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In re Timothy C.

California Court of Appeals, First District, Fifth Division
Mar 10, 2008
No. A118200 (Cal. Ct. App. Mar. 10, 2008)

Opinion


In re TIMOTHY C., a Person Coming Under the Juvenile Court Law. A118200 California Court of Appeal, First District, Fifth Division March 10, 2008

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. 75759

SIMONS, Acting P.J.

Timothy C. appeals an order declaring him a ward of the juvenile court (Welf. & Inst. Code, § 707) after the court found he had committed attempted robbery (Pen. Code, §§ 664, 212.5, subd. (c)) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) as alleged in a June 2004 wardship petition, and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)) as alleged in a May 2007 wardship petition. His sole contention on appeal is that there is insufficient evidence to sustain the attempted robbery finding. We reject that contention and affirm.

Background

On the afternoon of April 13, 2006, the victim left his girlfriend’s South San Francisco house and was walking to work on Orange Street. As he approached the intersection of C and Orange Streets, he was concerned because the area was related to a Norteño gang. A year before, the victim had been associated with the Sureño gang. The victim saw a group of about 10 people “hanging around” on C Street and was concerned that “something could happen,” but kept walking. When the victim had walked about half a block past the group he was aware that three members of the group had run up and were walking behind him. The victim heard two voices calling him.

The victim stopped and turned around to face the three persons, believing they were going to ask him if he “gang banged.” The victim told the men he did not gang bang and was on his way to work. The three persons, including appellant, formed a semicircle around the victim. The victim recognized appellant from contacts they had months before regarding “problems” involving a girl. When the victim realized appellant was one of the three men he felt intimidated and afraid to “give him [his] back.” The men asked the victim for money and the victim said “no.” One of the men named “Vincent” grabbed the sweatshirt the victim was holding and started searching it. Appellant then patted the victim’s front pants pockets to see if they contained anything.

Appellant cooperated with the search out of fear the men would “beat [him] up” if he resisted. When appellant’s pat search turned up nothing, appellant swung his fist at the victim’s head. The victim fell to the ground and covered his head. Appellant continued hitting him. Appellant was the only person that tried to hit the victim. Eventually the assault stopped and the victim stood up and picked up his sweatshirt while the three men remained standing there. The victim continued walking to work as the three assailants and a fourth person laughed and walked away.

Discussion

Appellant contends there was insufficient evidence to support the juvenile court’s finding of attempted robbery. Instead, he asserts the evidence established separate acts of attempted theft and assault.

A reviewing court faced with such a sufficiency of the evidence claim determines “ ‘[W]hether, 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.’ [Citations.] We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 139; accord In re Robert V. (1982) 132 Cal.App.3d 815, 820.)

“Robbery is defined as the taking of personal property from another’s person, or in his immediate presence, against his will, and accomplished by force or fear.” (People v. Reeves (2001) 91 Cal.App.4th 14, 51, citing Pen. Code, § 211.) To constitute robbery, “[t]he wrongful intent and the act of force or fear ‘must concur in the sense that the act must be motivated by the intent.’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 34.) “Theft is a lesser included offense of robbery that does not include the additional element of force or fear. [Citation.]” (Reeves, at p. 51.) Attempted robbery requires proof of (1) specific intent to commit robbery; (2) a direct but ineffectual act towards the commission of the intended robbery; and (3) the act went beyond “mere preparation.” (People v. Dillon (1983) 34 Cal.3d 441, 456; accord People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.)

Appellant relies on Reeves in support of his argument. In that robbery case, the defendant argued and the appellate court agreed, that the court should have instructed the jury on the lesser included offenses of theft and attempted theft. (People v. Reeves, supra, 91 Cal.App.4th at pp. 50-51.) The evidence established that the victim woke to find the defendant in her bedroom, struggled and in the process, suffered a brutal assault. Thereafter, the defendant fled after hearing police sirens. Although nothing belonging to the victim was stolen, her jewelry box was moved from the bathroom to the living room, and jewelry belonging to her roommate was later discovered missing. (Id. at p. 52.) The court found that the defendant had moved the jewelry found in the living room before the assault and found there was no indication that the assault on the victim was motivated by an intent to steal her property. The court found the evidence was consistent with an attempted theft, since it was undisputed that the defendant moved the property with the intent of stealing it. (Id. at pp. 52-53.)

Appellant argues that the evidence in this case established that a completed act of attempted theft of the victim occurred before the victim was assaulted. Appellant asserts that because it was only after he and “Vincent” unsuccessfully checked the victim’s sweatshirt and pants pockets for money that he assaulted the victim, there was no evidence that the assault on the victm was related to the completed attempted theft. He argues there was no indication that the assault was motivated by the intent to take the victim’s property.

We conclude substantial evidence supports the attempted robbery finding. The evidence established that appellant and his cohorts encircled the victim, asked him for money, forcibly grabbed and searched his sweatshirt, patted down his pants pockets and assaulted him. These acts established appellant’s specific intent to commit robbery, his direct but ineffectual acts towards the commission of the intended robbery, and that the acts went beyond “mere preparation.” That the assault occurred after the other acts is of no consequence because even absent the assault, appellant’s actions constituted the requisite elements of attempted robbery. Appellant’s assertion that there is no evidence of his intent to steal because his act of patting the victim’s pockets could reasonably have been related to previous gang-related interactions with the victim is speculative and outside the purview of substantial evidence review, which views the evidence in a light most favorable to the order.

Disposition

The order is affirmed.

We concur. NEEDHAM, J. STEVENS, J.

Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re Timothy C.

California Court of Appeals, First District, Fifth Division
Mar 10, 2008
No. A118200 (Cal. Ct. App. Mar. 10, 2008)
Case details for

In re Timothy C.

Case Details

Full title:In re TIMOTHY C., a Person Coming Under the Juvenile Court Law.

Court:California Court of Appeals, First District, Fifth Division

Date published: Mar 10, 2008

Citations

No. A118200 (Cal. Ct. App. Mar. 10, 2008)