Filed 7/7/17 In re X.M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

In re X.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

X.M.,

Defendant and Appellant.

F073192

(Fresno Super. Ct. No. 14CEJ600362-1A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
X.M. was the subject of a Welfare and Institutions Code section 602 petition, alleging he had committed robbery. The juvenile court found the allegation true. X.M. contends the evidence is insufficient to sustain the true finding. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
The juvenile wardship petition alleging X.M. had committed robbery was filed on November 24, 2015. At the detention hearing, X.M. denied the allegation in the petition. At that same hearing, the juvenile court ordered disposition in a pending case, case number 14CEJ600362-1, in which X.M. had admitted a second degree burglary allegation, to trail the current case. X.M.’s case was consolidated with that of another minor, D.H., who also allegedly participated in the robbery.
The victim, witnesses, and law enforcement officers testified at the contested jurisdictional hearing. The victim, Joseph B., testified he was walking home when two African-American males came up behind him and attacked him. One assailant grabbed Joseph’s arm and punched him on the right side of his face; the other assailant hit Joseph on the left side in the jaw. One of the assailants ordered Joseph to hand over all his money.
Joseph lost consciousness, waking up on the ground with several witnesses around him. Joseph was missing his cell phone and wallet. Joseph was unable to identify specifically his assailants.
Tommy Puentes was a reluctant witness. He claimed he did not recall telling officers that he watched the victim walking and saw two African-American males walk up to the victim, hit the victim, and knock the victim to the ground; then four more males ran and caught up with the first two assailants. Puentes denied calling 911 or identifying any of the assailants.
Joni Nickles was driving down the street when she saw the victim walking on the other side. Nickles saw a group of about five boys come up behind the victim and start hitting him. She turned at the closest street to loop back around, but when she got to the victim, he was on the ground and the assailants were gone. Nickles spoke with officers, who asked her to try to identify two suspects. Nickles identified X.M. and D.H. as two of the males she saw assaulting the victim. Nickles testified she saw X.M. hitting Joseph.
Fresno County Sheriff’s Deputy Larry Swain was working a patrol shift. He was dispatched to a report of an armed robbery and detained D.H. at gunpoint. Swain placed D.H. in the back of his patrol vehicle.
Sheriff’s Deputy Todd Talent also was on patrol and dispatched in response to a 911 call about a robbery. At the scene, Talent spoke with Puentes, who informed him he had been standing outside his house when he saw a male walking along and two black males ran to catch the victim. Once they got to the victim, they attacked him and took him to the ground. Puentes observed four other males running after the victim; they were a little behind the first two. Puentes went inside to call 911. He provided Talent with a description of the first two assailants.
Deputy Talent also spoke with Nickles. She informed him she had seen the same thing. Two initial assailants, with four following shortly behind.
Sheriff’s Deputy Darrel Olivas was also dispatched to the scene. Olivas was checking the area for five male suspects that had fled the scene headed westbound. Olivas took Puentes and Nickles, separately, to infield showups where they each identified X.M. as one of the group of males attacking Joseph.
Sheriff’s Detective George Razo interviewed D.H. after he was detained; he recorded the interview. D.H. stated he was told to be a “look out,” and that X.M. and another person were trying to take the victim’s cell phone. D.H. stated they got the cell phone from the victim and that five boys total were involved.
Sheriff’s Deputy Aurelio Flores also was dispatched to the scene of the robbery and ended up detaining X.M. Flores noticed that when he detained X.M., X.M. appeared sweaty as though he had been running; his shirt was torn; and he had scrapes on him.
Deputy Flores interviewed X.M., who stated he and a few friends were talking about “whacking someone.” X.M. stated that “whacking” meant committing a robbery. X.M. told Flores he was with “Nick” and Nick’s friends when they began “skipping,” which meant they were going to “whack” someone. He witnessed Nick and Nick’s friend jump the victim and saw that a cell phone was taken from the victim. X.M. knew they were going to “whack” someone, as they had all been talking about it. X.M. fled after the robbery. X.M. claimed he did not hit the victim.
At the conclusion of the jurisdictional hearing, the juvenile court articulated its reasoning for the true finding, including lengthy comments on the concept of liability as an aider and abettor. Ultimately, the juvenile court concluded:
“So what we have is that whatever the precise role of these two young men was they each voluntarily accompanied the others, participated in whatever planning process there was, and they never vacated themselves from the scene of the crime. They never took any steps to assist the victim in the case and in fact fled with them. And … actually it’s the flight that ultimately, I think, is most telling about their liability for this act….”
On January 14, 2016, at the disposition hearing, the juvenile court removed X.M. from the custody of his mother, adjudged him a ward of the court, and placed him under the supervision of the probation department until February 14, 2017. The juvenile court set a maximum period of confinement for this case and case number 14CEJ600362-1, combined, as five years four months; awarded 64 days of credit; and committed X.M. to the Juvenile Justice Campus for a period of 60 days. The juvenile court also fixed various terms and conditions of probation.
X.M. filed a notice of appeal on February 5, 2016.
DISCUSSION
X.M.’s sole contention on appeal is that the evidence is insufficient to sustain the true finding he participated in a robbery. He contends the evidence shows he was present at the scene of the robbery, but not that he was a participant. We disagree.
A. Standard of review
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) We accept the logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise. (Ibid.) Our review is the same in a prosecution primarily resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do not reweigh the evidence or reassess the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (Ibid.)
B. Robbery
“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.” (Pen. Code, § 211.) Thus, the elements of robbery are: (1) the taking of personal property (2) from a person or the person’s immediate presence (3) by means of force or fear, (4) with the intent permanently to deprive the person of the property. (Ibid.; People v. Marshall (1997) 15 Cal.4th 1, 34.)
“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. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164 (Cooper).)
Neither presence at the scene of a crime nor failure to prevent its commission is sufficient alone to establish aiding and abetting. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) “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. [Citations.]” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) “In addition, flight is one of the factors which is relevant in determining consciousness of guilt. [Citation.]” (Id. at p. 1095.) For purposes of determining aiding and abetting, “the intent to facilitate or encourage [the] commission of the robbery [must be formed either] prior to or during the carrying away of the loot to a place of temporary safety.” (Cooper, supra, 53 Cal.3d at p. 1165, some italics omitted, fn. omitted.)
C. Analysis
Here, X.M. admitted participating in the discussions and planning to “whack” someone, or rob someone. Nickles identified X.M. as one of those assaulting Joseph and participating in the robbery. Nickles testified, and Puentes told officers at the time, that two males came from behind and attacked the victim, followed closely by other males.
The testimony of a single witness is sufficient to support a conviction or true finding. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) Nickles’s identification of X.M. as one of the participants in the robbery is sufficient to establish that X.M. participated in robbing Joseph. (People v. Young, supra, at p. 1181.)
That X.M. was more than a mere bystander to the robbery is supported not only by Nickles’s testimony, but by X.M.’s own admission in his recorded interview with Deputy Flores that he participated in the planning. This out-of-court statement by X.M. was properly admitted as an exception to the hearsay rule. (Evid. Code, §§ 1204, 1220.)
In sum, X.M. admitted participating in the planning of a robbery; X.M. was identified by witnesses as being part of the group that robbed Joseph, either as one who hit Joseph or who ran after Joseph and joined with the others attacking the victim; and X.M. fled the scene after the robbery was committed. (In re Lynette G., supra, 54 Cal.App.3d at pp. 1094–1095.) Combined, this evidence is sufficient to establish that X.M. was liable as a principal or an aider and abettor to the robbery. (People v. Lara (2017) 9 Cal.App.5th 296, 315.)
DISPOSITION
The order is affirmed.