Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. VJ32903 Gary A. Polinsky, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Deborah Blanchard, 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, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Marcus C. appeals from an order continuing wardship after the juvenile court found he had committed an attempted robbery and burglary. Marcus C. contends his presence at the scene, failure to deter his companion from committing the crimes and post-offense flight are insufficient to show he aided and abetted the attempted robbery and burglary. We modify the disposition order to correct the maximum theoretical term of physical confinement and affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
1. Juvenile Court Proceedings
On September 25, 2006 a Welfare and Institutions Code section 602 petition was filed alleging Marcus C., then 15 years old, had committed second degree burglary and petty theft. Marcus C. admitted the burglary allegation and was declared a ward of the court and ordered home on probation with specified conditions. The petty theft allegation was dismissed.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
A second section 602 petition was filed on December 18, 2006 alleging Marcus C. had committed two counts of misdemeanor vandalism. Marcus C. admitted one vandalism count; the second count was dismissed. Before the disposition hearing a third section 602 petition was filed charging Marcus C. with the attempted robbery of Laurae Gallegos and burglary of the El Toro Loco market. Following a jurisdiction hearing on February 26 and 28, 2007, the juvenile court sustained both counts. Marcus C. was ordered detained in juvenile hall pending a combined disposition hearing on the second and third petitions.
At the combined disposition hearings on March 14, 2007 the juvenile court ordered Marcus C. to remain a ward of the court, imposed modified terms and conditions of probation and ordered him into the camp-community placement program for a period of six months. The court calculated the maximum theoretical term of physical confinement as four years eight months, consisting of three years for attempted second degree robbery and eight months (one-third the two-year middle term) for second degree burglary (third petition); plus four months (one-third the 12-month term) for misdemeanor vandalism (second petition); plus eight months (one-third the two-year middle term) for second degree burglary (first petition).
We rely on the minute order of the March 14, 2007 disposition hearing because the reporter’s transcript of the combined disposition hearing has apparently been lost or is otherwise unavailable.
In the absence of a reporter’s transcript, we cannot determine whether findings as to the applicability of Penal Code section 654 were requested by Marcus C. or made by the juvenile court with respect to the two offenses alleged in the third petition. However, Marcus C. contends, the People acknowledge and we agree the burglary and attempted robbery were not based on separate acts or supported by independent criminal objectives. (See People v. Le (2006) 136 Cal.App.4th 925, 931.) Therefore, Penal Code section 654, subdivision (a), requires “punish[ment] under the provision that provides for the longe[r] potential term of imprisonment,” with imposition of sentence stayed on the remaining count. (Cal. Rules of Court, rule 4.434.) Although the upper term for both offenses is three years (Pen. Code, §§ 18, 213, subd. (b)(2), 461, subd. 2), we assume for purposes of calculating the maximum theoretical term of physical confinement that the trial court would have stayed imposition of sentence on the second degree burglary count since it selected the attempted robbery count as the principal term.
2. The Jurisdiction Hearing on the Third Petition
According to the evidence at the jurisdiction hearing on the third petition, on the morning of January 28, 2007 Marcus C. and Anthony L. entered the El Toro Loco market in Whittier. The cashier, Laurae Gallegos, recognized the two youths; she had seen them on the street together about 10 minutes earlier when she was outside sweeping. After entering the store, the two youths walked directly to Gallegos’s counter, stopping about 18 inches from her. As Marcus C. stood by, Anthony L. turned away momentarily to produce a knife, which he then pointed at Gallegos. While holding the knife, Anthony L. repeatedly demanded money. Gallegos testified she was afraid of Anthony L., but was further intimidated by two persons confronting her, rather than just one. Gallegos called out to Enrique Sanchez, the market owner, who was in the back. Marcus C. and Anthony L. turned and fled, each one through a different door. Once outside, they reunited and continued running down the street.
The section 602 petition alleging Anthony L., Marcus C.’s confederate, had committed attempted robbery and burglary was adjudicated at the same proceeding. Anthony L. is not a party to this appeal.
The section 602 petitions filed against Anthony L. and Marcus C. specially alleged arming enhancements as to the attempted robbery and burglary counts. In Marcus C.’s petition it was alleged a principal in the commission of the offense was armed with a firearm (a handgun) pursuant to Penal Code section 12022, subdivision (a)(1). Although the court dismissed this arming enhancement after finding it not true, based on the evidence Anthony L. had a knife, not a gun, the court found true as to Marcus C. a “lesser included one-year enhancement” of “a principal-armed-with-a-knife.” Although this finding was erroneous (there is no such enhancement and, even if there were, being armed with a knife would not be a lesser included offense of being armed with a firearm), no correction is necessary because it is not reflected in the disposition order.
Marcus C. did not testify or present other evidence in his defense.
DISCUSSION
1. Standard of Review
The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605; In re Michael M. (2001) 86 Cal.App.4th 718, 726.) In either case we review the whole record in the light most favorable to the judgment 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. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Bolin (1998) 18 Cal.4th 297, 331.)
2. The Trial Court’s Finding Marcus C. Aided and Abetted the Charged Offenses Is Supported by Substantial Evidence
A person aids and abets the commission of an offense “when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561; see People v. Perez (2005) 35 Cal.4th 1219, 1225.) Whether a person has aided and abetted in the commission of a crime is a question of fact; on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan G.); People v. Campbell (1994) 25 Cal.App.4th 402, 409; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
The elements of aiding and abetting may be determined from a variety of factors, including presence at the scene of the crime, companionship, conduct before and after the offense and flight. (Juan G., supra, 112 Cal.App.4th at p. 5; People v. Campbell, supra, 25 Cal.App.4th at p. 409; In re Lynette G., supra, 54 Cal.App.3d at p. 1094.) Although proof of only one of these factors, standing alone, may be insufficient to establish the defendant aided and abetted the commission of a charged offense (see Campbell, at p. 409 [presence or prevention]; People v. Abilez (2007) 41 Cal.4th 472, 521 [flight]), in combination these factors can certainly constitute sufficient evidence to support such a finding.
For example, in Juan G., supra, 112 Cal.App.4th 1 this court held the juvenile court had reasonably inferred the minor knew of, and shared, the perpetrator’s criminal intent and aided and abetted the commission of a robbery, rejecting the minor’s claim he was “‘simply an “innocent, passive, and unwitting bystander’” during the robbery.” (Id. at p. 5.) The victim had been approached by the minor and perpetrator together. (Id. at p. 3.) When the perpetrator demanded money from the victim at knifepoint, the minor was beside him. The victim was afraid of being stabbed by the perpetrator, but also felt threatened by the presence of the minor, who was standing one foot away. (Ibid.) Following the robbery, the perpetrator and the minor fled and were found and arrested together. (Id. at p. 4.) We determined, because the minor “was present at the robbery, standing with [the perpetrator] and the victim[,] . . . [and] in the company of [the perpetrator] immediately prior to the [attempted] robbery and during the attempted escape[,]” the finding the minor had aided and abetted commission of the robbery was supported by substantial evidence. (Id. at pp. 5-6.)
The same conclusion is inescapable here. Marcus C. was with Anthony L. shortly before the attempted robbery and accompanied him into the market; together they immediately approached the cashier. When Anthony L. demanded money from Gallegos at knifepoint, Marcos C. was standing beside him and close enough to Gallegos to intimidate her. Marcos C. and Anthony L. both fled the market, albeit through separate doors, and reunited outside before continuing to run away. The evidence amply supports the finding Marcus C. committed attempted robbery and burglary as an aider and abettor. (See Juan G., supra, 112 Cal.App.4th at p. 5; see also In re Lynette G., supra, 54 Cal.App.3d at pp. 1092-1093, 1095.)
DISPOSITION
The disposition order is modified to stay the eight month term imposed for second degree burglary, count 2 of the January 30, 2007 petition, and to reduce Marcus C.’s maximum theoretical term of physical confinement to four years. As modified, the order is affirmed.
We concur: WOODS, J. ZELON, J.