In re Lance M.

Filed 4/12/07 In re Lance M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lawrence Kapiloff, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed as modified.

Lance M., a juvenile, appeals the judgment finding true a violation of Penal Code section 484 (misdemeanor petty theft). He contends: (1) the trial court minute order to provide a DNA sample must be stricken; and (2) the evidence is insufficient to support the true finding under an aiding and abetting theory.

FACTUAL AND PROCEDURAL BACKGROUND

Lance, a 13-year-old, and his friend Michael planned to meet at the bus stop in front of Spring Valley Middle School to go to the mall. Lance arrived first. When Michael arrived, he told Lance he had to do something at the school before they left for the mall. School custodians testified they saw Michael cut a cable outside the school with a bolt cutter while Lance watched and looked up and down the street. After cutting the cable, Michael rolled up the severed portion, carried it up a hill and hid it. Lance testified he did not know what Michael was doing, and he played no part in the planning or execution of the crime. Lance was approximately 20 feet from Michael during the cutting, and remained at the bottom of the hill while Michael hid the cable.

The police arrived, and an officer questioned Lance. The officer asked Lance if he was acting as a lookout for police or school officials and Lance replied, "Yeah, I did that," or "I was doing that." However, the officer did not specifically ask if Lance was acting as a lookout to assist Michael. Lance testified he told the officer he had been "looking around" because he himself did not "want to get in trouble."

The court found true the allegation Lance committed misdemeanor petty theft under a theory of aiding and abetting.^[1] The court's minute orders included a grant of probation, imposition of fines, and a requirement Lance provide a DNA sample for inclusion in the California Department of Justice database.

DISCUSSION

I

THE ORDER REQUIRING LANCE TO PROVIDE A DNA SAMPLE

Lance contends, and the People agree, he is not among the class of persons from whom DNA samples are required. Under Penal Code section 296, subdivision (a)(1), only "[a] person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense . . . or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense" must provide a DNA sample. Because the true finding was the commission of a misdemeanor, not a felony, we strike the order requiring Lance to provide a DNA sample.

II

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE TRUE FINDING OF THEFT

Lance contends the evidence is insufficient to support the petty theft true finding. Under the standard of "substantial evidence," we must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) It is not the role of the appellate court to make credibility determinations, but instead to determine whether there is sufficient substantial evidence, which if believed by the trier of fact, would support the decision. (People v. Coulombe (2000) 86 Cal.App.4th 52, 59, fn. 5.)

Penal Code section 31 provides that "[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed." However, "[a]n aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).)

Penal Code section 484, subdivision (a) provides in part that "[e]very person who shall feloniously steal . . . the personal property of another . . . is guilty of theft." Specific intent is a required element under this statute. (People v. MacArthur (2006) 142 Cal.App.4th 275, 280; People v. Riel (2000) 22 Cal.4th 1153, 1205.) When the definition of an offense includes an element of intent beyond the actus reus, "the aider and abettor must share the specific intent of the perpetrator." (Beeman, supra, 35 Cal.3d at p. 560.) "[A]n aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." (Ibid.) Accordingly, if the alleged aider and abettor does not know the "full extent" of the perpetrator's criminal purpose, he or she does not have the requisite specific intent.

Mere presence at the scene of a crime and failing to prevent a crime are insufficient to establish aiding and abetting liability. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 744.) Unexplained presence at the scene "may be deemed a circumstance tending to show complicity" in the crime. (People v. Wilson (1928) 93 Cal.App. 632, 636.) On the other hand, there is no requirement that the aider and abettor participate personally in the commission of the crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529.)

Although Lance offered an exculpatory explanation regarding his presence at the scene of the offense the trial court did not accept Lance's version. The trial court concluded there was no doubt Lance was acting as a lookout. Lance explained to the court he was not assisting the other minor and that he was only looking for adults and police because he did not want to get in trouble, apparently for the other minor's actions. That explanation could be found to be at odds with Lance's statement to the investigating officer.

In his statement to the officer, Lance admitted he was acting as a "lookout" for "cops and school officials." He did not tell the police he was only looking around because he wanted to avoid trouble. Thus the trial court was not obliged to accept Lance's in-court version of his role at the time of the offense.

The term "lookout" often refers to people serving as aiders and abettors. (People v. Silva (1956) 143 Cal.App.2d 162, 169.) Admittedly in many cases the "lookout" does other acts such as driving the getaway car (ibid.); or ending up with some of the stolen property from the crime (People v. Moore (1953) 120 Cal.App.2d 303, 306). Merely looking around, without other evidence, is not enough to establish accomplice liability. (Beeman, supra, 35 Cal.3d at p. 558.)

In the present case, however, there is evidence of more than mere presence. Here the minor admitted to police he was acting as a lookout for "cops and school officials." The trial court could draw a reasonable inference from that statement that the minor was serving in the role of an accomplice by watching for persons in authority so that he and his cohort would not be caught. Certainly a different inference could have been drawn in this case if the trial court believed the minor, but the court did not believe him. It is also clear that this is a sparse record and that reasonable minds might have made a different credibility determination. In our system of judicial decision making, however, credibility decisions are still vested in trial judges and not the appellate courts. Applying that well-settled principle, we decline to reweigh the evidence and affirm the trial court's decision.

DISPOSITION

The judgment is modified to strike the order for a DNA sample. In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

I CONCUR:

AARON, J.

McDONALD, J., Concurring and Dissenting.

I concur with the majority opinion except its conclusion that substantial evidence supports the true finding of theft.

As the majority correctly states, we must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) However, "[s]ubstantial evidence means more than simply one of several plausible explanations for an ambiguous event." (People v. Harvey (1984) 163 Cal.App.3d 90, 105, fn 7.)

Where there is no evidence an alleged aider and abettor had previous knowledge of the criminal purpose of the principal, his or her conviction must be supported by reasonable inferences from testimony and circumstances. (People v. Hill (1946) 77 Cal.App.2d 287, 292.) In Hill, there was no evidence the alleged aider and abettor had knowledge of his cohorts' plan to rob a bar or helped them escape after he had knowledge. (Ibid.) The only evidence supporting his conviction was his statement to police that he had seen the principals' gun, which he later recanted, and an officer's testimony that he saw the defendant slide the gun across his lap to hide it. (Id. at pp. 289-290.) The principals who robbed the bar testified the defendant had no knowledge of their criminal purpose. (Id. at pp. 289, 292.) Although intent can be inferred from surrounding circumstances, the court held the evidence was "devoid of act or word that may be interpreted as competent proof of a crime." (Id. at p. 292.) The court concluded, "evidence of his mere presence without showing his preconcert with the actors is insufficient as proof of guilt." (Id. at p. 294.)

"[T]he facts from which a mental state may be inferred must not be confused with the mental state that the prosecution is required to prove." (People v. Beeman (1984) 35 Cal.3d 547, 558.) The law does not conclusively presume the alleged aider and abettor's intent solely from his or her acts because this would eliminate intent as an element of the offense. (Id. at p. 559.)

Here, there is no evidence from which to infer Lance's specific intent to steal the cable. Similar to Hill, there is no evidence Lance knew Michael was planning and executing theft of the cable, or that he had the specific intent to assist Michael. Lance's uncontroverted testimony explains his presence there; he met Michael at the bus stop in front of the school to go to the mall. Two witnesses testified Lance did not participate in Michael's activity. He did not speak to Michael, help cut the cable or carry it up the hill. Looking up and down the street is not criminal or even unusual. As the Supreme Courtrecognized, "[an] act may be done with some other purpose which precludes criminal liability." (People v. Beeman, supra, 35 Cal.3d at p. 559.)

Although several cases state people serving as lookouts are aiders and abettors (People v. Silva (1956) 143 Cal.App.2d 162, 169; see also People v. Sawyer (1967) 256 Cal.App.2d 66, 76), an additional element of assistance is required to show intent. (See, e.g., People v. Ngaue (1992) 8 Cal.App.4th 896, 906-907 [lookout lured victims to her house]; People v. Hall (1969) 272 Cal.App.2d 278, 281-283 [lookout acted as stand-by and was found with stolen property]; Sawyer, at pp. 75-77 [lookout disposed of evidence and drove getaway car]; People v. Eskew (1962) 206 Cal.App.2d 205, 206-207 [lookout shared in proceeds from burglary]; Silva, at p. 169 [lookout acted as getaway driver]; People v. Moore (1953) 120 Cal.App.2d 303, 306 [lookout fled with principal and had stolen property in his possession]; People v. Wilson (1928)93 Cal.App. 632, 634-635 [witness saw lookout casing robbery location with principals]). Where an alleged aider and abettor is merely looking around, absent additional evidence, "there is room for doubt that [he] intended to aid [the] perpetrator [and] his knowledge of the perpetrator's purpose will not suffice." (People v. Beeman, supra, 35 Cal.3d at p. 558.)

The majority opinion emphasizes that the appellate court may not question the trial court's finding on credibility of witnesses. However, credibility is not at issue in this case. There is no dispute Lance told the police officer he was acting as a "lookout." Although the majority attaches great importance to this "admission," the word "lookout" does not necessarily imply Lance was assisting Michael. "Lookout" means "[a] careful, vigilant watching."^[2] (Black's Law Dict. (8th ed. 2004) p. 962, col. 1.) Lance testified he was looking out for himself and did not want to get in trouble for Michael's unexpected conduct. Absent the malevolent connotation of "lookout" apparently inferred by both the trial court and the majority opinion, there is no evidence of Lance's participation in the theft as an aider and abettor.

Lance's "admission" he served as a lookout is not of solid value, and does not suggest he knew the full extent of Michael's crime. A reasonable trier of fact could not have found the allegation true beyond a reasonable doubt because the prosecution failed to establish Lance's intent.

I would reverse the judgment because no substantial evidence supports the true finding that Lance aided and abetted the theft.

McDONALD, J.

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^[1] Additional allegations were dismissed.

^[2] Merriam-Webster, which defines words according to the meaning shared by all or most people who use the word, defines "lookout," in pertinent part, as "one engaged in keeping watch[;] . . . a careful looking or watching." (Webster's 11th Collegiate Dict. (2006) p. 734, col. 2.) Neither Black's nor Webster's attaches a malign connotation.