P. v. Hunt CA2/1 ( 2013 )

Filed 6/27/13 P. v. Hunt CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE, B240010
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA120832)
v.
DARRIUS LAMAR HUNT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
J. Higa, Judge. Affirmed.
Akin Gump Strauss Hauer & Feld LLP and Katharine J. Galston, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________________________
Under California law an individual who aids and abets a crime may be liable not
only for the crime the individual intended to aid and abet “but also for any other crime
that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman
(1996) 14 Cal.4th 248, 261.) The sole question in this appeal is whether substantial
evidence supports the jury’s finding that the use of force or fear was a natural and
probable consequence of defendant’s intent to aid in stealing bicycles. The answer is yes.
FACTS AND PROCEEDINGS BELOW
Fourteen-year-old Caesar Lopez was riding his “fixie” bike1 in the right-hand lane
of Bixbie Avenue when an El Camino truck which had been traveling in the opposite
direction suddenly veered into Lopez’ lane forcing him to stop. There were four men in
the truck. One of the men said to Lopez: “Give me your bike.” Lopez pedaled his
bicycle around the truck and continued down the street. When he looked back he saw
that the truck had made a U-turn and was chasing him so he “kept pedaling faster” until
he reached Frank’s Bicycles, a store where he believed that he would be safe.
When Lopez arrived at the bicycle store he told the owner, Vito Console, that
he was being chased by some men in a car “and they tried to steal my bike.” Lopez and
Console went outside the store and saw the El Camino parked at the curb. When the men
in the truck saw Lopez and Console they drove away. Lopez got the truck’s license
number and Console called the Sheriff’s Department.
A deputy sheriff stopped the truck approximately a mile from the store. Another
deputy brought Lopez to the scene where he identified defendant Darrius Hunt and two
other men, Phillip Jones and Jeffrey Gainer, as having been in the truck that forced him to
stop. He was unable to tell the deputies which of the men had demanded his bicycle.
Sheriff’s deputies arrested the three men in the truck and seized cell phones
belonging to Gainer and Hunt. The phones contained text messages between Gainer
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A “fixie” bike has thin rails and tires and a fixed gear.
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and Hunt the night before the incident. The messages were introduced into evidence.
Gainer’s message to Hunt read: “Trying to snag some fixies. I’m a hit you.” Hunt’s
reply read: “Good luck. Hit me tomorrow bro, so we can get them fixies.”
At trial, Lopez testified that he felt threatened by the number of people in the truck
and the way the truck cut him off as he rode down the street. He identified Gainer and
Hunt as among the occupants of the truck. He testified that Hunt was wearing a tank top
and was the one who ordered: “Give me your bike.” Hunt’s booking photo, taken later
on the afternoon of his arrest, however, showed that Hunt wearing a T-shirt, not a tank
top. Lopez also testified that the man who demanded his bicycle was in the bed of the
truck. When the truck was stopped just a mile from the incident Hunt was sitting in the
front passenger seat.
Hunt testified that he meant by his text to Gainer that if they saw a fixie “laying
around [that] didn’t have anybody around it then . . . we would get it.”
The jury was instructed on attempted robbery and attempted theft. It found Hunt
guilty of one count of attempted second degree robbery. The court sentenced Hunt to
time served and placed him on three years’ formal probation.
DISCUSSION
The prosecution did not attempt to convict Hunt of robbery on the theory that he
was the person who demanded Lopez’ bicycle. Instead the prosecutor argued to the jury
that “it doesn’t matter whether he was the one who made the statement . . . . Someone in
that car made the statement, made the demand for his bike, they scared the kid, and this is
an attempted robbery.” The court instructed the jury that it could find Hunt guilty of
aiding and abetting an attempted robbery if, among other things, it found that “the crime
of attempted robbery was a natural and probable consequence of the commission of the
crime of theft.”
Hunt argues that his conviction of attempted robbery should be overturned
because “[t]here was no evidence that suggested that trying to steal a bike, by force or
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fear, from a person riding one . . . was the ‘ordinary and probable effect’ of a plan to go
out and try to ‘snag some’ bikes if they were ‘laying around.’”
The flaw in this argument is that it doesn’t matter what Hunt thought Gainer meant
by “snagging” some bicycles. “The determination whether a particular criminal act was a
natural and probable consequence of another criminal act aided and abetted by a
defendant requires application of an objective rather than subjective test. [Citations.] . . .
[T]he issue is a factual question to be resolved by the jury in light of all of the
circumstances surrounding the incident. [Citations.] Consequently, the issue does not
turn on the defendant’s subjective state of mind, but depends upon whether, under all of
the circumstances presented, a reasonable person in the defendant’s position would have
or should have known that the charged offense was a reasonably foreseeable consequence
of the act aided and abetted by the defendant. [Citations.]” (People v. Nguyen (1993)
21 Cal.App.4th 518, 531.)
Nothing in the text messages between Gainer and Hunt on the night before the
crime limited the “snagging” of bicycles to bicycles that were “laying around.” A
reasonable person in Hunt’s position would have or should have known that the use of
force or fear was a reasonably foreseeable consequence of the mission to steal bicycles.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P.J.
We concur:
CHANEY, J. JOHNSON, J.
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