Filed 10/20/21 In re A.S. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re A.S., a Person Coming 

Under the Juvenile Court 

Law.

2d Crim. No. B307533

(Super. Ct. No. YJ39568)

(Los Angeles County)

THE PEOPLE,

 Plaintiff and Respondent,

v.

A.S.,

 Defendant and Appellant.

A.S. appeals from an order adjudicating him a ward 

of the court. (Welf. & Inst. Code, § 602.) The juvenile court found 

true allegations he committed two counts of robbery (Pen. Code,1

§ 211; counts 1 and 3), one count of attempted robbery (§§ 211, 

1 Further unspecified statutory references are to the Penal 

Code. 
2

664; count 5), and three counts of assault with a firearm (§ 245, 

subd. (a)(2); counts 2, 4, and 6). The court ordered A.S. to be 

placed in community camp for five to seven months with a 

maximum confinement period of nine years six months.

With exception to one count of robbery, A.S. contends 

the juvenile court’s true findings must be reversed because there 

was insufficient evidence to support them. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Chayos Market

Jesus Aguilar was working at Chayos Market when 

he saw two youths wearing ski masks enter the store. He 

described one youth as being short and “chubby,” wearing a red 

shirt and a ski mask with a marijuana symbol on it. The other 

youth was taller and “skinnier,” wearing a gray or white sweater. 

The shorter youth grabbed a Gatorade and placed it on the 

counter. The taller youth stood close by and stayed quiet the 

entire time.

The shorter youth asked Aguilar if he had change for 

a $100 bill. When Aguilar said “yes,” the shorter youth pulled out 

a gun from his backpack and pointed it in the direction of Aguilar

but downwards toward the counter. Aguilar noticed there was a 

red marker on the gun. Aguilar said the taller youth looked “a 

little shocked” when he saw the gun. The shorter youth asked 

Aguilar for the money in the cash register. Aguilar told him that 

he needed his boss to open the register. When Aguilar’s boss 

entered the store, the shorter youth quickly put the gun away. 

The shorter youth asked the boss if she had change for a $100 

bill, and she said “no.” The two youths walked away from the 

store without taking anything.
3

Tony’s Market

About 40 minutes later, two youths entered Tony’s 

Market. Maria Serrano, who was working at the store, described 

one youth as “chubby” and wearing a red shirt and shorts with a 

black stripe. She described the other youth as “thin,” wearing a 

black shirt and black pants, and wearing his hair in a ponytail. 

She later identified A.S. as the thin youth. One of the youths

asked Serrano if she accepted E.B.T. She said “yes.”

A.S. picked up a Powerade and placed it on the 

counter. He told Serrano that the other youth would pay for the 

drink, and then he stood by the front door. The other youth

approached Serrano, removed a gun from a bag around his chest,

pointed the gun towards her, and demanded that she give him 

the money from the cash register. He then went around the 

counter, took the money from the register, and put it in his 

backpack. The two youths ran away. The robbery was recorded

by a surveillance camera.

Alexa’s 99-Cent Store

About 15 minutes later, Rocio Rodriguez was working 

at Alexa’s 99-Cent Store when a youth, who she later identified 

as A.S., entered the store. A.S. was “covered up,” wearing all 

black, and wearing a bandana that had marijuana symbols on it.

A.S. asked Rodriguez if the store had an A.T.M. 

Rodriguez said, “no,” and A.S. left. A few moments later, A.S. 

returned with another youth, who was “chubby” and “covered 

up.” They picked up a Powerade and went to the register. A.S.’s 

companion pointed a gun at Rodriguez and demanded money 

from the register.

Rodriguez took out the register drawer and placed it 

on the counter. A.S.’s companion began grabbing the money from 
4

the register drawer. A.S. told Rodriguez, “Give us the 20’s,” and 

she told him she did not have any. A.S. reached through an open 

space in the plexiglass divider and tried to grab money. A 

surveillance camera recorded the robbery.

Arrest and Investigation

Police officers were investigating the attempted 

robbery at Chayos Market when they received a report that two 

youths matching the description of the suspects were seen on a 

nearby street. The police traveled to the street and saw A.S. with

a youth wearing a red shirt. When the police attempted to stop 

them, A.S. stopped and the other youth began to run. During the 

pursuit, the youth removed a black fanny pack from his backpack 

and threw it over a fence. The police caught and arrested the 

youth. When the officers later recovered the fanny pack, they 

found a loaded gun and $166 (51 one-dollar bills, 15 five-dollar 

bills, and two 20-dollar bills) inside.

The officers conducted a field show-up identification

with the employees from each store. Aguilar identified the youth

in the red shirt as the same person who had the gun at Chayos 

Market. He was able to identify him by his red shirt, body shape, 

height, skin color, and the way he spoke. He could not identify 

A.S. because the taller suspect wore a sweater and ski mask over 

his face, and “all [he] could see was his eyes.” However, he told 

the officers that A.S. matched the height of the suspect.

Serrano identified both A.S. and his companion as 

the two youths who robbed Tony’s Market. She testified that she 

was “very sure who they were.” Serrano also identified A.S. 

during the adjudication hearing.

Rodriguez identified A.S. as the one of the youths

who robbed her at Alexa’s 99-Cent Store. She recognized him 
5

because of his hairstyle. She could not identify the youth in the 

red shirt. Rodriguez also identified A.S. during the adjudication 

hearing.

DISCUSSION

A.S. contends there was insufficient evidence that (1) 

he was one of the perpetrators in the attempted robbery at 

Chayos Market, (2) he aided and abetted the crimes at the 

Chayos Market, (3) he aided and abetted the crimes at Tony’s 

Market, and (4) that the other perpetrator committed assault. 

We disagree with all four contentions.

We review the findings for substantial evidence. We 

review “the whole record in the light most favorable to the 

judgment to determine whether it discloses substantial 

evidence—that is evidence that is reasonable, credible and of 

solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (In re Sylvester C. 

(2006) 137 Cal.App.4th 601, 605.) “‘Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn 

from that evidence. [Citation.]’ [Citation.]” (People v. Clark

(2011) 52 Cal.4th 856, 943.)

Evidence of A.S.’s Identity in the Chayos Market Incident

A.S. argues there is insufficient evidence to support a 

finding that he was one of the perpetrators in the attempted 

robbery. We conclude otherwise.

Substantial evidence supports the juvenile court’s 

finding that A.S. was the “taller” perpetrator in the Chayos 

Market incident. First, this incident was the first of three 

incidents at small stores within the same vicinity within a 

one-hour period. All three incidents were similarly planned

robberies: the two youths would retrieve a sports drink, place it 
6

on the counter, and then demand money from the cash register. 

In each instance, the youth in the red shirt held the gun while 

the other youth stood nearby. All the witnesses similarly 

described the two perpetrators: one was taller and “skinnier,”

and the other was “chubbier,” shorter, and wore a red shirt. 

Although Aguilar could not identify A.S. as the taller perpetrator,

he told the police officers that A.S. matched the height of the 

taller perpetrator and witnesses in two subsequent robberies 

identified A.S. as the taller youth. Moreover, A.S. and the youth

in the red shirt were found together shortly after the robberies.

A.S. contends the evidence was insufficient because 

Aguilar could not identify A.S. in the field show-up, and he 

described the perpetrator as wearing a gray or white sweater, 

and not a dark colored shirt. We do not reweigh conflicting 

evidence or resolve evidentiary conflicts on appeal. (People v. 

Whisenhunt (2008) 44 Cal.4th 174, 200.) We will affirm where, 

as here, the findings are supported by substantial evidence in the 

record.

Evidence of Aiding and Abetting at Chayos Market

A.S. contends there is insufficient evidence that he 

aided and abetted the crimes at the Chayos Market. He argues 

he was merely a “knowing spectator” at the scene of the crime. 

(People v. Bishop (1996) 44 Cal.App.4th 220, 234.) We are not 

persuaded.

A person who aids and abets a crime is guilty of that 

crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) A true 

finding for aiding and abetting requires that the person (1) acts 

with knowledge of the unlawful purpose of the perpetrator, (2) 

intends to commit, encourage, or facilitate the commission of the 

crime, and (3) aids, promotes, or encourages the commission of 
7

the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.)

“Neither mere presence at the scene of a crime, nor the failure to 

take steps to prevent a crime, is alone sufficient to establish that 

a person is an aider and abettor. Such evidence may, however, be 

considered together with other evidence in determining that a 

person is an aider and abettor.” (In re Jose T. (1991) 230 

Cal.App.3d 1455, 1460.) Other factors relevant to determine 

whether a person is an aider or abettor include “companionship, 

flight, and conduct before and after the crime.” (People v. Jones

(1980) 108 Cal.App.3d 9, 15.)

Substantial evidence supports the finding that A.S. 

aided and abetted the attempted robbery and assault with a 

firearm at the Chayos Market. During the incident, A.S. and his 

companion entered the store together, both wearing ski masks 

over their faces. A.S. stood next to his companion during the 

entire attempted robbery, including when his companion 

withdrew the firearm, and he never tried to prevent the crime. 

After the robbery failed, A.S. left the scene of the crime with his 

companion. Thereafter, A.S. and his companion robbed two other 

stores in the same way they attempted to rob the Chayos Market. 

This evidence showed that A.S. was not merely present at the 

crime scene, but acted with the same intent and knowledge as his 

companion.

A.S. argues there was insufficient evidence that he 

had the requisite knowledge to aid and abet assault with a 

firearm, citing the evidence that he looked “shocked” when his 

companion took out the gun. However, a “person may aid and 

abet a criminal offense without having agreed to do so prior to 

the act.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) “[I]t 

is not necessary that the primary actor expressly communicate 
8

his criminal purpose to the defendant since that purpose may be 

apparent from the circumstances. [Citations.] Aiding and 

abetting may be committed ‘on the spur of the moment,’ that is, 

as instantaneously as the criminal act itself.” (Id. at pp. 531-

532.) Here, A.S. continued to stand near his companion and did 

nothing to stop him even after the gun was drawn. He then 

helped his companion rob two more stores. Under these 

circumstances, the evidence is sufficient that A.S. aided and 

abetted the assault with a firearm.

Evidence of Aiding and Abetting at Tony’s Market

A.S. contends there is insufficient evidence that he 

aided and abetted the crimes at Tony’s Market. This contention 

lacks merit.

Here, 40 minutes after the Chayos Market incident, 

A.S. and his companion entered Tony’s Market, using the same 

modus operandi. A.S. picked up a Powerade, placed it on the 

counter, and then stood by the front door. A.S. knew his 

companion had a gun, and stood by while his companion 

withdrew the gun, pointed it towards the employee, and took 

money from the register. A.S. and his companion then fled 

together and proceeded to rob a third store. This evidence is 

more than sufficient to show that A.S. was not merely present, 

but aided and abetted the robbery and assault at Tony’s Market.

Evidence of Assault 

A.S. contends the three counts of assault with a 

firearm (§ 245, subd. (a)(2)), require reversal because there was 

insufficient evidence that his companion actually committed an 

assault. He contends the evidence merely shows an intent to 

intimidate the store employees. We disagree. 
9

“Assault is defined as “an unlawful attempt, coupled

with a present ability, to commit a violent injury on the person of 

another.” (§ 240, italics added.) “Once a defendant has attained 

the means and location to strike immediately he has the ‘present 

ability to injure.’”’ [Citation.]” (People v. Covarrubias (2016) 1 

Cal.5th 838, 890.) 

Pointing a gun at a victim may constitute an assault 

with a deadly weapon, whether or not it is fired. (People v. Laya 

(1954) 123 Cal.App.2d 7, 16; see also People v. Rivera (2019) 7 

Cal.5th 306, 333 [intentionally displaying a firearm in a 

menacing manner alone may be sufficient to establish assault].) 

“[I]t is a defendant’s action enabling him to inflict a present 

injury that constitutes the actus reus of assault. . . . [¶] [W]hen 

a defendant equips and positions himself to carry out a battery, 

he has the ‘present ability’ required [for assault] if he is capable 

of inflicting injury on the given occasion, even if some steps 

remain to be taken, and even if the victim or the surrounding 

circumstances thwart the infliction of injury.” (People v. Chance

(2008) 44 Cal.4th 1164, 1172.)

“[I]t [i]s not necessary that the prosecution . . . show 

that the [minor] actually made an attempt to . . . use the 

[firearm] upon [the victim].” (People v. McCoy (1944) 25 Cal.2d 

177, 189, italics omitted.) “The drawing of a weapon is generally 

evidence of an intention to use it. . . . [W]hen the party draws the 

weapon . . . [and] holds it in such a position as enables him to use 

it before the other party could defend [themselves], at the same 

time declaring his determination to use it . . . , the jury are fully 

warranted in finding that such was his intention.” (People v.

McMakin (1857) 8 Cal. 547, 549 (McMakin).)
10

Substantial evidence supports the three counts of 

assault with a deadly weapon. In each incident, A.S.’s companion 

pointed the gun toward the employee and demanded that they 

give him the money in the register. This evidence supports a 

finding that the companion had the requisite intent to support 

the true findings. (See McMakin, supra, 8 Cal. at pp. 548-549

[intent element of assault is met where a defendant threatens to 

use a firearm if certain conditions are not met and is in a position 

to carry out the threat].) 

To the extent A.S. argues the assault offense against 

Aguilar cannot be upheld because A.S.’s companion did not point 

the gun directly at Aguilar, this argument lacks merit. The 

companion held the gun in a position where he could have used 

the gun instantly. (See People v. Thompson (1949) 93 Cal.App.2d 

780, 782 [pointing a revolver downward but toward a person

supports a conviction of assault with a deadly weapon because 

the gun “was in a position to be used instantly”].) Substantial 

evidence supports all three counts of assault with a firearm.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J. PERREN, J.
Kevin L. Brown, Judge

Superior Court County of Los Angeles

______________________________

Laini Millar Melnick, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, William H. Shin and John Yang, 

Deputy Attorneys General, for Plaintiff and Respondent.