Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DL029975, Frederick Aguirre, Judge and Stephen Biskar, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Aronson, J., and Ikola, J.
S.S. was declared a ward of the Juvenile Court after a contested jurisdictional hearing where the court found the allegation of second degree robbery true beyond a reasonable doubt. On appeal, S.S. contends the evidence in the record is insufficient to sustain the true finding by the court. We disagree and affirm the true finding of the petition and the order declaring S.S. to be a ward of the Juvenile Court.
FACTS
The manager of a drug store testified that when S.S. entered the store, he asked about the location of energy drinks inside the store. Although the manager advised S.S. that the energy drinks were along the back wall, he instead went to the beer display that was next to the door, grabbed two 18-pack cases of beer, and proceeded to walk quickly out of the store to a car in the parking lot. The store manager testified that she quickly followed S. S. out the store but stopped when he “turned around and he swung a case of beer at [her]” and “said something along the lines of like, ‘fuck you, bitch.’” According to the store manager, when S.S. swung the case of beer at her, the cardboard box holding the beer cans broke open and beer cans flew out and hit her in the leg. Unfortunately for S.S., he either tripped on the loose beer cans or on his own feet and fell, landing on top of the other cardboard box of beer which broke open underneath him. According to the store manager, a person who had been waiting in the car got out and helped S.S. retrieve the beer cans on the ground and placed them inside the car before driving away.
A witness sitting in her car at the time of the offense testified she saw S.S. run out of the store followed by the store manager who was also running and “telling [S.S.] to stop.” According to the witness in the car, when S.S. fell to the ground, he threw beer cans at the store manager and said, “bitch. Fuck you.” The witness testified that as the incident occurred, she called 9-1-1 from her cell phone and when asked, the witness testified that she did not see S.S. swing a case of beer at the manager.
Once S.S. was detained, he was interviewed by a law enforcement officer and admitted that after he grabbed two cases of beer, he ran out of the drug store. S.S. also admitted that even though the store manager yelled “stop,” he left the store with the beer and when the store manager approached him, he swung a case of beer that broke open.
DISCUSSION
“‘In assessing the sufficiency of the evidence, we 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 the defendant guilty beyond a reasonable doubt. [Citations.]’ [Citation.] We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the [trier of fact] could draw from the evidence. [Citation.]” (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1507-1508.) We also acknowledge that reversal on the basis of insufficient evidence is not justified unless it “clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.) This same standard of review applies when assessing the sufficiency of the evidence in a juvenile proceeding (In re Roderick P. (1972) 7 Cal.3d 801, 808-809) and “applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
“Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another... is guilty of theft.” (Pen. Code, § 484 subd. (a).) Theft is elevated to the crime of robbery when possession or retention of the stolen property occurs by either force or fear. As such, the Penal Code defines robbery as “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.)
Although the property at issue in this case was initially obtained without the use of force or fear, the use of force or fear while carrying away the property, attempts to retain the property, attempts to escape with the property, or resisting attempts to regain the property are sufficient to establish the crime of robbery. (People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) As such, the facts of this case fall within the purview of People v. Estes, a case which began as a burglary or theft when Estes was observed carrying stolen property out of a department store. Once outside the store, Estes was confronted by the store security guard but refused to return to the store. Instead, Estes brandished and swung a knife at the security guard. According to Estes, the defendant’s use of force to retain possession of the stolen property in the guard’s immediate presence constitutes force applied in furtherance of a robbery. (Id. at p. 27; People v. Gomez (2008) 43 Cal.4th 249, at pp. 258-260.) Estes holds that a robbery occurs “when [a] defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.” (People v. Estes, supra, 147 Cal.App.3d at pp. 27-28.)
In this case, the store manager testified that after taking two 18-packs of beer from a display, S.S. quickly walked out of the store to a waiting car in the parking lot. According to the store manager, she quickly walked behind S.S. at a distance of five to six feet until S.S. slowed down and turned to face her. The store manager testified that she was within one to two feet of S.S. when he turned toward her and swung the “heavy” case of beer at her and she had to stop in order to avoid being hit by the box. Although S.S. may have only contemplated a beer-run when he entered the drug store, the fact that he swung the case of beer at the store manager pursuing him out the store, constitutes the use of force in furtherance of the robbery, and as such, the record includes substantial evidence of all of the necessary elements of a robbery. The fact that the store manager was amused afterward as S.S. inadvertently tripped on the beer cans or over his own feet and then broke open the second case of beer when he fell, is of no consequence because S.S. had already used force to escape with the stolen beer and as a result, the manager testified that she was afraid during her interaction with S.S.
Despite the store manager’s direct testimony of S.S.’s use of force and her testimony that she was afraid, S.S. contends the evidence was insufficient to establish a true finding of robbery because the testimony of the witness sitting in the car contradicted the store manager’s testimony and therefore there was no credible evidence on which the court could rely that S.S. was guilty of robbery beyond a reasonable doubt. Specifically, S.S. points to the witness’s testimony that while sitting in her car she did not see S.S. swing the case of beer at the store manager. S.S. also takes aim at the witness’s testimony that S.S. threw cans of beer at the manager that she was “almost positive” had hit the store manager even though the store manager denied that S.S. intentionally threw beer at her.
“It is the exclusive province of the trier of fact to assess the credibility of the witnesses, resolve conflicts in the testimony and weigh the evidence. [Citation.]” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) As the trier of fact is frequently instructed, “[d]iscrepancies in a witness’s testimony or between a witness’s testimony and that of other witnesses, if there were any, do not necessarily mean that [ ] [a] witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon [ ] [and] two persons witnessing an incident or a transaction often will see or hear it differently. [The trier of fact] should consider whether a discrepancy relates to an important matter or only to something trivial.” (CALJIC No. 2.21.1; Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426.)
Although the witness in the car testified she did not see S.S. swing the 18-pack of beer at the store manager, the trier of fact may have attributed this oversight to the fact that the witness was distracted when she called 9-1-1 on her cell phone as the incident unfolded before her. Ultimately, the testimony of one witness, if believed, is sufficient to prove any fact. (Evid.Code, § 411.) In this case however, regardless of the witness’s omission, S.S.’s admission that he swung a case of beer corroborated the store manager’s testimony that S.S. swung the case of beer at her as she pursued him out of the store to establish the use of force during the commission of a robbery.
DISPOSITION
For the foregoing reasons, the jurisdictional finding and the dispositional order are affirmed.