Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JV32980
RUSHING, P.J.
The minor, Rodrigo E. appeals a judgment entered pursuant to Welfare and Institutions Code section 602. Following a contested jurisdiction hearing, the court sustained a two count petition alleging the minor committed second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)), and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The minor asserts on appeal that the evidence was insufficient to support the charge of second degree robbery.
Statement of the Facts and Case
In May 2007, the victim, a 12-year-old boy, was skateboarding near his house in San Jose when a group of seven or eight teenage boys, one of whom was the minor, began chasing him. When the boys caught up with the victim, they surrounded him and asked if he had any money. In response, the victim pulled his pockets out and showed the boys he did not have any money. Another boy (not the minor) asked the victim how much his skateboard cost and the victim responded “very little.” Four or five of the boys started pushing the victim. A women named Marisol Bensen and her children then walked up and the victim told her when asked that he was alright.
After Ms. Bensen walked away, the victim picked up his skateboard and one of the boys (not the minor) grabbed onto the skateboard and began to pull it. The victim continued to hold onto the skateboard, and the boy was never able to take it out of the victim’s hands.
The victim turned around, and the minor punched him in the face, knocking the victim down. The minor then kicked the victim in the face. After this, the victim got up and ran away.
A petition was filed in May 2007 alleging one count of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)), and one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).
At trial, the prosecution’s theory of the minor’s liability for the robbery was as an aider and abettor. With regard to the taking, the victim testified that no one ever took the skateboard out of his hands. Ms. Bensen testified that she did not remember seeing anyone take the skateboard out of the victim’s hands. Officer Cruzado, who investigated the incident, testified with regard to Ms. Bensen’s statement about the skateboard: “I believe she said they were actually taking away.” At the conclusion of the contested jurisdiction hearing, the court sustained both counts in the petition.
Following a dispositional hearing, the minor was adjudged a ward of the court, and returned to the custody of his parents, to be continued on probation with a maximum period of confinement of six years.
Discussion
On appeal, the minor asserts the evidence was insufficient to support the court’s true finding on the robbery charge. Specifically, the minor argues there was insufficient evidence of the element of taking, and therefore, the finding of true was in error.
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is 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.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) The same standard of review applies to juvenile cases. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
“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 of robbery requires a particular physical act, a taking. “The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1165, emphasis added.)
Here, there was conflicting evidence presented on whether the skateboard was actually taken from the victim. The victim testified that one of the boys (not the minor) pulled on the skateboard, but never managed to get it out of the victim’s hands. The only third-party witness to the incident was Marisol Bensen, who testified at trial that she did not remember seeing anyone actually take the skateboard from the victim, nor did she remember telling the police officer that she had seen the skateboard being taken. Officer Cruzado, on the other hand, testified that he “believe[d] [Ms. Bensen] said they were actually taking away.”
Reviewing the entire record, it appears there was not sufficient evidence to demonstrate the element of taking to support a true finding on the robbery charge. Indeed, the victim himself negated the element by his testimony that the boy never managed to take the skateboard from him. In addition, Ms. Bensen testified that she did not remember seeing anyone take the skateboard from the victim. The only testimony that indicated the skateboard was taken was from Officer Cruzado, who was not present during the incident and did not witness it. The statement Officer Cruzado did make at trial was that he “believe[d]” Ms. Bensen said to him that the skateboard was taken.
In light of the substantial evidence to the contrary in the form of the victim’s and the witness’ accounts of the incident, Officer Cruzado’s testimony was not sufficient to sustain the conviction for robbery. There was insufficient evidence of the element of taking, and therefore, the court’s true finding of the robbery charge was error.
Because the juvenile court could not find the allegations of robbery true against the minor, we next inquire whether based on the evidence presented, the court could have found true any lesser included offense. “ ‘When the record reveals that the defendant cannot be held for the crimes for which he was convicted and sentenced but that he may properly be convicted of the crime charged but of a lesser degree or of a lesser included offense, [the appellate] court has authority to reduce the judgment accordingly.’ ” (People v. Jerome (1984) 160 Cal.App.3d 1087, 1097.)
Penal Code section 1260 empowers the appellate court to “reverse, affirm, or modify a judgment . . ., or reduce the degree of the offense or attempted offense or the punishment imposed . . . .” Thus, an appellate court is not restricted to the remedies of affirming or reversing a judgment of conviction. Where the reversible error goes only to the issue of whether the greater offense may stand, the appellate court may reduce the conviction to the lesser offense and affirm the judgment as modified, thereby averting the necessity for a retrial. (People v. Alexander (1983) 140 Cal.App.3d 647, 666.)
Here the evidence was sufficient to support a true finding of attempted robbery, a lesser included offense to robbery. Therefore, we shall modify the judgment accordingly.
Disposition
The true finding on the charge of second degree robbery pursuant Penal Code section 211/212.5, subdivision (c), is modified to a true finding on the lesser charge of attempted second degree robbery pursuant to Penal Code sections 664 and 211/212.5, subdivision (c). As modified, the judgment is affirmed. The cause is remanded to the trial court with directions to conduct a new disposition hearing in light of the modified judgment.
WE CONCUR: PREMO, J., ELIA, J.