Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF109024, J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of two counts of robbery (Pen. Code, § 211) (counts 1 and 2), one count of kidnapping during the commission of a carjacking (§ 209.5) (count 3), and one count of carjacking (§ 215, subd. (a)) (count 4). As to each count, the jury found true that another principal was armed with a firearm. (§ 12022, subd. (a)(1).) Defendant was sentenced to a total term of life plus five years in state prison as follows: life with the possibility of parole on count three, plus one year for the firearm enhancement; a consecutive three-year term on count 1, plus a consecutive one-year term for the firearm enhancement; sentence on the remaining counts were stayed pursuant to section 654. On appeal, defendant contends (1) there was insufficient evidence to support the jury’s finding that the robbery in count 1 was committed under an aiding and abetting theory; and (2) the carjacking conviction in count 4 should be reversed because it is a necessarily included offense of count 3. We agree with the parties that count 4 should be reversed but reject defendant’s remaining contention.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
A. Robbery of Blythe Truck Stop (Count 1)
On October 22, 2002, about 1:00 a.m., Jose Galvan was working at a truck stop convenience store in Blythe, California when he looked up and saw a Black male pointing a sawed off shotgun at him. Galvan later identified this man as Sedrick Wright. Another Black male entered the store with Wright. Galvan was unable to identify this second man in a photographic lineup, but other evidence showed that he was Durrell Brown. Wright threatened to shoot Galvan if Galvan did not give him all the money. Galvan pulled out the cash box and put it on the counter, and Wright grabbed all the bills.
After Wright grabbed the money, he told Brown to go pump gas. Brown went outside and pumped the gas at a gas pump where the grey car was located. The grey car was the only car at the gas station, and Galvan could see the car through the store’s glass window. From inside the store, Galvan could not see anyone inside the car and did not see anyone standing beside it. Brown returned to the store, took some items, and told Wright that they needed to leave. Brown and Wright continued to grab items from the store as they ran out. Galvan never saw a third person.
Later on October 22, 2002, Wright, Brown, and defendant went to Wright’s cousin’s house in Rubidoux. At the Rubidoux residence, defendant took Wright’s cousin, Dimitris Cravatt, aside and showed him a sawed-off shotgun located in some bushes across the street near another home. Defendant said that “they had recently robbed somebody with it” in Blythe.
Around November 1, 2002, Sergeant Kevin Stanton of the Riverside Police Department interviewed Cravatt. Cravatt told the sergeant that defendant had told him they had used a shotgun in a robbery in Blythe and that defendant had shown him the shotgun.
Sergeant Kent Krisell of the Riverside County Sheriff’s Department interviewed defendant on November 15, 2002, at the Blythe police station. Defendant was generally uncooperative and evasive during the interview. He initially denied being at the truck stop in Blythe on October 22, 2002. However, when Sergeant Krisell told defendant that he had talked to Wright and Wright’s cousin and knew that the three of them were there with a gun, defendant responded, “Being there not knowing -- all right, put it like this. What if I didn’t know until it came out?” Defendant then asked what Wright had said and wanted to see the evidence. Defendant acknowledged that he was sitting in the front seat of the car when the robbery in Blythe was going on, but he did not know that a robbery had been committed until Wright ran out of the store with a shotgun.
A videotape of the interview was played for the jury and was admitted into evidence as exhibit No. 32. A transcript of the videotape is included in the clerk’s transcript.
Defendant also told Sergeant Krisell that before the robbery, he and Brown met up with Wright, and all three got into a car. Defendant knew that Brown had a gun before they got to the truck stop. Defendant further stated that Wright drove the car to the truck stop, defendant was in the front seat, and Brown was in the back. When they got to the truck stop, Brown and Wright got out of the car; later Wright came out of the store with a shotgun, and they drove off. Defendant acknowledged that during this incident, someone pumped gas for their car, but it was not him, and he would not tell the sergeant who it was. Defendant further informed Sergeant Krisell that they then went to Wright’s house near Riverside. Defendant denied showing the gun to Cravatt. At the end of the interview, it appears as though defendant acknowledged that he knew the robbery at the truck stop was going to occur.
B. Counts 2, 3, and 4
On the evening of October 22, 2002, Javier Garcia, a cab driver in Riverside, received a call to go to a residence in Rubidoux. When he arrived at the residence, he picked up Brown, Wright, and defendant. Cravatt called the cab because Wright said they wanted the cab to take them to the downtown Riverside bus station so they could take a bus to Los Angeles. Brown got into the front passenger seat, and the other two sat in the back. Garcia drove towards downtown Riverside to the 91 Freeway. Both passengers in the back seat were telling Garcia where to go.
After Garcia got onto the 91 Freeway, Brown pulled a small rifle-type gun from under his hooded sweat shirt and pressed the barrels of the gun against Garcia’s side. Wright and defendant were telling Brown what they were going to do. Garcia was told to get off the freeway at Central Avenue and then was told to pull into a parking lot. There was no one else in the parking lot. Brown asked for money, and Garcia gave him $50. Brown ordered Garcia out of the vehicle and told him to turn off the engine, leave the keys in the ignition, and get out of the car. Brown got out of the car with Garcia. Both Wright and defendant were repeatedly saying, “[K]ill him.”
Defendant took the keys out of the ignition and opened the trunk. Brown then ordered Garcia into the trunk. Wright and defendant got back into the car, and Garcia believed that Wright got behind the driver’s seat. The vehicle was thereafter driven for some time and then stopped. When the car stopped, Garcia heard the doors open, heard voices, and then heard running feet. It became quiet for a while, and Garcia used the jack to force the trunk open. He drove the cab to the vicinity of the Riverside County Courthouse and called the police.
Garcia became physically ill from the incident, vomiting for several days and ending up in the intensive care unit suffering from a possible heart attack. In a photographic spread shown to him at the hospital, Garcia identified Brown as the person in the front passenger seat.
Elizabeth Gago was living in Rubidoux on October 22 with Cravatt and other members of her family. That night, around 11:00 p.m., Gago got a call from Wright to pick him up, along with Brown and defendant, because they had missed their bus. Gago picked them up near the downtown Riverside bus station. All of them appeared normal; no one was upset. Defendant was not crying or sad and did not seem nervous or scared when Gago picked them up. Defendant later told Cravatt that they had robbed a taxi cab driver with the shotgun and had driven around awhile with the cab driver in the trunk.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his conviction of the Blythe robbery (count 1) under an aiding and abetting theory. We disagree.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . .” (Young, at p. 1181.)
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “‘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.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 851; see also People v. Laster (1997) 52 Cal.App.4th 1450, 1462.)
“‘All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.’ [Citation.] Accordingly, an aider and abettor ‘shares the guilt of the actual perpetrator.’ [Citation.] The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must ‘act 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.] The jury must find ‘the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .’ [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.)
“[P]resence at the scene of the crime, while insufficient of itself to make one an aider and abettor, is one factor which tends to show intent. Other factors which may be considered include the defendant’s failure to take steps to prevent the commission of the crime, companionship, and conduct before and after the crime. [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d 606, 893.) “For purposes of determining aider and abettor liability, the commission of a robbery continues until all acts constituting the offense have ceased.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164, fn. omitted.) Liability for aiding and abetting a robbery continues until the robbers have reached a place of temporary safety. (Id. at pp. 1169-1170.)
Here, there was substantial evidence from which a rational trier of fact could have found that defendant aided and abetted in the Blythe robbery. First, the People presented substantial evidence to demonstrate that the two men robbed the convenience store located at the truck stop in Blythe. Indeed, defendant does not dispute this fact. Rather, he contends the People’s evidence showed that he was “simply sitting in the front passenger seat of the car when Wright, with Brown’s assistance, committed this robbery.” However, there was substantial circumstantial evidence to support the jury’s verdict. Defendant essentially acknowledged to Sergeant Krisell that he knew the robbery was going to take place at the truck stop in Blythe. He also acknowledged that he knew his companion(s) had a shotgun. In addition, defendant showed the shotgun used in the commission of the crime to Wright’s cousin after the robbery and told him after the robbery that “they had brought it [shotgun] down, that they had recently robbed somebody with it.” We reject defendant’s suggestion that the use of “they” meant that defendant was referring to Wright and Brown being involved in the robbery, and not him. Furthermore, defendant’s conduct after the Blythe robbery -- participating in the robbery and carjacking of the cab driver within 24 hours of the Blythe robbery -- also supports the Blythe robbery conviction. Defendant was an active participant in the cab robbery along with Wright and Brown. In fact, in that robbery, defendant told Brown what to do and repeatedly yelled for Brown to kill the victim.
From the above evidence, a rational trier of fact could reasonably conclude that defendant aided and abetted in the Blythe robbery by acting as a lookout rather than simply sitting in the car as defendant suggests, and that defendant shared the two suspects’ specific intent to rob the store. The jury could have believed that defendant knew of the suspects’ purpose to commit the offense and their intent to rob the store based on the evidence adduced at trial. For these same reasons, the jury also could have determined that defendant intended to facilitate the suspects’ unlawful act and that defendant aided and encouraged that act. It was reasonable for the jury, after hearing all of the evidence, to find that defendant participated in the robbery.
Although defendant is correct that neither presence at the scene nor the failure to prevent the crime, standing alone, is sufficient to establish aiding and abetting (People v. Campbell (1994) 25 Cal.App.4th 402, 409), presence at the scene, as well as companionship and conduct before and after the offense are factors that may be considered in determining whether a defendant aided and abetted in the commission of a crime. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) “In addition, flight is one of the factors which is relevant in determining consciousness of guilt.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095.)
Accordingly, viewing the evidence most favorably to the People, we conclude that there is substantial evidence to support the jury’s verdict.
B. Carjacking Conviction
Defendant next contends, and the People concede, that the carjacking conviction (count 4) should be reversed because it is a necessarily included offense of kidnapping in the commission of a carjacking (count 3). We agree; therefore, defendant’s conviction on count 4 must be reversed. (People v. Medina (2007) 41 Cal.4th 685, 700-703; see People v. Pearson (1986) 42 Cal.3d 351, 355; People v. Ortiz (2002) 101 Cal.App.4th 410, 415; People v. Contreras (1997) 55 Cal.App.4th 760, 763-765.)
III
DISPOSITION
Defendant’s conviction for carjacking (count 4) is reversed and the charge is dismissed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: RAMIREZ, P.J., McKINSTER, J.