Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36832.
RUSHING, P.J.
I. Statement of the Case
On May 11, 2010, the Santa Clara County District Attorney filed an amended petition under Welfare and Institutions Code section 602, alleging that R.R., a minor, had committed 10 offenses: four felony assaults, two with enhancements for using a deadly weapon; and two with enhancements for inflicting great bodily injury; second degree robbery; attempting to dissuade a witness; making two criminal threats; trespassing; and resisting a peace officer. (Pen. Code, §§ 245, subd. (a)(1); 211, 136.1, subd. (b)(1), 422, 602, subd. (o), 148, subd. (a)(1).)
All further unspecified statutory references are to the Penal Code.
On May 21, 2010, after a contested jurisdictional hearing, the court found that the minor committed the four assaults, one with the enhancement for great bodily injury; made one criminal threat; trespassed; and resisted an officer.
On June 9, 2010, the court declared the minor a ward of the court and placed him on probation with conditions, one of which prohibited him from using or possessing graffiti-related material and another that required electronic monitoring under the Alternative Placement Academy.
On appeal from the jurisdiction and disposition orders, the minor claims the court erred in finding true two of the assaults and the enhancement for inflicting great bodily injury. He also claims the anti-graffiti condition is unconstitutionally vague and overbroad.
We modify the jurisdiction order by striking the enhancement under section 12022.7 for inflicting great bodily injury. We modify the graffiti-related probation condition in the disposition order. As modified, we affirm those orders.
II. Facts
The minor committed the offenses during the course of a melee at the Vallco Shopping Center in Cupertino between security guards and several youths, including the minor, K.R (the minor’s brother), Johnny, Devon, and Desmond.
In December 2009, the minor was banned from the mall for causing a disturbance. On February 18, 2010, Shawn Johnson, a security guard, saw the minor and his friends at the Froyo frozen yogurt shop. He told them to leave, and the minor said, “Fuck you” a couple of times as his group walked down some stairs toward the exit. Johnson followed to make sure they left without causing damage.
At the bottom of the stairs, the minor said, “Fuck you. I’ll kill you. I’ll kill your whole family” and raised a clenched fist. Johnson, who was holding a radio, thought he was going to be hit and defensively raised his hand. As he did, his radio hit the minor’s mouth. The minor said, “you can’t do that” and attacked Johnson with his fists. Johnson stepped back and swung at the minor. At that point, Johnson slipped and fell, and several youths started punching and kicking him in the head until he lost consciousness.
Paul Le, a former security guard who happened to be there, saw the initial interaction between Johnson and the minor, followed them all as they headed toward the exit, and came to Johnson’s aid, grabbing the minor as he was about to join those who were attacking Johnson on the ground. Le and the minor struggled and fell to the ground. At that point, Johnny told Le to let go and pulled a knife. Le said he was holding but not hurting the minor, but the minor repeatedly said to Johnny, “[y]ou better do something.” Johnny approached holding the knife in front of him, and Le released the minor, who got up and ran. Devon, Desmond, and K.R immediately started punching Le.
Stas (Steve) Plotnikov, another security guard, heard a call for assistance and saw Johnson and the minor throwing punches at each other. When Johnson fell and several youths, including K.R, started hitting and kicking him, Plotnikov grabbed K.R. As he tried to handcuff him, they fell, and then other youths, including the minor, started kicking Plotnikov. The minor kicked him in the head. Plotnikov released K.R. and yelled for help.
Meanwhile another security guard, Jason Robinson, saw the melee, warned the youth to stop, tried to intervene, and then called the sheriff. Devon lunged at him, and Robinson dropped his phone. He then grabbed Devon and held him on the ground. When he saw Plotnikov being kicked, he released Devon and went to help Plotnikov. Devon grabbed Robinson’s radio and threw it at him. Plotnikov deflected it with his arm.
Robinson helped Plotnikov get up, and both went to help Le, who was being pummeled. Plotnikov tackled Desmond and put him in a sleeper hold, which rendered him unconscious. As he did this, Robinson protected him from the minor, who was trying to kick him. Johnson, who had regained consciousness, got up. Plotnikov was holding Desmond. K.R. threw some large rocks at Plotnikov and yelled for him to release Desmond. Johnson pushed K.R. in to make him stop. Although Plotnikov did not realize it, he was bleeding and had a long gash in the back of his head. Johnson was able to restrain Desmond and told Plotnikov to tend his wound.
Santa Clara County Deputy Sheriff Hugh Murphy arrived. He recognized the minor and ordered him to the ground. The minor refused, saying, “Fuck you, ” “Fuck that, dude. He hit me in my mouth.” Deputy Murphy ordered him down again, and when he refused, they scuffled before Deputy Murphy brought him down.
Santa Clara County Sheriff’s Department Detective Shawn Francis later interviewed Devon at school. He said that just before the melee started, the minor and Desmond said, “Let’s get him, handle this fool. Let’s get him.” Devon admitted throwing Robinson’s radio at him and taking Robinson’s phone, which he saw on the ground.
In addition to his head injuries, Plotnikov suffered a swollen jaw, bruised hand, and sore neck, for which he received treatment. Johnson experienced dizziness, headaches, nausea, and neck pain, for which he later sought medical attention. Le suffered bruising and swelling on his hand, forehead, and eyes. Robinson had a bruised arm and a cut on his wrist from deflecting the radio Devon had thrown at him. He also suffered head, chest, and lower back pain.
The Defense
The defense, in essence, was that Johnson approached the minor and his friends as they were leaving. They exchanged strong language, and then Johnson hit the minor in the mouth, which started the melee.
In addition, K.R. in admitted that he grabbed some rocks to throw, but he denied throwing them. He also denied hitting or kicking anyone except Johnson.
III. Sufficiency of the Evidence
The minor contends that there is insufficient evidence to support two felony assault findings based on the rocks that K.R. threw at Plotnikov and the radio that Devon threw at Robinson. He also contends there is insufficient evidence to support the enhancement for inflicting great bodily injury on Plotnikov.
Standard of Review
“Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, ‘ “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.” ’ [Citations.] ‘ “ ‘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.]” (In re George T. (2004) 33 Cal.4th 620, 630-631.)
Assaults against Plotnikov and Robinson
The minor notes that there is no evidence that he personally threw a rock at Plotnikov or the radio at Robinson; rather, the evidence reveals that K.R. threw the rocks and Devon threw the radio. Thus, the minor asserts that liability could rest only on the theory that he aided and abetted the assaults by K.R. and Devon and their use of rocks and the radio was a natural and probable consequence of their assaultive conduct. However, he argues that there is no evidence to support a finding that he could and should have anticipated that his initial fisticuffs with Johnson would escalate into a larger melee in which two of his cohorts would throw rocks and a radio. Accordingly, he claims the use of those objects was not a reasonably foreseeable consequence, and culpability for the assaults in which they were used cannot be attributed to him. We disagree.
A person is liable as an aider and abettor if he or she (1) with knowledge of the unlawful purpose of the actual perpetrator, (2) intends to assist, encourage, or facilitation that purpose, and (3) and actively does so. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) The aider and abettor is liable not only for the unlawful conduct he or she knowingly intended to assist “but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (Id. at p. 261.)
There was evidence that the minor and Johnson got into a physical fight. When Johnson slipped and fell, the situation escalated and some of the minor’s friends collectively started kicking and punching Johnson until he lost consciousness. There was evidence that the minor was about to join them when Le tackled him and held him down. There was evidence that the minor repeatedly asked Johnny, who was brandishing a knife, to do something to help him. At another point, the minor joined others kicking Plotnikov and personally kicked him in the head.
Section 245, subdivision (a)(1) is violated when a person commits “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” One can commit an assault by means of “force likely to produce great bodily injury” with one’s hands, fists, or feet, and kicking a man in the face and head can constitute a felonious assault. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Zankich (1961) 189 Cal.App.2d 54, 70; People v. McDaniel (2008) 159 Cal.App.4th 736, 749; People v. Roberts (1981) 114 Cal.App.3d 960, 965; People v. Horton (1963) 213 Cal.App.2d 185, 188.)
The evidence supports a finding that defendant knew and intended to aid, encourage, facilitate, and participate in the escalation of his initial encounter with Johnson into a full blown melee in general and the sub-assaults it comprised, including the group kicking assaults on defenseless victims on the ground. Moreover, given the evidence that the minor and his group were using force likely to cause great bodily injury on others—i.e., group punching and kicking of victims in the head and body—the juvenile court could find that a reasonable person would or should have known that further aggravated assaults by other means such as throwing hard objects at victims were reasonably foreseeable consequences of the minor’s assaultive conduct.
We reject the minor’s argument that he cannot be held liable for K.R.’s and Devon’s assaults on Plotnikov and Robinson because he did not know that K.R. and Devin intended to use rocks and a radio; and it was not reasonably foreseeable that they would use those objects. All of the participants, including the minor, were willing to back each other up and come to each other’s assistance by collectively beating and kicking defenseless victims on the ground. In our view, it is reasonably foreseeable that one or more of the minor’s friends would provide equally forceful back up and assistance by any means reasonably available, including throwing hard objects.
The minor’s reliance on People v. Butts (1965) 236 Cal.App.2d 817 (Butts) does not compel a contrary conclusion. That case involved Butts and Otwell, who left a diner together and then encountered five men, whom Butts had previously wanted to fight. Butts immediately charged two men and started fighting them. The remaining three looked at Otwell, and then they fought him. During that fight, Otwell pulled a knife and used it against all three, killing one of them. A jury convicted Butts of assaulting the two men he fought. Based on Otwell’s fight, the jury convicted Betts of involuntary manslaughter, as a lesser offense to murder, and conspiracy to commit an assault. (Id. at pp. 823-825.)
The reviewing court found insufficient evidence of a conspiracy to commit assault and reversed Butts’s convictions for conspiracy and involuntary manslaughter, the latter of which was expressly based on the conspiracy theory. (Butts, supra, 236 Cal.App.2d at pp. 829-832.) The court opined, however, that he might still be liable for involuntary manslaughter on the alternative theory that he aided and abetted Otwell’s assault with a knife, and the victim’s death was a natural consequence of the attack. (Id. at pp. 835-836.) However, the court found the evidence insufficient to support that theory.
The court explained, “Aside from speculation and suspicion, there is no evidence that Butts advised and encouraged use of a knife, that he had advance knowledge of Otwell’s wrongful purpose to use a knife or that he shared Otwell’s criminal intent to resort to a dangerous weapon. There is no evidence that Otwell pulled or displayed the knife at any time before Butts rushed at [his own adversary]. From that point onward, the intoxicated Butts was thoroughly absorbed in absorbing punches from his two opponents.” (Butts, supra, 236 Cal.App.2d at pp. 836-837.) Given the distance between the two groups of fighters, Butts could not have known what was happening in the Otwell fight. Under the circumstances, Butts knew at most only that Otwell was using his fists, and therefore, there was insufficient evidence that Butts aided and abetted Otwell’s homicide with a knife. (Id. at p. 837.)
Butts has been criticized, especially in gang cases, for suggesting that liability for a killing with a deadly weapon requires evidence that the aider and abettor knew his cohort intended to use a knife. (E.g., People v. Montes (1999) 74 Cal.App.4th 1050, 1055; People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.)
Unlike Butts, this case involved a general melee that erupted after an initial fist fight between the minor and Johnson. Although each participant in the melee may not have been aware of every individual thing that was going on, they all knew that a serious fight among numerous people at the same time in the same place was occurring. Moreover, at different points in the melee, several of the youths, including the minor, were helping others or acting in concert with them.
In contrast, Otwell did not get involved in a fight until after Butts had started his fight. The two fights ensued far from each other, and neither Butts nor Otwell directly participated in each other’s fight.
Moreover, in our view, the foreseeability of a fist fight leading to a fatal stabbing is far less than the foreseeability of a felonious assault by kicking and punching leading to felonious assaults by throwing convenient objects. And while a fatal stabbing may not be a natural probable consequence of a simple fist fight, at least between non-gang members, we consider an assault with a rock or a radio to be a reasonably foreseeable consequence of a general melee that already involved the use of force likely to produce great bodily injury, such as a group kicking.
In sum, we find that there was sufficient evidence from which the juvenile court could find the minor criminally liable for the felonious assaults against Plotnikov and Robinson.
Enhancement for Inflicting Great Bodily Injury
The enhancement related to the assault on Plotnikov. In finding the minor culpable for that assault, the court opined, “Not that this particular minor himself committed the assault, but... it was committed by a coparticipant.” Concerning the enhancement, the court stated, “With respect to the GBI allegation on the theory of accomplice action, the Court does not believe that the minor himself is responsible for the great bodily injury that the victim received, but on an accomplice theory, the Court finds the GBI allegation to be true.”
Section 12022.7, subdivision (a) authorizes additional punishment for “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony....” (Emphasis added.)
The minor asserts that the enhancement does not apply to aiders and abetters who do not personally inflict the great bodily injury themselves or apply physical force along with others, which in combination causes the great bodily injury. Thus, he claims the court’s findings that he did not personally commit the assault on Plotnikov that resulted in great bodily injury and that he was not personally responsible for Plotnikov’s injuries is “necessarily inconsistent with the requirement that a defendant have personally inflicted great bodily injury....” We agree.
In People v. Cole (1982) 31 Cal.3d 568, 572, the Supreme Court held that the phrase “personally inflicts” in section 12022.7 means what it says: “[T]he individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury.” In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), the Supreme Court explained how to apply section 12022.7 when the injury is inflicted in the course of a group beating. Modiri held that the defendant need not act alone to have personally caused a victim’s injuries. (Modiri, supra, 39 Cal.4th at p. 493.) A person may receive an enhanced sentence under section 12022.7 if the person “joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim’s injuries cannot be measured or ascertained.” (Modiri, supra, 39 Cal.4th at p. 495, italics added.) The personal-infliction finding can be made “if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others.” (Id. at p. 497.)
“Although the issue in Modiri involved personally inflicting great bodily injury under section 1192.7, subdivision (c)(8), the court in Modiri applied its holding equally to the personal infliction requirement under section 12022.7. (People v. Modiri, supra, 39 Cal.4th at pp. 495-496 [‘participation in a group attack may satisfy sections 1192.7[, subd.] (c)(8) and 12022.7[, subd.] (a) where the defendant personally uses force against the victim, and the precise injurious effect is unclear’].)” (People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1417, fn. 2.)
Although the Attorney General argues that under Modiri, the court could have imposed the enhancement based on the theory that the minor personally participated in a group assault on Plotnikov that resulted in great bodily injury, the court’s specific findings that defendant did not personally commit the assault and did not personally inflict great bodily injury reveal that the court did not rely on that factual theory.
Under the circumstances, the court’s findings eliminate any viable factual basis for imposing the enhancement.
IV. Graffiti Probation Condition
The minor challenges the probation condition that he “not use or possess any graffiti-related materials or engage in any illegal graffiti-related activity.” He claims that unlike the other conditions, this prohibition “does not contain a requirement that he know that he is in possession of graffiti-related materials before a probation violation could be found.” He notes that if, for example, he were carrying a backpack into which someone had put a can of spray paint without his knowledge, he could be found in violation of the condition. Citing In re Sheena K. (2007) 40 Cal.4th 875, he argues that without an express knowledge requirement, the condition is unconstitutionally vague and overbroad.
The Attorney General concedes that the condition should be modified to include an express knowledge requirement. We agree and modify the probation condition accordingly.
V. Disposition
We modify the jurisdiction order by striking the enhancement under section 12022.7 for inflicting great bodily injury. We modify the graffiti-related probation condition in the disposition order to read as follows: “The minor shall not knowingly use or possess any graffiti-related materials or engage in any illegal graffiti-related activity.” As modified, we affirm those orders.
WE CONCUR: PREMO, J., ELIA, J.