California Court of Appeal Aug 27, 2013 No. D062687Unpublished
Filed 8/27/13 In re Brendon A. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re BRENDON A., a Person Coming Under the Juvenile Court Law. D062687 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. JCM229420)
v.
BRENDON A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego 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
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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
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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. Standard of Review
" 'The standard of proof in juvenile proceedings involving criminal acts is the same
as the standard in adult criminal trials.' " (In re 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.' " (In re V.V. (2011) 51
Cal.4th 1020, 1026.)
2. Analysis
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
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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. (People v. Beeman (1984) 35 Cal.3d 547, 561.) Whether a
defendant aided and abetted the commission of a crime is a question of fact that may be
proved by circumstantial evidence. (Id. at p. 559; People v. Long (1970) 7 Cal.App.3d
586, 591; People v. Wilson (1928) 93 Cal.App. 632, 636.) "Among the factors which
may be 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.
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(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.,
supra, 112 Cal.App.4th at p. 5 [defendant's "presence at the crime scene, companionship,
and conduct before and after the offense" may prove aiding and abetting]; People v.
Lucas (1997) 55 Cal.App.4th 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
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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." (People v. Campbell (1994) 25
Cal.App.4th 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
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knowingly possess the prohibited 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.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's dispositional order, finding sufficient evidence to support the minor's liability as an aider and abettor for battery and assault, while modifying a probation condition to include an express knowledge requirement.
Issues
Whether there was sufficient evidence to support the juvenile court's findings that the minor aided and abetted misdemeanor battery and aggravated assault.
Whether a probation condition prohibiting the possession of weapons is invalid for lacking an express knowledge requirement.
Disposition. Affirmed as modified
Quotations verified verbatim against the opinion
“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.”
“We accept the People's concession and order the modification requested by Brendon.”