Opinion
B189565
12-5-2006
In re JOSE G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE G., Defendant and Appellant.
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
Jose G. appeals from the juvenile courts order continuing wardship entered following the courts finding he had committed second degree robbery. (Welf. & Inst. Code, § 602; Pen. Code, § 211.) Jose G. contends the evidence is insufficient to support the robbery finding. We disagree and affirm the courts order.
FACTUAL AND PROCEDURAL BACKGROUND
Jurisdiction Hearing
Evidence introduced at the jurisdiction hearing established that Edwin Lopez (then 14 years old) was on the street when Jose G. (then 16 years old) approached and called out that they were possibly acquainted. Lopez disagreed and looked away, enabling Jose G. to snatch Lopezs necklace, breaking the clasp. Lopez was unaware of the theft until he saw Jose G. backing away with the necklace. Lopez started towards Jose G. to recover his necklace, but he stopped when Jose G. said, "Bitch this is my necklace, man," and put his hands under his shirt, near his waist in a threatening manner. Lopez feared Jose G. was reaching for a gun. Jose G. then fled, and police were called.
Following his arrest, Jose G. acknowledged to police he had told Lopez they may be acquainted, but Lopez "got smart" and "tried to slap him" so Jose G. "snatched the chain and walked away." Jose G. was not carrying a weapon when he was arrested.
Jose G. stipulated that he had waived his constitutional rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) before speaking to police.
After the Peoples presentation of evidence, Jose G. moved to dismiss the petition (Welf. & Inst. Code, § 701.1) on the ground there was no evidence he took the necklace by force or fear. The motion was denied.
Jose G. neither testified at the jurisdiction hearing nor presented any other evidence on his behalf.
The juvenile court sustained the allegation in the wardship petition, again rejecting Jose G.s argument there was no proof the necklace had been stolen by force or fear.
Disposition Hearing
Jose G. was ordered to remain a ward of the juvenile court and was placed in a six-month community camp program. The court calculated the maximum theoretical period of confinement as six years.
DISCUSSION
Jose G. contends there was insufficient evidence of force or fear to establish the crime was robbery rather than the necessarily included lesser offense of grand theft from the person. (Pen. Code, § 487, subd. (c).)
The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In either case "[w]e review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find [him] guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must uphold the finding "unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [it]. [Citation.]" (Ibid.)
"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. [Citation.]" (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707; People v. Flynn (2000) 77 Cal.App.4th 766, 771; People v. Morales (1975) 49 Cal.App.3d 134, 139; Pen. Code, § 211.) Thus, "`to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. [Citation.]" (People v. Flynn, supra, at p. 771.) Whether force or fear existed is a question for the trier of fact. (People v. Mungia, supra, at p. 1707.) Where the element of force or fear is absent, a taking from the person is grand theft rather than robbery. (People v. Morales, supra, at p. 139.)
If the robbery is based upon the use of force, the force employed must be more than "just that quantum of force which is necessary to accomplish the mere seizing of the property." (People v. Morales, supra, 49 Cal.App.3d at p. 139; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.) However, the force or fear required by section 211 is not synonymous with a physical corporal assault, and resistance by the victim is not a necessary element. (People v. Mungia, supra, at p. 1707.)
If the robbery is accomplished by means of fear, there must be evidence from which it can be inferred the victim was in fact afraid, and such fear either (1) initially allowed the crime to be accomplished (People v. Mungia, supra, 234 Cal.App.3d at p. 1709, fn. 2), or (2) enabled the robber to retain the property after the initial taking. (People v. Flynn, supra, 77 Cal.App.4th at p. 772.) The fear need not be induced by an express threat (id. at p. 771), and the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking. (People v. Mungia, supra, at p. 1709, fn. 2.)
Jose G. appears to be correct there was insufficient evidence of force or fear during the initial taking. While there was ample evidence the victim was afraid immediately after the necklace was taken, there was little evidence he was afraid prior to the taking, such that the initial taking was accomplished by means of fear. (SeePeople v. Mungia, supra, 234 Cal.App.3d at p. 1709, fn. 2 [insufficient evidence of fear where the victim was unaware of the defendants approach before he snatched her purse from behind].) Nor can we say there was evidence of any force beyond that required to seize the property during the initial taking; the evidence showed Jose G. simply pulled the necklace off Lopezs neck.
However, there was sufficient evidence to establish the carrying away was accomplished by means of fear. "`Gaining possession or . . . carrying away includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. [Citations.]" (People v. Flynn, supra, 77 Cal.App.4th at p. 771; see also People v. Holt (1997) 15 Cal.4th 619, 671 [robbery may be accomplished by use of force or fear during the asportation element of the offense].) "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. Flynn, supra, at p. 772.) Thus, "the willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery. So long as the perpetrator uses the victims fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrators specific words or actions designed to frighten, or by the circumstances surrounding the taking itself." (Ibid.)
Here, Jose G. did nothing to instill fear prior to the taking. However, he chose to remain at the scene, brazenly claiming ownership of the necklace and engaging in threatening conduct when Lopez attempted to regain his property. Jose G. asserts Lopezs purported fear in these circumstances was either unreasonable or nonexistent, arguing the evidence suggests his hands were at his waist to pull up his pants, and the approach by Lopez after the theft shows he was not afraid. In making these arguments, Jose G. is simply inviting us to reweigh the evidence; that, of course, is not the function of an appellate court. (People v. Culver (1973) 10 Cal.3d 542, 548; In re E.L.B. (1985) 172 Cal.App.3d 780, 788.) Only if a witnesss testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions, will an appellate court reject the statements given by a witness who has been believed by a trial court. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668.) Lopezs testimony is not physically impossible or incredible. The robbery finding is supported by substantial evidence Jose G. took the necklace by fear.
Jose G. makes much of Lopezs need to pull up his own baggy pants during his in-court demonstration of the manner in which Jose G. appeared to be reaching for a gun.
DISPOSITION
The order is affirmed.
We concur:
JOHNSON, Acting P.J.
WOODS, J.