Filed 10/21/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


In re R.C., a Person Coming                  2d Juv. No. B293846
Under the Juvenile Court Law.             (Super. Ct. No. 2018028124)
                                               (Ventura County)

THE PEOPLE,

     Plaintiff and Respondent,

v.

R.C.,

     Defendant and Appellant.



       An attempt to commit armed robbery is extremely
dangerous. Appellant is lucky he was not shot to death by the
store clerk who resisted his attempt to commit this offense. He
would not have been the first attempted robbery culprit to meet
this fate. He appeals from the judgment entered after the
juvenile court sustained a juvenile delinquency petition (Welf. &
Inst. Code, § 602) for assault with force likely to produce great
bodily injury (Pen. Code, § 245, subd. (a)(4)) and attempted
second degree robbery (Pen. Code, §§ 664/221). The juvenile
court placed appellant on probation with electronic monitoring
and ordered restitution. We affirm.
                    Facts and Procedural History
       At 4:00 a.m. in the morning of August 14, 2018, 14-year-old
appellant and 15-year-old E.B. entered a 7-11 store to commit an
armed robbery. A lookout was posted outside the store.
Appellant wore a black hoodie and ski mask, and brandished a
black metal BB pistol. E.B. wielded a silver metal BB pistol.
Appellant “slammed” a bag on the counter and ordered the clerk
to put the money in the bag. The clerk resisted, wrestling the BB
gun from appellant. E.B. intervened and pistol-whipped the clerk
allowing them to flee. The crimes were filmed on the store
surveillance video.
       At the adjudication hearing, appellant admitted that he
brandished the BB gun to scare the clerk “into putting the money
into the bag.” He claimed E.B.’s assault on the clerk was
unintended. His attorney argued that “the aiding and abetting
standard should . . . be revised for juveniles to . . . recognize[] the
developmental differences between the adult brain and the
adolescent brain.” This theory was/is based upon a law review
article, “Kids Will be Kids: Time for a ‘Reasonable Child’
Standard for the Proof of Objective Mens Rea Elements.”
(Northop & Rozen, 69 Me. L.Rev. 109 (2017).) The fair import of
this law review article is as follows: “Based on the goals of the
juvenile system, significant advances in adolescent development
research and recent Supreme Court holdings on juvenile
culpability, we argue here that the juvenile code should be
amended to explicitly refer to a reasonable child standard for any
mens rea element that relies on a reasonable person as the
measure for criminal culpability.” (Id. at p. 112, italics omitted.)




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       In sustaining the petition, the trial court stated “I don’t
think the brain science argument really pertains to the issues of
legal liability so much as it does to [the] appropriate disposition
in the case. [¶] It’s clear that the three persons involved in this
event all were fairly well involved in what was going to happen.
They all had their roles to play: the lookout, the two people that
went into the store with masks and simulated firearms. . . . [I]t
was a fairly well planned out event. And the fact that it went in
a direction that maybe they didn’t anticipate when the clerk
decided to resist . . . does not in the Court’s view amount to any
kind of due process violation to apply the normal princip[les] of
accomplice liability under these circumstances.”
               Natural and Probable Consequences Doctrine
       Under the natural and probable consequences doctrine, an
aider and abettor is guilty not only of the intended target (here
robbery) offense, but also of any other offense that was a “‘natural
and probable consequence’” of the crime aided and abetted.
(People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman); see
In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1358-1359
[applying general principles of aider and abettor liability to
juveniles].) “The inquiry does not depend on whether the aider
and abettor actually foresaw the nontarget offense,” but rather on
whether that outcome was objectively likely or foreseeable.
(People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu).)
       The doctrine is based upon an objective standard. (People
v. Nguyen (1993) 21 Cal.App.4th 518, 531 (Nguyen).) “‘Because
the nontarget offense is unintended, the mens rea of the aider
and abettor with respect to that offense is irrelevant and
culpability is imposed simply because a reasonable person could




                                 3
have foreseen the commission of the nontarget crime.’
[Citation.]” (Chiu, supra, 59 Cal.4th at p. 164.)
       Appellant and E.B. armed and disguised themselves, and
entered the store to commit a robbery. When the store clerk tried
to disarm appellant, E.B. pistol-whipped the clerk and fled with
appellant. It was foreseeable that E.B. would use the pistol as a
weapon. Why else would he bring it to the scene of the crime?
Substantial evidence supports the finding that E.B.’s assault was
a natural and probable consequence of the armed robbery.
(Prettyman, supra, 14 Cal.4th at pp. 262-263.) Appellant’s
liability as an aider and abettor of the assault was based on his
joint participation in an extremely dangerous situation that he
helped create. (See, e.g., In re Gary F. (2014) 226 Cal.App.4th
1076, 1080 [aider and abettor liability based on presence at the
scene of the crime, companionship with principal actor, conduct
before and after the offense, and flight]; In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094-1095 [same].)
       In People v. Fagalilo (1981) 123 Cal.App.3d 524, defendant
and three codefendants entered a Thrifty Drug Store to commit a
robbery. Defendant reached for the money in the cash register
but the cashier pushed him away. When the assistant manager
tried to assist the cashier, one of the codefendants threw a bottle
of wine at the assistant manager. He “ducked” but two customers
were hit by the bottle and broken glass. (Id. at p. 528.) The
Court of Appeal held that “[t]he evidence was . . . sufficient to
establish [defendant’s] liability as an aider and abetter of [co-
defendant’s] assault. The defendants entered the store together
and escaped together. The jury could reasonably infer that they
were jointly engaged in a robbery, the natural and probable




                                 4
consequences of which included resistance by any of the
defendants to avoid capture. [Citations.]” (Id. at p. 532.)
                  The Non-Developed Brain Theory
       Appellant argues that the concept of holding a juvenile
responsible for the natural and probable consequences of a
robbery, i.e., the assault directly committed by E.B., violates due
process principles because a 14-year-old lacks the capacity to
anticipate the consequences of criminal conduct. This argument
                                                   1



confuses criminal capacity with aider and abettor liability which
focuses on whether a criminal act was a natural and probable
consequence of another criminal act. (Nguyen, supra, 21
Cal.App.4th at p. 531 [defendant’s subjective state of mind not
considered.] At oral argument appellant drew an analogy to the
situation where a defendant is both visually impaired and
hearing impaired. Such a defendant’s criminal liability should be
measured with these disabilities in mind. (See People v. Mathew
(1994) 25 Cal.App.4th 89, 98-100.) Theorectical immaturity and
“non-developed brain” does not equate with physical diability.
Physical disabilities are objectively verifiable. Immaturity and a
“non-developed brain” are not objectively verifiable. The analogy
is not apt.
       Based on appellant’s construction of the law, the trial court
must consider “non-developed brain” and impulsivity in
determining aider and abettor liability. This would require
significant re-writing of juvenile law. This is not our legitimate
function. This novel theory is best addressed to the Legislature.
We express no opinion on its wisdom. We agree with the juvenile

       Appellant does not challenge the second degree robbery
      1


adjudication. At oral argument he conceded. That the “non-
developed brain theory” would not apply to the robbery.




                                 5
court that this subjective component goes to the issue of
disposition, not adjudication. (See, e.g., People v. Gutierrez (2014)
58 Cal.4th 1354, 1386-1387 [trial court may not impose life
without parole without considering youth’s cognitive maturity
under Miller v. Alabama (2012) 567 U.S. 460].)
      The judgment (order of wardship) is affirmed.
      CERTIFIED FOR PUBLICATION.



                                                  YEGAN, J.

We concur:

             GILBERT, P. J.



             PERREN, J.




                                  6
                    Kevin J. McGee, Judge

               Superior Court County of Ventura

                ______________________________

           Todd W. Howeth, Public Defender, Michael C.
McMahon, Sr. Deputy Public Defender for Defendant and
Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Stacy S. Schwartz, David Glassman,
Deputy Attorneys General, for Plaintiff and Respondent.
