Filed 2/22/18 In re T.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 T.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

T.M.,

Defendant and Appellant.

F075185

(Super. Ct. No. JJD070067)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Judge.
Sandra Gillies, 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, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
The court adjudged appellant T.M. a ward of the court (Welf. & Inst. Code, § 602) after it sustained petition allegations charging him with first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1), first degree robbery (§ 211; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), and battery with serious bodily injury (§ 243, subd. (d); count 4).
On appeal, appellant contends: (1) the court used the wrong standard in finding he aided and abetted the commission of the assault with a deadly weapon and battery with serious bodily injury offenses; and (2) the evidence is insufficient to sustain the court’s finding that he aided and abetted the commission of these offenses. We affirm.
FACTS
The evidence at appellant’s jurisdictional hearing established that on September 11, 2016, at approximately 10:00 a.m., Jay Hoyt and his wife returned to their two-story home in Visalia, California, and found a screen removed from a bathroom window and the back door and security door wide open. Hoyt’s wife waited while Hoyt entered the house to make sure no one was inside. A short time later, as Hoyt’s wife spoke to the 911 operator, she saw two boys, one with a backpack, run through a gate between the front and backyard of the house, away from her and the house. She then saw Hoyt in the front yard bleeding from his head.
Hoyt testified that when he got to the living room, he yelled out that whoever was in the house needed to get out because he had a gun and would shoot them. Hoyt found things in disarray in several rooms on the first floor. Hoyt walked upstairs to his office and found drawers and cabinets open and things on the floor. He walked into the upstairs bedroom and found some cabinet drawers open. Hoyt left the bedroom and when he returned, he saw appellant’s brother, A.J., under the bed. Hoyt told A.J. to get out and the next thing he recalled, he was wrestling with him on the bed. After A.J. stood up on the floor, appellant came into the room and “[b]lind-sided” Hoyt with a punch to Hoyt’s left eye that knocked his glasses off. Hoyt then grabbed A.J.’s fingers and tried to break them by bending them back. Appellant pleaded with Hoyt not to hurt his brother because he was autistic. Appellant grabbed two antique porcelain containers for a boudoir set and some items from atop a dresser and threw them at Hoyt. !(RT: 650, 657.)! Hoyt then started fighting with both minors.
Eventually appellant and A.J. ran into the bathroom and Hoyt dialed 911. He then held on to the door to prevent them from opening it. The minors, however, were able to open the door and in the process pulled Hoyt into the bathroom. Hoyt cornered appellant on the floor between the toilet and the shower wall and they began hitting each other. Fearing for his life, Hoyt grabbed a pair of scissors from a drawer, attempted to stab appellant, and instead scratched him on his upper left arm. A.J. then threw a curling iron that hit a wall and made a hole in it before it struck Hoyt on the back and broke in half. A.J. also threw a humidifier at Hoyt that struck him in the right shoulder and broke. Next, A.J. cut Hoyt on the right side of his head by striking him with a toilet paper dispenser’s metal base that weighed approximately 10 pounds. A.J. then struck Hoyt three or four more times with the base on the left side of his head. The next thing Hoyt remembered was going out the front door of his house and seeing appellant and A.J. running away.
Hoyt was transported to the hospital by ambulance where the cut on his head was glued shut. He also suffered a concussion that left him with “memory issues,” a black eye, and a scraped knee.
Subsequently, Hoyt determined that several items were missing from his house including a mason jar that was full of change, movie tickets, a Gideon Bible, two phone chargers, speakers for his computer and a cell phone.
Video from a neighbor’s surveillance camera showed two people walk up to the Hoyts house at about 9:37 a.m., the Hoyts arriving there at approximately 10:00 a.m., and two people running away from the house at approximately 10:08 a.m.
Visalia Police Detective Jeff Dowling interviewed appellant on September 12, 2016. Appellant told Officer Dowling that he and A.J. were walking to a friend’s house when they saw a house that looked like nobody was home and A.J. told appellant, “Let’s go in.” Appellant said “No,” that it was wrong, but A.J. did not listen and he went around the back, removed a screen from a bathroom window and both minors entered the house. As appellant followed A.J. upstairs, appellant told him they needed to leave. A.J. was taking a laptop from an upstairs bedroom when a man came home and yelled that he knew someone was in the house and that he had a gun. The boys then hid under a bed. However, the man saw them, pulled them out from under the bed, and a fight began during which appellant and the man exchanged blows and appellant threw objects at the man.
Appellant and A.J. ran into the bathroom and locked the door. The man, however, was able to get into the bathroom and began hitting A.J. When appellant began pushing the man off of A.J., the man pulled out a pair of scissors and stabbed appellant on the arm. Appellant told the man to stop punching A.J., that A.J. was autistic, and the man began bending A.J.’s fingers back. Appellant admitted punching and pushing the man a few times but claimed he was acting in self-defense. After the man scratched him on the arm, appellant and A.J. fled from the residence and went home. Appellant also stated that A.J. took a cell phone, but appellant did not take any property from the house.
DISCUSSION
Legal Standards
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ [Citations.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. [Citation.] Reversal on this ground is unwarranted unless ‘ “upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Section 245, subdivision (a)(1) provides that when an assault is committed with a deadly weapon it is punishable as a felony (by imprisonment in the prison for two, three, or four years) or a misdemeanor (by incarceration in a county jail for up to a year).
To prove a violation of section 245, subdivision (a)(1) the prosecution must establish that a person was assaulted by use of a deadly weapon or instrument. (People v. Griggs (1989) 216 Cal.App.3d 734, 739.) “[A] ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ ” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
“A battery is any willful and unlawful use of force or violence upon the person of another.” (§ 242.) A battery with serious bodily injury is a battery committed against a person that results in serious bodily injury. (§ 243, subd. (f).) Section 243, subdivision (f)(4) defines serious bodily injury as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.”
“[S]ection 31, which governs aider and abettor liability, provides in relevant part, ‘All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission ... are principals in any crime so committed.’ An aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ [Citation.]

“ ‘ “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.” ’ [Citations.] ‘Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.’ [Citation.]

“A nontarget offense is a ‘natural and probable consequence’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ‘ “is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” ’ [Citation.] Reasonable foreseeability ‘is a factual issue to be resolved by the [trier of fact].’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu). Third bracketed insertion added.)
The Court Did Not Use the Wrong Standard in
Determining the Truth of the Battery and Assault Charges
In finding the four charges true, the court at one point stated that when Hoyt confronted the minors, “an altercation ensue[d] in which both of these minors acting in concert use[d] force and violence against Mr. Hoyt.” (Italics added.) Later in its comments the court stated, “These individuals were acting in concert in [the] manner in which they entered the house, the manner in which they used force and violence upon Mr. Hoyt.” (Italics added.)
Appellant cites the court’s comments that he and his brother acted “in concert” to contend the court used the wrong standard in finding him vicariously liable as an aider and abettor for his brother’s commission of the offenses of assault with a deadly weapon and battery with serious bodily injury against Hoyt. Appellant further contends “acting in concert” is not synonymous with “aiding and abetting” (People v. Jones (1989) 212 Cal.App.3d 966, 969) because although acting in concert requires two or more people to act together, it does not require them to have the requisite intent for an aider and abettor, i.e., the “intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Chiu, supra, 59 Cal.4th 155, 161.) Thus according to appellant, the court’s use of the term “in concert,” indicates it found the battery and assault charges true without finding that he had the required intent to be an aider and abettor and, instead, found only that he acted in concert with his brother. We disagree.
“It is presumed that official duty is regularly performed.” (Evid. Code, § 664.) Further, an appellant has the affirmative duty to show error on appeal. (People v. Goodall (1951) 104 Cal.App.2d 242, 249.)
The phrase “in concert” means “together.” (Merriam-Webster Online Dict. (2017) <https://www.merriam-webster.com/dictionary/concert> [as of Dec. 22, 2017].) Appellant and his brother acted together in entering the house, rummaging through it and assaulting Hoyt in order to escape. Thus, the court’s statements that appellant and his brother acted “in concert” during the commission of the charged offenses was an accurate description of their conduct.
During his closing argument, appellant’s counsel argued that appellant did not commit a burglary because his intent in entering Hoyt’s house was to get his brother out of there. Derivatively, he also argued that since he did not enter the house to commit a burglary, he still had the right to assert self-defense as an affirmative defense against the battery and assault charges. The court’s statements that appellant and his brother acted “in concert” appear to have been directed at the implication of counsel’s argument that appellant and A.J. were acting independently of each other, and, as noted above, was an accurate description of their conduct. Thus, appellant has not met his burden of affirmatively showing error because the statements at issue, by themselves, do not indicate the court used an erroneous standard in determining appellant’s liability as an aider and abettor for the offenses A.J. committed.
In any event, as noted above, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also for any other offenses that are a “natural and probable consequence” of the crime aided and abetted. (Chiu, supra, 59 Cal.4th at p. 158.)
“Aider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature. [Citations.] ‘By its very nature, aider and abettor culpability under the natural and probable consequences doctrine is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all. It imposes vicarious liability for any offense committed by the direct perpetrator that is a natural and probable consequence of the target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.’ ” (Chiu, supra, 59 Cal.4th at p. 164. Italics added.)
“Moreover, the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1120.)
With respect to the burglary offense, appellant acted in part as the actual perpetrator and in part as the aider and the abettor to his brother. Further, the court could reasonably have found that the assault with a deadly weapon and the battery with serious injury offenses were the natural and probable consequences of the target offense of burglary that A.J. committed and appellant aided and abetted. (Cf. People v. Nguyen (1993) 21 Cal.App.4th 518, 530-531 [Murder generally found to be a reasonably foreseeable result of a plan to commit burglary despite its contingent and less than certain potential].) Since the court did not have to determine appellant’s mental state in determining appellant’s vicarious liability for these offenses under the “natural and probable” consequences theory of aiding and abetting liability, its use of the phrase “in concert” does not indicate that it applied an erroneous standard in finding these charges true. Accordingly, we reject appellant’s contention that the court used the wrong standard in determining appellant’s vicarious liability for the battery and assault offenses.
The Evidence was Sufficient to Sustain the Court’s True Finding
on the Battery and Assault Charges
Appellant contends that while they were in the bathroom his actions were focused on his fight with Hoyt, not on A.J.’s use of the base of the toilet paper dispenser, which appellant asserts was the basis for his vicarious liability for the battery and assault offenses. Thus, according to appellant, the evidence is insufficient to sustain his adjudication for these offenses because it failed to “show the knowledge and actions necessary to support [appellant’s] culpability for his brother’s assault and battery.” Appellant is wrong.
As discussed above, because appellant aided and abetted the burglary committed by A.J., he was liable for the natural and probable consequences of that target offense. Appellant concedes that by striking Hoyt with the heavy base of the toilet paper dispenser, A.J. committed the offenses of assault with a deadly weapon and battery with serious injury. Further, since the court could reasonably find that these offenses were the natural and probable consequences of A.J.’s burglary offense, the evidence is sufficient to support the court’s finding that appellant committed these offenses, even if appellant did not assist or intend to assist his brother in striking Hoyt with the metal base. Accordingly, we reject appellant’s sufficiency of evidence claim.
DISPOSITION
The judgment is affirmed.