Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. VJ39124, Wayne C. Denton, Commissioner, and Heidi Shirley, Juvenile Court Referee
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Minor Luis F. appeals from the order of wardship entered following a finding that he committed a second degree robbery and made criminal threats in violation of Penal Code sections 211 and 422. Minor contends the evidence was insufficient to support a true finding with respect to either charge. We agree with respect to the robbery charge, in that the alleged robbery victim did not have actual or constructive possession of the store’s property, and modify that count to reflect a finding of petty theft. We affirm as to the criminal threats charge.
BACKGROUND
In the late afternoon of January 9, 2010, Diana Ly was working as the manager in her father’s liquor store on Florence Avenue in Downey. Her boyfriend, Chris Toledo, was present and “stocking in the stocking room in the back of the store.” Although Toledo testified he was a “clerk or stocker, ” Ly testified that Toledo was not actually an employee of the store. He spent time in the store, keeping Ly company, protecting her, and “helping out with employee duties, ” such as stocking and cleaning. Sometimes he acted as cashier when Ly was using the restroom. Toledo’s friend Brian Dale was also present in the store.
Minor entered the store and began flirting with Ly. He was mumbling, stumbling around, kicking his skateboard around, and bothering customers. Ly, Toledo, and Dale all believed minor was intoxicated. Toledo and Dale moved from the stockroom to the cashier’s counter. Minor took a beer from the cooler, put it in his back pocket, then walked to the counter and asked Toledo and Dale if they were gang members. Minor became agitated and Ly threatened to call the police if he did not the leave the store. Ly did not know minor had taken a beer. As minor walked out of the store, Toledo asked him, “‘What about the beer in your back pocket?’” Minor denied having a beer and walked away quickly. Toledo followed him and demanded that minor return the beer. Minor turned and brandished his skateboard at Toledo at shoulder level. Minor ran, Toledo pursued him, and minor swung the skateboard at Toledo, striking Toledo’s hand.
Toledo swung at minor and grazed minor’s back. Minor fell facedown, and Toledo put him in a headlock. Minor then began threatening Toledo, saying things such as, “‘I’m going to kill you, ’” “‘You’re fucking dead, ’” “‘I’m going to have my cousin come here and stab you in the neck, ’” “‘I’m waiting for my cousin to roll by and shoot you, ’” and “‘I’m going to kill you and watch you die slowly.’” Minor also said he would “put a green light on” Toledo, but Toledo did not know what that meant. After minor said these things, Toledo was concerned about his safety. Dale was outside, near the door of the liquor store, watching. Toledo continued to hold minor for about 15 minutes until Downey Police Department Officer Benjamin Lee arrived in response to Ly’s phone call.
Lee detained minor and recovered a 23.5-ounce can of malt liquor from a rear pocket of minor’s shorts. Lee opined that minor was under the influence of alcohol, but coherent.
Minor testified that before he went to the liquor store on January 9, 2010, he had consumed roughly a quarter of a liter of tequila at his cousin’s house, which was about two blocks from the liquor store. He was “pretty drunk” and did not remember leaving his cousin’s house or how he got to the liquor store. He remembered being in the liquor store, “getting the beer, ” but did not remember putting it in his pocket. He remembered standing near the counter, searching through his backpack for his wallet. The female cashier began threatening to call the police and told him to leave. Without thinking about the beer, he walked out, then Toledo punched him, and he reacted. Minor thought Toledo was a customer and was shocked that Toledo was attacking him. Minor had not seen Toledo stocking shelves, standing behind the cash register, emerging from the stockroom, or “bagging things.” Toledo said, “‘Stop, ’” then cursed at minor, then tackled him. Minor could not breathe. He did not remember saying anything to Toledo other than telling Toledo to get off him. Minor was 17 years old at the time of the incident.
The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging criminal threats, second degree robbery, and that minor used a deadly and dangerous weapon (his skateboard) in the commission of the robbery (Pen. Code, § 12022, subd. (b)(1)). The court declared minor to be a ward of the court and placed him in a three-month camp program.
DISCUSSION
1. Sufficiency of evidence of criminal threat
A criminal threat under Penal Code section 422 requires a willful threat to commit a crime that will result in death or great bodily injury to another person. On its face and under the circumstances in which it is made, the threat must be so unequivocal, unconditional, immediate, and specific as to convey to its subject a gravity of purpose and an immediate prospect of execution. The threat must reasonably cause its subject sustained fear for his or her safety or that of his or her immediate family, and must have been made with the specific intent that it be taken as a threat. No intent to actually carry out the threat is required. (Pen. Code, § 422.)
Minor contends that the evidence was insufficient to establish (1) that his words caused Toledo actual fear, and (2) that “the circumstances in which [he] made his statements did not convey a gravity of purpose and an immediate prospect of execution of the threat so as to render any fear reasonable under the circumstances.”
To resolve this issue, we review the whole record in the light most favorable to the juvenile court’s order to decide whether substantial evidence supports the court’s finding, so that a reasonable fact finder could find the allegation true beyond a reasonable doubt. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.) We also presume in support of the juvenile court’s finding the existence of every fact the trier could reasonably deduce from the evidence and make all reasonable inferences that support the finding. (Id., at p. 1089.)
a. Actual fear
Toledo testified as follows:
“Q.... When he was saying these things, were you concerned about your safety—
“A. Yes.
“Q. —at that time?
“A. Yes.
“Q. Why?
“A. I mean, because I had him holding down, and I had no way of looking around.
And I was just more concerned of making sure he stood where he was at and waiting for the cops to come.”
Minor argues, “Toledo’s own words demonstrate that he was not in any state that could reasonably be described as actual ‘sustained fear’ but that he was concerned primarily to make sure that he detained minor until the police arrived.” We disagree. Although the prosecutor could probably have elicited from Toledo a better description of his fear and avoided a record open to the arguments raised in this appeal, we find Toledo’s testimony sufficient under the substantial evidence standard. His “concern[] about [his] safety” was merely an alternative description for fear. “Sustained fear” refers to fear that lasts longer than a mere momentary, fleeting, or transitory thought or emotion. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) It is reasonable to infer that Toledo’s fear lasted from the time minor began making the threats until the police arrived, which was about 15 minutes, and more than merely momentary. Toledo’s explanation for his fear in no way diminished or negated its existence. It instead demonstrated how seriously he took minor’s threat that minor’s cousin would come to the location and kill Toledo. Thus, Toledo expressed concern about his inability to “look[] around” him to identify another assailant, such as the cousin whom minor threatened would “roll by and shoot” Toledo. This attempt, at the prosecutor’s instigation, to explain why minor’s threats made him fearful did not detract from the sufficiency of Toledo’s testimony regarding his state of fear.
b. Gravity of purpose, immediate prospect of execution, reasonableness of fear
Minor’s challenge to the requirements of gravity of purpose, immediate prospect of execution, and reasonableness of Toledo’s fear is, in essence, that he was simply an inebriated teenager having an emotional outburst while unarmed, immobilized, outnumbered, and incapable of immediately executing any of his threats, which should not have been taken seriously.
“[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.” (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157–1158.) The statute does not require a present ability to carry out the threat. (People v. Lopez (1999) 74 Cal.App.4th 675, 679.) “Immediate prospect of execution” refers not to the likelihood that the threat will be carried out immediately, but to the seriousness and imminence of the prospect of the threat being carried out in the future. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)
Minor unequivocally, unconditionally, and specifically threatened to kill, or have his cousin kill, Toledo. These threats carried a serious and imminent prospect of being carried out, if not immediately, then in the future. This was true even though Toledo was restraining minor, Dale was nearby, and the police were on their way, as immediate execution is not required. Minor’s threats implicitly included a possibility that either minor or his cousin would return to the liquor store in the future to attack Toledo. Toledo could reasonably believe that even if minor was arrested, he would someday be released and might return to the store to carry out his threat, or he might contact his cousin while in custody and persuade him to carry out the threats. The juvenile court could have reasonably concluded that, both facially and under the circumstances in which they were made, minor’s threats were so unequivocal, unconditional, immediate, and specific as to convey to Toledo a gravity of purpose and an immediate prospect of execution.
Minor argues that the absence of any prior history between himself and Toledo rendered his threats insufficient. Although Toledo’s knowledge of minor’s violent propensities would strengthen the showing regarding the gravity of purpose and prospect of execution of the threats, such knowledge is not required. The statute does not exclude threats made to strangers or threats made by a person who is not known to have a history of violence. In re Ricky T. (2001) 87 Cal.App.4th 1132, upon which minor relies, is distinguishable. There, a teacher opened a classroom door, and the door struck a student in the teacher’s class. The student told his teacher, “‘I’m going to get you.’” No physical violence ensued, there was no history of disagreement or hostility between the teacher and the student, and the student later apologized to the teacher. (Id. at pp. 1135, 1138.) The Court of Appeal found the student’s statement insufficient to violate Penal Code section 422, noting that, in context, the student’s “‘threats’ lack credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances is striking.” (Id. at p. 1137.) The court characterized the student’s remark as “ambiguous on its face and no more than a vague threat of retaliation without prospect of execution.” (Id. at p. 1138.) The court concluded that the student’s “intemperate, rude, and insolent remarks hardly suggest any gravity of purpose....” (Ibid.) Here, minor’s words and the surrounding circumstances conveyed a gravity of purpose and immediate prospect of execution and established the reasonableness of Toledo’s fear. Minor and Toledo were engaged in an angry confrontation and struggle in which minor resorted to physical violence: minor brandished his skateboard as a weapon, then used it as such to strike Toledo. Minor also made multiple, specific threats to kill Toledo, rather than a single, ambiguous threat to “get” him. And, unlike the previously uneventful teacher-student relationship in Ricky T., there was no history of a peaceful relationship between minor and Toledo to temper the gravity of minor’s specific threats of violence. Had minor merely said, “I’ll get you” to Toledo, the absence of any history between minor and Toledo might carry the same weight that it did in Ricky T., but minor’s statements and antecedent conduct were not merely ““intemperate, rude, and insolent”; minor’s words and deeds unequivocally threatened violence.
2. Sufficiency of evidence of robbery
Minor contends that Toledo did not have a sufficient possessory interest in the property of the liquor store to be a robbery victim.
“A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) Possession may be actual or constructive. (People v. Galoia (1994) 31 Cal.App.4th 595, 597 (Galoia).) Actual possession exists where a person has direct physical control over an item, whereas constructive possession exists where a person has a right to control the property, either directly or through another person. (People v. DeFrance (2008) 167 Cal.App.4th 486, 497.) Actual possession is thus generally determined by a victim’s physical relationship to the property, while constructive possession generally depends on a victim’s intangible relationship to the property. One need not own or have a legal right to the property to have possession of it, and several people may share simultaneous possession. (Galoia, at p. 597.)
“For constructive possession, courts have required that the alleged victim of a robbery have a ‘special relationship’ with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” (Scott, supra, 45 Cal.4th at p. 750.) “By requiring that the victim of a robbery have possession of the property taken, the Legislature has included as victims those persons who, because of their relationship to the property or its owner, have the right to resist the taking, and has excluded as victims those bystanders who have no greater interest in the property than any other member of the general population.” (Id. at pp. 757–758.) “An employee’s authority to protect the employer’s property is recognized in Civil Code section 50, which establishes the right to use ‘necessary force’ to protect the ‘property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.’ (Italics added.) In other words, the employee’s relationship with his or her employer constitutes a ‘special relationship’ sufficient to establish the employee’s constructive possession of the employer’s property during a robbery.” (Scott, at p. 754.)
With respect to the property of a store or other business, all on-duty employees of the store (Scott, supra, 45 Cal.4th at p. 752), security guards hired by the store or shopping center in which the store is located to protect the store’s property (People v. Miller (1977) 18 Cal.3d 873, 881; People v. Bradford (2010) 187 Cal.App.4th 1345, 1350; People v. Estes (1983) 147 Cal.App.3d 23, 26–27), and janitors (People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523; People v. Downs (1952) 114 Cal.App.2d 758, 766) have the requisite special relationship with the business owner to have constructive possession and be robbery victims. But a visitor to a store or business does not. (People v. Nguyen (2000) 24 Cal.4th 756, 764 (Nguyen) [husband of employee present at business to attend party]; Galoia, supra, 31 Cal.App.4th at pp. 597–599 [visitor to store servicing his video game machine located inside store].) A person may also have constructive possession of property if he or she is requested or authorized by the owner of the property to help prevent its theft. (People v. Bekele (1995) 33 Cal.App.4th 1457, 1462 [owner of truck implicitly authorized companion to resist theft of property from truck by saying “‘Let’s stop, ’” stopping, and acting in concert with companion to prevent taking; companion had constructive possession in “representative capacity”], overruled on another ground in People v. Rodriguez (1999) 20 Cal.4th 1, 14.)
Toledo was not an employee of the store. Although he was present and performing tasks that Ly or an actual store employee might otherwise have performed, Ly, the manager, flatly denied that Toledo was an employee. Nothing indicates he had any relationship with, or authorization from, the store owner. Although Ly testified that at times Toledo served as cashier when she was using the restroom, Ly was present at the time of the robbery, and nothing in the record indicates that she or the owner of the store had requested or instructed Toledo to run the store, protect the store’s property, or stop thieves from getting away with the store’s property. Toledo does not fit into any of the Civil Code section 50 categories of persons who have a right to use necessary force to protect the property of another. Toledo was a well-intentioned visitor making himself useful as he spent time with his girlfriend. “[G]ood motives alone cannot substitute for the special relationship needed to create a possessory interest in the goods.” (Galoia, supra, 31 Cal.App.4th at p. 599.) As in Nguyen, supra, 24 Cal.4th at page 764, and Galoia, supra, 31 Cal.App.4th at pages 597–599, Toledo’s presence in the business as a helpful guest at the time of the robbery did not suffice to establish constructive possession of the business’s property. Accordingly, the evidence was insufficient to support the juvenile court’s finding on the robbery charge against minor.
Rather than simply reversing the juvenile court’s finding on the robbery charge, this court has the power and authority to modify the order under review to reflect a finding of a lesser, necessarily included offense. (Pen. Code, §§ 1181, subd. 6, 1260; People v. Jackson (2000) 77 Cal.App.4th 574, 580.) Accordingly, we modify the order to reflect a finding of petty theft for count 1. The finding regarding use of a deadly or dangerous weapon must be stricken, as it can attach only to a felony.
DISPOSITION
The order under review is modified to reflect a finding of petty theft in count 1. The weapon-use enhancement attached to count 1 is stricken. The cause is remanded to the juvenile court with directions to recalculate minor’s maximum confinement term and issue a new minute order reflecting that count 1 is petty theft, without any weapon enhancement, and the length of the recalculated maximum confinement term. The order is otherwise affirmed.
We concur: ROTHSCHILD, J.CHANEY, J.