Filed 5/15/13 In re Christian L. CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re CHRISTIAN L.,

a Person Coming Under the Juvenile Court Law. B238930

(Los Angeles County Super. Ct. No. VJ41601)

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTIAN L.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Lo s Angeles County, Philip K. Mautino, Judge. Reversed. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Kenneth C. Byrne and Baine P. Kerr, Deputy Attorneys Genera l, for Plaintiff and Respondent.

_____________ _____________2 Appellant Christian L. appeals from the juvenile court’s orde r placing him on six months probation with out wardship (Welf. & Inst. Code , § 725, subd. (a)). Appellant

contends the evidence is insufficient to support th e finding he committed the misdemeanor offense of throwing a substan ce at a vehicle. We agree and reverse. 1

FACTUAL AND PROCED URAL BACKGROUND

A. The Petition A petition filed pursuant to Welfare a nd Institutions Code section 602 alleging appellant, then 14 years old, had committed misdemeanor va ndalism was amended by the People to allege a single count of throwing a substance at a vehicle in violation of Vehicle Code section 23110, subdivision (a), a misdemeanor.

B. The Jurisdiction Hearing At approximately 10:00 p. m. on June 27, 2011, Sco tt Dowling was inside his house in La Mirada, when he heard someth ing strike his car, which was parked on the street. Dowling went to the window and sa w a Honda driving away towards the end of his street. Seconds later, the Honda turned around and drove up next to Dowling’s car. Dowling then “saw eggs come out of the [H onda] . . . and hit [his] car.” Dowling ran outside and memorized the taillight configura tion of the departing Honda so he could follow it in his car. While driving arou nd looking for the Honda, Dowling noticed broken eggs on the gr ound near parked car s. Eventually Dow ling saw a Honda on the street, recognized its taillight configura tion and telephoned the Los Angeles County Sheriff’s Department. Deputy Diego Sanchez re sponded and pulled over th e Honda. Inside were approximately five people, including appellant. Prior to interviewing appellant, Deputy

1 In view of this ruling, we need not reach appellant’s remaining contentions on appeal.3 Sanchez advised him of his right to remain sile nt, to the presence of an attorney and, if indigent, to appointed counsel. ( Miranda v. Arizona (1966) 384 US. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694], which appellant waived. Appellant then told the deputy he was sitting in the middle of the backseat of the Honda, while his friends were throwing eggs at cars. Deputy Sanchez searched th e Honda and found approximately a dozen eggs in an egg carton. At the conclusion of the People’s pres entation of evidence, appellant made a motion to dismiss (Welf. & Inst. Code § 701.1), which the juve nile court denied, mistakenly believing Deputy Sanchez testifie d that appellant had told him “we were throwing eggs at the vehicle.” 2 Appellant testified in his defense that af ter school, he was with his brother and his

brother’s friends. “We went to the store and th ey bought eggs.” Ap pellant then rode in the backseat of the Honda, sitting between tw o passengers. Appellant denied having thrown any eggs. At the conclusion of the hearing, the pr osecutor argued the evidence established appellant either had personally been throwing eggs or had aided and abetted others in throwing eggs at Dowling’s car. Defense co unsel argued there was no evidence appellant had violated Vehicle Code section 23110, su bdivision (a). After hearing argument, the juvenile court sustained the petition without comment.

DISCUSSION

A. Standard of Review The same standard governs review of the sufficiency of evidence in juvenile cases as in adult criminal cases: “[W]e review the whole record to determine whether any

2 Because appellant is not directly challe nging the juvenile c ourt’s denial of his motion to dismiss, we include the defense evidence, consisting solely of appellant’s testimony, in our summary of the evidence.4 rational trier of fact could ha ve found the essential elements of the crime or special circumstances beyond a reasona ble doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evid ence that is reasonable, credible, and

of solid value—such th at a reasonable trier of fact coul d find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presum e in support of the judgment the existence of every fact the jury could reasonably have deduced from the ev idence. [Citation.] ‘Conflicts and even testimony [that] is subjec t to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusiv e province of the tria l judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citati on.] We resolve neither cred ibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for

insufficient evidence ‘is unwarra nted unless it appears “that upon no hypothes is whatever

is there sufficient substantia l evidence to support”’ the ju ry’s verdict. [Citation.]” ( People v. Zamudio (2008) 43 Cal.4th 327, 357; see In re Matthew A. (2008) 165 Cal.App.4th 537, 540.).)

B. The Evidence is Insufficient to Support the Finding Ap pellant Violated Vehicle Code, Section 23110, Subdivision (a) Vehicle Code section 23110, subdivis ion (a), provides that “[a]ny person who throws any substance at a ve hicle or any occupant thereo f on a highway is guilty of a

misdemeanor.” There is no doubt that appellant was a pa ssenger in the Honda when the eggs were thrown at Dowling’s car, and, when his test imony is considered, was in the store when the eggs were purchased earlier that day. However, apart from appellant’s presence, there is absolutely not hing in the record fro m which the juvenile court could infer that appellant had been throwing eggs at Dow ling’s car. The testimony of Dowling, the single percipient witness, mere ly established that eggs were being tossed out of both sides

of the Honda. There is no evidence as to whether the e ggs were coming from the middle5 of the back seat, where appellant was sitting, and/or the front seat of the car. Nor does Deputy Sanchez’s recovery of a dozen eggs , purchased earlier, from somewhere inside the Honda suggest that appellant participated in throwing eggs at cars. Indeed, there is no evidence that appellant, himsel f, committed any criminal act. Nor is there sufficient evidence appellant violated Vehicle Co de section 23110, subdivision (a), on a theory of aider and abettor liability. A person aids and abets the commission of a robbery “when he or she, acting with (1) knowle dge of the unlawful purpose of the perpetrator[,] a nd (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advise aids, promotes, encourages or instigates, the commis sion of the crime.” ( People v. Beeman (1984) 35 Cal.3d 547, 561; see People v. Perez (2005) 35 Cal.4th 1219, 1225.) Neither mere presence when a crime is committed, nor failure to prevent it, is sufficient, although those factors, as well as companionship, conduct before and after th e offense, and flight may be considered in determining a defendant’s criminal responsibility. ( People v. Garcia (2008) 168 Cal.App.4th 261, 272-273; In re Juan G. (2003) 112 Cal.App.4th 1, 5.) The People argue appellant aided and abetted the commission of the crime by his presence when the eggs were purchased, his presence when the eggs were thrown, and the presence of eggs in the Honda. Even if it is reasonable to infe r from this evidence that appellant knew the eggs were going to be thrown at cars, absent evidence that appellant encouraged or facilitated, let alone directly participated, in the offense, his knowledge alone is not enough. It is a matter of speculation whether appellant contributed anything to the actual egg throwing. In sum, if nothing else, this case is a paradigm of mere presence at the scene doe s not in and of itsel f constitute aiding and abetting. To permit a finding that appella nt violated Vehicle Code section 23110, subdivision (a), based on aider and abettor liab ility would, in effect, support a finding of guilt by association. While it is certainly possible appellant either threw eggs himself or aided and abetted others in throwing eggs, that is not enough. “‘[R]easonabl eness [is] the ultimate

standard under the substantia l evidence rule. “The appe llate court must determine6 whether a reasonable trier of fact could ha ve found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.” . . . [Citation.] “Evidence which merely raises a strong suspicion of the defendant’s gu ilt is not sufficient to support a conviction. Suspicion is not evidence, it me rely raises a possibility, and this is not a

sufficient basis for an in ference of fact.”’” ( In re Sylvester C. (2006) 137 Cal.App.4th 601, 606-607.)

DISPOSITION

The order is reversed.

JACKSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.