Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. JJD057316 Valeriano Saucedo, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
INTRODUCTION
Appellant, Mark A., was charged in a petition filed on May 4, 2006, pursuant to Welfare and Institutions Code section 602, with felony assault with a deadly weapon likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)). The petition further alleged that Mark personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). After a contested hearing on October 31, 2006, the juvenile court found the allegations true.
Unless otherwise noted, all statutory references are to the Penal Code.
At the conclusion of a contested disposition hearing on February 9, 2007, the juvenile court found Mark to be a ward of the court and committed him to the Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice) with a maximum term of confinement of seven years. The court stayed execution of its commitment order to Juvenile Justice, placed Mark on probation, and ordered his commitment to a local boot camp program.
On appeal, Mark contends there was insufficient evidence that he aided and abetted in the stabbing of the victim.
FACTS
On May 2, 2006 at 4:30 p.m., Maria Rocha picked up her boyfriend Mateo Delgado from work. On the way home, they stopped at the Strathmore Liquor Store to get chips and a drink. Delgado entered the store. Rocha remained in the car, which was parked facing away from the store. Six to seven individuals walked out of the store as Delgado walked inside. They remained in front of the store out side the door approximately 20 to 25 feet from where Rocha parked. They were talking. One of them was drinking a beer.
Two minutes after he entered the store, Rocha called Delgado to tell him that she was worried. Rocha told Delgado to stay inside the store. Rocha thought Delgado stayed inside the store 10 to 12 minutes. Delgado estimated he was inside the store 10 to 15 minutes. When Delgado exited the store, the individuals surrounded him and called Delgado a “fucking scrap.”
Delgado had a tattoo of three dots visible on the edge of his left eye. Delgado denied current affiliation with the Sureno gang. Delgado claimed membership with the Surenos as “a young child” in Mexico.
The men started hitting Delgado with their fists all over his body. According to Delgado, all of the individuals present surrounded him and were hitting him. The attackers hit Delgado’s head. Delgado identified Mark and codefendant Michael V. as two individuals who attacked him. When asked if they did anything else to him, Delgado replied: “They knifed me. They knifed me here.” The court indicated for the record that Delgado was pointing four to five inches below his right shoulder blade on his back.
Michael V. is also referred to by the witnesses as Miguel V. For consistency, we will refer to him as Michael or Michael V.
Delgado explained that he did not see Mark and Michael stab him because “[i]t was in the group while they were hitting” Delgado. At first, Delgado was unaware he had been stabbed. Then he realized his slacks were wet. Delgado felt like he was going to faint. Rocha had him sit down and wait for the paramedics to arrive. Delgado talked to a law enforcement officer at the hospital when his memory was fresh.
Delgado told the officer that Mark and Michael attacked him. He did not say, however, who had stabbed him. The officer showed Delgado photographs and asked him who was involved in the attack. In reference to who stabbed him, Delgado said he did not know who it was from the group because “they were all hitting me.” Delgado identified Mark and Michael in court and from photographs admitted into evidence at the hearing. As a result of the attack, Delgado suffered an injury to his head and two stab wounds.
A bald man with a mustache wanted to continue attacking Delgado after the other attackers had left. Rocha explained that she only saw the bald man hitting Delgado with his fists. Rocha did not see who stabbed Delgado. According to Rocha, the bald man called her a “FB” and said “F you.” The bald man also told Rocha: “You’d better not say [any]thing, you fucking bitch.” Rocha explained that the bald man was following Delgado because he wanted to continue to hit Delgado.
Rocha exited the car and told the men to stop hitting Delgado. The men continued to attack Delgado, who defended himself by hitting back. Rocha said there were six people attacking Delgado. When the main attack ended, a bald man still wanted to hit Delgado. Delgado was bleeding from his back with blood in his shirt and dripping in his pants. Rocha called the police. Rocha did not see any weapon being used. Rocha marked a map of the liquor store parking lot indicating that the attackers were standing in three locations. Rocha could not estimate the entire length of the attack.
Another minor, R. F., went to the liquor store from her house. R. F. arrived at the store after the attack on Delgado had started. R. F. saw “guys” running through the alley. She was in the alley herself. R. F. indicated some difficulty in remembering the events she witnessed. After reading a paragraph of the police report to refresh her recollection, R. F. said she was afraid to answer a question concerning whether she saw a fight that day.
R. F. stated she could not remember telling an officer whether she saw a fight. R. F. did not remember telling the officer the names of the people involved in the attack on Delgado.
Officer Leonard Phillips of the Woodlake Police Department stated he worked nearly 10 years for the Tulare County Sheriff’s Department. He had formerly testified as a gang expert as a sheriff’s deputy and worked with, but was not assigned to, a gang unit. Phillips explained that the term “scrap” is a derogatory term used to describe a southern gang member or Sureno. Phillips was on duty on May 6, 2006. He was dispatched to the scene of the fight. When Phillips arrived, he saw Rocha and Delgado on the side of the store. Delgado was bleeding from wounds that appeared to be from his back.
Phillips saw two wounds the size of a quarter in Delgado’s back. Phillips took statements from Rocha, R. F., and a third witness. R. F. told Phillips she was at the store with her friend and observed a fight in front of the store in which several people attacked Delgado. R. F. identified five of the attackers as Michael V., Mark A., Victor A., Moises R., and Ernesto C. Phillips knew Mark and Michael when he worked as a community officer assigned to the schools.
Phillips prepared photographic lineups for the eyewitnesses to identify. R. F. identified Mark, Michael, and two other assailants. Phillips attempted to contact Mark and Michael at their homes but they were not present. R. F. told Phillips she did not know who stabbed Delgado. The attackers were still hitting Delgado when he was stabbed. R. F. was standing in front of the store during the fight.
Deputy Juan Garcia of the Tulare County Sheriff’s Department questioned Delgado in the emergency room. Delgado explained he was inside the liquor store when he was confronted with the “opposing … northern gang members.” Inside the store they called Delgado a “fucking scrap.” Delgado waited inside the liquor store for some time before exiting. When he did, he was attacked. Delgado stated there were six people in the store.
Delgado told Garcia that when he exited the store, there were six people on opposite side of him. Some were to the left of him, the remaining ones were to the right of him. There were four males to the right. When Delgado turned to face them, he was approached from the rear and stabbed.
R. F.’s mother, Anita E., testified that she walked down the alley to the liquor store on May 2. Anita saw six boys running by them in the alley. Anita and the group she was walking with, including R. F., arrived after the incident occurred. She did not see Delgado. Anita accompanied R. F. to the police station. Anita was not asked about the incident at the police station. At the store, Anita told investigators she had not seen anything. R. F. was recalled as a witness. R. F. explained that she only saw guys running through the alley.
Michael V. was with Mark A. and his cousin on May 2, 2006. They were on their way to a volleyball game at about 4:00 p.m. They stopped at the liquor store to get a soda and a bag of chips. Outside the store were Moises, Ernesto C., Reyes T., and one or two others. Michael, his cousin, and Mark made a purchase inside the store and walked outside when the store owner said there was a fight.
Michael stated that Delgado was holding a knife and waiving it back and forth at the others. Moises punched Delgado, and they began to fight. Ernesto stabbed Delgado in the back. Reyes, Moises, and Ernesto were involved in the fight. Rocha was telling the fighters to stop. Reyes told Rocha something like, “Shut up, bitch.” Delgado ran past Michael. Reyes grabbed Delgado and started hitting him. Rocha looked at Michael and said in Spanish, “[n]o le hagas nada,” translated as “don’t do anything to him or her.” Michael responded, “no le voy hacer nada,” meaning “no, I won’t do anything to him or her.”
Mark told Michael they should “get the hell out of here.” The two ran down the alley where they saw R. F. and the others she was with. Michael denied any involvement in the fight.
Mark testified that on May 2, 2006, between 4:00 and 4:30 p.m., he, his cousin, and Michael went to the liquor store to buy chips and a soda. Inside the store, Mark saw Delgado walk in and pay for something. Delgado left and soon thereafter the store owner said there was a fight. Mark exited the store and saw Delgado with a large, switchblade knife that he was waiving at Moises and Reyes. One of them said, “Fuck this pussy.”
The others were telling Delgado words and started hitting him in the head. The group started “socking” Delgado hard. Ernesto C. showed up. After Delgado was stabbed by Ernesto, Rocha told Reyes to stop and to show some respect. Ernesto seemed to come out of nowhere and approached Delgado from behind. Reyes replied, “Fuck respect.” He also told Rocha, “You’d better not say anything, bitch.”
Mark said to Michael that they better get out of there. Mark denied being involved in the attack or assisting the others in the attack. Mark never saw R. F. at the scene during the fight.
The prosecution argued both that Mark was the stabber and, alternatively, if he was not the stabber, he aided and abetted the stabbing of the victim. Defense counsel argued there was reasonable doubt as to which assailant stabbed Delgado and that there was no evidence that Mark aided and abetted the stabbing by encouraging someone to stab Delgado. According to defense counsel, the prosecution only proved there was punching, but no evidence Mark and Michael stabbed the victim. Defense counsel argued there was reasonable doubt as to what the juveniles here actually did.
The juvenile court noted the juvenile defendants had no burden of proof. The court found beyond a reasonable doubt count one true as to both juveniles and the great bodily injury enhancement true as to Mark. The court found Delgado’s testimony credible. The court noted that shortly after the attack, Delgado identified the two minors before the court as the perpetrators. This was at the time when his recollection was fresh. The court found the testimony of the two minors lacked credibility. The court completely rejected the credibility of testimony that Ernesto C. was the person who stabbed the victim. The court found both minors to be perpetrators in the attack.
DISCUSSION
Appellant contends there was no substantial evidence showing he aided and abetted the stabbing of Delgado and the prosecution failed to prove that he violated section 245, subdivision (a)(1). Appellant argues there is no substantial evidence showing he stabbed Delgado or that he knew of the stabber’s intent to stab Delgado and that he intended to assist in the stabbing. He asserts error pursuant to People v. Beeman (1984) 35 Cal.3d 547 (Beeman).
A person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for other offenses (nontarget crimes) committed by the confederate as a “‘natural and probable consequence’” of the target crime originally aided and abetted. (People v. Prettyman (1996) 14 Cal.4th 248, 254.)
In People v. McCoy (2001) 25 Cal.4th 1111, the Supreme Court illustrated the application of the “natural and probable consequences” doctrine with the following example: “[I]f a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.” (Id. at p. 1117.) The relevant test “is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.)
Contrary to appellant’s contention, there is sufficient evidence that appellant was directly involved in stabbing the victim. Delgado testified that appellant and Michael V. ran up to him and stabbed him. All the attackers, including appellant, hit him. Delgado told Deputy Garcia that the attackers were in two groups, with appellant and Michael separate from the others. When appellant turned to a group of four other attackers, appellant and Michael ran up and stabbed him from behind.
It is, as appellant points out, difficult to tell whether it was appellant, Michael, or both, who stabbed Delgado. The natural and probable consequence of the conduct of the attackers, however, would foreseeably lead to the two knife wounds to Delgado’s back. While Delgado denied current membership with the Sureno gang, he admitted such membership as a child and apparently had a visible tattoo associated with the Sureno gang. When Delgado exited the store, the attackers called him “scrapa,” a derogatory term used by northern gang members to Sureno gang members.
Delgado suffered two stab wounds to his back. Each one could have been made by a different attacker.
The attackers waited between 10 and 15 minutes outside the store to attack Delgado. The attackers were divided into two groups, suggesting a premeditated plan or design to greatly reduce Delgado’s ability to defend himself. Appellant was with Michael when Delgado was stabbed. They approached and attacked appellant from behind. They were the only two attackers who approached Delgado from behind. Even if appellant did not personally stab Delgado, the trier of fact could reasonably infer that he shared the goal of the group as a whole, as well as of codefendant Michael V. to seriously injure Delgado.
Even if appellant did not see the knife prior to the actual stabbing of Delgado, a knife attack is a foreseeable, natural, and probable consequence of an attack in which there is likely gang motivation, time to premeditate the attack and to divide six attackers into two groups, an unarmed victim, and a goal to seriously, if not to gravely, injure the targeted victim. The juvenile court completely rejected the testimony of appellant and his codefendant that Ernesto C. was the perpetrator of the stabbing. The court found the entire testimony of the defendants to lack credibility. There was substantial evidence to support the juvenile court’s findings as to both count one and the great bodily injury enhancement. We therefore reject appellant’s assertion of Beeman error.
In People v. Modiri (2006) 39 Cal.4th 481, the California Supreme Court held that where one is the victim of mob violence, a coperpetrator in the violence could be found liable for causing great bodily injury to the victim without having personally inflicted the injury. (Id. at pp. 496-502.) Here, the juvenile court found true the great bodily injury enhancement as to appellant pursuant to section 12022.7, subdivision (a). It would be anomalous for appellant to be criminally liable for inflicting a great bodily injury on Delgado, whether or not he personally inflicted the injury, and to share no criminal liability for committing an assault with a deadly weapon. As noted above, the knifing of Delgado was a foreseeable, natural, and probable consequence of appellant’s attack with five other individuals on a single, unarmed victim.
DISPOSITION
The judgment is affirmed.