Opinion
G053171
02-22-2017
In re ANGEL C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANGEL C., Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J263314) OPINION Appeal from an order of the Superior Court of San Bernardino County, Pamela P. King, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Angel C. was adjudged a ward of the court under Welfare and Institutions Code section 602, based on findings he violated Penal Code section 211 (second degree robbery), section 148, subdivision (a)(1) (resisting, obstructing and delaying a peace officer), and section 69 (resisting an executive officer).
All further statutory references are to this code. --------
Angel challenges only the first finding, arguing the evidence was insufficient to support the juvenile court's determination he used force or fear to accomplish the robbery. We affirm. The element of force or fear required for a theft to qualify as a robbery includes force or fear used to retain the stolen item after it is taken from the victim. In this case, Angel admitted "mad-dogging" the victim after grabbing his cell phone from his pocket, and as he left the scene, he threatened to hit the victim if he told anyone. That evidence was sufficient to satisfy the element of force or fear to establish a robbery.
FACTS
Angel and his victim, Jose A., were both high school students. During a class, Jose was standing at the front of the classroom, near the teacher, with a cell phone in his pocket. Angel took the phone out of Jose's pocket without permission, and Jose told him he wanted it back. The teacher also told Angel to give Jose the phone.
Angel ignored both of them, and instead said to Jose that if he told anyone what Angel had done, he "was going to come and hit [him]." When Angel said that to Jose, it scared Jose and he was afraid to tell anyone that Angel had taken his cell phone. Angel had bullied Jose on prior occasions, which also scared him. Jose testified that he followed Angel out of the classroom and asked for his phone back, but Angel said, "no."
Angel testified the incident arose out of an aborted agreement to trade cell phones. According to Angel, Jose had indicated he wanted to trade phones, and Angel had agreed. However, when the trade was to take place, Jose changed his mind and cursed at Angel. That made Angel angry and he said, "[i]f you ain't going to trade, I will walk away with the thing." He then did so, which he knew was "not the right thing to do." Angel denied verbally threatening Jose, but acknowledged he had "mad-dogged" him before walking away with Jose's phone. Angel indicated that "mad-dogging" someone meant giving him a "dirty look."
Later in the day, Jose reported the incident to the school security officer. However, he never got his phone back.
Several days after Angel took Jose's cell phone, two police officers came to the school and made contact with Angel. He attempted to flee and made other efforts to resist being detained.
In January 2016, the district attorney filed a first amended juvenile wardship petition, alleging Angel had committed second degree robbery in violation of section 211, and that he had resisted and obstructed a peace officer in violation of section 148, subdivision (a)(1) and an executive officer in violation of section 69.
Following a jurisdictional hearing, the juvenile court found the allegations of the petition to be true. At the dispositional hearing, the court ordered Angel to serve 29 days in a juvenile facility, with credit for 29 days already served, and placed him on probation.
DISCUSSION
Section 211 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." Thus, the use of force or fear is one of the elements that elevates an ordinary theft into a robbery. (People v. Gomez (2008) 43 Cal.4th 249, 254 ["To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence."].)
Here, Angel contends the finding he committed a robbery must be reversed because there is insufficient evidence in the record to support a determination he used force or fear to accomplish the theft of Jose's cell phone.
Angel points out that if the perpetrator relies on force, "[t]here must be evidence of something more than the amount of force necessary to accomplish the mere taking of the property itself" (citing People v. Morales (1975) 49 Cal.App.3d 134, 139-140); and if the perpetrator relies on fear, there must be evidence "the victim was in fact afraid and that such fear allowed the crime to be accomplished" (citing People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2).
In this case, it does appear Angel accomplished the initial taking of the cell phone without force or fear. He simply snatched the phone from Jose's pocket, which reflects only the amount of force necessary to accomplish the taking. However, as Angel concedes, the element of force or fear can be satisfied by evidence that a perpetrator used "force or fear to escape or otherwise retain even temporary possession of the property," quoting People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
Nonetheless, Angel claims that element was still not satisfied in this case because although there was evidence he had threatened Jose—both verbally and by his facial expression—before walking away with his phone, the evidence that Jose "confronted [Angel] and followed [him] to get his phone back . . . demonstrate[s] that he was in fact not afraid." (Italics added.) We cannot agree.
Jose unambiguously testified that he was afraid after Angel snatched his cell phone, which is—by definition—sufficient evidence to support that finding. By arguing that Jose's actions belie his claim of fear, Angel is actually attacking the credibility of Jose's testimony. That is an argument that can be made in the trial court, but not on appeal. We do not address issues of credibility. "'"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence."'" (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
In any event, what Jose testified he was afraid to do was immediately report to anyone that Angel was stealing his cell phone after Angel refused to give it back. Thus, Jose did not make the report until later in the day, before he left school. By that time, there was no opportunity to recover the phone. That evidence was certainly sufficient to demonstrate that the fear Angel had instilled in Jose was a factor that allowed Angel to accomplish his crime.
DISPOSITION
The order is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.