Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KJ29232, Phyllis Shibata, Judge. Affirmed.
Judith Vitek, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Minor Ian M. appeals from an order declaring him a ward of the court under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging that he committed one count of second degree robbery of Mariegrace M. (Pen. Code, §§ 211, 212.5). Ian was declared a ward of the court and ordered home on probation on April 13, 2007. Ian timely appealed the judgment.
The juvenile court also set a maximum term of confinement. On October 31, 2007, the juvenile court granted appellate counsel’s request to correct the disposition by striking the reference to a maximum confinement, and denied Ian’s request for one day of pre-dispositional credit.
Ian contends there was insufficient evidence of force or fear and intent to steal to sustain the petition for robbery. Ian further contends he is entitled to one day of pre-dispositional custody credit. We hold there is substantial evidence to support the findings and further conclude a determination of custody credits is unnecessary as physical confinement was not selected as the disposition. Accordingly, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Prosecution Case
Mariegrace testified that on October 16, 2006, she and her friend Davonna W. were outside the youth center near Mariegrace’s high school. Mariegrace was using a friend’s cell phone. Ian, whom Mariegrace did not know, approached her and asked to use the cell phone. Mariegrace said no and began to give the phone to Davonna. As Mariegrace was passing the phone, Ian reached out and grabbed it. Mariegrace told him the phone was not hers, but Ian put it in his pocket. Ian was teasing and playing around with her: “Like the way he took it, he was trying to—he was holding it. And then he would put it in his pocket and be like, ‘no,’ I am not going to take it from you and stuff like that.” Mariegrace asked for it back, but Ian instead ran. Ian fell to the ground. Mariegrace tried to grab the phone from him. He pushed her hands away from him, got up, and ran away with the telephone. She tried to follow him but did not know where he went. The mother of the girl who owned the phone called the police.
Davonna provided a different version of the event in her testimony. According to Davonna, Ian was an old family friend. Ian was talking to Davonna outside the youth center. He went to talk to Mariegrace. He “grabbed [Mariegrace] by the hand and was looking at the phone. [¶] And she was like, ‘give it back.’ But he was trying to put it in her pocket, and she was like, ‘no, just give it back.’ And he went to hand it back, and he started running. And he fell on the floor, and she tried to grab it.” He pushed her and ran away.
Defense Case
Nicole O., Ian’s mother, testified that she believed Ian was at work on October 16, 2006, from 3:00 p.m. to 6:00 p.m., although she was not sure. Kenneth P., a good friend of Ian, testified that he picked Ian up from work every weekday. He picked Ian up from work on October 16, 2006, at about 5:00 p.m. The high school is about three miles from Ian’s place of work. Mariegrace testified during the defense phase of the hearing that she did not remember when she went to the youth center that day. She estimated it was 4:15 p.m. when Ian took the phone from her.
DISCUSSION
I. Sufficiency of the Evidence of Robbery
Ian contends substantial evidence does not support the finding he committed robbery in violation of Penal Code section 211, because there was insufficient evidence of force or fear and intent to steal. Contrary to Ian’s argument, there is substantial evidence to support the trial court’s findings.
A. Standard of Review
We review the evidence in the light most favorable to the order of wardship. (In re George T. (2004) 33 Cal.4th 620, 630-631.) The standard of proof in juvenile proceedings is the same as in adult criminal trials.” (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)
In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review “the whole record in the light most favorable to the judgment . . . to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Barnwell (2007) 41 Cal.4th 1036, 1052.) The federal standard of review is to the same effect: under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after 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. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
B. Robbery
“Robbery is defined as the taking of personal property of some value, however slight, from a person or the person's immediate presence by means of force or fear, with the intent to permanently deprive the person of the property. [Citations.] To support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. [Citation.] ‘[I]f the intent arose only after the use of force against the victim, the taking will at most constitute a theft.’ [Citation.] The wrongful intent and the act of force or fear ‘must concur in the sense that the act must be motivated by the intent.’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 34 (Marshall).) The force or fear element of robbery may be directed either to the initial taking of the property or to its asportation. (See People v. Holt (1997) 15 Cal.4th 619, 670-671 (Holt).)
C. Evidence of Force or Fear
Ian contends that sufficient evidence does not support the finding of force or fear, because the amount of force used to gain possession of the cell phone or to escape with the phone was de minimis. Ian’s contention fails under the substantial evidence rule.
While “[t]he force required for robbery is more than ‘just the quantum of force which is necessary to accomplish the mere seizing of the property[,]’” (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, citing People v. Morales (1975) 49 Cal.App.3d 134, 139) or asportation of property, Ian used more force than necessary to escape with the phone. Ian had not reached a place of safety when he fell. Instead of simply moving the phone away from Mariegrace as she tried to grab it when he was on the ground, Ian pushed her hands away from him before running off with the phone. Once force is used, “the degree of force is immaterial.” (People v. Garcia, supra, 45 Cal.4th at p. 1246.) When Ian pushed away Mariegrace’s hands, he used sufficient force to support the robbery finding.
D. Evidence of Intent
Ian also contends there was no evidence of intent to permanently deprive Mariegrace of the phone either when he initially grabbed it or when he pushed away Mariegrace’s hands. There is no merit to this contention.
“A specific intent to steal [the] property . . . need not be directly proved but may be inferred from all of the circumstances of the case.” (People v. Hall (1967) 253 Cal.App.2d 1051, 1054.) Here, the juvenile court could reasonably infer that Ian had the specific intent to permanently deprive Mariegrace of the phone based upon his taking the phone and putting it in his pocket, his refusal to return it, his initial attempt to run away, as well as his subsequent escape with the phone after she demanded its return. The inference is strengthened by Ian’s act of pushing away Mariegrace’s hands as he lay on the ground, conduct clearly indicative of a specific intent to permanently deprive her of the phone. Running away with the phone after using force and after Mariegrace’s attempts to retrieve it also supports the finding of a specific intent to permanently deprive.
II. Pre-Dispositional Custody Credit
Ian contends that he was entitled to one day of pre-dispositional custody credit, for the portion of the day when he was taken into custody prior to being released to his mother upon signing a promise to appear. As Ian was not confined by the juvenile court, there was no obligation to determine his custody credits.
“A juvenile’s entitlement to predisposition custody credit is determined by Welfare and Institutions Code section 726. ([In re Eric J. (1979) 25 Cal.3d 522, 535].)” (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) Welfare and Institutions Code section 726, subdivision (c) requires the juvenile court to specify the maximum period of confinement “[i]f the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602 . . . .” If the minor is not removed from the physical custody of a parent or guardian, the juvenile court need not fix a maximum period of confinement, as section 726 does not apply. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574.) Because Ian was placed home on probation, without confinement, the juvenile court was not required to determine whether he was entitled to custody credits. If Ian is subsequently confined, on this petition or another petition, he will be entitled to custody credits, if any, at that time. (In re Emilio C., supra, 116 Cal.App.4th at pp. 1067-1068.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.