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In re R.L.

California Court of Appeals, Fourth District, Second Division
Nov 19, 2009
No. E046913 (Cal. Ct. App. Nov. 19, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County, No. J222299. Harold T. Wilson, Jr., Judge.

David K. Ries, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Elizabeth S. Voorhies, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ, P. J.

INTRODUCTION

R.L. (minor) disputes the sufficiency of the evidence supporting the juvenile court’s true finding that he robbed James Bower. We will affirm.

FACTS AND PROCEDURAL HISTORY

On July 3, 2008, the District Attorney of San Bernardino County filed a Welfare and Institutions Code section 602 petition charging minor with robbery (Pen. Code, § 211, count 1) and carjacking (Pen. Code, § 215, subd. (a), count 2). The petition further alleged, as to both counts, that minor had used a knife in the commission of the crimes. At the beginning of a contested jurisdiction hearing on September 15 and 16, 2008, the juvenile court dismissed count 2 and the related weapon-use allegation. Thereafter, the matter proceeded on only count 1 and the weapon-use allegation related to count 1. Victim James Bower (Bower or the victim), and police officers Eric Divincenzo (Divincenzo) and Robert Steenerson (Steenerson), testified at the hearing, as did minor.

All further statutory references are to the Penal Code unless otherwise indicated.

Bower’s Testimony

Bower was a 59-year-old therapist who worked for the Department of Behavioral Health at juvenile detention centers in San Bernardino County. Brian Bagwell (Bagwell), 40, Bower’s sometime housemate and tenant, worked as a security guard at a club Bower frequented. Bower met minor, 17, at the club through Bagwell. From time to time, with Bower’s permission, minor spent the night at Bower’s house in Bagwell’s room. Bower knew that Bagwell used drugs and assumed that minor used them too. Bagwell, Bower said, was “mentoring” minor.

Bower also testified at a Welfare and Institutions Code section 707 “fit and proper” hearing on September 9, 2008. He said that Bagwell was trying to help minor get into the Job Corps, to get away from drugs and to stay away from gangs. At the close of the fit and proper hearing in view of the age differences among minor, the victim, and the primary perpetrator, the court found minor fit for juvenile court.

Sometime after 1:00 a.m., on July 2, 2008, Bower awoke to find Bagwell standing beside his bed with a 10-inch kitchen knife in one hand and a pipe wrench in the other. Minor was there too, standing at the foot of the bed, facing Bagwell. Although Bower had poor vision, he could see that minor’s hands were at his side and that he did not have a knife. Bower could also see that minor looked “confusingly” at Bagwell. As the incident began, Bower asked minor several times, “What’s going on?” But minor did not answer.

Bagwell threatened to “hurt” Bower unless he disclosed the personal identification number (PIN) for his ATM card by the time he (Bagwell) counted to five. If he did not do so, minor was going to poke or stab him with the knife. As Bagwell started counting, Bower disclosed the PIN. Bagwell then tied Bower’s hands and feet with strips of a cut T-shirt. The victim did not know what Bagwell did with the wrench and knife while tying him up. Bagwell and minor left together, apparently in Bower’s car. After they left, Bower ran next door and called the police. Bower said that he was confused but not scared during the incident; he only felt scared after Bagwell and minor left.

That the car was Bower’s was confirmed in later testimony.

Divincenzo’s and Steenerson’s Testimony

Divincenzo and Steenerson were among the officers who responded to the robbery-in-progress call. To Divincenzo, Bower appeared distressed: “His voice was wavery like he’d been crying recently[;] his eyes were red.” Bower told Divincenzo that Bagwell and minor were the perpetrators. When Bagwell and minor returned to the scene, in Bower’s car, they were met by Steenerson and other officers. As they got out of the car, the officers ordered them to lie on the ground. Beside minor’s legs as he lay on the ground on the passenger’s side was a large kitchen knife.

Minor first told Divincenzo that he couldn’t recall anything about the incident. After another officer told minor that police had already received information that he was involved, he agreed to tell them whatever they wanted to know. Minor told Divincenzo that he felt there had been a robbery. During the incident, minor said Bagwell had given him a knife and told him that if Bower moved, “Do what you have to do.”

Welfare and Institutions Code Section 701.1 Motion

At the close of the prosecution’s case, counsel moved to dismiss the petition pursuant to Welfare and Institutions Code section 701.1. Counsel argued that the People had not presented evidence sufficient to show beyond a reasonable doubt, that the minor was the subject of a section 602 petition. Counsel insisted that his client did not have the requisite intent, either as a principal or an aider and abettor, for the crime of robbery. Without comment, the court denied the motion.

Counsel actually said she was making a “701” motion, but it is obvious from her subsequent arguments that she misspoke. She should have referred to section 701.1, which provides for dismissal of a section 602 petition if, after the petitioner has finished presenting the evidence in support of the petition, the court finds that the minor is not a person described by section 602. Defense counsel’s mistake was compounded by the district attorney’s own reference to a “701” motion and by the trial court’s failure to correct the mistake.

Minor’s Testimony

Minor then testified. He confirmed that he had known Bagwell for about a year and that he first met Bower through Bagwell at a club where the latter worked as a security guard. Minor sometimes went to Bower’s house with Bagwell and sometimes spent the night there, sleeping in Bagwell’s room. Minor and Bagwell smoked methamphetamine together every day. Minor was afraid of Bagwell, who in the past had punched him in the face, had forced him to do drugs, and had tried to force him to do “sexual things” that minor did not want to do. Bagwell had never succeeded in doing anything sexual to minor because minor had gotten away from him. Minor continued to hang out with Bagwell because he had become addicted to the drugs Bagwell gave him and Bagwell was minor’s only way of getting them.

On the day of the robbery, minor and Bagwell smoked methamphetamine together at a friend’s house. Afterward, they returned to Bower’s house, where minor went into Bagwell’s room and fell asleep. When minor awoke, Bagwell was standing over him with a wrench and a knife. Bagwell appeared “[d]rugged up... acting crazy... out of it.” Bagwell put the knife in minor’s face and told minor to follow him into Bower’s room. Despite the fact that Bagwell appeared drugged and was walking toward another person’s room with a wrench and a knife in his hand, minor had no idea what Bagwell intended to do.

Because he was scared, minor followed Bagwell. In the hallway outside Bower’s room, Bagwell tried to hand minor the knife, but minor dropped it and refused to pick it up because he “didn’t want to cooperate with him.” Minor was confused and scared about what was going on; he didn’t understand what Bagwell was trying to do; he never had the knife in his hands inside Bower’s room; and he did not steal or intend to steal, anything from Bower. He had told police officers that he believed the victim was afraid because he had himself been afraid when Bagwell held the knife and the wrench over him. At the time of the incident, minor knew that Bower was being robbed.

After the robbery, again because he was afraid of Bagwell, minor left the house with him, followed him to the car, got into the passenger’s seat, rode to the bank with him, stayed in the car while Bagwell got money from the ATM machine, and went into a gas station with Bagwell where Bagwell bought cigarettes and a drink for minor. At no point during these events did minor try to get away from Bagwell because he knew that Bagwell had the knife in his pocket and he was afraid that Bagwell might pull it out and hurt him “right there.” When they returned to Bower’s house, Bagwell had the knife in his hands. Minor had no idea how the knife had come to be on the ground beside him when he was arrested. Minor initially lied to police about his involvement in the robbery because he did not want to be a “snitch,” because he was afraid Bagwell would hurt his family, and because he did not want to get into trouble for “just being there.”

At the close of the hearing, the court found the robbery allegation true and the related weapon-use allegation not true. At a contested dispositional hearing on October 8, 2008, the court declared minor a ward of the court and placed him on probation in the custody of his parents.

DISCUSSION

Standard of Review

The standard of proof at trial and the standard of review on appeal are the same for juvenile and adult criminal proceedings. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322.) “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to 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—such that a reasonable trier of fact could find the minor guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) “Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing 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.’” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (Rodriguez, at p. 11, citing People v. Stanley (1995) 10 Cal.4th 764, 792.) Finally, it is the exclusive province of the trier of fact to determine the credibility of a witness. (People v. Duncan (1981) 115 Cal.App.3d 418, 429.)

Robbery

“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.” (§ 211.) “The fear mentioned in Section 211 may be... [¶] [t]he fear of an unlawful injury to the person... robbed[.]” (§ 212.) The necessary fear is subjective and requires proof “‘that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 946.) That the victim was afraid for his safety may be inferred from the circumstances; the requisite fear does not need to arise from an express threat. (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) “[I]t makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.” (Id. at p. 772.)

Anyone who aids in the commission of crime, whether he directly commits the act that constitutes the offense or aids in its commission, is guilty as a principal. (§ 31.) An aider and abettor is a person who acts with knowledge of the perpetrator’s criminal purpose and intends to encourage or facilitate the offense. (People v. Williams (2008) 43 Cal.4th 584, 636, quoting People v. Avila (2006) 38 Cal.4th 491, 564.) Mere presence at the scene of a crime does not, by itself, make a person guilty of aiding and abetting. (People v. Durham (1969) 70 Cal.2d 171, 181.) However, factors that a court may consider in determining whether a person aided or abetted, in addition to presence at the scene, are companionship and conduct before and after the crime. In addition, flight is a factor that may demonstrate consciousness of guilt. (In re Lynette G. (1976) 54 Cal.App.3d. 1087, 1094-1095.)

Analysis

In this case, minor was not merely “present” at the scene. His conduct, before, during, and after the crime, demonstrated his role in its commission, at least as a means of producing fear in the victim. Minor entered the scene as Bagwell’s companion. Minor knew before they opened the door to Bower’s room that Bagwell intended to commit a crime there: he had refused to pick up the knife Bagwell handed him in the hallway because he did not want to “cooperate” with him. In fact, whether or not minor held a knife while Bagwell threatened Bower and tied him up, he did cooperate. He stood at the foot of the victim’s bed and blocked any possible route of escape. By failing to respond to Bower’s inquiries about what was happening, or to reassure Bower that he would not stab him, minor lent credence to Bagwell’s threats. Minor knew both that Bower was being robbed and that Bower was afraid because he had himself been afraid when Bagwell stood over his bed and threatened him. His silence under these circumstances reinforced the victim’s fear—fear that facilitated the crime and that was evident despite the victim’s later denials.

At the hearing, it was also evident that both Bower and minor had credibility problems. Bower’s claim that he had no fear during the incident was belied by his admission that he gave up his ATM number before Bagwell finished counting. Clearly he thought that somebody, Bagwell or minor, was going to hurt or even stab him if he did not. The claim was also belied by Divincenzo’s observation that when he arrived to investigate, the victim appeared distressed and looked like he had been crying.

Minor’s self-contradictory and self-serving testimony, that he was confused throughout the events but that he knew a robbery was taking place, was also not credible. His further contention that he fled the scene with Bagwell and accompanied him to the bank and the gas station only because he was afraid and because Bagwell was allegedly carrying a 10-inch knife in his trouser pocket the whole time, were thin. Minor’s statement that Bagwell had the knife in his hands as they returned to Bower’s house, and that he had no idea how the knife came to rest on the ground beside his leg after police forced him out of the passenger’s side of the car, was inherently unbelievable. Finally, by his statement to police that he knew nothing about the incident—until he was told that they already knew he had been involved—minor demonstrated his willingness to lie when he found it convenient and thought he might get away with it.

As has been noted by more than one California court reviewing similar cases, “‘[f]ew criminals would ever be convicted if their explanations were accepted as gospel truth.’” (People v. Carlson (1960) 177 Cal.App.2d 201, 204, quoting People v. Hall (1927) 87 Cal.App. 634, 635.)

DISPOSITION

The judgment is affirmed.

We concur, HOLLENHORST J., McKINSTER J.


Summaries of

In re R.L.

California Court of Appeals, Fourth District, Second Division
Nov 19, 2009
No. E046913 (Cal. Ct. App. Nov. 19, 2009)
Case details for

In re R.L.

Case Details

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

Court:California Court of Appeals, Fourth District, Second Division

Date published: Nov 19, 2009

Citations

No. E046913 (Cal. Ct. App. Nov. 19, 2009)