In re Pedro N.

Filed 5/25/10 In re Pedro N. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.
Jack Gold, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) The order of wardship is affirmed.

James M. Crawford, 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, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Appellant Pedro N. appeals from the order declaring him a ward of the court (Welf. & Inst. Code, 602) by reason of his having committed murder in violation of Penal Code section 187, subdivision (a).[1]The juvenile court found true the allegation that a principal personally and intentionally discharged a firearm which proximately caused great bodily injury and death ( 12022.53, subds. (d) & (e)(1)); that a principal personally and intentionally discharged a firearm ( 12022 .53, subds. (c) & (e)(1)); and that a principal personally used a firearm ( 12022.53, subds. (b) & (e)). The juvenile court dismissed the allegation that the offense was committed for the benefit of a criminal street gang, finding it was not proven beyond a reasonable doubt. ( 186.22,
subd. (b)(1)(C)).

The juvenile court ordered appellant declared a ward of the court and placed in the Community Camp Placement Program for one year minimum not to exceed 25 years to life.

Appellant contends that the evidence was insufficient to sustain the petition against him for murder. We affirm the order of wardship.

FACTS AND PROCEDURAL HISTORY

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. On February 14, 2007, victim Albert Chim (Chim) rode his bicycle up to Carlos Flores (Flores) and said Valerio Street. Flores responded, Whatever. Chim, who was wearing a Dodgers jacket, rode past Flores to a wall where he crossed out the letters WPS and wrote the letters VST with spray paint. WPS stands for Wicked Players gang, also known as the Wicked Pot Smokers gang. Flores walked past him to a market.

Scott G., who was then 10 years old, was playing with his friends. Scott G. saw Chim ride up to Adan Espinoza (Espinoza), Alfred Murillo (Murillo), Michael Botello (Botello) and appellant. Chim began talking to them. Espinoza then shot Chim twice. Chim fell to the ground and Espinoza, Botello, Murillo and appellant kicked Chim several times. Appellant kicked Chim particularly hard twice. Appellant, Espinoza, Botello and Murillo then ran away to a park, where they sat around and talked. On his return from the market, Flores saw Chim lying on the ground. A woman standing nearby told Flores that she had heard gunshots. Flores asked the women to call 911 and gave Chim cardiopulmonary resuscitation as instructed by the 911 dispatcher.

Los Angeles Police Department Officer Jeffrey Lewis (Officer Lewis) responded to the scene of the shooting where fire department personnel were loading Chim into the back of an ambulance. Officer Lewis rode with Chim to the hospital, where Chim subsequently died of severe internal bleeding caused by four gunshot wounds.

Scott G. identified Espinoza as the shooter from a photographic lineup. Scott G. also identified appellant, Botello and Murillo as the three who kicked Chim following the shooting at a photographic lineup and at the petition hearing.

Los Angeles Police Department Officer Russell Pungchar, a gang expert, testified that Espinoza was a member of the Wicked Players gang. Chim was a member of the Malditos clique of the Valerio Street gang, which was a rival to the Wicked Players gang. Appellant was an associate of the Wicked Players gang. Los Angeles Police Department Detective James Nuttall testified that Espinoza and appellant lived in the same building. A notebook with Espinozas name on the cover and containing gang graffiti was found in appellants apartment.

DISCUSSION

Substantial evidence supports the order sustaining the petition

Appellant claims that the evidence was insufficient to sustain the petition against him for murder because there was no evidence: of planning and premeditation; that appellant aided and abetted Espinoza in the killing; and that Chim was alive at the time appellant kicked him. We disagree and find that substantial evidence supports the order sustaining the petition.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [] . . . But it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.) We do not reweigh the evidence; even if the circumstances might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment. (People v.Proctor (1992) 4 Cal.4th 499, 529.)

An aider and abettor must share the specific intent of the direct perpetrator. (People v.Lee (2003) 31 Cal.4th 613, 624.) He or she must know the full extent of the direct perpetrators criminal purpose and aid or encourage with the intent of facilitating the direct perpetrators commission of the crime. (Ibid.) 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, fn. omitted.) 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. (Ibid.,fn. omitted.) Thus, a minor who approached the victim with a codefendant was convicted of being an accomplice to a robbery where the codefendant pointed a knife at the victim, demanded money, and fled with the minor who had been standing close to the victim throughout the entire incident. (Ibid.)

While appellant contends there is no evidence that he knew that Espinoza had a gun, appellants intent can be inferred from the circumstances of the shooting. Espinoza was a member of the Wicked Players gang, which was a rival to the Valerio Street gang. Chim, a member of the Valerio Street gang, had just finished riding around and calling out his gang name. He had just defaced the graffiti of the Wicked Players gang and replaced it with his own gangs graffiti. Appellant and the others were gathered in a group in the area where Espinoza had been riding around. Chim approached the four. After a short conversation, Espinoza shot at Chim from close range. Appellant and the others did not flee, but gathered around and kicked Chim as he lay on the ground. Appellant, Espinoza, and the two others then fled together to a park, where they sat around and talked instead of dispersing. Appellants actions before, during, and after the shooting are evidence of his criminal intent and support of the shooting, from which the juvenile court could infer that appellant shared the specific intent of Espinoza.

We reject as immaterial appellants further contention that there was no evidence that Chim was alive when he was kicked by appellant and that the kicking could not have caused his death. As previously stated, appellants actions prior to, during, and after the shooting were sufficient to show that he shared Espinozas criminal intent and aided in the commission of the murder. In any event, Officer Lewis testified that Chim subsequently died at the hospital of his wounds.

We are satisfied that substantial evidence supports the juvenile courts order sustaining the petition.

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, P. J.

BOREN

We concur:

____________________, J. ____________________, J.

DOI TODD CHAVEZ

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[1] All subsequent code section references are to the Penal Code unless otherwise indicated.