Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J38417.
DONDERO, J.
This appeal comes before us following findings by the juvenile court that defendant committed one count of second degree robbery (Pen. Code, § 211), with an enhancement for personal use of a firearm in the commission of the offense (Pen. Code, § 12022.5, subd. (a)), as alleged in a petition filed pursuant to Welfare and Institutions Code section 602. Defendant complains that the evidence fails to support the robbery finding. We conclude that the evidence to support the finding of defendant’s commission of a robbery is substantial, and affirm the judgment insofar as it sustains the petition. Both defendant and respondent Attorney General agree the maximum confinement time should have been set at 23 years 6 months instead of 25 years 6 months. We modify the maximum term of confinement in the judgment to read 23 years 6 months.
All further statutory references are to the Penal Code unless otherwise indicated.
In light of the issues presented on appeal we need not recite the very lengthy procedural history of the series of petitions filed against defendant pursuant to Welfare and Institutions Code section 602. We will confine our recitation of the facts to the sustained robbery allegation in the most recent petition.
The victim of the robbery offense, Michael Gies, testified that around midday on June 4, 2010, he was walking on Taft Street in Fairfield to a donut shop when he was approached by defendant, who asked “if there was a pay phone around?” After Gies responded that “no, there wasn’t, ” defendant pulled out a black handgun, pointed it directly at the victim’s forehead, and said, “Take everything out of [your] pockets.” Gies removed his cell phone from his pocket and threw it on the ground as directed by defendant. Defendant then ordered Gies to take out and open his wallet, and the victim did so. When Gies opened his wallet to reveal that “nothing” was inside it, defendant told the victim, “leave it on your side.” Again, Gies did as he was told.
After Gies dropped his wallet, defendant raised his hand in the air and signaled to his friends in a silver Saturn. The car immediately pulled up, whereupon defendant opened the door and “went inside of it.” With his gun still on the “side of his hoody jacket” defendant warned Gies not to look at the car or the license plate, or he would “hurt” him. The car then drove away.
Gies began to walk from Taft Street toward his home. About five minutes later he called the Fairfield police on his cell phone. A police officer arrived and drove Gies to Armijo High School, where they encountered defendant. The officer asked Gies if defendant was “the person that wa[]ved the gun” at him and told him to “take everything out” of his pockets. As defendant removed the hood of his jacket Gies recalled “his face, ” and said “yes.” He also positively identified defendant at trial.
DISCUSSION
I. The Evidence to Support the Robbery Finding.
Defendant argues that the evidence does not support the finding “that a completed robbery was committed.” He acknowledges that the evidence suggests an attempted robbery, but claims that the “prosecution failed to establish the requisite taking” “element of robbery” with intent to “permanently deprive” the victim of his property. He points out that the evidence shows only that the victim was ordered to “throw his cell phone to the ground” and “remove his wallet from his pocket.” Defendant maintains that he never took personal possession of the cell phone or wallet, and the victim “retained possession” of his wallet at all times. Therefore, no evidence was presented that he “gained possession and carried away” any property from the victim or “intended to permanently deprive him” of his possessions.
Our review of the evidence is quite constrained. In this appeal challenging the sufficiency of the evidence to support a juvenile court judgment, “we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) We undertake a very “limited” assessment of sufficiency of the evidence to support the judgment. (People v. Lewis (2001) 25 Cal.4th 610, 643; see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant’s guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fn. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
To withstand an insufficiency of the evidence challenge, the trial court must find and the record must contain evidence substantial enough to support the finding of each essential element of the crime. (United States v. Gaudin (1995) 515 U.S. 506, 522–523; People v. Johnson (1992) 5 Cal.App.4th 552, 558.) That means not only every element of the offense, but also all of the “facts necessary to establish each of those elements....” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278; see also People v. Crawford (1997) 58 Cal.App.4th 815, 821.)
“ ‘Robbery is the taking of “personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property.” ’ [Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 608.) “ ‘To constitute robbery the property must be removed from the possession and immediate presence of the victim against his will, and such removal must be by force or fear.’ [Citations.]” (People v. Nguyen (2000) 24 Cal.4th 756, 761; see also People v. Green (1996) 50 Cal.App.4th 1076, 1083–1084.)
Looking first at the intent element of the offense, “robbery requires an intent to steal the property at the time the accused took it.” (People v. DePriest (2007) 42 Cal.4th 1, 46.) “To be convicted of robbery, the perpetrator must intend to deprive the victim of the property permanently.” (People v. Huggins (2006) 38 Cal.4th 175, 214; see also People v. Smith (2009) 177 Cal.App.4th 1478, 1490; People v. Mumm (2002) 98 Cal.App.4th 812, 816–817.) “The taking of the property of another is not theft absent this intent. [Citation.] The specific intent with which an act is performed is a question of fact.” (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007–1008.) “The jury may infer a defendant’s specific intent to commit a crime from all of the facts and circumstances shown by the evidence. (See People v. Bloom (1989) 48 Cal.3d 1194, 1208] 259 Cal.Rptr. 669, 774 P.2d 698] [‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’].)” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The evidence presented at trial persuasively establishes defendant’s intent to deprive the victim of his property. Defendant used the deception of asking for the location of a pay phone to approach the victim. He then pulled out a handgun, pointed it at the victim, and commanded him to remove everything from his pockets. He also ordered the victim to throw his cell phone to the ground and open his wallet. Greater circumstantial evidence of an intent to permanently deprive the victim of anything defendant considered to be valuable is difficult to imagine. That defendant discovered the victim had nothing in his possession worth keeping and abandoned the effort does not negate the considerable evidence of intent. (People v. Huggins, supra, 38 Cal.4th 175, 214; People v. Carroll (1970) 1 Cal.3d 581, 584; People v. DeLeon (1982) 138 Cal.App.3d 602, 606.)
The more difficult issue centers upon the essential element of a taking. “Robbery of a particular person has not occurred unless property was taken from the person’s immediate presence and the defendant used force or fear to take the property or to prevent the person from resisting.” (People v. Scott (2009) 45 Cal.4th 743, 749.) “ ‘Taking’ is an element of the crime of robbery [citations], and consists of ‘two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot.’ [Citation.]” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 130; see also People v. Hill (1998) 17 Cal.4th 800, 852.)
“Taking property in the victim’s ‘immediate presence’ establishes the taking element.” (People v. Shadden (2001) 93 Cal.App.4th 164, 170.) A robbery “is complete when the perpetrator obtains dominion over the property, even if the owner still has some measure of nominal control.” (In re Travis W. (2003) 107 Cal.App.4th 368, 376.) “ ‘A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement away of the property.’ (2 LaFave & Scott, Substantive Criminal Law (1986) Larceny—Taking & Carrying Away, § 8.3, p. 345; see People v. Beamon (1973) 8 Cal.3d 625, 635 [105 Cal.Rptr. 681, 504 P.2d 905] [applying dominion and control theory]; see also People v. Hill, supra, 17 Cal.4th at p. 852 [describing asportation as only requiring ‘slight movement’].) Moreover, ‘ “it is not necessary that the property be taken out of the physical presence of the victim.” ’ [Citation.]” (People v. Alvarado (1999) 76 Cal.App.4th 156, 161.)
Although defendant never acquired complete possession of the victim’s cell phone or wallet, the evidence supports the finding of a taking for purposes of commission of a robbery offense. The victim was compelled by defendant to extract his cell phone from his pocket and throw it to the ground. He was also ordered to take out his wallet, display the contents for defendant’s inspection, and “leave” it to the side. The inference from the victim’s testimony is that he lost possession of the wallet when he was forced to discard it. A taking resulted from the victim’s forced dispossession of his property. “ ‘The act of “taking” begins when the separation of the victim from his or her property occurs, and it continues through the forcible consummation.’ [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 421.)
The taking occurred, and the robbery offense was complete, once defendant, through use of force and fear, deprived the victim of possession of the wallet or cell phone, and despite defendant’s ultimate decision not to obtain actual possession of those items. Robbery “requires the taking of personal property which is in the possession of another from his person or immediate presence but does not require that this be done by the use of the hands of the person doing the taking.” (People v. Quinn (1947) 77 Cal.App.2d 734, 737 (Quinn.) “Robbery does not necessarily entail the robber’s manual possession of the loot. It is sufficient if he acquired dominion over it, though the distance of movement is very small and the property is moved by a person acting under the robber’s control, including the victim.” (People v. Martinez (1969) 274 Cal.App.2d 170, 174 (Martinez).) “A very slight movement is sufficient for asportation [citation], and there is no requirement that the robber have manual possession of the property. (People v. Quinn (1947) 77 Cal.App.2d 734, 736–737 [176 P.2d 404] [asportation was satisfied when robber ordered victim at gunpoint to throw down his wallet, although robber allowed victim to leave with wallet after victim showed robber it contained no money]; also People v. Martinez (1969) 274 Cal.App.2d 170, 174 [79 Cal.Rptr. 18].) The robber’s escape with the loot is not necessary to commit the crime. (See People v. Clark (1945) 70 Cal.App.2d 132, 133 [160 P.2d 553] [stating general rule].)” (People v. Pham (1993) 15 Cal.App.4th 61, 65.)
The facts of Quinn are strikingly similar to those presented here. The defendants in Quinn pointed a pistol at the victim and ordered him to get out of his car with his hands up. (Quinn, supra, 77 Cal.App.2d 734, 735.) When the victim complied, he was ordered to step back and throw his wallet on the ground. (Ibid.) After doing so, the victim told the defendants the wallet was empty, and opened it to show them there was “nothing in it.” (Id. at pp. 735–736.) Defendants then “said: ‘All right. Get in that car and get out of here.’ ” (Id. at p. 736.) In response to the defendants’ contention that the evidence failed “to show a taking and asportation of property which is sufficient to constitute the crime of robbery, ” (id. at p. 736), the court declared: “Where there is an intent to so take the property while some asportation is required it is well settled that the distance it is taken may be very small. [Citation.] A very slight removal is sufficient. [Citation.] It would be a strained and unreasonable construction of the language of the statute to interpret it as necessarily requiring the taking of the stolen property into the hands of the one committing the robbery.... A taking of possession away from the victim and into the control of the taker is sufficient. In the instant case, there was admittedly an intentional removal of this wallet from the possession of its owner, accomplished by fear of a gun in the hands of one of the appellants, and a removal of the property for some six feet. That the property was thereafter returned when it was found to contain no money is not a material factor. There is nothing in the statute that requires any more in the way of a taking or asportation than here appears and the evidence is sufficient in the respect complained of.” (Id. at p. 737.)
Similarly, in Martinez, no evidence was presented that the defendants “ever had physical possession of the service station’s money, ” after the victim, a service station attendant, was “forced to take the money from the cash box and place it in a paper sack.” (Martinez, supra, 274 Cal.App.2d 170, 174.) The defendants left without ever acquiring possession of the paper sack, and claimed that “whatever the evidence of attempted robbery, there is no evidence of an asportation or taking, an essential element of a completed robbery.” (Ibid.) The court disagreed, with the explanation: “Robbery does not necessarily entail the robber’s manual possession of the loot. It is sufficient if he acquired dominion over it, though the distance of movement is very small and the property is moved by a person acting under the robber’s control, including the victim. [Citations.] In this case the robbers’ dominion was short-lived but actual. The evidence supports the finding of a completed robbery.” (Ibid.)
Here, as in Quinn and Martinez, defendant had dominion and control of the cell phone and wallet when he demanded that the victim remove the items from his possession and toss them to the ground. The removal from the victim’s possession may have been short-lived and the asportation of the items was insignificant, but “ ‘ “[a]ny removal, however slight” ’ ” suffices to constitute a robbery, even if the property was neither removed from the physical presence of the victim nor actually possessed by defendant. (People v. Lopez (2003) 31 Cal.4th 1051, 1060; see also People v. Hill, supra, 17 Cal.4th 800, 852–853; People v. Alvarado, supra, 76 Cal.App.4th 156, 161; People v. Pham, supra, 15 Cal.App.4th 61, 65.) Substantial evidence of a completed robbery was presented.
II. The Modification of the Maximum Term of Confinement.
We agree with the parties here that a confinement term recalculation is necessary even though the robbery and firearm-use allegations are affirmed. Defendant’s term of confinement is modified to reflect a maximum of 23 years 6 months.
DISPOSITION
Accordingly, the judgment is affirmed as modified in the preceding paragraph.
We concur: Margulies, Acting P. J., Banke, J.