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In re J.L.

California Court of Appeals, First District, Third Division
Apr 29, 2009
No. A122806 (Cal. Ct. App. Apr. 29, 2009)

Opinion


In re J.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.L., Defendant and Appellant. A122806 California Court of Appeal, First District, Third Division April 29, 2009

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. JW08-6511.

McGuiness, P.J.

Appellant J.L. appeals jurisdictional and dispositional orders of the juvenile court, contending the evidence is insufficient to support the court’s finding he aided and abetted an assault with a deadly weapon. We affirm.

Factual and Procedural History

In the early morning hours of July 9, 2008, Jerry Jew, an employee of the San Francisco Department of Public Works, was driving a pickup truck while working the graveyard shift cleaning streets in San Francisco’s Chinatown. At approximately 1:00 a.m., Jew heard a “banging noise.” He looked in the rear view mirror and saw a group of six Asian male youths behind him. Jew stopped and observed the youths through his rear window. Three were on the sidewalk in front of a boarded-up business. The other three were on the opposite side of the street.

One of the three youths in front of the boarded-up business jumped up and grabbed a milk crate from a nearby ledge. The youth then threw the milk crate, which ended up in the doorway of the building, about four to five feet from where the youth had thrown it. At first, Jew thought the boy was trying to break the window of the boarded-up business. However, as Jew “rolled” his pickup toward the scene, approaching within 15 to 20 feet of the youths, he saw that a homeless man had been sleeping in the doorway. According to Jew, the homeless man regularly slept there. Jew realized that the youths were about to “beat up on [the] homeless person that was sleeping there.”

Jew described the boy who threw the crate as “one of the tallest” of the three nearest to the homeless man. He also believed the boy who threw the crate was wearing a dark North Face jacket. All three of the boys near the homeless man were in an “attack stance” or “fighting stance,” with their knees bent, feet positioned shoulder-width apart, and their hands clenched in fists at about chest level. They were standing on the sidewalk from four to ten feet away from the homeless man. Jew did not actually see any of the boys hit or make contact with the victim.

As Jew approached the scene in his vehicle, the six youths walked away. The milk crate was lying among the homeless man’s belongings in the doorway, and there was “auto glass” on the sidewalk near where the confrontation took place. Jew got out of his pickup and told one of the three who had been in the fighting stance, “Why don’t you pick on somebody that could fight back?” The boy did not answer Jew but instead stared at him and then walked away. The youth whom Jew confronted was wearing a white, long-sleeved shirt and was described as “the smallest guy” in the group. Jew did not believe he was the one who had thrown the milk crate.

Jew checked on the homeless man, who was scared and shaken up, with a “little abrasion on his finger.” Jew requested that his dispatcher summon the police. He got back in his pickup and drove toward the youths, who were heading downtown. He lost sight of the group before seeing them at a location where they “casually” passed Jew on the other side of the street. He kept an eye on the group as he waited for responding police officers, who eventually detained the same six boys he had seen gathered near the homeless man.

A juvenile wardship petition filed July 10, 2008, charged appellant J.L., a 14-year old minor, with four criminal counts in connection with the July 9 incident involving the homeless man, identified in the petition as Nicholas Ruggiero. Appellant was charged in count 1 with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). In counts 2 and 3, appellant was charged with assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The weapon was described as “milk crate” in count 2 and as “glass” in count 3. Count 4 charged appellant with attempted second degree robbery. (Pen. Code, §§ 212.5, subd. (c), 664.) Minors D.H. and R.Z. were also charged in connection with the July 9 incident.

At the start of the jurisdictional hearing on July 25, 2008, minor R.Z. admitted to one count of felony assault with force likely to produce great bodily injury. Following R.Z.’s plea, a contested hearing commenced with respect to the charges against appellant and D.H. Because the prosecutor was unable to locate the victim, Jew was the sole witness.

Jew identified both appellant and D.H. in court as two of the three boys who had taken a fighting stance near the victim, Ruggiero. However, he could not say whether either of them was the boy who threw the milk crate. He could describe the clothing and relative heights of two of the three boys that he had seen in a fighting stance. However, because he was focused on the three boys involved in the altercation, he was unable to describe or identify the three boys who had stood across the street.

After the prosecutor rested, appellant’s trial counsel moved to dismiss the petition. The court dismissed counts 1, 3, and 4 against both minors for lack of evidence, leaving only the charge of assault with a milk crate used as a deadly weapon. Appellant’s trial counsel did not call any witnesses for the defense case, although he did offer into evidence a number of additional items, purportedly based on stipulations with the prosecutor. These items included photos of all six youths and a chart listing each one’s height and weight as well as the clothing he was wearing on the night of the incident. The juvenile court sustained count 2 of the petition, finding that both appellant and D.H. willfully committed assault with a milk crate under an aiding and abetting theory.

At a contested dispositional hearing, the court declared appellant a ward of the court and placed him in his parent’s home on numerous conditions. The court denied a motion to reduce the offense from a felony to a misdemeanor and set the maximum term of confinement at four years. Appellant timely appealed from the jurisdictional and dispositional orders.

Discussion

Appellant claims the evidence was insufficient to support the court’s jurisdictional findings in three respects. First, he claims Jew’s eyewitness identification “was so improbable that it was incredible.” Second, he asserts the evidence did not establish that he aided and abetted an assault with a milk crate. Finally, he argues the evidence was “insufficient to establish that the crate was used as a deadly weapon.” We address these contentions in turn.

1. Standard of Review

This appeal challenges the sufficiency of the evidence supporting a juvenile court judgment sustaining the allegations of a petition made under section 602 of the Welfare and Institutions Code. In considering such a challenge, “we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal. Under this standard, the critical inquiry is ‘whether, after reviewing 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 re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) We “ ‘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.’ [Citations.]” (Ibid.)

“ ‘If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence..., it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]’ [Citations.]” (In re Ryan N., supra, 92 Cal.App.4th at p. 1372.) We are “bound by the findings of the trier of fact where it has rejected a hypothesis pointing to innocence and there is evidence to support its implied finding that guilt is the more reasonable of the two hypotheses. Moreover, we must be ever mindful of the fact that it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]” (Ibid.)

“In short, in juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]” (In re Ryan N., supra, 92 Cal.App.4th at p. 1373.)

2. Eyewitness Identification

Appellant contends that Jew’s eyewitness identification of appellant should be disregarded as so improbable as to be incredible. As we explain, Jew’s identification of appellant as one of the assailants was not improbable on its face.

Appellant’s argument on appeal is much the same as the one his trial counsel made to the juvenile court. He claims it was a “physical impossibility” that both appellant and D.H. were among three assailants. In short, he asserts that appellant and D.H. do not fit the physical descriptions of the two assailants Jew was able to describe by height and clothing, and appellant and D.H. logically cannot both be the third assailant.

Appellant offers the following rationale for his assertion. The assailant whom Jew confronted was described as short and was wearing a white, long-sleeved shirt. Appellant contends the pictures and physical descriptions of the boys “clearly demonstrate” that the boy Jew confronted was R.Z., the minor who admitted to a violation of Penal Code section 245, subdivision (a)(1) at the start of the jurisdictional hearing. The assailant who threw the crate was described as the tallest of the group and was wearing a dark North Face jacket. Two of the six boys were purportedly wearing jackets with North Face logos. One was M.Z., who was listed as 5’9” tall, and the other was J.L., who was listed as 5’5”. By contrast, appellant was supposedly wearing a “distinctive” black and white jacket with a dragon logo, whereas D.H. was not wearing any jacket, and both were four inches shorter than M.Z. Therefore, appellant argues, Jew’s testimony is “clear” that the boy who threw the crate was neither appellant nor D.H. The implication is that M.Z.—who was apparently not charged with any crime—threw the crate. That leaves only one unidentified person among the three assailants, according to appellant, and it is impossible for both appellant and D.H. to be that one person. Thus, appellant characterizes Jew’s testimony identifying both appellant and D.H. as participants in the altercation as so improbable it must be disregarded as incredible.

R.Z. was described as wearing a white, long-sleeved t-shirt, and was listed as 5’0” tall.

Appellant cites the principle that where “the evidence relied upon by the prosecution is so improbable as to be incredible, and amounts to no evidence, a question of law is presented which authorizes an appellate court to set aside a conviction. [Citation.]” (People v. Headlee (1941) 18 Cal.2d 266, 267.) However, one must do substantially more than show inconsistencies in evidence in order to justify disregarding that evidence on appeal. “To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed. The improbability must be apparent; evidence which is unusual or inconsistent is not necessarily improbable. [Citations.]” (Id. at pp. 267-268.) “ ‘To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]’ [Citations.]” (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

At most, appellant has identified potential inconsistencies in Jew’s testimony, not statements that are inherently improbable. On its face, Jew’s testimony is neither improbable nor incredible. Indeed, it is only by resorting to inferences and deductions drawn from Jew’s testimony together with the physical descriptions of the six boys that any supposed “impossibility” in the identification of both appellant and D.H. appears. Notably, the juvenile court specifically rejected appellant’s “impossibility” theory, finding that Jew “was very credible.”

Furthermore, the inferences appellant seeks to draw from Jew’s testimony and from the descriptions of the six boys are not as obvious or “clear” as appellant suggests. For example, Jew clarified on several occasions that he characterized the boy who threw the crate as the tallest only because that boy was standing up straight while the other two were crouched in a “fighting” or “attack” stance. Further, he did not describe that boy as tallest among all six boys; rather, he stated the boy was tallest among the three assailants. With regard to the jacket worn by the one who threw the crate, Jew testified merely that he “believed” the boy was wearing a dark jacket with a North Face logo. Thus, the evidence is not conclusive that M.Z., the tallest of the two boys wearing a jacket with a North Face logo, was the one who threw the crate. Further, Jew did not recognize M.Z. when shown a photo of him.

The Attorney General contends appellant improperly refers to facts not in evidence, such as the height and weight notations for the six detained youths, which the Attorney General claims were not the subject of a stipulation or otherwise established as evidence. There does appear to be some question as to whether a demonstrative exhibit listing each boy’s height, weight, and clothing was admitted into evidence. Nevertheless, the court did receive into evidence without objection the police report for the incident, which described the height, weight, and clothing worn by each of the six boys. While the information contained in the police report could be characterized as hearsay, the prosecutor did not object to the report’s admission into evidence or to defense counsel’s repeated references to the height and clothing references contained in the report. We need not decide whether the descriptive information about the youths was properly before the trier of fact, however, because we conclude that substantial evidence supports the court’s finding with or without that information.

Jew testified that he did not get a clear view of the person throwing the crate because he observed the incident from a distance.

Likewise, when Jew was asked whether he recognized R.Z. from a photo as the boy whom he had confronted, Jew responded that he did not believe R.Z. was that youth. In addition, Jew pointed out that he remembered that two of the youths had been wearing white, long-sleeved shirts. Indeed, as reflected in the photos submitted to the court, codefendant D.H. also appears to have worn a white, long-sleeved shirt, albeit one with vertical stripes. Thus, Jew’s testimony, taken together with the physical descriptions of the six boys, does not necessarily compel the conclusion that the boy he confronted was R.Z., who admitted to an assault likely to produce great bodily injury.

The conclusions of the appellate court in In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497, are particularly apt here: “ ‘[T]here is in the record the inescapable fact of in-court eyewitness identification. That alone is sufficient to sustain the conviction.’ [Citation.] Next, when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.] Third, the evidence of a single witness is sufficient for proof of any fact. [Citations.]”

We conclude Jew’s in-court identification of appellant constituted substantial evidence he was one of the three assailants.

3. Aider and Abettor Liability

Appellant next contends there was insufficient evidence of his culpability as an aider and abettor. Specifically, he argues there was insufficient evidence he “knew that his companion intended to commit an assault with a deadly weapon, that [he] shared that intent and that he encouraged or facilitated it.”

“ ‘A person aids and abets the commission of a crime when 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.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 851.) The “factors for determining aiding and abetting... include presence at the scene of the crime, companionship, and conduct before and after the crime, including flight. [Citation.]” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)

Criminal liability under an aider and abettor theory is not restricted to a target crime. “Under the natural and probable consequences doctrine, ‘ “ ‘... the 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.’ ” ’ [Citation.]” (People v. Culuko (2000) 78 Cal.App.4th 307, 322.) “ ‘The mens rea of an accomplice is “not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious.... [Citation.]” [Citation.] “It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which... must be found by the [trier of fact].” [Citation.]’ [Citation.]” (Id. at pp. 322-323.)

“ ‘A “natural” consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. “Probable” means likely to happen.’ [Citation.] ‘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.’ [Citation.]” (People v. Leon (2008) 161 Cal.App.4th 149, 158.) The test for determining a natural and probable consequence “ ‘ “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 or abetted by the defendant.” [Citation.]’ [Citation.]” (People v. Culuko, supra, 78 Cal.App.4th at p. 327.) Whether a crime is the natural and probable consequence of the target crime is a question for the trier of fact. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)

Here, the court concluded that appellant and D.H. aided and abetted the assault with the milk crate, reasoning as follows: “The witness identified the two minors to be amongst the three that were near the area where the homeless man was. [¶] You are right, [defense counsel], he could not identify either of these two minors to be the one who tossed the milk crate. But we don’t need that. There was someone who tossed the milk crate and these two minors were with that person. And also based on this witness’s testimony, they were acting in concert together.”

The evidence supports the conclusion that the three youths who confronted Ruggiero intended to assault him given their “attack” stances. The trier of fact could reasonably conclude that all three assailants approached Ruggiero intending to commit an assault. An objectively reasonable person could properly conclude that under these circumstances it was reasonably foreseeable that one of the assailants would use a readily available object on the scene, here a milk crate, to further that assault upon Ruggiero.

Appellant’s reliance on People v. Butts (1965) 236 Cal.App.2d 817 is misplaced. In that case, the appellate court held that a defendant was not guilty of aiding and abetting his codefendant’s use of a knife to commit a homicide when the defendant had no reason to know his codefendant intended to use a knife in what he perceived to be a fistfight. (Id. at pp. 836-837.) The analysis in People v. Butts has been criticized as unsupported, outdated, and inconsistent with Supreme Court authority on aiding and abetting. (See People v. Montes (1999) 74 Cal.App.4th 1050, 1056; People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) There is no requirement that a defendant must share the intent to use a weapon. All that is required is that the defendant share the intent to commit the target crime “ ‘and that the crime committed be a foreseeable consequence of the target act. [Citation.]’ [Citation.]” (People v. Montes, supra, 74 Cal.App.4th at p. 1056.) Further, the facts of this case are distinguishable from People v. Butts. This is not a case in which appellant may claim no awareness of the assailant’s possession of, or intent to use, a weapon that the assailant brought with him. Rather, the facts reveal a rapidly escalating set of events in which one assailant used a nearby object as a deadly weapon to further the group assault upon the victim. A fact-finder could reasonably find that such use of the milk crate was a natural and probable outcome of the group assault.

Appellant complains that the juvenile court said nothing about the natural and probable consequences doctrine upon concluding that appellant aided and abetted the assault with the milk crate. However, there is no requirement that it do so. We may presume the court followed established law absent evidence to the contrary. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) There is nothing to suggest the juvenile court misapplied the law governing aiding and abetting liability. Accordingly, we conclude the record contains substantial evidence to support the court’s conclusion that appellant was criminally culpable for the assault upon Ruggiero with a milk crate.

4. Milk Crate as a Deadly Weapon

Appellant’s final challenge to the sufficiency of evidence questions the factual support for the court’s implicit finding that the milk crate constituted a deadly weapon.

Penal Code section 245, subdivision (a)(1) does not define the term “deadly weapon.” Although the term is not defined in the statute, “courts have construed it to mean ‘ “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.”... Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such... Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.’ [Citation.]” (People v. Montes, supra, 74 Cal.App.4th at pp. 1054.) “Great bodily injury” as used in Penal Code section 245, subdivision (a)(1) is defined as significant or substantial bodily injury or damage. (See People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538; cf. Pen. Code, § 12022.7, subd. (f).) Some objects that are not inherently dangerous but that have been found to constitute deadly weapons under the circumstances include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. (People v. Montes, supra, 74 Cal.App.4th at p. 1054.)

“ ‘ “When it appears... that an instrumentality... is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require,... its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.” [Citation.]’ [Citation.]” (People v. Page (2004) 123 Cal.App.4th 1466, 1471.)

Appellant argues among other things that the prosecutor did not offer the crate as evidence, did not produce a photograph of it, and did not elicit testimony from Jew describing the crate. Thus, according to appellant, it cannot be determined whether such an object could be used to inflict great bodily injury. We disagree.

The trier of fact could draw a reasonable inference that the object was a typical milk crate, with a shape, size, and weight that such an object is generally understood to have. There is nothing in the record to suggest the milk crate that Jew saw being thrown was anything other than a standard milk crate. Further, given Jew’s initial assumption that the youth who threw the crate was attempting to break a window, it is reasonable to infer that the crate had a size and weight that would allow it to break through glass. If the crate could break glass when thrown, it could certainly cause great bodily injury if hurled from a distance of four or five feet at a victim’s head or body. The court could properly conclude the crate constituted a deadly weapon under the circumstances.

Appellant also questions whether the thrower intended to strike Ruggiero. He argues the prosecution did not present any evidence the crate actually hit Ruggiero, who suffered only “a little abrasion on his finger.”

The crime of assault with a deadly weapon does not require that the perpetrator make actual physical contact with the victim. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [“whether the victim in fact suffers any harm is immaterial”].) The statute focuses on the use of the deadly weapon, not the harm suffered by the victim. (Ibid.) Thus, it is irrelevant that Ruggiero’s injury appears to have been slight. Nonetheless, it can be inferred that his injury was caused by the crate. Further, it can also be inferred from the circumstances that the assailant intended to throw the crate at Ruggiero. Jew saw three youths confronting Ruggiero in a fighting stance, saw one of them throw a milk crate, and saw that the crate ended up among Ruggiero’s belongings in the doorway of the boarded-up business, only four to five feet from where it was thrown.

We conclude that substantial evidence supports the juvenile court’s implicit conclusion the milk crate constituted a deadly weapon under the circumstances.

Disposition

The juvenile court’s jurisdictional and dispositional orders are affirmed.

We concur: Pollak, J., Jenkins, J.


Summaries of

In re J.L.

California Court of Appeals, First District, Third Division
Apr 29, 2009
No. A122806 (Cal. Ct. App. Apr. 29, 2009)
Case details for

In re J.L.

Case Details

Full title:In re J.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, First District, Third Division

Date published: Apr 29, 2009

Citations

No. A122806 (Cal. Ct. App. Apr. 29, 2009)