In re Hoang N.

Filed 6/9/06 In re Hoang N. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Hoang N. appeals from a juvenile court's order pursuant to Welfare and Institutions Code section 725[1] placing him on probation without adjudging him a ward of the court in a proceeding under section 602. (§ 800, see In re Do Kyung K. (2001) 88 Cal.App.4th 583, 587.) Following evidence of a theft of a Coke vending machine at the Beachview Inn in Santa Cruz, a juvenile court had found that the minor committed the theft on a theory of aiding and abetting. It is contended on appeal that the evidence was insufficient to support that finding. We agree and reverse.

A. Procedural History

On January 10, 2005, a juvenile wardship petition was filed against Hoang in Santa Cruz County. It alleged that on January 8, 2005, Hoang committed two misdemeanor violations of Penal Code section 484, subdivision (a). The thefts allegedly were committed against different inns.

The jurisdictional hearing commenced on April 19, 2005. After the presentation of petitioner's evidence concluded on April 25, 2005, counsel for another involved minor, Tuan P., made a section 701.1 motion to dismiss count one, which involved the Inn Cal. Hoang's counsel joined in the motion. The court granted the motion as to both minors. Counsel for minor Hoang then made the same motion as to count 2. The court denied the motion, stating: "There's certainly enough evidence to support an aiding and abetting theory as to everyone in that vehicle."

Hoang's counsel introduced the cassette tape and transcript of a taped conversation between an Officer Albert and Hoang into evidence. Counsel argued that the minor did not voluntarily and knowingly waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). The court determined that the minor understood his rights and impliedly waived them.

The matter was then submitted by the parties. The court sustained the petition against both minors as to count two. The court stated: "I'm satisfied that [Tuan P.] was the person identified as the lookout, and . . . I think the lookout in this case was just as culpable as whoever was tampering with the machine, and I believe that given all the evidence in this case, that the other people in the car were just as culpable as the lookout, and therefore there is no question in my mind that Hoang [N.] was one of the people. He may well have been the tamperer. He may not have been. I certainly don't have proof beyond a reasonable doubt that he was the person seen actually with his hands on or in the vending machine, but there is certainly circumstantial evidence that would point [in] that direction given his position in the vehicle. Nevertheless, I'm satisfied that all of the people involved in that vehicle were involved in this incident either as principals and--that is, as actual thiefs, lookouts, or aiders and abetters."

When counsel for minor Hoang complained that the evidence was insufficient to establish proof beyond a reasonable doubt, the court explained: "[T]he additional piece of evidence that you are neglecting besides his presence in the vehicle is what I consider to be – and this may give you your appellate issue – is having admitted his statements, his lies, because I believe that the coins found in the vehicle are the coins from the vending machine, and he misrepresented the source of those and that shows guilty knowledge. And if he weren't part of it, he would have said, yeah, that's where they got those. Those guys stole that stuff and I didn't have any other way to get home."

On April 27, 2005, the juvenile court ordered the case transferred to Santa Clara County for disposition.

On July 20, 2005, the Santa Clara County juvenile court ordered the minor to be returned home on probation without wardship. The court ordered Hoang to pay restitution to the inn, a restitution fine of $55, a fine and penalty assessment of $58. It also ordered his parents to appear for an evaluation of their ability to pay reimbursable costs, including public defender fees of $100.

B. Evidence at Jurisdictional Hearing

Sonya Goodpaster, who was employed by the Beachview Inn, testified that on the afternoon of January 8, 2005, she heard a car pull up but did not hear the bell ring as it ordinarily does when someone walks into the office. She peeked out the window and noticed a car, a white Infinity, parked in front of the Coke vending machine. She "heard a change dispenser, like coins dropping" and went outside to investigate.

Goodpaster saw two males outside a car. One appeared to be a lookout and the other was hunching down by the Coke machine and shoving something like a coat hanger, thin with a silver reflection, into the change dispenser. She grabbed a "pen and paper and started writing down everything [she] could see . . . ." She wrote down that there was no license plate number and the plate read "Oakland Acura Infinity." The lookout was looking around in the general direction of her office and was not looking at the Coke machine.

She recalled also seeing a car "pretty full of people." She thought she had seen three heads in the back and two or three people in the front. She was able to see the hair of a female sitting by the back door of the car on the side closest to her. When asked at the hearing whether she noticed what the persons in the car were doing, Goodpaster replied, "They were just--there was like three heads I could see in the back of the car."

She continued to hear a noise "like coins coming out . . . ." She walked behind the car. The lookout's "eyes got big" and he appeared "shocked" to see her. He jumped back and the other person looked around. The two jumped in the car. She could still hear the change falling out of the dispenser. While she continued writing down information, the male who had been tampering with the machine jumped back "out of the car to finish grabbing the rest of the change and then jumped back in the car . . . ." The car drove off. She had observed the two for less than a minute and the entire incident had "happened really fast."

Goodpaster then called the police. She told the responding police officer that one of the two males outside the car had been wearing a blue visor and the other had black hair. The male tampering with the Coke machine was wearing a blue striped sweater. She stated their ethnicity was either Mexican or Asian. She gave a description of the car.

On January 8, 2005, Matthew Mulvihill, a police officer with the City of Santa Cruz, was dispatched to the Beachview Inn to respond to a reported theft. When he arrived, Officer Mulvihill spoke with Goodpaster. She provided a description of the vehicle and described the suspects as "two males, one wearing a striped shirt at the time." He relayed the information to dispatch. Goodpaster indicated a possible total of five individuals in the vehicle, including a female in the back seat.

Alex Martin, an officer with the City of Santa Cruz, testified that on January 8, 2005, while driving a marked patrol car, he heard on his radio a report of a theft of a coin machine and description of a vehicle with four to five Asian or Hispanic males. He positioned his vehicle on a likely route to Highway 17. Within five to eight minutes, he saw a car that he believed might match the description, a silver Acura with paper plates. It was being driven by an Asian male and contained an Asian female passenger. He drove alongside the vehicle and saw additional Asian teen males in the backseat. Officer Martin pulled the vehicle over.

David Albert, an officer with the City of Santa Cruz, arrived on the scene after the vehicle had been stopped. He assisted in removing the occupants of the vehicle and seating them on the sidewalk.

While taking Goodpaster's statement, Officer Mulvihill overheard Officer Martin report that he had a vehicle fitting the description. Officer Mulvihill took Goodpaster to that location.

Goodpaster testified that she saw four individuals sitting in a line on the curb. She recognized the car. Although Goodpaster could not identify the face of the girl who had been sitting in the backseat, Goodpaster recognized her hair. Goodpaster also recalled identifying the lookout for police.

Officer Mulvihill recalled that Goodpaster had identified three individuals at the scene including the lookout, the person tampering with the vending machine, and a female backseat passenger. However, in court, Goodpaster was unable to identify the male tampering with the vending machine because she did not get a good look at his face and apparently he was no longer wearing the sweater that she had seen him wearing during the commission of the crime. Goodpaster did identify minor Tuan P. as the lookout in court.

At the hearing, Officer Martin identified two of the individuals who were arrested, Tuan and Hoang. The officer recalled that they both had been taken out of the backseat. Officer Martin personally patted down and arrested the driver but found no quarters on him. No wire or tool was found.

Nicole Garing, a police officer with the City of Santa Cruz, heard through radio dispatch that Officer Martin had pulled over the suspect car and responded to his location. She saw a silver champagne color Acura with dealership paper plates. While searching the car, she located multiple coins, including 107 quarters and a dime and nickel totaling $26.90, inside the bottom compartment of the front center console. The top compartment contained no quarters, only dimes, nickels, and pennies. She did not locate a wire, a screwdriver, or any similar instrument in the car.

After Hoang's arrest, Officer Albert placed appellant in the back of his patrol vehicle for the purpose of taking a statement. He gave Hoang his Miranda rights. Hoang indicated that they had been just hanging out down there. He explained "down there" meant Santa Cruz's boardwalk area. When questioned about the loose change in the vehicle, he told the officer that "they were collecting it or they had collected it or saved it or something" and it was "change from items they had bought and they had just been saving up their change." He denied trying to steal change from a vending machine.

C. Sufficiency of the Evidence to Support Aider and Abettor Liability

Hoang argues that there is insufficient evidence to support a finding that he aided and abetted the theft. We agree.

"In reviewing a challenge to the sufficiency of the evidence, . . . we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that 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. Kraft (2000) 23 Cal.4th 978, 1053 . . .; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Johnson (1980) 26 Cal.3d 557, 578 . . . .) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053 . . . .)" (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

"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.) "[G]uilt [as an adider and abettor] is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "An aider and abettor must do something and have a certain mental state." (Ibid.)

"[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus--a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea--knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus--conduct by the aider and abettor that in fact assists the achievement of the crime. (See McCoy, at p. 1117 . . . .)" (People v. Perez (2005) 35 Cal.4th 1219, 1225.)

"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman, supra, 35 Cal.3d 547, 561.)" (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) "To be guilty of a crime as an aider and abettor, a person must 'aid[ ] the [direct] perpetrator by acts or encourage[ ] him [or her] by words or gestures.' [Citations.] In addition, except under the natural-and-probable-consequences doctrine (see, e.g., People v. McCoy (2001) 25 Cal.4th 1111, 1118 . . . ; see generally People v. Prettyman (1996) 14 Cal.4th 248, 260-263, . . . ) . . . , the person must give such aid or encouragement 'with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,' the crime in question. (People v. Beeman (1984) 35 Cal.3d 547, 560 . . . ; accord, e.g., People v. Prettyman, supra, 14 Cal.4th at p. 259 . . . ; People v. Croy (1985) 41 Cal.3d 1, 11-12 . . . .)" (People v. Lee (2003) 31 Cal.4th 613, 623-624.)

"Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense. (People v. Luparello (1986) 187 Cal.App.3d 410, 439 . . . .)" (People v. Morante (1999) 20 Cal.4th 403, 433, fn. omitted.) "[I]f the aider and abettor undertakes acts 'with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense.' (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 . . . ; see also [Pen. Code,] §§ 31, 190.2, subds. (c) & (d), 971.)" (People v. Sanchez (1995) 12 Cal.4th 1, 33.)

"Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Hawkins (1968) 268 Cal.App.2d 99, 104 . . . ; People v. Perryman (1967) 250 Cal.App.2d 813, 820 . . . ; People v. Fleming, supra; People v. Durham (1969) 70 Cal.2d 171, 181 . . . , cert. den. 395 U.S. 968 [23 L.Ed.2d 755, 89 S.Ct. 2116] and cert. den. 406 U.S. 971 [32 L.Ed.2d 671, 92 S.Ct. 2416]; People v. Moore, supra.)" (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) "[I]f a person in fact aids, promotes, encourages or instigates commission of a crime, the requisite intent to render such aid must be formed prior to or during 'commission' of that offense. [Citations.] It is legally and logically impossible to both form the requisite intent and in fact aid, promote, encourage, or facilitate commission of a crime after the commission of that crime has ended." (People v. Cooper (1991) 53 Cal.3d 1158, 1164, see p. 1168.)

Although the juvenile court strongly suspected that Hoang was the individual who had been tampering with the Coke machine, the court determined that the evidence was insufficient to hold him responsible as a direct perpetrator. Consequently, the only issue before this court is the sufficiency of the evidence to show Hoang was an aider and abettor.

We begin by noting that Hoang's statements to the police occurred after the theft had been committed and could not themselves be considered to be an act of aiding or abetting. Since there was no direct proof that Hoang engaged in any overt act of assistance, the question is whether there was circumstantial evidence from which it could be inferred that Hoang was an aider and abettor. We conclude there is not.

The evidence failed to show that Hoang, as a mere occupant of the car, not the driver, engaged in any affirmative act, word, or gesture that might be interpreted as aiding, promoting, encouraging, instigating, or facilitating the commission of the theft. There was no evidence that Hoang was serving as a lookout or standing ready to assist while sitting in the car. The only eyewitness to the crime merely saw the backs of heads in the waiting car, nothing more. A person's mere presence at the scene of a crime or failure to prevent its commission is not sufficient to establish aiding and abetting. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) Mere association with the direct perpetrators or silent approval not conveyed to the direct perpetrators does not suffice.

The People argue that the court could reasonably infer that Hoang had joint possession of the stolen money found in the car's center console based upon Hoang's statement to Officer Albert that they were saving the quarters. They assert that recent possession of stolen property may be sufficient to find a possessor guilty of theft if supported by slight corroborating evidence, citing several cases. Regardless of the accuracy of these legal propositions, the court in this juvenile proceeding found the evidence insufficient to show that Hoang was a direct perpetrator. There must be some evidence of conduct intended to assist the achievement of the theft to justify an inference that Hoang was an aider and abettor. In this case, even viewing "the record in the light most favorable to the judgment below, we are unable to conclude there was sufficient credible evidence of a "solid value" to conclude beyond a reasonable doubt that Hoang was an aider and abettor of the theft. (See People v. Johnson, supra, 26 Cal.3d at p. 578.)

The court's order placing Hoang on probation without wardship is reversed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.