Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. NJ24809, Gibson W. Lee, Judge.
Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Karissa R. appeals from the order adjudicating her a ward of the juvenile court. She claims the evidence was insufficient to prove the charge of robbery because she was simply recovering money the victim had previously taken from her. In addition, she claims there was insufficient evidence that she carried out the crime by force or fear, and asserts the juvenile court should have reduced the charge to grand theft person. She also asks that the minute order from the disposition hearing be corrected to delete the designation of a maximum period of confinement which was not ordered by the court and would nevertheless have been improper because she was placed home on probation. We order the minute order corrected and otherwise affirm.
FACTUAL AND PROCEDURAL SUMMARY
Appellant and the victim, Andres G., had known each other since middle school. She and Andres attended a party in April 2007, where appellant’s wallet was stolen. She repeatedly accused Andres of taking it, and at some point before this incident Andres admitted doing so.
Around 5:30 p.m. on June 1, 2009, appellant was riding her skateboard to a friend’s house. Her two younger sisters were with her, riding their scooters. As they crossed the street, appellant saw Andres walking with a friend, and she rode over toward him.
According to Andres, appellant was holding her skateboard as she walked up to him. The two started arguing. Appellant tried to reach into his pockets, repeatedly saying, “‘I know you have money. You always have money.’” Andres pushed her hands away from his pockets and pushed her back. Appellant lifted her skateboard. According to Andres, he “had grabbed her by her hands, by her arms, and then we were trying like to fight back from each other. And the board hit me in the left ear and then my earring fell out and we started arguing again more.” Appellant dropped the skateboard, and Andres held her against a wall and told her to calm down. They kept arguing, and finally Andres said, “[I]f money is that important to you, okay.” He reached into his pocket, took out $5, and threw it at her. At the time of this incident, appellant was 16 years old.
A petition was filed pursuant to Welfare and Institutions Code section 602, alleging appellant committed second degree robbery (count 1); assault with a deadly weapon (count 2); and misdemeanor battery (count 3). The court sustained counts 1 and 3 of the petition as true, declared count 1 a felony, and dismissed count 2. Appellant’s motion to reduce the charge of second degree robbery to grand theft was denied. She was declared a ward of the court and placed home on probation. This is a timely appeal from these orders.
DISCUSSION
I
Appellant claims there was insufficient evidence of robbery because there was no evidence that she formed the intent to take something that belonged to another. Instead she argues she sought to recover the money under a claim of right.
“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.” (Pen. Code, §211.) “The claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga).)
In People v. Butler (1967) 65 Cal.2d 569 (Butler), the Supreme Court expanded this defense to include forcible takings perpetrated to satisfy, settle, or otherwise collect on a debt. But in Tufunga, the court reconsidered its expansion of the defense in Butler, and concluded that “Butler went well beyond the basic underlying notion that a thief or robber must intend to steal another’s property when, on the facts before it, the court extended the availability of a claim-of-right defense to perpetrators who rob their victims assertedly to settle, satisfy, or otherwise collect on a debt. Specifically, we find nothing in the language of section 211 to suggest the Legislature intended to incorporate such a broad and expansive extension of the claim-of-right doctrine into the robbery statute.” (Tufunga, supra, 21 Cal.4th at pp. 953-954.) To the extent Butler “extended the claim-of-right defense to robberies perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated—as opposed to forcible takings intended to recover specific personal property in which the defendant in good faith believes he has a bona fide claim of ownership or title—it is unsupported by the statutory language, further contrary to sound public policy, and in that regard is overruled.” (Id. at p. 956.)
Andres testified that appellant said to him, “Where is my money?” Appellant testified that she told Andres, “I want my money. You always have money.” The money she was referring to was the money that had been taken from her wallet more than two years before this incident. Unlike the defendant in Tufunga, who took back the actual $200 he had just placed on his ex-wife’s table, appellant was not attempting to recover the same specific money taken from her wallet, but instead was attempting to satisfy the debt she claimed Andres owed her. Under the holding of Tufunga, the claim-of-right defense was inapplicable.
Appellant also claims there was insufficient evidence that appellant actually took the money from Andres, since he just decided to throw money at her. She also claims there is no evidence the money was taken by force or fear. Appellant testified that she grabbed Andres by his shirt collar and checked his pockets. She felt his phone in his left pocket and money in his right pocket. She demanded that he pay her. Andres testified that after appellant checked his pockets, he pushed her away. She picked up her board and tried to hit him with it. He grabbed her, they struggled, and the board hit him in the left ear. “After she had hit me with the board she did let go of the board. And that’s when I had tried to give her the money, trying to tell her about the $5.” Viewed in the light most favorable to the court’s order (In re J.K. (2009)174 Cal.App.4th 1426, 1433), this is sufficient evidence that appellant took Andres’s money by force or fear.
Appellant asserts the juvenile court erred in denying her motion to reduce the robbery to grand theft. Given the ample evidence that a robbery was committed, we find no abuse of discretion.
II
Although the court did not pronounce a maximum term of confinement, the minute order from the disposition hearing reflects a maximum period of confinement of five years, two months. Appellant asserts, and respondent agrees, that a maximum term of confinement should be set only when a minor is removed from the physical custody of his or her parent or guardian, not when the minor is committed to the custody of a parent subject to probationary supervision. (See In re Ali A. (2006) 139 Cal.App.4th 569, 571.) The portion of the order setting a maximum term of confinement is ineffective, and should be stricken. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) We direct the juvenile court to issue an amended minute order deleting the maximum term of confinement.
DISPOSITION
The adjudication order is affirmed. The disposition order is to be amended, and is affirmed as amended.
We concur: WILLHITE, J. MANELLA, J.