Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL029833, Donna L. Crandall, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
The juvenile court found 15-year-old Jake G. (born in May 1992) transported and possessed marijuana for sale, committed aggravated assault and second degree robbery, and found he personally inflicted great bodily injury. He challenges the sufficiency of the evidence to support the finding he personally inflicted great bodily injury, committed robbery, or possessed marijuana for sale. For the reasons expressed below, we affirm in part and reverse in part.
I
Facts and Procedural Background
Around 11:45 on the evening of November 11, 2007, minor accompanied Dominic R. from Dominic’s house to a Cypress school to sell a friend, Gabriel E., approximately 7 grams or $100 worth of marijuana. Gabriel asked to see the marijuana, then put it in his pocket, pulled out a Glock-replica Airsoft plastic pellet gun, pointed it at Dominic, and ran away. Dominic exclaimed “you’re not going to jack me,” and grabbed at Gabriel, but only caught his jacket. Dominic began chasing Gabriel and minor ran to intercept them. Dominic eventually tackled Gabriel next to a handball court. Minor arrived and held down Gabriel’s head and hands while Dominic removed the marijuana and a cell phone from Gabriel’s pockets. Dominic stabbed Gabriel several times during the struggle. Minor took the Airsoft gun from Gabriel and put it in his pocket. As they ran back to Dominic’s house, Dominic discarded the cell phone. Minor put the Airsoft gun in Dominic’s dresser drawer.
After Cypress police officers apprehended minor, Detective Kevin Roncevich interviewed minor at the police station. Minor admitted he knew Dominic had a knife but initially claimed he did not see the stabbing and surmised it occurred only during the pursuit because Gabriel was already bloody when Dominic tackled him. He later admitted, however, Dominic stabbed Gabriel once or twice while they wrestled with him on the ground.
Gabriel suffered life-threatening injuries, including multiple lacerations on his back and neck requiring staples or sutures, and a punctured lung (pneumothorax) requiring insertion of a chest tube.
Police officers located Gabriel’s cell phone on the roof of a house about 20 feet from the handball court. They recovered the Airsoft gun, marijuana, and a drug scale from Dominic’s bedroom dresser. They found bloody clothing, towels, and a knife in a trash bag in another bedroom. Dominic had cuts on both palms. Minor assisted Dominic’s father in cleaning up Dominic’s bathroom because it was “really bloody from Dominic’s hands.”
The juvenile court found minor committed the offenses listed above and that he personally inflicted great bodily injury, deemed him a ward of the court, placed him on probation, and ordered him to spend 270 days in a juvenile institution with credit for 116 days served.
II
Discussion
A. Insufficient Evidence Supports the Finding Minor Personally Inflicted Great Bodily Injury
Minor challenges the sufficiency of the evidence to support the finding he personally inflicted great bodily injury on Gabriel. We agree no substantial evidence shows minor wielded the knife and inflicted the wounds to the victim.
In reviewing the sufficiency of the evidence the 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 offense beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The appellate 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 [minor committed the offense] beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the court could reasonably have deduced from the evidence (People v. Rayford (1994) 9 Cal.4th 1, 23) and draw all reasonable inferences in support of the judgment. A minor may not gain a reversal on this ground unless it appears that under no hypothesis is there sufficient substantial evidence to support the juvenile court’s findings. (People v. Sanchez (2003) 113 Cal.App.4th 325, 329.)
In People v. Cole (1982) 31 Cal.3d 568, 571 (Cole), the California Supreme Court held that a great bodily injury finding under Penal Code section 12022.7 subdivision (a) applies only to an individual who “perform[s] the act that directly inflicts the injury” on the victim and not to persons who aid and abet the injury. (Cole, at p. 571.) In Cole, the defendant blocked the victim’s escape route, pointed a rifle at him, and ordered a codefendant to kill him. In response, the codefendant struck the victim on the head with a rifle, causing a serious laceration. Cole concluded this evidence did not support the great bodily injury finding, stating, “In our opinion, the meaning of the statutory language is clear: the enhancement applies only to a person who himself inflicts the injury.” (Id. at p. 572)
Penal Code section 12022.7, subdivision (a), provides in relevant part, “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” Subdivision (f) defines “‘great bodily injury’” as “a significant or substantial physical injury.”
The Attorney General relies on People v. Modiri (2006) 39 Cal.4th 481 (Modiri). Modiri held the trial court did not err in instructing the jury that a person who participates in a group beating is deemed to have personally inflicted great bodily injury when it is not possible to determine which assailant inflicted the victim’s injuries, and when the defendant’s blows alone could have caused great bodily injury, or the cumulative effect of the blows from all assailants could have caused great bodily injury. Modiri stands for the proposition that a person may receive an enhancement for great bodily injury “where he joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim’s injuries cannot be measured or ascertained.” (Id. at p. 495.) In other words, a great bodily injury finding where defendant’s force was serious enough that it might, by itself, have caused the great bodily injury, even though the evidence did not demonstrate his acts alone caused the harm, or the physical force applied by defendant and others to the victim combined to cause great bodily harm. (Id. at p. 496.)
Unlike the facts in Modiri,the evidence here was not “conflicting or unclear as to which assailant caused particular injuries....” (Modiri, supra, 39 Cal.4th at p. 496.) The evidence shows minor did not personally apply force to the victim producing grievous bodily harm, nor did minor “‘apply physical force directly to the victim to such a significant degree that he’” added to the cumulative injurious effect. (Id. at pp. 497, 505.) The undisputed evidence shows Dominic alone inflicted the stab wounds and Gabriel did not suffer any other injury. Minor aided and abetted Gabriel’s injuries but did not personally inflict any injury causing great bodily harm. (Cole, supra, 31 Cal.3d at p. 571.) Consequently, Modiri does not apply.
The Attorney General also relies on People v. Dominick (1986) 182 Cal.App.3d 1174 (Dominick).) In Dominick, three assailants brutally raped the victim, and then took her to the edge of a mountainside. The defendant grabbed the victim’s arms and pulled back her head and a codefendant struck her throat with a pole. The victim fell down the mountainside and broke her shoulder. The defendant, relying on Cole, argued the enhancement was inapplicable because he was merely an aider and abettor. The Dominick court held “substantial evidence supports the trial court’s finding that [defendant]’s acts constituted more than aiding and abetting and that he was directly responsible for the broken shoulder the victim suffered.” (Id. at pp. 1210-1211, italics added.)
In Dominick, both defendants directly caused the fall, which resulted in the victim’s broken shoulder. As another court observed, “The People interpret Dominick as affirming a personal infliction of bodily injury enhancement when the defendant proximately caused his victim’s injury. The People ignore the evidence in Dominick that the defendant not only proximately but directly caused injury to the victim. The Dominick defendant initiated contact with the victim by holding her head down and struggling with her. He then physically restrained his victim while his codefendant struck her. The combined effect of the two defendants’ affirmative and direct conduct caused the victim to fall down the mountainside and incur injury.” (People v. Rodriguez (1999) 69 Cal.App.4th 341, 351.)
As noted above, the enhancement does not apply here because minor did not directly perform the act that caused Gabriel serious physical injury. We therefore conclude the finding on the enhancement must be reversed.
B. Substantial Evidence Supports the Finding Minor Committed Robbery
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) The prosecution must establish the perpetrator intended to “deprive the victim of the property permanently.” (People v. Huggins (2006) 38 Cal.4th 175.)
Minor contends there was insufficient evidence he specifically intended to permanently deprive Gabriel of the Airsoft gun. The intent required to commit a particular crime is manifested by the objective actions of an individual, and the “specific intent to rob may be inferred from circumstances connected with the robbery.” (People v. Johnson (1972) 28 Cal.App.3d 653.) The evidence established minor took the Airsoft gun from Gabriel and put it in his back pocket. Unlike the cell phone, he and Dominic did not discard the Airsoft gun and officers later found the weapon where minor placed it in Dominic’s dresser. This constitutes substantial evidence minor intended to permanently deprive Gabriel of the Airsoft gun. The court also could reasonably infer the gun found in Dominic’s dresser drawer was the same gun minor admitted he took from Gabriel and placed in the same drawer.
Minor also contends the evidence demonstrated he took the weapon in defense of himself and Dominic. A person has the right of self-defense (including defense of others) where he reasonably believes he is in imminent danger of suffering bodily injury, immediate use of force is necessary to defend against that danger, and he uses no more force than was reasonably necessary to defend against that danger. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; see also Pen. Code, §§ 693, 694.) Self-defense generally presents a question of fact, however, and the juvenile court here concluded minor did not believe he was in imminent danger of bodily injury. Rather, the court found minor ran to intercept Gabriel to help recover the marijuana. At the time minor took the gun, Gabriel was on the ground bleeding from several stab wounds. Minor admitted during his police interview he realized when he took the gun “it’s an air soft gun... and I was like it’s not even real.” Sufficient evidence demonstrates any initial fear minor may have experienced had dissipated at the time minor and Dominic used force to take the Airsoft gun from Gabriel. Minor’s self defense claim therefore fails.
C. Substantial Evidence Supports the Finding Minor Possessed Marijuana for Sale
Finally, minor argues there is insufficient evidence he aided and abetted Dominic’s possession of marijuana for sale. The juvenile court relied on evidence minor accompanied Dominic to the park knowing he was going to sell Gabriel marijuana, knew the quantity and value of the drugs involved, and assisted Dominic in retrieving the drugs.
A person violates Health and Safety Code section 11359 by knowingly possessing marijuana with intent to sell it. A person is guilty as an aider and abettor where he assists or encourages the perpetrator with knowledge of the criminal purpose and with an intent or purpose of committing, encouraging or facilitating the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Whether a person has aided or abetted a crime is usually a question of fact. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Presence at the scene and companionship with the perpetrator may suggest a defendant has aided and abetted a crime. (Ibid.) Also, flight connotes consciousness of guilt. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
Minor told police he was at Dominic’s house when Dominic came home and asked minor to accompany him, and “we [he and Dominic] went over there to drop him off a lot of weed.” (Italics added.) He said Gabriel did not “give us money for the weed.” (Italics added.) Minor knew the quantity and value of the drugs in question. The juvenile court reasonably inferred minor accompanied Dominic on the late-night mission to facilitate the sale of marijuana by acting as back-up or security to help Dominic complete the sale. The court could reasonably conclude minor’s act assisted Dominic with the crime of possessing marijuana for sale.
II
Disposition
The juvenile court’s finding minor personally committed great bodily injury is reversed. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.