In re Alexander K.

Filed 3/13/07 In re Alexander K. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Los Angeles County Superior Court,

Irma J. Brown, Judge. Affirmed as modified.

Roger S. Shafer, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________

Alexander K. appeals from the juvenile courts order of wardship after findings he committed one count each of second degree robbery and attempted second degree robbery. (Welf. & Inst. Code, 602; Pen. Code, 211.) Alexander K. contends the evidence is insufficient to prove he committed the robberies as an aider and abettor. We modify the dispositional order to correct the maximum term of confinement and affirm the order as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

On the night of January 30, 2006 Robert M. and Charlie P. were riding skateboards on a street in Manhattan Beach when they saw an SUV drive by with its headlights illuminated, before it turned around and pulled up next to them, with its headlights extinguished. Charlie P. was standing within four feet of the SUV driver. As the driver talked with the boys about a golf cart on the street, a male passenger in the backseat of the SUV rolled down his window, pointed a handgun at Robert M., and demanded his skateboard. The passenger wore a hooded sweatshirt; a bandana partially covered his face. When Robert M. refused to surrender his skateboard, the passenger pointed the gun at Charlie P. and demanded his skateboard. Robert M. yelled, Help, and the passenger, still holding the gun, warned Robert M. not to make this a big deal, and not to be loud. Charlie P. surrendered his skateboard to the passenger; the SUV left.

About an hour after the robbery, officers transported Robert M. and Charlie P. to Alexander K.s house, where Robert M. identified both the SUV and the skateboard inside it. A field show-up was conducted involving two suspects, one of whom was Alexander K. Robert M. identified Alexander K. as the SUV passenger based on voice-recognition, although Robert M. was not certain his identification was correct.^[1] Charlie P. identified Alexander K. as the driver based on his appearance, and the second suspect as the passenger based solely on voice-recognition.

A search by police led to the discovery of an air soft BB gun in Alexander K.s bedroom. Officers recovered Robert P.s skateboard from the SUV. Alexander K. was arrested, waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), and was interviewed by Detective Scott Combs. Alexander K. initially told the detective that he and his brother met up with their friend Ali while playing basketball on the night January 30, 2006. Alexander K. was using his fathers SUV, and he agreed to give Ali a ride home. Alexander K. dropped Ali off at his house before driving his brother home.

Alexander K. then changed his story, acknowledging that before reaching Alis house, the three of them had seen Robert M. and Charlie P. riding their skateboards on the street. According to Alexander K., Ali, who was in the backseat, said he wanted to try to get the skateboards from [the boys]. Alexander K. drove up next to the boys and began talking with them about a golf cart on the street. At some point, Ali produced a handgun and demanded the skateboards. The boys surrendered one of the skateboards, and Alexander K. drove away. Alexander K. claimed not to know Ali had the gun. He explained to Detective Combs that he had kept the gun and skateboard for Ali, who feared his parents would find them at his own house.

At the close of the prosecutions case, the defense moved to dismiss both counts for insufficient evidence. (Welf. & Inst. Code,  701.1.) The court denied the motion.

Defense Evidence

Alexander K. testified in his own behalf and admitted driving the SUV on January 30, 2006 with his brother and Ali as passengers. He drove past Robert M. and Charlie P. and then made a U-turn and drove up to them because he wanted to inquire about a nearby golf cart. While Alexander K. was talking with the boys, Ali rolled down the backseat window, ordered them to hand over their skateboards. Alexander K. turned and saw that Ali had pulled out a gun. Alexander K. testified he did not know that Ali had the gun with him, although he knew that Ali had purchased the gun earlier in the week. One of the boys refused to comply, but the other boy surrendered his skateboard. Alexander K. was shocked when he saw Ali display the gun. As soon as the boy gave up his skateboard, Alexander K. drove off because he was in shock and thought what [Ali] was doing was really stupid. Alexander K. did not know whether the gun was real and that made him nervous. He drove Ali home, and agreed to keep the gun and skateboard for him. Alexander K. left the skateboard in the SUV, and he put the gun under a pillow in his bedroom. He denied telling Detective Combs that Ali stated his intention to rob the boys before Alexander K. drove up to them.

Detective Combs testified that Alexander K. told him where to find the gun. Detective Combs also testified it was his understanding that at some point before Robert M. and Charlie P. were contacted, Ali had said that he wanted to try to steal their skateboards.

At the close of the jurisdiction hearing, the juvenile court found true the allegations of the petition, declared Alexander K. a ward of the court, ordered him into the short term camp community placement program and subject to probation conditions, and calculated the maximum term of confinement as six years.

DISCUSSION

Alexander K. does not dispute that Charles P. was the victim of a robbery and Robert M. was the victim of an attempted robbery by Ali.^[2]He contends, however, the evidence is insufficient to support the finding that he participated in the crimes as an aider or abettor. Specifically he argues there is no direct evidence that he either shared in Alis criminal purpose or intent, or that he did anything to aid, promote, or encourage Alis robbery and attempted robbery.

1. Standard of Review

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1053.) This standard also applies to juvenile appeals. (In reMichael M. (2001) 86 Cal.App.4th 718, 726.)

2. The Evidence of Aiding and Abetting is Sufficient

A person aids and abets the commission of an offense 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, see People v. Perez (2005) 35 Cal.4th 1219, 1225.) Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment. (In re Juan G. (2003) 112 Cal.App.4th 1, 5; People v. Campbell (1994) 25 Cal.App.4th 402, 409; In reLynette G. (1976) 54 Cal.App.3d 1087, 1094.) Among the factors to be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense. (In re Juan G., supra, 112 Cal.App.4th at p. 5; People v. Campbell, supra, 25 Cal.App.4th at p. 409; In reLynette G., supra, 54 Cal.App.3d at p. 1094.) [I]f a person in fact aids, promotes encourages or instigates commission of a crime, the requisite intent to render such aid must be formed prior to or during commission of that offense. [Citations.] It is legally and logically impossible to form both the requisite intent and in fact aid, promote, encourage or facilitate commission of a crime after the commission of that crime has ended. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) After examining the record in light of these factors we conclude the juvenile court reasonably inferred from Alexander K.s conduct that he knew of and shared Alis criminal intent, and that he aided, promoted, and encouraged the robbery and attempted robbery.

Alexander K.s claim to the contrary notwithstanding, there is ample evidence he was aware of Alis criminal purpose and then acted to facilitate Alis commission of the crimes: The record establishes that in response to Alis suggestion to steal the boys skateboards, Alexander K. turned back, drove up with his headlights extinguished, and engaged the boys in trivial conversation until Ali threatened them with a gun and took one the skateboards. Substantial evidence supports the findings that Alexander K. aided and abetted the commission of the robbery and attempted robbery. (See e.g., In re Juan G., supra, 112 Cal.App.4th at p. 5 [evidence that appellant and perpetrator approached victim together, that appellant stood by perpetrator as he demanded money from victim at knife point, and that appellant left with perpetrator is sufficient to find appellant aided and abetted the commission of the robbery].)

Although Alexander K. would have us believe he had no foreknowledge of either Alis intent to rob the boys or gun possession at the time, the juvenile court discounted his testimony to that effect. The court expressly found Alexander K.s testimony was not credible in light of the false statements he initially made to Detective Combs. There is no reason to disturb this credibility determination on appeal. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404 [To warrant rejection of a witnesss testimony that has been believed by the trier of fact, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.] Conflicts and even testimony subject to justifiable suspicion do not justify a reversal, for it is the exclusive province of the trier of fact to determine the credibility of a witness.].)

3. The Maximum Term of Confinement Should Be Corrected

The juvenile court incorrectly determined the maximum term of confinement as six years. The proper term is five years eight months, consisting of five years for second degree robbery (count 1) and eight months for attempted second degree robbery or one-third the middle term of two years (count 2). (Pen. Code,  1170.1, subd. (a), 213, subd. (b), 18.)

DISPOSITION

The maximum term of confinement is reduced from six years to five years eight months. As modified, the order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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^[1] During the field show-up, officers instructed each of the two detained suspects to say, Give me your skateboard.

^[2] Penal Code section 211 defines robbery as 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.