Filed 7/24/13 In re Joshua D. CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JOSHUA D., a Person Coming Under the Juvenile Court Law. B243452
(Los Angeles County

THE PEOPLE,
Plaintiff and Respondent,

v.
JOSHUA D.,
Defendant and Appellant. Super. Ct. No. TJ20092)

APPEAL from an order of the Superior Court of Los Angeles County, Tamara Hall, Judge. Affirmed. Lynette Gladd Moore, under appointmen t 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, St even D. Matthews and Connie H. Kan, Deputy Attorneys Gene ral, for Plaintiff and Respondent.

__________ __________2 Joshua D. appeals from the juvenile c ourt’s order declaring him a ward of the court after finding he had committed robbery. Joshua contends the admission of hearsay testimony was prejudicial error. We affirm.

FACTUAL AND PROCED URAL BACKGROUND

1. The Petition Jaime Sanchez, a sidewalk ice cream vendor in Compton, was assaulted and robbed of ice cream by several youths. The district attorney filed Welfare and
Institutions Code section 6 02 petitions against Joshua, Ja smine W. and A.W., alleging each of them had committed the second degree robbery of Sanchez in violation of Penal
Code section 211. Jasmine admitted the alle gation, and the juvenile court sustained her petition, declared her a ward of the court and ordered her home on probation. Thereafter, Joshua and A.W. were the subjects of a joint jurisdiction hearing.

2. The Jurisdiction Hearing Jaime Sanchez testified he was pushing his ice cream cart out of the park on the afternoon of June 4, 2012, wh en Joshua and another boy calle d out to him for ice cream. Sanchez stopped in front of a house and waited for Joshua an d the other boy to come up
to the cart. As Joshua stood beside Sanchez, the other boy pu lled open the lid of the cart, threw it on the ground and grabbe d some ice cream bars. Sa nchez told him to stop and shoved the cart towards the boy. Joshua struck Sanchez in the face with his fists. After the first punch, Sanchez attempted to hit Joshua with the bells on top of the cart, but he was overpowered by Joshua, who continued pu nching Sanchez in the face, causing him to fall back against a fence. Two girls arri ved immediately after the assault. They took
some ice cream bars from Sanc hez’s cart and fled with the boy. Joshua left shortly thereafter. Sanchez suffered swollen eyes, a br oken nose and a cut lip . In a field show up conducted by Los Angeles County Sheriff’s Deputies, Sanchez identified Joshua as the person who had punched him and A.W. a nd Jasmine as the two girls who had taken
his ice cream bars.3 Casilda Tovar looked out of her house and saw Joshua punching Sanchez in the face. Tovar stood in her doorway and yelled at Joshua to stop the assault. Joshua let Sanchez go and stepped back. Two girls ca me up and were laughing as they took some
ice cream bars from Sanchez’s cart. Two othe r boys were standing about 10 feet away from Joshua, waiting for him. Jo shua, the other boys, and the tw o girls then left together. In a field show up, Tovar identified Joshua to sheriff’s deputies as the person who had punched Sanchez, and A.W. an d Jasmine as the two girls who had taken the ice cream
bars. At the close of the People’s evidence, Joshua’s counsel moved to dismiss the petition pursuant to Welfare and Institutions Code section 701.1 ; the juvenile court heard
and denied the motion. Joshua did not testify or offe r other evidence in his defense

. 1 With respect to Joshua, the primary i ssue was whether he had assaulted Sanchez for the purpose of aiding and abetting the robbery of Sanchez. Following argument by counsel, the juvenile court found beyond a reasonable doubt that Joshua had aided and abetted the commission of second degree robbery, a felony. 2

3. The Disposition Hearing The juvenile court declared Joshua a wa rd of the court, and ordered him into a nine-month camp community placement program and calculated the maximum term of confinement as five years.

1 A.W. testified in her defense that Josh ua, another boy and a girl approached Sanchez. According to A.W., the girl opened the lid of Sanchez’s cart, helped herself to some ice cream, and fled. Jos hua and Sanchez then began fi ghting. A.W. waited at the corner while her friend Jasmin e retrieved some ice cream bars that were lying on the ground after the fight.

2 The juvenile court found the People failed to prove beyond a reasonable doubt that A.W. had committed second degree robbery and dismissed the pe tition against her.4 DISCUSSION

1. The Disputed Testimony On direct examination, Deputy Alejandro Ramirez test ified Jasmine had stated during an interview “that she was at the park and she saw . . . [Joshua and] . . uh -- Dosha? Or Daysha -- and another young Bl ack running toward the ice cream man and I believe Daysha said, ‘We’re going to rob the ice cream ma n.’” Overruling the hearsay objection of Joshua’s counsel, the juvenile court admitted the testimony as an admission of a coconspirator in furtherance of the cons piracy’s objective pursu ant to Evidence Code
section 1223 3 , an exception to the hearsay rule

.

2. Admission of the Disputed Te stimony Was Ha rmless Error The People’s theory through out the jurisdiction hearing was that Joshua had aided and abetted the robbery by attacking and inju ring Sanchez so Joshua’s accomplices could
steal Sanchez’s ice cream bars from his cart. By seeking to introduce Deputy Ramirez’s testimony of what Jasmine told him had been related to her by Daysha, the People were attempting to demonstrate Joshua’s specific in tent to permanently deprive Sanchez of his property. Joshua contends the juvenile court comm itted prejudicial erro r when it failed to exclude this disputed testimony. 4 Deputy Ramirez’s testim ony regarding what Jasmine said had been told to her by Daysha was, without question, a classic example of inadmissible “double-hearsay.” (See Evid. Code, § 1200, subd. (b); People v. Zapien

3 Evidence Code section 1223 provides: “Evi dence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspir acy to commit a crime . . . and in furtherance of the objective of that conspiracy; [¶] (b ) The statement was made prior to or during the time that the party was participating in the conspiracy; and [¶] (c) The evidence is offered either after admissi on of evidence sufficient to su stain a finding of the facts specified in subdivisions (a) a nd (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.”

4 We review the court’s decision to admit evidence for abuse of discretion. ( People v. Vieira (2005) 35 Cal.4th 264, 292.)5 (1993) 4 Cal.4th 929, 950-952 .) The People do not assert any applicable exception for
the admission of Jasmine’s statement to Ramire z and for Daysha’s purported statement to Jasmine. The latter did not qualify for admission under Eviden ce Code section 1223 in the absence of any independent evidence of a conspiracy involving Daysha and Joshua to rob Sanchez. ( People v. Hardy (1992) 2 Cal.4th 86, 139 [“‘Evidence of a hearsay “statement” of a coconspirator is inadmissibl e against the defendant in the absence of “‘independent evidence to establish prima faci e the existence of ... [a] conspiracy.’”].) Indeed, apart from the disputed testimony, nothing in the record suggested someone named Daysha had any connection with Joshua, was present during the robbery, or participated in any phase of the crime. While this multiple hearsay testimony was therefore not properly admitted, in light of the other evidence before the juvenile court, any error was plainly harmless, whether viewed through the prism of federal constitutional law ( Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] or state law ( People v. Watson (1956) 46 Cal.2d 818, 836). Robbery is the felonious taking of pe rsonal property in the possession of another from his or her person or immediate presen ce, and against his or her will accomplished by means of force or fear. (Pen. Code, § 211; People v. Whalen (2013) 56 Cal.4th 1, 69.) A necessary element of the crim e is the specific intent to permanently deprive the owner of his or her property. ( People v. Anderson (2011) 51 Cal.4th 989, 1002.) A n aider and abettor of a specific intent crime like robbery shares the perpetrator’s specific intent when he or she knows of the perpetrator’s criminal purpose and aids, promotes, encourages, or instigates the perpetrato r with the intent of encouraging or facilitating the commission of the crime. ( People v. Houston (2012) 54 Cal.4th 1186, 1224.) Neither mere presence when a crime is committed, nor fa ilure to prevent it, is suffici ent, although those factors, as well as companionship, conduct before and after the offense, and flight may be considered in determining a defend ant’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.) Here there was ample evidence from whic h a reasonable trier of fact could infer
that Joshua aided and abetted th e robbery of Sanchez. Joshuaand the other boy, together,6 called out to Sanchez for ice cream and appro ached his cart. As Joshua stood beside Sanchez, the boy removed the lid from the cart and began to remove the ice cream bars. When Sanchez yelled and shoved his cart at the boy to stop the theft, Joshua pummeled Sanchez in the face, enabling the boy to fl ee with the ice cream bars. Joshua soon
followed. This evidence, even without the disputed testimony, is sufficient to demonstrate Joshua’s specific intent to facilitate the theft of Sanchez’s pr operty by physically disabling him.
DISPOSITION

The order is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.