Defendant Not Liable for Aiding and Abetting Robbery

It is quite rare that an appeal of a conviction is successful for insufficient evidence.  Many try, but very few succeed.

This is because of the generous legal standard that applies: the appellate court reviews the entire record in the light most favorable to the judgment and may reverse “only if ‘it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgement]’  People v. Sanford (2017) 11 Cal. App. 4th 84, 91. 

Substantial evidence is evidence that is “solid, substantial, and . . . reasonably inspires confidence” that the accused committed the charged crime.  People v. Lara (2017) 9 Cal. App. 5th 296, 320.

However, to affirm, an appellate court “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, p. 320.

In Santa Clara County juvenile court, the judge determined that Kevin M., age 15 at the time, aided and abetted a second degree robbery involving a cell phone, a felony.  People. v K.M. (2022 DJDAR 1736).  The judge then ordered K.M. to serve 120 days of therapeutic detention in juvenile hall and thereafter placed him on probation in his parents’ home.

K.M. appealed to the First Appellate District that the judge’s conclusion (there is no jury trial in juvenile court) was not supported by sufficient evidence. 

To understand this argument, one must understand that liability for aiding and abetting requires “proof in three distinct areas: (a) the 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 in the achievement of the crime.”  People v. Perez (2005) 35 Cal. 4th 1219, 1225.

“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.”  Penal Code § 211. 

For a specific intent crime, such as robbery, the aider and abettor must “know the full extent of the perpetrator’s criminal purpose and give aid or encouragement with the intent of facilitating the perpetrator’s commission of the crime.”  People v. Prettyman (1996) 14 Cal. 4th 248, 259.

Here, on the day of the robbery, 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 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 who 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 “very 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 their bikes.

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 time later, the victim identified Angel as the person who took his cell phone and Armando as the one who punched him and demanded his AirPods.  The victim had trouble identifying Kevin.  He told police he did not know if Kevin was the person who tapped him; he said Kevin could be that person, but he was not sure. 

The appellate court found that the record did not support a finding that Kevin aided or encouraged Angel’s robbery of the cell phone.  As the Supreme Court recently emphasized, liability for aiding and abetting “requires some affirmative action” that assists or encourages the commission of the crime.”  People v. Partee (2020) 8 Cal. 5th 860, 868.

The court held that 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.

Therefore, the judgment against Kevin was reversed.

The citation for the First Appellate District Court ruling discussed above is People v. K.M. (1st App. Dist., 2022) Cal. App. 5th Cal. Rptr. 3d.

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