Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J39741
Reardon, J.
Appellant Jesse R. was declared a ward of the court and placed on probation after the juvenile court sustained allegations of an amended Welfare and Institutions Code section 602 petition alleging that he committed robbery (Pen. Code, § 211), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). On appeal, appellant maintains that no robbery occurred because the property in question belonged to him. He further contends there is insufficient evidence that the assault included force likely to produce great bodily injury and accordingly, the aggravated assault finding should be reduced to a simple assault. We reverse the jurisdictional order as to the robbery, and affirm as to the aggravated assault.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. FACTS
In October 2009, appellant and another minor were seen with scooters on the roof of the Union Baptist Church in Rio Vista. The church’s custodian, 80-year-old Stanley Rodriguez, called the police; responding officers issued appellant a citation for trespassing. Appellant asked to retrieve his cell phone but Rodriguez instructed him not to return to the roof. Appellant apologized for his conduct and was allowed to leave.
From the roof, Rodriguez recovered two scooters, a bottle of soda and a small candy box-like package containing a cigarette, a lighter and what he “thought was marijuana.” He placed the package in his front shirt pocket and called the police a second time.
Approximately one hour after his first call to the police, Rodriguez saw appellant on the roof of the church again. Appellant said he was looking for his cell phone, and Rodriguez informed him that he had not recovered a cell phone from the roof. Appellant came down from the roof and followed Rodriguez into the kitchen of the church. Appellant asked Rodriguez to show him what was in his front shirt pocket and repeatedly reached for the pocket, stating he needed his phone. Rodriguez walked out of the church and appellant followed him. When Rodriguez attempted to reenter the church, appellant blocked the door, balled up his fist and said “[g]ive me my stuff, old man.” He then grabbed Rodriguez’s shirt and pulled at the pocket. Appellant pulled on Rodriguez’s shirt pocket with sufficient force to rip the pocket and tear buttons off the shirt. Rodriguez fell to the ground, and appellant took the package that had been in Rodriguez’s pocket and left.
Rodriguez called the police a third time. The police returned to the church and called paramedics to the scene to treat Rodriguez, who was short of breath and had an elevated heart rate. Rodriguez sustained no injury from the encounter and received no further medical treatment.
The responding officer went to appellant’s residence. Appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and agreed to speak to the officer. He initially admitted that he had returned to the church but stated that he had not gone back on the roof. Appellant informed police that he had asked Rodriguez for his scooters back and when Rodriguez refused, appellant pulled out his cell phone and attempted to call his mother. Rodriguez then put his hands around appellant’s neck. Appellant also stated he attempted to retrieve his cell phone from Rodriguez’s front shirt pocket, but that he did not remove anything from the pocket. When confronted with inconsistencies in his story, appellant admitted to lying.
An amended Welfare and Institutions Code section 602 petition alleged appellant committed robbery (§ 211), and assault with force likely to produce great bodily injury on a person over 60 years old (§§ 245, subd. (a)(1), 1203.09 subd. (f)). After a contested jurisdictional hearing, the court sustained both counts but struck the age enhancement. Both counts of the amended petition were deemed felonies and appellant was adjudged a ward of the juvenile court. Appellant was sentenced to 129 days in juvenile hall and permitted to serve the remainder of his sentence on an electronic monitoring program while in his mother’s custody, and under the supervision of a probation officer. This appeal followed.
II. DISCUSSION
A. Standard of Review
In reviewing the sufficiency of the evidence on appeal, 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.’ [Citations.] We examine the record to determine ‘whether it shows 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.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved. ‘Although it is the [trier of fact’s] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] “ ‘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 a reversal of the judgment.’ ” ’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
B. Robbery
Appellant contends that there is no evidence of an essential element of robbery, namely that in taking the packet from Rodriguez, appellant had no “intent to deprive the owner of the property of its use.” He reasons this is so because there is no evidence of any owner of the property, other than himself.
Robbery is larceny committed by violence. (People v. Brock (2006) 143 Cal.App.4th 1266, 1275, fn. 5.) Specifically, “[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) The term “felonious” used in connection with the taking of property, means a taking with the intent to steal. (Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 825.) As we recently explained in People v. Smith (2009) 177 Cal.App.4th 1478, 1490, by “ ‘use of the... term ‘felonious taking’ in section 211, the Legislature was... incorporating into the... statute the affirmative requirement, derived from the common law rule applicable to larceny and robbery, that the thief or robber has to intend to take property belonging to someone other than himself in order to be guilty of theft or robbery....’ ” (Quoting People v. Tufunga (1999) 21 Cal.4th 935, 947.)
At trial, appellant testified that the candy box-like package he took from Rodriguez belonged to him. Rodriguez in turn testified that the package he placed in his front shirt pocket did not belong to him. Additionally, respondent’s brief expressly states that “the evidence reflected, and the prosecutor did not dispute, that the candy box was appellant’s.”
1. Claim-of-right Defense
Respondent contends that appellant’s defense to the robbery finding rests solely on the affirmative defense of claim of right. As the California Supreme Court explained in People v. Tufunga, supra, 21 Cal.4th at page 943, a claim-of-right defense negates the element of intent required for theft when a defendant has a bona fide belief that he or she has a right to the property involved, even if that belief is mistaken. Respondent correctly points out that the claim-of-right defense does not apply if, as in the present case, a defendant attempts to conceal the taking at the time it occurred or after the taking was discovered, or if the claim of right asserted arises from activities commonly known to be illegal. (People v. Russell (2006) 144 Cal.App.4th 1415, 1429.) Respondent points out that “appellant denied taking any property at all, lied about having his cell phone, and claimed he was trying to retrieve his cell phone, not the candy box, ” and as such attempted to conceal the taking after it was discovered. Additionally, respondent states that the property to which the claim of right was asserted contained marijuana and should be considered part of an activity commonly known to be illegal, thereby also negating the claim-of-right defense.
As to the alleged illegality of the property in question, although the juvenile court credited Rodriguez as a credible witness, Rodriguez testified only that the package contained what he “thought was marijuana.” Rodriguez was not qualified as an expert, the substance alleged to be marijuana was never tested nor admitted into evidence, and appellant was not charged with any drug-related offenses. Without more, the “evidence” at trial-Rodriguez’s inexpert, indeterminate statement that he “thought” the substance was marijuana-was insufficient to establish that the package contained marijuana. In any event, we agree that appellant’s concealment of the taking negates the claim-of-right defense raised at trial.
2. Missing Element Defense
Appellant concedes that his claim-of-right defense failed. However, he contends that the element of felonious intent is negated by the absence of another element of robbery, specifically that no evidence was presented to demonstrate that he intended to commit a theft. We agree.
As stated above, robbery is larceny committed by violence. In People v. Brock, supra, 143 CalApp.4th at page 1275, the court explained that the elements of larceny are well settled: “ ‘[T]he offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citation.]’ ” (Italics added.) Additionally, we have recently explained that charging documents for robbery “ ‘must contain an allegation as to the ownership of the property of which the party named was robbed, or that it did not belong to the defendant....’ ” (People v. Smith, supra, 177 Cal.App.4th at p. 1491, quoting People v. Shuler (1865) 28 Cal. 490, 494.)
At trial the prosecutor did not dispute that the package belonged to appellant, nor did she make any allegations that the package belonged to anyone else at the time of the taking. However, respondent asserts that Rodriguez was “in effect” holding the package “as a bailee for the police.”
Ownership is not the “gravamen of the offense of robbery, ” and although the property must be owned by someone other than the robber, it need not be owned by the person from whose possession it was taken. (People v. Wade (1945) 71 Cal.App.2d 646, 658; see People v. Anderson (1889) 80 Cal. 205, 206.) As we explained in Smith, “ ‘A person may be a victim of larceny even though he is not the owner [of the property taken]; he need only have a special property right, as in the case of a bailee or pledgee. It is enough that he has possession and that it is lawful as to the defendant, or that because of a legally recognized interest in the property he is entitled to possession as against the defendant. Moreover, the person from whom the property is taken qualifies as a victim of larceny even though he does not have the right of possession as against the true owner.’ [Citation.]” (People v. Smith, supra, 177 Cal.App.4th at p. 1490.)
The California Supreme Court has held that proof of the circumstances constituting a bailment must be made at trial. (People v. Poggi (1862) 19 Cal. 600, 601.) Although respondent alleges bailment on appeal, the prosecutor did not attempt to establish a finding of bailment at trial. Evidence that the package contained marijuana is crucial to respondent’s argument that Rodriguez held the package as a bailee for the police. As noted, the prosecution did not properly establish at trial that the package contained marijuana. Respondent fails to demonstrate that Rodriguez had a legally recognized interest in the property such that he was entitled to possession against appellant.
Viewing the evidence in the light most favorable to the prosecution, we conclude that respondent failed to present sufficient evidence to establish beyond a reasonable doubt the essential elements of the crime of robbery, specifically the elements of felonious intent and entitlement to possession as against appellant, the owner.
C. Assault with Force Likely to Produce Great Bodily Injury
Appellant argues that while his conduct constitutes a simple assault, there is insufficient evidence to support a finding of aggravated assault, because the degree of force used was not likely to produce great bodily injury.
It has been established that “[g]reat bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Battery with serious bodily injury, section 243, subdivision (f)(4), defines “serious bodily injury” as a serious physical impairment, including, but not limited to, “loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” While aggravated battery focuses on the actual injury inflicted, aggravated assault focuses on the force used. As such, assault with force likely to produce great bodily injury may be committed without infliction of any physical injury, and even though no blow is struck. (People v. Duke (1985) 174 Cal.App.3d 296, 302.) The question is whether the force used was such that there was a likelihood that the assault would result in great bodily injury. (People v. Roberts (1981) 114 Cal.App.3d 960, 964-965.)
In the present case, appellant pulled on Rodriguez’s shirt with sufficient force to tear the pocket, rip off buttons, and cause Rodriguez to fall to the ground. There is some conflicting testimony in the record regarding whether appellant struck Rodriguez with a closed fist during the altercation. The responding officer testified that Rodriguez informed him at the scene that appellant punched him with a closed fist. However, Rodriguez testified that he did not recall telling the police that he was hit by appellant. Rodriguez suffered no physical injuries as a result of the altercation with appellant and received no medical treatment beyond that provided by responding paramedics. He testified that he was out of breath with an elevated heart rate as a result of the encounter, and that he was sore because of his fall, but that he was in no immediate pain following the incident.
Appellant contends, “[i]n a case, like [the] present one, where the assault has resulted in a battery and the full consequences of the battery have been suffered, but no serious physical injuries resulted, there is no factual foundation for concluding that significant or substantial injury was nonetheless likely.” To support this contention, appellant cites People v. Duke as follows: “ ‘It would seem, however, that an assault or battery which does not result in any physical injury, and does not come within the scope of any of the other felonious assaults, is hardly likely to support anything more than a simple misdemeanor conviction [citation]. And the cases tend to bear out this assumption, for almost invariably they involve blows and physical injuries.’ ” (People v. Duke, supra, 174 Cal.App.3d at p. 302, quoting 1 Witkin, Cal. Crimes (1963) Crimes Against the Person, § 272, pp. 255-256.) We agree that the absence of any injury to Rodriguez is significant, yet as discussed above, “[g]uilt [does] not depend on the extent of the injuries suffered by the victim, but on a determination that the force applied was likely to cause great bodily injury [citations], although the extent of injuries suffered is often indicative of the amount of force used.” (People v. Muir (1966) 244 Cal.App.2d 598, 603.)
Whether or not the force applied was likely to produce great bodily injury under section 245, subdivision (a)(1), is a question of fact for the determination of the trier of fact, based on all the evidence. (People v. Armstrong, supra, 8 Cal.App.4th at p. 1066.) The absence of injury, or the extent of injuries suffered, is relevant to determining whether the force used was likely to cause great bodily injury, but are not controlling. (People v. Roberts, supra, 114 Cal.App.3d at pp. 964-965.)
In the present case the judge, as the trier of fact, determined conclusively that the amount of force used by appellant against Rodriguez met the requirement of force likely to produce great bodily injury, stating, “[t]he amount of force here was very significant in relationship to Mr. Rodriguez’s frailness. Although he is in good health, he is 80 years old, or more than 80 years old, and the amount of force to cause him to come to the ground in a fall with enough force to rip his shirt and the buttons off his shirt..., meets the requirement of force likely to produce great bodily injury.” The evidence presented at trial supports this finding. Appellant used force sufficient to rip Rodriguez’s shirt, tear off several buttons and cause Rodriguez to fall on the asphalt. Such force can reasonably be considered force likely to cause great bodily injury, that is, injury which is significant or substantial, when used against an 80 year old man.
Under the sufficiency of the evidence standard of review, “ ‘ “ ‘[i]f 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 a reversal of the judgment.’ ” ’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th at p. 139.) Although the circumstances could reasonably lead to a contrary finding, given that Rodriguez suffered no injury and appellant was a 15-year-old, 115-pound boy at the time of the assault, the finding of aggravated assault was supported by substantial evidence.
III. DISPOSITION
We reverse the jurisdictional order as to the robbery, and affirm as to the aggravated assault.
We concur: Ruvolo, P.J.Sepulveda, J.