Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. FJ42390, Robin Miller Sloan, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Davon H. appeals from a judgment following the juvenile court’s adjudication sustaining a Welfare and Institutions Code section 602 petition and declaring him a ward of the court, after the juvenile court determined that Davon committed attempted second degree robbery, made criminal threats against two others, and committed these acts for the benefit of, at the direction of, and in association with a criminal street gang. We reject Davon’s claim that substantial evidence did not support the findings regarding attempted robbery. We conclude that the evidence showed that the victim of attempted robbery had actual, physical control of the property that Davon attempted to take, and therefore had possession of the property. We find no error and affirm the judgment.
PROCEDURAL HISTORY
The Los Angeles County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 that alleged four counts against Davon, 16 years of age. Count 1 alleged that Davon committed attempted second degree robbery in violation of Penal Code sections 664 and 211, a felony. Counts 2, 3, and 4 alleged that Davon made criminal threats against Rudy Flores, Edgar Guillen, and Daniel Sepulveda in violation of section 411, a felony. The petition alleged that counts 1 through 4 were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in gang members’ criminal conduct in violation of section 186.22, subdivision (b)(1)(B) and causing each offense to become a serious felony pursuant to section 1192.7, subdivision (c)(28).
Unless otherwise specified, statutes in this opinion will refer to the Penal Code.
At the adjudication hearing the juvenile court dismissed count 2, found count 1 to be true but dismissed the enhancement as to count 1, and found counts 3 and 4 to be true and found enhancements to those counts to be true. The juvenile court sustained the petition, declared Davon a ward of the juvenile court, and ordered Davon suitably placed and set a maximum term of confinement of 11 years 4 months. Davon filed a timely notice of appeal.
FACTS
At 4:30 p.m. on February 23, 2010, Rudy Flores was leaving work at Paul Briles Fasteners on West 132nd Street in Gardena. A person he had seen in the neighborhood and knew as Robert came toward him with a weird expression and tried to give Flores his belongings. Flores identified Davon and J.W., whom he had seen frequently at a corner liquor store near where he worked. J.W. was trying to come around Flores to get to Robert and take his belongings, a scooter and a grocery bag. Flores told Robert to stay behind him and to hold onto his belongings. Davon was right in front of Flores. Flores asked J.W. what the problem was. J.W. answered that it was none of his concern and that the problem was not with Flores.
This continued for five to 10 minutes, during which Davon and J.W. said, “8tray gangsters. What’s up? Where you from?” Davon raised his fists in front of his body in a fighting stance. Flores felt Davon’s body language was threatening. A co-worker, Edgar Guillen, saw Flores trying to help Robert, and saw Davon and J.W. trying to steal Robert’s scooter and disrespecting Robert and Flores. Guillen approached and asked Flores if there was a problem. Flores answered that everything was OK, but J.W. said, “Nothing was cool, cuz.” J.W. and Davon then directed their attention to Guillen. Davon and J.W. both said “8tray Gangster Crip” to Guillen, and also said “Fuck you. What the fuck you want? We going to fuck you up.” Guillen did not respond and walked away toward his car.
When Guillen moved toward his car across the street, Davon and J.W. followed him toward his vehicle. They asked Guillen, “Where you going.” He did not respond, but opened his car door and put his things in the car. Davon and J.W. came within two feet of Guillen and asked where he was from. Davon challenged Guillen to a fight. After rolling a “blunt” of marijuana, Davon told J.W., “hold this. I am about to fuck his little skinny ass up, ” and put his arms up, getting ready to punch Guillen. J.W. said, “We are going to call the big homey right now, ” and that they were going to “bring the heat for ya’ll, ” and made a phone call. Guillen interpreted this as involving a gun, found this threatening, and felt his life was in danger. Davon said “8tray Crips” more than once. Shortly thereafter a man in a white, 4-door 2001 Impala drove up. J.W. flagged him over and he stopped 15 feet away and got out of his car.
Sepulveda, standing three feet from Guillen, heard J. W.’s statement as: “We are going to come back with some heats and we are going to shoot your asses.”
Daniel Sepulveda, who carpooled with Guillen, saw Davon and J.W. confronting Guillen, and had approached. J.W. looked at Sepulveda and said “8tray Gangster Crip.” The man from the white Impala came up and asked Flores why he was picking on little kids. Flores did not respond, and simply smiled. The man then told Davon and J.W. “Cuz, get in the car.” Davon held his thumb, index finger, and middle finger in a gun-type gesture, and then Davon and J.W. got in the white Impala. The driver did a u-turn, pulled up next to Guillen and Sepulveda, and Davon again made the gun-type gesture with his fingers. Flores approached his car, and the white Impala speed up and stopped behind Flores’s car. Flores turned around and the man driving the white Impala looked at him, and then drove off chasing Guillen and Daniel Sepulveda, who were leaving in another vehicle. Davon moved his thumb up and down as though he were shooting.
Meanwhile Guillen and Sepulveda put some items in the trunk. Sepulveda saw the white Impala stopped across the street about 200 feet away. Then a man wearing a navy blue-t-shirt and braids ran toward them, bending down with his hand near the ground as if he were holding something in his hand. Sepulveda admitted that he did not see the man holding a gun, but told Guillen, “he has a gun, ” got in the car, and drove away quickly. Sepulveda looked in the side mirror and saw the white Impala chase them for two blocks. Then Guillen and Sepulveda drove home. Flores and Robert left the scene.
Ninety minutes later Guillen and Sepulveda returned to the scene to give a report to the police. At that time Sepulveda identified J.W. and Davon, and identified the man in the navy shirt and braids who he had thought was carrying a gun.
Roberto Rosales, a City of Gardena police officer, testified as an expert witness on gangs. The 8tray Crips gang, whose name refers to 83rd Street, had approximately 300 active members in a territory bounded by Gage, 97th Street, East Vermont, and West Van Ness, in the Los Angeles Police Department jurisdiction. The 8tray Crips, however, cross borders into Gardena, where they had a truce with the “Shotgun Crips” gang. Activities of the 8tray Crips gang included robbery, criminal threats, burglaries, carjacking, murders, grand theft, and petty theft.
Rosales had previous contact with J.W.’s father and his uncle. Rosales participated in the investigation of this case, and noticed that J.W.’s father, the driver of the white Impala, was called to pick up J.W., exited his vehicle, and made a statement of his gang. Rosales was subpoenaed to be the gang officer in the case against J.W.’s father and in the case pending against J.W.’s uncle, who was also present at the scene. Rosales spoke with Officer Sproles, who detained the Impala vehicle. Sproles said that Davon, J.W., and J.W.’s uncle were passengers in the Impala vehicle, and that J.W.’s father was the driver.
Rosales had contact with J.W. and Davon. J.W. told Rosales he was a member of the 8tray Crips and his moniker was “Young Squally.” Davon stated he was a member of the 8tray Crips and said his moniker was “Tiny Spike.”
Rosales stated his opinion that Davon and J.W.’s attempt to take Robert’s belongings and threats to Flores, Guillen, and Sepulveda, were committed for the benefit of, in association with, and at the direction of the 8tray Crips gang. Rosales also stated his opinion that J.W.’s father was there to assist in committing the crime, because he came in his car, exited the vehicle, and identified himself as an 8tray Crip. Rosales testified that it was common for young 8tray Crip members to commit street crimes to gain a reputation for toughness, for having the ability to do things for the gang, and for being trustworthy.
ISSUE
Davon claims that there is insufficient evidence to support the finding that Davon committed attempted robbery, in that there was no evidence that Robert was the lawful custodian of the scooter and grocery bag.
DISCUSSION
Davon claims that because the crime of robbery requires the taking from another that which belongs to the other or that to which the other has a right of possession, and there was no evidence that Robert was the lawful custodian of the scooter and grocery bag, the evidence did not support the finding that Davon committed attempted robbery.
A. Standard of Review
In reviewing a challenge to the sufficiency of the evidence to support a juvenile court judgment sustaining criminal allegations of a petition under Welfare and Institutions Code section 602, this court applies the same standard of review that applies to a criminal defendant’s challenge to the sufficiency of the evidence to support a judgment of conviction. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) This court considers the evidence in the light most favorable to the judgment, presumes the existence of every fact the trier could reasonably deduce from evidence supporting the judgment, and determines whether substantial evidence supports the decision. This court’s function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This court does not reverse the judgment of conviction for lack of sufficient evidence unless it appears that upon no hypothesis is there sufficient evidence to support the conviction. (Id. at p. 1372; In re Arcenio V. (2006) 141 Cal.App.4th 613, 615-616.)
B. The Evidence Showed That Robert Had Actual, Physical Control of the Property Which Defendants Attempted to Take From Him, and Thus the Element of Possession Was Proven
“Robbery 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.)
Robbery requires the taking of “personal property in the possession of another, from his person or immediate presence[.]” (§ 211.) “A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute.” (People v. Scott (2009) 45 Cal.4th 743, 749.) “[R]obbery may be committed against a person who is not the owner of property-indeed, it may be committed against a thief.” (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1143.) That the victim was not the true owner of the property taken is not a defense to a charge of robbery. (People v. Moore (1970) 4 Cal.App.3d 668, 670.) “It is not necessary that the victim of the robbery also be the owner of the good taken. Robbery is an offense against the person who has either actual or constructive possession over the goods.” (People v. Estes (1983) 147 Cal.App.3d 23, 26.) When a person exercises dominion over property, that person, insofar as the defendant is concerned, has possession of that property. (People v. Nguyen (2000) 24 Cal.4th 756, 762.)
Here it is undisputed that Robert had actual, physical possession of the property which Davon and J.W. attempted to take from him. No evidence indicated that Davon attempted to take property away from Robert which belonged to Davon. When Flores asked what the problem was, J.W.’s response was that it was none of his concern and that the problem was not with Flores. Later Davon (and J.W.) said to Flores “8tray gangsters. What’s up? Where you from?” These responses did not indicate that Davon was attempting to take property from Robert that in fact belonged to Davon. The prosecution is not required to prove that the robbery victim owns the property taken; what is required is that a robbery victim be in possession of property taken by the defendant. A person who exercises direct physical control over property has possession of it. (People v. Scott, supra, 45 Cal.4th at p. 749.) The element of Robert’s possession of the property Davon attempted to take from him was proven here.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.