus, it is reasonable to infer that appellant facilitated or encouraged the assault by an act of omission.
Finally, the assault is closely connected to the target crime of intimidating a witness. Throwing a cinder block through a window into a house occupied by the witness or the witness’s family is closely connected to intimidation of a witness. Wainwright himself testified that he broke off pursuit of the vandals when he realized that one of the vandals was a youth that he had identified for the police two nights ago. He believed that the vandalism was related to that incident. A reasonable person would believe that Wainwright would have been intimidated if a 40-pound cinder block was thrown through a bedroom window where his daughter was reading nearby.
In light of the circumstances, there was substantial evidence to support the finding that appellant aided or abetted in the assault on Wainwright’s child when appellant failed to prevent the assault or discourage the commission of the assault even though he was aware that one of his friends would throw a cinder block through a window into an occupied room.
B. Section 654
Appellant next contends that the juvenile court erred when it did not stay the sentence for the charged offense of threatening a witness (count IV of petition) since that offense consists of the same act that constituted the offense of intimidating a witness (count II of the petition). Under section 654, subdivision (a), “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.…” The People agree that any sentence regarding the charged offense of threatening a witness should be stayed.
Here, the juvenile court found true all four counts alleged in the petition. It imposed a sentence, but did not break down the sentence by individual counts. Thus, we presume that the sentence was based upon all four charged counts. Therefore, we will remand to the juvenile court to recalculate the sentence because any sentence for threatening a witness should be stayed pursuant to section 654.
C. Probation Conditions
Appellant also contends that certain probation conditions are unconstitutionally vague and overbroad. Specifically, the juvenile court had ordered appellant:
“[N]ot to use or possess any drug paraphernalia, controlled substance, or alcohol.… [¶] … [¶] not to associate with known users or sellers of illegal drugs…. [¶] … [¶] not to possess any known gang paraphernalia, including but not limited to rags, monikers, graffiti tagging instruments, or colors…. [¶] … [¶] stay away from any known gang gathering areas… [and] not to associate or communicate with or be in the company of any known gang members or associates.”
To cure the constitutional defects, appellant contends that the prohibition against use or possession of drug paraphernalia and controlled substances should specify that it applies only to items that are not prescribed by a physician. Appellant also contends that the other prohibitions should include a personal knowledge requirement. For example, the prohibition against possessing any known gang paraphernalia should include the requirement that appellant knows that the item is gang paraphernalia or that the probation officer informs appellant it is gang paraphernalia.
The People agree. Thus, we will remand the matter to the juvenile court to modify the probation conditions.
D. Findings on Wobbler Offenses
Finally, appellant contends that the juvenile court erred when it did not make specific findings on whether certain wobbler offenses, specifically the counts of assault, felony vandalism, and threatening a witness, were felonies or misdemeanors. Under Welfare and Institutions Code section 702, “[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.”
The People agree that the record does not indicate whether the juvenile court was aware of and exercised its discretion to determine if the charged counts were felonies or misdemeanors. Thus, we will remand the matter to the juvenile court to make express findings on whether the wobbler offenses were misdemeanors or felonies.
DISPOSITION
The convictions are affirmed. The case is remanded to the juvenile court to recalculate sentence, modify probation conditions, and make specific findings on wobbler offenses.
WE CONCUR: Vartabedian, J., Gomes, J.