In re Sonny R.

Filed 4/12/07 In re Sonny R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of San Diego County, David M. Gill and Francis M. Devaney, Judges. Reversed.

The juvenile court declared Sonny R. a ward after entering a true finding he committed assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)) to benefit and promote a street gang (Pen. Code,  186.22, subd. (b)(1)). The court placed Sonny on probation and committed him to Breaking Cycles program for a maximum term of 240 days. Sonny contends there is insufficient evidence to support the true finding he committed assault with a deadly weapon. We agree.

FACTS

On February 10, 2006, at Oceanside High School, student Eric P., challenged another student, Cesar L. No fight then occurred. After school, Eric was walking with a friend Rafael G. when a car with four occupants, including Cesar L. and Fabian, passed by. Rafael thought one of the occupants was Sonny, but was not sure. An occupant of the car displayed a hand sign for the Posole gang. Eric responded with an obscene gesture. Shortly thereafter, Eric and Rafael saw the car parked. They were approached by Fabian. Rafael pushed Eric behind him and told Fabian he was not touching Eric. Rafael told Eric to run, which he did. Fabian and Rafael began to fight and Fabian cut Rafael several times with a knife. Meanwhile, Sonny began chasing Eric. When Rafael saw them, they were "kind of far" from him. The chase of Eric stopped when Eric went inside a bazaar. Rafael got up after being cut with the knife and ran toward Sonny because he did not want anything to happen to Eric. Rafael asked Sonny why his friend had used a knife and Sonny responded, "That's Fabian."

Standard of Review

We affirm a judgment supported by substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence. If the evidence permits a reasonable trier of fact to conclude the charged crime was committed, we must affirm. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)

DISCUSSION

To be guilty of a crime, one must personally commit the crime or aid and abet another in the commission of the crime. To aid and abet, there must be evidence the defendant encouraged or facilitated commission of an offense by another with knowledge of the criminal purpose of the perpetrator. (People v. Beeman (1984) 35 Cal.3d 547, 560.) The mere presence at the scene and failure to take steps to prevent a crime do not establish aiding and abetting. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287.) "The logical basis for conviction as an aider and abettor is that with knowledge of the unlawfulness of the act, one renders some independent contribution to the commission of the crime or otherwise makes it more probable that the crime will be successfully completed than would [be] the case absent such participation." (People v. Brady (1987) 190 Cal.App.3d 124, 132.) The test for aider or abettor culpability is "whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." (People v. Villa (1957) 156 Cal.App.2d 128, 134.) An aider and abettor's state of mind may be proven circumstantially from his volitional acts with knowledge of their probable consequences. (People v. Beeman, supra, 35 Cal.3d at pp. 559-560.) " 'The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting; and it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' [Citation.]" (People v. Moore (1953) 120 Cal.App.2d 303, 306; accord, People v. Gonzales (1970) 4 Cal.App.3d 593, 600.)

Here, the only evidence that Sonny was with Fabian before or after the crime is Rafael's testimony that Sonny may have been in the car. The People argue that Sonny facilitated the assault by chasing Eric away from the scene and thereby preventing him from helping Rafael. However, it was Rafael the victim, not Sonny, who encouraged Eric to leave the immediate site of the fistfight/stabbing. This evidence does not support a conclusion that Sonny's chasing of Eric facilitated Fabian's stabbing of Rafael. There is no evidence that Sonny did anything to encourage or facilitate Fabian's assault on Rafael. Thus, there is insufficient evidence to support a conclusion that Sonny aided and abetted in the stabbing of Rafael.

DISPOSITION

The trial court's order declaring Sonny a ward is reversed.

McINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.