IN RE: A.R. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Minor A.R. appeals from the order of wardship entered following a finding that he committed two counts of grand theft in violation of Penal Code section 487, subdivision (a).   The minor contends the evidence is insufficient to support the finding as to one count.   We agree and reverse.

BACKGROUND

Chase G. testified that on August 31, 2008, he and his friend Nick went inside a Carl's Jr. restaurant, leaving their BMX bicycles unlocked outside the restaurant.   At some point, Chase looked out the window and saw A.R., whom Chase knew, and an unidentified person riding away on Chase's and Nick's bicycles.   Chase could not remember which bicycle A.R. was riding, but he thought it was Nick's.

A Welfare and Institutions Code section 602 petition filed November 4, 2008, alleged two counts of grand theft, one for each bicycle.   The juvenile court denied A.R.'s motion to dismiss count two (grand theft of Chase's bicycle) and found both grand theft counts true.   The court also found true a March 3, 2009 petition that alleged A.R. possessed a device for smoking methamphetamine.   At a later disposition hearing before a different judicial officer, the juvenile court declared that A.R. would remain a ward of the court (A.R. had prior sustained petitions), found count 1 of the November 4, 2008 petition to be a felony and count 1 of the March 3, 2009 petition to be a misdemeanor, set the maximum term of confinement at three years ten months (or three years two months, according to the clerk's minute order), and ordered a short-term camp placement for A.R.

DISCUSSION

A.R. contends that the evidence was insufficient to support the juvenile court's finding that he committed the grand theft of both bicycles.   The juvenile court did not explain its rationale when it denied A.R.'s motion to dismiss one of the counts, but the parties agree that the court necessarily based its decision on the theory that A.R. aided and abetted the theft of the bicycle he did not ride away.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the juvenile court's finding, so that a reasonable fact finder could find the allegation true beyond a reasonable doubt.  (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)   We also presume in support of the juvenile court's finding the existence of every fact the trier could reasonably deduce from the evidence and make all reasonable inferences that support the finding.  (Id. at p. 1089.)   A reasonable inference may not be based solely upon suspicion, imagination, or speculation.  (People v. Raley (1992) 2 Cal.4th 870, 891.)

A person aids and abets the commission of a crime when he or she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating or encouraging commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime.  (People v. Prettyman (1996) 14 Cal.4th 248, 259;  People v. Beeman (1984) 35 Cal.3d 547, 561.)   Facts such as presence at the scene of the crime and companionship and conduct before and after the offense, including flight, may be considered in deciding whether a defendant knew of another perpetrator's intentions and intended to facilitate or encourage the crime.   (People v. Mitchell (1986) 183 Cal.App.3d 325, 330.)

The testimony established that the two bicycles were stolen more or less simultaneously by two individuals, with each individual taking one bicycle.   Chase did not see the thieves approach the bicycles.   Although he saw both bicycles being ridden away, he did not testify that the bicycle thieves were riding together, or even in the same direction.   This evidence is insufficient to show that the second thief was A.R.'s “companion,” as the Attorney General argues.   Nothing in the record indicates that A.R. and the other thief knew one another.   Even if the second thief was A.R.'s companion, the evidence is insufficient to show that A.R. said or did anything to aid, promote, encourage or instigate the theft of the other bicycle, with the intent that the other thief steal the other bicycle.   The record is simply too sparse to determine how the thefts came about.   Perhaps the other thief spotted the unlocked bicycles first and took one of them, after which A.R. took the other bicycle.   Or A.R. may have walked away from the other thief without saying a word to him, jumped on one of the bicycles and ridden away while his “companion” watched, then took the other bicycle.   Under such circumstances, A.R. would not have done anything to aid, promote, encourage or instigate the theft of the other bicycle, and the circumstances would not support an inference that he intended for the other thief to steal the other bicycle.   Each thief may have simply wanted a bicycle, and not have cared whether the other thief also succeeded in stealing a bicycle.   Unlike circumstances in which coordinated action was required to commit a crime, one thief's success in stealing a bicycle was not necessary to the other thief's success.   Accordingly, any conclusion that A.R. harbored the requisite intent and aided and abetted the other thief in the theft of the other bicycle is necessarily based upon speculation regarding A.R.'s intent, how the crimes occurred, whether A.R. initiated the thefts, and what A.R. might have done to aid, promote, encourage or instigate the theft of the other bicycle.   Speculation is insufficient to support the juvenile court's finding.

Although it is uncertain which bicycle A.R. took, the evidence suggests it may have been Nick's (count 1).   Because it appears that count 2 may pertain to the theft of the “other bicycle” (Chase's) and A.R. seeks reversal of count 2, we select count 2 for reversal.   Upon remand, the juvenile court should recalculate the maximum term of confinement.

DISPOSITION

Count 2 is reversed and the cause is remanded for recalculation of the maximum term of confinement.   In all other respects, the order under review is affirmed.

NOT TO BE PUBLISHED.

We concur:

ROTHSCHILD, J. CHANEY, J.