Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. SJ05000685
NEEDHAM, J.
Appellant D.H. was declared a ward under Welfare and Institutions Code section 602. The juvenile court determined that appellant had committed a second degree robbery under Penal Code section 211 when he brandished what appeared to be a gun and threatened to shoot a security guard who was apprehending one of his cousins as she stole two bottles of liquor from a grocery store. Appellant contends the court erred in denying his motion to dismiss under Welfare and Institutions Code section 701.1 because the evidence at the close of the prosecution’s case was insufficient to support the charge of robbery. We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
On the evening of January 17, 2008, appellant rode to a Safeway supermarket with three of his cousins: Kaylene and Kristina, who were adults, and their younger brother Kenneth, who was a juvenile. Kristina drove the family’s Nissan Altima.
We refer to the participants by first name only not in any disrespect, but in order to protect the minors’ identities.
Matthew Pullen was working as an uncover security guard at the Safeway. He noticed Kenneth walk into the store, look around for a short time, and then gesture to people outside the store to come inside. Appellant and Kaylene entered the store. Finding this conduct suspicious, Pullen conferred with the other undercover guard on duty, Jesse Perez, and walked upstairs to watch Kenneth on the security video monitors.
The security monitors trained on the liquor aisle showed Kaylene holding two big bottles of brandy walking out of the aisle. At the same time, Kenneth was walking back and forth in front of the aisle, along with appellant. Over the monitor, Pullen saw Kaylene walk toward the door of the store, by-passing the cash registers. He notified Perez by cell phone to watch for the group.
Meanwhile, Perez had walked outside and noticed the Altima stopped at the fire lane curb with a woman waiting in the driver’s seat. Suspicious, he moved to photograph the license plate of the car, but before he could do so, Kaylene ran from the store to the Altima carrying two large bottles of brandy. Perez walked over to Kaylene, identified himself, grabbed both of her arms, and told her she had to return with him to the store. Appellant and Kenneth were standing near each other by the door of the store.
As Perez escorted Kaylene back toward the store, appellant approached and told Perez to let go of his cousin. Perez responded that she needed to “come upstairs, cooperate, and she’ll go home.” Appellant pulled a gun from under his clothing, pointed it at Perez, and said, “Let go of my cousin or I’ll shoot you.” Kenneth stood behind appellant and looked directly at Perez, who released Kaylene because he believed appellant was holding a real gun and was afraid he would otherwise be shot.
The district attorney filed a subsequent petition alleging that appellant had committed robbery and burglary and had personally used a firearm and a dangerous and deadly weapon during the commission of the robbery. (Pen. Code, §§ 211, 459, 12022.53, subd. (b), 12022, subd. (b).) A contested jurisdictional hearing was conducted jointly with Kenneth’s, who was also charged with robbery and burglary.
During the adjudication hearing, appellant testified that on the way to the Safeway, he found a toy gun in the back seat of the Altima that he had left in the car on a prior visit. He had owned the toy gun for several months, having purchased it for about $1.75 at an ice cream truck. Appellant confirmed the security guard’s general description of the group’s behavior, but he claimed he went into the store to buy a soda, not to steal anything. He explained that he did not see Kaylene take the brandy and simply followed her out as she left the store. When Perez, who was not dressed in a uniform, grabbed Kaylene, appellant became alarmed, grabbed the toy gun from the car, put it under his shirt, then pulled it out and threatened Perez. He threw the toy gun away as they drove away from the store.
The court found that both appellant and Kenneth had committed a robbery, but it declined to sustain the allegations of burglary or weapons use: “I think that what you have here is probably exactly what [the prosecutor] said, which is that these folks decided that they were going to go steal some liquor and did it together and thought about it, but I really don’t see any proof that that was done. It’s circumstantial but not enough to convince me beyond a reasonable doubt that that’s what happened, so I’m not going to make any finding on the burglary. [¶] “As to the other part of this, once the young woman or girl . . . takes the booze, it’s pretty clear that both of these guys know that she’s taking the booze. She has it with her going out to the car. I don’t believe for a second that they didn’t know she was stealing it. I also don’t believe for a second that they didn’t know that this fellow was a security guard of some kind from Safeway that’s coming up to her and bringing her back in. . . . So at that point, the confrontation does become a [robbery], and the finding will be that they both are involved in that [robbery]. [¶] “As to the use clause, I’m not convinced beyond a reasonable doubt that this was a real gun. I think the victim saw it as a real gun, believed it was a real gun, but I don’t know that there’s enough proof here as to that, especially in light of the minor’s somewhat believable testimony about the way he obtained it. [¶] So the finding will be a [Penal Code section] 211 as to each minor.”
The court ordered that appellant remain a ward of the court, found that his maximum term of confinement was seven years four months, and released him on electronic monitoring subject to his placement in a group home.
Appellant had been previously adjudicated a ward based on findings that he possessed a knife at school and committed a first degree burglary.
II. DISCUSSION
Appellant brought a motion under section 701.1, which provides for a dismissal at the close of the prosecution’s case if “the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602.” (See In re Anthony J. (2004) 117 Cal.App.4th 718, 727.) We review the court’s denial of this motion to determine whether, at the time the prosecution rested, there was substantial evidence to support a finding, beyond a reasonable doubt, that appellant committed a robbery. (See In re Andre G. (1989) 210 Cal.App.3d 62, 65-66.)
A robbery is committed when “(1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his [or her] immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent to permanently deprive that person of the property.” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) Circumstances that would otherwise amount to mere theft will establish a robbery where a principal peacefully acquires the victim's property, but then uses force to retain or escape with it. (Miller v. Superior Court (2004) 115 CalApp.4th 216, 222; People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) A store employee such as a security guard may be the victim of a robbery even though he or she is not its owner and is not at the moment in immediate control of the property. (People v. Jones (2000) 82 Cal.App.4th 485, 490.)
Although appellant did not actually take the brandy from the store, a person may be guilty of a crime as an aider and abettor if “ ‘he or she (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’” (People v. Hill (1998) 17 Cal.4th 800, 851.) This theory of liability “ ‘snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime.’ [Citation.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1039.)
The aider and abettor doctrine “makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.” (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) In certain circumstances, an aider and abettor may be guilty of a more serious offense than an actual perpetrator. (Ibid.) Here, appellant’s use of the toy gun to coerce Perez into releasing Kaylene by means of fear was an act that directly facilitated the taking of the brandy and transformed what would otherwise have been a mere theft into a robbery.
Appellant complains that in rejecting the burglary count, the court necessarily determined the evidence was insufficient to prove that he intended to commit or facilitate a theft or robbery when he entered the store. He argues that his conduct inside the store did not demonstrate that he knew Kaylene had taken the brandy, and that his use of the toy gun outside the store was motivated by his desire to protect his cousin, not to accomplish a theft. Although appellant was free to argue this interpretation of the evidence, the court was not required to accept his view of the testimony as of the close of the prosecution’s case. “Whether a defendant aided and abetted a crime is a question of fact. Consequently, on appeal, all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.” (People v. Glenos (1992) 7 Cal.App.4th 1201, 1208.) Appellant’s familial relationship with the other perpetrators, his presence on the store aisle where Kaylene took the brandy, his apparent escorting of her from the store after she took the bottles, his threat to shoot Perez, and his flight from the scene amounted to ample evidence that he participated in a robbery.
For the same reasons, we reject appellant’s alternative claim that the evidence as a whole was insufficient to support the judgment.
III. DISPOSITION
The judgment is affirmed.
We concur: JONES, P. J., DONDERO, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.