Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No.FJ42000. Robert J. Totten, Judge.
Katharine E. Greenebaum, 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, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
J.B. appeals from an order of wardship (Welf. & Inst. Code, § 602) following a finding that he committed count 1, a second degree robbery of Sergio Gonzalez (Pen. Code, § 211); count 2, an assault with a firearm on Gonzalez (Pen. Code, § 245, subd. (a)(2)); and count 3, an assault with a firearm on victim Giancarlo Saavedra (Pen. Code, § 245, subd. (a)(2)), with the finding as to count 1 that a principal personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b) and (e)(1) and that all offenses were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(C). He was placed in a camp community placement program and a maximum period of confinement was declared of 21 years. He contends there was no evidence introduced that proved he ever used a firearm or a knife during the robbery. He also contends count 3 must be stayed as a part of the robbery. For reasons stated in the opinion, we modify the maximum term of confinement and in all other respects affirm the order of wardship.
While the petition was amended by interlineation to allege in count 3, a violation of Penal Code section 245, subdivision (a)(1), a deadly weapon other than a firearm, the court found that a violation of Penal Code section 245, subdivision (a)(2), assault with a firearm was committed on victim Saavedra.
The maximum time of confinement was computed as follows: Count 1 was the base term of five years, ten years for the gang enhancement, and four years for the gun enhancement. Count 2 was one-third the middle term or one year, as was count 3.
While he states “robbery,” it appears he means assault.
FACTUAL AND PROCEDURAL HISTORY
On January 10, 2008, at approximately 8:00 p.m., Sergio Gonzalez and his friend were leaving a party in the 5900 block of Carlton Way in Los Angeles when two “guys” approached them. They asked Gonzalez for his jacket, which was blue and black, and for a jersey. Gonzalez gave them these items as well as his cell phone, because one of the individuals pointed a gun directly at Gonzalez and threatened to shoot him if he did not. Gonzalez saw that the other individual had a knife. The individuals said they came from a gang but Gonzalez could not recall which one. They asked Gonzalez where he was from, meaning to what gang did he belong? The individual pushed Gonzalez with the gun and told him he had to leave the area. The individuals said they were going to “escort” him out. Gonzalez felt threatened the entire time. Gonzalez and his companion were walking away and heard two gunshots. Gonzalez was 10 to 15 feet away from the individuals who robbed him and his back was to these two individuals. Gonzalez and his companion ran and were stopped by the police. After telling the officers what had happened, the officers took Gonzalez to a location to identify individuals being held as possible suspects. Gonzalez told the officers the people looked like they might be the people who robbed him but he was not sure because it was at night. Gonzalez did not remember positively identifying them as the people who robbed him. Gonzalez testified he did not see the robbers in court. He remembered telling the officers that one of the guys held a knife to his rib cage and that he was told to give them his stuff or he was going to get “fucked up.”
That evening, at approximately 8:00 pm., Los Angeles Police Officer Gabriel Blanco responded to a “shots fired” call and spoke to Gonzalez and Saavedra. Gonzalez stated he was a member of a gang called B.H. or “Bad Habits.” Saavedra said he was with Gonzalez and that they were both escorted out of a party at gunpoint. They were then re-approached by the same two suspects and Gonzalez was robbed at knife point. Saavedra stated that as Gonzalez came towards him, Saavedra observed one of the minors fire two rounds “in the direction.” Gonzalez yelled, “run” and Saavedra and Gonzalez ran until they were stopped by the police. Officer Blanco knew Saavedra from a previous contact and knew him to also be a member of B.H. gang. When Officer Blanco spoke to Gonzalez, Gonzalez did not indicate uncertainty with respect to his identification of these individuals.
The court struck as hearsay evidence Officer Blanco’s testimony regarding the identity of the shooter.
While Los Angeles Police Officer Carlos Ayala was on patrol, he heard what he thought were gunshots, saw Saavedra and Gonzalez running, and stopped them. Officer Ayala thereafter transported Saavedra and Gonzalez to a location where possible suspects were detained. Gonzalez and Saavedra identified both E.S. and appellant. Gonzalez and Saavedra were both very sure of their identification.
Police Officer Evan Samuel and his partner were called to the location and observed appellant and another minor who matched the description of the robbery suspects. When the officers exited their vehicle, the two suspects walked away from each other. When Officer Samuel tried to talk to appellant, who was holding a black and blue jacket over his hands, appellant fled. Officer Samuel chased appellant and saw him throw a large, 10-inch chrome knife. As appellant jumped through a chain-link fence, the jacket got snagged on the fence. Other officers detained appellant.
Los Angeles Police Officer Melvin Martinez chased E.S. and located him at the entrance to an apartment. E.S. was on the second floor landing, crouched down as though attempting to hide. He was standing over a floor mat that was covering a loaded magazine for a pistol. Officer Martinez arrested E.S.
A gang expert testified appellant was an admitted gang member and that the crimes were committed for the purpose of benefitting the gang.
DISCUSSION
I
Under paragraph I of the argument section of appellant’s brief, appellant states, “THERE WAS NO EVIDENCE INTRODUCED THAT PROVED APPELLANT EVER USED A FIREARM DURING THE ROBBERY, nor was there sufficient evidence he possessed the knife during the robbery.” He additionally asserts “[c]ount two of the petition accuses appellant of assault with a firearm... [but] no evidence was introduced which even suggested appellant had been in possession of a firearm during the robbery.” He further claims “[s]ince there was no evidence introduced which proved that appellant had been in possession of a gun or fired a gun at the victims, he cannot be convicted of assault with a firearm.” Appellant’s argument is confusing because he interchanges the crimes of robbery and assault. It appears, however, he is challenging the sufficiency of evidence to support the findings he committed the two assaults.
His argument references counts “Two” and “Three,” which are the assault charges.
“‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence–such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’ [Citations.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) “This standard applies to cases based on circumstantial evidence. [Citation.] The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.] The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
“‘Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.] “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” [Citation.] [Citations.]” (People v. Figueroa(1992) 2 Cal.App.4th 1584, 1587.)
A person who aids and abets the commission of an offense is liable as a principal in the crime. (Pen. Code, § 31.) “[A] person aids and abets the commission of a crime when he or she, 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.” (People v. Beeman (1984) 35 Cal.3d 547, 561; accord, People v. Williams (2008) 43 Cal.4th 584, 637.) “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. 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. [Footnotes omitted.]” (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) “The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages. [Citation.]” (People v. Beeman, supra, 35 Cal.3d at p. 560.)
Viewing the evidence in the light most favorable to the order, the evidence establishes that appellant and his companion robbed Gonzalez, one of the robbers using a gun and the other a knife (count 1). After the robbery, one of the individuals fired shots in the direction of Gonzalez and Saavedra, amounting to an assault with a firearm against both victims (counts 2 and 3). (See People v. Raviart (2001) 93 Cal.App.4th 258, 263-264.) Appellant and his companion committed the crimes together and aided and encouraged each other. (See People v. Prettyman (1996) 14 Cal.4th 248, 261.)
Contrary to appellant’s claim, evidence that the victims were shot at after the robbery was not stricken. Only Officer Blanco’s testimony regarding the identity of the shooter was stricken.
II
Appellant argues that if this court does not dismiss count 3, that count must be stayed since the assault occurred as part of the robbery. “[Penal Code section] 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the ‘intent and objective’ of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
“The section 654 proscription against multiple punishment does not apply to violations arising from an indivisible course of conduct, if during the course of that conduct the defendant committed crimes of violence against different victims. [Citations.] ‘The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’ [Citation.]” (People v. Masters (1987) 195 Cal.App.3d 1124, 1127-1128.) Count 3 was a crime of violence against Saavedra, a different victim from the victim of the robbery count, and Penal Code section 654 has no application.
III
On January 15, 2008, we sent a letter to the parties pursuant to Government Code section 68081, asking them to submit letter briefs addressing whether the court erred in calculating appellant’s maximum term of confinement by including a gun use enhancement pursuant to Penal Code section 12022.53, subdivision (e)(1) and a gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1). We pointed out that Penal Code section 12022.53, subdivision (e)(2) provides: “An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” Here both parties agree it was not established that appellant was the individual who personally used or discharged the firearm. The gang enhancement, therefore, should not have been considered in calculating the maximum period of confinement. (See People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853.)
Contrary to respondent’s claim, the statute was not amended. The initiative measure (Proposition 6) was not approved in the November 4, 2008, election.
IV
We additionally asked the parties to address whether the court erred in calculating appellant’s maximum term of confinement by including a gun enhancement pursuant to Penal Code section 12022.53, subdivision (b) and (e)(1) for the “(midrange) of 4 years” when that statute provides for a 10-year enhancement. Penal Code section 12022.53, subdivision (b) provides the sole sentence for using a firearm during a qualifying offense is 10 years. Contrary to appellant’s argument, the issue is not “moot” since under Penal Code section 12022.53, subdivision (e)(2), appellant’s maximum term of confinement is subject to the gun enhancement but not the gang enhancement. (People v. Sinclair, supra, 166 Cal.App.4th 848, 852-853.)
DISPOSITION
Appellant’s maximum term of confinement is corrected to reflect a term of 17 years computed as follows: Count 1 is the base term of five years, plus ten years for the gun enhancement. Count 2 is one-third the middle term or one year, as is count 3. In all other respects, the order of wardship is affirmed.
We concur: WILLHITE, J., MANELLA, J.