Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. PJ40213, Shep A. Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
Marta I. Stanton, 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, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Mark H., a minor, appeals from the order declaring him a ward of the court (Welf. & Inst. Code, § 602) entered following the juvenile court’s finding he committed robbery (Pen. Code, § 211). The juvenile court ordered Mark placed in the camp community placement program for a maximum confinement period of five years.
All further undesignated statutory references are to the Penal Code.
Mark contends the evidence was insufficient to support the juvenile court’s finding he committed robbery. The People concede the point. We agree, and accordingly reverse. Our resolution of this issue makes it unnecessary to address Mark’s second contention that the juvenile court improperly excluded evidence.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On March 7, 2008, at approximately 7:00 p.m., 15-year-old Raul J. was walking on Normandie Avenue in Los Angeles, listening to his iPod. As he approached the corner of Santa Monica and Normandie, a black sport utility vehicle (SUV) stopped approximately 25 feet away from him. Three men exited the vehicle and ran toward him. The SUV continued down the street.
One of the men stood directly in front of Raul, approximately two to three feet away, and asked where he was from, i.e., for his gang affiliation. Raul stated he “wasn’t from [nowhere].” The man demanded Raul’s iPod and wallet. Raul refused. The robber stated he did not want to “crack” Raul, which Raul took to mean he had a bat. The robber told Raul that the men had a gun in the car. Raul, frightened, gave the robber his iPod and wallet. Upon discovering the wallet contained nothing but a bus pass, the robber threw it back to Raul. During the robbery, the second robber stood directly behind the first robber. The third robber stood behind Raul. Neither the second nor the third robber said anything. Raul believed all three were affiliated with the Surenos 13 gang due to their attire and conduct. The robbers left in the black SUV, which had made a U-turn and pulled up near them. Raul continued walking south on Normandie.
Approximately 10 minutes later, Raul observed police cars nearby. He told an officer what had transpired and gave a detailed description of the robber who had demanded his iPod. According to Raul, the first robber was a bald, light-skinned Hispanic, approximately 5’8” to 5’9” tall, with green eyes. He had tattoos on his arms and in the corner of each eye. He had no facial hair, and appeared to be about 17 years old. He was wearing a blue Dodgers pullover jacket and black shorts. Officer Joe Dunster, who was assigned to the Hollywood Gang Enforcement Detail, thought Raul’s description fit Angel R., Mark’s brother. Dunster, who was familiar with Angel, arranged for a photograph of Angel to be included in a six-pack photographic lineup that was shown to Raul at the police station within an hour of the crime. Raul identified Angel’s photo as the first robber.
Officers immediately arranged to conduct surveillance of Angel’s last known residence in Panorama City, approximately 10 to 15 miles from the location where the robbery occurred. Officers arrived at the Panorama City address, which was apparently also Mark’s home, between 8:30 and 8:50 p.m. A horse trailer was parked in front of the residence. Several vehicles were parked in the driveway, including a dark SUV. Within three minutes of their arrival, officers observed Angel, Mark, and another male Hispanic in the driveway of the residence. Angel was wearing a blue Dodgers pullover and black shorts. Mark was wearing a plain, black, long-sleeved shirt and black or dark pants. None of the men appeared to have anything in their hands.
Angel and Mark walked to the horse trailer while the third man stood by, as if standing guard. They exited the trailer within two minutes and walked down the street. The officers did not arrest Angel at that point.
On March 21, 2008, at approximately 3:00 a.m., officers served a warrant at the Panorama City address. Angel, Mark, their mother and stepfather, and younger siblings exited the house when commanded to do so by officers. An officer discovered Raul’s iPod, identified by its serial number, in Angel’s pocket. A two-and-one-half-foot long “mini baseball bat” was discovered in a closet under the stairs. An unloaded gun, registered to Angel’s and Mark’s mother, was found in the master bedroom nightstand. A blue Dodgers pullover was found in a downstairs bedroom. A black long-sleeved shirt with designs on it was discovered in the house.
Raul testified for the People in Angel’s case. Afterwards, an acquaintance of Raul’s told him to drop the case and not testify against Mark. Another boy told Raul that “they” said Raul should watch his back if he testified. Angel and Mark were both members of the Surenos 13 gang.
The People also presented evidence to prove the allegation that the robbery was committed for the benefit of a criminal street gang. Because the sufficiency of the evidence to prove the gang enhancement is not at issue, we do not detail that testimony here.
2. Procedure.
A two-count juvenile petition filed on March 24, 2008 alleged Mark committed second degree robbery (§ 211) and was guilty of possession of a concealable firearm by a minor (§ 12101, subd. (a)(1)). Both offenses were alleged to have been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Without objection from the People, the juvenile court dismissed the firearm possession count for lack of evidence. The juvenile court found true the allegation that Mark had committed robbery for the benefit of a criminal street gang, and sustained the petition. It declared Mark to be a ward of the court and ordered him placed in the community camp placement program for a period not to exceed five years.
Mark had prior sustained petitions for misdemeanor vandalism causing less than $400 in damage (§ 594, subd. (a)), and possession of live ammunition by a minor (§ 12101, subd. (b)(1)). At the dispositional hearing in the instant matter, the juvenile court set the total maximum aggregate confinement period for all sustained petitions at nine years.
DISCUSSION
1. As the People concede, the evidence was insufficient to support the juvenile court’s finding Mark H. committed robbery.
Mark contends the evidence was insufficient to support the juvenile court’s finding he committed robbery. The People concede the point, and we agree.
When determining whether the evidence was sufficient to sustain a petition brought under Welfare and Institutions Code section 602, we apply the standard used in criminal cases. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) We review the entire record in the light most favorable to the judgment 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.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
To prove robbery, the People must establish that the defendant (1) took property from the victim’s person or immediate presence, (2) by means of force or fear, (3) with the specific intent to permanently deprive the victim of the property. (§ 211; People v. Gomez (2008) 43 Cal.4th 249, 254; People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) A person aids and abets the commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator, (2) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (3) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Jurado (2006) 38 Cal.4th 72, 136; People v. Cooper (1991) 53 Cal.3d 1158, 1164; § 31.)
Mark does not contest that the evidence was sufficient to prove the elements of robbery, or that the two men with Angel were liable as aiders and abettors. However, he urges that there was insufficient evidence identifying him as one of the men involved in the robbery. This contention has merit. The evidence showed three men robbed Raul, and a fourth person acted as the getaway car driver. Neither Raul nor anyone else identified Mark as one of these persons, and there is no circumstantial evidence sufficiently linking him with the crime.
Mark clearly was not the first robber. Raul consistently identified Angel R., Mark’s brother, as the first robber who demanded his iPod. Raul gave a full description of Angel, including his distinctive green eyes, his tattoos, his blue Dodgers jacket, and his black shorts. Angel was spotted wearing the Dodgers jacket and black shorts soon after the crime. Raul’s iPod was later found in Angel’s pocket. Raul testified he was sure the first robber was Angel, not Mark.
Raul’s testimony also made clear that Mark was not the second robber. Raul described the second robber as a male Hispanic, approximately 6’0 to 6’2” tall, weighing 150 pounds, wearing a plain, long-sleeved white shirt and black Dickies pants. He had black, neck-length, wavy, slicked-back hair, and sported a mustache and a goatee. He appeared to be approximately 18 years old. Mark, on the other hand, was approximately 5’5” tall. Mark’s skin color and age were similar to the second robber’s, and Mark did have a goatee and mustache. Raul, however, stated Mark’s facial hair appeared different than the second robber’s; the robber’s mustache was fuller and his goatee was shorter. There was no evidence Mark had long, black, wavy hair. Raul testified that Mark did not look like the second robber, and the second robber was definitely not Mark.
Raul consistently stated that he did not get a good look at the third robber. Shortly after the robbery, Raul told Officer Ciro Ochoa that the third robber was a male Hispanic, but was unable to provide any further information. At the hearing, when asked to describe the third robber, Raul responded, “I didn’t see him. All I saw, he looked like he was my same height.” Raul could not estimate the third robber’s age or weight, nor did he see his attire.
At the adjudication hearing, Raul did not identify Mark as one of the robbers. When shown a booking photo of Mark, Raul testified that the photograph was not of anyone present the night of the robbery. Raul did not see the driver of the SUV, and the People did not contend that the driver was Mark.
When asked to identify the second and third robbers in a live lineup, Raul did not identify Mark. He also testified that Mark was not in the lineup. It appears, from the parties’ comments below and from appellant’s briefing, that Mark was, in fact, in the live lineup. However, the evidence in the record does not establish this fact.
A positive identification is not, of course, necessarily a prerequisite to a finding of guilt if there is other evidence linking a defendant to the crime. There was a dearth of such evidence here. Officers observed Mark in the company of Angel within approximately two hours after the robbery occurred. Any inculpatory inference flowing from this evidence, however, was largely undercut by the fact that they were at their mother’s residence, where Mark apparently lived. The presence of Mark at his own home, with his brother, 10 to 15 miles from where the robbery occurred, did little to show he was one of the robbers. Mark and Angel did not arrive at the house together in the SUV; instead, the officers first observed them together in the driveway.
Nor can it be inferred that the robbers had not parted company by the time they were observed by the officers at the Panorama City house. As noted, Raul described the second robber as approximately 6’0” to 6’2” tall, weighing 150 pounds, wearing a plain, long-sleeved white shirt and black Dickies pants. He had black, neck-length, wavy, slicked-back hair, and sported a mustache and a goatee. He appeared to be approximately 18 years old. The man Officer Dunster saw with Angel and Mark at the trailer in Panorama City did not fit this description. He was described as being bald or having closely cropped hair, approximately 5’10”, weighing 165-170 pounds, and having no facial hair. While small discrepancies between the descriptions could perhaps be attributed to Raul’s nervousness, the significantly different descriptions of the two men belie any inference that the man at the trailer was the second robber. The evidence therefore showed that the three robbers had not remained together by the time the officers conducted surveillance of the house.
Evidence that Angel and Mark spent less than two minutes in the trailer together, while the other man acted as a lookout, does not suggest Mark’s participation in the robbery. The iPod, the only item taken in the robbery, was not found in the trailer and was not a large or bulky item that the perpetrators might have needed to hide inside.
Nor does the shirt Mark was wearing when observed at his home after the robbery suffice to tie him to the crime. Raul testified at the hearing that he was sure the second robber was wearing a long-sleeved white shirt. Officers Ochoa and Dunster testified that on the night of the robbery, Raul told them the second robber wore a long-sleeved black shirt. When Officer Dunster observed Mark at the Panorama City residence after the robbery, he was wearing a long-sleeved black shirt. However, even if Mark was wearing a black, long-sleeved shirt, the significant discrepancies between Raul’s description of the second robber and Mark’s appearance, along with Raul’s testimony that Mark was not the second robber, precluded a finding Mark was the second robber.
The prosecutor put forth the following theory below. At the hearing, Raul was mistaken about the second robber’s shirt color, which was actually black. Raul might also have inadvertently confused the attire worn by the second and third robbers. If the third robber, rather than the second robber, had worn the long-sleeved black shirt, then the resemblance between the third robber and Mark, who was wearing a long-sleeved black shirt when Officer Dunster saw him after the crime, was far stronger. However, there was no evidence whatsoever regarding the third robber’s shirt. As the People point out, mere speculation does not satisfy the reasonable doubt standard. (People v. Marshall (1997) 15 Cal.4th 1, 35.)
Finally, evidence that a bat was found in the house does not meaningfully tie Mark to the robbery. A bat is a commonplace item, especially where children reside, as was the case here. Raul never actually saw a bat during the robbery, but simply assumed Angel possessed one because Angel threatened to “crack” him and had his hand in his pocket. The bat found at the Panorama City residence was two and one-half feet long, too large to have been concealed in Angel’s pocket. There was no evidence the bat found in the house over three weeks after the crime was the one used in the robbery, if in fact a bat was used at all.
Thus, we are left with the following facts. Mark was never identified as being one of the robbers. The evidence presented showed he was not the first or second robber. There was no evidence suggesting the identity of the SUV driver. Mark’s brother, Angel, committed the crime. Mark and Angel were both members of the same criminal street gang, the Surenos 13. The third robber was a male Hispanic, about the same height as Mark. Mark and his brother were seen together at their mother’s home, where Mark lived, within two hours after the robbery. The house was 10 to 15 miles away from the location where the robbery took place.
As the People appropriately concede, this evidence was insufficient to establish Mark was one of the perpetrators of the robbery. Accordingly, his conviction and the related section 186.22, subdivision (b) gang enhancement must be reversed.
2. Exclusion of evidence.
Mark’s second contention is that the trial court erred by excluding evidence, i.e., his mother’s testimony pertinent to his alibi defense. Because we reverse Mark’s robbery conviction due to insufficiency of the evidence, this contention is moot and we need not reach it.
DISPOSITION
The judgment is reversed.
We concur: KLEIN, P. J., KITCHING, J.