In re Brian S. CA2/3

INTRODUCTION

The juvenile court sustained a petition filed under Welfare and Institutions Code section 602, alleging one count of assault with a deadly weapon against the minor Brian S. The minor appeals, contending there was insufficient evidence he aided and abetted the crime, which was the theory underlying the court’s judgment. Because we find that the court erred by relying on a factually inadequate theory of aiding and abetting and the error was not harmless, we reverse the judgment and remand with the direction to reduce count 1 to simple assault.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On February 21, 2014, Jesse O’Rourke had a barbeque at his home.1 Brian (the minor) and his brother, Joseph, were present. An argument between “David” and “Andrew” caused O’Rourke’s wife to ask Andrew, Brian, and Joseph to leave. To make sure they left, O’Rourke followed them outside.2 Brian, Joseph, and Andrew were in the driveway, talking. When O’Rourke spoke to Andrew about what had happened, Brian got “lippy,” saying he didn’t have to listen to O’Rourke. O’Rourke told Brian to “ ‘have a little respect and leave.’ ” Joseph pulled O’Rourke to the ground and kicked…