Opinion
A146283
01-31-2017
In re A.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. JV18020)
I.
INTRODUCTION
Appellant A.R., a minor, was adjudged a ward of the juvenile court under Welfare and Institutions Code section 602, based on jurisdictional findings that he committed violations of Health and Safety Code sections 11359 (possession of marijuana for sale) and 11360, subdivision (a) (aiding and abetting the sale of marijuana).
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
In this appeal from the juvenile court's jurisdictional and dispositional orders, appellant does not dispute that he possessed marijuana for sale, but he does challenge the sufficiency of the evidence to support the finding that he aided and abetted the sale of marijuana. We conclude that the finding was supported by substantial evidence, and therefore we affirm the challenged order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Undercover Narcotics Investigation
In February 2015, Napa police officers Alfonso Ortiz and Eric Koford participated in an undercover investigation of individuals suspected of selling marijuana. Using a cell phone contact number they had obtained, the officers made arrangements to purchase marijuana from an individual who was subsequently identified as A.G. On February 12, Officer Koford drove to the agreed meeting place, which was in front of appellant's house.
All further dates are in the calendar year 2015, unless otherwise indicated.
While Koford was parked in front of appellant's house, A.G. walked up to Koford's car and Koford showed him $40, which was to pay for two marijuana cigarettes. A.G. said he would have to go get the marijuana and then went into appellant's house through the front door. More than five minutes later, A.G. returned to the car and told Koford that it had taken longer than "they" expected. He then exchanged a bag of marijuana for the $40. As Koford drove away, he saw A.G. walk back inside appellant's house.
On February 24, the officers contacted A.G.'s cell phone to arrange for Koford to make a second purchase of marijuana. Through an exchange of text messages, A.G. originally agreed to sell two ounces of marijuana for $200, but later stated that he had made a mistake and could only supply one ounce, nine grams for the $200. A.G. told the buyer to meet him in front of appellant's home.
On the afternoon of February 24, Koford parked his car on the street just beyond appellant's house. Koford then texted A.G. that he had arrived. A.G. texted back, "Alright hold up." Less than a minute later, A.G. placed a call to appellant's cell phone. A couple of minutes later, A.G. placed a second call to that same number.
Meanwhile, Koford looked to his right, expecting to see A.G. walk from appellant's house towards him. Instead, A.G. approached from another direction. When A.G. reached appellant's driveway, he made brief eye contact with Koford, who was looking back over his shoulder. Then A.G. turned and walked toward appellant's front door, where he disappeared from Koford's sight for two or three minutes. Koford could not see the front door of appellant's house at this point.
While these events unfolded, Officer Ortiz was watching A.G. and Koford from a hidden location. Thus, Ortiz saw Koford park near appellant's house and watched A.G. walk from the south toward the direction of appellant's front door. Shortly thereafter, Ortiz saw A.G. emerge from that same direction. From his position, however, Ortiz could only see that A.G. walked to, and later from, the "direction of the front door" of appellant's house.
Then A.G. appeared at Koford's driver side window and asked to see the money. After Koford complied, A.G. pulled the marijuana from his pocket. Koford gave A.G. $200 for two small Ziploc bags of marijuana. After the transaction was completed, Ortiz and other police officers appeared and arrested A.G.
Immediately after A.G. was arrested, officers conducted a search of appellant's house. The search warrant was executed by California Highway Patrol Officer Patrick Ensley, who subsequently testified that when appellant answered the door, he said, "Oh shit" and attempted to close the door, but Ensley prevented it and entered the house.
After Ensley executed the warrant, Ortiz joined him in the search. Appellant was the only occupant of the house. A search of appellant's bedroom produced five or six bags of marijuana, a digital scale, and a lockbox containing $470 in cash. The bags of marijuana in total weighed 1,086.5 grams, or a little over two pounds. The bags were all larger and had a different type of sealing mechanism than the baggies that A.G. gave to Koford. Officers also found a pipe and cigarette papers in appellant's room, but they did not find any pay-owe sheets in the house. Although appellant declined to make a statement to the officers, he produced a medical marijuana card from his backpack, which Ortiz photographed.
Ortiz testified that the officers had recorded the numbers of the bills used in the February 12 buy, but he did not examine the numbers on the cash in appellant's cash box to determine whether it included the bills that the officers used to purchase marijuana from A.G. on February 12.
After searching appellant's house, Ortiz conducted a search of A.G.'s apartment. A.G., who had been friends with appellant since middle school, lived approximately a block away from appellant's home. At A.G.'s apartment, Ortiz found a marijuana smoking pipe, but nothing that he believed was consistent with selling marijuana.
A.G. was evasive about the circumstances surrounding the events of February 12 and 24. However, he never told the police that the marijuana he sold to Koford came from appellant or that he gave appellant any of the money that Koford paid him.
B. Appellant's Wardship Proceeding
On April 9, the Napa County District Attorney filed an original wardship petition (Welf. & Inst. Code, § 602, subd. (a)), alleging that appellant had possessed marijuana for sale in violation of section 11359 (count 1), and aided and abetted the sale of marijuana in violation of section 11360, subdivision (a) (count 2).
A contested jurisdictional hearing was held on the petition on July 2 and 10, at the conclusion of which the allegations that appellant had committed the two charged offenses were found true.
At a September 9 dispositional hearing, appellant was adjudged to be a ward of the court, and he was placed on probation with conditions, including fines and penalties imposed. He was ordered to be placed in the home of his father.
This timely appeal followed.
III.
DISCUSSION
A. Issue Presented and Standard of Review
The issue on appeal is whether there is sufficient evidence to support the count 2 finding that appellant aided and abetted the sale of marijuana. In considering a sufficiency of the evidence claim in juvenile delinquency proceedings, this court applies the same standard of review that is applicable in criminal cases. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.) Thus, this "court must review the whole record in the light most favorable to the judgment below 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." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813-814.)
In applying this standard of review, we review the entire record, not merely parts highlighted by the parties. (People v. Johnson, supra, 26 Cal.3d at p. 577.) We also "presume every fact [the judge] could reasonably have deduced from the evidence. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 480.) "[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874; see In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 ["The juvenile trial court was the trier of fact and the sole judge of the credibility of witnesses; we are not."].) "In short, in juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]" (Ibid., italics omitted.)
B. There Is Substantial Evidence to Support the Juvenile Court's Findings
" 'To be an abettor the accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission. He must share the criminal intent with which the crime was committed. The mere presence of the accused at the scene of the crime does not alone establish that the accused was an abettor. . . . In order to hold the accused as an aider and abettor the test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.' [Citation.]" (People v. Francis (1969) 71 Cal.2d 66, 72.)
Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Among the factors which may be considered in determining aiding and abetting are presence at the crime scene, companionship, and conduct before and after the offense. (Ibid.)
Employing the applicable standard of review, we are satisfied that the true findings made by the juvenile court are supported by substantial evidence. On February 12, Koford saw A.G. walk through the front door of appellant's house and emerge a few minutes later from the house with the marijuana he sold to Koford. A.G. even apologized to Koford for the wait explaining that "they" had taken longer to fulfill the order than expected. As to the second sale, phone records showed that A.G. made two calls to appellant after Koford texted that he was outside appellant's house. Furthermore, although the officers did not see A.G. actually walk through the front door before the sale was consummated, A.G. was seen near the front door of appellant's house immediately before the sale took place.
Although only the sale occurring on February 24 was charged in the petition, the events on February 12 were relevant and admissible to prove the truth of the charged crime. (People v. Wardwell (1959) 167 Cal.App.2d 560; People v. Marshall (1964) 226 Cal.App.2d 243, 245.)
A search of appellant's house almost immediately after the second sale, which began with appellant greeting Officer Ensley at the door with an expletive of surprise and some effort to bar the officer's entry, revealed marijuana and the indicia of sales in the home. The search yielded five or six bags of marijuana, a lockbox containing $470 in cash, and a digital scale. The bags of marijuana in total weighed 1,086.5 grams, or a little over two pounds. No one else was in the house at the time of search.
While A.G.'s testimony could have exonerated appellant, he was also evasive, both during police interviews and when he testified at the jurisdiction hearing. Furthermore, his friendship with appellant and the fact that he lived so close by were circumstances supportive of the court's conclusion that appellant was A.G.'s aider and abettor. Also, although A.G. claimed that he got the marijuana he sold to Koford from his own house on both occasions, a search of that residence on the same day as the second sale revealed no evidence of marijuana or indicia of sales.
Appellant argues that A.G.'s exculpatory testimony, discrepancies in witnesses' testimony, and the failure to find bags in appellant's home of the specific type used to package the marijuana sold to Koford all deprived the trial court of sufficient evidence to support a true finding with respect to the aiding and abetting count. However, these matters simply go to the weight of the evidence presented to the juvenile court. (See People v. Mohamed (2011) 201 Cal.App.4th 515, 522.) Despite some deficiencies in the evidence there is substantial evidence to support the juvenile court's finding that appellant not only possessed marijuana for sale, but also aided and abetted the sale of marijuana to Koford. Accordingly, we affirm the challenged orders.
IV.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.