In re D.H.

Filed 7/9/09 In re D.H. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Robin Miller-Sloan, Judge. Affirmed and remanded.

Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

D.H. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that she committed three counts of second degree robbery, counts 1, 2, and 5 (Pen. Code, 211) and two counts of attempted second degree robbery, counts 4 and 6 (Pen. Code, 664/211). She was placed in the camp-community placement program and a maximum period of confinement was set at 12 years and nine months. She contends there was insufficient evidence to establish she was the person who ripped O.I.s necklace from around her neck and count 1, therefore, should not have been sustained. She also contends the court erred in calculating the maximum term of confinement. For reasons stated in the opinion we affirm the order of wardship and remand the matter to the juvenile court for a recalculation of the maximum term of confinement.

FACTUAL AND PROCEDURAL SUMMARY

Regarding counts 1 and 2, the evidence established that on November 17, 2007, at approximately 12:45 in the afternoon, 14-year-old O.I. was walking with her 12-year-old niece, E., when two girls approached and one said to E. that E. had a pretty necklace. Before that comment, O.I. had seen the girls for approximately five to ten minutes playing tag or something like that. O.I. then felt a snatch, and saw that someone had snatched her gold First Communion necklace from around her neck. O.I. felt hotness, and had redness on her chest. At the same moment, O.I. saw appellant rip E.s necklace from around her neck. O.I. tried to defend herself but could not move. When O.I. turned, she saw E. on the ground. The two female suspects, accompanied by a boy, ran away.

O.I. had previously identified appellant in a photographic lineup as the person who took her necklace, but in court she testified appellant was not the person. O.I. testified that she was confused the day she made the identification. At the adjudication hearing, O.I. identified appellant as the girl who snatched E.s necklace.

E. testified some girls told her that her necklace was pretty. The girls followed her and O.I. into a store. Suddenly the girls came running at E. and one ripped her necklace from her neck, causing E. to fall. E. was not sure if appellant was the person who took her necklace because it happened so fast but did recognize her as being one of the two girls. After taking the necklaces, the two girls ran away in the same direction. E. received scratches on her neck, which bled, and a large bruise on her knee.

With reference to count 4, on December 14, 2007, at 11:35 a.m., Daysi Rivas was walking to the entrance of a swap meet at 54th and Avalon in the City and County of Los Angeles when appellant approached her, asked what time it was, and then grabbed Rivass chain. When appellant grabbed Rivas, appellant threw [Rivass] chain towards the back. . . . Rivas then noticed there was blood on her chest. Appellant ran toward a car that was running and said, go, go, go, go. Appellant broke the clasp on the necklace when she grabbed it but did not get the necklace.

Regarding counts 5 and 6, on October 31, 2007, at approximately 2:50 p.m., Alejandra Hernandez was with her three-year-old daughter and another baby in a stroller in the area of San Pedro and 69th Street in the City and County of Los Angeles. While Hernandez was standing at a corner, appellant and a companion walked by and asked for the time. Hernandez showed the girls her watch, and appellant and her companion laughed. Appellant then grabbed and pulled Ms. Hernandezs necklace, ripping off a charm and then the chain. Appellant then attempted to rip off the necklace of Hernandezs three-year-old daughter but was unable to because Hernandez pushed appellant away. Appellant and her companion then ran off.

DISCUSSION

Appellant contends that count 1 of the petition should not have been sustained, because there was insufficient evidence to prove appellant was the girl who ripped O.I.s necklace from around her neck. Appellant asserts that while O.I. and E. both identified appellant as one of the girls involved in the incident, neither identified her as the person who ripped off O.I.s necklace.

The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.] (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) This standard applies to cases based on circumstantial evidence. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts 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.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citation.] [Citations.] (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.)

A person who aids and abets the commission of an offense is liable as a principal in the crime. (Pen. Code, 31.) [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; accord, People v. Williams (2008) 43 Cal.4th 584, 637.) 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. Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense. [Footnotes omitted.] (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages. [Citation.] (People v. Beeman, supra, 35 Cal.3d at p. 560.)

Viewing the evidence in the light most favorable to the order, the evidence establishes that appellant aided and abetted the robbery of victim O.I. Prior to the robberies of O.I. and E., appellant and her companion observed their intended targets for five to ten minutes. Appellant and her companion then approached their victims together, distracted them, immediately and simultaneously grabbed their respective victims necklaces, and fled together. Appellants presence at the scene, her conduct before and after the crime, and her working in tandem with her companion support the implied finding she aided and abetted the robbery of O.I.

II

Appellant contends the court erred in calculating her maximum term of confinement. She asserts the total should have been 11 years and four months rather than 12 years, nine months. Respondent agrees the court erred in its calculation but on a different ground and asserts the matter should be remanded for clarification. Respondent asserts the court improperly calculated a full consecutive three-year term on the enhancement rather than one-third of the term, and that the record is unclear on the specific enhancement that was imposed. We agree and will order the matter remanded for a recalculation of the maximum term of confinement.

In calculating the maximum term of confinement, the court stated, the most recent sustained petition contains second degree robbery. . . . The triad of 2-3-5, and that will now be the base term. Maximum period of confinement according to the court calculation . . . is 12 years, three months. The prior petition contained assault with a deadly weapon and it had a use allegation. . . . Even though the offense itself only adds a year, the use adds an additional three years.

Welfare and Institutions Code 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 used in this section . . . maximum term of imprisonment means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled. [] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the maximum term of imprisonment shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.

Penal Code section 1170.1, subdivision (a) provides, Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.

Penal Code section 213, subdivision (a)(2) provides robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years. Penal Code section 213, subdivision (b) provides, Notwithstanding Section 664, attempted robbery . . . is punishable by imprisonment in the state prison [for 16 months, or two or three years]. (Pen. Code, 18.)

It appears the court chose one of the second degree robbery counts as the principal term for five years. The two remaining robberies would be one year each, which is one-third the middle term of three years; and the two attempted robberies would be eight months each, which is one-third the middle term of two years. The previously sustained petition for an assault with a deadly weapon would be one year, which is one-third the middle term of three years. While the court stated the use allegation adds an additional three years, it is unclear as to the specific enhancement that was imposed. Penal Code section 12022.5 provides in relevant part that the additional punishment for use of a firearm is 3, 4, or 10 years. Additionally, pursuant to Penal Code section 1170.1, subdivision (a), the court should not have imposed a full consecutive three-year term on the enhancement. Under this code section, The subordinate term for each consecutive offense . . . shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.

DISPOSITION

The matter is remanded to the juvenile court for a recalculation of the maximum term of confinement and in all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

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