Opinion
F040057.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN JONES, Defendant and Appellant.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Steven Jones of two counts of second degree robbery (Pen. Code, § 211), as well as finding true the allegation that in committing these offenses appellant was vicariously armed with a firearm (& sect; 12022, subd. (a)(1)). The court sentenced appellant to seven years in prison. On appeal, appellant contends that his conviction was not supported by sufficient evidence; the prosecutors remarks on closing argument constituted misconduct; and the court abused its discretion in refusing appellants request for a mental health examination prior to sentencing.
Unless indicated otherwise, subsequent statutory references are to the Penal Code.
FACTUAL HISTORY
While 16-year-old Santos Rivas, Jr., and 17-year-old Johnathon Ripoyla were walking to the store, they were approached by appellant and a juvenile friend of his. Walking over to their location with appellant, the minor asked, "Why are you — why are you dogging me like that?" Rivas took this to mean making "bad eye contact." The boys denied staring at appellant or the minor and continued on their way, having "just kind of . . . brushed him off." The minor told the boys to wait, saying that he had "just got out of the pen" and was not afraid to "pop somebody." The minor stepped in front of Rivas, preventing him from continuing. Saying "holdup, holdup," the minor pulled back his jacket, revealing what appeared to be a handgun tucked into his waistband. The minor asked Rivas what Rivas had in his pocket and told him "give me your money." Appellant spoke up, saying, "This guy is stupid. He dont know what hes doing. Hes got a gun. If you dont give him what he wants hes going to shoot you." The minor took $ 5.75 from Rivass pocket and from Ripoyla he took earrings and $ 25. Throughout the robbery, appellant was "looking out" and "standing by." After obtaining the boys valuables, appellant and the minor ran into an apartment complex.
Although the friends name appears in the record, remarks by counsel and witnesses could be read to imply that the friend was a juvenile. Therefore, the friend will be referred to as "the minor."
DISCUSSION
I. Sufficient evidence supported appellants conviction
Appellant contends that the evidence showed nothing more than his mere presence and thus was insufficient to support his conviction. We do not agree.
We review claims of insufficient evidence by evaluating the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value from which a rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Price (1991) 1 Cal.4th 324, 462, 821 P.2d 610.) All reasonable inferences must be drawn in support of the true finding or judgment. (See People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.) An appellate court may not reverse a conviction on the ground of insufficient evidence unless it clearly appears "that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321.) The question asked by the reviewing court is whether "any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt." (People v. Rowland (1992) 4 Cal.4th 238, 271, 841 P.2d 897.)
It is true that mere presence at the scene of the crime and failure to take steps to prevent the crime do not establish liability for aiding and abetting. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161.) "To establish criminal liability on an aiding and abetting theory, the defendant must have acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.]" (Ibid.)
Appellant attempts to portray the robbery as a chance encounter in which he was a hapless bystander to his friends actions. However, the record contains evidence that contradicts this scenario. Both victims testified that the two men "approached" them. The fact that the two men went out of their way to encounter the victims is inherent in the following exchange elicited by defense counsel:
"Q: Okay. [The minor] and [appellant] are walking out to the direction that you and Mr. Ripoyla were walking?
"A: Right. They were coming this way and we were going that way (indicating).
"Q: The opposite direction.
"A: Yeah."
Both victims described appellant as acting as a "lookout," a reasonable characterization given that appellant was looking in all directions: "He is looking down. Hes looking around like that (Indicating). Hes just looking. And he was doing the same thing over and over." Appellant told the victims, "Hes got a gun. If you dont give him what he wants hes going to shoot you." Then after obtaining the victims money and jewelry, appellant ran off with the minor. Taken together, these circumstances give rise to a reasonable inference that appellant and the minor acted in concert, with appellants words and actions increasing the threat to the victims and facilitating the robbery.
Sufficient evidence supported the conviction.
II. The prosecutors remarks did not prejudice appellant
During argument, the prosecutor stated that appellant and the minor were walking on the other side of the street and crossed over to approach the victims. When defense counsel objected that this misstated the evidence, the court instructed that "the jury will be governed by their recollection of the evidence and the Courts instructions on the law." Appellant contends, correctly, that there was no evidence of crossing the street and the statement made it seem that the encounter was intentional, which bolstered the otherwise weak evidence against him.
""When the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."" (People v. Ayala (2000) 23 Cal.4th 225, 284.)
While there may have been no evidence that the men crossed the street, there was evidence that they went out of their way to approach the victims. Any overstatement by the prosecutor was slight. Appellant does not explain, nor can we, why the courts instruction was not adequate to cure this rather minor error. We do not think it reasonably likely that the remark influenced the outcome of this case.
Finally, appellant contends the prosecutor committed misconduct by expressing her personal belief in his guilt when she stated, "We dont want to punish innocent people." However, appellant failed to object to this supposed violation at trial and fails now to show why an objection would have been futile. (People v. Pitts (1990) 223 Cal. App. 3d 606, 691-692, 273 Cal. Rptr. 757.) Appellant has thus waived the issue for appeal.
III. Appellant has waived any argument under section 1203.03
Appellant argues that the court abused its discretion in refusing his request at sentencing for a mental health examination. Appellant acknowledges that he asked for a "460 exam," which he says appears to be a reference to Evidence Code section 460. Appellant also acknowledges that this section is not the appropriate means to obtain a post-trial evaluation for sentencing purposes. However, appellant contends, because section 1203.03 would be the proper statute under which to request such an evaluation, he asks that his request be considered a request for a section 1203.03 evaluation.
Appellant cannot complain that the court did not do that which he did not request. (People v. Sanders (1995) 11 Cal.4th 475, 531, 905 P.2d 420 [one of the purposes of the waiver doctrine is to prevent unfairness to the trial judge].) Appellant has waived any claim under section 1203.03.
DISPOSITION
WE CONCUR: Dibiaso, Acting P.J., and Levy, J.