People v. Mitchell

• Decision Date: 14 July 1986
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clarence MITCHELL, Jr., Defendant and Appellant. B002402.

Page 286

228 Cal.Rptr. 286

183 Cal.App.3d 325

The PEOPLE, Plaintiff and Respondent, v. Clarence MITCHELL, Jr., Defendant and Appellant.

B002402.

Court of Appeal, Second District, Division 7, California.

July 14, 1986.

[183 Cal.App.3d 327] Phillip I. Bronson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Carol Slater Frederick and David S. Glassman, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Presiding Justice.

Defendant Mitchell appeals from a judgment entered on a jury verdict finding him and codefendant Carolyn Anita Turner guilty of robbery. ¹ Mitchell admitted to be true an allegation that he had been previously convicted of a felony ( § 11350, Health & Saf. Code) for which he served a term in state prison, and committed an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of said term ( § 667.5, subd. (b), Pen.Code).

I FACTS

A. Prosecution Evidence

In the evening of January 31, Joseph Araman was at Hollywood Park seated on a stool near the cashier's window watching the races on a TV screen; he placed bets on 10 races and after each, went to the same window and cashed in his winning tickets. At the conclusion of the tenth race he was last in line and, after cashing in his tickets, counted his winnings which came to $3,000, put the money in the left pocket of his trousers and went to the down escalator, about 12 yards away; since he was one of the last to leave, there were not many people around.

As he proceeded to the escalator, Araman observed five people--four males, one of whom was defendant, and a female, codefendant Turner--standing in a circle at the entrance to the escalator "talking between themselves." Just as Araman was about to enter, Turner "cut in front of [him] to get first on the escalator"; as he got on behind her, the four men followed him onto the escalator and stood behind him--two side by side on one step directly behind him, defendant and the fourth man standing abreast right behind them on the next step; near the base of the escalator Turner dropped her purse and as the contents fell out, she got down on the floor blocking the exit yelling and screaming as she picked up her belongings; Araman could not move at which time the two men directly behind him forcibly pulled Araman's arms behind his back while the man standing behind him on his left put his Araman then turned to Turner who was trying to leave, stopped her and accused her of being "the cause of that," doing it on purpose and being part of the group, and demanded his money; she started screaming that she did not know what he was talking about whereupon a security guard came over and took them both to the substation. Fifteen minutes later at defendant's car in the parking lot, Araman identified defendant as one of the four men who robbed him on the escalator. On the preliminary hearing he identified defendant as one of the robbers, and made positive in-court identification of defendant at trial.

hand into his left trousers pocket and pulled out the money and, at the same time, a ring was pulled from his finger; then Turner moved to the right to permit defendant and the three men to exit; as they did so, Araman grabbed the man on his left and said, "You stole my money. I want my money, $3,000"; the man said he did not know what he was talking about and, as Araman wrestled him, defendant and the other two men fled; Araman lost control of the man, and he escaped joining the other three.

Gilberto Gabb, an off-duty track employee, descended on the escalator directly behind and above Turner, Araman, defendant and the three other men, and observed the robbery. Turner shouted, "My purse, my purse," and one of the men pinned Araman's arms behind him; Araman turned and, as he grabbed one of the men behind him and said "You robbed me," "Call the police," the man handed an object to one of the other men who grabbed it and put it in the front pocket of his raincoat. Gabb ran after two of the men as they fled to the first floor and met defendant and the other man in front of the main gate; all four ran, removing articles of clothing, to a car 100 yards away in the parking lot; they talked as they ran and all got into the car. Gabb alerted security, and Officers Morgan and Carson, motorcycle officers, approached the car.

All four men were in the vehicle, defendant in the driver's seat; he had started the engine, and the officers ordered him to turn off the ignition. Officer Morgan observed the man seated directly behind defendant remove something from his waistband and place his hand behind his back. The four men were arrested. A search of the back seat revealed $3,000 jammed between the seat and the back. Fifteen minutes later Araman identified defendant and the three men as the robbers.

B. Defense

Defendant did not take the stand; codefendant Rickey Earl Hill, who had entered a plea of guilty before another judge and been sentenced, was the sole defense witness. Hill testified that he and Robert Bailey went by cab to Hollywood Park on the evening of January 31 with the intent and for the purpose of robbing someone; there they met codefendant Terry Johnson who assisted them during the robbery; they talked to no female, no woman was involved and no particular woman was on the escalator; defendant was not with them and not on the escalator. They watched Araman and between 9 and 10 p.m. decided to rob him; he and Bailey got on the escalator behind him; at the bottom of the escalator Bailey reached into Araman's pocket and took out a large sum of money; he assisted Bailey by standing right behind Araman while Bailey went into his pocket; no one grabbed Araman's arms and held them in back of him while someone reached into his pocket, and no one blocked his exit; as Bailey took out his money, Araman turned around screaming accusing him (Hill) of taking his money and pulled him off the escalator; he got loose and ran to the left while Bailey and Johnson ran to the right; five or ten minutes later they saw defendant outside and asked him to give them a ride, offering him money to take them to town; the four of them walked to defendant's car and, removing his jacket, he got into the front seat; a security officer on a motorcycle came up and he was arrested.

II SUFFICIENCY OF THE EVIDENCE

Appellant's contention that the evidence is not sufficient to support a finding that he aided and abetted the robbery is without merit. Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. (In re Jessie L., 131 Cal.App.3d 202, 217, 182 Cal.Rptr. 396; In re Lynette G., 54 Cal.App.3d 1087, 1094, 126 Cal.Rptr. 898). Having viewed the entire record with the foregoing in mind, we conclude that substantial evidence supports the judgment, that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Johnson, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

The evidence readily establishes defendant as an aider and abettor in that he did "act with knowledge of the criminal purpose of the perpetrator[s] and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman, 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318; original emphasis.) Virtually, all of the probative factors relative to aiding and abetting are present--presence at the scene of the crime, companionship and conduct before and after the offense, including flight. (People v. Chagolla, 144 Cal.App.3d 422, 429, 193 Cal.Rptr. 711; In re Jessie L., 131 Cal.App.3d 202, 217, 182 Cal.Rptr. 396; People v. McDaniels, 107 Cal.App.3d 898, 904, 166 Cal.Rptr. 12; In re Lynette G., 54 Cal.App.3d 1087, 1094-1095, 126 Cal.Rptr. 898.) The evidence shows that defendant was present at the scene of the crime--in the terminal at the entrance to the down escalator, on the escalator, outside and in his car. He was in the company of the perpetrators of the crime engaged in conversation with them at the entrance to the escalator only seconds before the robbery plan was put in operation, and entered the escalator with them; he remained in their company during the robbery having positioned himself on the escalator in such a way as to protect them during the taking and facilitate their escape; and immediately after the taking, fled with them to his car in a nearby parking lot, entered the driver's side, started the engine and would have escaped had he not been detained by security.

Whether or not defendant knew of the plan to rob Araman before the taking occurred, it is reasonable to infer that in any case he had knowledge of the criminal purpose of the perpetrators from evidence of his position immediately behind them during the actual taking, especially in light of the victim's conduct in turning to one of them and loudly accusing him of stealing his money and wrestling him in an effort to hold him, and his flight with them. As to intent, proof of an aider and abettor's intent may be adduced "by way of an inference from [his] volitional acts with knowledge of their probable consequences." (People v. Beeman, 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.) Such inference finds support in defendant's subsequent act of running to and starting his car in preparation to leave the scene of the crime with the perpetrators as his passengers and the loot in his car. Since a robbery is a continuing crime which is not completed until the robbers reach a place of temporary safety, evidence of defendant's assistance in the escape supports the conclusion that he was a participant in the robbery. (People v. Jardine, 116 Cal.App.3d 907, 919, 172 Cal.Rptr. 408.)

III AIDING AND ABETTING

At the request of the prosecution, the jury was instructed in the...