Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. JJ15389, S. Robert Ambrose, Juvenile Court Referee.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Appellant J.D. (minor) appeals from the order declaring him to be a ward of the court. He contends there is insufficient evidence to support the juvenile court’s finding that he committed the crimes of attempted robbery and attempted murder and the court erred in calculating the maximum term of confinement. The Attorney General agrees the court miscalculated the maximum term of confinement, arguing that it failed to impose sentence for two enhancements it found to be true. He claims that the maximum term of confinement must be increased. We direct the court to recalculate the maximum term of confinement and, as modified, affirm the order.
Two unrelated sustained petitions were used to calculate minor’s maximum term of confinement. Neither is the subject of this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On February 16, 2008, at approximately 6:50 p.m., Juan Lopez and Neri Arias were in the parking lot of a shopping complex located in South Gate, when they were approached by two young men, one of whom was armed with a silver handgun. Lopez put down some beer that he and Arias had just purchased. According to Lopez, “[t]hey came and told us they wanted our cell phones from us.” When the men refused to relinquish their phones, the young man with the gun, who was approximately 20 feet away, started shooting in Lopez’s direction. Lopez, who heard four shots, was struck on the side of his forehead by one of the bullets. Lopez estimated that Arias was about two to five feet away from him when the shooting started. Lopez did not see where the two youths went.
At the hearing, Lopez looked at a picture of a chrome handgun that was shown to him by the prosecutor and said the firearm in the picture looked like the one held by the gunman on the day of the incident.
Arias confirmed that he was in the parking lot with Lopez when “[t]wo young Latinos” approached. Arias was walking and talking on the phone. One of the young men was holding a gun, and he demanded Arias’s phone and wallet. Arias said that he was going to give up the items, but the gunman backed away. The other youth said, “We already have the beer,” and the young men began to run away. The man with the gun turned and shot at Lopez. Arias was about 10 to 12 feet away from Lopez when the shooting started.
Jose Rosas was in the parking lot loading groceries into his car when he heard the sound of gunfire. He saw three males, who looked Hispanic, running toward a white car that had its engine on. They got into the car and it sped out of the parking lot.
At the hearing, Rosas looked at two photographs of a white car (People’s exhibits 2 and 3) and said they depicted the vehicle he saw in the parking lot.
South Gate Police Officer Christopher Vajrabukka responded to the parking lot shortly after the shooting. In the lot, he recovered five.25 caliber shell casings. Counsel stipulated the casings were found where Lopez had been shot.
South Gate Police Officer Scott Guerrero also went to the parking lot after the shooting, where he contacted a witness who gave him the license plate number to a white Chevy Monte Carlo. The registered owner of that vehicle had an address on East 109th Street in the City of Los Angeles. Guerrero and his partner were driving to that location when he saw the Monte Carlo in question. Guerrero stopped the car and arrested the driver, Jerry Frias. During a search, Guerrero found a receipt in Frias’s shirt pocket from Big 5 Sporting Goods reflecting a purchase of Winchester.25 caliber rounds. Counsel stipulated the receipt revealed that the bullets were purchased on February 16, 2008, at approximately 5:57 p.m. from the Big 5 Sporting Goods store located at 9100 East Firestone Boulevard in the City of Downey.
Guerrero testified that the Monte Carlo was depicted in People’s exhibits 2 and 3.
After receiving information from Frias, Guerrero and his partner went to Jordan Downs, parked, and watched unit number 140. A car pulled up and parked next to the officers’ vehicle. Two males exited the car and walked toward unit number 140. The officers approached the males, one of whom was minor. Guerrero noticed that minor had his right hand in his front jacket pocket. Guerrero asked minor to show his hands, whereupon minor discarded a handgun. The weapon, a loaded.25 caliber semiautomatic handgun, was recovered.
Guerrero stated that the gun he recovered was depicted in People’s exhibit 1.
On February 17, 2008, at approximately 3:20 a.m., South Gate Police Detective Juan Rodriguez interviewed Mario M. Mario told him that at about 6:00 p.m. on the evening of February 16, he was picked up in a car driven by his friend, Jerry Frias. Mario said he and Frias drove around for awhile, went to a Big 5 Sporting Goods store in Downey, and Frias purchased some ammunition. Mario said the ammunition was for a gun owned by J.D. and Frias bought the bullets because J.D. was too young to do so. Mario admitted that he was present in the parking lot at the time of the shooting, but refused to say who shot the victim.
Mario testified at the hearing and claimed he could not remember what he had told Detective Rodriguez during the interview. Mario acknowledged that he knew minor and said he had no other friends named J.D.
During the early morning hours of February 17, Detective Rodriguez also interviewed minor, who claimed to know nothing about the case Rodriguez was investigating. Minor admitted he was in the parking lot at the time of the shooting. He said he went to the parking lot after being picked up by his friend, Jerry Frias.
At approximately 2:30 to 3:00 a.m. on February 17, an officer swabbed minor’s hands for the purpose of determining whether gunshot residue was present. A chemist analyzed the swabs and found one particle unique to gunshot residue. He concluded that the individual who provided the sample had fired a gun, handled a gun, was near someone who had fired a gun, or touched a surface that had gunshot residue particles on it. Gunshot residue particles generally do not stay on a person’s hands for more than six to eight hours. The chemist was asked whether the residue could have been present as a result of the person handling a gun that had recently been fired. He replied that the test results were consistent with that scenario.
Rodriguez testified that in the course of his investigation, he determined that an individual named Jose I. was responsible for shooting Lopez and that Mario was standing a few feet from Lopez and Arias at the time of the attempted robberies.
Minor did not testify. He presented evidence that Jose I. told Detective Rodriguez why he fired his gun at the scene of the attempted robbery. However, after the prosecutor lodged an objection, the detective was unable to state what that reason was.
DISCUSSION
I. There Is Sufficient Evidence to Sustain the Attempted Robbery Findings
Minor contends there is insufficient evidence tying him to the attempted robberies. He concedes the evidence established that he was present in the parking lot at the time of the crimes, but argues that his mere presence does not prove that he intended to aid and abet the perpetrators. He acknowledges that the officers testified they saw him discard a firearm, however, he claims no ballistic evidence connects that weapon to the one fired at the scene.
“The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) The same reviewing standard applies to cases in which the People rely on mainly circumstantial evidence. It is the duty of the fact finder to acquit the accused if it finds the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to innocence. However, it is the fact finder, not this court, which must be convinced of the accused’s guilt beyond a reasonable doubt. (Ibid.) This court must accept logical inferences that the fact finder may have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) The substantial evidence standard of review is applied in juvenile cases. (In re Brandon G. (2008) 160 Cal.App.4th 1076, 1079-1080.)
The prosecution’s theory was that minor was an aider and abettor in the attempted robberies. Thus, it was required to show that he acted with knowledge of the criminal purpose of the perpetrators and with the intent to commit, encourage, or facilitate the commission of the offenses. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) “Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment. Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense.” (In re Juan G. (2003) 112 Cal.App.4th 1, 5, fns. omitted.)
Minor chooses to focus on each fact that tends to establish his guilt in isolation, claiming that he was simply in the wrong place at the wrong time. In doing so, he neglects to view the evidence as a whole. Once the totality of the evidence is viewed in context, it becomes clear that minor knew the attempted robberies were going to occur and intended to facilitate the commission of those crimes.
Just before 6:00 p.m., less than an hour before the victims were accosted in the parking lot, Jerry Frias, Mario M., and minor traveled to a sporting goods store where Frias purchased ammunition for minor’s.25 caliber handgun. The only reason minor did not buy the rounds was because he was too young to do so. Frias drove to the parking lot where the attempted robberies took place. Mario and minor admitted to being present at the time the crimes were committed. After the shooting, three males were seen dashing and getting into Jerry Frias’s vehicle, where Frias was waiting with the engine running. It is reasonable to infer that the shooter, Mario, and minor were the males who jumped into Frias’s car. Police determined that Lopez was shot with a.25 caliber weapon. A few hours later police confronted minor, who tossed a.25 caliber handgun. A particle unique to gunshot residue was discovered on minor’s hands. The prosecution’s expert testified this evidence was consistent with minor having handled a weapon that recently had been fired.
The evidence, minor’s admission that Frias picked him up in a vehicle and drove to the parking lot where the shooting occurred and Mario’s statement that he accompanied Frias to Big 5 to purchase ammunition for minor’s gun, supports this inference.
Resolving all inferences in favor of the judgment, the evidence is sufficient to show that minor aided and abetted the perpetrators of the attempted robberies. He provided the weapon for use in the crime, accompanied his accomplices to obtain ammunition for the weapon, traveled to the scene of the attempted robbery, and got out of the vehicle to stand in the parking lot while the crime took place. After the shooting, he joined his accomplices as they ran to the waiting vehicle, took possession of the weapon after it had been used to shoot Lopez, and attempted to discard it when confronted by the police.
Minor’s reliance on People v. Butts (1965) 236 Cal.App.2d 817 is misplaced. In that case, Butts and his companion, Otwell, were involved in a fist fight with several men. During the melee, Otwell produced a knife and stabbed one of the men to death. Butts was found responsible for the killing as an aider and abettor. The appellate court reversed his conviction, finding that “[a]side from speculation and suspicion, there is no evidence that Butts advised and encouraged use of a knife, that he had advance knowledge of Otwell’s wrongful purpose to use a knife or that he shared Otwell’s criminal intent to resort to a dangerous weapon. There is no evidence that Otwell pulled or displayed the knife at any time before Butts [became involved in the fist fight].” (Id. at p. 836.)
In contrast, minor produced the weapon prior to the crime. His excursion to the sporting goods store to obtain ammunition supports the inference that he and his companions intended to use the gun. He accompanied the perpetrators of the attempted robbery to the location where the crime was committed. The evidence established that minor gave the gun to one of the would-be robbers, fled the scene with his cohorts after the shooting, and took possession of the gun knowing it had been used in the crime.
Minor’s conduct before, during, and after the shooting supports the juvenile court’s finding that he committed the crimes of attempted robbery.
II. There Is Sufficient Evidence to Support the Attempted Murder Findings
Minor argues there is insufficient evidence that he committed attempted murder. In a related claim, he asserts that he may not be found to have committed more than one count of attempted murder.
We have determined the evidence established that minor aided and abetted the attempted robberies. He also can be found liable for the attempted murders committed by his accomplice if those offenses were a natural and probable consequence of the target crimes. (People v. Prettyman (1996) 14 Cal.4th 248, 262.)
Minor argues that the shooting in this case was not reasonably foreseeable. He relies on United States v. Andrews (9th Cir. 1996) 75 F.3d 552 (Andrews). We are not persuaded. In Andrews, the defendant agreed to help his sister “get” a person named Lowery, with whom his sister had quarreled. The defendant and his sister came upon Lowery, who was driving with three other people. When Lowery got out of the car, the defendant shot and killed him. His sister fired into Lowery’s vehicle, killing one of the occupants and wounding the other two. The defendant was convicted of the crimes involving the latter three victims. The court reversed the defendant’s convictions, finding that his sister acted impulsively and beyond the scope of the crime the defendant had agreed to commit—doing harm to Lowery. It concluded that the sister’s crimes were not a natural and probable consequence of Lowery’s murder.
Initially, we note that intermediate federal appellate decisions are not binding on this court. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 61.) In any event, we find Andrews distinguishable. There, the defendant agreed to commit an act of violence aimed at an individual who had fought with his sister. His sister gratuitously shot three people who were sitting in a car, despite the fact that they had played no role in the earlier argument. The court found that the separate, unplanned shooting of others who were uninvolved in the dispute the defendant had with the victim was not reasonably foreseeable. Here, the victim of the shooting was also the victim of the attempted robbery. There is ample case law holding that the use of a gun is a reasonably foreseeable consequence of an armed robbery. (See People v. Bradley (2003) 111 Cal.App.4th 765 [attempted murder a natural and probable consequence of armed robbery]; People v. Hammond (1986) 181 Cal.App.3d 463 [same].) We see no reason to depart from those cases.
Minor argues the victim was shot after one of the perpetrators got the beer and began to flee the scene and suggests that the shooting was not foreseeable because the robbery was completed. He is incorrect. The crime of robbery continues until the perpetrators reach a place of temporary safety. (People v. Cooper (1991) 53 Cal.3d 1158, 1164-1170.)
We conclude the attempted murders were a natural and probable consequence of the attempted robberies. There remains, however, minor’s contention that he may not be found responsible for the attempted murder of Arias, the victim who was not injured. He argues that as an aider and abettor he may only be found liable for those crimes committed by his accomplices. He asserts there is no evidence the shooter intended to kill Arias. Minor relies on the testimony of Lopez and Arias that the gunman started shooting at Lopez as proof.
The case of People v. Chinchilla (1997) 52 Cal.App.4th 683 is instructive. There, the defendant fired one bullet in the direction of two officers, one of whom was behind and slightly above the other. (Id. at p. 687.) The court affirmed the defendant’s two attempted murder convictions, determining that a reasonable jury could infer from the fact the two officers were in close proximity to one another that he intended to kill both. (Id. at pp. 690-691.) In our case, Arias testified that he was 10 to 12 feet from Lopez when the shooter opened fire. Lopez said he was two to five feet from Arias when the gunman fired from approximately 20 feet away. Five shots were fired. While the court could have found that the gunman was a sharpshooter who struck only his intended target, it concluded that one who fires five rounds at two men who are standing in close proximity to one another intended to kill both. As we must accept logical inferences that the fact finder draws from the circumstantial evidence, we conclude substantial evidence supports the juvenile court’s finding that minor committed two counts of attempted murder.
III. The Maximum Term of Commitment Must Be Recalculated
The court imposed consecutive sentences of eight months for each of the attempted robbery counts (counts 3 and 4). Minor correctly points out that the term should have been six months (one-third of the midterm of 18 months). The Attorney General does not dispute minor’s contention, however, he notes that the court failed to sentence minor for the armed enhancement pursuant to Penal Code section 12022, subdivision (a)(1) in connection with the attempted robberies. He urges that the correct sentence for each of the attempted robberies should be 10 months (six months for the underlying crime and four months [one-third of 12 months] for the enhancement).
Our review of the minute order reveals that the court sentenced minor to an additional year for the armed allegation as alleged in count 1. It failed to impose the mandatory sentence for the enhancements on counts 2, 3, and 4. As a result, the maximum term of confinement must be recalculated.
DISPOSITION
The juvenile court is directed to correct the minute order to reflect a sentence of six months for each of the attempted robbery counts, impose sentence for each of the principal armed allegations found true as to counts 2, 3, and 4, and calculate a new maximum term of confinement. As modified, the order declaring minor to be a ward of the court is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.