In re Joshua W.

Filed 9/19/07 In re Joshua W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Superior Court of Los Angeles County, Irma J. Brown, Judge. Affirmed.

Niccol Kording, 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, Keith H. Borjon and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

Joshua W. was declared a ward of the juvenile court and ordered home on probation after the court sustained a petition alleging he had committed a robbery in which a principal was armed with a handgun. (Welf. & Inst. Code, 602; Pen. Code,  211, 12022, subd. (a)(1).) On appeal Joshua W. contends there is insufficient evidence he aided and abetted the commission of the robbery. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecution Evidence

At approximately 4:00 p.m. on May 25, 2006 Javier Orijel was approached by a group of five young men, including Joshua W., while Orijel was working at a house on Caldwell Street in Compton. One of the youths pointed a gun at Orijel, who was approximately five feet away, and demanded that Orijel get up. Placing the gun against Orijels head, the assailant said, Give me your wallet or I will kill you. He then took Orijels cellular telephone from his front pocket and repeated, Give me your wallet or I am going to kill you. Once Orijel had given his wallet to the individual with the gun, the entire group of young men crossed the street and ran. During the robbery, Joshua W. was standing about three feet to the left of the man with the gun. At no point during the robbery did Joshua W. say anything or make any movement.[1]

After the youths fled, Orijel went into the Caldwell Street house to call for help. Orijel then drove his truck around the neighborhood to search for the assailants. One street over from the site of the crime, Orijel saw several of the young men leaving the backyard of a house; he believed one of them was the individual who had pointed the gun at him and taken his wallet. Upon seeing Orijel, the young men turned and ran back through the backyard. Orijel did not see them emerge on the other side of the block, so he returned to the scene of the robbery, where deputies from the Los Angeles County Sheriffs Department were arriving. Orijel gave the deputies a description of the young men and indicated the direction in which they had fled. Subsequently, deputies found Orijels empty wallet in the backyard where Orijel had seen the young men; Orijel testified he had approximately $800 in the wallet.

Deputy Sam Orozco was responding to the robbery in his patrol car when he was advised over the radio the suspects were juvenile types wearing white T-shirts and running toward Visalia Avenue. Approaching Visalia Avenue, Orozco saw Joshua W. in a white T-shirt and blue shorts, running down Caldwell Street away from the location of the robbery. Orozco detained Joshua W. and placed him in the back of his patrol car. Orijel identified Joshua W. as one of the young men who had robbed him, basing his identification on his observation of Joshua W.s face during the robbery.[2]

2. Defense Evidence

Joshua W. presented a mistaken identity defense, asserting he was not one of the youths who had accosted Orijel and robbed him. His next-door neighbor testified she saw Joshua W. between 4:00 p.m. and 5:00 p.m. in the driveway of his house on Caldwell Street. The neighbor saw the patrol car approach Joshua W., who was not running down the street at the time.

Joshua W.s mother testified Joshua W. had attended school on May 25, 2006 until 2:00 p.m. She did not see him return from school and was not present to let him into their house, but found his school uniform (blue pants and white shirt) on the porch. She drove to a local park around 3:45 p.m., where she saw Joshua playing basketball, wearing his gym clothes, a white T-shirt and blue shorts. Joshua indicated he wanted to finish his game, so she told him she would come back after she went to the store. Within 15-20 minutes, before she returned to the park, she received a telephone call from another of her sons, who apparently told her Joshua W. had been arrested.

3. The Juvenile Courts Findings and Order

The juvenile court sustained the Peoples petition, determining the evidence established beyond a reasonable doubt that, although he was not the individual with the gun, Joshua either directly participated in or aided and abetted the robbery and a principal was armed with a handgun during the commission of the crime.[3] The court declared Joshua a ward of the court and ordered him home on probation. Although unnecessary, the court specified the maximum period of physical confinement as six years. (See Welf. & Inst. Code, 726, subd. (c); In re Ali A. (2006) 139 Cal.App.4th 569, 573-574 [court required to specify maximum period of physical confinement only when minor removed from physical custody of his or her parent or guardian]; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1744 [same].)

CONTENTION

Abandoning his trial defense of mistaken identity, Joshua W. contends there is insufficient evidence he aided and abetted the commission of the robbery.

DISCUSSION

1. Standard of Review

The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In either type of case, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence ‑‑ that is, 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; People v. Jones (1990) 51 Cal.3d 294, 314.)

2. Substantial Evidence Supports the Juvenile Courts Finding Joshua W. Aided and Abetted the Commission of the Robbery

[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 Joshua W. is correct that neither presence at the scene of a crime nor the failure to take steps to prevent it, standing alone, is sufficient to establish aiding and abetting (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell); In re Jose T. (1991) 230 Cal.App.3d 1455, 1460), presence at the scene, as well as companionship and conduct before and after the offense, are among the factors that may be considered in determining aiding and abetting. (Juan G., supra, 112 Cal.App.4th at p. 5; Jose T., at p. 1460.) 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 in this case closely parallel those in Lynette G., supra, 54 Cal.App.3d 1087, in which one teenage girl struck a woman and took her pursue while Lynette G. and two other teenagers stood relatively close by (approximately five feet away). (Id. at pp. 1090-1091.) When the victim called out for help, the four young women fled. They were subsequently found and arrested together. (Id. at pp. 1091-1092.) Although there was no indication Lynette G.s presence was menacing or threatening, the Court of Appeal found substantial evidence supported the finding she had aided and abetted the robbery. (Id. at p. 1095; accord, Campbell, supra, 25 Cal.App.4th at p. 409 [defendant approached victims with companion, who immediately revealed implied common purpose by announcing it was a robbery and displaying a firearm; absence of evidence defendant was surprised by companions conduct or afraid to interfere with it supported conclusion defendant was aiding and abetting crime].)

Similarly, in Juan G., supra, 112 Cal.App.4th 1, the juvenile stood by when his companion drew a knife, pointed it at the victim and demanded money. The victim testified he felt threatened by Juan G., who was standing very close to him during the robbery. After the victim gave his money to Juan G.s companion, the two youths fled. The police found them walking together through an empty lot and then attempting to climb a perimeter wall. (Id. at pp. 3-4.) This court concluded substantial evidence supported the juvenile courts finding Juan G. had aided and abetted the robbery.

Even though Orijel did not testify he felt threatened by Joshua W.s presence during the robbery, unlike Lynette G., who had distanced herself from the perpetrator, Joshua W. stood directly next to his armed companion during the entire encounter. As in Juan G., Lynette G. and Campbell, Joshua W. approached the robbery victim together with the perpetrator, stood close by during the encounter without attempting to dissociate himself from the events that were unfolding or appearing surprised by the display of the firearm and demand for Orijels wallet and fled together with the perpetrator and other youths after the robbery was completed. Such conduct is a textbook example of aiding and abetting. (Campbell, supra, 25 Cal.App.4th at p 409.)

DISPOSITION

The juvenile courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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[1] According to the report of the crime prepared by Los Angeles County Deputy Sheriff Sam Orozco, Orijel initially told deputies one man held the gun while a second took his cellular telephone and wallet. Orijel identified Joshua W. as the individual who took his wallet and telephone.

[2] Orijel testified all five youths were wearing jeans and also testified Joshua W. was wearing jeans when he was inside the patrol car.

[3] In sustaining the petition the court concluded any discrepancy between Orijels original report that Joshua W. had actually taken the wallet and his testimony at the hearing that it was the young man holding the gun who had taken the wallet was not meaningful because, under either version, Joshua W. was fully liable for the robbery. Similarly, the court found the difference between blue shorts and blue jeans to be insignificant in crediting Orijels identification of Joshua W. as a participant in the robbery.