Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD058410, Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
The offense occurred in Kern County where Judge Jon E. Stuebbe heard the adjudication hearing. The matter was transferred to Tulare County for the disposition hearing before Judge Loza.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and A. Kay Lauterbach, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
Procedural History
A Welfare and Institutions Code section 602 petition alleged that appellant, Francisco H., committed second-degree robbery (Pen. Code, §§ 212.5 subd. (c) and 1192.7, subd (c)(19)) and burglary (Pen. Code, § 460, subd. (b)). The juvenile court found the robbery allegation true. At the disposition hearing, on August 31, 2007, the court continued appellant’s wardship, imposed a $100 restitution fine, and ordered appellant to complete the drug court contract and perform 80 hours of community service. The court declared the maximum period of confinement to be five years, 10 months for all petitions. On appeal, appellant contends the evidence was insufficient to prove the force element of robbery. We will affirm.
Factual Background
Prosecution
On March 23, 2007, Hector Moreno, a loss prevention officer at a Kmart store in Kern County, observed appellant conceal store merchandise in his pants. Appellant left the store without paying for the merchandise. Moreno stopped appellant outside the store and stated, “I work loss prevention, can I ask you to come back inside.” When appellant attempted to flee, Moreno grabbed his shirt. Appellant struggled, but then said he would cooperate. Moreno loosened his grip on appellant, but appellant again ran. Moreno chased appellant and grabbed him. Appellant continued to struggle, but Moreno was eventually able to bring him to the ground. An off-duty police officer, Pedro Mendoza, helped detain and handcuff appellant.
Moreno testified that during the struggle appellant hit him on the chin. Appellant had swung at him a couple times and hit him maybe once or twice. But, “[m]ost of the time his force was just resisting, running…”
Off-duty Officer Mendoza testified that he saw Moreno attempting to detain appellant. Apparently, Officer Mendoza witnessed the latter part of the struggle just before appellant was eventually subdued. Mendoza did not see appellant strike Moreno, and instead saw that appellant “was struggling, attempting to get away from Moreno.”
Defense
Appellant maintained he did not use physical force against Moreno, although he concedes he was struggling and attempting to flee. Appellant dropped the merchandise after the first struggle with Moreno. Appellant could not recall whether Moreno identified himself as a loss prevention officer.
The court found the robbery allegation true stating, “I think his own testimony is what really sealed the deal for me. After the testimony of the officer, it was more questionable, but … [appellant’s] testimony here pretty much wrapped it up for me. [¶] As long as the property was in his possession, what started out as a theft became a robbery when he used force to carry out or complete the process. [¶] Now, shortly thereafter he abandoned it, by his own testimony, but while he was doing that, he had it in his possession and it was for the purpose of carrying it out.”
Discussion
Appellant contends the prosecution did not provide sufficient evidence to prove the force element of robbery. Specifically, appellant argues Moreno’s testimony was equivocal and unconvincing and his actions were defensive rather than assaultive acts and thus did not satisfy the force element of robbery. We find none of these arguments persuasive and will affirm.
I. The Robbery Finding has Adequate Evidentiary Support
A. Moreno’s Testimony is Credible
When determining the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553.) The court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
We do not resolve credibility issues or evidentiary conflicts. “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
The trier of fact found Moreno’s testimony both credible and sufficient. Moreno testified, “I do remember [appellant] using some physical force.” On cross-examination, Moreno said, “I’m sure he used physical force.” Moreover, Moreno testified that appellant hit him on the chin. Moreno’s testimony is neither physically impossible nor inherently improbable. Therefore, sufficient evidence was presented in support of the court’s finding.
B. Appellant’s Use of Physical Force Satisfies the Force Element of Robbery
Appellant argues that his struggle with Moreno was simply defensive rather than an attempt to escape with the stolen property. We disagree.
To establish the offense of second degree robbery, the prosecution must prove “(1) the victim had possession of property of some value, (2) the property was taken from the victim or his or her personal presence, (3) the property was taken against the will of the victim, (4) the taking was by either force or fear, and (5) the property was taken with the specific intent to permanently deprive the victim of the property.” (People v. Magee (2003) 107 Cal.App.4th 188, 195, fn. 4.)
Under California case law, “[T]he use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1079 … [use of force by car burglar after he had possession of the victim’s stereo sufficient even though perpetrator subsequently abandoned the stereo and fled]; People v. Pham (1993) 15 Cal.App.4th 61, 65-68 … [where thief used force against victims as thief carried property away, robbery occurred even though victims subdued thief and no further as portion occurred]; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 … [force used against store security guard who tried to prevent escape of shoplifter].)” (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) “[M]ere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.)
Appellant attempts to distinguish People v. Pham, supra, 15 Cal.App.4th 61, where the court upheld a factually similar robbery conviction. Appellant states: “In Pham, the defendant, when grabbed, dropped the stolen property in order to free his hands so that he could begin a vicious assault on the victim … which consisted of punching, kicking, biting, and kneeing.” Appellant argues that when he dropped the merchandise, unlike the defendant in Pham, he “took no offensive action against Moreno.” We are not persuaded.
In People v. Pham, supra, 15 Cal.App.4th 61 the defendant used force after he had abandoned the stolen goods. The Pham court stated, “Contrary to the defendant’s contention, robbery does not require that the loot be carried away after the use of force or fear.” (Id. at p. 65.) Rather, “robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.” (Id. at p. 66.) Similarly, appellant abandoned the merchandise only after he forcibly struggled with Moreno. That struggle satisfied the force element of robbery. Contrary to appellant’s implicit argument that his defensive struggle was different than Pham’s punching, kicking, kneeing and biting, Moreno testified that appellant struck him on the chin. That blow constituted the force element of robbery. “[A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.” (People v. Estes, supra, 147 Cal.App.3d at pp. 27-28.)
Appellant cites out-of-state law that we do not find persuasive. Under California case law, the use of force to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Torres, supra, 43 Cal.App.4th at pp. 1077-1079.)
The testimony of Moreno, Officer Mendoza, and appellant himself, established that during the initial struggle appellant used force while attempting to escape from Moreno and only dropped the merchandise after this struggle. Officer Mendoza testified that he observed the second encounter between Moreno and appellant, and did not see appellant hit Moreno. Therefore, the trier of fact could reasonably infer that appellant must have hit Moreno during the first encounter, during which appellant conceded he possessed the store merchandise. Thus, the court could conclude that appellant used force against Moreno with the intent to prevent Moreno from regaining possession of the merchandise.
Disposition
The judgment is affirmed.