In re M.S.











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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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., Defendant and Appellant.	A136298 (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.href="#_ftn1" name="_ftnref1" title="">[1] We affirm.

>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 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.’ ”href="#_ftn2" name="_ftnref2" title="">[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.

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 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 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.

>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. 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 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 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
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. 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.

>









_________________________

REARDON,
J.





We concur:





_________________________

RUVOLO, P. J.





_________________________

HUMES, J.