Filed 9/8/14 P. v. Salter CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B250452

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA408132)
         v.

TREVON MARCEL SALTER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Dennis J. Landin, Judge. Affirmed.


         Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald Engler, Acting Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Blythe Leszkay and
Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ___________________________
       Trevon Marcel Salter appeals from a judgment which sentences him to an
aggregate term of 10 years and 4 months for attempted robbery.1 (Pen. Code,
§§ 664/211.) We affirm.
                                         FACTS
       At about 2:30 in the morning on February 21, 2013, Juan Contreras was walking
home from work along 7th Street and turned left onto Broadway. Mr. Contreras had his
cell phone in his hand and was putting on headphones at the time. Because of
construction, the sidewalk was partially enclosed by scaffolding and plywood that created
a narrow passage-way about two and one-half feet wide and six feet long.
       Before Contreras reached the scaffolded passageway, he paused to allow two
males, later identified as Salter and codefendant Rafael Madrid, to pass him.2 The two
men were walking side-by-side toward Contreras and the passageway was too narrow for
all three men to fit. Instead of passing Contreras, Salter and Madrid stopped within one
foot of Contreras. Contreras had his back against the wall and he could see Broadway
and 7th streets. Salter’s back and Madrid’s back were toward the street.
       Madrid said, “What’s up with you?” and pulled out what Mr. Contreras thought
was a knife. When Contreras did not respond, Mr. Madrid demanded, “You don’t hear
me? Give me your phone.” Madrid thrust the object that Contreras believed to be a knife
upwards two times. Salter remained side-by-side with Madrid, with one hand in his
pocket and the other holding a skateboard, but otherwise never moved and did not say
anything. Contreras feared for his life because he thought Salter was going to hit him
with the skateboard and that Madrid would stab him. Contreras could not find a way to
run because there was a wall to one side and a wall to his back.



1
      Salter’s sentence included a consecutive term for a prior robbery conviction for
which he had earlier been placed on probation, and a prior serious felony conviction
enhancement based on the prior robbery conviction. (§ 667, subd. (a).)
2
       Madrid and Salter were jointly charged with the attempted robbery of Contreras,
and they were tried together. Madrid is not involved in the current appeal.

                                             2
       As these events were unfolding, Contreras saw a police patrol car stopped at the
signal. Contreras repositioned himself so that he was no longer blocked from the patrol
car’s view by a magazine stand. He waved to the officer. At that point, Salter and
Madrid turned, saw the patrol car, and fled in opposite directions. Los Angeles Police
Department Sergeant Jeritt Severns, the officer in the patrol car, parked in front of
Contreras. Contreras told Sergeant Severns that the men tried to rob him by wielding a
knife and demanding his cell phone.3
       Sergeant Severns testified that he was in his patrol car and stopped at the
intersection of 7th Street and Broadway when he saw two men standing and facing a third
man with only about a foot between them. The positioning of the men seemed odd to
him. He saw Contreras raise his arms and yell for help while beginning to run for the
patrol car. The other two men turned, saw Sergeant Severns, and then ran or skated away
in opposite directions. When Contreras reached the patrol car, he told Sergeant Severns
that the men had tried to rob him with a knife and demanded his cell phone.
       Sergeant Severns radioed for back up and followed Salter for approximately one-
eighth of a mile, never losing sight of him. He was arrested and taken into custody.
A perimeter was set up, and other officers detained Madrid. No knife was found in the
area and, although Contreras was shown a box cutter and a screwdriver, he did not
identify either one as the weapon. At the field show-up, Mr. Contreras positively
identified Salter and Madrid, saying he was 100 percent sure that they were the men
involved in the incident.
       Officer Juan Ibarra interviewed Contreras at the scene that morning for
approximately five minutes. Officer Ibarra testified that Contreras spoke rapidly and
seemed to be scared. According to Officer Ibarra, Contreras stated that he was walking

3
        Contreras’s testimony at trial differed from his testimony at the preliminary
hearing. At the preliminary hearing, Contreras testified that Salter had the knife and
spoke to him, that both men held skateboards, and that Madrid had remained silent.
At trial, Contreras claimed not to remember testifying and claimed the incident happened
the way he testified to in trial. In argument to the jury, the prosecutor relied on an aiding
and abetting theory against Salter.

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northbound on Broadway when he saw two men riding skateboards coming south
towards him. Because of the construction and the narrow passageway, Contreras stopped
to let the men pass but instead, the men stopped, confronted him, and demanded his cell
phone. Contreras told Officer Ibarra that the man who had his hand in his pocket made
him believe he had a weapon in his pocket and said to him, “What do you got? What do
you got?” Contreras then told Officer Ibarra that he (Contreras) saw a patrol car and ran
toward it, yelling for help.
       Officer Ibarra also testified that Contreras said one man ran northbound on
Broadway and the other ran eastbound on 7th Street. Officer Ibarra testified that
Contreras stated that the man who ran north had the knife, and that the man who ran east
was the one who had his hand in his pocket. The man who ran north was detained by
Sergeant Severns and turned out to be Salter.
                                       DISCUSSION
I.     Sufficient Evidence Supports the Verdict
       Salter contends there was insufficient evidence to support a conviction of aiding
and abetting an attempted robbery. Specifically, Salter argues the evidence did not show
that he had the specific intent to aid Madrid in committing the robbery, and did not show
that he did any act or spoke any words to assist or encourage Madrid to commit the
robbery Salter argues the evidence showed no more than that he was present with
Madrid, and that he did not try to stop Madrid from committing the robbery. We find the
evidence sufficient to support Salter’s conviction.
       When a criminal conviction is challenged as lacking evidentiary support, “the
court must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence – that is, evidence which is
reasonable, credible, and of solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,
578.) We must presume in support of the judgment the existence of every fact the jury
could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) We do not reweigh the evidence and will not reverse a judgment even if a

                                              4
different verdict could reasonably have been reached. (People v. Proctor (1992)
4 Cal.4th 499, 529.) The testimony of a single witness is sufficient to support a
conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
       To be convicted of aiding and abetting, the prosecution must prove four elements:
(1) the principle actor committed the crime, (2) the defendant knew the principle actor
intended to commit the crime, (3) the defendant intended to aid in the commission of that
crime, and (4) defendant did, in fact, aid, facilitate, promote, encourage, or instigate the
commission of that crime. (CALCRIM No. 401.)
       We agree with the People that the evidence is sufficient to find that Salter played a
supportive role in the attempted robbery by standing next Madrid, and assisting in the
intimidation of the victim. While Salter is correct that his mere presence at the scene, and
his flight from the scene are insufficient alone to establish aiding and abetting an
attempted robbery, we disagree that this is all the evidence shows.
       Here, Salter was not merely present at the scene, and did not merely run from the
scene. Salter stood shoulder to shoulder with Madrid, the two facing Contreras from a
distance of only about one foot. Salter’s stance trapped Contreras, led him to believe
Salter had a weapon in his pocket, and scared that Salter would hit him with the
skateboard. Salter did not merely run from the scene; he and Madrid ran in different
directions, making pursuit more difficult.
       The evidence provided a sufficient basis from which a reasonable trier of fact
could conclude beyond a reasonable doubt that Salter assisted the attempted robbery and
shared the intent to commit a robbery when he physically blocked the victim’s pathway
and intimidated him, thus helping to facilitate the attempted robbery.
II.    The Jury Was Properly Instructed
       Salter contends his constitutional right to due process was violated when the trial
court instructed the jury on aiding and abetting. Specifically, Salter argues that the use of
standard aiding and abetting instruction –– CALCRIM No. 401 –– failed to explain to the
jury that evidence of his presence at the scene and failing to intervene to stop Madrid’s
attempted robbery were not sufficient to establish his criminal liability as an aider and

                                              5
abettor. Salter argues CALCRIM No. 401 lowered the prosecution’s burden of proof in
violation of due process.
       Salter argues the language of CALCRIM No. 401 failed to communicate to the
jury that there must be additional evidence of guilt besides a defendant’s presence and
failure to prevent a crime, and could have suggested that presence and non-prevention,
together, are enough to show aiding and abetting. Salter argues the instruction should
expressly advise jurors that presence and non-prevention, even together, are not sufficient
to show guilt as an aider and abettor. He is mistaken.
       The trial court instructed the jury with CALCRIM No. 401 as follows:
               “To prove that a defendant is guilty of a crime based on
       aiding and abetting that crime, the People must prove that: 1. The
       perpetrator committed the crime; 2. The defendant knew that the
       perpetrator intended to commit the crime; 3. Before or during the
       commission of the crime, the defendant intended to aid and abet the
       perpetrator in committing the crime; and 4. The defendant’s words
       or conduct did in fact aid and abet the perpetrator’s commission of
       the crime.
               “Someone aids and abets a crime if he knows of the
       perpetrator’s unlawful purpose and he specifically intends to, and
       does, in fact, aid, facilitate, promote, encourage, or instigate the
       perpetrator’s commission of that crime [¶] . . . [¶] If you conclude
       that the defendant was present at the scene of the crime or failed to
       prevent the crime, you may consider that fact in determining whether
       the defendant was an aider and abettor. However, the fact that a
       person is present at the scene of a crime or fails to prevent the crime
       does not, by itself, make him an aider and abettor.” (Emphasis
       added.)

       The instruction clarifies for the jurors that they may consider the defendant’s
presence or the defendant’s failure to prevent the crime as evidence of aiding and
abetting. But, it further clearly articulates that those fact alone are not sufficient to prove
accomplice liability.
       The jury was instructed to consider the instructions as a whole and, when read as a
whole, it is not reasonably understood to have the meaning that Salter seeks to place on it.
The instruction requires that a defendant have the intent to aid in the commission of the

                                               6
crime. No juror would understand the challenged sentence in isolation and believe that
Salter’s mere presence or flight, in and of itself, would suffice for accomplice liability.
                                      DISPOSITION
       The judgment is affirmed.


                                                          BIGELOW, P.J.
We concur:


                     FLIER, J.




                     GRIMES, J.




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