In re T.B. CA5 ( 2023 )

Filed 8/14/23 In re T.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.B., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F084909
Plaintiff and Respondent, (Super. Ct. No. 20CEJ600257-2)
v.
OPINION
T.B.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Virna L. Santos,
Judge.
William Safford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Smith, J. and DeSantos, J.
Minor T.B. was found to have committed first degree residential robbery. On
appeal, he contends the evidence was insufficient to support this finding. We affirm.
PROCEDURAL SUMMARY
On May 25, 2022, a juvenile petition was filed pursuant to Welfare and
Institutions Code section 602 alleging minor committed first degree residential robbery
(Pen. Code, § 211).1
On July 20, 2022, the juvenile court held a jurisdiction hearing. The prosecution
proceeded on an aiding and abetting theory, and the court found the allegation true.
On August 17, 2022, at the disposition hearing, the juvenile court declared minor a
ward of the court, found his maximum aggregated confinement time to be three years
eight months, continued him on probation until September 3, 2023, and ordered him to
spend 15 more days in the Juvenile Justice Center, in addition to the 125 days already
spent, followed by no more than 60 days on GPS supervision with various terms and
conditions.
On September 2, 2022, minor filed a notice of appeal.
FACTS
On April 27, 2022, 10-year-old Micah and his mother were living in a first-floor
apartment in a two-story apartment complex with outdoor stairways and common areas.
Before his mother left for work that afternoon, Micah went to the laundry room, which
was directly across from their apartment, and put his load of wet clothes into the dryer.
While he was outside, three older boys—16-year-old minor, M., and X.—approached
him and asked if he wanted to play football. Micah knew minor because he was the older
brother of one of Micah’s friends, and Micah knew X., but he did not know M. None of
the three boys lived in Micah’s apartment complex. Minor lived less than one-quarter
mile away and only about a 50-second walk from Micah’s apartment. M. and X. also
1 All statutory references are to the Penal Code unless otherwise noted.
2.
lived nearby but in the opposite direction. Micah felt weird about their invitation because
all three boys were wearing jackets or hoodies, and M. and X. were both wearing
makeshift ski masks tied over their faces, even though it was a hot day that felt like
90 degrees to Micah, who was wearing only shorts and a T-shirt. He told the boys he
would think about it, but he really meant no, and he returned to his apartment.
In addition to Micah’s observations from his apartment, video footage from a
neighbor’s surveillance camera captured the movement of the three boys.2 After Micah
went back into his apartment, the boys went to sit and smoke on the lower steps of the
staircase leading up to the second-floor apartment above Micah’s. Minor took off the
backpack he was wearing and set it on a step. About 10 minutes later, a little before
4:00 p.m., Micah’s mother left for work. She told Micah to stay inside with the door
locked while she was gone, with the exception of getting his laundry from the dryer in the
laundry room. Their apartment had been burglarized recently—by X. and possibly
others—when Micah left the apartment to play football while his mother was at work, so
she always directed him not to leave. As she walked out of the apartment, she walked
past the three boys sitting on the steps.
Shortly after mother left, the three boys got up off the stairs. M. put on the
backpack minor had taken off and they all walked toward the laundry room. Then, about
one minute later, minor came to Micah’s door and knocked. Minor was wearing a black
puffer jacket and orange animal print shorts. When Micah opened the inner door, minor
asked him through the screen door if he could come out and play football. Micah did not
see the other two boys. Micah told minor he could not come out because his mom told
him not to. Minor tried to convince him to come and play football, nearly begging him,
but Micah told him he could not and closed the door. Minor continued to knock on both
the door and the adjacent window about seven times, until he left and walked back into
2 The videos have no audio component.
3.
the laundry room. Then, about five minutes later, M. came from the laundry room to
Micah’s door and knocked. Micah opened the inner door again. M. asked Micah for
money to take the bus home. He said he would give Micah some Pokemon cards. Micah
said no. Because M. was wearing a mask, Micah believed M. would rob him if he
opened the door. Micah closed the door, but M. continued knocking for a few minutes,
saying, “ ‘I know you’re in there.’ ” Then M. left and walked back into the laundry
room. But he came back, knocked some more, then went to the adjacent window and
kicked it in with his foot. He climbed in through the broken window, followed by X.
Once inside, M. held Micah by the shoulders and took him around the house. Micah was
scared. M. took him into his mother’s room, where M. took her purse, laptop, and
medicine that were on the bed. Micah’s silver dog tag necklace was inside the purse.
X. was in the living room and kitchen, and Micah did not know where minor was at this
point. Micah could not see the rest of the apartment from his mother’s room, so he did
not know if minor came into the apartment.
M. left the apartment before X. and was met by minor outside the door. They
stood face to face. Hanging from M.’s hand was a necklace, and minor bent down and
grabbed it from him. After a few seconds, M. and minor walked away and, about
30 seconds later, X. came running out of the apartment. Micah moved closer to the door
and window and saw M. and X. return to the laundry room. After a few minutes, they ran
from the laundry room in the direction of X.’s residence. Micah did not see minor.
Micah called his mother, but she was working and did not answer until he had
called many times. He told her what had happened, and she left work immediately and
called 911 as she drove home. When she arrived in the apartment, Micah was sitting on
the bed, shaking, with a knife in his hand. He said it was just in case they came back.
The apartment was a mess and broken glass was everywhere. Mother noticed that her
purse, laptop, and medications were gone.
4.
Within only minutes of mother’s call reporting the home invasion robbery, the
police also received a call reporting a stabbing. Officers were dispatched to Micah’s
apartment complex and to another apartment complex nearby.
When officers arrived at Micah’s apartment, they found mother’s purse and laptop
in the laundry room, but the other possessions were gone. Micah’s wet clothes had been
removed from the dryer and dropped behind it. An officer lifted a fingerprint from the
dryer that was later identified as minor’s.
Meanwhile, an officer responded to the stabbing at the nearby apartment complex.
Minor was there with “an adult involved in this case.” Minor was still wearing the black
puffer jacket and orange animal print shorts, but now he was also wearing a dog tag
necklace, as captured by the responding officer’s body camera. When Micah was shown
a still photograph from that video, he testified the necklace looked exactly like his.3
When officers later searched minor’s bedroom in his apartment, they found
mother’s medication on a bunk bed, along with a black puffer jacket and orange animal
print shorts identical to those worn by minor on the day of the robbery.
DISCUSSION
Minor contends there was insufficient evidence he aided and abetted the robbery
because there was no evidence he participated in it or was even present on the scene
when M. and X. entered the apartment. He argues that although he did attempt to lure
Micah out of the apartment, when that failed, he left and was gone by the time M.
approached Micah’s door. He states that “[his] involvement in the crime, as far as
anyone (including Micah) could ascertain, came to an end when his attempt to lure Micah
out of the residence failed.” Minor claims there was no evidence to support an inference
3 Further evidence of the alleged stabbing investigation was not presented in this
case. Also not presented was evidence of why minor was there and with whom. The
evidence was presented to establish minor’s appearance a short time after the crime.
5.
that he was even aware of M.’s forcible entry into the apartment or of any criminal intent
to commit a robbery rather than a theft.4
We conclude minor’s contentions are not supported by the record, and the
evidence was more than sufficient to support the finding minor aided and abetted the
robbery.
I. Law
“The standard of review in juvenile proceedings involving criminal behavior is the
same as that required in adult criminal trials ….” (In re M.V. (2014) 225 Cal.App.4th
1495, 1518.) Under the substantial evidence standard, “ ‘ “we review the entire record in
the light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the [minor] guilty beyond a reasonable doubt.”
[Citation.] We determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a reviewing
court “presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ’ ” (People v. Beck and Cruz (2019) 8 Cal.5th
548, 626.) “The focus of the substantial evidence test is on the whole record of evidence
presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’ ” (People v.
Cuevas (1995) 12 Cal.4th 252, 261.) “Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the [trier of fact] to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v.
4 Minor concedes that if he had remained present, his actions might have supported
the necessary inferences to find him guilty of aiding and abetting, but he asserts he was
not present.
6.
Maury (2003) 30 Cal.4th 342, 403.) “ ‘A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support’ ” the [trier of fact’s] verdict.’ ” (People v. Penunuri
(2018) 5 Cal.5th 126, 142.) “The same standard governs in cases where the prosecution
relies primarily on circumstantial evidence. [Citation.] We ‘must accept logical
inferences that the [trier of fact] might have drawn from the circumstantial evidence.
[Citation.]’ [Citation.] … ‘[I]t is the [trier of fact], not the appellate court that must be
convinced of the [minor’s] guilt beyond a reasonable doubt. [Citation.]’ [Citation.]
Where the circumstances reasonably justify the trier of fact’s findings, a reviewing
court’s conclusion the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal.” (People v. Zamudio (2008) 43 Cal.4th
327, 357–358.)
“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.” (§ 211.) A person may be convicted of robbery if he was the perpetrator
of the robbery or, alternatively, if he aided and abetted the commission of the robbery.
(§ 31 [“All persons concerned in the commission of a crime, … whether they directly
commit the act constituting the offense, or aid and abet in its commission, … are
principals in any crime so committed.”]; see People v. McCoy (2001) 25 Cal.4th 1111,
1117 [“a person who aids and abets a crime is guilty of that crime even if someone else
committed some or all of the criminal acts”].) “ ‘[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. Johnson (2016) 62
Cal.4th 600, 630.)
7.
“ ‘The “act” required for aiding and abetting liability need not be a substantial
factor in the offense.’ ” (People v. Franzen (2012) 210 Cal.App.4th 1193, 1216
[“ ‘ “ ‘[l]iability 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’ ” ’ ”].) “ ‘Whether a person has aided and abetted in the commission of a
crime ordinarily is a question of fact.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015,
1054; see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1147–1148.) “ ‘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.’ ” (Nguyen, at p. 1054; see People v. Johnson (2019) 32 Cal.App.5th 26, 60;
People v. Lara (2017) 9 Cal.App.5th 296, 322 [presence at the scene, companionship,
and flight are factors]; People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743–
744 [lookouts, getaway drivers, and persons present to divert suspicion are principals].)
“ ‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support a conviction.’ ”
(Nguyen, at p. 1055.)
II. Analysis
In this case, we have thoroughly reviewed the evidence, including the video and
photographic evidence, and we conclude the record and the rational inferences arising
from it amply supported the conclusions that the three boys planned and intended to steal
from Micah, and that the plan likely began as a plan to burglarize Micah’s apartment and
evolved into a plan to forcibly enter the apartment and rob Micah.
First, none of the three boys lived in Micah’s apartment complex and the evidence
suggested they had no reason to be there other than to commit this crime. In fact, X. had
recently burglarized Micah’s apartment when Micah came out to play football while his
mother was at work. Second, the boys came dressed for thievery, all wearing jackets that
were inappropriate for the hot weather but good for hiding stolen property, as was the
8.
backpack. M. and X. wore masks tied over their faces to hide their identities. Minor, on
the other hand, wore no mask because his intended role in luring Micah out to play
required that he be a familiar and friendly face. Third, the boys’ attempts to lure Micah
out of the apartment supported the inference that they originally planned to repeat X.’s
prior crime by removing Micah from the apartment and distracting him during the
burglary. Before mother left, minor attempted to get Micah to agree to a football game.
After planting that suggestion, the three boys waited for mother to leave for work, sitting
together on the stairs until Micah was alone in the apartment. Then they took action.
M. put on the backpack, supporting the inference that the plan was for him, not minor, to
enter the apartment. They all moved into the laundry room as a home base, where they
had cover and could meet to discuss the plan as it evolved. Then minor approached the
apartment and attempted to convince Micah to come out, pleading with him to come and
play football. When minor’s entreaties and incessant knocking failed to persuade Micah
to come out, minor gave up and returned to the laundry room. Fourth, the evidence
supported the inference that the boys did not abandon their plan, but instead determined
their luring was not working and they would need to gain entry by force. This time,
M. went to the door and tried to convince Micah to open the door for some Pokemon
cards, supporting the inference that M. intended to force his way inside once Micah
opened the door. But Micah suspected exactly that, believing that M., a stranger wearing
a mask, would rob him if he opened the door, so he refused. When Micah could not be
tricked into opening his door, M. returned to the laundry room to regroup. He came back
to the door, knocked again, then broke the window and entered, followed by X.
Minor insists there was no evidence he ever entered the apartment or was even
present after his attempts to lure Micah out had failed. Minor argues he abandoned the
failed plan, left the scene, knew nothing of the home invasion, and received the stolen
property at some later time after M. and X. had reached a place of safety and the robbery
was complete. In reply to the People’s response that a video showed minor was indeed
9.
present after the robbery, minor concedes the video showed his presence but nothing
more incriminating. Contrary to minor’s claims, however, the video established more
than his mere presence. It established minor was present outside the apartment door
when M. exited with stolen property. When M. came out, he had already removed
Micah’s necklace from the purse and it was hanging from his hand. He and minor stood
face to face, presumably talking, and then minor bent down and took the necklace from
M.’s hand before either of them started to walk away from the apartment. Overall, the
evidence established minor was present throughout the incident and did not leave the
scene until he had received the stolen property. Further, the evidence supported the
inferences that minor was aware of the evolving plan, functioned outside as a lookout
during the robbery, and was waiting for his share of the spoils. A very short time later,
he was wearing Micah’s stolen necklace—already displaying the fruits of the crime.
When a search was later executed, mother’s stolen medication was found in minor’s
bedroom, along with his black puffer jacket and orange animal print shorts. Together, the
evidence was more than sufficient to prove minor aided and abetted M. and X. in their
robbery of Micah.
Lastly, we need not determine the merits of minor’s contention that the evidence
found during the search of his bedroom should have been excluded on the ground that the
search was not based on personal knowledge that the apartment and bedroom were
minor’s. Even without the evidence found during the search, the remaining evidence was
sufficient to prove minor aided and abetted the robbery.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
10.