THE PEOPLE v. FAAMAMA SUEVALE MALAUULU (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The jury found defendant Faamama Suevale Malauulu guilty of attempted second degree robbery (Pen.Code, §§ 664, 211) ¹ of Rosa Balbuena (Rosa), Jessica Balbuena (Jessica), and Edgar Damas (Edgar) and assault with a firearm (§ 245, subd. (a)(2)) on Rosa, Jessica, Edgar, and Edel Balbuena (Edel).²  The jury found true allegations that defendant personally used a firearm (§ 12022.5) as to the four counts of assault with a firearm convictions.   In a separate proceeding, the trial court found true the recidivist allegations that defendant suffered one prior conviction under the three strikes law (§§ 1170.12, subds.(a)–(d), 667, subds. (b)–(i)), one prior serious felony conviction (§ 667, subd. (a)(1)), and served a prior prison term (§ 667.5, subds.(a) & (b)).  The trial court sentenced defendant to state prison for a term of 23 years.

In this timely appeal, defendant contends substantial evidence does not support the attempted robbery convictions and the assault with a firearm convictions of Jessica and Edgar, and it was an abuse of discretion to admit an out-of-court statement of a third party.   We affirm.

STATEMENT OF FACTS

Prosecution Case

In the evening of September 24, 2008, defendant, Soonapuai Mikaio,³ and a third man ⁴ were at the Hub City Plaza in Compton.   As they were walking, a stranger called out to them in a friendly fashion, “What's up, nephew?”   Mikaio retorted, “I'm not your fucking nephew' ” and gestured toward his waistband as if threatening to reach for a gun.   The third man said, “The telephone place is still open.”   A cell phone store, owned by Edel, was located in the shopping plaza in a row of stores along a sidewalk.   A parking lot was on the other side of the sidewalk.   Defendant and his two companions walked to the cell phone store.

The front of the store had a glass entrance door plus two floor-to-ceiling glass windows.⁵  Across the center of the store was a waist-high counter.   A door to a room where Edel repaired phones was at the back of the store.   Edel was in this back room.

Two bicycles belonging to Edel's family were inside the front corner of the store.   Mikaio entered the store and took one of the bicycles.   Defendant and the third man looked inside the store.   The third man joined Mikaio inside, while defendant continued walking down the sidewalk in front of the row of stores.   He walked at least 30 paces.

Jessica, Edgar, and Rosa tried to pull the bicycles away from Mikaio and the third man.   Using force, Mikaio and the third man nearly succeeded in getting the bicycles out the door, but they were thwarted by Edel, who threatened the perpetrators with a large knife.   Edel herded the perpetrators out the front door, but they continued to try to take the bicycles with them and to force their way back into the store.

Defendant walked back toward his two companions, who could be seen coming out of the store and struggling on the threshold with the victims.   Defendant was with his companions at the door when Mikaio kicked and pushed the door to keep it open.   Jessica, Rosa, Edgar, and Edel were at or near the door and, except for Edgar, remained there.   Edgar went into the back room to make a telephone call.   Edel finally closed and locked the door.   Outside, defendant was “instigating” and urging Mikaio to “Pop that fool.   Pop that fool.”   Mikaio went up to the door and gestured as if he were pointing a gun at the store.

Then defendant walked up to the door with a real gun in his hand, raised his arm, and pointed the gun inside the store.   At that moment, Rosa and Edel were pressed against the inside of the door, Jessica was a few steps behind them watching, and Edgar was on the telephone in the back room, peeking out from the back room door.   A fraction of Edgar's body was visible in the doorway of the back room.   When defendant pointed the gun, Edel flinched to the side and Jessica quickly stepped back.   Defendant lowered the gun.

After Mikaio and the third man kicked and pushed the door again, defendant and his two companions left the store for good.   They scattered in different directions when a marked sheriff's car stopped.   After a short chase, defendant was apprehended.

Defense Case

Defendant called no witnesses.

DISCUSSION

I. Substantial Evidence

Defendant contends the evidence is insufficient to support his convictions of attempted robbery of Rosa, Jessica, and Edel as an aider and abetter ⁶ and assault with a firearm on Jessica and Edgar.   We conclude substantial evidence supports the convictions.

“ ‘In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’  [Citation.]”  (People v. Story (2009) 45 Cal.4th 1282, 1296.)

A. Attempted Robbery

“[P]roof of aider and abettor liability requires proof[, inter alia, of] knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and ․ conduct by the aider and abettor that in fact assists the achievement of the crime.  [Citation.]”  (People v. Perez (2005) 35 Cal.4th 1219, 1225.)  “[P]roof of an attempt by a direct perpetrator is sufficient for purposes of aiding and abetting liability.   If a direct perpetrator is thwarted and guilty only of an attempt, an aider and abettor may still be guilty of aiding and abetting the attempt.”  (Id. at p. 1226.)

Under section 211, robbery consists of five elements.   The prosecution must establish defendant (1) took possession of property not his own, (2) from another, (3) against that person's will, (4) using force or fear to effect the taking or to prevent resistance with, and (5) the specific intent to permanently deprive the owner of his property.  (See People v. Marshall (1997) 15 Cal.4th 1, 34;  see also Judicial Council of Cal.Crim. Jury Instns.   (2009–2010) CALCRIM No. 1600.)  “[T]he evidence must show that the requisite intent to steal arose either before or during the commission of the act of force.”  (People v. Marshall, supra, at p. 34.)  “ ‘[T]he intent required for robbery ․ is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.’   [Citation.]”  (People v. Abilez (2007) 41 Cal.4th 472, 506–507.)

Defendant contends the evidence was not sufficient to establish he (1) knew of his companions' intent to steal before they entered the cell phone store or (2) intended to encourage their attempt to steal.   We disagree.   Defendant accompanied his companions to the cell phone store when the third man stated it was still open, knowing that Mikaio was armed with a gun and prepared to use force.   Defendant looked into the store and saw Mikaio taking a bicycle that did not belong to him;  and he knew the third man followed Mikaio into the store.   The foregoing reasonably suggests defendant knew, and shared, the perpetrators' criminal purpose in going to the store and knew the perpetrators intended to commit robbery in the store.   Defendant did not stand directly outside the store while the perpetrators were inside the store, but he remained in sight of the store and returned as soon as he saw the two perpetrators struggling on the threshold.   Defendant encouraged the attempted robbery as Mikaio continued trying to force his way back into the store.   Defendant participated in the perpetrators' attempts to force their way back in, by pointing a gun at the victims.   The foregoing is substantial evidence supporting the conclusion defendant acted with knowledge of the perpetrators' criminal purpose and with intent to encourage and facilitate the commission of the offense.

B. Assault of Jessica and Edgar

Defendant contends substantial evidence does not support the convictions of assault of Jessica and Edgar because there is no evidence defendant was aware of their presence in the store.   Substantial evidence supports the verdicts.

“Assault is ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ (§ 240, italics added.)”  (People v. Williams (2001) 26 Cal.4th 779, 785.)  “The ․ substantive offense of assault with a firearm does not require a specific intent to injure a particular victim․  ‘[A]lthough the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.’  [Citation.]  ․ [B]ecause the law seeks to prevent the wrongful application of physical force upon the victim ‘irrespective of any actual purpose to cause it,’ the mens rea element of assault is established by proof of general criminal intent.   [Citation.]  ․ ‘[T]he pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm.’  [Citation.]”  (In re Tameka C. (2000) 22 Cal.4th 190, 198;  accord, People v. Williams, supra, 26 Cal.4th at p. 790 [“we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.   Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.”].) “[N]o subjective intent to injure a particular victim is required.   Rather, a defendant's intended acts are evaluated objectively to determine whether harm to a charged victim was foreseeable.”  (People v. Felix (2009) 172 Cal.App.4th 1618, 1629.)

The record contains substantial evidence that defendant was actually or reasonably aware Jessica and Edgar were present when he pointed the gun.   When defendant returned to the door as the perpetrators were being ejected, Jessica and Edgar were inside the store near the door.   Less than 20 seconds later, when defendant pointed the gun inside the store, Jessica was still near the door and Edgar was in the back room with part of his body visible in the open doorway of the back room.   This is evidence defendant actually or reasonably knew that shooting his gun was likely to injure them.   Accordingly, substantial evidence supports defendant's conviction of assault of Jessica and Edgar.

Admission of Evidence

Defendant contends it was an abuse of discretion to admit testimony that the third man stated, “the telephone place is still open” ⁷ because the statement is inadmissible hearsay.   Although we disagree with the trial court's reason for admitting the statement, there was no error.

The statement in question was not hearsay, as it was not offered for the truth of the matter asserted.  (Evid.Code, § 1200.)   Instead, the statement explained why defendant and his two companions went to the cell phone store.   The statement was relevant without regard to whether it was true.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. Hereinafter, all statutory references are to the Penal Code..  FN1. Hereinafter, all statutory references are to the Penal Code.

FN2. Rosa is Edel's 14–year–old daughter, Jessica is his 15–year–old daughter, and Edgar was Jessica's boyfriend..  FN2. Rosa is Edel's 14–year–old daughter, Jessica is his 15–year–old daughter, and Edgar was Jessica's boyfriend.

FN3. Mikaio was a codefendant at trial..  FN3. Mikaio was a codefendant at trial.

FN4. The third man was not apprehended and was not identified..  FN4. The third man was not apprehended and was not identified.

FN5. The statement of facts is largely based on People's exhibit 5, which contains three surveillance tapes of the inside of the store from different angles and two surveillance tapes of the outside of the store from different angles.   The jury asked for the tapes and a read back of all the testimony.   Once the jury obtained the tapes, they rescinded the request for a read back, saying the video “answered everything.”.  FN5. The statement of facts is largely based on People's exhibit 5, which contains three surveillance tapes of the inside of the store from different angles and two surveillance tapes of the outside of the store from different angles.   The jury asked for the tapes and a read back of all the testimony.   Once the jury obtained the tapes, they rescinded the request for a read back, saying the video “answered everything.”

FN6. “All persons concerned in the commission of a crime, ․ and whether they directly commit the act constituting the offense, or aid and abet in its commission, ․ are principals in any crime so committed.” (§ 31.).  FN6. “All persons concerned in the commission of a crime, ․ and whether they directly commit the act constituting the offense, or aid and abet in its commission, ․ are principals in any crime so committed.” (§ 31.)

FN7. The trial court admitted the statement over defendant's hearsay objection, and admonished the jury that this statement was attributed only to the third man;  defendant did not make that statement..  FN7. The trial court admitted the statement over defendant's hearsay objection, and admonished the jury that this statement was attributed only to the third man;  defendant did not make that statement.