1

Filed 5/22/23 In re I.W. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re I.W., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

I.W.,

Defendant and Appellant.

 A161394

 (Solano County

 Super. Ct. No. J44227)

The juvenile court determined that minor I.W. committed robbery

based on an incident in which two chains were grabbed from the victim’s neck

at a party. 

Minor contends reversal is required because the prosecution argued for 

the first time in rebuttal that minor was guilty of robbery as an aider and 

abettor even if he did not grab the chains himself. Minor further contends 

the court’s determination was not supported by substantial evidence. He also 

argues the juvenile court abused its discretion in declaring a wobbler offense 

in a Sacramento County juvenile court case to be a felony.

We affirm. 
2

FACTUAL AND PROCEDURAL BACKGROUND

House Party on July 20, 2018

In July 2018, Richard A. allowed his two high school-aged sons to have 

a party in the backyard and garage of their house. Richard’s friend Mario 

Yokoi and a few other adults were home the evening of the party.

The backyard was fenced and abutted an alley; partygoers entered the 

backyard through a gate on the alley and could reach the garage from the 

backyard. By 10:00 p.m., about 25 to 30 teenagers were at the party, and 

Richard knew all of them. 

Later, Richard was inside the house when his wife told him there was a 

fight in the backyard. Richard went outside and broke up the fight. He 

escorted one of the fight participants and his friends out to the alley and told 

them they had to leave. At this point (around 11:53 p.m.1), the party became 

“very chaotic,” and Richard observed two more physical attacks in the 

backyard.

2 

Around this time, party guest J.M., who was 17 years old, felt chains he 

was wearing around his neck break and heard the person who grabbed his 

chains say, “got yo chains.” Another party guest, Alden Alvarez, noticed a 

confrontation between J.M. (whom he knew) and another person; J.M. was 

crying and asking for his chain back, and the other person was yelling and 

threatening J.M. Alvarez approached the person who was yelling at J.M. and 

said he should give back the chain. Alvarez was then attacked by a group of 

1 Based on a neighbor’s surveillance videorecording of the alley and 

back of the house, it appeared Richard walked out to the alley with the kids 

he told to leave at about 11:53 p.m. 

2 First, Richard saw three or four people he did not recognize kicking 

someone. Then, as he walked one of the aggressors out toward the alley, 

Richard saw “another person was being jumped” to his right. 
3

people he did not know; they hit and pushed him and eventually pushed him 

through a window. 

According to Richard, “[e]verything was going crazy.” Richard punched

“a really huge dude” wearing a white t-shirt, and they went to the ground. 

Richard heard a gunshot and realized his leg was bleeding. Yokoi ran up to

the “big guy” in the white t-shirt and hit him with a golf club. Richard 

described the scene as “total chaos at that point” with people “running 

everywhere, jumping fences.” Yokoi told everyone to leave; the “big guy” in 

the white t-shirt and others left through the gate to the alley. Richard and 

Yokoi followed the departing partygoers into the alley and to the street at the 

end of the block. There, Richard saw a group of men and a gun pointed at 

him. Richard kept saying, “we don’t want no trouble.” Richard and Yokoi 

were shot multiple times, and Yokoi died on the street. Richard suffered four 

gunshot wounds that night and survived. 

Wardship Petition

In August 2018, the Solano County District Attorney filed an initial

Welfare and Institutions Code section 602 petition against minor. The 

operative second amended petition alleged minor attempted to murder 

Richard A. (Pen. Code,3 §§ 664, 187, subd. (a); count 1), committed second 

degree robbery of J.M. (§ 211; count 2), and murdered Yokoi (§ 187, subd. (a); 

count 3). 

Jurisdictional Hearing

The jurisdictional hearing began August 25, 2020, and concluded 

October 16, 2020. The parties presented 23 live witnesses and stipulated to

the testimony of seven additional witnesses. 

3 Further undesignated statutory references are to the Penal Code. 
4

Prosecution

M.M., who was 15 years old at the time of the party, testified under a 

grant of use immunity. He considers Richard an uncle, although they are not 

related.4 M.M. was very close with Richard’s teenaged sons and would go to 

their house every weekend. 

M.M. knew minor and invited him to the party.

5 He sent minor a direct 

message on Instagram with a flyer for the party and the address of Richard’s 

house.

6 M.M. messaged, “pull up to my party, it’s a smoke out,” and asked 

minor who he would be coming with. Minor responded, “I’m going to pull up 

like two cars deep.” M.M. messaged, “I’m going to tell them you’re with me.” 

Minor responded, “don’t tell them because I’m trying to strip shit.” M.M. 

testified this meant minor “was maybe going to steal some stuff.” M.M. told 

minor to bring some dope. Minor responded, “We gonna leave with all their 

dope,” and sent M.M. a photo of minor and what appeared to be a handgun 

with a high-capacity magazine. Then minor asked, “But nah is it good to 

strip them?” and, “You sure they randoms[?]” M.M. responded, “Most of 

them. Just don’t strip none of my family.” M.M. suggested that minor break 

into the cars of party guests.7

4 Richard also referred to M.M. as his nephew and explained that he 

and M.M.’s father had been best friends since childhood. 

5 Evidence was presented that many of the party guests knew Richard’s 

sons and each other from high school or the neighborhood. M.M. and minor, 

however, were from different towns. 

6 Richard testified that M.M. had posted a flyer for the party on 

Instagram. The flyer said to text M.M. for the address of the party. 

7 M.M. messaged, “Strip me down the street,” “Just bip they whips,” 

and, “They going to have something in their cars.” M.M. testified a “whip” is 

a car, and “bip” means “[b]reak a window.” 
5

M.M. testified that minor came to the party and that he (M.M.) 

introduced minor to Richard’s sons. According to M.M., he “made [minor] 

shake hands with [Richard’s sons] before [minor] invited his own friends into 

my party.” M.M. testified that minor asked Richard’s sons and M.M., “ ‘is it 

cool if I got my people that come in here[?]’ ” M.M. saw minor’s friends come 

in the backyard to the party. 

M.M. heard yelling in the backyard; he saw some kids fighting, and an 

adult broke up the fight. Then “just more fights broke out.” He heard 

someone say, “can I get my chain back,” and Richard came and separated 

everyone. M.M. testified that he could not remember or explain everything, 

but there were “[p]eople fighting everybody everywhere.” 

According to M.M., minor was “fighting somebody and somebody went 

through a window.” M.M. saw minor “tussling and wrapped up with 

somebody, and then everybody was just moving around trying to fight.” M.M. 

heard gunshots and ran. He broke down a fence and went to the front of the 

house. 

When Richard was on the ground after he and Yokoi had been shot, 

M.M. went to him and said, “I think I know who did this,” referring to minor

and the people he brought to the party. M.M. testified that he suspected 

minor and his friends because “those were the people who were the first 

people gone and who started another fight” at the party. M.M. elaborated

that, after the shooting and when the police arrived, many of the people from 

the party were still in the area, but minor and his friends had left the scene. 

M.M. showed a police officer a photo of minor from Instagram with minor’s 

Instagram username. 

Twelve days after the party, a police officer interviewed Alvarez, who 

believed he could identify two people at the party: the person he observed 
6

yelling at J.M. and a “big dude” who “got in [Alvarez’s] face” and pushed him 

into the window. Alvarez was shown a series of three six-pack photo lineups. 

Within three or four seconds of viewing the first lineup, he picked minor’s 

photo, and he did not identify anyone in the next two. Of minor’s photo, 

Alvarez told the officer, “yeah that’s the kid,” referring to the person he saw 

yelling at J.M. (“[t]he person in [J.M.]’s face”).8 

As part of the investigation, police searched minor’s home and his 

social media accounts. In minor’s home, officers located a paper mache-like 

mask that read “Strip Team” across the forehead and what an officer 

described as “a business card-sized piece of paper with hashtag strip team on 

it.” 

Minor’s Instagram account showed the instant message exchange M.M. 

described in which he and minor discussed minor’s plan to “strip shit” at the 

party (including a photo of minor with a firearm, high-capacity magazine, 

and another magazine with a bullet casing on top of it). On the day of the 

party, minor also sent Instagram messages providing Richard’s home address 

to nine recipients. In addition, police found a video on his Instagram account

8 Months later (on December 14, 2018), however, Alvarez was shown 

another photo lineup and chose a photo that was not of minor. At the 

jurisdictional hearing in September 2020, Alvarez testified he could not 

identify the person who had been yelling at J.M. and whom he told to return 

the chain “because it’s been so long,” although Alvarez was sure he could 

have identified the person right after the event. He testified that he “couldn’t 

directly say yes or no,” but minor “looks similar” to the person he saw yelling 

at J.M. 
7

in which minor appeared to be rapping.

9 The video was taken two days after 

the party and showed minor wearing a crucifix pendant on a chain.

10

J.M. testified that two chains were taken from him at the party: one 

with a crucifix and another with an angel pendant. The crucifix that minor 

was wearing in the video recorded two days after the party appeared to be 

J.M.’s crucifix. J.M. thought the chain minor was wearing in the video looked 

thinner than his, but “[t]he crucifix looks honestly like mine. Like it had that 

little round thing too at the top.” 

J.M. testified that he knew most of the people at the party, but when 

the party was dying down, a group of four to six people he did not recognize 

arrived dressed in dark clothes. J.M. did not recognize the person who took 

his chains. The person was wearing a denim jacket with a loose hood of a 

different color and fabric. J.M. did not see the person’s face in the light; “It 

was all just like shadows.” J.M. described the person as skinny and “mixed”

or part African-American. J.M. testified the person was not much taller than 

he was (five feet, seven inches), but he previously told the police the person 

who took his chains was about five feet, 11 inches tall.11

Richard’s son J., who was 15 years old at the time of the party, was 

called as a witness by minor. He testified that he knew most of the people at 

the party, but he did not know minor. J. saw minor enter the party through 

the back gate and saw other people walk in with him. J. testified that he did 

9 M.M. testified that minor was trying to be a rapper. 

10 Minor was wearing two chains and the other chain read “Samantha.” 

In an August 2018 search of minor’s home, the Samantha necklace was 

found, but there is no mention of a crucifix pendant. 

11 Minor is African American, and around the time he was arrested, he 

was six feet, one inch tall and weighed 137 pounds. 
8

not see a chain get taken but he heard Alvarez tell minor “to give the chain 

back.” Within a few days after the party, J. picked minor’s photo out of a 

photo lineup and told the police, “he’s the leader, he came in first.” 

Defense 

M.M. testified on cross-examination that “like 200 out of the people 

that I invited” to the party showed up.12 M.M. testified that he told Richard’s 

son J. he had invited someone who talked about stealing at the party, and 

that J. wanted to break into cars himself because he was broke.

13

During the investigation, victim J.M. was shown a photo lineup and 

chose a photo that was not of minor. When Alvarez was shown a photo 

lineup in December 2018, he chose a photo that was not of minor. Alvarez 

testified he saw the person yelling at J.M. “but not super clearly because it 

was very dark during the fight.” 

Sergeant Michael Tegeler reviewed surveillance video recorded in the 

alley the night of the party and observed that minor appeared in the alley 

walking to the party at 11:45:43 p.m. with only two people walking behind 

him. At 11:55:02, a sudden burst of young people began leaving Richard’s 

12 Richard, on the other hand, estimated there were about 60 people in 

the backyard when the party became chaotic. One teenaged party guest told 

the police there were probably about 55 people at the party at most. Another 

witness thought there were about 50 to 60 people at the party when he 

arrived at around 10:00 p.m. When the police arrived after the shooting, an 

officer estimated there were around 50 to 60 people in the area. (This 

number would have included some adults and other family members who had 

been inside the house during the party.) 

13 J., however, denied he had a conversation with M.M. about breaking 

into cars at the party. J. also denied that M.M. introduced minor to him and 

his brother at the party and denied that M.M. asked if it was okay for minor 

to come to the party. 
9

backyard through the gate to the alley, and at 11:55:51, minor could be seen

leaving the backyard. 

Dr. Steven Frenda testified as a defense expert in eyewitness memory. 

He explained that memory is “vulnerable to suggestion” and stress or 

intoxication14 can impair memory regarding details. 

Frenda testified that the “cross-race identification problem” or “own 

race bias” refers to the phenomenon that “people are better or more accurate 

at identifying strangers who are the same race or ethnicity as themselves and 

tend to not be as accurate when it comes to making identifications of 

strangers who are of a different race.” “[P]hoto bias identifications” refers to 

the problem that when “a witness is exposed to a photograph of a suspect 

before they make an identification later on, they become more likely to select 

that person from a subsequent lineup, whether or not that person is in fact 

the perpetrator.”

15 “[U]nconscious transference” happens when, for example, 

a witness sees a bystander at the scene of the crime and mistakenly 

associates the bystander with the crime. 

14 On cross-examination, J.M. agreed he told the police he was so drunk 

that he could not remember clearly, but at the jurisdictional hearing he 

testified he was in shock, not drunk, and he only drank alcohol before the 

party, not at the party. He was using marijuana at the party. Alvarez 

testified he may have had a small shot of alcohol and he smoked marijuana 

before he went to the party. 

15 Defense counsel elicited testimony from Alvarez that he saw minor’s 

photo on Instagram. He also testified that in the week after the party, he 

was often with Richard’s sons and others who had been at the party “talking 

about how this could have happened” and “trying to figure out everything,”

including who did it and why. Alvarez maintained, however, that he was 

shown minor’s photo only after he talked to the police on August 1, 2018, 

when he picked minor’s photo in a lineup. 
10

Frenda reviewed the six-photo lineup used in the investigation that 

included minor’s photo. He “had some concerns” about the lineup because it 

did not appear that the filler photos (the five photos of “known innocents”) 

matched the witness descriptions of the suspect (“small, skinny and lightskinned”). Frenda found it potentially suggestive that minor’s photograph 

was different from the others in that his face was turned slightly to the side 

and his head was larger in the frame. Also, minor’s hairstyle was different 

from the hairstyles in the filler photos. 

Court Decision

The juvenile court found the robbery charge (count 2) true beyond a 

reasonable doubt. It found “extensive and more than substantial evidence 

supporting that charge.” As to the attempted murder and murder charges 

(counts 1 and 3), however, the court determined the prosecution did not prove 

its case beyond a reasonable doubt.16 

16 As described by the juvenile court, the evidence that minor was the 

person who shot Yokoi and Richard in the street was the identification 

testimony of Richard and one other eyewitness. While the court found 

Richard to be truthful in his testimony, the court noted the following 

problems with his identification. Richard viewed the shooter “in the dark 

with a large amount of chaos going on, it happened quickly. There was a 

number of youth that may look similar to the defendant present. There was 

gun focus and not a very good opportunity to make an identification. He did 

make an identification, that was following being shown a photograph of the 

defendant and a discussion as to whether he was the prime suspect. . . . [A]t 

the hospital, he asked a question of the police officer how tall the person was

. . . . [H]e was shown other lineups within the next couple of months. In one 

of those lineups, he picked out the wrong person as the shooter.” The court 

found the other eyewitness’s identification at the jurisdictional hearing

questionable, observing that the witness “told four different stories” and 

previously told the police only that he had seen minor at the party, not that 

minor was the shooter.
11

DISCUSSION

A. Due Process and Sixth Amendment Claims

Minor contends reversal is required because he was deprived of his due 

process and Sixth Amendment rights to notice, assistance of counsel, 

opportunity to prepare a defense, and a fair trial “when the prosecutor shifted 

his theory of the offense to aiding and abetting in his rebuttal argument.” We 

disagree.

1. Background

A major theme of both the prosecutor’s opening statement and closing 

argument was that minor was part of a group (or “strip team”) who went to 

the party to steal and caused chaos and tragedy.17 In his closing argument, 

the prosecutor argued minor’s “plan was always to come with others and rob 

and steal with force” (italics added) and referred to the people minor brought 

to the party as “his posse” and “his crew.” 

In her closing argument, defense counsel responded that the 

characterization of minor “as the leader of a large group is not correct.” She 

argued the surveillance video demonstrated minor did not arrive with a large 

group and he was not associated with the “big guy” Richard and Yokoi were 

17 In his opening statement, the prosecutor argued M.M. identified 

minor from his Instagram account “as being the perpetrator or . . . one of the 

group of people who did this.” (Italics added.) He argued, “[Minor] came to 

the party with an intent to rob and intent to steal. . . . They came there to 

rob.” (Italics added.) In his closing argument, the prosecutor referred to 

“individuals, including [minor] who came to the party intending to rob.” He 

argued it was clear that minor “thinks of himself as associated with 

individuals or with a group that will strip you,” that his messages to M.M. 

about the party showed he associates himself with “[a] group of people who go 

and rob people.” (Italics added.) He argued that minor sent the address of 

the party “to other individuals who showed up and participated in this 

robbery, the fights, the robbery and the shooting.” 
12

following out to the alley right before they were shot.18 Defense counsel

stated there were “ho[]rd[e]s of teenagers” who entered the backyard before 

and after minor arrived and suggested many of these partygoers could have 

been unknown to Richard and his sons yet unaffiliated with minor. She 

asked, “So how many of those people were just other [M.M.] invitees that 

weren’t with [minor]. We don’t know that.” 

As to the robbery charge, defense counsel argued there was no proof 

beyond a reasonable doubt either that minor was the person who took J.M.’s

chains or that force or fear was used in taking the chains. She asserted, “the 

fight is not a robbery,” but also stated that witnesses gave conflicting 

accounts about whether minor “at all was involved in the physical fight that 

happened after the unidentified person took [J.M.]’s chain.” 

In his rebuttal, the prosecutor responded that the element of force or 

fear required for robbery was established by the force used in grabbing J.M.’s 

chains and the threats used to retain them. Then he argued, “Your Honor, 

when it comes to the robbery itself, the biggest things the defense ignored is 

that [minor] is guilty of robbery as an aider and abettor, even if he didn’t

actually snatch the chain from [J.M.]’s neck.” 

Defense counsel objected to this statement “as improper rebuttal,” 

stating, “The prosecutor never before argued a theory of aiding and abetting, 

which is why I didn’t address it.” The court responded, “Well, it’s in his 

pleading. I think he can argue it. [¶] Go ahead.” The prosecutor then argued 

minor “developed the intent to rob before arriving on the scene. . . . That’s 

why he sent the address [of the party] to others. . . . He participated in the 

18 Understandably, given the seriousness of the charges, both counsel 

devoted most of their closing arguments to the evidence supporting the 

murder and attempted murder counts (that is, identification of the shooter). 
13

fight . . ., and he had the stolen property . . . on the video that he posted two 

days later. At the very least, he is guilty of robbery as an aider an abettor.” 

Defense counsel did not ask to reopen argument to respond. 

2. Applicable Legal Principles

The Sixth Amendment grants a criminal defendant the rights “to be 

informed of the nature and cause of the accusation” and “to have the 

[a]ssistance of [c]ounsel.” (U.S. Const., 6th Amend.) “Due process of law 

requires that an accused be advised of the charges against him in order that 

he may have a reasonable opportunity to prepare and present his defense and 

not be taken by surprise by evidence offered at his trial.” (In re Hess (1955) 

45 Cal.2d 171, 175.) 

“ ‘[D]ue process requires that a minor, like an adult, have adequate 

notice of the charge so that he may intelligently prepare his defense. (In re 

Gault (1967) 387 U.S. 1, 33 . . . .)’ ” (In re Robert G. (1982) 31 Cal.3d 437, 

442.) The United States Supreme Court has held that, in juvenile 

delinquency matters, due process requires notice “be given sufficiently in 

advance of scheduled court proceedings so that reasonable opportunity to 

prepare will be afforded, and it must ‘set forth the alleged misconduct with 

particularity.’ ” (In re Gault, at p. 33.) 

The Gault court further recognized that, “Due process of law [in 

juvenile delinquency matters] requires . . . notice which would be deemed 

constitutionally adequate in a civil or criminal proceeding.” (In re Gault, 

supra, 387 U.S. at p. 33.) We therefore begin with case law that addresses

what constitutes constitutionally adequate notice in adult criminal 

proceedings.

“Under California’s practice of short-form pleading, an instrument 

charging a defendant as a principal is deemed to charge him as an aider and 
14

abettor as well. (§ 971.)” (People v. Quiroz (2013) 215 Cal.App.4th 65, 70 

(Quiroz).) This is because “[a]ll persons concerned in the commission of a 

crime, . . . whether they directly commit the act constituting the offense, or 

aid and abet in its commission, or, not being present, have advised and

encouraged its commission . . . are principals in any crime so committed.” 

(§ 31.) Consequently, “one may be convicted of aiding and abetting without 

the accusatory pleading reciting the aiding and abetting theory so long as 

defendant is charged in that pleading as a principal to the substantive 

offense and thus receives notice of the charge against him.” (People v. 

Greenberg (1980) 111 Cal.App.3d 181, 188; see People v. Garrison (1989) 47 

Cal.3d 746, 776, fn.12 [quoting Greenberg].)

19

“Nevertheless, an otherwise proper pleading may in unusual 

circumstances fail to afford due process notice.” (People v. Lucas (1997) 55 

Cal.App.4th 721, 737 (Lucas).) In particular, “due process will not tolerate 

. . . the People affirmatively misleading or ambushing the defense with its 

[legal] theory.” (Quiroz, supra, 215 Cal.App.4th at p. 71.)

In Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1236 (Sheppard), 

the state conceded, “ ‘in the circumstances of this case,’ ” that the defendant 

was denied adequate notice “ ‘because a pattern of government conduct 

19 Minor argues California’s criminal pleading statute, section 971, does

not apply to juvenile proceedings. This argument does not advance his claim

because it does not affirmatively show juvenile wardship petitions are 

required to state for each count whether the prosecution intends to prove the 

offense under an aiding and abetting theory. In any event, minor’s claim is 

constitutional, not statutory. Thus, the question is whether minor in this 

case was “advised of the charges against him [such] . . . that he . . . [had] a 

reasonable opportunity to prepare and present his defense and not be taken 

by surprise by evidence offered at his trial.” (In re Hess, supra, 45 Cal.2d at 

p. 175.) 
15

affirmatively misled the defendant, denying him an effective opportunity to 

prepare a defense.’ ” Under those facts, the Ninth Circuit Court of Appeals 

held that automatic reversal was required. (Id. at p. 1237.)20 

“By contrast, in cases where a new theory is introduced late in the 

game for reasons other than prosecutorial gamesmanship, courts have 

employed a harmless error test. That test looks to whether the late notice 

‘unfairly prevented [defense counsel] from arguing his or her defense to the 

jury or . . . substantially mislead [counsel] in formulating and presenting 

arguments.’ ” (Quiroz, supra, 215 Cal.App.4th at p. 71, quoting United States

v. Gaskins (9th Cir. 1988) 849 F.2d 454, 458.)

3. Analysis

In juvenile court matters, due process requires the minor “be notified, 

in writing, of the specific charge or factual allegations to be considered at the 

hearing, and that such written notice be given at the earliest practicable 

time, and in any event sufficiently in advance of the hearing to permit 

preparation.” (In re Gault, supra, 387 U.S. at p. 33.) Minor received such 

notice in this case.

21 

Minor points out that juvenile court proceedings, unlike adult criminal 

proceedings, do not provide for preliminary hearings. He quotes Justice 

20 Sheppard is not binding on this court, and we have previously 

observed that the opinion is “difficult to square with” our high court’s binding 

precedent (People v. Crawford (1990) 224 Cal.App.3d 1, 8) and that 

“California and Ninth Circuit decisions have uniformly viewed Sheppard

narrowly and limited it to its facts” (Lucas, supra, 55 Cal.App.4th at p. 738). 

21 The operative petition alleged for count 2, “On or about July 20, 

2018, minor [I.W.] did commit a felony namely: 2ND DEGREE ROBBERY, a 

violation of Section 211 of the Penal Code . . . in that said minor did 

unlawfully, and by means of force and fear take personal property from the 

person, possession, and immediate presence of” J.M. 
16

Sims’s concurring opinion in People v. Gordon (1985) 165 Cal.App.3d 839, 870

(Gordon) (conc. opn. of Sims, J.): “[A]n information plays a limited but 

important role: it tells a defendant what kinds of offenses he is charged with 

(usually by reference to a statute violated), and it states the number of 

offenses (convictions) that can result from the prosecution. But the time, 

place and circumstances of charged offenses are left to the preliminary 

hearing transcript; it is the touchstone of due process notice to a defendant.” 

Justice Sims’s observation does not mean, however, that the absence of 

preliminary hearings in juvenile wardship proceedings necessarily violates 

due process. Here, minor learned of “the time, place and circumstances of 

charged offenses” (Gordon, supra, 165 Cal.App.3d at p. 870) through the 

petition allegations and the prosecution evidence provided to defense counsel

well before the jurisdictional hearing.

22 Defense counsel had Instagram 

records showing messages between minor and M.M. sent on the day of the 

party in which minor said he was going to pull up to the party “two cars deep” 

and try “to strip shit” and messages sent by minor relaying the address of the 

party to nine recipients. Defense counsel had police reports documenting

witness statements to officers about what happened at the party and knew, 

for example, that J. identified minor as “the leader” who came into the party

first. And defense counsel knew of a photograph from social media showing 

minor with a group of males, including one wearing clothing that said, “strip 

team.” Thus, it was clear to defense counsel that the prosecution’s evidence 

22 The record shows that an expert psychologist for the defense 

reviewed over 1300 pages of police reports including witness statements and 

minor’s Instagram messages to M.M. and others in preparation for a transfer 

hearing held in April 2020. This, in turn, shows defense counsel had this 

prosecution evidence (and was able to provide it to a retained expert) months

before the jurisdictional hearing, which began in August 2020. 
17

suggested minor intended to steal from party guests in concert with a group 

of people he was going to take to the party.

23 

On this record, minor was not “taken by surprise by evidence offered at 

his trial.” (In re Hess, supra, 45 Cal.2d at p. 175). Defense counsel had 

adequate notice of the charges—and the prosecution’s evidentiary support for 

those charges—to “ ‘intelligently prepare [minor’s] defense.’ ” (In re Robert 

G., supra, 31 Cal.3d at p. 442.) And minor has not shown the prosecutor in 

this case engaged in “ ‘a pattern of government conduct [that] affirmatively 

misled’ ” minor such that automatic reversal would be called for. (Cf. 

Sheppard, supra, 909 F.2d at p. 1236, italics deleted.)

Still, there is no denying the prosecutor argued the aiding and abetting 

theory for the first time very “late in the game” (Quiroz, supra, 215 

Cal.App.4th at p. 71), and we do not condone this practice. Fairness in this 

circumstance dictated that defense counsel be given an opportunity to argue 

in response to the prosecutor’s theory that minor was guilty of robbery as an 

aider and abettor. (See People v. Ardoin (2011) 196 Cal.App.4th 102, 129

(Ardoin) [where the trial court decided to give a felony-murder instruction as 

to a defendant after closing argument, “fairness dictated that the court also 

reopen the case for the limited purpose of granting [defense] counsel the right 

to offer rebuttal argument”], disapproved of on a different point by People v. 

Dalton (2019) 7 Cal.5th 166.) 

But here defense counsel did not ask to reopen argument to respond. 

Minor has therefore forfeited any claim that the juvenile court improperly 

23 Defense counsel had further notice of the prosecution’s theory of the 

case from two transfer hearings to determine whether minor should be tried 

as a juvenile or as an adult. At a transfer hearing in July 2019, for example, 

the prosecutor argued minor’s “actions appear to have been those of the 

leader” as “minor was the one invited and who brought along others.” 
18

denied him an opportunity to present argument on aiding and abetting. (See 

People v. Bishop (1996) 44 Cal.App.4th 220, 235 [“By failing to request 

additional argument to address this new theory of culpability, appellant has 

waived his objection to counsel’s lack of opportunity to present an argument 

on the aiding and abetting special circumstance instruction”].) 

Minor suggests such a request would have been futile. The juvenile 

court responded to defense counsel’s objection of “improper rebuttal” by 

stating, “it’s in [the] pleading. I think he can argue it.” Minor argues the 

court was mistaken because the petition did not mention aiding and abetting. 

But the court may have meant only that the robbery charge is deemed to 

include the possibility of aider and abettor liability. (§ 971; Quiroz, supra, 

215 Cal.App.4th at p. 70.)24 Nothing in the court’s response indicates it

would have denied a defense request for surrebuttal. On this record, minor 

has not established it would have been futile for defense counsel to ask for an 

opportunity to argue in response to the aiding and abetting theory. 

Finally, we again observe defense counsel was well aware throughout 

the proceedings of the prosecution’s theory that minor went to the party with 

a group of people—a “strip team”—who shared an intent to steal. In her 

closing argument, defense counsel urged that minor was not “the leader of a 

large group” and cited surveillance video showing he arrived at the party 

with no more than two people. She argued the fight (i.e., the attack of 

Alvarez) that followed the grabbing of J.M.’s chains should not be considered 

a continuation of the theft and, alternatively, there was insufficient evidence 

minor was involved in that fight. Thus, defense counsel recognized the

grabbing of the chains and the ensuing attack of Alvarez might be viewed as 

24 To the extent minor now claims this pleading presumption does not 

apply in juvenile proceedings, he did not raise this objection at the hearing. 
19

a continuing group activity. Having reviewed the hearing transcript and 

given that defense counsel elected not to request surrebuttal, we cannot say

minor was unfairly prevented from arguing his defense or substantially 

misled in formulating and presenting arguments. (See Ardoin, supra, 196 

Cal.App.4th at p. 134 [concluding the defendant was not unfairly prevented 

from arguing defense or substantially misled where, “from our reading of the 

record we do not perceive that defense counsel’s argument on the felonymurder issue would have appreciably differed or been any more persuasive if 

the case had been reopened”; the defendant failed to show prejudicial error or 

deficient performance by counsel].) Defense counsel was able to, and did, 

argue that minor was not responsible for the conduct of other unknown 

partygoers, and she reasonably may have decided further argument on aiding 

and abetting was not necessary. 

On appeal, minor suggests that, had the prosecutor explicitly raised the 

aiding and abetting theory earlier, defense counsel could have argued that

“sending out the address of a party doesn’t establish an intent to aid an 

unspecified person in a future robbery” and “texts about stealing marijuana 

from cars didn’t demonstrate an intent or conduct to aid someone in a robbery 

of chains from a guest at the party,” but we do not believe such arguments

are reasonably likely to have made a difference in the juvenile court’s 

determination.

B. Sufficiency of the Evidence

Next, minor contends no substantial evidence supports a finding he 

committed robbery because (1) witnesses were unable to identify minor as the 

perpetrator of the theft; (2) there was no substantial evidence the chains were 

taken through force or fear; and (3) there was insufficient evidence that 

minor aided and abetted the theft of the chains.
20

“The standard of review in juvenile proceedings involving criminal 

behavior is the same as that required in adult criminal trials: We review the 

entire record in the light most favorable to the judgment to determine 

whether substantial evidence supports the charge, so that a reasonable trier 

of fact could find guilt beyond a reasonable doubt.” (In re M.V. (2014) 225 

Cal.App.4th 1495, 1518.) 

“The focus of the substantial evidence test is on the whole record of 

evidence presented to the trier of fact, rather than on ‘ “isolated bits of 

evidence.” ’ ” (People v. Cuevas (1995) 12 Cal.4th 252, 261.) “Conflicts and 

even testimony which is subject to justifiable suspicion do not justify the 

reversal of a judgment, for it is the exclusive province of the trial judge or 

jury to determine the credibility of a witness and the truth or falsity of the 

facts upon which a determination depends. [Citation.] We resolve neither 

credibility issues nor evidentiary conflicts; we look for substantial evidence.” 

(People v. Maury (2003) 30 Cal.4th 342, 403.) 

“A reversal for insufficient evidence ‘is unwarranted unless it appears 

“that upon no hypothesis whatever is there sufficient substantial evidence to 

support” ’ the . . . verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) 

“The same standard governs in cases where the prosecution relies primarily 

on circumstantial evidence. [Citation.] We ‘must accept logical inferences 

that the jury might have drawn from the circumstantial evidence. [Citation.]’ 

[Citation.] ‘Although it is the [fact finder]’s duty to acquit a defendant if it 

finds the circumstantial evidence susceptible of two reasonable 

interpretations, one of which suggests guilt and the other innocence, it is the 

[fact finder], not the appellate court that must be convinced of the defendant’s 

guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Where the 

circumstances reasonably justify the trier of fact’s findings, a reviewing 
21

court’s conclusion the circumstances might also reasonably be reconciled with 

a contrary finding does not warrant the judgment’s reversal.” (Id. at pp. 357–

358.)

1. Evidence Minor Grabbed the Chains

Minor argues the evidence he committed robbery was insufficient 

because the witnesses “were unable to adequately identify [him] as the 

perpetrator of the theft.” 

Minor’s Instagram messages to M.M. showed that he intended to steal 

from people at the party. Surveillance video suggested minor arrived at the 

party shortly before J.M.’s chains were taken. J.M. testified that he told the 

person who took his chains to “give me my shit back,” and the person 

responded something like, “what are you going to do about it.” According to 

J.M., Alvarez said something along the lines of “don’t do that, dude” to the 

person who took his chains. Alvarez testified that he heard J.M. asking a 

person for his chains back and that person was “in [J.M.’s] face,” yelling at 

J.M. Alvarez testified that he told the person in J.M.’s face to give back the 

chains. Two days after the party, minor recorded an Instagram video in 

which he was wearing a crucifix pendant that looked like the crucifix pendant 

taken from J.M. Twelve days after the party, Alvarez picked minor’s photo 

out of a lineup and identified him as “[t]he person in [J.M.]’s face.” Richard’s 

son J. testified he saw Alvarez tell someone to “give the chain back” and 

identified minor as the person Alvarez was talking to. This was substantial 

evidence supporting a finding minor was the person who grabbed J.M.’s 

chains. 

That more than two years after the party, J.M. could only describe the 

perpetrator’s clothing and general appearance and Alvarez could say only 

that minor appeared similar to the person who had been in J.M.’s face do not 
22

preclude the existence of sufficient support for the finding. (See, e.g., People 

v. Boyer (2006) 38 Cal.4th 412, 480 [“a testifying witness’s out-of-court 

identification is probative [of identity] and can, by itself, be sufficient 

evidence of the defendant’s guilt even if the witness does not confirm it in 

court”]; People v. Mohamed (2011) 201 Cal.App.4th 515, 522 [one witness’s 

“inability to be 100 percent certain of her curbside identification and [another 

witness]’s expression of ‘a little bit’ of doubt about his curbside identification 

at trial do not preclude the existence of sufficient support for the jury’s 

verdict”]; People v. Lindsay (1964) 227 Cal.App.2d 482, 494 [“identity of a 

defendant may be established by proof of any peculiarities of size, 

appearance, similarity of voice, features or clothing”]; People v. Spellings

(1956) 141 Cal.App.2d 457, 460 [where “the victim was unwilling to positively 

identify the appellant as the robber [but] . . . said that he looked like the 

same man,” the sufficiency of “the identification of the appellant as the 

robber . . . was a question of fact for the jury”].) Nor do witnesses’ conflicting 

descriptions of the perpetrator defeat the substantial evidence that minor 

was the person who grabbed J.M.’s chains. (See People v. Young (2005) 34 

Cal.4th 1149, 1181 [“given the chaos prevailing at the [scene of the crime], 

conflicting descriptions would not be particularly surprising”].) 

To the extent minor suggests Alvarez’s and J.’s identifications of him 

are irrelevant because they did not observe the chains being taken from J.M., 

he is mistaken. The juvenile court could reasonably infer that the person 

Alvarez identified as “in [J.M.’s] face yelling at him” and J. identified as the 

person Alvarez told “to give the chain back” was the person who grabbed the 

chains. 

In short, we reject minor’s claim that insufficient evidence was 

presented to support a finding he grabbed J.M.’s chains. 
23

2. Evidence of Use of Force or Fear

“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.” (§ 211.) Minor argues the taking of 

J.M.’s chains did not amount to robbery because no force or fear was used. 

This argument lacks merit. 

J.M. testified that a person grabbed his chains and “broke the clasp.” 

He felt a “little pop on the back of [his] neck” and “had like a bruise of that 

little clasp.” J.M. was left with “a mark” on his neck “like a little dot.” 

In People v. Gonzalez (2021) 59 Cal.App.5th 643, 645 (Gonzalez), the 

defendant Gonzalez similarly snatched necklaces from three victims and was 

convicted of three counts of robbery. In one instance, Gonzalez “grabbed a 

gold necklace from [the victim]’s neck. The necklace broke and the man ran 

off with it”; in another, the victim was left “with ‘a little bump,’ ‘a red spot on 

[his] neck.’ ” (Ibid.) The Court of Appeal held this was enough force to 

qualify as robbery. (Id. at p. 650.) 

The court explained that “ ‘force’ ” “in the context of robbery is 

commonly understood.” (Gonzalez, supra, 59 Cal.App.5th at p. 650, citing 

Com. to CALCRIM No. 1600 (2020 ed.) p. 1132.) “Gonzalez’s actions satisfy 

this standard of a commonly understood level of force. Owners of gold 

necklaces do not remove them by yanking them off the neck and breaking 

them. No one does that in an ordinary setting. It ruins the necklace. When 

another person yanks your necklace from your neck, the act is forceful. This 

fact is commonly understood.” (Gonzalez at p. 650; see also People v. Roberts

(1976) 57 Cal.App.3d 782, 787 [“evidence that the purse was grabbed with 

such force that the handle broke supports” a robbery conviction].) 
24

In this case, the evidence that the clasp of J.M.’s chain broke and the 

action left a mark on J.M.’s neck is sufficient to establish the use of force 

necessary for robbery. Furthermore, use of force to retain stolen property 

supports a robbery conviction. (People v. Gomez (2008) 43 Cal.4th 249, 264.) 

Evidence that Alvarez was attacked and pushed into a window after he told 

minor to give back J.M.’s chain also supports a finding of use of force. 

3. Evidence of Aiding and Abetting

“A person aids and abets the commission of a crime when he or she, 

(i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with 

the intent or purpose of committing, facilitating or encouraging commission of 

the crime, (iii) by act or advice, aids, promotes, encourages or instigates the 

commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) 

Minor acknowledges there was sufficient evidence that J.M.’s chains

were stolen. The prosecution also presented evidence tending to show

minor’s plan was to bring people (“two cars deep”) to the party to steal 

(“strip”) from random partygoers; minor did bring people to the party (recall

M.M.’s testimony that minor asked if he could bring “my people” into the 

party) who were unknown to other party guests; J.M. knew most of the 

people at the party but did not recognize the person who took his chains; 

after Alvarez told the person who took J.M.’s chains to give them back, minor 

was involved in the fight that resulted in Alvarez being pushed into a 

window; and minor had J.M.’s crucifix pendant two days after the party (and 

was, perhaps, bragging by posting himself wearing the stolen item on social 

media). 

A reasonable fact finder could infer from this evidence that, even if he 

did not grab the chains himself, minor brought the unknown person who took 

J.M.’s chains (the perpetrator) to the party, that minor and the perpetrator 
25

shared an intent to steal from partygoers, and that minor aided and 

instigated the commission of the crime by bringing the perpetrator and 

facilitating his entry into the party and by fighting Alvarez after he told the 

perpetrator to return the chains. Accordingly, minor’s claim that there was 

insufficient evidence to support a finding minor aided and abetted the 

robbery fails. 

C. Declaring a Prior Offense a Felony

Finally, minor argues the juvenile court abused its discretion by 

declaring a prior offense a felony. We are not persuaded.

1. Background

In a prior juvenile court matter in Sacramento County, minor admitted 

possession of a firearm in violation of section 29610, which provides, “[a] 

minor shall not possess a handgun” or “a semiautomatic centerfire rifle.” 

(§ 29610, subds. (a) and (b).) Minor was declared a ward of the court, and he 

was still a ward of the court in Sacramento County when it was time for 

disposition in this case in Solano County. 

At a dispositional hearing on November 4, 2020, the Solano County 

juvenile court adjudged minor a ward of the court and committed him to the 

Division of Juvenile Justice (DJJ) for a maximum of five years, the high term 

for robbery. The court stated the maximum term included a concurrent 

eight-month term for the prior firearm offense, although the Sacramento

County matter was not before the court at that time. 

On January 12, 2021, the DJJ wrote to the Solano County court that it 

had accepted minor and would “reach out to schedule a delivery date for 

[minor].” On March 9, 2021, minor filed a request to change court order 

(Judicial Council Forms, form JV-180) on the ground the disposition was 

unauthorized under Welfare and Institutions Code section 731, which 
26

specifies a ward may not be committed to the DJJ for a period exceeding the 

middle term of imprisonment that could be imposed upon an adult convicted 

of the same offense (three years in this case). (Welf. & Inst. Code, § 731, 

subd. (b); former § 731, subd. (c), as amended by Stats. 2020, ch. 337, § 28.) 

On April 26, 2021, the juvenile court changed its disposition; it placed minor 

in the custody of his parents and ordered probation. 

Meanwhile, on April 6, 2021, the Sacramento County Probation 

Department filed a motion to transfer minor’s juvenile court case arising from 

the prior firearm violation to Solano County. On May 12, the Sacramento 

County juvenile court granted the transfer, and on June 15, the Solano 

County juvenile court accepted the transfer. 

At a hearing on June 15, 2021, defense counsel told the Solano County 

court, “I think you need to do two things. One, determine whether the prior 

gun case should be a felony or a misdemeanor. And, two, recalculate his max 

term by adding either four months if you think it’s a misdemeanor or eight 

months if you think it’s a felony.” The court stated, “So what I would do is . . . 

make a finding it’s a felony, extend his possible confinement time by eight 

months.” 

On July 30, 2021, a notice of probation violation was filed for failure to 

timely report a change of address. On September 1, 2021, the parties reached 

a negotiated disposition under which minor admitted the violation and 

agreed to remain in custody until his 21st birthday in October 2021, at which 

point probation would be terminated as unsuccessful and juvenile court 

jurisdiction would terminate by operation of law. 

On September 20, 2021, minor’s appellate counsel wrote to the juvenile 

court informing the court that its most recent dispositional order had not 

addressed the prior Sacramento County juvenile court matter (the firearm 
27

offense). She requested the court “issue an all-encompassing final 

dispositional order that includes the requisite felony/misdemeanor 

determination in the minutes of the court.” 

On November 16, 2021, the juvenile court held a hearing regarding 

appellate counsel’s request and found the prior firearm offense to be a felony. 

2. Analysis

First, minor argues the juvenile court lacked authority to declare the 

offense a felony because it was deemed a misdemeanor by operation of law. 

He relies on section 17, subdivision (c), which provides, “When a defendant is 

committed to the Division of Juvenile Justice for a crime punishable, in the 

discretion of the court, either by imprisonment in the state prison or 

imprisonment in a county jail under the provisions of subdivision (h) of 

Section 1170, or by fine or imprisonment in the county jail not exceeding one 

year [i.e., a wobbler], the offense shall, upon the discharge of the defendant 

from the Division of Juvenile Justice, thereafter be deemed a misdemeanor 

for all purposes.” As minor recognizes, however, the Sacramento County 

matter had not been transferred to Solano County at the time the juvenile 

court committed minor to the DJJ for the current robbery offense. The 

juvenile court did not have jurisdiction over the Sacramento County firearm 

offense when it issued the commitment order; therefore, section 17 does not 

apply because minor was not committed to the DJJ for the prior firearm 

offense. 

Second, minor argues the record is insufficient to support a felony 

finding. At the November 16 hearing, defense counsel stated the 

circumstances of the offense were that minor was “found in an apartment 

during a probation search for an adult who was on probation,” “a gun was 

found . . . in the pocket of a jacket hanging in a closet,” and “[p]olice asked for 
28

consent to search [minor]’s phone and received it and found a picture of 

[minor] holding what appeared to be that same gun.” The court observed, “A 

sixteen-year old flashing guns on his phone at that age where he was I think 

that’s felonious conduct . . ., so I’ll find it’s a felony. . . .” 

Welfare and Institutions Code section 702 provides, “If the minor is 

found to have committed an offense which would in the case of an adult be 

punishable alternatively as a felony or a misdemeanor, the court shall 

declare the offense to be a misdemeanor or felony.” “[T]he requirement that 

the juvenile court declare whether a so-called ‘wobbler’ offense was a 

misdemeanor or felony . . . ensur[es] that the juvenile court is aware of, and 

actually exercises, its discretion under Welfare and Institutions Code section 

702.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1207; see In re F.M. (May 4, 

2023, No. S270907) __ Cal4th. __ [2023 WL 3239317, at *3].)

“[T]he decision whether to reduce a wobbler [to a misdemeanor rests]

solely ‘in the discretion of the court.’ ” (People v. Superior Court (Alvarez)

(1997) 14 Cal.4th 968, 977.)25 “ ‘The burden is on the party attacking the 

sentence to clearly show that the sentencing decision was irrational or 

arbitrary. [Citation.] In the absence of such a showing, the trial court is 

presumed to have acted to achieve legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will not be set 

aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed 

merely because reasonable people might disagree. “An appellate tribunal is 

neither authorized nor warranted in substituting its judgment for the 

judgment of the trial judge.” [Citations.]’ ” (Id. at pp. 977–978.)

25 Alvarez concerned an adult criminal defendant and discusses section 

17, subdivision (b), but minor cites Alvarez as relevant in the juvenile court 

context. 
29

Here, the juvenile court understood it had discretion to declare the 

prior firearm offense either a misdemeanor or a felony and it exercised its 

discretion. Minor has not shown abuse of discretion on this record. 

DISPOSITION

The judgment is affirmed.
30

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Markman, J.*

A161394, People v. I.W.

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.