Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. John H. Ing, Commissioner. L.A.Super.Ct. No. NJ 22204
Courtney M. Selan, 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, Assistant Attorney General, Lawrence M. Daniels and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
M.F. appeals from a sustained petition finding that she came under the provisions of Welfare and Institutions Code section 602. The court found that M.F. committed second-degree robbery in violation of Penal Code section 211. M.F. contends the evidence was insufficient to establish robbery because there was no showing that she accomplished the alleged taking by force or fear. We disagree. She also contends, the Attorney General concedes, and we agree, that the court erred by declaring a maximum period of confinement. We modify the disposition to delete the maximum period of confinement. In all other respects, we affirm.
On the same day, the court also sustained a second petition alleging that M.F., in a separate incident, committed battery in violation of Penal Code section 242 for the benefit of a street gang pursuant to Penal Code section 186.22, subdivision (d). Although M.F. filed notices of appeal regarding both petitions, she raises no arguments on appeal challenging the court’s findings regarding the second petition, so we will not address that petition or its allegations, except regarding the term of maximum confinement.
All undesignated code section references are to the Penal Code.
BACKGROUND
On March 25, 2007, a store loss-prevention officer saw M.F. put three packages of shoelaces and one package of pens in her purse as her brother stood nearby. She proceeded to the cash register and paid for other items but did not pay for the shoelaces and pens hidden in her purse. The officer followed M.F. and her brother outside, identified himself as a loss-prevention officer, showed them his badge, and requested that M.F. go back inside the store. M.F. and her brother responded with profanities and continued walking. After the officer pulled out handcuffs and threatened to handcuff M.F., she and her brother returned to the store. The officer led them to an employee break room, where he told M.F. to give him the shoelaces and pens and show him her identification. M.F. resisted, and when the officer tried to handcuff her, she pushed away his hands. M.F.’s brother also repeatedly slapped the officer’s hands out of the way. Viewing the brother as the greater physical threat, the officer finally put the brother in a headlock and wrestled him to the floor of the break room. The brother scratched at the officer’s face and arms. M.F. grabbed a long fluorescent light bulb and swung it at the officer’s head. Another store security officer tried to grab M.F.’s hands. When he wrestled her to the floor, she scratched his neck. The officers handcuffed M.F. and her brother. The first officer then removed the shoelaces and pens from M.F.’s purse.
The first officer testified that he heard something break but did not feel anything. Another officer present in the break room testified that he did not see whether M.F. actually hit the first officer. The fluorescent bulb was found broken.
On March 27, 2007, the Los Angeles County District Attorney filed a Welfare and Institutions Code section 602 petition alleging that M.F., 14 years old, had committed second-degree robbery under section 211 when she “did unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of [the first store security officer].” At a trial in April 2007, the prosecutor presented testimony from both security officers involved in the incident, among others. M.F. presented no evidence regarding the alleged robbery.
M.F. testified regarding the alleged battery in the second petition.
The court found the robbery count in the petition to be true beyond a reasonable doubt and declared M.F. a ward of the court. In its disposition, the court placed M.F. on probation in her parents’ home and imposed various probation conditions and restitution fees. The court also declared a maximum confinement period of five years and eight months and credited M.F. with 27 days in custody. M.F. timely appealed.
The length of the maximum confinement period is based in part upon the court’s finding true the allegations in the second petition.
DISCUSSION
I. Insufficient Evidence
M.F. contends the prosecution failed to establish one of the elements of robbery under section 211 because no evidence showed that she accomplished the taking of the shoelaces and pens by force or fear. We disagree.
We apply the substantial evidence standard of review. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Thus, we review the entire record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the alleged crime beyond a reasonable doubt. (Ibid.) We presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence, and if the circumstances reasonably justify the trier of fact’s findings as to each element of the charged offense, we must affirm even if the circumstances and evidence would support a contrary finding. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Among the other elements of robbery, the prosecution must prove that the taking was “accomplished by means of force or fear.” (§ 211.) “Under California law, a theft accomplished without the use of force or fear becomes robbery if force or fear is used during asportation. [Citation.]” (People v. Jenkins (2006) 140 Cal.App.4th 805, 811.) “[A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property[.]” (People v. Estes (1983) 147 Cal.App.3d 23, 27.) The force or fear must be used against a person who has a possessory interest in the stolen property to transform theft into robbery. (People v. Jenkins, supra, 140 Cal.App.4th at p. 811.) A store security guard, as the agent of his employer, has constructive possession of the store’s merchandise. (People v. Estes, supra, 147 Cal.App.3d at p. 27.) Even a temporary forcible prevention of the victim from regaining his property suffices to establish robbery. (People v. Pham (15 Cal.App.4th 61, 66.) The force required for robbery is more than just the quantum of force necessary to physically take the property, but even a slight push is sufficient. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fns. 2 & 3; see also People v. Jones (1992) 2 Cal.App.4th 867, 871 [in establishing robbery by force, “[t]he degree of force is immaterial.”].)
M.F. contends that because she and her brother’s scuffling with the security guards took place after the taking and after their apprehension, their struggles were not associated with the taking, which was already thwarted, and could only have been acts in defense of themselves and each other. The crime of robbery, however, continues while the person entitled to possession attempts to regain the property before the perpetrator reaches a place of relative safety. (See People v. Estes, supra, 147 Cal.App.3d at p. 28.) Here, M.F. assaulted the security officer (a person entitled to possession of the property) in his attempt to retrieve the property before they had reached a place of safety. That the security officer felt no fear of M.F. is irrelevant; section 211 requires force or fear, not both. M.F. also argues that the only reasonable inference is that their struggles were defensive measures only to prevent her from being handcuffed and not intended to prevent retrieval of the property. But even assuming that their intent in using force is relevant and that the proposed inference is reasonable, that is not the only reasonable inference a factfinder could draw from the behavior. Another reasonable inference is that M.F. and her brother did not want the items removed from M.F.’s purse because finding those items in her purse would provide strong evidence of guilt.
II. Maximum Confinement Period
M.F. maintains that when a juvenile delinquent is placed in her home on probation, the court has no discretion to set a maximum confinement period because no period of confinement was imposed (see In re Ali A. (2006) 139 Cal.App.4th 569, 573-574), and that accordingly, the court erred when it declared a maximum confinement period of five years and eight months. We agree.
Although the Attorney General points out that “the maximum term of confinement need not be stricken because it has no legal effect” (see In re Ali A., supra, 139 Cal.App.4th at pp. 573-574), we see no reason not to correct the error to ensure that it has no inadvertent future consequences.
DISPOSITION
The disposition order is modified in the following respect: the maximum confinement period of five years and eight months that is stated in the minute order of April 20, 2007 is deleted. As modified, the order is affirmed. The trial court is directed to prepare a corrected abstract of the disposition and forward a certified copy of the minute order to the Los Angeles County Probation Department.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)