Opinion
A151558
06-29-2018
In re Isaiah B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ISAIAH B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JW16-6137)
Isaiah B. (Minor) appeals following the juvenile court's disposition order on three juvenile wardship petitions (Welf. & Inst. Code, § 602). We agree with his contentions that one count of one petition lacks substantial evidence and that he is entitled to additional custody credits. In all other respects, we affirm.
BACKGROUND
February 9, 2017 Petition
In February 2017, Minor admitted to receiving stolen property (Pen. Code, § 496, subd. (a)) in September 2016, as alleged in an amended juvenile wardship petition originally filed on February 9, 2017. Because Minor raises no issues on appeal regarding this count, the underlying facts need not be recited. April 11, 2017 Petition
All undesignated section references are to the Penal Code.
An April 11, 2017 juvenile wardship petition alleged Minor committed second degree robbery (§ 211) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). According to the probation report, victim Eric Young told police that on April 9, he saw a group of juveniles jump on the hood of a taxi stopped at a red light, and started recording the incident on his cell phone. The juveniles began assaulting Young on the street; the assault then moved inside a nearby Coach store. One of the juveniles grabbed Young's cell phone and the group fled.
Minor admitted to the assault charge, and the robbery charge was dismissed. April 14, 2017 Petition
An April 14, 2017 juvenile wardship petition alleged Minor committed second degree robbery (§ 211; count 1); assault with a deadly weapon, to wit, a skateboard (§ 245, subd. (a)(1); count 2); and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 3). As discussed in more detail below, at the contested jurisdiction hearing a security guard working at Safeway testified that Minor was part of a group of juveniles who took several containers of Tide detergent without paying. When the guard detained one of the juveniles, Minor threatened the guard with a skateboard and subsequently struck him with his fist. In addition to the guard's testimony, a security video showing some of the relevant events was introduced into evidence and played for the court.
The juvenile court sustained the robbery count and, as to both assault counts, sustained the lesser included offense of simple assault (§ 240).
Disposition
At a dispositional hearing on the three petitions, the juvenile court redeclared Minor a ward, placed him on probation, and committed him to the Log Cabin Ranch School. The juvenile court stated a maximum term of confinement of six years eight months.
Minor was previously declared a ward in connection with a 2016 petition. We recently affirmed the judgment on this petition. (In re Isaiah B. (Feb. 28, 2018, No. A149422) [nonpub. opn.].)
DISCUSSION
I. The Safeway Petition
Minor argues (1) insufficient evidence supports the finding that he committed robbery, (2) insufficient evidence supports the finding that he committed assault with a skateboard, and (3) the maximum term of confinement must be reduced pursuant to section 654. We agree with the second contention but reject the others.
A. Background
The security guard, El Ray Henry, testified as follows. On March 28, 2017, Minor and at least five other juveniles entered the store. Although Minor did not enter with the rest of the group, the security video shows Minor entered shortly after. Henry saw Minor put a bottle of Tide into his backpack, zip the backpack, and put the backpack back on. Other juveniles similarly put Tide in their backpacks.
When the first of these juveniles left the store with Tide in his backpack and hands, Henry and another security guard detained him. The other juveniles came out of the store and surrounded them. Minor picked up a skateboard, raised it, and told Henry he was going to hit him with it. Henry testified he "was obviously a little afraid" but told Minor, " 'You don't want to do that,' " and Minor lowered the skateboard without swinging it.
The detained juvenile took off his backpack, which still contained Tide, and a girl picked it up and left with it. Henry testified he was unable to get the backpack from the girl because Minor "got in my way" and "was not allowing me" to get through to her. The security video shows Minor moving to stand and remain in between Henry and the girl as the girl leaves. After the girl left, Minor grabbed Henry's arm, Henry grabbed Minor's backpack, and Minor punched Henry with "a glancing blow." Henry took Minor's backpack and removed the Tide container inside it. After Henry returned Minor's emptied backpack, Minor left.
B. Robbery
The juvenile court sustained the robbery finding on two theories: Minor's conduct in preventing Henry from getting the detained juvenile's backpack after the girl took it, thereby aiding and abetting the girl; and Minor's attempt to prevent Henry from taking his own backpack. Minor argues insufficient evidence supports either theory. Minor also argues the finding must be reversed because the evidence does not support all of the facts alleged in the petition. We reject these contentions.
1. Legal Standards
" '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." [Citations.] A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence.' " (People v. McKinnon (2011) 52 Cal.4th 610, 686.)
" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]' [Citation.] 'In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court." ' " (In re Gary F. (2014) 226 Cal.App.4th 1076, 1080.)
2. Aiding and Abetting the Girl
" 'Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea.' [Citation.] We have defined the required mental states and acts for aiding and abetting as: '(a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.' " (People v. Thompson (2010) 49 Cal.4th 79, 116-117.)
Minor argues there was insufficient evidence that either he or the girl knew the detained juvenile's backpack contained Tide because there is no evidence that they witnessed Tide being placed in that backpack. No such evidence is necessary. The evidence established that Minor and the girl were part of a group of juveniles who entered Safeway at the same general time, several of them put the exact same item in their backpacks without paying, and they left the store together. This is ample circumstantial evidence that members of this group knew other members intended to steal Tide by hiding it in their backpacks, and thus that the girl and Minor knew the detained juvenile's backpack contained stolen Tide. (See People v. Lewis (2001) 25 Cal.4th 610, 643 ["the intent required for robbery and burglary is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime"].) This evidence of intent is not negated by evidence that the girl did not leave immediately after picking up the backpack or that Henry did not attempt to regain possession of the backpack.
Minor suggests there is insufficient evidence the girl was part of this group. To the contrary, the video shows her exiting the store with Minor and the rest of the group. Moreover, the fact that she picked up the detained juvenile's backpack and left with it, with no apparent protest from the detained juvenile, is circumstantial evidence that she was part of the group.
Minor contends there is insufficient evidence he knew the girl took the backpack or knew the backpack belonged to the detained juvenile. We disagree. The video shows that Minor was close by and watching when Henry and his partner removed the detained juvenile's backpack and put it on the ground; no other backpacks are visible on the ground nearby. Although the video shows Minor glancing away when the girl first approaches and picks up the backpack, he appears to be looking directly at her as she lifts it and puts it on her back.
Minor argues there is insufficient evidence that he used force or fear. We need not decide whether there is sufficient evidence he used force, because sufficient evidence supports the finding he used fear. "[W]hen the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence 'from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.' " (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) Minor argues Henry did not testify he was afraid to pursue the girl because of Minor's presence. No such testimony was necessary. (See People v. Mullins (2018) 19 Cal.App.5th 594, 605 ["[W]e, and the jury, may infer fear from the circumstances even if the victim superficially claims he did not feel fear or intimidation."].) Minor had recently threatened to hit Henry with a skateboard, which Henry testified made him afraid. The video shows Minor still holding the skateboard when he stood between Henry and the girl, at times partially raising it while facing Henry. These circumstances are sufficient to infer that Henry was afraid Minor would hit him with the skateboard if he tried to recover the backpack from the girl. Moreover, contrary to Minor's contention, Henry did not testify that he chose to continue holding the detained juvenile instead of pursuing the girl, but instead testified he could not retrieve the backpack from the girl because Minor "got in my way" and "was not allowing me" through.
As the People do not dispute, there is no evidence the girl used force or fear.
Henry testified, on cross-examination, that he could not both pursue the girl and detain the juvenile, and that he never tried to release the detained juvenile to pursue the girl. This testimony is not inconsistent with Henry's testimony that the reason he did not pursue the girl was because of Minor's presence, or with the finding that Henry did not pursue her because he was afraid.
Minor also argues there was insufficient evidence his conduct was intended to aid the girl's theft. He points to Henry's testimony that Minor's "main concern" was that Henry release the detained juvenile. This does not negate the evidence that Minor intended to aid the girl's theft, to wit, Minor's movement to stand between Henry and the girl.
In sum, substantial evidence supports the juvenile court's finding that Minor committed robbery by aiding and abetting the girl's theft of the Tide container in the detained juvenile's backpack. Because we conclude this theory supports the robbery finding, we need not decide whether the finding is also supported by Minor's conduct when Henry took Minor's backpack.
To the extent Minor argues we should reverse the finding even if supported by substantial evidence "to prevent the unjustified prosecutorial escalation of petty theft cases into robbery charges," we reject the argument. " 'Crafting statutes to conform with policy considerations is a job for the Legislature, not the courts; our role is to interpret statutes, not to write them.' " (Fort Bragg Unified School Dist. v. Colonial American Casualty & Surety Co. (2011) 194 Cal.App.4th 891, 909-910.)
3. Petition Allegations
The petition alleged Minor committed robbery by taking "toiletries and laundry detergent." (Capitalization altered.) The juvenile court found the alleged robbery count true. Minor argues that, because there was no evidence toiletries were taken, insufficient evidence supports the robbery finding. We disagree.
A similar argument was rejected in In re Michael D. (2002) 100 Cal.App.4th 115. In that case, the minor was charged with violating a statute that prohibits drawing or exhibiting an imitation firearm in a threatening manner against another. (Id. at p. 119.) The petition alleged the minor drew an imitation firearm against Kathy Russell; in fact, the evidence established he drew the imitation firearm against Andre A. (Id. at pp. 119, 127.) The minor argued that, because of this discrepancy, no substantial evidence supported the petition's allegations. (Id. at p. 127.)
The Court of Appeal rejected the argument "for two reasons. First, as we will explain, we do not measure the sufficiency of the evidence against the allegations of the petition. We measure the sufficiency of the evidence against the penal statute. And second, the minor provides no authority that a variance between the evidence presented at the jurisdictional hearing and the allegations of the petition constitutes reversible error. [Citation.] [¶] Each of the authorities cited by the minor is a case in which the conduct is measured against the statute to determine whether there was a violation of the statute. [Citation.] The cases cited by the minor do not state that a reviewing court must determine whether the substantial evidence supports a conclusion that the defendant committed the acts alleged in the information or other charging document. Indeed, that is not the law. The charging document provides notice to the accused. As long as it serves that purpose, it is adequate. [Citations.] The same is true with a petition in a delinquency proceeding. [Citation.] [¶] 'Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.' [Citation.] The minor made no argument in the trial court and does not contend here that the petition did not adequately put him on notice of the charges against him. He merely claims the evidence does not match the allegations of the petition because he pointed the imitation firearm at Andre A., not Kathy Russell. Since the minor, in effect, concedes he had adequate notice of the charges against him, the variance between the petition and the evidence is inconsequential." (In re Michael D., supra, 100 Cal.App.4th at pp. 127-128.)
The reasoning of In re Michael D. is sound and is not contradicted by Minor's authorities. (See People v. Smith (1902) 136 Cal. 207, 208 ["[t]he defendant was convicted of a crime not embraced within the information" where information charged nighttime burglary and defendant convicted of second degree burglary, which only encompasses daytime burglary]; People v. Feldman (1959) 171 Cal.App.2d 15, 24 [defendant "was not properly apprised in advance of the specific charge" where indictment alleged receiving stolen property but evidence showed defendant concealed stolen property, and "[c]oncealing . . . the stolen property is manifestly not the same offense as receiving . . . stolen property"].) As in In re Michael D., Minor does not contend the petition did not adequately put him on notice of the charged offense, and thus "the variance between the petition and the evidence is inconsequential." (In re Michael D., supra, 100 Cal.App.4th at p. 128.)
C. Assault (Count 2)
Count 2 alleged Minor assaulted Henry with a deadly weapon, to wit, a skateboard (§ 245, subd. (a)(1)). The juvenile court found the People did not prove beyond a reasonable doubt that Minor committed an act that by its nature would directly and probably result in the application of force to a person because, although Minor threatened Henry with the skateboard, he never swung it. Accordingly, the juvenile court found this charge not proven. Instead, the juvenile court sustained the lesser included offense of simple assault (§ 240).
Like assault with a deadly weapon, simple assault includes the element of an act that by its nature would directly and probably result in the application of force to a person. (CALCRIM Nos. 875, 915.) As the People properly concede, the juvenile court's finding that Minor did not commit such an act requires the simple assault finding be reversed.
D. Section 654
Minor argues that the term for the assault charged in count 3 should be stayed pursuant to section 654. (See § 654, subd. (a) ["An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."].) Specifically, Minor contends the basis for that assault was his act of striking Henry, and that act was also the basis for the robbery theory that Minor committed robbery by striking Henry when Henry took Minor's backpack. Minor advances this argument only to the extent that the robbery count is upheld based on this evidence. However, we have upheld the robbery count on the basis of evidence that Minor aided and abetted the girl, and Minor does not contend section 654 requires the term on the count 3 assault be stayed in such circumstances. Accordingly, section 654 does not require reversal.
II. The Coach Store Petition
Minor's sole challenge to the Coach Store petition is the juvenile court abused its discretion by declaring the assault a felony instead of a misdemeanor. We reject the challenge.
Minor admitted to assault by means of force likely to produce great bodily injury, a crime punishable in the court's discretion as either a felony or a misdemeanor. (§ 245, subd. (a)(4); see also § 17, subd. (b).) The juvenile court was thus required to declare whether the "offense would be a felony or misdemeanor in the case of an adult." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Factors relevant to this determination include " 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial,' " as well as "the defendant's criminal past and public safety." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, 981-982 (Alvarez).) Trial courts have "broad latitude" in making this determination and appellate courts apply an "extremely deferential and restrained standard" of review, reversible only upon a showing that the decision " 'was irrational or arbitrary.' " (Id. at pp. 977, 981.)
Minor argues the juvenile court did not state on the record its reasons for declaring the assault a felony. The juvenile court was not required to do so: "If an offense committed by a juvenile is a 'wobbler,' all that is necessary for the record on review is a declaration by the court as to whether the offense is a misdemeanor or felony." (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1181-1182.)
Minor also argues the finding was an abuse of discretion in light of Minor's improvement in school, relatively minor role in the incident, and the court's rejection of the probation department recommendation that Minor be committed to the Division of Juvenile Justice. However, at the disposition hearing, the juvenile court expressed concern with Minor's multiple petitions in rapid succession: "he's got a petition on February 9th, 2017. He's got a petition on March 30th, 2017. He's got a petition April 11th, 2017. He got a petition April 14th, 2017. And this has all happened in this brief period of time. [¶] . . . . [H]e's making a lot of mistakes, and he's making them in rapid succession." In addition, Minor had a previous sustained petition filed in March 2016. In light of the juvenile court's broad discretion, we cannot conclude it acted irrationally or arbitrarily by determining that, on balance, Minor's "criminal past" (Alvarez, supra, 14 Cal.4th at p. 982) warranted designation of the offense as a felony. (See id. at p. 978 [" '[A] decision will not be reversed merely because reasonable people might disagree.' "].)
Minor submitted a report card and letters of recommendation from two teachers.
Security video footage of the incident was played for the court at the disposition hearing. The prosecutor conceded the video did not show Minor striking the victim, but argued it showed Minor "held [the victim] in a stationary position so that others can continue their attack." The juvenile court commented that the video showed "other people are pursuing the victim into the store first," with Minor "intervening later and then leav[ing] pretty quickly after that."
As Minor notes, this petition was dismissed.
III. Custody Credits
Juveniles are entitled to custody credits against the maximum term of confinement for all days spent in a secure facility between the jurisdictional hearing and the date of transport to the commitment facility. (In re J.M. (2009) 170 Cal.App.4th 1253, 1256.) The juvenile court awarded Minor custody credits based on a disposition date of May 19, 2017, although the disposition hearing was continued to June 5, 2017. As the People properly concede, Minor is thus entitled to additional days of credit. Because the record does not reveal the date Minor was transported to the Log Cabin Ranch School, we will remand to the juvenile court for a determination of the number of additional days of credit.
IV. Probation Condition
Minor challenges a probation condition that he is "[n]ot to knowingly possess dangerous or deadly weapons of any kind, which means you are to possess no firearms of ANY kind which means no guns, ammunition/bullets, knives, clubs, brass knuckles, attack dogs, or something that looks like a weapon. You are not to possess anything that you could use or intend to use as a weapon OR intend for someone else to think might be a weapon, which includes real, fake, toys, replica, and look alike weapons." Minor argues this probation condition is vague and overbroad.
Minor raised the same challenge to the same condition in a previous appeal, from a prior disposition. This court rejected the challenge. (In re Isaiah B. (Feb. 28, 2018, No. A149422) [nonpub. opn.].) We requested the parties file supplemental briefs addressing whether Minor's current challenge is barred by the law of the case. " ' "The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, . . . and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular." ' The principle applies to criminal as well as civil matters . . . ." (People v. Stanley (1995) 10 Cal.4th 764, 786 (Stanley).)
Minor first contends the current appeal is "a concurrent appeal, not a subsequent appeal," because it was fully briefed before the prior opinion issued. He cites no authority that this timing precludes the prior opinion from constituting law of the case, nor would such a rule serve the doctrine's purpose of judicial economy. (Stanley, supra, 10 Cal.4th at p. 786 ["The principal reason for the doctrine is judicial economy."].) It is sufficient for purposes of the law of the case that the decision in the prior appeal preceded the decision in this appeal.
Minor next argues the ruling in the prior appeal was not necessary to the decision. His argument rests entirely on criticisms of the reasoning in the prior appeal. Disagreement with the prior decision does not preclude application of the law of the case. (Stanley, supra, 10 Cal.4th at p. 786 [doctrine applies even where subsequent court " ' "may be clearly of the opinion that the former decision is erroneous" ' "].)
Finally, Minor argues application of the law of the case would be unjust. Minor again argues the prior decision's analysis was inadequate, but "[t]he unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination." (Stanley, surpa, 10 Cal.4th at p. 787.) Minor also argues his position is stronger in the current appeal because the juvenile court's oral clarification of the weapons condition was different: in the prior appeal, the juvenile court stated Minor was "not to possess anything that you could use or intend to use as a weapon," while in the current appeal the court stated Minor was "not to possess anything that you could use as a weapon or that you intend to use as a weapon." We fail to see any material distinction between the two oral pronouncements.
Accordingly, we conclude Minor's current challenge to his probation condition is barred by the law of the case.
DISPOSITION
The true finding on count 2 as amended of the April 14, 2017 petition is reversed. The matter is remanded to the juvenile court for a determination of custody credits. In all other respects, the judgment is affirmed.
In a separate petition for writ of habeas corpus (A153713), Minor has raised an ineffective assistance of counsel claim. By separate order filed this date, we are issuing an order to show cause why the relief requested in the petition should not be granted, returnable to the superior court. The superior court shall determine the order in which proceedings below shall occur. --------
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.