In re M.S. CA1/4

Filed 4/11/13 In re M.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re M.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
M.S., A136298
Defendant and Appellant. (Alameda County
Super. Ct. No. SJ1201928301)
After a contested jurisdictional hearing, the juvenile court found that M.S.
(appellant) committed first degree robbery. (Pen. Code, § 212.5, subd. (a).) Based on
this finding, appellant was adjudicated a ward of the juvenile court and placed on
probation with a maximum term of confinement of six years. (Welf. & Inst. Code, § 602;
Pen. Code, § 213, subd. (a)(1)(A).) On appeal, appellant contends there is insufficient
evidence that he aided and abetted the commission of the robbery. 1 We affirm.
1
In his opening brief, appellant also asserted that the juvenile court erroneously set
his maximum term of confinement at six years, five months. Appellant subsequently
withdrew this claim in his reply brief, conceding that his counsel confused the maximum
term imposed for appellant with the maximum term imposed for a co-defendant.
1
I. FACTS
A. Prosecution Evidence
At approximately 7:30 a.m. on May 29, 2012, Yosan Gebrenarian was riding on a
San Francisco Municipal Railway (Muni) 5 Fulton bus headed west on Market Street.
Gebrenarian sat in a window seat on the driver‟s side of the bus, “a row . . . behind . . .
the back doors.” While sitting there, she read an article on her iPhone and listened to
music through headphones. The bus stopped about ten minutes later, and a young black
woman wearing a puffy coat got on, followed by four males: appellant, C.E., S.S.C., and
another individual identified only as David. All four males wore hooded sweatshirts:
David in grey, C.E. and S.S.C. in black, and appellant in purple. The young woman sat
next to Gebrenarian and started “digging through her purse.” Feeling a “little suspicious”
about the young woman‟s actions, Gebrenarian put her headphones and phone in her bag.
About five minute later, the young woman stood up and walked towards appellant,
who was sitting in the back of the bus. Appellant was on the passenger side of the bus in
a rear-facing seat two rows from the back. S.S.C. sat across from appellant facing
forward. The young woman sat next to appellant and said something to him. Appellant
then switched seats with S.S.C.
Approximately five minutes later, the young woman returned to the seat next to
Gebrenarian. The young woman started “digging through her purse again.” Then, about
a minute later, Gebrenarian felt something against her thigh. Gebrenarian realized the
young woman was poking her with a gun. The young woman said to Gebrenarian,
“ „Give me what you got.‟ ” When Gebrenarian hesitated, the young woman said, “ „give
me your phone.‟ ” The young woman also told Gebrenarian “ „don‟t tell anybody. I‟ll
kill you.‟ ” Gebrenarian noticed the young woman look at a tall, thin, young, black man,
who was wearing a black hooded sweatshirt and standing by the rear exit door of the bus.
Fearing for her life, Gebrenarian got her phone from her bag and gave it to the young
woman. After Gebrenarian handed over the phone, the young woman demanded
Gebrenarian‟s bag. In response, Gebrenarian asked if the young woman wanted her
books, as they were the only things left in her bag. At that point, the bus stopped and the
2
young woman ran out. Accompanying the young woman was a “huddle” of young,
African-American men who had boarded the bus with her at Montgomery Street,
including the tall, thin one in the black hooded sweatshirt. As the group got off the bus,
Gebrenarian yelled out, “ „there‟s cameras.‟ ”2
Sara Lancaster, an attorney, happened to be riding the bus that day and witnessed
the following sequence of events. According to Lancaster, three or four young men
“crowded” around Gebrenarian and the young woman. At least two of the males wore
black hooded sweatshirts and one wore a purple hooded sweatshirt. They stood in a
manner that “felt threatening.” At least one of the males held onto the hand rail in way
that “felt like an effort to trap someone in a seat.” One of the standing males pulled the
bus cord, causing the bus to stop at Powell Street. As the young woman ran off the bus,
she had to “push” her way through the group of males, who were crowding the aisle. The
group of males left quickly behind her.
The group of males looked back at the bus as they caught up with the young
woman. One boy, who Lancaster described as “Asian,” looked back while he was “just a
few feet a way from the bus.” The other boys looked back when they were about 17 feet
away. They appeared concerned or nervous. One of the males put his arm on the young
woman‟s shoulder as he caught up with her. When members of the group got close to the
Bay Area Rapid Transit (BART), they started running.
Lancaster had been paying close attention to the young woman and the group of
males—both on the bus and after they got off—because she had initially thought the
young woman may have been a potential victim. As the group disappeared from her line
of vision, Lancaster saw Gebrenarian in the front of the bus, telling the driver that she had
just been held up at gunpoint. When it became clear that the bus driver was not going to
call the police, Lancaster dialed 911 on her cell phone and handed it to Gebrenarian.
2
The video footage from the bus was introduced and played at the jurisdictional
hearing. On our own motion, we have augmented the record on appeal with this
recording, along with the other exhibits from the jurisdictional hearing. (Cal. Rules of
Court, rule 8.155.) We have viewed the recording, as well as the other exhibits admitted
at the jurisdictional hearing.
3
At 7:45 a.m., San Francisco Police Officers Michael Lee and Calvin Lew were on
Market Street just west of 7th Street, when they received a dispatch regarding a robbery
involving one female and three males. Two of the males were described as wearing
“dark clothing,” and the third was described as wearing a “purple-hooded sweatshirt.”
As the officers drove east on Market Street, they noticed appellant, S.S.C., and C.E.
walking south on Taylor Street. C.E. and S.S.C. wore black sweatshirts, and appellant
wore a purple sweatshirt. The officers detained appellant, C.E., and S.S.C. on Market
Street, between the Powell Street and Civic Center BART stations. Appellant complied
with Officer Lee‟s request to “get up against the wall.” As he was facing the wall,
appellant told Officer Lee, “ „I have a BB gun.‟ ” Officer Lee removed what he
described as a “semiautomatic-style handgun” and he handed it to another officer who
had arrived at the scene. The gun was black, and “resembled a real firearm with the
exception of . . . an orange tip that‟s typically at the muzzle where a bullet would come
out of a gun.” Someone had “painted over” the orange tip, but some of the paint was
coming off. Other than that, “it looked like a real gun.”
Officer Lew recovered Gebrenarian‟s iPhone from S.S.C.‟s pants pocket. Another
officer searched C.E. and recovered “a couple of wallets,” another iPhone, and a knife
with a “folding knife” that was “a couple of inches” long.
About 15 minutes after the robbery, officers arrived at the bus. The officers took
Gebrenarian a couple of blocks down and asked her if she could identify the suspects.
Gebrenarian was able to identify the tallest one, who was wearing a black hooded
sweatshirt. She said that one other individual “looked familiar,” but she did not
recognize the third person.
Officers also asked Lancaster to identify the three suspects. Lancaster said C.E.‟s
appearance was “consistent” with that of the Asian male she saw on the bus. As well,
appellant‟s, and S.S.C.‟s facial appearances, body types, and clothing were “consistent”
with those of the black males Lancaster saw on the bus.
After waving his Miranda rights, appellant spoke with Inspector William Toomey
at the police station. Appellant thought he was in trouble because someone he knew did
4
something “stupid” and because he possessed a BB gun. Appellant “change[d] the details
of how he got on the bus and who he was on the bus with.” His story contained several
inconsistencies. Initially, he said that he was never on the bus. Rather, he said that he
took BART from Oakland and exited at the Montgomery Street station, where he saw
some friends getting off the bus. When Inspector Toomey suggested there were
inaccuracies in his story, appellant admitted that he had been on the bus. Appellant said
that he got on and off the bus alone and he met up with the individuals he was detained
with once he got off the bus. He then told Inspector Toomey that he got on the bus alone
at Montgomery, and a group of his friends were already on board. At first, appellant said
that he sat in the last row of the bus on the right-hand side. When Inspector Toomey
gave him time to reflect on his story, appellant said he sat in the second-to-last row.
Appellant did not make any statements about changing his seat while on the bus.
Appellant acknowledged seeing a robbery take place on the bus. He said it was a “stupid
choice” and a “dumb decision” to exit the bus with the robbers.
Appellant said that when he was on the street, “someone” handed him the BB gun
so he could take a look at it. He later told Inspector Toomey that he had had the BB gun
on him all along; the gun was purchased for him by someone he knew. Appellant said
that there were two BB guns on the day of the robbery, and the one he carried was not the
one used by the robber. Appellant said the young woman had either fled with the other
gun, or had given it to someone else.
B. Defense Evidence
On May 29, 2012, appellant took BART to San Francisco to go to a recording
studio with his friend L.R. Appellant left Oakland for San Francisco about 6:30 a.m. He
exited BART at the Montgomery Street station and waited for a bus. He planned to take
the bus to a liquor store on Powell Street to buy a “Swisher” cigarette to fill it with
marijuana. He then planned to take a bus to Third Street to meet up with L.R. While at
the bus stop, he saw S.S.C., C.E., David, and “some girl.” Appellant did not know
David, and he had never before seen the girl. Appellant had the BB gun with him
because he wanted to shoot at targets with the gun. C.E. had purchased the BB gun for
5
him the previous day. Appellant was aware that another gun had been purchased also,
but he did know its location. There was no discussion of a robbery.
Appellant sat in a “four-seater” facing the back of the bus, on the passenger side.
S.S.C. sat across from appellant, and the girl initially sat “somewhere behind” them. C.E.
and David sat on the other side of the aisle. The girl walked from the front of the bus and
sat in the empty seat next to appellant. She whispered something in appellant‟s ear.
Appellant could not hear her because she spoke in a low whisper and the sound of the bus
“overrode her whisper.” The girl then “mad[e] some kind of contact” with S.S.C. As
S.S.C. and the girl were talking, S.S.C. nodded to appellant, and they “just got up and
switched” seats.
The girl then got up and moved to the driver‟s side of the bus and sat next to “a
woman.” The woman “jumped out of fear.” Although appellant was initially unable to
see the woman‟s face as she was facing forward, she twisted her torso and turned to the
right. Appellant could tell that something was wrong. He turned his head away because
he “didn‟t want to be a part of it all,” and he did not want to see the robbery take place.
He did not take out his gun and loan it to the girl.
About five or ten seconds later, C.E., S.S.C., and David stood up and started
walking. Appellant remained seated because he was waiting for his stop and he “didn‟t
want to be part of [the robbery].” One of the boys pulled the bus cord and stood up over
the woman being robbed. The bus stopped, and the girl ran off. Appellant “figured” that
since he was not with the girl, he could not get in trouble, so he got off the bus as well.
Appellant said he changed his story when he spoke with police because it was his
first time at a police station and he was nervous.
6
II. DISCUSSION
A. Standard of Review
Substantial evidence is evidence that is reasonable in nature, credible, and of solid
value, from which a rational trier of fact could find the elements of a crime beyond a
reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553; People v. Samuel
(1981) 29 Cal.3d 489, 505.) The same standard of appellate review is applicable in
considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the
sufficiency of the evidence to support a criminal conviction. (In re Sylvester C. (2006)
137 Cal.App.4th 601, 605; In re Michael M. (2001) 86 Cal.App.4th 718, 726.) In either
case, we review the entire record in the light most favorable to the judgment and presume
in support of the judgment the existence of every fact the fact finder could reasonably
deduce from the evidence. (People v. Bolden, supra, 29 Cal.4th at p. 553.) If the
evidence permits a reasonable trier of fact to conclude the charged crime was committed,
the opinion of a reviewing court that the circumstances may also be reconciled with a
contrary finding does not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S.
307, 318-319; People v. Bean (1988) 46 Cal.3d 919, 933; In re Roderick P. (1972) 7
Cal.3d 801, 808-809.) Where a verdict is supported by substantial evidence, a reviewing
court must accord due deference to the trier of fact and not substitute its own evaluation
of a witness‟s credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Substantial Evidence Supports the Finding Appellant Aided and Abetted the
Robbery
Appellant contends there is insufficient evidence to support the finding that he
aided and abetted the robbery. He argues that he was merely present at the back of the
bus while the robbery was in progress. He points out that the evidence establishes
possibly nothing more than that he was “ just . . . along for the ride.”
“[A] person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.” (People v.
7
Beeman (1984) 35 Cal.3d 547, 561; see People v. Montoya (1994) 7 Cal.4th 1027, 1038-
1039.) Among the factors that may be taken into account when determining whether a
defendant aided and abetted a crime are presence at the crime scene, companionship, and
conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan
G.).) Mere presence at the scene of a crime, knowledge of the perpetrator‟s criminal
purpose, or the failure to prevent the crime do not amount to aiding and abetting,
although these factors may be taken into account in determining a defendant‟s criminal
responsibility. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530; People v.
Campbell (1994) 25 Cal.App.4th 402, 409.) “ „Whether defendant aided and abetted the
crime is a question of fact, and on appeal all conflicts in the evidence and reasonable
inferences must be resolved in favor of the judgment.‟ [Citation.]” (People v. Campbell,
supra, 25 Cal.App.4th at p. 409; Juan G., supra, 112 Cal.App.4th at p. 5.)
The evidence in this case supports the reasonable inference that appellant
knowingly and intentionally aided and abetted the robbery. Appellant armed himself
with a realistic-looking semi-automatic BB gun before he boarded the bus with the
woman who robbed Gebrenarian, and the three males who blocked her exit. Appellant
sat with the three males in the back of the bus, a few rows behind Gebrenarian. Prior to
robbing Gebrenarian, the young woman went to the back of the bus, whispered
something in appellant‟s ear, and then sat down next to him. Appellant then traded seats
with S.S.C., so that S.S.C. and the girl could talk. At this point, appellant was in a
forward facing seat and able to see the row where the victim sat. After contacting
appellant and S.S.C., the girl returned to her seat next to Gebrenarian and robbed her at
gunpoint. As the girl robbed Gebrenarian, three males crowded around the seat, while
appellant remained in a position to see everything that happened. He made no effort to
stop the events unfolding before him. Rather, once the robbery was over he fled the
scene with his companions. Given that the appellant boarded the bus with the girl who
robbed Gebrenarian and that she briefly sat near him on the bus and whispered something
to him, there was sufficient evidence to draw reasonable inferences that appellant gave
the girl the gun used in the robbery. The juvenile court was not required to believe
8
appellant‟s story that the group actually was traveling with two guns and that his gun was
not used in the robbery. (See People v. Ochoa, supra, 6 Cal.4th at p, 1206.)
Even if appellant committed no overt act during the course of the robbery, none
was required. Rather, his presence could have given encouragement to his companions
and acted as a deterrent to any resistance on the part of the victim. That is sufficient to
make him a participant in the crime. “The „act‟ required for aiding and abetting liability
need not be a substantial factor in the offense. „ “Liability attaches to anyone
„concerned,‟ however slight such concern may be, for the law establishes no degree of the
concern required to fix liability as a principal[,]‟ [[c]itation],” and extends to lookouts,
getaway drivers, persons present to divert suspicion or give warning to anyone who seeks
to interfere, and the like. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743;
People v. Phan (1993) 14 Cal.App.4th 1453, 1463-1464.)
The facts in this case closely parallel those in Juan G., supra, 112 Cal.App.4th 1.
There, Juan G. and Quincy D. approached the victim. Quincy spoke to the victim,
pointed a knife at him, and demanded money. Juan stood close enough to touch the
victim, and the victim felt threatened by him. When the victim complied, Quincy and
Juan fled. They were subsequently found by police together. (Id. at pp. 3-4.) In his
defense, Juan claimed he had not known Quincy had a knife or was planning to rob the
victim. (Id. at p. 4.) The juvenile court sustained a juvenile petition against Juan alleging
that he aided and abetted the robbery. (Ibid.) On appeal, the court rejected Juan‟s
argument that he was nothing more than an unwitting and passive bystander. (Id. at p. 5.)
The court relied on the fact that the minors approached the victim together; when Quincy
demanded money at knifepoint, Juan was beside him; the victim felt intimidated by Juan;
and after the robbery the minors fled together. (Id. at pp. 5-6.)
Also instructive is the case of In re Lynette G. (1976) 54 Cal.App.3d 1087 (Lynette
G.). In that case, one teenage girl struck a woman and took her purse while Lynette G.
and two other teenagers stood approximately five feet away. (Id. at pp. 1090-1091.)
When the victim called out for help, the four young women fled. They were
subsequently found and arrested together. (Id. at pp. 1091-1092.) Although there was no
9
indication Lynette G.‟s presence was threatening to the victim, the court in Lynette G.
nevertheless found that substantial evidence supported the finding that she had aided and
abetted the robbery. (Id. at p. 1095.) Based on its review of the evidence, the court
reasoned that, “[t]estimony by witnesses at the trial disclosed that [the minor] was present
at the scene of the crime and had fled with the perpetrator and two others after the crime
had been committed and was still in their company shortly thereafter. Although flight, in
and of itself, may be explained by a desire merely to disassociate oneself from an
unexpected criminal activity, the trial court was not required to adopt that view; it could,
reasonably, have concluded that had [the minor‟s] flight been from fear of an unjustified
charge of involvement, she also would have immediately disassociated herself from the
other three girls.” (Id. at p. 1095.) Accordingly, the court concluded: “On the record
before us, we cannot say that the trial court erred in finding that [the minor] had aided
and abetted the robbery of [the victim].” (Ibid.)
The facts that were present in Juan G. and Lynette G. are present in the instant
case. Here, appellant, armed with a realistic-looking BB gun, boarded the bus with the
woman who robbed Gebrenarian, and the three males who blocked her exit. They sat
together in the rear of the bus, and the perpetrator whispered something into appellant‟s
ear just prior to the robbery. As the girl robbed Gebrenarian, and the others males
trapped Gebrenarian in her seat, appellant remained seated while the events were
unfolding, and then got off the bus with his companions once the robbery was completed.
His acts of fleeing the scene and remaining with his companions, who were in possession
of Gebrenarian‟s stolen phone, as well as a knife, highlights his complicity in the
robbery. (See People v. Chagolla (1983) 144 Cal.App.3d 422, 429.)
Appellant‟s reliance on In re David K. (1978) 79 Cal.App.3d 992 is misplaced. In
David K., victim Langley was seated in the driver‟s seat of his car in a San Francisco
neighborhood when he saw three minors. (Id. at p. 997.) Two minors approached on the
driver‟s side and one on the passenger side. (Ibid.) One of the minors, George, put a
knife near Langley‟s neck and forced him to surrender his car and money. (Ibid.)
George entered the car and drove away. (Ibid.) Langley saw the heads of two other
10
individuals in his car. (Ibid.) He indicated that all three individuals were of Latin descent
and between 25 and 26 years old. (Ibid.) In contrast, David K. was a 17-year-old
Caucasian. (Id. at p. 998.) Three hours after the robbery, police observed Langley‟s car
in Yuba City. George and Salvador, who were of Latin descent, were in the front seat and
David K. was in the rear seat. (Id. at p. 997.) David K. had no money on his person but
Langley‟s wallet was between his legs. (Ibid.) The appellate court reversed an
adjudication order because the juvenile court‟s findings were not supported by sufficient
evidence. (Id. at p. 1001.) In so ruling, the court explained that “[t]he only evidence to
connect the minor David with the robbery of Langley is the fact that three hours after the
robbery, in a city some distance from the site of the robbery, David was found in the
company of the identified robber in the stolen automobile with personal property of the
victim being found in open view in the automobile. No cash proceeds of the robbery
were found on David‟s person and the empty wallet, purse, and binoculars belonging to
Mrs. Langley were in the back seat where David was seated. There is no evidence,
however, that he was exercising any dominion or control over these articles. The situs of
the articles as being in the back seat of the automobile where David was seated does not
tend to establish that David was exercising any control over these articles. [¶] To draw
an inference from these facts that David was one of the three persons at the site of the
robbery three hours earlier in another city would amount to pure speculation. It is to be
noted that Langley identified only the minor George as the actual perpetrator and gave a
description to the police that all three persons involved were of Latin descent and were
young adults. By no stretch of the imagination did appellant David, a Caucasian, fit into
any of the categories.” (Id. at p. 1000.)
The present case is distinguishable from David K. in several respects. First, video
evidence and witness testimony reveal that appellant entered and exited the bus with the
young woman who robbed Gebrenarian at gunpoint, along with the three males who
blocked her seat. Second, the young woman sat next to appellant and whispered
something to him just prior to robbing Gebrenarian at gun point. Third, shortly after the
crime, appellant was apprehended with two of the males who blocked Gebrenarian‟s seat.
11
Fourth, officers found appellant in possession of a realistic BB gun, while his
companions possessed Gebrenarian‟s phone, as well as a folded knife. Finally, appellant
admitted to observing his companions participate in the robbery and said his decision to
get off the bus with them was “dumb.”
Equally misplaced is appellant‟s reliance on People v. Hill (1946) 77 Cal.App.2d
287 (Hill). In Hill, the defendant was asked by the principals to drive around to look for
some girls. (Id. at p. 291.) After defendant was told to pull up to a nearby bar and wait
inside the car, two of the car‟s occupants entered the bar and robbed the bartender at
gunpoint. (Id. at p. 288.) Once they exited, they found the defendant asleep in the
driver‟s seat. (Ibid.) At trial, the two men who robbed the bar exonerated the defendant,
testifying that they asked him to drive around looking for girls and that they did not tell
him they were going to rob a bar. (Id. at p. 291.) The appellate court held that the
defendant‟s mere presence, without a showing of his knowledge of the perpetrators‟ plans
was insufficient to show he aided and abetted the crime. (Id. at p. 294.)
Hill is readily distinguishable from the instant case. Here, appellant did not sleep
through the robbery and his companions did not exculpate him. Without again detailing
the evidence, he boarded the bus with the perpetrator, briefly sat with her while she
whispered something to him, and he admitted that he knew the robbery had taken place.
Once the crime was completed, appellant fled the bus with the perpetrators. When
apprehended by the police shortly thereafter, appellant was found carrying a realistic-
looking BB gun, while in the company of the others males who had been on the bus and
who possessed the victim‟s stolen phone, as well as a knife. “Such conduct is a textbook
example of aiding and abetting. [Citations.]” (People v. Campbell, supra, 25
Cal.App.4th at p. 409.)
Substantial evidence supports the juvenile court‟s true finding that appellant aided
and abetted in the commission of the robbery.
III. DISPOSITION
The jurisdictional and dispositional orders are affirmed.
12
_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
HUMES, J.
13