Opinion
B198595
6-24-2008
In re TIMOTHY J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY J., Defendant and Appellant.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant, Timothy J. Edmund G. Brown Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
The victim of an assault and robbery identified plaintiff and appellant Timothy J. (the minor) as one of four males who were present during the incident. Although it was undisputed that the minor did not actively engage in the assault or the robbery, he was convicted of second degree robbery on an aiding and abetting theory.
On appeal, the minor contends that there was insufficient evidence to support the juvenile courts finding that he committed robbery. According to the minor, mere presence at the crime scene and failure to take steps to prevent the crime are insufficient to support a finding that he aided and abetted the robbery. We hold that the evidence showing the minor was present at the crime scene with a group of individuals just prior to the attack, when combined with the evidence of his presence during the incident and his flight with one of the assailants was sufficient to support the juvenile courts finding that the minor aided and abetted the robbery. We therefore affirm the order of the juvenile court.
FACTUAL BACKGROUND
At around 2:00 p.m. on October 3, 2005, Louis Sawaya was working at his "Charo Chicken" restaurant in Valencia. He noticed a group of individuals pulling chairs and tables together so they could sit in front of the restaurant. The minor was among the group. Sawaya approached the group, asked if they wanted to sit at that location, and they replied that they did. Sawaya asked them to "put the tables and chairs back" when they were finished. Sawaya then left the restaurant to make a delivery. When he returned 15 minutes later, the group was gone.
At approximately 2:00 p.m. that day, Philip Costello was working as a delivery driver for Charo Chicken. Between 2:00 and 2:30 p.m., Costello returned to the restaurant. After he had exited and locked his vehicle, four individuals approached him. Costello, who had "seen [the minor] around" before, recognized him as one of the four.
A member of the group pushed Costello and two others began hitting him in the back of the head. But the minor did not hit Costello or ask him for money. Costello was unsure what he should do, so he ran, ducked, and put his hand over his head. Next to the Subway restaurant, Costello fell to the ground and was being kicked. He heard someone saying, "Grab the money. Grab the bag. . . . Get his wallet." Costellos cell phone fell from his pocket and was taken by one of the assailants. As Costello was going to the ground, he saw the minor run to the minors car, and at least one of the assailants entered the car and drove away from the scene with him. During the assault, Costello was "very scared."
As a delivery driver, Costello "had $118 in [his] bag," which was in his pocket, but the assailants did not take it.
That afternoon Tyler Marik was at the Subway restaurant near Charo Chicken. Marik observed four or five adult males "jumping, kicking, and punching" Costello outside the restaurant. He saw them "take some of [Costellos] personal belongings that fell out of Costellos pocket." Marik did not know who the assailants were and could not identify the minor as one of the assailants.
The police interviewed Costello after the attack. He told police he recognized the minor as a fellow student from Valencia High School. Costello also identified the minor for police in a "photo book of kids from Valencia High School." And, Costello identified the minor during a "field show-up." Costello had "a really big bump on his head" and went to the hospital on his own.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging that the minor came within the provisions of that section because he had committed second degree robbery in violation of Penal Code section 211—a felony. The juvenile court held an adjudication hearing, found the petition true, sustained it, and found the minor was a person described in section 602.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Prior to the disposition hearing on the petition involving second degree robbery, the District Attorney filed a second petition under section 602 alleging that the minor came within the provisions of that section because he had possessed a deadly weapon—metal knuckles—in violation of Penal Code section 12020, subdivision (a)(1)—a felony. The minor denied the allegations of the second petition, retained private counsel, and moved under sections 776 and 778 to change, set aside, and modify the juvenile courts order sustaining the first petition and finding that the minor was a person described in section 602. The juvenile court denied the motion, and this court denied the minors petition for writ of mandate.
At the adjudication hearing on the second petition involving possession of a deadly weapon, the minor admitted the allegations. The juvenile court sustained the second petition and found the minor to be a person described in section 602.
At the disposition hearing on both petitions, the juvenile court declared the minor to be a ward of the court pursuant to section 602. The juvenile court placed the minor on home probation and set a maximum term of confinement of five years, eight months.
DISCUSSION
A. Standard of Review
In considering the sufficiency of the evidence in a juvenile proceeding, we apply the same standard of review that we employ when reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) We review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence — i.e., evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Substantial Evidence of Aiding and Abetting
The minor contends that there was insufficient evidence to support the juvenile courts finding that he committed second degree robbery. According to the minor, that he may have been present during the assault on Costello and failed to prevent the crime is insufficient to show that he actively aided and abetted the robbery of Costello.
"[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.) Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan G.); In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 (Lynette G.).)
Although the minor 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. (Juan G., supra, 112 Cal.App.4th at p. 5.) "In addition, flight is one of the factors which is relevant in determining consciousness of guilt." (Lynette G., supra, 54 Cal.App. 3d at p. 1095.)
The facts of this case are similar to those in Lynette G., supra, 54 Cal.App.3d 1087, in which a teenage girl ran up to the female victim and "hit her two times over the head with a heavy object." (Id. at p. 1090.) The victim saw three other young girls "huddled together five feet from the girl who had struck her." (Id. at p. 1091.) The girl who struck the victim took the victims purse and shopping bag and ran away with the other three girls. (Id. at p. 1091.) The minor and the three girls were subsequently located together, identified by eyewitnesses as the four girls involved in the robbery, and arrested. (Id. at pp. 1091-1092.) The juvenile court found that the minor had committed robbery. (Id. at p. 1090.)
On appeal, the minor contended that there was insufficient evidence to show that she had aided and abetted a robbery. ( Lynette, G., supra, 54 Cal.App.3d at p. 1094.) Although there was no indication the minors presence during the assault was threatening to the victim, the court in Lynette G. nevertheless found that substantial evidence supported the finding that the minor had aided and abetted the robbery. (Id. at p. 1095.) Based on its review of the evidence, the court in Lynette, G. supra, 54 Cal.App.3d 1087 reasoned that, "[t]estimony 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 [the minors] flight been from fear of an unjustified charge of involvement, she also would have immediately disassociated herself from the other three girls." (Id. at 1095.) Accordingly, the court concluded: "On the record before us, we cannot say that the trial court erred in finding that [the minor] had aided and abetted the robbery of [the victim]." (Ibid.)
The facts in this case are also similar to those in Juan G., supra, 112 Cal.App.4th 1. There, the minor and the perpetrator approached the victim together. (Id. at p. 3.) The perpetrator pulled a knife from his waistband, pointed it at the victim from about one foot away, and demanded money. (Ibid.) The victim became frightened and surrendered his money to the perpetrator. (Ibid.) The minor stood close enough to the victim to cause the victim to feel threatened. (Ibid.) The minor fled the scene with the perpetrator and they were located by the police walking together through an empty lot. (Id. at p. 4.) They then attempted to climb a perimeter wall. (Ibid.) According to the minor, he did not know the perpetrator had a knife or that he intended to rob the victim, and he ran away with the perpetrator because he was drunk and did not know what he was doing. (Ibid.) Notwithstanding the minors explanation of his conduct, the court in Juan G., supra, 112 Cal.App.4th 1 concluded substantial evidence supported the juvenile courts finding that the minor had aided and abetted the robbery.
Here, as in Lynette G., supra, 54 Cal.App.3d 1087 and Juan G., supra, 112 Cal.App.4th 1, there was substantial evidence, beyond the minors mere presence at the crime scene, to support the juvenile courts finding that the minor aided and abetted the robbery of Costello. Just prior to the assault, the minor was seen in the company of a group of individuals in front of Charro Chicken. Shortly thereafter, the minor was among a group of four males that approached Costello as he exited his vehicle upon his return to the restaurant. From that evidence, the juvenile court could have reasonably inferred that the group, including the minor, assembled at the restaurant to await Costellos return from delivering food orders so they could accost him and take the money he had collected.
That the minor remained with the group as they assaulted and robbed Costello is further evidence of aiding and abetting. Given the number of persons involved in the attack, the juvenile court could have reasonably inferred that the minors direct involvement in the attack was unnecessary and that he was there as a "backup" in case others came to Costellos aid or as a lookout to warn the other three in the event police arrived unexpectedly at the scene.
Perhaps the most telling evidence of the minors intent to aid in the commission of the robbery is Costellos testimony that he saw the minor run from the scene with one of the assailants, enter his car, and flee the location with that assailant. In addition to the incriminating inference that can be drawn from the minors own flight, that testimony supports a reasonable inference that the minor actively assisted one of the three assailants in fleeing the crime scene. Under the applicable standard of review, this evidence, when considered as a whole, was sufficient to support the juvenile courts finding that the minor aided and abetted the robbery of Costello.
C. Maximum Term of Confinement
The minor contends that the juvenile court erred when it set the maximum term of confinement at five years and eight months. According to the minor, because he was not removed from his parents custody, the juvenile court had no discretion to set a maximum term of confinement and, as a result, the maximum term should be stricken from the minute order. The Attorney General agrees that the juvenile court erred in setting a maximum term, but contends that the error is not prejudicial. We agree.
Section 726, subdivision (c) provides: " If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court."
As the first clause makes clear, section 726, subdivision (c) applies only to situations in which the minor is removed from the physical custody of his parents. Because the minor was placed on home probation, section 726, subdivision (c) does not apply. Therefore, the minute order setting a maximum term of confinement is erroneous. But, because the minor has failed to demonstrate any prejudice flowing from that error, there is no basis to strike the term from the minute order. As the court in In re Ali A. (2006) 139 Cal.App.4th 569, 574 concluded, the order setting the maximum term of confinement has no legal effect.
DISPOSITION
The order of the juvenile court is affirmed.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.