In re Alecx S.

Filed 7/2/07 In re Alecx S. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Francis M. Devaney and Lawrence J. Kapiloff (retired judge of the San Diego County Superior Court, assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.), Judges. Affirmed.

The juvenile court declared Alecx S. a ward (Welf. & Inst. Code,   602) after finding that he committed two counts of robbery. (Pen. Code,  211). The court placed him on probation.

FACTS

Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. During the afternoon of June 21, 2006, Frank L. and his younger brother, Christopher L., were at the Chula Vista mall to see a movie. While they walked to the theater, Alecx and a companion approached them. Alecx's companion asked Frank if he was in a gang. Frank responded in the negative. Alecx and his companion followed Frank and his brother. Alecx's companion twice asked Frank for his iPod. Alecx's companion eventually patted Frank down to get the iPod and took Frank's headphones.

Frank testified that while Alecx's companion tried to get the iPod, Alecx asked Frank, "Are we going to do this the hard way or the easy way?" Three people, including Alecx, surrounded Frank. Alecx's companion took Frank's iPod. Christopher walked away, toward the theater, and Alecx ran after him. Christopher was scared and gave his iPod to Alecx's companion so that nothing would happen to him. Alecx told Christopher that he had better not tell anyone what had occurred or he, his brother and his uncle would be "jump[ed]." Alecx and his companion walked down an escalator with the iPods.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende(1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether there was sufficient evidence that Alecx committed robbery, rather than grand theft; (2) whether sufficient evidence of identity supported the true findings; and (3) whether the probation conditions were fitting and proper.

We granted Alecx permission to file a brief on his own behalf. He has responded. Alecx contends that he was misidentified as the person who took part in taking Frank's and Christopher's iPods, and that he did not commit robbery. Alecx argued in the trial court that he was misidentified as a participant in the offenses charged in this case.

A. There is Sufficient Evidence of Identity

The court clearly believed Frank and Christopher, who identified Alecx as a participant in the thefts. In determining whether sufficient evidence supports a trial court's finding that a suspect committed a crime, we must not usurp the trier of fact's assessment of credibility. " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] 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.]' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684.)

Alecx notes that Christopher testified that Alecx looked "sort of" like the thief and that Alecx testified that he had never seen the victims. However, the second victim, Frank, identified Alecx as the companion of the person who actually took his iPod and who chased his brother into the theater. It is not physically impossible that Alecx was an accomplice to the commission of the robberies, nor is it apparent that the testimony of Frank and Christopher is false.

B There is Sufficient Evidence That Alecx Committed Robbery

We affirm a judgment that is supported by substantial evidence. (People v. Johnson, supra, 26 Cal.3d at p. 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible, and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record most favorably to the judgment below, and must presume in support of the judgment the existence of every fact the fact finder could reasonably have deduced from the evidence. If the evidence permits a reasonable trier of fact to conclude that the charged crime was committed, the opinion of a reviewing court that the circumstances can also be reconciled with a contrary finding does not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)

Robbery is the felonious taking of personal property of another, from his or her person or immediate presence and against his or her will; accomplished by means of force or fear. ( 211.) Theft is "an unlawful taking and asportation of property of some intrinsic value with the intent to deprive the owner thereof." (People v. Dunn (1958) 164 Cal.App.2d 335, 338.) Here, as stated above, Alecx and his companion followed Frank and Christopher. Alecx's companion twice asked for Frank's iPod. Alecx's companion patted Frank down to get Frank's iPod and also took Frank's headphones. Frank testified that while Alecx's companion tried to get the iPod, Alecx asked Frank, "Are we going to do this the hard way or the easy way?" Christopher walked away and Alecx ran after him. Three people, including Alecx, surrounded Frank, and Alecx's companion took Frank's iPod. Christopher was scared and gave his iPod to Alecx's companion so that nothing would happen to him. Alecx told Christopher that he had better not tell what had occurred or he, his brother, and his uncle would be jumped. Alecx and his companion walked down an escalator with the iPods.

To be guilty of a crime, one must personally commit the crime or aid and abet another in the commission of the crime. To aid and abet, there must be evidence that the defendant encouraged or facilitated commission of an offense by another with knowledge of the criminal purpose of the perpetrator. (People v. Beeman (1984) 35 Cal.3d 547, 560.) While mere presence at the scene and failure to take steps to prevent a crime do not establish aiding and abetting (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287), under the circumstances of this case, the trial court did not err in concluding that sufficient evidence supports the true finding for robbery. It was reasonable for the court to conclude that it was not mere presence, but the threatening conduct of two youths acting together, that made each an aider and abettor of the other.

We recognize that Alecx testified that he did not take an iPod and did not see a robbery at the mall. However, in determining whether the conviction is supported by substantial evidence, we must not usurp the trier of fact's assessment of credibility. (People v. Thornton, supra, 11 Cal.3d at p. 754, disapproved on other grounds in People v. Flannel, supra, 25 Cal.3d at p. 684.)

C. Alecx May Not Challenge for the First Time on Appeal the Conditions of His Probation.

Alecx did not object to the probation conditions at the disposition hearing. He may not do so for the first time on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237)

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues Alecx raises, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Alecx on this appeal.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McINTYRE, Acting P. J.

O'ROURKE, J.

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