How hanging out with the wrong crowd might doom your appeal of your criminal conviction

Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict?

That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court found the evidence supported a robbery conviction despite the absence of any direct evidence that the defendant himself assaulted the victim or took any of his property.

The defendant (referred to as “Minor” in the opinion) was with a group of three or four men that struck up a conversation with the victim on a commuter train and then, while walking with the victim afterwards, jumped him and stole several items after they entered a dark alley. The victim could identify which in the group had grabbed and held him while the others punched, but he could not identify who landed which punches and could not even say with certainty that all of them participated in the assault. He could say only that he believed all of them participated because he was “being punched in different directions.” The victim testified that he heard all of the men speaking but he could not tell who said what. The victim pursued the group as they ran away. When he caught up to them, the man who had held the victim took a threatening posture and told the victim, “I have  a knife,” after which all of the group ran off.  After the assault, the police drove the victim around the neighborhood to see if he recognized anyone. He identified Minor as part of the group that robbed him, but the police found no weapons or any of the victim’s property on Minor.

Now, you might be saying to yourself, how could Minor’s conviction be upheld if nobody testified that he actually took part in the assault or that he took any of the victim’s property? The answer starts with the standard of review as explained by criminal lawyer London Ontario based Phillip Michaels:

“Our review of [Minor’s] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The “substantial evidence” threshold doesn’t seem real hard to meet, does it? As you might expect, appeals challenging the sufficiency of the evidence to support the conviction are notoriously hard to win.

Here, the court finds there is substantial evidence supporting a conviction, because there is evidence that: Minor was in the group that the victim met on the train; Minor introduced himself to the victim; Minor was still with the group when it got off the train, and waited outside a liquor store while the victim purchased cigarettes; Minor was with the group when it entered the alley with the victim; the victim was punched from several directions and thus “believed” everyone in the group punched him; no one in the group told the others to stop; Minor fled with the group after the robbery. Thus, “[The victim’s] testimony that Minor was with the group before, during and after the attack, along with [his] testimony about the attack itself (i.e., the young men punched him from different directions, and no one left or tried to stop the others), allows a reasonable inference that Minor participated in the attack.”

Alternatively, the court in Surrey, Ontario finds that the evidence is sufficient to establish that Minor aided and abetted  the robbery. Even if the finder of fact did not believe that Minor actually struck the victim or took any of his property, the court finds that it is reasonable to believe that Minor acted as a lookout to facilitate the robbery because he was with the group the entire time and did not state any objection to the assault and robbery.

Now, it might be that Minor did not assault the victim or take any of his property. He might have wanted no part of the assault and robbery, perhaps even been too scared to move or say anything during the crime, and so frightened of being associated with it (or of having to testify against his friends) that he ran off with the group rather than wait around for the police. But such alternate views do not come into play in substantial evidence review. The question is not whether a factfinder could go wither way based on the evidence. The question is whether substantial evidence supports the conviction, even if a reasonable factfinder could go either way.

In short, when any crime is committed in a group — at least, when committed in a small group of 3 to 6 people — it probably won’t matter that there is no direct evidence that a particular defendant did any specific act. So long as there is evidence that the defendant was part of the group and remained with the group before, during and after the crime, and did not object during the crime, the court is likely to find substantial evidence to support the conviction.