Opinion
B233823
01-26-2012
In re J.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.V., Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YJ34477)
APPEAL from an order of the Superior Court of Los Angeles County. Fumiko Wasserman, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
After four delinquency petitions arising out of discrete incidents were filed against J.V, the juvenile court sustained allegations that J.V. had committed vandalism, petty theft (two counts), and second degree robbery. On appeal, J.V. challenges only the second degree robbery allegations, claiming there was insufficient evidence that he used force or fear to take the property in question. We reject the contention and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the appeal challenges only the robbery allegations, we limit our discussion to the incident leading to that conviction.
One afternoon in April 2011, 17-year-old S.B. went to a fast-food restaurant in Downey with his 17-year-old girlfriend, and a female friend. The three arrived with two bicycles, which they parked outside the restaurant.
After the three finished eating, S.B. told the girls he was going to watch the bikes outside. As he was walking outside, one of the girls yelled to S.B.: "Hey, someone is taking your bike." S.B. saw J.V. starting to ride away on the bike. S.B. yelled to J.V.: "give me back my bike." S.B. ran after J.V. and was able to catch up with him. S.B. grabbed J.V. However, J.V. made a swiping motion with his right hand and pushed S.B. on the shoulder. S.B. stumbled and lost hold of J.V., who rode away.
S.B.'s girlfriend was standing approximately 30 feet from the point where S.B. grabbed J.V. and witnessed the contact from S.B.'s backside. She did not use the word "push" to characterize the contact between J.V. and S.B. Although her testimony was not entirely clear, she seemed to say that J.V. grabbed S.B.'s hand and "pulled it off." As a result, S.B. stumbled and J.V. rode off.
At the adjudication, J.V. admitted taking the bike. He claimed, however, that he did not push or even touch S.B. According to J.V., his hands remained on the handlebars at all times.
At the conclusion of the adjudication hearing, J.V.'s counsel argued that the taking of the bike constituted theft, not robbery because, according to counsel, there was no force or fear. The juvenile court disagreed and sustained the second degree robbery allegation.
At the disposition hearing on all four petitions, the juvenile court ordered J.V. placed in a short-term camp and set his maximum confinement time at five years and eight months.
J.V. filed a timely notice of appeal. He claims there was insufficient evidence that he used force or fear to support the robbery conviction.
DISCUSSION
"The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. In either type of case, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605, fn. omitted.) We do not reweigh the evidence or evaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Robbery is the taking of property "by means of force or fear." (Pen. Code, § 211.) If the taking is not accomplished by means of force or fear, the taking is nothing more than the lesser included offense of theft. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.) The force or fear need not occur as part of the taking of the property and may be part of an effort "to escape or otherwise retain even temporary possession of the property . . . ." (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) Therefore, regardless of how the thief originally acquired the property, a robbery occurs when the thief uses force or fear to resist the owner's attempts to regain the property, however temporarily. (People v. Pham (1993) 15 Cal.App.4th 61, 65-68.)
The term "force or fear" does not have a technical meaning peculiar to the law and "is not synonymous with a physical corporeal assault." (People v. Mungia (1991) 234 Cal.App.3d 1703, 1708.) The force used does not have to be extreme (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775), and the degree of force used is immaterial (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fns. 2 & 3). The force need only be more than that necessary to accomplish the mere seizing of the property. (Ibid.)
S.B. clearly, unequivocally and repeatedly characterized J.V.'s contact with him as a push. Although S.B. appeared to acknowledge it was not a hard push, it was nonetheless a push, which caused him to stumble. This was sufficient to satisfy the "force or fear" element. (See, e.g., People v. Garcia, supra, 45 Cal.App.4th at p. 1246 [force element satisfied where defendant approached cashier while register drawer was open and gave her "a slight push, 'like a tap,' on her shoulder with his shoulder"]; see also People v. Griffin (2004) 33 Cal.4th 1015, 1025 [citing with approval holding in People v. Garcia, supra, 45 Cal.App.4th 1242 with respect to the sufficiency of tap-like push].) J.V.'s push was not merely incidental to the taking of the bike. The push was designed to prevent S.B. from retaking the bike. As such, the push was sufficient to satisfy the force element of the robbery conviction.
DISPOSITION
The judgment is affirmed.
RUBIN, J. We concur:
BIGELOW, P. J. GRIMES, J.