In re T.D CA2/3 ( 2024 )

Filed 1/24/24 In re T.D CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re T.D., a Person Coming
Under the Juvenile Court Law.
No. B322604
THE PEOPLE,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TJ23831)
v.
(Orange County
T.D., Super. Ct. No. 22DL0270)
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Melissa Widdifield, Judge, and an order of
the Superior Court of Orange County, Lewis Clapp, Judge.
Affirmed in part, reversed in part, and remanded with directions.
Steven Torres, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters, Assistant
Attorney General, Susan Pithey, Senior Assistant Attorney
General, Steven Matthews and Amanda Lopez, Deputy Attorneys
General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
T.D. was declared a ward of the juvenile court based on
findings that he committed a second degree robbery and resisted
and obstructed an officer. On appeal, T.D. contends there is
insufficient evidence he aided and abetted a robbery. He also
argues, and the People agree, that the court incorrectly
calculated his maximum term of confinement. We conclude
substantial evidence supports the juvenile court’s finding as to
the robbery count but agree the court erred in calculating the
maximum term of confinement.1 We remand for further
proceedings as to the maximum term of confinement and
otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2022, pharmacist Lynn Truong and
pharmacy employees Ruben Solis and Jose Vega were working at
a CVS store in Santa Ana. As Truong filled prescriptions, she
saw someone break the glass partition that divided the pharmacy
area from the rest of the store. Four individuals jumped over the
pharmacy counter.2 Some carried bags. They wore black ski
1 T.D. does not challenge the juvenile court order as to the
count of resisting and obstructing an officer.
2 While Truong remembered three individuals, Solis
remembered four. Truong testified that she only looked to her
right and did not see anything on her left side.
2
masks and black clothing. One also wore a red, yellow, and black
sweatshirt or sweater.
After the first person jumped into the pharmacy, the other
three “almost instantly” and “immediately” followed. Solis heard
one masked individual say that the first person to move would
get shot. Solis understood this statement to refer to himself,
Truong, and Vega. The other three masked persons stood behind
the individual speaking. Solis was scared, so he stepped aside to
“let them do whatever they wanted to do.” He was frightened
because of the statement that he would be shot if he interfered.
Immediately after the threat, all four masked individuals
dispersed throughout the pharmacy. They asked where the
drugs Promethazine and Percocet were located and began putting
medications in bags. Truong saw the individual wearing the red,
yellow, and black sweater taking medications. Two of the
individuals told Truong to open the pharmacy’s safe where
controlled medications were kept. Truong entered the code to the
safe and informed them it would open after a time delay. Truong
felt scared and did not want anyone to get hurt. She worried the
masked individuals would hurt her if the safe did not open
quickly enough. Even if they had not made a threat, Truong
found the situation “inherently scary” because there were people
in the pharmacy who were not supposed to be there.
Solis believed all four individuals were working together
because they jumped into the pharmacy “simultaneously,”
laughed together, and told each other to hurry up. Three of the
individuals left the pharmacy with the medications while one
waited for the safe to open.
Gustavo Gonzalez, a CVS cashier, called 911. He had seen
two of the individuals jump over the pharmacy’s counter, one of
3
whom wore a red, yellow, and black sweater. Gonzalez saw this
same individual run out of the pharmacy carrying a cash register.
He saw four people get into the same vehicle and drive away.
Gonzalez described the vehicle to the 911 dispatcher.
A police officer responding to the 911 call saw a vehicle
matching Gonzalez’s description of the car. The officer pursued
the vehicle until it flipped over and came to a stop. All four
individuals exited the car and fled on foot. After a pursuit, T.D.
and two others were arrested. The fourth person escaped. T.D.
was wearing a red, yellow, and black sweater.
In March 2022, the Orange County District Attorney’s
Office filed a Welfare and Institutions Code section 602 petition
alleging T.D. had committed second degree robbery (Pen. Code
§§ 211, 212.5, subd. (c))3 and a misdemeanor count of resisting
and obstructing an officer (§ 148, subd. (a)(1)).
At the adjudication hearing, defense counsel appeared to
concede T.D. was the person at CVS wearing the red, yellow, and
black sweatshirt or sweater. However, counsel argued T.D.
intended to commit a “smash and grab” theft, not a robbery.
Counsel also argued there was no evidence T.D. made the
threatening statement or intended that it be made.
The juvenile court found the petition’s allegations true and
declared the maximum term of confinement to be five years. The
court transferred the case to the Los Angeles Superior Court for
all further proceedings after determining that T.D. and his family
lived in Los Angeles County. At a June 2022 disposition hearing,
T.D. was placed in community camp for five to seven months.
T.D. timely appealed.
3 All further undesignated statutory references are to the
Penal Code.
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DISCUSSION
I. Standard of Review
“ ‘The same standard governs review of the sufficiency of
evidence in adult criminal cases and juvenile cases: we review the
whole record in the light most favorable to the judgment to decide
whether substantial evidence supports the conviction, so that a
reasonable fact finder could find guilt beyond a reasonable doubt.
[Citations.]’ [Citation.]” (In re A.G. (2020) 58 Cal.App.5th 647,
653.) Substantial evidence is “defined as reasonable and credible
evidence of solid value.” (People v. Vargas (2020) 9 Cal.5th 793,
820 (Vargas).) We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence, and we accept logical inferences drawn from
circumstantial evidence. (People v. Baker (2021) 10 Cal.5th 1044,
1103 (Baker).) We resolve conflicting inferences and credibility
findings in favor of the verdict. (People v. Collins (2021) 65
Cal.App.5th 333, 344 (Collins).) We do not reverse unless it
appears “ ‘ “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” ’ ” the factfinder’s verdict.
(People v. Penunuri (2018) 5 Cal.5th 126, 142.) “ ‘ “The standard
of review is the same in cases in which the prosecution relies
mainly on circumstantial evidence.” ’ ” (Vargas, at p. 820.)
II. Substantial Evidence Supports the Juvenile Court
Finding That T.D. Aided and Abetted a Robbery
T.D. argues the evidence was insufficient to support the
finding that he aided and abetted a robbery because there was no
evidence he threatened the CVS employees or heard the threat
made by someone else. We disagree.
“A person aids and abets the commission of a crime when
he or she, (i) with knowledge of the unlawful purpose of the
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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. Cooper (1991) 53 Cal.3d 1158, 1164
(Cooper).) Accordingly, “proof 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.” (People v. Perez (2005) 35 Cal.4th
1219, 1225.) Only T.D.’s knowledge of his cohort’s intent to
commit a robbery and T.D.’s intent to assist it is at issue here.
Robbery is “ ‘the felonious taking of personal property in
the possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.’ ”
(People v. Parson (2008) 44 Cal.4th 332, 349, citing § 211.) The
fear may be either “(1) [t]he fear of an unlawful injury to the
person or property of the person robbed, or of any relative of his
or member of his family; or, [¶] (2) [t]he fear of an immediate and
unlawful injury to the person or property of anyone in the
company of the person robbed at the time of the robbery.”
(§ 212.) “It is the use of force or fear which distinguishes robbery
from grand theft . . . .” (People v. Mungia (1991) 234 Cal.App.3d
1703, 1707.)
Factors to be considered in “determining aiding and
abetting of a robbery include presence at the scene of the crime,
companionship, and conduct before and after the crime, including
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flight.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294;
People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen) [same].)
These factors support the juvenile court’s finding that T.D.
aided and abetted the robbery. T.D. does not dispute that he was
present during the crime. He was identified at the hearing as
one of the four individuals who fled the vehicle and as the person
wearing the red, yellow, and black sweatshirt or sweater. While
mere presence at the crime is insufficient to establish aiding and
abetting (People v. Campbell (1994) 25 Cal.App.4th 402, 409
(Campbell)), here there is evidence of collective conduct before
and after the crime and of companionship. The perpetrators all
wore ski masks and black clothing, suggesting they planned the
crime together in advklklance. All four jumped behind the
counter at roughly the same time. After entering the pharmacy
area, all stood behind the member of the group who made the
threatening statement to the pharmacy employees. Only after
the statement was uttered did the four masked individuals
disperse to gather medications.
While T.D. contends he only intended to conduct a “smash
and grab” theft, the evidence suggested the plan encompassed
more. The perpetrators did not simply grab items and run. They
asked where specific controlled drugs were located and one
waited to obtain those narcotics from a safe with a time-delayed
opening. These specific requests indicated the group knew in
advance that the cooperation of pharmacy employees would be
necessary to accomplish the crime. The individuals appeared to
work together, telling each other to hurry up. The group’s acts
appeared coordinated. All drove away in the same vehicle. After
a high-speed chase and car accident, all fled the vehicle on foot.
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“Their concerted action reasonably implies a common
purpose . . . .” (Campbell, supra, 25 Cal.App.4th at p. 409.)
T.D. argues there is no evidence he specifically intended to
take property by fear or knew one of his cohorts intended to do so.
However, “[a]iding and abetting may be shown by circumstantial
evidence.” (People v. Glukhoy (2022) 77 Cal.App.5th 576, 599.)
“ ‘Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a conviction.’ [Citation.]” (Nguyen,
supra, 61 Cal.4th at p. 1055.) Either T.D. made the threatening
statement himself or he stood directly behind the person who
made it. (Campbell, supra, 25 Cal.App.4th at p. 409 [evidence of
concerted action when defendant approached victims with
perpetrator who said it was a robbery; defendant then remained
in position].) After one person conveyed the threat, T.D. took the
medications and cash register. Resolving all conflicting
inferences in favor of the juvenile court order, and accepting all
logical inferences drawn from the circumstantial evidence, we
conclude the juvenile court could reasonably find T.D. heard the
threat or knew that a threat would be used to accomplish the
theft.4 (Baker, supra, 10 Cal.5th at p. 1103; Collins, supra, 65
Cal.App.5th at p. 344.)
4 T.D. argues the juvenile court at one point inaccurately
characterized the threat to shoot the CVS employees as “yelled”
rather than “said.” We disagree that the court’s choice of words
was significant or invalidated its ultimate findings. (Diaz v. Grill
Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 874 [appellate
review is of trial court ruling not reasoning].) The evidence
established that an audible threat was made while all four
individuals, including T.D., stood together, and that after the
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Moreover, even accepting T.D.’s assertion that he originally
intended to commit only a theft, the evidence also supported a
finding that his intent to aid and abet the robbery formed during
the commission of the crime. (Cooper, supra, 53 Cal.3d at p. 1164
[getaway driver with no prior knowledge of robbery liable on
aiding and abetting theory so long as driver forms the intent to
facilitate or encourage commission of the robbery prior to or
during the carrying away of loot to place of temporary safety].)
There is no evidence that after one of the individuals threatened
to shoot any employee who moved, T.D. was “surprised” or “afraid
to interfere.” (Campbell, supra, 25 Cal.App.4th at p. 409.)
Instead, he continued to participate in the robbery by gathering
medications and stealing a cash register. T.D. was not an
“innocent, passive, and unwitting bystander.” (Id. at p. 410.) He
was a continuous participant in the crime before, during, and
after the threatening statement, such that it is reasonable to
infer his intent to aid and abet a robbery. (Campbell, at pp. 409–
410; In re Juan G. (2003) 112 Cal.App.4th 1, 5 [sufficient
evidence minor aided and abetted robbery where minor was with
accomplice immediately before robbery and during attempted
escape, and stood next to accomplice while he demanded money
from victim at knifepoint].)
III. The Juvenile Court Incorrectly Calculated the
Maximum Term of Confinement
The parties agree, as do we, that the juvenile court
threat was made, ensuring the employees’ cooperation, the four
individuals began collecting medications. Whether the threat
was spoken in a normal voice or yelled, the evidence supported a
finding that T.D. aided and abetted the taking of property
accomplished by force or fear.
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incorrectly calculated T.D.’s maximum term of confinement. We
reverse that portion of the court’s order and remand for
recalculation.
Under Welfare and Institutions code section 726,
subdivision (d)(1), if a minor is adjudicated a ward pursuant to a
Welfare and Institutions code section 602 petition, the court’s
order of wardship must “specify that the minor may not be held
in physical confinement for a period in excess of the middle term
of imprisonment which could be imposed upon an adult convicted
of the offense or offenses which brought or continued the minor
under the jurisdiction of the juvenile court.”
If the court “aggregate[s] the period of physical confinement
on multiple counts,” then the “ ‘maximum term of imprisonment’
shall be the aggregate term of imprisonment specified in
subdivision (a) of Section 1170.1 of the Penal Code.” (Welf. &
Inst. Code, § 726, subd. (d)(3).) Section 1170.1, subdivision (a)
provides: “The subordinate term for each consecutive offense
shall consist of one-third of the middle term of imprisonment
prescribed for each other felony conviction.” This applies to
subordinate misdemeanor convictions as well. (In re David H.
(2003) 106 Cal.App.4th 1131, 1134.)
The middle term of imprisonment for second degree robbery
is three years. (§ 213, subd. (a)(2).) Misdemeanor resisting and
obstructing an officer is punishable by imprisonment in county
jail not to exceed one year. (§ 148, subd. (a)(1).) This subordinate
misdemeanor term calculated at one-third is four months. T.D.’s
maximum aggregate term of confinement for the count of second
degree robbery and count of resisting arrest is therefore three
years and four months. We reverse the portion of the court’s
order setting the maximum term of confinement at five years and
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remand to the juvenile court for recalculation.
T.D. also contends the juvenile court erred by failing to
calculate his predisposition credits at the disposition hearing. (In
re Edward B. (2017) 10 Cal.App.5th 1228, 1238.) As we remand
this matter for further proceedings, we need not address this
contention. Any issues related to the calculation or recalculation
of predisposition credits may be raised in the juvenile court on
remand.
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DISPOSITION
The order is affirmed, except as to the calculation of the
maximum term of confinement which is reversed and vacated.
The matter is remanded to the juvenile court for further
proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
LAVIN, J.
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