In re Brendon A.
Filed 8/27/13 In re Brendon A. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re BRENDON A., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
BRENDON A.,
Defendant and Appellant.
D062687
(Super. Ct.
No. JCM229420)
APPEAL from
an order of the Superior Court
of
County, Carolyn M. Caietti and Browder A. Willis,
Judges. Affirmed.
Steven J.
Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Barry
Carlton, Supervising Deputy Attorney General, and Heather M. Clark, Deputy
Attorney General, for Plaintiff and Respondent.
Brendon A.
appeals the juvenile court's dispositional order continuing him as a ward of
the court and placing him on formal probation.
Brendon contends the evidence was insufficient to support the court's
findings that he committed one count of misdemeanor battery and two counts of
misdemeanor aggravated assault. Brendon also argues the probation condition
forbidding him to possess any weapons is invalid because it does not contain an
express knowledge requirement. We modify
the probation condition to include a knowledge requirement and affirm the
dispositional order as modified.
FACTUAL
BACKGROUND
After
school one day, Brendon and three other boys went to the house of
Thomas M. One of the boys brought
up the idea of shooting a BB gun, and the boys agreed to do so. The boys passed the gun around and took turns
shooting it; Brendon shot the gun two or three times. The gun was fired through three different
window screens, leaving 80 holes.
Tyler N.
and Michael S. were struck by BB pellets as they passed by Thomas's house
at separate times. Tyler
was walking alone when he felt a "snap" on his left ankle. He looked down and saw "a little BB gun
wound." Tyler
did not see the shooter, but he heard multiple people laughing when he was
shot. A few minutes later, Michael was
walking with his brother and two girls when he was struck twice in the left
thigh. As Michael looked at the red
marks on his thigh, he and his brother heard something "whizzing" or
"swishing" past their ears. Michael
and his brother thought someone was shooting at them and ducked behind a pickup
truck. When Michael peered over the bed
of the truck, a third pellet hit his bicycle helmet.
A police
investigator found several BB pellets on the sidewalk across the street from
Thomas's house. The investigator also
found the BB gun in Thomas's bedroom.
The manual that came with the gun stated it could cause great bodily
injury or death.
PROCEDURAL
BACKGROUND
The People
filed an amended petition under Welfare and Institutions Code section 602
alleging Brendon committed misdemeanor battery on Michael (Pen. Code,
§ 242), and committed misdemeanor assault by means of force likely to
produce great bodily injury on Tyler and Michael (id., §§ 17, subd. (b)(4), 245, subd. (a)(4)). The juvenile court (Hon. Carolyn M.
Caietti) conducted an evidentiary hearing and found the allegations of the
petition to be true. At the disposition
hearing, the court (Hon. Browder A. Willis) continued Brendon as a
ward of the court (he had been on court probation at the time of the current
offenses), and placed him on formal probation.
One of the conditions of probation stated that Brendon "shall not
use, possess, transport, sell or have in or under his/her control any firearm,
replica, ammunition or other weapon, including a knife, any explosive, or any
item intended for use as a weapon, including hunting rifles or shotguns."
DISCUSSION
A. Sufficient Evidence
Supports the Juvenile Court's Findings
Brendon
contends the evidence was insufficient to sustain the juvenile court's findings
that he committed the battery and assaults alleged against him. Specifically, he argues the People's aiding
and abetting theory failed because the prosecutor presented no evidence that
Brendon knew of the shooter's unlawful purpose or specifically intended to
facilitate the shooter's commission of the offenses. For reasons we shall explain, we disagree.
1.
" 'The standard of proof in
juvenile proceedings involving criminal acts is the same as the standard in
Cesar V. (2011) 192 Cal.App.4th 989, 994.) When considering a challenge to the
sufficiency of the evidence, we review the entire record to determine whether
it contains substantial evidence, i.e., evidence that is reasonable, credible,
and of solid value, from which a reasonable trier of fact could find the
essential elements of the offense beyond a reasonable doubt. (Jackson
v. Virginia (1979) 443 U.S. 307, 319; People
v. Foster (2010) 50 Cal.4th 1301, 1348; In
re James B. (2003) 109 Cal.App.4th 862, 872.) We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence,
whether the conviction rests primarily on direct or circumstantial
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) " 'Thus, if the circumstances reasonably justify
the trier of fact's findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant reversal of the judgment.' " (
1026.)
2.
The issue
here is whether the record contains sufficient evidence to support the People's
theory that Brendon aided and abetted the battery and assaults committed
against Michael and Tyler. One who aids
and abets another in the commission of a crime is guilty of the crime, even if
the other commits some or all of the acts constituting the crime. (Pen. Code, § 31; People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Liability as an aider and abettor attaches if
the defendant knew the perpetrator intended to commit the crime and the
defendant intended to, and did, encourage or facilitate the perpetrator in
committing the crime. (
561.) Whether a defendant aided and
abetted the commission of a crime is a question of fact that may be proved by
circumstantial evidence. (
considered in determining aiding and abetting 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.) Considering these
factors, we conclude the record contains substantial evidence from which the
juvenile court reasonably concluded Brendon aided and abetted the crimes
alleged against him.
As an initial matter, there is no
dispute that a battery was committed against Michael, or that assaults by means
of force likely to produce great bodily injury were committed against Michael
and Tyler. The assaults were committed
when the BB gun, which its manual stated was capable of causing great bodily
injury or death, was fired at Michael and Tyler. (See Pen. Code, § 240 ["An assault
is an unlawful attempt, coupled with a present ability, to commit a violent
injury on the person of another."]; People
v. Brown (2012) 210 Cal.App.4th 1, 7-8 [firing BB gun at victim constitutes
assault].) The battery occurred when
Michael was hit three times by pellets fired from the BB gun. (See Pen. Code, § 242 ["battery is
any willful and unlawful use of force or violence upon the person of
another"]; Vaughn v. Jonas (1948)
31 Cal.2d 586, 603 [firing gun at and hitting victim with bullets constitutes
battery]; People v. Martinez (1970) 3
Cal.App.3d 886, 889 ["Any harmful or offensive touching constitutes an
unlawful use of force or violence."].)
There was also substantial evidence
Brendon aided and abetted the commission of these crimes. Brendon went with three other boys to
Thomas's house after school. The boys
passed the BB gun around and took turns firing it. Brendon fired the gun a few times, and the
boys fired 80 shots altogether, three of which struck Michael and one of which
struck Tyler. Tyler
heard multiple people laughing when he was hit; and when Michael was hit and
ducked for cover, he and his brother heard objects "whizzing" past
them. From these facts, the juvenile
court reasonably could infer that Brendon knew whoever shot the BB gun at Tyler
and Michael was intending to hit them, and that Brendon intended to and did
encourage the shooter to do so. (See,
e.g., In re Juan G.,
[defendant's "presence at the crime scene, companionship, and conduct
before and after the offense" may prove aiding and abetting];
721, 737 [passing gun used in shooting to companion was "tangible act of
aiding and abetting"].)
Brendon contends these inferences
cannot be drawn because the People "presented no evidence that [he] was in
the same room as the shooter when [Michael and Tyler] were hit," or that
"Brendon was one of the persons laughing when [Tyler]
was struck." We disagree. The People did not have to prove Brendon was
in the room when Michael and Tyler were hit by pellets fired from the BB gun,
because an aider and abettor "can be convicted of an offense even if he is
not in the room when the crime occurs."
(People v. Pelayo (1999) 69
Cal.App.4th 115, 121.) Nor did the
People have to prove Brendon was one of the persons Tyler
heard laughing when he was hit. Whether
Brendon laughed or not, his "concerted action" with the other boys in
passing the BB gun around and taking turns firing it "reasonably implies a
common purpose." (
402, 409.) Thus, although the evidence
required the juvenile court to draw inferences from the facts in order to find
Brendon liable as an aider and abettor, "[c]ircumstantial evidence is as
sufficient to convict as direct evidence."
(People v. Reed (1952) 38
Cal.2d 423, 431; see People v. Loza (2012)
207 Cal.App.4th 332, 361 [circumstantial evidence sufficient to support
liability as aider and abettor]; People
v. Santana (2000) 80 Cal.App.4th 1194, 1200 [same].)
B. The
Probation Condition Regarding Possession of Weapons Must Be Modified to Contain
a Knowledge Requirement
Brendon contends the condition of
probation concerning weapons is invalid because it does not contain a knowledge
requirement, and asks us to modify the condition to include such a
requirement. The People respond that no
modification is necessary because a knowledge requirement may be read into all
probation conditions, but concede we "may choose to modify the probation
condition to include a knowledge requirement." We accept the People's concession and order
the modification requested by Brendon.
(See, e.g., People v. Freitas (2009)
179 Cal.App.4th 747, 752 ["We agree with defendant that it is appropriate
to modify the probation condition to specify that defendant not
items."]; In re Victor L. (2010)
182 Cal.App.4th 902, 912-913 [modifying condition of probation prohibiting
minor's presence near weapons or ammunition to make knowledge requirement
explicit].)
DISPOSITION
The probation condition of the
dispositional order concerning weapons is modified to read: "The minor shall not knowingly use,
possess, transport, sell or have in or under his control any firearm, replica,
ammunition or other weapon, including a knife, any explosive, or any item
intended for use as a weapon, including hunting rifles or shotguns." As so modified, the order is affirmed. The juvenile court is directed to forward a
certified copy of the modified dispositional order to the probation
authorities.
IRION, J.
WE CONCUR:
BENKE,
Acting P. J.
HALLER,
J.
