Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. JW066743
Lambden, J.
Michael R., a juvenile, appeals from the juvenile court’s judgment below, contending the court erred when it found after a contested jurisdictional hearing that he committed robbery and attempted robbery against a 12-year-old girl on a city bus. We affirm in part and reverse in part.
BACKGROUND
By amended petition, the District Attorney of the City and County of San Francisco alleged that Michael R. had committed felony first degree robbery in violation of Penal Code section 212.5, subdivision (a), and felony attempted first degree robbery in violation of Penal Code section 664. A contested hearing was subsequently held.
Relevant Witnesses for the People
Two girls testified for the People. Y.L., a 12-year-old middle school student, testified that she was standing at the door in the back of the No. 15 bus in San Francisco about 3:40 p.m. on October 30, 2006. She had an iPod and ear pieces in her jacket pocket. Michael R. was on the bus with “many boys” and “maybe one girl.”
On direct examination, Y.L., when asked to identify “the man who took your iPod,” identified Michael R. Speaking without the aid of any translator, she said that at the time he took her iPod, she “was so fear.” She was then asked what happened when Michael R. took her iPod:
“A. I say, give me back, but he said, I don’t have it. And I walk to his friend, give me back. His friend said, no.
“Q. Were you crying then?
“A. Yeah.
“Q. Did you get your iPod back?
“A. No.”
She testified that Michael R. got off the bus with his friends without returning her iPod.
On cross-examination, with the help of the victim advocate acting as a translator, Y.L. testified that she had previously seen Michael R. in her middle school cafeteria. She testified that she was standing and Michael R. was sitting when he saw the wire for her ear pieces in her front coat pocket. Her testimony continued as follows:
“Q. Okay. So he just reached over and grabbed the iPod. Did he grab it by the wire, do you know, or did he actually put his hand into your pocket and take it out?
“A. Okay. At the beginning, he took my wire, but then because the wire of iPod are separate and then he put his hand in my pocket and took the iPod later.
“Q. Okay. So he just reached into your pocket, took the iPod out?
“A. Yes.
“Q. And you asked—you asked him to return it to you and he would not give it back, correct?
“A. Yes.
S.C., Y.L.’s cousin, testified that she attended the same middle school as Y.L. Y.L. and she were in the back of the No. 15 bus in Chinatown when “the Black guy took [Y.L.’s] iPod from her pocket.” S.C. “asked him to give it back to [Y.L.] but he didn’t answer, and he passed it around.” Y.L. asked him to give it back, and he “said he did and then he got off the bus.” S.C. also testified that she told him to give the iPod back to Y.L., and he said he did not have it, but after saying so, “he pass it around,” and then “had another Black guy to tell him to give it back to my cousin. And then he said he didn’t have it, and he got off the bus.”
S.C. identified Michael R. as the person who took Y.L.’s iPod, and testified she had previously seen him in her physical education class at school and in the school cafeteria.
Witnesses for the Defense
Michael R. and his mother testified on his behalf. His mother testified that, on the day in question, Michael R. arrived home at 2:50 p.m., and left about 30 minutes later, returning home by his curfew at 5:00 p.m. She did not know where he went.
Michael R. testified that he was 13 years old, attended the same middle school as Y.L. and S.C., and that he had seen the second girl who had testified, meaning S.C., in his physical education class at school. He went home after school on the day in question on the No. 22 Fillmore bus, arriving home around 2:55 or 3:00 p.m. He had a snack, watched television, and took “a little nap,” then went around the corner and talked to his friends, returning home around 4:45 p.m. He denied being on the No. 15 bus that afternoon or taking anyone’s iPod. Michael R. also concedes in his appellate papers that he is heavier than the victim.
The People contend in their appellate papers that Y.L. was five feet, one inch tall and weighed 85 pounds, while Michael R. was five feet, two inches tall and weighed 225 pounds. However, it does not appear that these facts were actually admitted into evidence at the jurisdictional hearing. S.C. testified that Michael R. was shorter than her and “kind of fat.”
The Court’s Rulings
At the conclusion of the contested jurisdictional hearing, the juvenile court sustained the petition in its entirety. The court noted there had been testimony that Y.L. was fearful at the time of the incident and that testimony about Y.L.’s demeanor after the taking of the iPod also indicated fear. The court indicated that disposition for the two counts would run together pursuant to the guidelines of Penal Code section 654, declared Michael R. to be a ward of the court, placed him in the custody of his mother under the supervision of the probation department, and imposed certain fines and other requirements.
Michael R. subsequently filed a timely notice of appeal. Along with his initial opening and reply briefs to this court, Michael R. filed, with our consent, a supplemental opening brief, to which the People responded.
DISCUSSION
I. The Use of Fear
Michael R. first argues we should reverse the court’s findings that he committed robbery and attempted robbery because the People failed to establish he committed these acts by means of force or fear. He is incorrect.
A. The Element of “Fear” in Robbery
Under California law, a 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.) “The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim’s person or immediate presence, and (2) accomplished by the use of force or fear.” (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) Thus, “[w]here the element of force or fear is absent, a taking from the person is only theft; although by virtue of Penal Code section 487 it constitutes grand theft regardless of the value of the property.” (People v. Morales (1975) 49 Cal.App.3d 134, 139; see also Pen. Code, § 487, subd. (c).) “It is the use of force or fear which distinguishes robbery from grand theft from the person.” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.)
The “fear” element may be, “[t]he fear of an unlawful injury to the person or property of the person robbed” or “fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.” (Pen. Code, § 212, subds. 1, 2.) Intimidation is “a synonym for ‘fear.’ ” (People v. Davison (1995) 32 Cal.App.4th 206, 213 (Davison).) Intimidation does not require words or touching and “ ‘ “[can] be established by proof of conduct, words, or circumstances reasonably calculated to produce fear.” ’ ” (People v. Brew (1991) 2 Cal.App.4th 99, 104.)
In order to establish the existence of fear, it must be shown that the victim was actually afraid, and that the fear allowed the robbery to be accomplished. (Davison, supra, 32 Cal.App.4th at p. 212.) The victim does not need to explicitly testify that he or she was afraid in order to show the use of fear in a robbery. (People v. Mungia, supra, 234 Cal.App.3d at p. 1709, fn. 2.) However, “there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.” (Ibid.) Evidence that a perpetrator’s acts produce fear in an individual person is probative of whether the acts are objectively intimidating. (Davison, supra, 32 Cal.App.4th at p. 216.)
A theft accomplished without the use of force or fear becomes a robbery if force or fear is used against the person with a possessory interest in the stolen property during asportation. (People v. Jenkins (2006) 140 Cal.App.4th 805, 811.) “A theft or robbery remains in progress until the perpetrator has reached a place of temporary safety. [Citation.] The scene of the crime is not such a location, at least as long as the victim remains at hand. [Citations.] 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. [Citation.] . . . [¶] It follows from these principles . . . that 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 victim’s fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.” (People v. Flynn (2000) 77 Cal.App.4th 766, 772 (Flynn).)
B. The Appellate Standard of Review
We review the sufficiency of the evidence pursuant to the same standard of review as that used for a matter involving an adult criminal defendant. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Thus, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] ‘. . . [I]t is the jury, not the appellate court [that] must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.] ‘ “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” ’ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
“The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366; Evid. Code, § 411.) Generally, we do not question a trial court’s judgments regarding witness credibility. (People v. Ramos (2004) 34 Cal.4th 494, 505.)
C. Analysis
With these legal standards in mind, we have reviewed the record to determine if there is substantial evidence that Michael R. used fear in the course of taking Y.L.’s property. We conclude that there is such evidence.
There are no contentions that Michael R. used force to take the iPod from Y.L.
According to Y.L., Michael R., who was heavier than she was, reached into her front pocket one or two times (this point is unclear from her testimony), without any effort to hide his action, while he was in the company of “many boys” and “maybe one girl.” This act alone clearly frightened Y.L., who testified that she “was so fear.” Her testimony that she was crying indicates that she was visibly upset as well. Nonetheless, when she and S.C. told Michael R. to return the iPod, he continued his intimidating conduct. According to S.C., when she asked him to give the iPod back, he denied having the iPod and then proceeded to pass it around to his friends in front of the two girls before getting off the bus. It is reasonable to conclude that Michael R. intended to intimidate Y.L. and S.C. by this conduct, which made clear both his defiance and that he was in the company of friends willing to assist him, and that he engaged in this conduct at least in part to prevent Y.L. and S.C. from taking further action before he was able to depart the bus. Thus we have no doubt that Michael R. used fear and intimidation to take the iPod from Y.L.
Michael R. contends that Y.L.’s testimony that she “was so fear” was “a vague and nonspecific . . . response” which “gave no sense of when she felt the fear or whether she was distinguishing fear from the sense of violation and loss occasioned by a theft.” We disagree. Her testimony was in response to a question that asked her how she felt “when that happened,” which plainly referred to when her iPod was taken. Y.L.’s response made clear that she felt fear at the time, regardless of her phrasing.
Michael R. also argues that the iPod was taken without any threats or intimidation, as the thief on the bus was sitting down, and it is not clear that Y.L. understood that a theft was occurring until it was accomplished. We disagree. Y.L. testified that Michael R. reached into her pocket first for her ear pieces and then for her iPod. It is clear from the testimony that she was aware at the time of his actions. Moreover, Michael R., whether or not he was sitting down, was heavier than Y.L., and engaged intimidating behavior after taking the iPod.
Michael R. does not directly address his actions on the bus after he took the iPod. Instead, he argues that the majority of cases regarding the use of fear in the asportation of property “have involved the use of unmistakable violence to retain the property originally obtained through simple theft.” He contends that “[a]pplication of this rule to the use of fear requires considerably more aggressive behavior by a defendant than that alleged here.”
Both the People and Michael R. contend that Flynn, supra, 77 Cal.App.4th 766, supports their position. Flynn, a member of a street gang, was standing on a street corner in Los Angeles with five other men, all but one of whom appeared to the victim to be gang members. (Id. at p. 769.) As the victim, a 36-year-old woman who was smaller than Flynn, walked by the group, Flynn grabbed her bag from her. (Id. at pp. 769-770.) The victim reached for the bag, but Flynn kept pulling it back, then removed a gun and money from it and showed it to his companions. (Id. at p. 770.) He screamed at the victim to get away from his car as she backed away from him, and she ran home. (Ibid.) At trial, the prosecutor argued the incident involved a robbery because of Flynn’s use of fear to prevent the victim from reclaiming her bag. (Ibid.)
Flynn appealed after his robbery conviction, arguing that any fear expressed by the victim was not created by the defendant to facilitate the robbery. (Flynn, supra, 77 Cal.App.4th at p. 771.) The Second Appellate District disagreed, stating in relevant part about the facts and circumstances of the incident: “Although [Flynn] did nothing designed to instill fear prior to the taking, he chose the moment and location of the crime knowing the likely effect on the lone, female victim. [Flynn] also chose to remain at the scene. [Flynn] is taller and bigger than the victim. Although in her own neighborhood, the victim was outnumbered six to one by a group of male gang members located in their own territory. [Flynn’s] brazen behavior once he was armed with the stolen gun revealed his confidence in the powerlessness of the victim. . . . [¶] On these facts, [Flynn] used fear to accomplish the robbery just as surely as if he had verbalized the threats inherent in the surrounding circumstances. . . . To the extent it was the victim’s perceptions of her circumstances that directly caused the fear, those perceptions were reasonable and a reasonable jury could have found that [Flynn] took advantage of them in a calculated fashion.” (Id. at pp. 772-773.)
Michael R. argues Flynn supports his position because Flynn’s flourishing of the gun and his screaming at the victim were intimidating and menacing actions which established fear, while here, “[t]here were no acts of intimidation, no menacing movements, and no threatening facial expressions.” He notes that the thief on the bus remained seated while the victim stood, and concludes that “[t]he thief’s passive refusal to return the purloined item did not constitute the use of fear.”
The People, on the other hand, argue Flynn, supra, 77 Cal.App.4th 766, is on point because it involved a victim smaller than the defendant, and a defendant accompanied by others who stayed on the scene, ignored the victim’s entreaties that the property be returned, and showed off the stolen property to his friends.
As our summary of the facts and circumstances of this case indicates, we agree with the People that there are major similarities between the circumstances here and those found in Flynn. The rules regarding the use of fear take into account the actual facts and circumstances of each case. There is no requirement that a weapon be displayed or words be stated. (See People v. Brew, supra, 2 Cal.App.4th at p. 104.) Again, “[s]o long as the perpetrator uses the victim’s fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator’s specific words or actions designed to frighten, or by the circumstances surrounding the taking itself.” (Flynn, supra, 77 Cal.App.4th at p. 772.) There is substantial evidence that Michael R.’s taking of the iPod in a brazen fashion frightened Y.L., and that he used and added to this fear when he denied taking the iPod as he passed it around to his friends in front of her face. His actions, far from constituting a “passive refusal to return the purloined item,” were an intimidating course of conduct that enabled Michael R. to take and keep the iPod until he departed the bus. This is especially true when we also consider that he was heavier than Y.L., and that she was only 12 years old. Accordingly, we find no basis in Michael R.’s arguments that there is insufficient evidence of fear to uphold the juvenile court’s findings of robbery and attempted robbery.
II. The Attempted Robbery Count
In his initial opening brief, Michael R. argues that the charge of attempted robbery must be dismissed due to the failure of the People to present any evidence that he made an unsuccessful attempt to remove personal property from Y.L., which the court indicated at the dispositional hearing were Y.L.’s ear pieces. The People challenged Michael R.’s argument in their reply brief. We need not address this issue, however, because of Michael R.’s subsequent argument in his supplemental opening brief, to which the People agree.
In his supplemental opening brief, Michael R. argues that he should not have been found to have committed attempted robbery because his actions were all a part of a single, continuous theft transaction. As Michael R. points out, attempted robbery is a lesser included offense of robbery. (People v. Calpito (1970) 9 Cal.App.3d 212, 220.) The People concede the issue, stating “[s]ince the robbery in this case was a continuous transaction, this attempted theft of [Y.L.’s ear pieces] was included within the robbery of her iPod.”
We agree with the parties that Michael R. engaged in a single transaction against Y.L., and should not have been found to have committed a separate count of attempted robbery of her ear pieces as a result. (See People v. Gamble (1994) 22 Cal.App.4th 446, 451 [conviction for theft and robbery in error because “the taking of multiple items . . . in a continuous theft transaction constitutes only one offense”]; People v. Ortega (1998) 19 Cal.4th 686, 699 [affirming “the well-established rule that a defendant may not be convicted of both robbery and grand theft based upon the same conduct”]; People v. Marquez (2000) 78 Cal.App.4th 1302, 1308-1309 [court erred in finding two robberies were committed in the course of single robbery transaction].)
DISPOSITION
We affirm the juvenile court’s judgment regarding count 1, which alleged Michael R. committed a robbery, and reverse with regard to count 2, which alleged he committed an attempted robbery.
We concur: Haerle, Acting P.J., Richman, J.