Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF151698, Helios (Joe) Hernandez, Judge.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A group of about six men, armed with knives, screwdrivers, sticks, and a tire iron, followed an intended victim to a house where some of his relatives lived. When the householders came to the intended victim’s aid, the men assaulted them. One of the men stabbed one of the householders in the hand. There was substantial (though not uncontradicted) evidence that defendant committed the stabbing.
Originally, defendant was charged together with four codefendants. After the preliminary hearing, however, only defendant was held to answer. A jury found defendant guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) He admitted one 1-year prior prison term enhancement. (Pen. Code, § 667.5, subd. (b).) As a result, he was sentenced to a total of three years in prison.
Defendant contends that the trial court erred by giving aiding and abetting instructions because there was insufficient evidence that he aided and abetted the stabbing, which was the only crime charged. We disagree. Hence, we will affirm.
Defendant also contends that the abstract or judgment mistakenly reflects an order that he pay $387.97 in booking fees. The People concede the error. Hence, we will direct the trial court clerk to correct the abstract.
I
FACTUAL BACKGROUND
Victim Pedro Gomez Medina lived in a house in Moreno Valley, together with his family, including his wife, Elia Gomez, and their daughter, Andrea Gomez.
On June 29, 2009, the Gomezes’ son-in-law, Carlos Casteneda, happened to be visiting. Around 7:45 p.m., Pedro, Elia, and Carlos heard a commotion in the front yard. They ran outside, where they found a group of men chasing Manuel Reyes, a distant relative. The men were armed with knives, screwdrivers, sticks, and a tire iron.
Reyes did not testify at trial and thus did not explain why the men were chasing him.
The men were three or four feet inside the gate to the front yard, which was surrounded by a fence. Pedro, Elia, and Carlos managed to shove all of the men out of the gate and to shut it. The men pushed back on the gate, and it hit Elia in the chest. She sustained scratches and bruises “all over her arms.” One man tried to stab Carlos with a screwdriver; however, because Carlos ducked, the man ended up punching him in the eye instead. One of the men used a knife to stab Pedro in the hand.
Meanwhile, Andrea looked out the window and saw her parents struggling with the men. She testified that “all of them were socking my parents....” She ran outside, carrying her baby. One of the men pushed her and “almost... dropped [her] to the floor.” When she told them to stop because there were children present, “they” replied, “We don’t care. We don’t have respect....” Andrea called the police on her cell phone. When the men saw this, they got into a white Toyota Camry and drove away.
According to Carlos, there were five or six men altogether. Andrea testified that there were six or seven men and that three of them came inside the gate. According to Pedro, there were three men, all inside the gate. Elia thought there were “about three” men but did not really recall.
Reyes told police that a group of men in a white Toyota Camry had followed him to the Gomezes’ home. About eight blocks away, the police found a parked white Toyota Camry. They detained eight men who were near the Camry. The Camry was registered to the father of one of the men.
The police drove Pedro to the location of the Camry for an in-field showup. As they were driving, however, Pedro saw defendant walking down the street and said, “Hey, that’s him. That’s the guy who stabbed me.” The police therefore detained defendant. Defendant was not armed. In the ensuing showup, Pedro also identified five other men as having been present.
In a separate in-field showup, Andrea identified three men, including defendant, as having been present. However, she identified one Robert Camacho — not defendant — as the man who had stabbed her father.
At trial, Pedro identified a photo of defendant as the person who stabbed him.
On direct, when shown a photo of defendant, Andrea testified that he was not the man who had stabbed her father; on cross-examination, she identified a photo of Camacho as the perpetrator. On redirect, she apparently identified a photo of defendant. On recross, however, she identified a photo of Camacho again. She concluded, “I can’t remember because him and the other guy... look alike.”
None of the witnesses identified defendant in person at trial. However, defendant had let his hair grow out and had shaved off his facial hair.
II
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT AIDING AND ABETTING INSTRUCTIONS
Defendant contends that the trial court erred by instructing on aiding and abetting, because there was insufficient evidence that he aided and abetted the stabbing.
A. Additional Factual and Procedural Background.
The prosecutor requested two aiding and abetting instructions, CALCRIM No. 400 (Aiding and Abetting: General Principles) and No. 401 (Aiding and Abetting: Intended Crimes). Defense counsel objected to these instructions, arguing, “There’s no evidence of aiding and abetting.” The trial court overruled the objection and gave the challenged instructions. The prosecutor did not request, and the trial court did not give, any instructions on the natural and probable consequences doctrine. (See generally People v. Prettyman (1996) 14 Cal.4th 248.)
B. Analysis.
“The trial court must give instructions on every theory of the case supported by substantial evidence.... [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1200.) “Substantial evidence is evidence that would allow a reasonable jury to find the existence of the facts underlying the instruction, and to find the defendant guilty beyond a reasonable doubt based on the theory of guilt set forth in the instruction. [Citations.] In making this determination, we view the evidence most favorably to the judgment presuming the existence of every fact that reasonably may be deduced from the record in support of the judgment.” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290.)
“‘[A]n aider and abettor is a person who, “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.”’ [Citation.]” (People v. Jurado (2006) 38 Cal.4th 72, 136.)
“[M]ere ‘presence at the scene of a crime or failure to prevent its commission [is not] sufficient to establish aiding and abetting.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1024 [first brackets added; second brackets in original].) However, “[f]actors to be considered by the trier of fact in determining ‘whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.’ [Citation.]” (People v. Garcia (2008) 168 Cal.App.4th 261, 273.)
Pedro identified defendant as the man who stabbed him. Andrea, however, more or less consistently identified Camacho. If the jury believed Andrea — or even if it felt that her testimony raised a reasonable doubt regarding the identity of the perpetrator — it could find defendant guilty, if at all, only as an aider and abettor.
Certainly there was ample evidence that defendant aided and abetted an attempted battery on Reyes. Reyes told the police that the men were following him. He was running away from them, and they were chasing him. According to Andrea, all of the men, necessarily including defendant, were armed with deadly weapons. Pedro testified that the men were “beating up” Reyes. Once the gate was closed, defendant took part in pushing it, and thus in trying to get back into the yard, presumably to attack Reyes. Defendant argues that “[t]here was no evidence at all regarding why the men were chasing Reyes....” It seems pretty obvious, however, that they intended to commit a battery on him, even if their motive for committing a battery remains unknown.
In California, there is no such crime as attempted assault. (In re James M. (1973) 9 Cal.3d 517, 521-522.)
Defendant’s main point seems to be that, even assuming he intended an assault or a battery on Reyes, Pedro intervened unexpectedly; thus, there was no evidence that defendant expected, intended, or facilitated an assault on Pedro.
There are three responses to this argument.
First, there was substantial evidence that defendant did aid and abet the assault on Pedro. Again, he and the men with him were all armed with deadly weapons. They pursued Reyes onto private property. They showed a shared willingness to assault the householders. They all pushed back on the gate, at one point knocking Elia down. According to Andrea, “[A]ll of them were socking my parents....” They caused scratches and bruises all over Elia’s arms. When Andrea protested that there were children present, one of them said, “We don’t care.” They shoved Andrea, even though she was holding her baby. One man tried to stab Castaneda. It was fairly inferable that they had the common plan of assaulting (including with a deadly weapon) anyone who got between them and Reyes.
Second, there was also substantial evidence that defendant was guilty under the natural and probable consequences doctrine. “[U]nder the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’ [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 920.) Once again, the men were armed with deadly weapons, and they pursued Reyes onto private property with the intent to assault him. The jury could find that it was reasonably foreseeable that one of the men would commit an assault with a deadly weapon on one of the householders.
As defendant points out, the trial court did not instruct on the natural and probable consequences doctrine. Even so, it did not err by giving general aiding and abetting instructions; it erred only by failing to give instructions on the natural and probable consequences doctrine. This error was clearly not prejudicial to defendant. The jury was essentially told that he could not be found guilty as an aider and abettor unless he knew of the perpetrator’s intent to commit the actual offense, he intended that the actual offense be committed, and he facilitated the commission of the actual offense. Under the natural and probable consequences doctrine, however, he could have been found guilty, not only under these circumstances, but alternatively, if he knew of the perpetrator’s intent to commit a different offense, he intended that a different offense be committed, and he facilitated the commission of a different offense. Thus, without a natural and probable consequences instruction, the jury was less likely to convict.
Third, even assuming the trial court did err by giving aiding and abetting instructions, the error was harmless. “It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) However, when the jury is presented with two possible theories of guilt, one factually supported and one factually unsupported, “the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the [trier of fact] in fact found the defendant guilty solely on the unsupported theory.” (Id. at p. 1130.)
Here, the jury had the options of convicting defendant either as the perpetrator or as an aider and abettor. If, as defendant contends, there was insufficient evidence that he aided and abetted the charged offense, then we must presume that the jury did not find him guilty as an aider and abettor. Rather, we must presume that it found him liable as the perpetrator — a perfectly valid theory on which it was properly instructed and which is supported by substantial evidence.
We therefore conclude that defendant’s conviction must stand.
III
ERROR IN THE ABSTRACT OF JUDGMENT
Defendant also contends that the abstract of judgment erroneously reflects $387.97 in booking fees that the trial court did not impose and, under the circumstances, could not have imposed. The People concede the error. We agree. We will direct the trial court clerk to correct the abstract.
IV
DISPOSITION
The judgment is affirmed. The superior court clerk is directed to prepare a new sentencing minute order and a new abstract of judgment, both correcting the error identified in part III, ante. The superior court clerk is further directed to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: HOLLENHORST Acting P.J., CODRINGTON J.