In re T.L.

Filed 12/4/08 In re T.L. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A subsequent petition filed under Welfare and Institutions Code section 602, subdivision (a), alleged that defendant came under the jurisdiction of the juvenile court for committing murder (Pen. Code, 187) while with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1). The juvenile court found all of the allegations in the petition true beyond reasonable doubt. Defendant appeals and contends that substantial evidence did not support the finding that he committed felony murder based on his status as an aider and abettor of attempted robbery. Defendants argument is unpersuasive and we affirm the lower courts judgment.

BACKGROUND

On November 13, 2007, a subsequent delinquency petition under Welfare and Institutions Code section 602, subdivision (a) was filed. It alleged that defendant, the courts ward, committed murder (Pen. Code, 187). The petition further alleged that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1).

A number of witnesses testified at the jurisdiction hearing held in December 2007. According to F.S., a female minor, she accompanied her brother George, defendant, defendants brother, F.Y., Kevin, Tony, and Alex (the group) to Alameda to trick or treat on October 31, 2007. F.S., who was granted immunity for her testimony, stated that she saw Kevin had a gun. As they were walking, someone in a passing car threw eggs at them. Members of the group became angry and wanted to mess with some people. A little later, the group saw two girls and a male; F.S. walked away because she did not want trouble or to be a part of what her friends were doing. One of the two girls approached by the group said, Kevin are you going to do me like that? Kevin said, never mind and walked away.

The group then approached Washington Park, and one of the people in the group commented, I see some people over there. One of the boys said, Lets go over there. According to F.Y., who also was granted immunity for her testimony, Kevin said, Lets get them. F.S. and her friends crossed the street; F.Y. and F.S., the two girls, waited on the sidewalk while the boys walked into Washington Park together. F.Y. saw Kevin carrying a gun.

T.B., a friend of the victim, testified that on October 31, 2007, about 9:30 p.m., he and his friends and two other males, went to Washington Park in Alameda. They met a group of about five or six other friends near the playground in the park. There were about 11 or 12 people total; some of them were girls, including the victim, I.B. (Iko). T.B. reported that about 10:00 p.m., a group of approximately six or seven Asian youths entered the park from Central Avenue and walked towards the basketball court area of the park. The youths were wearing black and gray clothing with hoods.

T.B. stated that the Asian youths remained together as a group and the group walked up to T.B. and his friends. The group formed a half circle around T.B. and his friends. One of the boys in the groupa short male who was about four feet and seven or eight inches tallsaid, What are you looking at? One of T.B.s friends responded, Nothing. Another person from the groupa taller personsaid, Give us your money. T.B.s friends attempted to ignore the demand for money and began to walk away. The taller boy pulled out his gun and began shooting. T.B. said that his friends ran away and that he hid behind a tree. When T.B. saw the group turn to leave, he went back to the swing where he had been earlier. T.B. believed that the group had a fake gun and one of T.B.s friends yelled, Hey, to the group. A person from the group turned back and fired a shot that hit and killed Iko. One of T.B.s friends ran to a passing police officer and told him what had happened.

Police Officer Joseph McNiff interviewed defendant and his brother on November 9, 2007. Defendant said that on October 31, 2007, he was with his brother and a number of other youths, including Kevin and a person identified as Tony. According to defendant, Tony said, Lets go rob these people in the park. You down with this shit . . . . Defendant admitted entering the park, but said that his brother and he stayed off to the side while the others approached the intended victims. He said that Kevin fired the gun into the air over the victims heads and Tony fired the last shot that hit Iko. Defendant said that his companions and he then ran from the park.

On December 14, 2007, the court found true beyond a reasonable doubt that defendant had committed murder (Pen. Code, 187) while with a firearm (id., 12022, subd. (a)(1)). In elaborate detail the court explained that defendant was charged with murder under a theory that he aided and abetted the perpetrator in the commission of the attempted robbery. The court also found that the group knew about the gun. Recounting the witnesses testimony, the court explained that after eggs were thrown at the group, Tony stated that he wanted to go rob some people or mess with some people . . . . The court further noted that defendant and his brother claimed that they were separate from the group and stayed in the back when the boys entered the park, but the accounts by the other witnesses contradicted the brothers testimony. Three other witnesses stated that the group of six boys moved as a group, together in common pursuit. The court stated that after the boys demanded money, the taller boy, Kevin, pulled a gun and shot several rounds into the air and Iko and her friends ran for cover behind the trees. The victims then came out from behind the tree and there was some discussion about whether the gun was a cap gun. Tony now had the gun and he fired a shot that killed Iko. The court explained: And it is only after this that this group of six boys flees from Washington Park, again together, running to the bus together, fleeing together. The court concluded that defendant was an aider and abettor in the commission of the attempted robbery and was responsible for the murder of Iko under the felony-murder rule.

On January 25, 2008, the court continued defendant as a ward of the court, determined the maximum term was 26 years to life, and committed him to the California Youth Authority.

Defendant filed a timely notice of appeal.

DISCUSSION

The court found that Iko had been killed during the commission of an attempted robbery and that the allegations that defendant was guilty under the felony-murder rule for aiding and abetting the attempted murder were true. Defendant contends that substantial evidence did not support these findings that the attempted robbery had been abandoned by the time Tony killed Iko.

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on another ground in People v. Rundle (2008) 43 Cal.App.4th 76, 151.) We do not reweigh evidence or reevaluate a witnesss credibility. (Ibid.)

The only theory of first degree murder considered by the juvenile court was that the shooting of Iko constituted felony murder in the commission or attempted commission of a robbery. An aider and abettor of attempted robbery is guilty of the murder for any killing committed by an accomplice in the commission or attempted commission of the robbery. (People v. Washington (1965) 62 Cal.2d 777, 782 [All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design].)

Penal Code section 211 states, 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. An attempt to commit a crime is comprised of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. [Citations.] Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. (People v. Medina (2007) 41 Cal.4th 685, 694.)

Here, defendant does not dispute the finding that he aided and abetted the attempted robbery. Rather, he maintains that the robbery had been completed prior to the shooting of Iko and therefore the felony-murder rule does not apply. To support this argument, defendant cites T.B.s testimony that after money was demanded and shots were fired, the victims ran and hid behind the trees. Defendant asserts that the group of boys then started to leave the park and the attempted robbery had been completed. He maintains that it was only after the attempt to rob had been abandoned and the group had turned to leave that Tony fired the gun and killed Iko.

Defendants argument is unpersuasive. The evidence was that the victims returned to the swing area and one of the people yelled, Hey, and that is when Tony killed Iko. It was after Iko had been shot that, according to all of the witnesses, the group fled together from the park. Indeed, defendant told the officer that his companions and he ran together from the park after Iko was shot. Thus, the evidence supports a finding that Iko was shot to facilitate the boys escape.

Defendant attempts to distinguish the crime of robbery from the crime of attempted robbery, but provides no authority for that distinction. He acknowledges that the commission of the robbery includes the escape (see People v. Cooper (1991) 53 Cal.3d 1158, 1161), but claims the escape is not part of the commission of an attempted robbery. He asserts that a robbery continues until the robbers have left the crime scene because that is when they secure possession of the loot. (See e.g., People v. Ramirez (1995) 39 Cal.App.4th 1369, 1374 [ The nature of the crime [of robbery] is such that a robbers escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety ].) Since no loot needs to be secured in an attempted robbery, he maintains that the attempt is over once the demand for money has been abandoned. Thus, according to defendant, the commission of attempted robbery does not include any events after the attempt to obtain money has failed.

Defendants creative attempt to distinguish the commission of robbery from attempted robbery is not supported by logic or the law. (See, e.g., People v. Keith (1975) 52 Cal.App.3d 947, 953 [use of force or fear rather than the taking of property is the most significant element of robbery].) The felony-murder rule applies when the murder was committed for the purpose of carrying out or advancing the commission of the underlying crime or to facilitate escape or avoid detection. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 557.) The crime of robbery continues not simply until the loot is in a safe place; rather, it continues until the robber makes a safe escape becausewhether the crime is attempted robbery or robbery^[1]the robber will be concerned with reaching a place of safety and in denying the victim an opportunity to prevent the robbers escape or an opportunity to call the police. Infliction of great bodily injury at the scene of the robbery may facilitate the robbers ultimate getaway to a place of temporary safety. Disabling the victim will necessarily retard the victim from reporting the offense to the police. (People v. Ramirez, supra, 39 Cal.App.4th at p. 1375; see also People v. Barnett (1998) 17 Cal.4th 1044, 1153 [The court may conclude that no place of temporary safety has been reached while the robber is still encumbered with the victim, who at first opportunity might call the police ].) In the present case, at the time Iko was shot the group that had attempted to rob the victims had not left the crime scene.

Defendants attempt to rely on People v. Sandoval (1994) 30 Cal.App.4th 1288 (Sandoval) is unavailing. In Sandoval the defendant demanded money at gunpoint from a convenience store clerk. (Id. at p. 1295.) The clerk began to comply, then slammed the cash register drawer shut and attempted to reason with the defendant. The defendant responded by shooting the clerk and leaving the store without any further attempt to obtain money. (Id. at pp. 1295-1296.) The Court of Appeal upheld the imposition of separate punishments for attempted robbery and attempted murder for this incident because the court concluded that the defendant shot the clerk for his own purposes to punish [the clerk], or to assuage his own thwarted desires by seeking other and different gratification . . . . (Id. at pp. 1299-1300.)

As the Supreme Court has already pointed out, Sandoval dealt with what constitutes separate acts for purposes of sentencing under Penal Code section 654, and the separate acts inquiry is not central to the felony-murder rule. (People v. Wilson(2008) 43 Cal.4th 1, 17, fn. 6.) Murder and robbery may be separate acts for purposes of Penal Code section 654, notwithstanding that for purposes of the felony-murder rule the robbery is still considered to be ongoing. (People v. Nguyen (1988) 204 Cal.App.3d 181, 193, disapproved on other grounds in Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 458, fn. 6.) Moreover, the record in Sandoval may have supported a finding that the defendant did not shoot the clerk to facilitate his escape. Here, as already discussed, the record amply supported the finding that Tony fired the shot killing Iko to facilitate the boys escape and to prevent the people in the park from detaining or identifying them.

Defendant attempts to argue that the shouting, Hey, by someone in the park created a new challenge and created a new, independent incident. However, the question [w]hether a robbery [or attempted robbery] is over is a determination for the trier of fact unless the court determines, as a matter of law, that the infliction of great bodily injury is so far removed in terms of time or distance that the robbery is over as a matter of law. (People v. Ramirez, supra, 39 Cal.App.4th at p. 1375.) Here, the juvenile court impliedly found that Kevin responded to the yelling of Hey by firing the gun to deter the victims from following them and to prevent them from detaining or identifying them.^[2] The record supports the courts finding, as the shooting of Iko was not far removed in terms of time or distance: the shooting occurred where the demand for money took place and happened minutes after money had been demanded.

Accordingly, we conclude that substantial evidence in the record supported the courts finding that the murder of Iko occurred during the commission of the attempted robbery.

DISPOSITION

The judgment is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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^[1] In fact, the frustration level among the robbers may be higher in an unsuccessful robbery and the likelihood of violence may be even greater than it is when the robbers actually obtain money. Under defendants analysis, once a victim tells the robber that he or she does not have money, the robbery would be over and the subsequent killing of the victim in retribution or to prevent the victim from identifying the robber would not be part of the commission of the crime. There is no authority to support such an argument.

^[2] Defendant argues that policy supports his argument because, otherwise, liability would extend to persons attempting to abandon the attempted robbery and leaving the scene. Defendant ignores the fact that the rule he proposes would permit those not doing the shooting to escape culpability even though they know another person has a firearm and their escape will be facilitated by that person using or threatening to use the gun.