In re J.D. CA4/2

• Court: California Court of Appeal
• Decided: June 12, 2014
• Docket: E058923
• Status: Unpublished

Opinion

Filed 6/12/14 In re J.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.D., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E058923 Plaintiff and Respondent, (Super.Ct.No. J247710) v. OPINION J.D.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Barbara A.

Buchholz, Judge. Affirmed.

Steven A. Brody, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and

Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

1 In this appeal, J.D. (minor) contends the People did not introduce substantial

evidence that he committed attempted robberies, and that the juvenile court erred by

declaring him a ward and placing him on probation. We conclude the record contains

substantial evidence from which the juvenile court could reasonably have concluded that

minor actually participated in the attempted robberies or aided and abetted other juveniles

who did and, therefore, we affirm.

FACTS

The People filed a petition in the juvenile court alleging minor is a person within

the meaning of Welfare and Institutions Code section 602 because he committed two

attempted robberies (Pen. Code, §§ 664, 211, counts 1-2), and because he committed

battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d), count 3).

C.Z. testified that after school on January 14, 2013, he and his friends S.L. and

D.S. walked from their high school to a nearby restaurant. On the way there, C.Z. saw “a

lot of kids” near the restaurant, but he and his friends ignored them. After getting their

food, they walked out of the restaurant and started to walk back to the school. On the

way back, as many as four juveniles approached them and asked them questions. C.Z.

identified minor as one of the juveniles who had approached him. Another person, whom

C.Z. identified as D.O., asked C.Z. “if [he] was from somewhere,” and asked if he had a

cellular phone or an iPod. When C.Z. answered “no,” someone hit him from behind, in

the right eye. He saw the person who hit him, but only “[b]y [a] blink of an eye.” C.Z.

and D.S. then ran away and C.Z. told S.L. to flee too. C.Z. ran to the school cafeteria and

called the police to tell them what had happened. When he returned to where he had been

2 hit, C.Z. saw a man helping S.L. up from the ground but the juveniles who had

approached them were gone. C.Z. testified he did not see S.L. being hit.

S.L. testified that he “got jumped” after school on January 14, 2013. While

walking to a restaurant with his friends, S.L. saw “a bunch of Black people” across the

street. Two Black juveniles and one Hispanic approached S.L. and his friends as they

walked back to the school. One of the juveniles asked S.L. if he was in a gang, and S.L.

told him that he and his friends were not gang members. S.L. tried to run down an alley

but he stumbled and was assaulted. S.L. testified he was surrounded by the three

juveniles who had approached him and also by another boy who had half blond hair. The

blond boy hit him and tried to take away his backpack. S.L. identified D.O. and minor as

being with the blond boy, but testified that neither D.O. nor minor hit him. S.L. only

remembered the blond boy hitting him. D.O. asked S.L. for his “stuff,” but minor did not

try to take his property. With respect to minor, S.L. testified “[h]e didn’t do nothing to

me. I just saw him.” A man then intervened, and the juveniles who had approached S.L.

fled. Although S.L. specifically identified D.O., minor, and the blond boy, he testified

that the group who had approached him had “way more” people in it.

An officer with the San Bernardino Unified School District Police Department

testified that she investigated the incident. The officer interviewed S.L. at the hospital.

S.L. told the officer that on the way to the restaurant, S.L. saw a large group of male and

female juveniles, and that on the way back to school he and his friends were approached

by two Black male juveniles and one Hispanic or light-skinned Black male juvenile. S.L.

told the officer that a fourth male stood further back and that the group as a whole had

3 more than five but less than 10 juveniles in total. The officer also interviewed C.Z., who

told her that on the way to the restaurant, he saw a large group of Black male and female

juveniles but the group was gone when he walked out of the restaurant. On the way back

to school, C.Z. saw three Black juveniles in front of him and a fourth somewhat further

behind the other three.

The officer testified that, based on her interviews with S.L. and C.Z., she prepared

photographic lineups and included three suspects who she thought might be involved and

who matched the descriptions given to her by S.L. and C.Z. The first suspect was D.O.

She regularly saw D.O. in the area of the school and had asked him to leave the area

because he was not a student. The second suspect was T.W., who the officer saw every

day after school with D.O. and because he had a “blond streak” in his hair. The third and

final suspect was minor because she saw him earlier in the day on January 14, 2013, with

D.O. and T.W in the same area where the incident had occurred. The officer showed the

photographic lineups to C.Z., who identified D.O., minor, and T.W. as the three juveniles

who were involved in the incident. The officer testified that C.Z. identified D.O. as the

person who had asked him and his friends where they were from, if they had cellular

phones or iPods, and as the person he saw hitting S.L. The officer also testified that C.Z.

told her he saw S.L. being “assaulted by the subjects,” meaning the three people he had

identified in the photographic lineups. The officer also showed the photographic lineups

to S.L., who identified D.O., minor, and T.W. as the juveniles who approached him and

his friends.

4 On redirect, C.Z. testified that he recognized minor as a classmate. He also

testified that, contrary to the officer’s testimony, he did not see S.L. being kicked or hit

when he returned to the scene after calling the police.

The officer testified on redirect that during her interview with C.Z., he gave a

factual and confident statement, and that C.Z. told her that he saw the three juveniles

kicking and hitting S.L. She also testified that C.Z. told her there were four other Black

juveniles present besides the three who kicked and hit S.L.

A classmate and longtime friend of minor testified that she and minor rode the

same city bus home from school, which leaves the school area around 3:17 p.m. and

arrives near their homes around 3:30 p.m. She also testified that on January 14, 2013,

minor boarded the bus as usual and that the two of them walked to minor’s home after

they exited the bus.

Minor’s mother testified that on January 14, 2013, she arrived home around

3:35 p.m., and minor was there.

The juvenile court found the People proved beyond a reasonable doubt that minor

committed two counts of attempted robbery, but found the People did not prove battery

resulting in serious bodily injury. The juvenile court declared minor a ward of the court

and placed him in the custody of his mother, subject to terms and conditions of probation.

Minor timely appealed.

5 DISCUSSION

“‘The standard of proof in juvenile proceedings involving criminal acts is the same

as the standard in adult criminal trials.’ [Citation.] Thus, ‘we must apply the same

standard of review applicable to any claim by a criminal defendant challenging the

sufficiency of the evidence to support a judgment of conviction on appeal. Under this

standard, the critical inquiry is “whether, after reviewing 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.” [Citation.] An appellate court “must

review the whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence—that is, evidence which is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.” [Citations.] [¶] In reviewing the evidence adduced at trial,

our perspective must favor the judgment. [Citations.] “This court must view the

evidence in a light most favorable to respondent and presume in support of the judgment

the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is

not warranted merely because the circumstances might also be reasonably reconciled

with a contrary finding. [Citations.] The test on appeal is whether there is substantial

evidence to support the conclusion of the trier of fact; it is not whether guilt is established

beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be

set aside for insufficiency of the evidence . . . , it must clearly appear that upon no

6 hypothesis whatever is there sufficient substantial evidence to support it. [Citations.]”’

[Citation.]” (In re Cesar V. (2011) 192 Cal.App.4th 989, 994-995.)

“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.)” (People v. Watkins (2012) 55 Cal.4th 999, 1018.) “An

attempted robbery requires a specific intent to commit robbery and a direct, ineffectual

act (beyond mere preparation) toward its commission. [Citations.] Under general

attempt principles, commission of an element of the crime is not necessary. [Citation.]

As such, neither a completed theft [citation] nor a completed assault [citation], is required

for attempted robbery. [Citation.]” (People v. Medina (2007) 41 Cal.4th 685, 694-695.)

Minor contends there is no evidence that he did anything to the victims, and that at

most the evidence shows he was present while other people assaulted and tried to steal

from them. He points to C.Z.’s testimony that it was D.O. who asked him about gang

affiliations, cellular phones or iPods; that C.Z. did not identify minor as the person who

hit him; and that C.Z. testified he did not see anyone hit or kick S.L. Minor also relies

heavily on S.L.’s testimony that “[minor] didn’t do nothing to me. I just saw [minor],”

and that it was the blond boy who hit S.L. But, as the People contend, minor ignores the

officer’s testimony that C.Z. told her that when he returned to the scene of the assault

after calling the police, he saw the three “subjects,” i.e., minor, D.O., and T.W., hitting

and kicking S.L. Minor responds that the officer’s testimony is “opaque” and does not

clearly show C.Z. identified minor as one of the juveniles who had hit S.L. We disagree.

7 The officer testified that, based on what she had learned from C.Z. and S.L., she

assembled photographic lineups that included minor, D.O., and T.W. When the officer

showed the lineups to S.L. and C.Z., they both identified minor, D.O., and T.W. as

having approached them on January 14, 2013. When asked if C.Z. said anything about

minor’s behavior, the officer testified that C.Z. “picked out [minor] as being present.”

The prosecutor asked the officer if C.Z. “was able to identify whether certain people that

he identified in the photographs were involved in certain aspects” of the incident. The

officer testified that C.Z. told her, “when he returned to the scene . . . [S.L.] was there . . .

being assaulted by the subjects.” Any ambiguity in the statement “the subjects” was

immediately cleared up when the officer answered, “yes” to the question, “[W]ere these

the subjects that [C.Z.] identified in the photographic lineup?” i.e., minor, D.O., and T.W.

This was a close case, but we must view the record in the light most favorable to the

judgment. (In re Cesar V., supra, 192 Cal.App.4th at pp. 994-995.) The juvenile court

could reasonably have concluded that the officer’s testimony about her interview with

C.Z. was more credible than C.Z.’s denial that he saw anyone hit or kick S.L. and,

further, could have reasonably concluded that minor actually participated in the assault

and attempted robberies.

Moreover, the record contains substantial evidence from which the juvenile court

could have reasonably concluded that minor aided and abetted other people in the

attempted robberies. A juvenile adjudication on an aiding and abetting theory requires

“proof that an aider and abettor act[ed] with knowledge of the criminal purpose of the

perpetrator and with an intent or purpose either of committing, or of encouraging or

8 facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)

“Factors to be considered by the trier of fact in determining ‘whether one is an aider and

abettor include presence at the scene of the crime, failure to take steps to attempt to

prevent the commission of the crime, companionship, flight, and conduct before and after

the crime.’” (People v. Garcia (2008) 168 Cal.App.4th 261, 273.) To be liable as an

aider and abettor, minor must have instigated or advised the commission of the crime or

have been present for the purpose of assisting in the crime’s commission. (People v.

Durham (1969) 70 Cal.2d 171, 181.) He “‘must share the criminal intent with which the

crime was committed.’” (Ibid.) Mere presence at the scene of a crime is not sufficient to

constitute aiding and abetting, nor is the failure to take action to prevent a crime. (Ibid.)

“‘Whether [minor] 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 (1994) 25 Cal.App.4th 402, 409.)

C.Z. and S.L. testified that they saw a large group of juveniles congregated near

the restaurant. Both C.Z. and S.L. identified minor as being part of the small group of

between three and five juveniles who approached them as they walked back to school

from the restaurant. S.L. testified that when a man intervened, the juveniles who were

beating him left the scene. C.Z. testified that, after running to call the police, he returned

to the scene and the juveniles were gone. As stated, this was a close case. But from this

testimony, the juvenile court could have reasonably concluded that minor left a larger

group and, with three or four others, approached the victims. Even if minor said and did

nothing to the victims, the juvenile court could have reasonably concluded that minor

9 stood close by while his friends (1) asked the victims if they were part of a gang,

(2) asked the victims for their cellular phones or iPods, and (3) assaulted S.L. and tried to

take his backpack. Moreover, the juvenile court could have reasonably concluded that

when the man came to S.L.’s rescue, minor fled with his friends.

Courts have affirmed wardship adjudications for attempted robbery under similar

circumstances. In In re Lynette G. (1976) 54 Cal.App.3d 1087, a teenage girl hit the

victim over the head and stole the victim’s handbag. (Id. at p. 1090.) After being struck

in the head, the victim saw three other girls standing huddled together five feet away and

then saw all four girls run away together. (Id. at p. 1091.) On appeal, the appellate court

held that the People had introduced substantial evidence that the minor aided and abetted

in the robbery. “Testimony by witnesses at the trial disclosed that [the minor] was

present at the scene of the crime and had fled with the perpetrator and two others after the

crime had been committed and was still in their company shortly thereafter. Although

flight, in and of itself, may be explained by a desire merely to disassociate oneself from

an unexpected criminal activity, the trial court was not required to adopt that view; it

could, reasonably, have concluded that had [minor’s] flight been from fear of an

unjustified charge of involvement, she also would have immediately disassociated herself

from the other three girls.” (Id. at p. 1095.)

Likewise, in In re Juan G. (2003) 112 Cal.App.4th 1, the minor stood next to

another boy as that boy robbed the victim at knifepoint. (Id. at p. 3.) The two boys fled

and later were found together by the police. (Id. at p. 4.) The minor in that case testified

he did not know his friend had a knife with him, and that he had nothing to do with the

10 robbery. (Ibid.) The appellate court concluded the minor’s presence with his knife-

wielding friend during the robbery and during his escape constituted substantial evidence

of aiding and abetting in the robbery. (Id. at pp. 5-6.)

Minor argues that, contrary to In re Lynette G. and In re Juan G., there is no

evidence that he fled the scene or that he left with the other juveniles. But the juvenile

court could reasonably have concluded that minor did not merely stroll away when the

man showed up, and even if minor fled alone, the evidence of companionship with the

assailants is substantial. Therefore, we must affirm the judgment. (In re Cesar V., supra,

192 Cal.App.4th at pp. 994-995.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.

We concur:

HOLLENHORST Acting P. J.

CODRINGTON J.