Opinion
A155190
10-01-2019
In re A.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JW17-6289)
In January 2018, the San Francisco County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) alleging that appellant A.R., born December 2003, committed second degree robbery (Pen. Code, § 211), assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and vandalism (Pen. Code, § 594, subd. (b)(2)(A)). The allegations related to a December 29, 2017 incident during which appellant and another minor were in a physical altercation with a security guard after trying to shoplift from a beauty products store in San Francisco.
In May 2018, following a contested jurisdictional hearing, the juvenile court found true a lesser included charge of attempted robbery (Pen. Code, §§ 664, 211) and the assault charge, as a misdemeanor (Pen. Code, § 245, subd. (a)(4)). The court found the vandalism charge not true. In June, the court declared appellant a ward of the court and placed her on probation at home.
Among the evidence submitted at the jurisdictional hearing was surveillance video showing the events on December 29, 2017. The video shows a security guard confront appellant and another female minor at the exit to the beauty products store. Appellant is carrying a bag and has a coat draped over one arm and hand. After some back and forth discussion, appellant attempts to exit the store and the guard grabs appellant by her arm and by her bag, and drags appellant back. After a brief heated verbal exchange, the guard grabs appellant's coat, and a tugging contest ensues between the guard on one side and appellant and the other minor on the other side. After about 10 seconds, the other minor strikes the guard and the guard lets go of the coat. Appellant then attempts to leave the store, but the guard grabs appellant's cell phone out of her back pocket. Appellant then turns around and moves toward the guard, who is backing up at that point. Both minors aggressively approach the guard and start pushing her, as the guard continues to back up. The minors continue to push and strike the guard as she backs up through the store. According to the testimony at the jurisdictional hearing, the guard eventually took shelter in a bathroom. Also, although it is not clear from the surveillance video, at some point during the struggle the guard hit appellant on the head with the cellphone, which apparently caused a wound requiring medical treatment.
Based on the testimony at the jurisdictional hearing and its review of the surveillance video, the juvenile court found as follows regarding the robbery allegation: "So let me tell you what I see happened here. Okay? I think there was an attempt to steal something from a store initially. And then, [appellant], you were pulled back into the store. There's no robbery at that point because you hadn't used force, and [the other minor] hadn't used force either. [¶] Then what happens is there's a scuffle, and both of you use some force. And I think that that use of force was in order to prevent yourselves from getting caught or prevent the store people from getting their stuff back. . . . [¶] . . . [¶] The next thing that happens is the security guard steals your phone. And then there's a big fight, which is -- I don't find beyond a reasonable doubt that that fight related to trying to keep the property or to escape. In fact, you move further into the store. . . . [¶] . . . [¶] The difficulty is that the law is very strict about using any level of force in order to accomplish stealing something, and there was that brief period of time in there before the phone was taken that both of you used some force. So that's a problem for you. [¶] . . . [¶] With respect to Count I, I think you both engaged in conduct which could have resulted in a robbery, but I don't think you completed the robbery because you didn't leave the store. . . . [¶] So I'm going to find that . . . it's true that both of you attempted to rob the [beauty products] store."
Accordingly, contrary to a comment by appellant's counsel at oral argument, the trial court did not decline to find commission of a robbery because of lack of proof beyond a reasonable doubt of use of force.
On appeal, appellant contends the juvenile court's finding she committed attempted robbery is not supported by substantial evidence. (In re Ernesto H. (2004) 125 Cal.App.4th 298, 313.) She concedes she attempted to shoplift from the store, but she argues any use of force was for the purpose of retrieving her phone, not for retaining possession of the store merchandise. The argument fails because appellant ignores the juvenile court's finding—fully supported by the surveillance video—that the scuffle that occurred when the security guard grabbed appellant's coat involved the application of force to avoid "getting caught or prevent the store people from getting their stuff back." Appellant errs in describing this scuffle as a "verbal argument." The fight over the phone did not occur until after the scuffle involving appellant's coat, which the security guard testified she believed was concealing cosmetic powder held in appellant's hand. Accordingly, appellant has not shown insufficient evidence supports the court's finding that appellant committed attempted robbery. (See People v. Hodges (2013) 213 Cal.App.4th 531, 542 ["[I]t is well established that a defendant who takes property from the immediate presence of the owner without use of force or fear, but uses force or fear to retain possession of the property when the owner attempts to retrieve it, is guilty of robbery."].)
At one point, appellant asserts in passing, "There was no substantial evidence [that] showed that [appellant] was carrying stolen beauty products when she used force or fear against [the] security guard." We disagree. Among other things, the guard testified that she saw the minors put store products in their bags and that appellant had a container of cosmetic powder in the hand covered with her coat. --------
The decision in People v. Pham (1993) 15 Cal.App.4th 61, does not support appellant's position on appeal. There, the defendant stole items from a car, the victim chased the defendant, the defendant struck the victim several times, and the victim and a companion restrained the defendant until the police arrived. (Id. at p. 64.) The court of appeal upheld a conviction for robbery and rejected the defendant's contention the trial court erred in failing to instruct the jury on attempted robbery. (Id. at p. 67.) The court reasoned that the evidence, if believed, showed the defendant committed a completed robbery because "a robbery is committed when the defendant has taken possession of the victim's property and forcibly prevents the victim from regaining the goods, however temporarily." (Id. at p. 67.) Pham supports a conclusion that appellant in the present case committed a completed robbery rather than merely an attempted robbery, but the circumstance that the defendant in Pham was not entitled to an instruction on attempted robbery does not mean the defendant there, or the appellant in our case, could not be convicted of attempted robbery. To the contrary, Penal Code section 663 "specifically permits a defendant to be convicted of the crime of attempt even if it is proved he succeeded." (In re Sylvester C. (2006) 137 Cal.App.4th 601, 610.)
With respect to the assault allegation, the juvenile court found, "The assault, again, the law is very strict on this. When you throw a punch at somebody, basically that's force likely to cause great bodily injury. It's not that you did cause great bodily injury, but you used force that could result in great bodily injury. And I think you were both engaged in conduct that could have resulted in great bodily injury given the amount of force that was being used." On appeal, appellant contends the court erred because respondent failed to prove beyond a reasonable doubt that appellant did not act in self-defense. (People v. Saavedra (2007) 156 Cal.App.4th 561, 571 ["Typically, the prosecution has the burden to prove a defendant did not act in self-defense, because self-defense negates an element of the offense."].) Again, we disagree. Although appellant suffered an injury in the fight over the cellphone, it is clear from the surveillance video that the minors were the aggressors, striking and pursuing the security guard as she backed up through the store. The circumstance that the guard was the first to make physical contact when she dragged appellant back into the store is irrelevant, because the fight over the cellphone was distinct and because the minors were the aggressors.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.