Opinion
B202487
10-29-2008
In re M.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Tara K. Allen, 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, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
The juvenile court sustained a petition alleging that M.S. (minor) committed the crime of attempted second degree robbery. The juvenile court found that minor was a person described by Welfare and Institutions Code, section 602 and declared him a ward of the court. The juvenile court committed minor to a suitable placement for a maximum confinement time of three years.
Minor appeals on the ground that substantial evidence did not support the juvenile courts finding that he aided and abetted attempted second degree robbery. We affirm.
FACTS
Prosecution Evidence
On June 1, 2007, at 4:00 p.m., M. was approached by several individuals as he played a game in a basement arcade. After initially stating that he did not see in court anyone he saw at the arcade, M. identified minor in court as "arriving with the other two kids," but minor was not the "main guy" who approached him. In all there were four individuals—two came from the right and two came from the left. There was a "main guy," who approached M. and told M. to hand over his personal items—otherwise, something might happen to him. At that point M. turned around, and minor, who had been behind M., stood up and remained standing as M. faced him. Another boy told M. to hand over the property. Minor was the only person who stood up.
M. was afraid that the boys were going to beat him up. M. smiled at the boy who approached him and then took out his phone as if he were receiving a call. M. actually dialed 911 and began describing how the boys were dressed. At that point, the "main guy" told the others, "Lets go. We got to go." Minor then left with the "main guy" and the others. M. recalled that minor was wearing black shorts, black Nike shoes, and a black cap.
M. next saw the four individuals when the police took him to identify them. M. testified that minor was not wearing the black cap when he identified him in the field showup.
Defense Evidence
Minor testified that he was wearing a white T-shirt, blue shorts, white socks and white "Reebox" shoes on the day of the incident. Minors counsel exhibited minors booking record, which stated that these were the clothes he was wearing.
Minor told the court he was at the arcade with two friends whose names he did not know. He just called them his homies, and he had known them for about a month. Minor got tired of being in the downstairs arcade because it was hot, and he went upstairs. Approximately five minutes later, as he was going downstairs again, his friends said "Lets leave." He did not know what happened, but he turned around and left. He had never seen M. before.
DISCUSSION
I. Argument
Minor contends that the record contains insufficient evidence to support the necessary conclusions that he knew that the "main" guy or anyone else planned to commit a robbery and that he acted in a way intended to encourage or facilitate that robbery. The circumstantial evidence simply does not support any reasonable factfinders conclusion that minor aided and abetted an attempted robbery. Minor points out that defense exhibit A, the booking document that he attached as an appendix to his brief, confirms that minor was wearing different clothing and shoes than those described by M.
II. Proceedings Below
After testimony and argument, the juvenile court stated, "I thought [M.] was quite clear in his testimony. He seemed to be very—his demeanor appeared to be credible to the court and to have the presence of mind pretending that he was getting a phone call, but to call 911 when he was confronted with the four individuals with the minor being one of the four people to support this effort to attempt a robbery. The court believes that the People have proven beyond a reasonable doubt that the minor—that the People have proven beyond a reasonable doubt that the attempted second degree robbery, 664/211, a felony, was committed by the minor and that the count is true."
III. Relevant Authority
"`The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court `must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.]" (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)
Robbery is the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) "The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. ([Pen. Code,] § 21a.) . . . . The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.]" (People v. Bonner (2000) 80 Cal.App.4th 759, 764.)
An aider and abettor acts with knowledge of the criminal purpose of the perpetrator, has the intent or purpose of committing or encouraging the offense, and by act or advice aids or encourages the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.)
IV. Evidence Sufficient
The elements of aiding and abetting may be determined from a variety of factors, including presence at the scene of the crime, companionship, and conduct occurring before and after the crime. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan G.); People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).) An analysis of these and other factors in the instant case leads to the conclusion that there was sufficient evidence to support the juvenile courts true finding.
M. testified that he recognized minor as the individual who stood up and faced him as M. turned around. This threatening movement justifies a finding that minor knew that the "main guy" was planning to rob M. and that minor intended to encourage and facilitate the robbery by standing up directly behind the victim when the victim turned around, perhaps looking for a way out, after the initial demand for property was made. Minor remained standing throughout the incident and did not begin to leave until the main perpetrator said, "Lets go." At that point, minor fled the scene along with the other individuals.
The People cite Campbell for the proposition that minors actions constituted a supportive role in the attempted robbery rather than the role of an innocent bystander. (See Campbell, supra, 25 Cal.App.4th at pp. 406-407, 409-410.) Minor distinguishes Campbell on its facts, since the defendant who claimed insufficient evidence of his aiding and abetting was said to have grabbed one of the victims and asked her what she had. (Id. at p. 407.) Campbell, and Juan G., are not on point with the instant case because there is no issue of allegedly ambiguous behavior tied to a claim of lack of knowledge and intent by the defendant. (See Juan G., supra, 112 Cal.App.4th at p. 5 [minor claimed he was only "with" perpetrator at most and did no more than watch the robbery take place].) Minors defense was that he was not even in the arcade when the incident occurred and did not know what happened. We believe that, if M.s testimony is believed, minor clearly played a supporting role, and that the issues here are those of identity and the credibility of the victim as to what actually occurred.
It is true that M. described minor as wearing clothing different than the clothing minor was apparently wearing when he was booked. It is well established, however, that "[c]onflicts 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." (People v. Maury (2003) 30 Cal.4th 342, 403.) M. identified minor in court as the individual who stood behind him, and "[w]e cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witnesss testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment." (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) "To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear. [Citations.]" (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)
The juvenile court made an express finding that the testifying victim was a highly credible witness, and there was nothing physically impossible or inherently improbable in M.s account of the incident. We note that minor, on the other hand, claimed he did not know the names of his companions. Viewing the evidence in the light most favorable to the People and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, we conclude sufficient evidence supports the juvenile courts finding that minor aided and abetted the attempted robbery of M.
DISPOSITION
The order appealed from is affirmed.
We concur:
BOREN, P. J.
CHAVEZ, J.