Filed 2/17/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re K.M., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE, A159962
Plaintiff and Respondent,
v. (San Mateo County Superior
Ct. No. 20-JW-0173 / Santa
K.M., Clara County Superior Ct.
Defendant and Appellant. No. JV44059A)
The juvenile court determined that Kevin M. aided and
abetted a second degree robbery involving a cell phone, a felony.
He contends that the court’s conclusion is not supported by
sufficient evidence. We agree, and we therefore reverse the
judgment.
BACKGROUND
A.
The People filed a juvenile wardship petition (Welf. & Inst.
Code, § 602, subd. (a)) alleging that Kevin, who was 15 at the
time, committed second-degree robbery (Pen. Code, §§ 211, 212.5,
subd. (c)) by taking a cell phone from the victim by means of force
or fear. The Santa Clara County juvenile court sustained the
petition, finding that Kevin had aided and abetted the robbery.
(See People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez) [a
person may be found liable of a crime either as a direct
perpetrator or as one who aided and abetted a direct
perpetrator].) After the case was transferred to San Mateo
1
County for disposition, the court continued Kevin as a ward of the
court,1 ordered him to serve 120 days therapeutic detention in
juvenile hall, and placed him on probation in his parents’ home.
B.
On the day of the incident, the victim was listening to his
AirPod earphones and looking at his cell phone while walking
back to his office after picking up his lunch. He saw five
individuals with bicycles who were outside of a 7-Eleven. A few
minutes later, someone tapped him on one side while another
individual, who was on a bicycle, passed him on the other side
and grabbed his cell phone out of his hand. The victim ran after
the person who took his phone and tackled him to the ground.
After the victim released the thief, someone punched the victim
in the face. At that point, the victim noticed he was surrounded
by three individuals in black hoodies, one of whom was behind
him. The victim could hear yelling all around him, along the
lines of “you hurt my friend, we’re going to hurt you.” He felt
“[v]ery intimidated.” One of the individuals demanded his
AirPods, but the victim refused to hand them over and backed up
toward his office. When the victim’s boss arrived on the scene,
the three individuals rode away on bicycles.
The police arrested three minors with bicycles shortly
thereafter: Kevin, along with two youths named Angel and
Armando. When they were arrested, Angel had the victim’s cell
phone in his backpack.
A short while later, the police drove the victim to the
location where Kevin, Angel, and Armando were detained. The
victim identified Angel as the person who took his phone, and he
identified Armando as the person who punched him and
demanded his AirPods. The victim had trouble identifying Kevin.
He told the police that he did not know if Kevin was the person
1Kevin had previously been declared a ward of the juvenile
court based on a separate wardship petition.
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who tapped him; he said Kevin could be that person but he was
not sure.
C.
At the hearing, the victim identified Kevin in court. The
victim recalled seeing Kevin in the group of people at the 7-
Eleven shortly before the incident although the victim “did not
have enough time to stare at him that long.” The victim also
recalled Kevin was one of the people who yelled at him after he
stood up from tackling Angel.
The victim otherwise had no clear memory of Kevin. He
did not know whether Kevin was there when his phone was
taken; he had not seen Kevin at that point. Kevin could have
been the person who tapped him or the person who punched him,
but he was not sure. It was possible that Armando was the one
who punched him or tapped him. According to the victim, he
could “remember the chain of events clearly but, obviously, the
small details [are] not what I was paying attention to at the
time.”
DISCUSSION
A.
Liability for aiding and abetting requires “proof in three
distinct areas: (a) the direct perpetrator’s actus reus—a crime
committed by the direct perpetrator, (b) the aider and abettor’s
mens rea—knowledge of the direct perpetrator’s unlawful intent
and an intent to assist in achieving those unlawful ends, and (c)
the aider and abettor’s actus reus—conduct by the aider and
abettor that in fact assists the achievement of the crime.” (Perez,
supra, 35 Cal.4th at p. 1225.) Kevin does not dispute the first
element—Angel’s robbery of the cell phone.
“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.”
(Pen. Code, § 211.) For a specific intent crime such as robbery,
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the aider and abettor must “ ‘know[] the full extent of the
perpetrator’s criminal purpose and give[] aid or encouragement
with the intent or purpose of facilitating the perpetrator’s
commission of the crime.’ ” (People v. Prettyman (1996) 14
Cal.4th 248, 259.)
We review the entire record in the light most favorable to
the judgment below and may reverse “only if ‘ “it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support [the [judgment]].’ ” ’ ” (People v. Sanford
(2017) 11 Cal.App.5th 84, 91 (Sanford).) Substantial evidence is
evidence that is “ ‘solid, substantial, and . . . reasonably inspire[s]
confidence” that the accused committed the charged crime.
(People v. Lara (2017) 9 Cal.App.5th 296, 320 (Lara).) We “ ‘
“presume in support of the judgment the existence of every fact
the [fact finder] could reasonably have deduced from the
evidence.” ’ ” (Sanford, supra, at p. 91.) At the same time, “ ‘ “
‘[a] finding of fact must be an inference drawn from evidence
rather than ... a mere speculation as to probabilities without
evidence.’ ” ’ ” (Id. at p. 92.) To affirm, “we must be able to
conclude the evidence is sufficient to have convinced” a rational
fact finder of each element of the crime “beyond a reasonable
doubt.” (Lara, supra, at p. 320.)
B.
Kevin contends that the evidence was insufficient to
establish that he had knowledge of Angel’s intent to steal the cell
phone; that he had the intent to assist in the robbery of the cell
phone; or that he took any action to aid or encourage the robbery
of the cell phone.
1.
We shall assume that there was sufficient evidence on the
first two issues—knowledge and intent—although we note that
the evidence is thin at best. There was no direct evidence that
Kevin was aware that Angel had taken the phone, knew in
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advance that he would do so, or intended to help Angel commit
the robbery.
To be sure, circumstantial evidence and reasonable
inferences may be sufficient to establish a defendant’s guilt.
Kevin’s presence at the scene, his association with Angel before
and after the robbery, and his flight from the scene are relevant
to the fact finder’s inquiry. (Lara, supra, 9 Cal.App.5th at pp.
322-323; In re Juan G. (2003) 112 Cal.App.4th 1, 5 (Juan G.).)
Given the circumstantial evidence here, we might suspect Kevin
knew what Angel intended to do. But a suspicion—even a strong
suspicion—is not evidence and cannot support factual inferences.
(See People v. Thompson (1980) 27 Cal.3d 303, 324, disapproved
on another ground in People v. Rowland (1992) 4 Cal.4th 238,
260; Lara, supra, at p. 319 [the defendant’s presence at the scene,
failure to take action, association with perpetrators, flight from
the crime, and lies to police raised only a suspicion of aiding and
abetting a murder].)
We need not resolve whether sufficient evidence supports
the knowledge and intent elements. It is more fruitful to focus on
whether there is substantial evidence that Kevin took any action
to aid or encourage Angel’s robbery of the cell phone.
2.
The record does not support a finding that Kevin aided or
encouraged Angel’s robbery of the cell phone.
As our Supreme Court recently emphasized, liability for
aiding and abetting “ ‘require[s] some affirmative action’ ” that
assists or encourages the commission of the crime. (People v.
Partee (2020) 8 Cal.5th 860, 868 (Partee).) A person present at
the scene of a crime—even one who is the criminal’s companion,
knows a crime is being committed, fails to prevent it, and later
expresses approval of it—is not guilty of aiding and abetting the
crime if he takes no action to aid or encourage the crime. (In re
Michael T. (1978) 84 Cal.App.3d 907, 910-911; see also, e.g., Juan
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H. v. Allen (9th Cir. 2005) 408 F.3d 1262, 1278-1279 [evidence of
aiding and abetting murder and attempted murder was
insufficient where minor merely stood unarmed behind his older
brother after his home was attacked, even if he knew his brother
was armed with a deadly weapon].)
Here, the victim could only guess what actions Kevin may
have taken because “it happened pretty quick,” the victim was
“obviously, slightly flustered,” and the details were “blurry” in his
mind. The victim testified that Kevin “could have” been the
minor who punched him “but I’m not too sure about that”; Kevin
could have been the minor who tapped him just before Angel
grabbed his phone, but the victim could not “say that with
confidence.” Such speculation falls short of substantial evidence.
(See Jones v. McFarland Co-op Gin, Inc. (1965) 237 Cal.App.2d
94, 98 [“Inferences drawn from such equivocal testimony are not
based on substantial evidence”].)
At most, there was substantial evidence that Kevin stood
behind the victim and yelled “you hurt my friend, we’re going to
hurt you.” But there was no nexus between this action and the
crime—the theft of the phone. The yelling occurred after Angel
had taken the phone and the victim had tackled and released
him. There was no evidence that the victim then tried to regain
possession of the phone, much less that the yelling dissuaded him
from doing so. (Cf. People v. Estes (1983) 147 Cal.App.3d 23, 27-
29 [robbery may include force or fear used to maintain possession
of the stolen property from a person attempting to recover it].)
The People contend that Kevin’s actions helped Angel
escape, since the robbery was not complete until Angel reached a
place of temporary safety. But the three minors’ yelling at the
victim only delayed the escape. Whatever the yelling
accomplished, it did not help Angel get away. Indeed, the victim
testified that he was “trying to slow the process down” because he
knew his boss would be able to see what was happening from his
office and potentially come help. The People do not argue, nor
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was there any evidence, that Kevin blocked the victim’s
movements; instead, the victim testified that he was able to cross
to the other side of the street and walk toward his office.
The juvenile court relied in part on evidence that, during
the yelling, Armando demanded the victim’s AirPods. This was
error. Kevin was not charged with attempted robbery of the
AirPods. Evidence that a person aided one crime cannot
substitute for evidence that the person aided a different crime.
(See Lara, supra, 9 Cal.App.5th at pp. 322-323 [evidence that
defendants robbed the victim did not establish that they aided
and abetted the victim’s murder by their companions].)
The People mistakenly rely on Juan G., supra, 112
Cal.App.4th at pp. 5-6. In that case, the defendant and his
companion approached the victim and stood side-by-side while
the companion drew a knife and demanded money. (Ibid.) The
defendant aided the robbery by directly confronting the victim
and standing “within touching distance,” thereby helping to
intimidate the victim while his companion took the money. (Id.,
at p. 5.) The victim here did not even see Kevin when Angel
snatched his phone.
The People also cite In re Lynette G. (1976) 54 Cal.App.3d
1087 (Lynette G.). There, the accused minor stood five feet away
during a robbery, fled with her companions when the victim
started yelling, and was later arrested in the company of her
companions. (Id. at pp. 1090-1092, 1095.) One justice dissented,
asserting in part that “Lynette committed no overt act during the
robbery which could be interpreted as aiding or lending any
encouragement to the perpetrator of the robbery.” (Id. at p. 1101
(dis. opn. of Jefferson, J.).) The majority did not identify any act
by the minor that aided or abetted the robbery.
We agree with the dissent in Lynette G. Aiding and
abetting requires an affirmative action that assists or encourages
the crime. (Partee, supra, 8 Cal.5th at p. 868.) The People
7
identify no plausible action here, and we have found none.
Accordingly, the evidence was insufficient to persuade a
reasonable trier fact that the elements of aiding and abetting a
robbery were satisfied beyond a reasonable doubt. (Lara, supra,
9 Cal.App.5th at p. 320.)
In light of our conclusion, we do not reach Kevin’s other
contentions on appeal.2
DISPOSITION
The judgment is reversed.
2 In a separate petition for writ of habeas corpus, case No.
A162467, Kevin challenges the competency of his trial counsel.
In light of our resolution of this appeal, we have dismissed that
petition by separate order filed this date.
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_______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
NEEDHAM, J.
A159962
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San Mateo County Superior Court Case No. 20-JW-0173; Santa
Clara County Superior Court Case No. JV44059A. The
Honorable Susan I. Etezadi and The Honorable Katherine
Lucero, Trial Court Judges.
Amanda K. Roze, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Rene A. Chacon, Supervising Deputy
Attorney General, and Julia Y. Je, Deputy Attorney General, for
Plaintiff and Respondent.
10