Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 07CEJ600212-2. Timothy A. Kams, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant E.S., a minor, was found to have committed robbery and battery. On appeal, he contends (1) insufficient evidence supported the robbery finding, (2) the juvenile court erred by failing to stay the battery term and (3) the probation condition requiring drug and alcohol testing was improper. We will order the battery term stayed and affirm in all other respects.
PROCEDURAL SUMMARY
On September 24, 2008, the Fresno County District Attorney filed a petition alleging that defendant was a minor within the meaning of Welfare and Institutions Code section 602, subdivision (a), in that he committed second degree robbery (Pen. Code, § 211, a felony) and battery (§ 242, a misdemeanor).
All statutory references are to the Penal Code unless otherwise noted.
On October 20, 2008, at the jurisdictional hearing, the juvenile court found the battery allegation true and took the robbery allegation under submission. The court did not determine whether defendant had reached a place of temporary safety before his use of force, which would separate the acts into theft and battery.
On November 14, 2008, the juvenile court held a dispositional hearing. After hearing evidence, the court determined defendant had not reached a place of temporary safety when he used force, and the court found the robbery allegation true. The court committed defendant to a maximum period of confinement of five years two months, committed him to the Elkhorn Boot Camp for 365 days, and reinstated probation conditions, including drug and alcohol testing.
We assume this period consists of five years for the robbery and two months for the battery. (§§ 213, 243.)
FACTS
On September 19, 2008, at about 3:00 p.m., S.Y. and his friend, P.H., were walking home from high school. S.Y. was holding a handheld electronic game.
Defendant, who was in the same fifth period class as S.Y., approached them and asked P.H. what time it was. Then defendant forcefully grabbed the game from S.Y.’s hand and ran back to the school. S.Y. and P.H. immediately followed him. As they walked slowly back to school, they saw him enter the cafeteria. They did not walk around the campus before approaching him, but went directly into the cafeteria. When they caught up to him in the cafeteria, about 15 to 20 minutes after the encounter, he was still holding and playing with the game. He handed it to someone else to hide it.
S.Y. told defendant to give the game back to him. Defendant showed him his fist. P.H. thought defendant might beat up S.Y., so he told S.Y. to back up. Defendant gave his backpack to a friend and took off his shirt. He ran up to S.Y. and punched him on the side of his head with a blow so forceful it caused S.Y.’s head to hit P.H.’s face. Defendant hit S.Y.’s head a few more times. Defendant did not relinquish the game.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends insufficient evidence supported the robbery finding because he had reached a place of temporary safety before he used force on S.Y. Defendant maintains his acts constituted only theft and battery.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains 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.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or reconsider factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) This same standard applies in determining the sufficiency of the evidence to support the true findings of a juvenile court. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
Robbery is the felonious taking of personal property from a person or his immediate presence, against his will, and accomplished by means of force or fear. (See, e.g., People v. Harris (1994) 9 Cal.4th 407, 415.) The robbery requires any movement, even slight, of the loot. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) “Further, the requisite force or fear need not occur at the time of the initial taking. The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1079 …; People v. Pham (1993) 15 Cal.App.4th 61, 65-68 …; People v. Estes (1983) 147 Cal.App.3d 23, 27-28 [force used against store security guard who tried to prevent escape of shoplifter].)” (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772, italics added.)
“A theft or robbery remains in progress until the perpetrator has reached a place of temporary safety. (People v. Carroll (1970) 1 Cal.3d 581, 585.) The scene of the crime is not such a location, at least as long as the victim remains at hand. (People v. Ramirez (1995) 39 Cal.App.4th 1369, 1375 [‘Phrased otherwise, the robbery is not “over” until the victim has reached a place of temporary safety’]; see also People v. Haynes (1998) 61 Cal.App.4th 1282, 1292.) When the perpetrator and victim remain in close proximity, a reasonable assumption is that, if not prevented from doing so, the victim will attempt to reclaim his or her property. (People v. Webster (1991) 54 Cal.3d 411, 442 [assuming that murder victim had willingly given car key to defendant, jury could infer from later violence that defendant used force to prevent victim from retrieving the key].)” (People v. Flynn, supra, 77 Cal.App.4th at p. 772, italics added.)
In this case, there was evidence that S.Y. and P.H. immediately and directly (even if slowly) followed defendant back to the school after he grabbed the game from S.Y. They could see him for at least part of the trip back to the school. They saw him enter the cafeteria, and they confronted him in the cafeteria and demanded the game. These facts support the juvenile court’s conclusion that the robbery was still in progress when S.Y. followed defendant and attempted to reclaim his stolen property. When defendant responded to S.Y.’s demand with physical force, the force element of robbery was satisfied. Substantial evidence supported the robbery finding.
II. Section 654
Defendant asserts that the juvenile court erred by failing to stay under section 654 the consecutive sentence imposed for battery. He argues that the battery constituted the force element of the robbery. Since both counts arose out of the same course of conduct, he argues, section 654 requires the count with the lesser sentence to be stayed. The People concede, but maintain that defendant has waived the claim by failing to object at the time of sentencing.
Section 654 provides that a defendant may not be punished more than once for the same act. This section applies when a single act results in violation of multiple criminal statutes, or where the defendant violates multiple criminal statutes in pursuit of one criminal objective. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The purpose of the statute is to ensure a defendant’s punishment is commensurate with his or her criminal liability. (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044.) A claim of error under section 654 is generally not waived by failure to object in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Here, we agree with the parties that the same act supported the robbery and battery charges. Thus, the battery term must be stayed.
III. Probation Condition
Lastly, defendant contends the juvenile court imposed an improper condition that requires him to be tested for drugs and alcohol, even though the underlying offense was not drug or alcohol related and there was no evidence he had any history of drug or alcohol use. He acknowledges that imposition of the condition is supported by In re Kacy S. (1998) 68 Cal.App.4th 704, but he urges us to adopt the dissenting opinion. We agree with the reasoning of the majority, however, and therefore find no abuse of discretion (In re Josh W. (1997) 55 Cal.App.4th 1, 5 [juvenile court’s broad discretion to impose probation conditions cannot be reversed absent “manifest abuse”]).
DISPOSITION
The matter is remanded to the juvenile court to stay the period of confinement imposed for the battery. The juvenile court’s findings and orders are affirmed in all other respects. The juvenile court is directed to forward a corrected abstract of the disposition to all appropriate agencies.
WE CONCUR, Vartabedian, Acting P.J., Levy, J.