Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC817187
Premo, J.
Defendant Eddie Arthur Perales, Jr., after a court trial, was found guilty of one count of robbery. (Pen. Code, §§ 211, 212.5.) The court found true allegations regarding Perales’ prior criminal history, as well as an allegation relating to the age of the victim in the instant offense. Perales was sentenced to a total of nine years in prison.
Further unspecified statutory references are to the Penal Code.
On appeal, Perales contends there was insufficient evidence to establish that he used greater force than necessary to obtain the victim’s property or that she relinquished her property due to fear.
We disagree and shall affirm.
I. Factual and Procedural Background
A. Charging information and procedure
On October 9, 2008, Perales was charged by information with one count of robbery (§§ 211, 212.5), with enhancements for two prior strikes (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and committing an offense while on probation (§ 1203, subd. (k)). On January 20, 2009, the information was amended to delete one of the prior strike allegations and to add an enhancement for the victim being 65 or older. (§ 667.9, subd. (b).)
Perales pleaded not guilty and waived his right to a jury.
B. The court trial
1. The prosecution’s case
a. Chanh Hoang’s testimony
On September 1, 2008, a little before 10:00 p.m., Hoang, a Buddhist monk, was near Curtner Park in Milpitas, walking to her home from the Buddhist temple. Hoang was 76 years old, stands approximately five feet tall and, at the time of the offense, weighed 90 or 91 pounds. While walking along, Hoang was pulling a wheeled backpack behind her. The bag contained personal items, as well as $30 and some change.
Hoang was walking through a dimly-lit underpass when she was approached by three young men--Perales, Edward T. and Alex P. One of the men shone a flashlight into her eyes from a distance of two to three feet. Hoang was disoriented by the bright light and scared by having it flashed into her eyes. One of the other two men, who was wearing a white short-sleeved T-shirt with a dark-green logo on it, grabbed her backpack from her, lifted it over his head and all three men ran off.
For the sake of readability, we will henceforth refer to the two minors by their first names only.
Hoang testified that she did not struggle to keep her backpack, though she was “holding onto it pretty tightly” and it was “tugged” out of her hand. She called out for help but no one responded. As she turned to head home, Hoang saw two people playing with a dog at a nearby home so she approached them and told them she had been robbed.
b. Tuong Lau’s testimony
Lau testified that he was at a friend’s house with his dog near the Abel Street underpass in Milpitas on the evening of September 1, 2008. Lau’s dog, which normally does not bark, began barking at three men across the street walking towards the underpass. Lau looked over and saw the three men, but thought they were “ordinary kids going home” so he did not pay close attention to them. He noticed that one was wearing a light-colored top and the other two had dark tops.
Approximately 45 to 90 seconds after he lost sight of the three men, an elderly woman ran up to Lau and his friend. The woman, Hoang, was shaking, and appeared panicked. After asking if they spoke Vietnamese, Hoang told them she was “so scared” and that she had been robbed. Lau and his friend, along with Lau’s dog, ran after the three men, but did not catch them. As they gave chase, Lau’s friend used his cell phone to call the police.
c. Edward’s testimony
Edward testified that he was at a park in Milpitas playing handball with Perales and Alex. According to Edward, he and Perales were not “close friends,” and though he would sometimes see Perales at family events, he did not socialize with him otherwise. A little after 8:30 p.m., Perales and Edward started walking to a nearby convenience store to purchase cigarettes. Edward said that Alex did not accompany them, but went home instead.
On the way to the convenience store, Edward saw a woman walking under an underpass, rolling a backpack behind her. Edward had recently run away from a group home and felt that he needed money, so he ran toward the woman. Perales, who was walking behind Edward, asked what he was doing, but Edward ignored him. When he reached the woman, Edward shined a flashlight in her face and tried to grab her backpack. He yelled at her to give him the backpack, but she grabbed it and did not immediately let go. Edward pulled it out of her hands and ran off.
Perales followed after Edward who ran a couple of blocks to some railroad tracks, where he abandoned the backpack. Edward had seen a police car behind him, so he hid in some bushes near the tracks, where he was eventually arrested. Edward initially denied being involved in the theft of the backpack, but in October 2008, entered a plea in the juvenile proceedings brought against him In relation to this case.
On the night of the crime, Edward testified that he was wearing a black sweater over a white T-shirt, and black and yellow shorts. He said that the T-shirt had a shark symbol and perhaps some writing on it.
d. Responding police officers’ testimony
At 9:49 p.m. on September 1, 2008, Milpitas Police Officer Kenneth Hansen received a report of a robbery in the area of Maryland Drive and Abel Street. Hansen was advised to look for two Hispanic males, one wearing a white shirt and approximately five feet ten inches tall, and the other wearing a gray sweatshirt and approximately six feet tall.
Approximately eight minutes after the robbery was reported, Hansen was parked on a street in the general vicinity of the incident, when he observed Perales emerge from a darkened area near some shrubs and trees between two duplexes down the street. Perales walked slowly towards the sidewalk, looking left and right. Hansen turned on his headlights and drove towards Perales, who began walking away. Hansen illuminated Perales with his spotlight and turned on his red emergency light, but Perales continued walking.
Hansen stopped his patrol car about 20 feet away from Perales, exited his vehicle and called out, “Police officer. Stop.” Perales continued walking. Hansen repeated his instruction, but was again ignored by Perales. The third time, Hansen yelled something like, “Police officer. You in the shorts, in the white shirt, stop,” at which point Perales came to a halt. Perales was wearing a white, short-sleeve T-shirt with black and teal writing and a shark logo on the front, and gray sweat shorts.
Hansen also testified that the area where he contacted Perales was approximately 200 yards from the location where Edward was apprehended.
Officer Jason Speckenheuer testified that he responded to the report of the robbery with his K-9 unit and apprehended Edward hiding in some bushes, approximately one-half mile from where the robbery occurred.
Officer John Torrez testified that he interviewed Edward after his arrest and that Edward twice denied being involved in the robbery. When interviewed, Edward was wearing a black or dark grey hooded sweatshirt over a long, white T-shirt. According to Officer Torrez, there was no writing or artwork on Edward’s T-shirt.
2. The defense case
a. Juvenile probation officer Laura Marroquin’s testimony
Marroquin testified that she interviewed Edward the day after the crime. Edward told Marroquin that he was walking ahead of Perales and another friend, and when they passed the victim, he grabbed the backpack from her. All three then ran in different directions. When Edward saw a police car, he abandoned the backpack by the railroad tracks.
b. Perales’s testimony
Perales testified that he had been playing handball with Edward and Alex at a park in Milpitas the night of the robbery, and that the three of them headed to a store to buy snacks and cigarettes about 9:30 p.m. Perales said that Edward’s testimony about their relationship was not truthful, as he has known Edward since he was a child and they know each other well.
Edward and Alex were in front of him as they approached the underpass, when suddenly Perales heard an elderly woman yell and he saw Edward and Alex running. Perales began running, too, and as he ran, he saw Edward was carrying what looked like a piece of luggage.
Perales testified he was wearing a white T-shirt with the words “Cali Ink” and a shark on it on the night of the robbery. Edward and Alex were both wearing dark clothes.
c. Alex’s testimony
Alex was called to testify on Perales’s behalf, but invoked his Fifth Amendment privilege against self-incrimination upon taking the stand and was excused.
3. The verdict and sentencing
Before pronouncing its verdict, the court stated that it found Hoang’s testimony “very credible,” and that she “expressed no bias and made every effort to give truthful answers to the questions asked.” As to Edward, the court noted that it “did not find him credible, and it was difficult to accept many parts of his testimony as truthful.” Based on its “consideration of all of the testimony and comments by counsel,” the court found Perales guilty of robbery (§§ 211, 212.5) and found the alleged enhancements, including a prior strike, to be true.
At sentencing, the court denied Perales’s motion for a new trial and his Romero motion. Perales was sentenced to a term of nine years, consisting of the lower term of two years for the robbery, doubled due to the strike prior, plus five years for a prior serious felony enhancement. The court struck the age enhancement.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
II. Discussion
On appeal, Perales contends that there was insufficient evidence presented to establish that he used greater force than that necessary to obtain Hoang’s backpack or that she gave up her backpack due to fear.
A. Standard of review
The test used to determine a claim of insufficiency of the evidence is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 577.) In making this determination, we review the whole record, viewing the evidence in a light most favorable to the judgment, and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
B. Sufficiency of the evidence of force or fear
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 force or fear.” (§ 211.) “The terms ‘force’ and ‘fear’ as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors.” (People v. Anderson (1966) 64 Cal.2d 633, 640.)
It is well-established that “the force necessary to elevate a theft to a robbery must be something more than that required to seize the property.” (People v. Anderson (2007) 152 Cal.App.4th 919, 946.)
We recognize that “ ‘[f]orce’ is a relative concept,” and that a comparison of the defendant’s physical characteristics with those of the victim “may also be particularly relevant in determining whether the physical act applied by the defendant to the victim constituted ‘force.’ ” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709.) In this case, there is no reliable evidence in the record to make such a comparison. While Hoang was specifically asked during the trial about her age, height and weight, those same questions were not posed to Perales, nor was any other evidence introduced to establish Perales’s age, height and weight. Although Officer Hansen testified that he was directed to look for two Hispanic males, one of whom was five feet ten inches tall and the other of whom was approximately six feet, the record does not disclose if it was Hoang or Lau’s friend, who called the police, who provided those height estimates.
Perales argues that there is no evidence that he threatened Hoang, simulated having a weapon, let alone that he struck or shoved her. While we agree that the existence of any of these factors would demonstrate the requisite force or fear, their absence does not necessarily mean that the necessary force or fear did not exist.
With respect to the issue of force, in this case, there was conflicting testimony about whether Hoang’s backpack was taken from her with more force than was required to seize it. Hoang testified that she did not struggle with the person who took her backpack. The only evidence that there was any struggle came from Edward. However, the court expressly found that Edward was not a credible witness and obviously did not believe that he was the person who actually grabbed the bag. Consequently, there is little evidentiary value to his description of how the bag was wrested from Hoang. Given that Hoang herself said that she did not struggle to hold onto the backpack, the evidence offered at trial does not seem to be sufficient to establish that the robbery was effected by force.
Since “[p]rocuring the property by means of either force or fear is sufficient to comply with the requirements of the [robbery] statute,” we next examine whether there was sufficient evidence that the robbery was accomplished by fear. (People v. Borra (1932) 123 Cal.App. 482, 484.) The fear required for robbery may be instilled in the victim by means other than threatening words, gestures or physical intimidation. “Most robberies involve actual or threatened force, resulting in fear on the part of the victim, at the time the property is taken. [Citation.] However, the requisite fear need not be the result of an express threat.” (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) Just like the force component of robbery, the relative sizes of the defendant and the victim are a factor in assessing whether or not the robbery was accomplished by means of fear. (People v. Brew (1991) 2 Cal.App.4th 99, 104.)
There is ample evidence in this case to support the court’s finding that the theft of Hoang’s backpack was accomplished by fear. We summarize the circumstances leading up to the moment when Perales grabbed the backpack: (1) Hoang, a 76-year-old, five foot tall, 90 pound woman, is walking home alone just before 10:00 p.m.; (2) she sees three young men ahead, who cross the street towards her; and (3) as the men get within a few feet of her, one of them suddenly shines a flashlight into her eyes, which she says scared her and made her dizzy. Hoang’s testimony regarding her fear is corroborated by Lau, who testified that when she came up to him to ask for help, Hoang was scared, shaking and panicked.
Under these circumstances, it was reasonable for the trial court to conclude that Perales took advantage of Hoang’s fear and disorientation to grab her backpack away from her, and as a result, there was sufficient evidence of robbery.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.