Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County .No. JJD063928 Valeriano Saucedo, Judge.
Cecelia J. Rodriquez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G, Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, P.J., Cornell, J. and Detjen, J.
Appellant Gregory M., a minor, was found to have committed robbery. On appeal, he contends (1) insufficient evidence supported the robbery finding and (2) two of his probation conditions were constitutionally vague. We will modify the challenged probation conditions and affirm in all other respects.
FACTS
On January 23, 2010, appellant entered a Save Mart store in Porterville. He went directly to the liquor section, placed two bottles of Bacardi in his sweatshirt pockets, and walked out of the store.
As soon as appellant walked out of the store, Faris Faris, a plainclothes loss prevention officer, grabbed appellant from behind “with a bear hug” and announced, “Store security, store security, don’t resist.” At the same time, Faris’s partner, Robert Ruiz, stood in front of appellant and displayed his badge, which identified him as a store security guard. Faris described appellant’s reaction as follows: “At first, he was stunned, which is the normal reaction, just kind of flexed up and a little panicky, and that’s it. He was, like, okay, okay, okay, as I picked him up from there.”
After Faris carried appellant back inside the store, he tried to pull appellant’s arms behind his back for purposes of handcuffing him. Faris testified that appellant “started to resist more and we went to the ground at that time.” Faris explained that they lost their balance and fell to the ground as he was trying to pull appellant’s hands behind his back and appellant was resisting by pulling his arms forward. When they fell, Faris landed on top of appellant. Faris confirmed that the bottles of Bacardi remained in appellant’s pockets until he and appellant fell to the ground.
Shortly thereafter, a second male ran into the store and took a swing at Ruiz with his fist, grazing Ruiz’s lip. He then turned around and swung his fist at Faris, making contact with the beanie Faris was wearing. As Faris let go of appellant, a third male ran into the store. Appellant and the two others then ran out of the store, got into a car, and exited the parking lot at high rate of speed.
Appellant was arrested later that night and gave the police a statement. Appellant identified the other two males as his brother and cousin. Appellant admitted that he entered the store to steal liquor but claimed his brother and cousin did not know what he was planning to do. When he exited the store with the bottles, he was contacted by two persons. One said he was a store clerk and one grabbed him from behind, picked him up, and brought him back into the store. Appellant stated that, next, “there was a brief struggle, the two other persons from the vehicle that he was in, his brother and cousin, entered the store, and he was able to get up. The bottles had fallen out of his pocket. And they fled through the parking lot to the vehicle and then left the area.”
The defense
Appellant testified on his own behalf. As in his police statement, he admitted taking the Bacardi bottles and hiding them in his pockets. He also testified that he did not tell his brother and cousin why he was going inside the store and just told them he was going to get something to eat.
Appellant testified that when he got five to six feet outside the store with the bottles, Faris grabbed him from behind and pulled him back inside the store. Appellant recalled Faris saying, “Just don’t resist.” He did not recall Faris say anything about being security. Appellant also saw another male standing beside them but did not recall him saying anything.
Appellant testified that, after they got back inside the store, Faris “slammed me down on my chest.” Appellant felt like the wind had been knocked out of him. When he landed on the ground, the bottles rolled off to his side. The floor where they fell was carpeted and the bottles did not break.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends insufficient evidence supported the robbery finding because “[t]here was no substantial evidence of force during the asportation of the property.” Appellant asserts that there was “no evidence of physical force until after the merchandise was dropped and abandoned” when his brother and cousin ran into the store and helped him escape. As a result, appellant argues he “is guilty only of theft, a lesser included offense of robbery without the additional element of taking by force or fear.” We disagree and conclude the juvenile court could reasonably find that appellant’s struggle with Faris, which occurred when appellant still possessed the stolen items, was sufficient to establish the force element of robbery.
“‘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 defined 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.” (Pen Code, § 211.) Mere theft may become robbery “if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8; see also People v. Estes (1983) 147 Cal.App.3d 23, 28 [“It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape”].) Robberies in which force or fear is not used until after the perpetrator has already gained possession of the loot are sometimes called “‘Estes robberies’” in reference to People v. Estes, supra, 147 Cal.App.3d 23. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.) The robbery appellant was found to have committed in this case may be characterized as an Estes robbery.
In this case, a reasonable trier of fact could have concluded that appellant did more than passively resist being handcuffed, as he asserts on appeal, but actively and forcefully struggled with Faris in the hopes of escaping or retaining the stolen items in his pockets. Although appellant was initially compliant when Faris confronted him outside the market, Faris testified that, after he brought appellant back inside the store, appellant began resisting him and they fell down. Appellant himself reported to the police that, when he was brought back into the store, there was a brief struggle before his brother and cousin arrived and he was able to escape. The fact the struggle was violent enough to cause both Faris and appellant to fall to the ground supports a reasonable inference that appellant was more physically active during the incident than he would have this court conclude on appeal. Based on all the circumstances before it, the juvenile court could reasonably find that appellant’s struggle with Faris, albeit brief, satisfied the force element of robbery.
This court has reviewed the relevant portions of the security camera footage of the incident, referenced by both appellant and respondent. Nothing in it changes our conclusion.
II. Challenged Probation Conditions
As conditions of appellant’s probation, the trial court ordered appellant to “[n]ot wear or display items or emblems reasonably known to be associated with or symbolic of gang membership” and “[n]ot acquire any new tattoos or gang-related piercings.…” Appellant contends the conditions must be modified to include a knowledge requirement and to define the term “gang, ” otherwise they are constitutionally vague and invalid.
The challenged conditions are listed in probation condition No. 21.
Although not conceding appellant’s point, respondent does not oppose the requested modification. We agree with appellant that the addition of a knowledge requirement and the incorporation of the statutory definition of a criminal street gang are appropriate. (In re Sheena K. (2007) 40 Cal.4th 875, 880, 891-892; People v. Lopez (1998) 66 Cal.App.4th 615, 622-623, 631-634; In re Vincent G. (2008) 162 Cal.App.4th 238, 245-247.)
DISPOSITION
The challenged probation conditions are modified as follows:
“21. Comply with these terms regarding gangs: [¶] … [¶]
“b. Not wear or display items or emblems the minor knows, or has been informed by the probation officer, are associated with or symbolic of gang membership.
“c. Not acquire any new tattoos or gang-related piercings the minor knows, or has been informed by the probation officer, are gang-related, and have any existing tattoos or piercings photographed as directed by the probation officer.
“For purposes of these conditions, the term ‘gang’ means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f).” (Italicized words represent modifications.)
As so modified, the juvenile court’s findings and orders are affirmed in all other respects.