Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA059480, Charles L. Peven, Judge.
William L. Heyman, 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, Steven D. Matthews and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Eric Daniel Hinnerichs appeals from the judgment entered following a bench trial that resulted in his conviction for petty theft with a prior. Hinnerichs was sentenced to a prison term of two years. He contends the evidence was insufficient to support the conviction. We disagree, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s case.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established the following. Seda Patatanian was employed by H&R Clothing store, also known as “Save Plus Five-Dollar Clothing,” in North Hills. On July 4, 2007, at approximately 11:00 a.m., Patatanian was working when Robert Danielson, Davida Hash, and Nicole Demott entered the store. After shopping for approximately one to one-and-one-half hours, the trio ran from the store with their arms “filled with clothing” for which they had not paid. Veronica Campbell, who was driving down the street in front of the clothing store, saw Danielson, Hash, and Demott run from the store with the clothing. Campbell followed them in her car to a nearby parking lot, and called police. Patatanian ran from the store and followed on foot.
In the parking lot, Danielson, Hash, and Demott entered appellant’s car. Patatanian attempted to stop them by grabbing onto the vehicle’s front passenger door. The window was partially open. She yelled into the car, “Give me back the clothes and then leave.” The two women in the car told Hinnerichs to “drive, drive.” Danielson struck Patatanian’s hand in an apparent attempt to force her to let go of the car. Meanwhile, Campbell had pulled her car a few feet behind Hinnerichs’s vehicle, blocking his path. Hinnerichs put his car in reverse and attempted to depart, but hit Campbell’s car. He then attempted to maneuver out of his parking spot and hit Patatanian’s car, which was parked next to his. The three passengers jumped from the car and fled on foot. Patatanian told Hinnerichs to “go sit,” and that she had already contacted police. Hinnerichs said, “I’m very sorry,” and sat outside the car.
b. Defense case.
Hinnerichs testified in his own behalf, as follows. He was on his way to Santa Clarita to visit his family, and was giving his friends Danielson, Hash, and Demott a ride to the area. En route, they stopped at a fast food restaurant and then decided to go shopping. Demott was wearing heavy clothing and wished to get something more suitable for the hot weather. Because Hinnerichs did not wish to go shopping, he waited in his car in the parking lot. After a substantial time passed, Danielson jumped in the car, screaming and cursing and telling Hinnerichs to drive. Immediately afterwards the two women jumped in, also screaming. There were “people from the store” running. Hinnerichs saw Patatanian but could not hear what she was saying. He had not seen his three companions running toward the car, and did not see clothing items in their possession. He tried to ask what was going on, but “[n]o one responded.” Hinnerichs “panicked,” started the car, and backed up, hitting Campbell’s car. He then attempted to drive forward, but hit Patatanian’s car. He did not realize his friends had stolen items until after they fled. At that point, he told Patatanian “take your things back. I didn’t know they were stealing your stuff.” When police arrived and handcuffed him, he told them everything that had occurred. Before the theft, none of his companions had discussed stealing items from the store; instead, they had told Hinnerichs they intended to purchase clothing.
Hinnerichs admitted two prior theft-related convictions. At the time of trial, he was on probation for narcotics possession. He admitted suffering from an ongoing and expensive “problem with narcotics.”
Hash testified that the group met Demott at the clothing store. Hash and the others did not have a prior plan to steal clothing from the store, but did so when Demott ran out of the store with clothes she had not purchased. Hash, Danielson, and Demott all ran to Hinnerichs’s car and told him to drive away.
2. Procedure.
Hinnerichs waived his right to a jury trial and was tried by the court. He was found guilty of petty theft with a prior (Pen. Code, § 666). The trial court additionally found Hinnerichs had suffered two prior theft convictions. It sentenced him to two years in prison and imposed a restitution fine, a parole restitution fine, and a court security assessment. Hinnerichs appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
The evidence was sufficient to prove Hinnerichs guilty of theft.
When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We “ ‘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 -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504; People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Holt (1997) 15 Cal.4th 619, 667.) “We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640; People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio, supra, at p. 357.)
“The elements of theft by larceny are: (1) the defendant took possession of personal property owned by someone else; (2) the defendant did so without the owner’s consent; (3) when the defendant took the property, he or she intended to deprive the owner of it permanently; and (4) the defendant moved the property, even a small distance, and kept it for any period of time, however brief.” (People v. Catley (2007) 148 Cal.App.4th 500, 505; § 484; People v. Shannon (1998) 66 Cal.App.4th 649, 653-654; see also CALCRIM No. 1800.) Section 666, petty theft with a prior, requires the additional element that the defendant has previously been convicted of and imprisoned for an enumerated theft-related offense.
The People’s theory was that Hinnerichs was an aider and abettor to the theft. “Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; § 31.) A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Atkins (2001) 25 Cal.4th 76, 92; People v. Hill (1998) 17 Cal.4th 800, 851; People v. Celis (2006) 141 Cal.App.4th 466, 470-471; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158; People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned,’ however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.” [Citation.]’ [Citation.]” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743.) Thus, lookouts, getaway drivers, and persons present to divert suspicion are principals in the crime. (Ibid.)
Among the factors that may be taken into account when determining whether a defendant aided and abetted a crime are presence at the crime scene, companionship, and conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Mere presence at the scene of a crime, knowledge of the perpetrator’s criminal purpose, or the failure to prevent the crime do not amount to aiding and abetting, although, as noted, these factors may be taken into account in determining a defendant’s criminal responsibility. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530; People v. Verlinde, supra, 100 Cal.App.4th at p. 1161; People v. Campbell, supra, 25 Cal.App.4th at p. 409.) “ ‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ [Citation.]” (People v. Campbell, supra, at p. 409; In re Juan G., supra, at p. 5.)
There is no dispute that the evidence was sufficient to prove Danielson, Hash, and Demott committed theft. Hinnerichs does not appear to dispute that his act of attempting to drive the trio away from the scene was sufficient evidence of an act that aided and promoted the crime. Instead, he contends the evidence was insufficient to show he knew the group intended to, or had, committed theft, and therefore lacked the requisite intent and knowledge to prove he was an aider and abettor. We disagree.
There was sufficient circumstantial evidence from which the court reasonably could have concluded Hinnerichs knew of, and intended to aid, the theft. Hinnerichs waited in his vehicle, on a hot July day, for approximately one hour, rather than shopping with friends. The three friends shopped for a lengthy period, suggesting they were waiting for the most auspicious moment to commit the theft. Then, almost in unison, the trio departed with armfuls of clothing and fled to Hinnerichs’s waiting vehicle. Confronted with his fleeing friends, the shopkeeper, and an eyewitness who had pulled behind his car to block his path, Hinnerichs did not ascertain the basis for the commotion but instead immediately and persistently attempted to flee, hitting two cars in the process. These coordinated actions were strong circumstantial evidence that, contrary to the defense evidence, the group went to the store with the intent and plan to commit the theft. Hinnerichs’s conduct in attempting to flee was inconsistent with an innocent explanation, and instead suggests he was well aware of what had transpired and fully intended to assist in the getaway. In short, his conduct before and after the offense, his attempt to flee, and his companionship with the thieves provided sufficient evidence to support the verdict.
Hinnerichs contends, however, that the circumstantial evidence suggested the theft was unplanned. He posits, among other things, that if he and his friends had intended to commit theft, they would have done a variety of things differently, including choosing a store that was a more convenient target, casing the store, employing a lookout, and wearing clothing or carrying bags that would have better facilitated the thefts. Had the theft been planned, he argues, the trio of thieves would not have run from the store in such a conspicuous fashion and he would not have used his own vehicle -- which could have been easily traced back to him -- as the getaway car. Further, he would have backed into the parking space so as to facilitate a quick getaway, and would have kept the car running while the others shopped.
This argument fails to persuade us. The fact the theft was not cleverly planned does not establish the absence of intent and knowledge; instead it may suggest nothing more than the thieves’ ineptitude. Moreover, even assuming Hinnerichs and his companions did not preplan the theft, there was sufficient circumstantial evidence to support the conviction. “[A]dvance knowledge is not a prerequisite for liability as an aider and abettor. ‘Aiding and abetting may be committed “on the spur of the moment,” that is, as instantaneously as the criminal act itself. [Citation.]’ [Citation.]” (People v. Swanson-Birabent, supra, 114 Cal.App.4th at p. 742.) “[A] getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such asportation, may properly be found liable as an aider and abettor of the robbery.” (People v. Cooper (1991) 53 Cal.3d 1158, 1161.) As the trial court found, the evidence showed Hinnerichs “obviously” knew what was happening at the point the others entered the car with the clothing, even if he had not known before. Hinnerichs’s three friends ran to the car with their arms full of unbagged clothing, with hangers dangling and Patatanian following – a highly unusual method of concluding a lawful shopping trip. Indeed, the thieves’ conduct so obviously suggested a theft that Campbell, who was merely driving by in a vehicle, immediately concluded the trio was stealing. She testified that when she saw the trio run from the store with their arms filled with clothing, she “thought there was a robbery in progress.” She further explained, “I could see they had what appeared to me that they had just grabbed a whole rack of clothing. And the hangers were hanging. I mean their arms were full of clothing.” All three thieves entered the car and, cursing or yelling, urged Hinnerichs to drive away. Patatanian appeared at the car’s partially open window and demanded the return of the merchandise. These facts surely would have alerted any reasonable person that the trio had just committed a theft. Although Hinnerichs testified he did not see the clothing, did not realize his friends had run to the car, and could not understand what Patatanian was saying through the partially open window, the trial court was not obliged to accept this testimony. This was especially so given Hinnerichs’s prior convictions for theft, a crime involving moral turpitude. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296 [misconduct involving moral turpitude may suggest a willingness to lie, and is admissible to impeach]; People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [“California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendant’s credibility”].) The trial court concluded it was “inconceivable” that Hinnerichs did not see the armloads of clothing his cohorts carried, a conclusion borne out by the evidence.
Hinnerichs further argues that he could not have seen the clothing because it was all located in the back seat of the car; police must have moved clothing to the front seat when photographing the scene; and he attempted to flee due to his concern that “even though he did not know what was going on and was not involved,” police would disbelieve him. These arguments, like his contention that the theft was not preplanned, amount to a request that we reweigh the evidence on appeal. Such is not the function of an appellate court. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) The evidence was sufficient.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.