Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 70843
NEEDHAM, J.
Appellant Samuel M. contends there was insufficient evidence to support the juvenile court’s findings that appellant had perpetrated an assault and an attempted robbery. (Pen. Code, §§ 212.5, subd. (c), 664, 245, subd. (a)(1).) We find substantial evidence supports these findings, and affirm.
I. FACTS AND PROCEDURAL HISTORY
The juvenile court’s findings arise from an incident in which a victim, Cameron C., was beaten by a group of youths, and one of the youths attempted to take the victim’s wallet. Appellant, who was 17 years old at the time of the alleged offenses, testified that he was present at the scene of the crimes, but he denied participating in the group assault or the attempted robbery, and contended he was simply trying to rescue the victim.
A juvenile wardship petition was filed on April 14, 2006, under the provisions of Welfare and Institutions Code section 602, subdivision (a), alleging that on April 8, 2006, appellant had committed four offenses: (1) attempted robbery, a felony (Pen. Code, §§ 212.5, subd. (c), 664); (2) assault by means of force likely to cause great bodily injury, a felony (Pen. Code, § 245, subd. (a)(1)); (3) conspiracy to commit robbery, a felony (Pen. Code, §§ 182, 212.5); and (4) the unlawful wearing of a disguise in order to avoid identification in the commission of a public offense, a misdemeanor. (Pen. Code, § 185.) On April 14, 2006, the juvenile court ordered that appellant should be detained in custody.
The matter proceeded to a jurisdictional hearing on June 8, 2006. The first witness was the victim, Cameron C., who testified that he was attacked by a group of youths, who acted together to beat, kick, and attempt to rob him.
Cameron, who was a sophomore in high school, and his two friends Brandon and Tommy had been playing basketball at a lighted basketball court, on the evening of April 8, 2006, at Brentwood Park, near Rosewood and Wildwood Streets in South San Francisco. After they had been playing basketball for about half an hour, the three friends decided to leave, because they saw a group of young men approaching, dressed in dark clothing. Cameron was “pretty sure” the group consisted of six youths. Some of the young men in the group had ski masks or bandanas on, to disguise their identities, and some had hooded sweatshirts on, with the hoods pulled over their heads. They blocked the path of Cameron and his two friends as they were trying to leave on Rosewood Street.
Cameron’s two friends managed to escape by running away, but Cameron “kind of froze” and then was too close to the attackers to escape. He said he didn’t want any trouble, but he was hit, knocked down, and kicked by the attackers. Cameron was covering his face and head for protection, but he thought all the young men in the group took part in the beating and kicking.
The attack lasted for what seemed to Cameron to be about a minute. One of the young men demanded, and tried to take, Cameron’s wallet, but then gave up the attempt when he saw there was no money inside.
Cameron’s friend Brandon G. also testified that he was with Cameron on the night of the attack, but Brandon managed to flee the attackers, and watched the attack on Cameron from a safe distance of about 50 or 75 feet up a hill. Brandon testified that he heard one of the attackers say that they should “shank” Cameron, which Brandon understood to mean they should stab him. Brandon saw that at first, two of the youths in the group did not join in the attack, but then all of the youths in the group joined in the attack. Brandon called his home on his cell phone, and asked that the police be called.
Appellant’s acquaintance Anthony R., who had admitted taking part in the attack, testified that appellant specifically joined in the assault on Cameron, by kicking him once in the back, after Anthony attempted to rob Cameron of his wallet. Anthony testified that he and appellant knew each other personally, from between five and seven previous occasions. Anthony, appellant, and many other youths had all been at a social gathering at a house on Edgewood, not far from Brentwood Park. Afterwards, they were walking together near Brentwood Park when they saw Cameron and his two friends at the basketball court, and Anthony decided to “jump” or attack them. Anthony said to his companions, “Let’s go jump these kids.” Anthony also said, “Let’s put masks on our faces.” Anthony had previously told the police that covering their faces was appellant’s idea, but actually Anthony testified he was the one who had said it. Anthony put on a red bandana to cover his face. However, not everyone had a mask, and some of the youths just wore hooded sweatshirts with the hoods pulled up over their heads.
Anthony and his companions approached the three other boys as a group. Two of the other boys ran away, but one was caught and beaten, and knocked to the ground. It was Anthony’s intention to “take stuff” from this victim. The attackers beat and kicked Cameron while he was on the ground. Appellant stood by at first without joining in with the actual violence, but then he kicked the victim in the back. This was shortly after Anthony had been trying to steal the victim’s wallet, although Anthony stopped trying to do so when he saw there was nothing in the wallet.
Anthony, appellant, and the other youths all fled together. Appellant began pulling the other boys off the victim, saying, “Let’s go. It’s hot.” By “hot” Anthony believed appellant meant that the police were coming. Anthony admitted he had previously told different versions of the facts to the police and a defense investigator, but he testified that his present testimony was the truth, not his prior statements. Anthony also testified he weighed 228 pounds, and was five feet ten inches tall at the time of trial.
Eric Jorgensen, a defense investigator, was next called to the stand, by the defense. Jorgensen had interviewed Anthony, while Anthony was in custody. Anthony told Jorgensen that appellant tried to stop the attack on Cameron, by pulling some of the other boys off the victim.
Detective Tom Neary of the City of South San Francisco Police Department testified next, for the prosecution. Neary interviewed appellant when he came into the police station with his mother. At first, appellant denied he was present at all during the attack. Later, after Neary told appellant that his story was not believable because others had said appellant was present, appellant admitted he was present, but denied that he had “touched” the victim. Appellant told Neary that appellant was wearing the hood of his hooded sweatshirt up over his head. Appellant denied to Neary that appellant had done this to cover his face. Appellant told Neary he had heard Anthony say, just before the attack, “Let’s go mop them up.” Appellant told Neary that appellant understood this to mean that Anthony wanted them “to either assault or rob” the other boys. Neary also testified that taking a statement from appellant was “very difficult” because appellant “was not forthcoming with information.”
Appellant testified in his own defense. Appellant testified that he was invited to a social gathering at the home of his friend B.J., where it was promised that alcohol would be present. Appellant arrived at B.J.’s home and used the bathroom. Appellant then joined some other boys who were walking to a bowling alley; however, appellant had left his cigarettes on the counter in the house. Appellant had to go back to get the cigarettes, then catch up with the group of boys walking to the bowling alley. Appellant testified that he did not know a fight was about to break out, and did not hear someone say, “Let’s go get him.”
According to appellant, he then suddenly saw a fight break out, but he did not join in the fighting or robbery attempt, and in fact rescued the victim by pulling the attackers off of the victim. Appellant was especially concerned to pull Anthony and Richard away from the victim, because they were so “big” or “stocky” or muscular, and “[t]hey could like seriously hurt him.” Richard said the police were coming, so appellant ran away together with Richard, back to the house where they had been gathering before.
Although appellant admitted in his testimony that he had lied to the police by saying he was not present at all, he had later admitted to the police he was present, and he testified he was not part of the attack and attempted robbery. He also testified he was not with the attackers at first as they approached, because he had gone back to get his cigarettes he had left behind at the house where they had all been gathering. He admitted he left with the attackers, rather than remain to help the victim or the police. He did not remember telling Detective Neary that Anthony had said, just before the attack, “We’re going to go mop those guys up.” If appellant had heard Anthony say that, it would have meant to appellant that they were planning to “go beat up on somebody.”
The court found that the petition should be sustained as to the assault and attempted robbery counts, but should not be sustained as to the conspiracy and disguising counts, because there was insufficient evidence to prove those counts beyond a reasonable doubt.
At a subsequent dispositional hearing, appellant was continued as a ward of the court. The maximum time of confinement was set as six years. Appellant was actually ordered to serve a total of 130 days of therapeutic detention, of which 30 days were stayed, and was given credit for 62 days already served.
II. DISCUSSION
Appellant contends there was insufficient evidence to support the juvenile court’s findings of assault and an attempted robbery.
The test used to determine a claim of insufficiency of the evidence is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577 (Johnson); Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) In making this determination, the appellate 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.’ [Citations.]” An appellate court may not, however, limit its review to the evidence favorable to the People. (Johnson, supra, at pp. 576-577.) Rather, we review the whole record, to determine whether there is substantial evidence supporting the findings as to appellant’s guilt. (Id. at p. 577; accord, People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
The juvenile court found appellant guilty of assault and attempted robbery on an aiding and abetting theory. We therefore review the legal principles relevant to criminal liability for aiding and abetting. “[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 (Beeman).) An aider and abettor may be criminally liable not only for his own criminal acts, but also for criminal acts by other perpetrators that were natural and probable consequences. (People v. Avila (2006) 38 Cal.4th 491, 567; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-107; People v. Brigham (1989) 216 Cal.App.3d 1039, 1045.)
“Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 (Lynette G.); accord, People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell); see also In re Jose T. (1991) 230 Cal.App.3d 1455, 1460 (Jose T.) [“Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. [Citation.]”].) Under the evidence presented in the whole record, and in light of our limited scope of review, the court’s findings must be sustained. (See Jose T., supra, at pp. 1460-1461.)
As previously noted, Cameron C. testified that he was attacked by a group of youths who acted together to beat and kick him, and attempted to rob him. In addition, Cameron’s friend Brandon G. was with Cameron on the night of the attack, but fled the attackers, and watched the attack on Cameron from a safe distance. Brandon testified that all of the youths in the group eventually joined in the attack. Finally, appellant’s acquaintance Anthony R., who had admitted taking part in the attack, testified that appellant specifically joined in the attack by kicking the victim. In addition, other evidence shows not only that appellant was admittedly present at the scene of the crime, but also that he was a companion of the other perpetrators, and they fled together. These are all relevant considerations providing evidence in support of the trial court’s findings as to aider and abetter liability. (See Lynette G., supra, 54 Cal.App.3d at pp. 1094-1095.) Therefore, the record shows much more than mere innocent presence at the scene. (See ibid.; Jose T., supra, 230 Cal.App.3d at pp. 1460-1461.)
Further, the testimony of Anthony specifically shows appellant kicked the victim in the back, which was an act that the juvenile court could reasonably find showed an intent to aid and abet the other participants’ acts in assaulting and attempting to rob the victim. (See Jose T., supra, 230 Cal.App.3d at pp. 1460-1461; Campbell, supra, 25 Cal.App.4th at p. 409.)
Appellant argues that only Anthony had the intent to rob, and that intent was not shared by appellant. However, the evidence viewed as a whole, and in light of our deferential standard of review, suggests otherwise. (See Campbell, supra, 25 Cal.App.4th at p. 409.) The trial court could reasonably conclude that appellant had heard Anthony’s statements to the effect that he wished to “mop . . . up” the victims, despite appellant’s testimony that he failed to remember any such statement. Such a statement, as appellant told Neary, shows an intent to attack or rob the other boys. The evidence also showed appellant approached Cameron while the others were attacking him, and kicked Cameron himself, then he fled with his companions. All of those are acts that would be reasonably construed as showing an intent to aid and abet the other attackers and the attempted robbery. (Ibid.; Lynette G., supra, 54 Cal.App.3d at pp. 1094-1095.) There is thus substantial evidence that shows: (1) knowledge of the unlawful purpose of the perpetrators; (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) appellant by act or advice aided the commission of the crimes. (See Beeman, supra, 35 Cal.3d at p. 561.)
Appellant attempts to discredit the testimony of the three eyewitnesses. Appellant suggests that Cameron could not really know whether appellant had kicked him, because Cameron was covering his head to protect himself. Although that may be true, as the trial court observed, two other witnesses, Brandon and Anthony, also testified that all the youths in the group, including appellant, joined in the attack.
Appellant suggests that Brandon, watching from a safe distance of at least 50 feet after dark, may have been mistaken, because he simply saw appellant’s attempt to break up the fight, and wrongly thought appellant was joining in the attack. That still would not explain the testimony of appellant’s acquaintance Anthony, who admitted he had planned the attack, and who testified that appellant joined in the attack by kicking the victim.
Appellant also attempts to dispute Anthony’s testimony, due to various admitted inconsistencies between his testimony and his prior statements to a defense investigator and the police. For instance, Anthony testified it had been himself, not appellant, who had the idea to cover their faces, contrary to what Anthony had told Neary. In addition, Anthony did not think he had told Neary that appellant was one of the people who grabbed onto Cameron and forced him to the ground. In fact, Anthony testified appellant was “[j]ust standing there” at the start of the fighting. However, as to the critical fact of whether appellant then kicked the victim, Anthony’s testimony remained unshaken, and we note that Anthony’s testimony is also consistent with the testimony of Brandon, who testified that all the youths in the other group eventually joined in the attack on Cameron.
Further, it must also be noted that appellant told different stories about his own involvement in the incident. First, he claimed he was not present at all, but when that story failed to persuade, he told Detective Neary that he was present, and had heard Anthony say that they should “mop . . . up” the other boys. At trial, he could not remember telling Neary that he heard the statement by Anthony about his desire to “mop” up someone, although he explained its meaning. Appellant claimed at the hearing that he had gone back to the house to retrieve his cigarettes, only coming upon the scene later in order to break up the fight. Appellant’s own credibility was very much in dispute, and appellant obviously had a motive to minimize his own involvement. Thus, considering the evidence as a whole, including appellant’s own testimony, the record contains evidence sufficient to sustain the findings of guilt as to the assault and attempted robbery on an aiding and abetting theory. (See Lynette G., supra, 54 Cal.App.3d at pp. 1094-1095; Jose T., supra, 230 Cal.App.3d at pp. 1460-1461.)
With regard to those findings, however, appellant also notes that the trial court found insufficient evidence to establish that appellant was part of a conspiracy to commit robbery, or that he had disguised his appearance. Appellant suggests this fact “undercuts” the trial court’s findings as to his guilt. However, the trial court explained its finding regarding the disguise issue, by observing that although appellant was wearing a sweatshirt with a hood, there was insufficient evidence that he was wearing a hood to disguise his appearance. As to the conspiracy finding, the evidence suggests, as the court observed, that appellant was not so deeply involved in the attack as Anthony and some of the other youths had been. For instance, Anthony testified that appellant was hanging back at first, and only joined in the attack near its end, when he kicked the victim once. Thus, the trial court could properly conclude there was insufficient evidence that appellant was a party to a conspiracy, rather than acting on the spur of the moment. There is no necessary inconsistency in the court’s findings in this regard, which were within the scope of the court’s proper role in making credibility determinations and resolving factual disputes based on the evidence. (See Jose T., supra, 230 Cal.App.3d at pp. 1460-1461.)
In another argument directed at the trial court’s determination of factual issues, appellant suggests that the trial court’s findings were mere “speculation” regarding the identification of appellant as one of the perpetrators. This argument is based upon the trial court’s mention of the fact that Brandon had described one of the attackers, who hung back at first but later joined in the attack, as appearing “slim.” Appellant disputes whether this “slim” description could have been properly applied to himself, because he had testified that, at the time of the incident, he had been about 16 pounds heavier than he was at the time of the hearing, i.e., “almost 230” and six feet three inches tall.
However, the trial court’s comments indicated that the court believed appellant appeared “slim” when compared to Anthony, who had testified he weighed 228 pounds, at the time of trial, and was about 20 pounds heavier at the time of the assault, and was five feet ten inches tall. The court also noted that it had not seen the other perpetrators, but referred to testimony from appellant that at least one other perpetrator, Richard, had a “stocky” or muscular build, and weighed at least 230 or 235 pounds, so appellant may have similarly looked “slim” when compared to Richard. More critically, the identification of appellant as one of the perpetrators was not based on his mere body type alone, and was based on all of the other evidence we have discussed, including the testimony of Anthony, who knew appellant personally.
In light of the entire record, and under the limited standard of review we must apply in this appeal, there is no basis to substitute our judgment for that of the trial judge who actually heard and saw the testimony of the witnesses, and was required to judge their credibility. (See Barnes, supra, 42 Cal.3d at pp. 303-304; Johnson, supra, 26 Cal.3d at pp. 576-577.) The findings of the trial court are supported by substantial evidence. (Johnson, supra, at pp. 576-577; Campbell, supra, 25 Cal.App.4th at p. 409.)
III. DISPOSITION
The orders of the juvenile court are affirmed.
We concur. SIMONS, Acting P. J., GEMELLO, J.