Opinion
C043063.
7-30-2003
In re JAMES G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JAMES G., Defendant and Appellant.
Minor James G. appeals from a judgment and disposition order continuing him as a ward of the juvenile court under Welfare and Institutions Code section 602, following his commission of a robbery. (Pen. Code, § 211.) Pursuant to an aggregate petition including earlier sustained petitions, the juvenile court continued the minor on probation on condition he serve 50 days in juvenile hall. (Welf. & Inst. Code, § 726.)
On appeal the minor contends (1) the evidence is insufficient to sustain the robbery allegation, and (2) the evidence is sufficient only to support an attempted robbery finding, requiring a modification of the dispositional order. We disagree and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We recite the facts in favor of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.)
Fifteen-year-old J. C. was on his bicycle riding home. The minor, whom he had never seen before, stepped out in front of him, and asked if he could ride the bike to the minimart. When J. C. refused, the minor asked him to give him a "boost" to the minimart. The minor blocked his path. J. C. again refused, whereupon the minor grabbed J. C.s right leg and threw it over the bike, causing J. C. to fall off. J. C. testified the minor then "proceeded to take off." In response to a question concerning whether the minor "started to ride away," J. C. stated he then hit the minor in the head and pushed the bicycle down. After the minor hit J. C. back, J. C. told the minor to stay away from his bike. J. C. rode home.
Stockton Police Officer Berg confirmed J. C.s statements to him that the minor sought to get the bicycle from J. C., pushed J. C. off the bike, and got control of it. The minor himself admitted to Officer Berg that he had pushed J. C. off the bike and had control of it.
The minors friend D. L. testified he just observed a fistfight between the minor and J. C., with J. C. standing on the bicycle or the bicycle on the ground. D. L. saw the minor touch the bicycle, but did not get on it.
The minor testified he became involved in a physical altercation with J. C., and did not attempt to or intend to take the bicycle, although J. C. told him he "was looking . . . like" he was going to take his bike. The minors response was "Well, punk, if I wanted to take your bike, I would have took it." The minor admitted he tried to push the victim off his bicycle, and had his hands on the handlebars and was "shaking it left and right."
DISCUSSION
The minor argues there was insufficient evidence of the requisite element of "asportation" of the bicycle, because the crime of robbery requires that a "taking" of property include both gaining possession of the property and asporting it or carrying it away. We conclude that while the record does not include precise evidence concerning how much movement was involved before the victim regained his bicycle, we cannot say that the juvenile courts finding is unsupported by substantial evidence.
In determining whether the evidence was sufficient to sustain a conviction, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence which is reasonable, credible and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) "Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.]" (People v. Ochoa, supra, 6 Cal.4th 1199, 1206.) Penal Code section 211 defines robbery:
"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." (Pen. Code, § 211.)
People v. Cooper (1991) 53 Cal.3d 1158, 1165, 282 Cal. Rptr. 450, 811 P.2d 742, explains the requirement that the property be subject to some "slight movement" in order to establish the element of "taking." No formulaic distance or time frame exists. "`"Asportation . . . may be fulfilled by wrongfully . . . removing property from the . . . control of the owner, . . . even though the property may be retained by the thief but a moment." [Citation.] (People v. Pruitt (1969) 269 Cal. App. 2d 501, 506, 75 Cal. Rptr. 125, quoting People v. Quiel (1945) 68 Cal. App. 2d 674, 679, 157 P.2d 446.)" (People v. Pham (1993) 15 Cal.App.4th 61, 67.) The movement involved can be interrupted by the victims physical struggle with the robber. (Id. at p. 65; compare, People v. Hill (1998) 17 Cal.4th 800, 852, 952 P.2d 673 [taking of purse, rifling contents and returning purse was sufficient movement].) The real question is whether the thief has control of the property at some point. In this case, the thief did.
The record clearly shows that there was an initial encounter between the two minors, involving words about the bicycle. The victim testified he lost control of his property; the minor admitted grabbing the handlebars of the bicycle. The minors testimony was impeached by Officer Bergs statement that the minor admitted to him he had pushed J. C. off the bicycle. It is irrelevant whether the victim later regained control of the bicycle.
The trier of fact was entitled to credit the testimony of the victim that the minor pushed him off the bike and "[took] off." When asked a question concerning whether the minor "started to ride away," the victim stated he then hit him in the head and "pushed [him] down." A rational trier of fact could find the slight movement necessary to establish a taking of J. C.s property, however brief. Substantial evidence supports the minors adjudication of robbery.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., ROBIE, J. --------------- Notes: Because we disagree with defendants argument concerning the sufficiency of the evidence and decline to reduce the charge to attempted robbery, we need not discuss his second argument seeking a reduction of the allegation to an attempt.