Opinion
A150948
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. DEVYN CONEY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR304994)
Devyn Coney appeals from an order revoking his probation. He contends the evidence was insufficient to establish a probation violation. We disagree, and affirm.
BACKGROUND
The following evidence is described in accord with the standard for substantial evidence review. (See People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) S.C. was waiting to pull into her garage on Sacramento Street in San Francisco when she saw two men come around the corner from Franklin where it intersected with Sacramento and almost immediately split up. One man came down the north side of Sacramento and the other came down the South side. Both were walking toward Van Ness Avenue. This caught S.C.'s attention because, she explained, "I'm from New York, and I've seen it a lot of times. When two guys are going to attack someone, they come from two separate sides, so it just caught my attention."
At that time, J.N. was walking east on Sacramento Street when two men approached her from behind and pushed her against a parked car. One of the men grabbed J.N.'s cell phone and ran, while the second man attempted to take her handbag. After a brief struggle he managed to wrestle J.N.'s bag away from her, but before he could flee, a neighbor, M.S., approached from a nearby apartment building, grappled him to the ground and restrained him in a choke hold. The assailant was wearing a red shirt, red or orange shoes and dark pants.
S.C. heard J.N. scream and looked in her rear view mirror. She saw the two men running towards Franklin Street. One of them was tackled by someone. The other, who was holding a phone, turned right onto Franklin.
M.S. was in his apartment on Sacramento Street when he heard a woman scream and, when he looked out his window, saw two men running. M.S. briefly chased the men and managed to tackle and subdue one of them. M.S.'s building manager approached and took over restraining the suspect. The man on the ground was yelling "hey, bro, help me, help me."
Just after that another man, later identified as Coney, returned and "started saying something to the effect of, you can't do this, let him go, back off, back off." Coney repeatedly told the building manager to let the suspect go, then reached down and ripped the manager's hands apart, allowing the suspect to break free. Both Coney and the suspect fled up Sacramento Street and turned right onto Franklin, the same direction as the man who took J.N.'s cell phone.
Around this time San Francisco Police Officer Loren Chiu received a call from dispatch to assist plainclothes officers following a vehicle suspected in a robbery. Officer Chiu pulled the car over. There were five occupants, including Coney, the purse snatcher, a third man and two women. Officers found a phone inside the car. J.N.'s phone was returned to her missing its SIM card.
The court found Coney violated his probation. "As to the incident in San Francisco, I tend to agree that there isn't enough evidence to show that he committed the robbery. But on the accessory after the fact, the gentleman with the accent was very clear that he saw the defendant cross the street, essentially, at the time when the woman was being attacked, by my understanding of his testimony. And by the time he got down to the street and tackled one of the guys, the defendant had gone up, turned around, and came back to aid his friend in escaping, which was obviously a robbery at that point, since—he was out in the street at the time he saw it.
"And then he was found together with these people in the car after the fact. And the woman—all these people were brought down there to identify these people. And it's not too big a leap to figure that she got her phone back from them, since that's when she got the phone back.
"So I tend to agree with you on the robbery itself, but as an accessory after the fact, I'm going to find that he's in violation of his probation for that, I'll find." Coney was sentenced to incarceration on a previously suspended five-year sentence. This appeal is timely.
DISCUSSION
I. Legal Standards
A probation violation must be proven by a preponderance of the evidence. (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) In assessing the sufficiency of evidence to support an order revoking probation, "our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey, supra, 88 Cal.App.4th at pp. 848-849, fns. omitted.)
An accessory to a crime is a person " 'who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof. . . .' 'The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.' " (People v. Nuckles (2013) 56 Cal.4th 601, 606-607, italics omitted.)
Coney argues the evidence was insufficient to establish that he knew the man being held down had committed a robbery. Specifically, he asserts the court was mistaken in believing M.S. ("the gentleman with the accent") when he testified that Coney was present while the robbery was taking place. In his view, rather, there was no evidence that he saw the robbery and, hence, no basis to infer he knew the man on the ground had committed a crime. We disagree.
Although M.S.'s description of the incident was in some aspects confusing and contradictory, he testified that when he heard screaming and looked out his window he saw a man, later identified as Coney, with another man, running up the street and across Franklin. Coney was in the middle of the street and the other man, the one M.S. tackled, was on the sidewalk. "And then [Coney] was—saw me when I was on the ground with another guy. And he was yelling at the guy, and I saw when he was coming back. He answered like they called . . . ." (Italics added.) Asked whether he saw Coney before he tackled the other man, M.S. said "I saw two persons. This guy, I recognize this because of the dreadlocks, but I didn't see his face, because I was behind him. And then when I saw the guy with the dreadlocks coming back, of course, it just could be his partner . . . ." Indeed, M.S. described Coney at least four times as returning to help the other man. Although his testimony was not entirely consistent, the trial court reasonably could and did infer from it that Coney was present during and aware of the robbery. Just because the testimony could also be viewed as suggesting M.S. did not observe Coney until after the robbery does not compel us to disturb the court's contrary interpretation. (See People v. Kurey, supra, 88 Cal.App.4th at pp. 848-849.)
It is undisputed that Coney had dreadlocks.
And there was more to support the court's finding that Coney knew a crime had been committed. The victim testified that she was asking bystanders to call the police as the perpetrator was being restrained on the ground. Moreover, once Coney freed the perpetrator from the building manager's grip the two fled together, and in the same direction as the man who had stolen J.N.'s phone. Finally, shortly afterward they were pulled over with a third man in a car that had been reported as carrying robbery suspects, and in which a cell phone, inferentially J.N.'s, was found. This evidence, viewed in light of the correct standard for substantial evidence review, adequately supports the knowledge element required to prove Coney was an accessory after the fact.
DISPOSITION
The order revoking probation is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Pollak, J.