Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. SJ07005923
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This is an appeal from the jurisdictional and dispositional orders issued pursuant to Welfare and Institutions Code section 602 in a juvenile delinquency case. The juvenile court sustained a section 602 petition charging appellant, Javier Z., and two accomplices with one count of robbery and one count of assault by means of force likely to produce great bodily injury. Appellant contends insufficient evidence supported the juvenile court’s decision with respect to the robbery charge. We disagree, and thus affirm.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2007, a petition was filed pursuant to section 602 charging appellant with one count of robbery (Penal Code, § 211) and one count of assault by means of force likely to produce great bodily injury (Penal Code, § 245(a)(1)). The petition further alleged appellant personally inflicted great bodily injury in carrying out the offenses.
The charges stemmed from events occurring just before 8 p.m. on November 17, 2006. The victim, Sergio H., had stopped to buy tacos from a truck near 41st Avenue and International Boulevard in Oakland. Shortly after leaving the truck with his purchase, Sergio noticed a new white van following him. Three young men approached from the van, two of them pushing Sergio to the ground. Sergio was then kicked, hit and stabbed several times in the arm, back and stomach. One of the young men took Sergio’s wallet, which had approximately $170 in cash, and his cigarette lighter. The young men eventually left together in the van, after two of them had brief conversations on their cell phones, leaving injured Sergio on the ground.
After their departure, Sergio got off the ground and approached a man seated in a car near the taco truck to request a ride to the hospital. The man drove Sergio to Highland Hospital, dropping him off at the emergency entrance. The two men spoke little during the drive. Sergio spent about two weeks at Highland Hospital and about two weeks at Kaiser Hospital, undergoing medical treatment which included two surgeries for his stab wounds. As a result of his injuries, Sergio was unable to resume work for about two months, still experienced pain as of the time of these proceedings, and had a scar stretching from his groin to his chest.
The Prosecution’s Case.
At the jurisdictional hearing, Sergio identified his attackers as appellant, Julio C., and Julio’s older brother, Miguel C. Sergio attended high school with Julio, and considered him a friend. Sergio had briefly dated Julio’s and Miguel’s younger sister. Before he was attacked, Sergio recognized the white van following him as one recently purchased by Julio’s and Miguel’s father.
According to Sergio’s testimony, on the night of the attack, Miguel and appellant grabbed him from behind and kicked and punched him as he fell to the ground. Once on the ground, appellant held down Sergio’s legs and Miguel held down his arms, as Julio beat and stabbed him repeatedly and then stole his wallet and lighter. After the attack, Sergio heard Miguel speaking to his father on his cell phone. Sergio heard Miguel say “Papa, “ and “I got the guy with the money.” Miguel then threatened Sergio that “if I said anything, something would happen to my family.” Miguel also spoke briefly on his cell phone to someone Sergio assumed was his girlfriend.
Sergio never saw a knife in Julio’s hand, but saw Julio making stabbing motions with his hand and then felt sharp pain and saw blood on his shirt.
Sergio also heard appellant speaking on his cell phone to his mother. Sergio heard appellant tell Miguel he was speaking to his mother, and that she “had to go sell posole at church.”
Finally, the three young men left together in the white van.
Following the attack, while Sergio was still recovering and in pain at Kaiser Hospital, he spoke with Oakland Police Sergeant Parkinson. During the police interview, Sergio identified appellant, Miguel and Julio as his attackers, and generally gave statements about the attack consistent with his statements at the hearing. Sergio did not, however, tell Sergeant Parkinson that he saw Julio, rather than one of the others, remove his wallet and take his money. Sergio did tell Sergeant Parkinson that, after stabbing him, Julio kicked him to see if he were dead.
The Defense’s Case.
Several witnesses, including appellant’s friends and relatives, testified at the jurisdictional hearing that appellant was not at the scene of the crime on the night of November 17, 2006 when the attack allegedly occurred. Appellant’s mother, Manuela, his younger brother, Jaime, and his neighbor, Mauricio, testified that appellant was working on Mauricio’s car, and then driving his mother to a friend’s house for bible study, between 7:00 and 8:00 p.m. on November 17. Mauricio acknowledged that he had difficulty distinguishing days and was forgetful because he was on medication and depressed due to a physical disability. Mauricio also acknowledged that appellant helped him with his car most days of the week, and often took his mother to bible study on Fridays.
Appellant’s mother’s friend, Maria, testified that she saw appellant drop his mother off at her house for bible study and help carry dinner inside on November 17, 2006, although Maria had earlier told a defense investigator she did not recall seeing appellant on that date.
Appellant’s acquaintance, Williams, testified that Sergio told him shortly after the incident that three African-American men had attacked him. Williams was a friend of Julio’s and Miguel’s, and often visited them at their house before and after the incident.
A nurse at Highland Hospital, Alice, testified that she spoke with Sergio after he was assigned to her ward at about 2:50 a.m. on November 18, 2006, and that he told her three unknown Hispanic men had assaulted him. Alice did not write Sergio’s alleged statements in her medical report, but she nonetheless recalled them. Alice did not recall, however, whether Sergio had surgery before she spoke with him, although she acknowledged such information was crucial to her nursing duties.
Julio’s and Miguel’s mother testified that both were home on the night of Sergio’s attack. She further testified that Sergio called the house, “asking for Julio to come to the phone” on that night.
The Juvenile Court’s Decision.
On February 23, 2007, at the conclusion of the 7-day jurisdictional hearing, the juvenile court found, among other things, that appellant, Miguel, and Julio had engaged in a “joint attack, even though only one person did stabbing or one person did hitting, but all three of them were clearly involved in the attack, and there is a [great bodily injury enhancement] to the victim based on his injuries and the fact that he had to have two operations.” The juvenile court further found the defense witnesses, for the most part, not credible. The juvenile court thus sustained the section 602 petitions against appellant, Miguel and Julio.
At the March 16, 2007 dispositional hearing, the juvenile court adjudged appellant a ward and placed him on probation for an out-of-home placement, with a referral to the Family Preservation Unit. This appeal followed.
DISCUSSION
Appellant’s sole contention on appeal is that the juvenile court’s finding that he committed robbery was not supported by substantial evidence. Specifically, appellant contends that, while the evidence may have been sufficient to prove he committed assault, the evidence was insufficient to prove that (1) he aided and abetted Julio in committing robbery, or that (2) he is liable for the robbery as a natural and probable consequence of the assault.
Where the appellant challenges the sufficiency of the evidence supporting a juvenile court’s order sustaining certain criminal allegations, the reviewing court’s “sole function . . . is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726.) Accordingly, “we ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant’s guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” (Ibid.) In performing this task, we defer to the juvenile court’s determinations regarding the credibility of witnesses, and do not reweigh the evidence. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; see also People v. Maury (2003) 30 Cal.4th 342, 403.)
The Evidence Proved Appellant Aided and Abetted in the Commission of Robbery.
Penal Code section 211 defines robbery as “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.” A person is guilty of robbery if it is proved: “(1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. (CALJIC No. 9.40.)” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.)
Further, a person is guilty of aiding and abetting a robbery if “ ‘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.’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 851; see also People v. Nguyen (1993) 21 Cal.App.4th 518, 529 [“A person is . . . guilty as an aider and abettor if, with the requisite state of mind, that person in any way, directly or indirectly, aided the actual perpetrator by acts or encouraged the perpetrator by words or gestures.”].)
“Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal responsibility. [Citation.] Likewise, knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime. [Citation.] However, as the Supreme Court has clarified, ‘[t]he requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . ” (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal.Rptr., 592, 710 P.2d 392] . . . .)” (People v. Nguyen, supra, 21 Cal.App.4th at pp. 529-530; see also People v. Mitchell (1986) 183 Cal.App.3d 325, 330.)
Here, the evidence was sufficient to prove appellant aided and abetted in the commission of a robbery. According to Sergio’s testimony, while Julio was stabbing him and then taking his wallet and cigarette lighter from his pocket, appellant was holding down his legs and Miguel was holding down his arms. Further, after both appellant and Miguel had brief conversations with different individuals on their cell phones, the three young men left together – Julio in possession of Sergio’s belongings – in the white van owned by Miguel’s and Julio’s father. From these facts, the juvenile court, as trier of fact, could have reasonably inferred appellant, Miguel and Julio were working together in assaulting and robbing Sergio. More specifically, the juvenile court could have reasonably inferred that appellant intended to “encourage or facilitate,” and in fact did “encourage or facilitate,” Julio in the commission of the robbery by forcibly restraining Sergio’s legs while Julio removed his personal property. (People v. Nguyen, supra, 21 Cal.App.4th at pp. 529-530; see also People v. Mitchell, supra, 183 Cal.App.3d at p. 330.)
Indeed, there was at least some evidence of a preconceived plan of attack and robbery. Miguel had recently borrowed $50 from Sergio, which he had not repaid despite Sergio’s request that he do so, indicating that Miguel (and by inference his brother, Julio, and friend, appellant) had identified Sergio as a source of money. Further, Sergio testified to hearing Miguel tell “Papa” on his cell phone shortly after the attack that “I got the guy with the money.”
We agree, as appellant points out, there is no evidence that he or Julio expressed an intent to commit robbery prior to the actual incident. However, “it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] [Further,] [a]iding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (People v. Nguyen, supra, 21 Cal.App.4th at pp. 531-532; see also People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742 [an aider and abettor need not have had advanced knowledge of the crime].)
Moreover, even assuming appellant is correct that Sergio’s testimony was at times confusing or inconsistent, for example with respect to when appellant was speaking on his cell phone and whether it coincided with Julio’s stabbing of Sergio, “[c]onflicting evidence . . . does not establish that the evidence on one side or the other was insufficient.” (People v. Hinton (2006) 37 Cal.4th 839, 885.) And more importantly, conflicting evidence “do[es] not justify the reversal of a judgment, for it is the exclusive province of the trial judge or the jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury, supra, 30 Cal.4th at p. 403.)
The Natural and Probable Consequence Doctrine.
Under a separate but related theory of aiding and abetting, liability is extended to “one who knowingly and intentionally encourages, assists, or influences a criminal act of another, if the latter’s crime is naturally and probably caused by (i.e., is the natural and probable consequence of) the criminal act so encouraged, assisted, or influenced.” (People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1178.)
“ ‘[T]he aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable consequences of any act that he knowingly aided or encouraged. Whether the act committed was the natural and probable consequence of the act encouraged and the extent of defendant’s knowledge are questions of fact for the jury. . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent of the target offense, which [People v. Beeman (1984) 35 Cal.3d 547] holds must be found by the jury. . . .’ (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392] . . . .)” (People v. Nguyen, supra, 21 Cal.App.4th at p. 530.)
Whether the natural and probable consequence doctrine applies is an objective determination for the trier of fact. As such, “the issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.” (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)
Here, appellant contends the robbery, which Julio committed alone, was not a natural and probable consequence of the assault, which Julio and Miguel undisputedly committed with appellant’s assistance. We disagree.
As we have, for the most part, already set forth, the evidence in the record established that appellant, Miguel and Julio, together in a white van, followed Sergio at night on a dark street with few people. The three young men then left the van, assaulted Sergio, forcing him to the ground. While appellant and Miguel held down Sergio’s arms and legs, Julio stabbed him repeatedly and took his wallet containing $170 in cash and his cigarette lighter. Miguel could then be heard on his cell phone telling “Papa” that he “got the guy with the money” – evidence permitting the inference that a plan to commit robbery had already been conceived. Further, Miguel had recently borrowed $50 from Sergio and had not repaid it, despite Sergio’s request that he do so – evidence permitting the inference that Miguel, if not all three young men, considered Sergio a potential source of money. Finally, after the assault and robbery, all three young men left together in the van with Sergio’s personal property.
This evidence, considered as a whole, in a light most favorable to respondent, and presuming in support of the judgment the existence of every reasonably-deducible fact, supports a finding that the robbery committed in this case was a natural and probable consequence of the act (i.e., the assault) aided and abetted by appellant. (People v. Karapetyan, supra, 140 Cal.App.4th at p. 1178; In re Michael M., supra, 86 Cal.App.4th at p. 726.) As such, the juvenile court’s orders adjudging appellant a ward and sustaining the section 602 petition against him must be affirmed.
DISPOSITION
The trial court’s jurisdictional and dispositional orders are affirmed.
We concur: McGuiness, P. J., Pollak, J.