Opinion
D060551
07-10-2012
In re DEVIN A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DEVIN A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. J228448)
APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti and Carlos Armour, Judges. Reversed in part and affirmed in part.
After a contested jurisdictional hearing, the court found true the charges that minor Devin A. committed robbery (Pen. Code, § 211), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and grand theft from a person (§ 487, subd. (c)). The court declared Devin a ward (Welf. & Inst. Code, § 602) and sentenced her to 90 days in the Short Term Offender Program (STOP).
All further statutory references are to the Penal Code unless otherwise specified.
Devin appeals the true findings of robbery and grand theft from a person, claiming the evidence is insufficient to sustain either count. She also contends that if the court affirms the true finding for robbery, the true finding for grand theft from a person must be stricken as a lesser included offense of robbery.
FACTUAL BACKGROUND
On the evening of February 4, 2011, Jayme and her friend, Jamie K., were taking pictures of each other with Jayme's camera at a playground. The girls were approached by Devin and Kayla. Devin asked Jayme about a prior incident involving Jayme's mother at a convenience store. Jayme responded that she "just didn't want to be messed with anymore." Devin then lunged at Jayme and grabbed the camera out of her hands.Jayme grabbed Devin's hand to get the camera back, but Devin turned around and started to hit her. At some point, Devin handed the camera to Kayla, who took it and ran away. Devin and Jayme continued to fight each other. During the fight, Kayla returned to the playground to help Devin because Jayme would not let Devin go. Devin and Kayla ran away from the playground area, leaving the camera behind. Jamie K. called 911 as the fight started and police responded after Devin and Kayla had left. Jayme later recovered her camera from the ground in the playground area.
Devin testified that the reason she grabbed the camera was to prevent Jayme from taking pictures of her. Jayme denied taking pictures of Devin, but admitted that pictures were snapped immediately before and at the same time as Devin grabbed the camera, confirming flashes that appear on the surveillance video taken that night.
During the 911 call, Jamie K. told the operator that "she just ran away with her stuff," and "these two girls that just came out of nowhere while we were taking pictures and just started beating her up."
--------
Devin testified she entered the playground area to talk to Jayme about the incident with Jayme's mother, not to take Jayme's camera. When Jayme took pictures of Devin with her camera, Devin asked her to stop, but Jayme said no. This irritated Devin so she yanked the camera away from Jayme, who was holding the camera around her wrist by a string. Devin handed the camera to Kayla and asked her to "put [it to] the side." Devin tried to leave, but Jayme threatened to kill her and grabbed her by the throat. Devin turned around, hit and kneed Jayme, and the two began to fight.
Based on the testimony of the witnesses and the surveillance video taken that night, the court stated it was undisputed that Devin took the camera from Jayme. The court also concluded Devin punched Jayme when she tried to retrieve the camera, and then passed it to Kayla, who ran off with it. The court found true every element of the three criminal charges beyond a reasonable doubt. The sentencing court ordered Devin to be placed in STOP for 90 days.
DISCUSSION
I
Devin argues the evidence was insufficient to support the true finding of robbery and grand theft of a person beyond a reasonable doubt. She argues she did not have the required specific intent to permanently deprive Jayme of her camera.
A
The standard of review applicable to a juvenile court finding is the same standard of review applicable to a claim by an adult criminal defendant challenging the sufficiency of the evidence to support a conviction on appeal. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) "Under this standard, the critical inquiry is 'whether, after [re]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.' " (Ibid., quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) " 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Ryan N., at p. 1372.) We presume " 'the existence of every fact the trier could reasonably deduce from the evidence.' " (Ibid.)
B
Section 211 defines robbery as "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." In general, robbery requires a specific intent to deprive the victim of his or her property permanently. (In re Albert A. (1996) 47 Cal.App.4th 1004, 1007; People v. Dominguez (1995) 38 Cal.App.4th 410, 417; CALCRIM No. 1600.) However, the required felonious intent to steal, "although often summarized as the intent to deprive another of the property permanently, is [also] satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (People v. Avery (2002) 27 Cal.4th 49, 58.)
The defendant's intent to take the property must have been formed before or during the time of the use of force or fear. (People v. Tafoya (2007) 42 Cal.4th 147, 170; CALCRIM No. 1600.) Proof of deliberation, premeditation, or motive are not necessary to establish intent. (People v. Ottenstror (1954) 127 Cal.App.2d 104, 111; People v. Thomas (1941) 45 Cal.App.2d 128, 135.) Because a person's intent is largely subjective, it is generally manifested by the circumstances surrounding the event. (People v. Nichols (1967) 255 Cal.App.2d 217, 220.) " '[T]he intent required for robbery . . . is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.' " (People v. Abilez (2007) 41 Cal.4th 472, 506-507, quoting People v. Lewis (2001) 25 Cal.4th 610, 643.) "[I]f the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the finding of its presence in a particular [case] may not be disturbed on appeal [citations]." People v. Lyles (1957) 156 Cal.App.2d 482, 486.)
A defendant's exculpatory explanation of his or her actions merely creates a conflict in the evidence. (People v. Morton (1961) 191 Cal.App.2d 744, 752-753.) If the trial judge gives full and fair consideration to the evidence and concludes the defendant was not telling the truth, the judge is warranted in rejecting the explanation. (Id. at p. 753.)
C
Devin argues the evidence was insufficient to support the true finding against her for robbery because the People did not prove she had the required specific intent for robbery. We conclude substantial evidence supports a reasonable inference that Devin intended to permanently, or at the very least temporarily, deprive Jayme of the use and enjoyment of her camera.
The record shows that even though Devin may have initially entered the playground intending to talk to Jayme about an incident with Jayme's mother, she became irritated because Jayme was taking pictures of her. She grabbed the camera out of Jayme's hands and passed it to her friend Kayla, who took it and ran away. Devin also started to walk away, but could not because Jayme grabbed her. These facts provide substantial evidence to support a reasonable inference that Devin intended to deprive Jayme of the use and enjoyment of her camera for a significant period of time by handing it off to an accomplice who fled the playground area, or by attempting to leave without returning the camera to Jayme. This inference supports the court's finding that Devin had the requisite intent.
Devin testified she never intended to take Jayme's camera when she entered the playground. She also claimed that when she took the camera, she handed it to Kayla and told her to "put [it to] the side." However, this testimony is not confirmed by any other witness, and it is contradicted by Jamie K.'s testimony (which the court found to be "very credible"), Jamie K.'s statements during the 911 call from that night (see fn. 3, ante), Jayme's testimony, and images on the surveillance video. Further, as circumstances at the playground changed and Jayme started taking Devin's picture, Devin testified her intent changed from conversing with Jayme to getting her to stop taking pictures. Devin's chosen means to accomplish this was to forcefully take Jayme's camera from her and walk away. Even though Devin's explanations for her actions may create conflicts in the evidence presented to the court, the court can reject Devin's explanations if it gives full and fair consideration to all the evidence and find Devin's statements were unconvincing. (People v. Morton, supra, 191 Cal.App.2d at p. 753.)
Devin also argues she did not have the required intent for robbery because she never took the camera out of the playground area when she and Kayla left and Jayme was only deprived of the camera during the fight. However, we conclude there was sufficient evidence presented to establish that the only reason Devin did not succeed in permanently taking the camera was that Jayme responded by grabbing Devin as she tried to take it. The court found Jayme had a right to retrieve her property. But for Jayme's efforts to get her property back (and Kayla coming to Devin's aid during the fight), it would be reasonable to conclude Devin would have likely left the playground with it. Even though Devin was unsuccessful in permanently taking the camera, it does not change the fact that substantial evidence supports that she acted with the requisite intent to deprive when she grabbed the camera away from Jayme. We conclude sufficient evidence supports the true finding of robbery.
II
Devin contends that if we find sufficient evidence to support the true finding of robbery, the true finding for grand theft must be stricken because it is a lesser included offense of robbery. The People concede the point.
"Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery." (People v. Burns (2009) 172 Cal.App.4th 1251, 1256.) When two charged offenses are based on the same criminal act and, according to the statutory elements test, one offense is a lesser included offense of the other, the defendant cannot be convicted of both offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1231.)
Here, the grand theft count was based on the same act as the robbery count. The true finding of grand theft must be reversed. (People v. Medina (2007) 41 Cal.4th 685, 701-702.)
DISPOSITION
The judgment is modified by striking the true finding of grand theft (§ 487, subd.(c); count 2). As so modified, the judgment is affirmed.
McDONALD, J. WE CONCUR: HALLER, Acting P. J. AARON, J.