From Casetext: Smarter Legal Research

In re T.H.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 11, 2012
E052505 (Cal. Ct. App. Jan. 11, 2012)

Opinion

E052505 Super.Ct.No. RIJ118887 Super.Ct.No. JCM215145

01-11-2012

In re T.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.H., Defendant and Appellant.

George W. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Ernest Borunda, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

George W. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

After a court trial, the juvenile court declared T.H., the minor, to a ward of the court based on allegations arising from the unlawful driving or taking of a motor vehicle (Veh. Code, § 10851, subd. (a)) on one occasion, in which he was also found in possession of marijuana (Health & Saf. Code, § 1157, subd. (b)), and gave false information to a peace officer (Veh. Code, § 31; Pen. Code, § 148.9, subd. (a)), as well as robbery of a gold chain (Pen. Code, § 211), and grand theft person (Pen. Code, § 487, subd. (c)), on another occasion. The minor appeals from the judgment of wardship.

The offenses and adjudicatory proceedings took place in San Diego, but were transferred to Riverside County, the county of minor's residence.

On appeal, the minor argues (1) there is insufficient evidence to support the true finding on the robbery count, and (2) a true finding on the grand theft person count was barred because that charge was necessarily included in the greater charge of robbery. We affirm the true finding of robbery but reverse the grand theft person count.

BACKGROUND

August 9, 2010, Offenses:

On August 9, 2010, a motorcycle police officer was doing speed enforcement in San Diego when he saw a Honda vehicle, driven by the minor, traveling at 50 miles per hour in a 35 mile-per-hour zone. The officer pulled in behind the minor and conducted a traffic stop. The minor informed the officer he did not have his license with him, gave the name of Deshawn Waters, and provided a birthdate of January 27, 1997.

The officer wrote a citation and checked the vehicle identification number over the radio, where he learned that the vehicle had been stolen. The officer then placed the minor under arrest and searched him. A small plastic baggie containing 13.3 grams of suspected marijuana was found on the minor. The minor told the officer that his aunt owned the car.

During the traffic stop, another officer drove by and volunteered to help (backup) the arresting officer. When the backup officer contacted the arresting officer, the minor was in the back of a patrol car. The backup officer asked the minor about the correct spelling of the name that had been given to the arresting officer, and the minor informed the backup officer that he had lied about his name. The minor then provided his name and date of birth.

After being admonished of his right to remain silent, the minor admitted he took the vehicle after he saw the driver leave, and after noticing the vehicle had been running with a nail file in the ignition, not keys. The minor admitted he did not have permission to drive or take the vehicle. He also informed the officers he had found the marijuana and planned to trade it for an iPhone, and that he lied about his identity because he was on probation and was scared.

September 12, 2010, Offenses:

At approximately 2:00 p.m. on September 12, 2010, the victim, his three-year-old child, and the child's mother returned to their vehicle after leaving a fair in San Diego. As the victim prepared to secure his child in the car seat, he noticed a white car, either a Honda or Toyota, with two occupants. The occupants of the white car stopped their vehicle near the side of the victim's vehicle, approximately 12 to 15 feet away. One person got out and went to the rear of the victim's vehicle, while the other individual went toward the front of the victim's vehicle. The victim identified the minor in court as the person who stood behind the vehicle. The victim asked them if they were waiting for the parking spot, but one of the two individuals swore at him.

As the victim continued to secure his child in the car seat, he felt someone grabbing the chain necklace he wore around his neck, and pulling it till it broke. The victim grabbed the chain with his left hand and held it. The defendant (who the victim saw when he turned around) realized the victim was holding on to the chain necklace. The mother of the victim's child honked the horn, and the two perpetrators tried to hit the victim. The victim threw the chain on the ground toward the two men. One of the two men picked it up and they drove off. The mother of the victim's son remembered some of the letters on the license plate of the vehicle in which defendant and his companion departed, and provided that information to police officers.

A few hours later, a police officer ran a record check on a silver Chevrolet Cavalier parked in the parking lot of a CVS store, in which the defendant and two companions were occupants. The officer detained them and subsequently learned that the individuals matched the description of the robbers. The occupants of the Cavalier were transported to participate in a curbside lineup. The victim participated in the lineup, identifying the minor and one other individual as the robbers. The victim informed police that the minor was the person standing at the front of the vehicle while the second person, who pulled the chain off, was at the rear of the vehicle. However, at trial, the victim positively identified the minor as the individual standing at the rear of his vehicle, who grabbed the necklace from his neck. Procedural History:

In an amended wardship petition (Welf. & Inst. Code, § 602), the minor was charged with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving stolen property [the 8/9/2010 vehicle] (Pen. Code, § 496d, count 2), giving false information to a peace officer (Veh. Code, § 31, count 3), possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b), count 4), giving false information to a peace officer (Pen. Code, § 148.9, subd. (a), count 5), robbery (Pen. Code, § 211, count 6), receiving stolen property [the 9/12/2010 vehicle] (Pen. Code, § 496d, count 7), and grand theft from the person. (Pen. Code, § 487, subd. (c), count 8).

The adjudicatory hearing was conducted in San Diego on October 13, 2010, and, after hearing the testimony of the witnesses, the court made true findings on all but one count: the court dismissed count 7 due to lack of prosecution. In calculating the minor's maximum confinement, the San Diego juvenile court determined that Penal Code section 654 applied to counts 2 and 8. After aggregating the terms from previously sustained petitions, the court set the minor's total commitment time at eight years. The San Diego juvenile court then transferred the case to Riverside County, the minor's county of residence.

The minor was on probation on prior juvenile court petitions at the time of offenses charged in the current case.
--------

Following the transfer to Riverside, the court placed the minor on probation under various terms and conditions, including placement out of home in a private or county placement facility. On December 7, 2010, the minor appealed from the judgment.

DISCUSSION

On appeal, the minor argues: (1) There is insufficient evidence to support the true finding that he was the person involved in the robbery and grand theft from the person arising from the September 12, 2010, incident; and (2) the charge of grand theft person is a lesser offense included in the charge of robbery, requiring reversal of the true finding on the grand theft person count. We disagree with the minor's contention on the first issue, but agree with the contention in the second issue.

1. There Is Substantial Evidence to Support the True Finding on the Robbery Charge.

The minor argues that the victim's identification of him as one of the robbers did not constitute substantial evidence in light of inconsistencies between his trial testimony and his pretrial statements regarding the minor's location and actions, as well as a tainted curbside lineup procedure. Unfortunately, there was no objection to the admission into evidence of the victim's identification on the ground it was the product of a tainted or suggestive curbside lineup procedure, so any error in admitting the identification testimony has been forfeited. (People v. Medina (1995) 11 Cal.4th 694, 753.) There is substantial evidence to support the true finding.

a. Standard of Review

When a defendant claims insufficient evidence to support a true finding, we must review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we presume the existence of every fact that the trier of fact could reasonably deduce from the evidence. (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322.)

The test is not whether guilt is established beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328, citing Jackson v. Virginia (1979) 443 U.S 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) This standard applies to juvenile delinquency adjudications, also. (In re F.H. (2011) 192 Cal.App.4th 1465, 1469, citing In re Roderick P. (1972) 7 Cal.3d 801, 809.)

b. Analysis

In his pretrial statements to police, the victim stated the minor was at the front of his vehicle and the second person was at the rear; the second person, standing at the rear of the vehicle, was the one who pulled the necklace chain. Minor's counsel also elicited testimony that the license number reported by the mother of the victim's child, as well as the description of the robbers' car, did not match the vehicle in which the minor was a passenger at the time of apprehension a few hours later.

We must presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence, and if the circumstances reasonably justify the trier of fact's findings as to each element of the charged offense, we must affirm even if the circumstances and evidence would support a contrary finding. (In re Brandon G. (2008) 160 Cal.App.4th 1076, 1079-1080, citing People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The victim's testimony established each element of the offense and he positively identified the minor as the robber.

We acknowledge that there was evidence supporting the minor's trial theory that he was misidentified: he was apprehended in a vehicle different from that described by the victim, there were contradictory statements regarding his level of participation in the robbery, and other victims of similar robberies committed in the same vicinity and within 15 minutes of the robbery of the victim in this case did not identify the minor as being involved in that robbery. There was also evidence that he was at a friend's house at or near the time of the robbery.

But the victim made a positive identification of the minor, both at the curbside lineup, and later at trial, although his statements as to what part the minor played in the crime were inconsistent. Despite the conflicting inferences that may be drawn from the evidence, we may not reverse simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Burney (2009) 47 Cal.4th 203, 253; People v. Matta (1976) 57 Cal.App.3d 472, 480.) Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the substantial evidence standard is sufficient to uphold the finding. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) It is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Maury (2003) 30 Cal.4th 342, 403, citing People v. Huston (1943) 21 Cal.2d 690, 693.)

In this case, despite the existence of countervailing evidence suggesting that someone other than the minor committed the robbery, the trial court made the determination that the minor was the individual based on the victim's positive identification, which was admitted into evidence without objection. The identification was not inherently improbable because the minor's alibi witness's testimony left a window of time in which the minor had opportunity to commit the crime and steal another vehicle. The true finding that the minor was the person who committed the robbery is supported by substantial evidence.

2. Grand Theft Person is a Lesser Offense Included in the Crime of Robbery.

The minor argues that he could not be convicted of both robbery and grand theft person because the latter is necessarily included in the former. In response, the People argue that multiple true findings were proper because the victim grabbed his necklace back, interrupting the minor's taking of the property to throw it on the ground, after which it was retrieved by the minor, such that the taking of property with the requisite intent occurred in two steps. The testimony reveals the victim held on to the necklace while the minor continued to pull at it, before throwing it down. Because there was no interruption of the robbery, we conclude the grand theft person was a lesser included offense of the robbery.

Robbery is defined as 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.) Where a person wrests away personal property from another person, who resists the effort to do so, the crime is robbery, not merely theft. (People v. Burns (2009) 172 Cal.App.4th 1251, 1257.) Theft, in whatever form it happens to occur, is a necessarily included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 699.)

Multiple convictions may not be based on necessarily included offenses. (People v. Pearson (1986) 42 Cal.3d 351, 355; People v. Villa (2007) 157 Cal.App.4th 1429, 1434.) Because theft is a lesser included offense of robbery, a person cannot be convicted of both robbery and theft arising from the same course of conduct. (Villa, at p. 1434, citing People v. Ortega, supra, 19 Cal.4th at p. 699.) Where there are multiple convictions of the greater and lesser offense, if the evidence supports the finding as to the greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed. (People v. Milward (2011) 52 Cal.4th 580, 589, citing People v. Moran (1970) 1 Cal.3d 755, 763.)

The People urge us to find that there was both a robbery and a grand theft from the person, based on the "two-step" taking analysis of In re Jesus O. (2007) 40 Cal.4th 859. In that case, the juvenile, Jesus, and his companion, intending to steal property, accosted the victim as he and his friends left a restaurant, intending to steal property. Jesus asked the victim if he had any money, and then punched one of the victim's associates in the mouth after the victim responded that he did not have any money. A fight broke out, during which Jesus's confederate threatened to shank the victim. Subsequently the victim and his friends fled. (Id. at pp. 861-862.)

Later, the victim checked his pants pocket and discovered that his cellular telephone was missing. One of the victim's associates saw the telephone on the ground in the alley, and observed Jesus's companion pick it up. Jesus was charged with both grand theft from the person and attempted robbery. The juvenile court found Jesus had committed grand theft from the person, and attempted robbery, but the reviewing court found the evidence insufficient to support a finding that the theft of the telephone was from the person, and reduced the finding of grand theft to petty theft. (In re Jesus O., supra, 40 Cal.4th at p. 862.)

The sole issue for review was whether the taking of the cellular telephone was grand theft from the person, or petty theft. (In re Jesus O., supra, 40 Cal.4th at p. 862.) The court noted that the juvenile and his cohort had the intent to steal money, which they did not successfully obtain, at the time of the assault, and that this intent satisfied the larcenous intent for grand theft. (Id. at p. 868.) Thus, the court determined that the juveniles took the telephone from the victim's person with the intent to steal, although in two stages, because the juvenile and his cohort had caused the victim to be separated from the telephone, while the victim was present.

The Supreme Court did not consider or determine whether or not the juvenile had been properly found to have committed two offenses (robbery and grand theft person) based on the taking of a single item during a single continuous incident while the victim was still present. Because the victims in In re Jesus O. had fled, leaving the juveniles in a place of temporary safety, the attempted robbery of the money could properly be considered over, before the telephone was taken. Arguably, the attempted robbery had ended before Jesus's cohort found and picked up the telephone. In the present case, the struggle to gain possession of the chain necklace was ongoing, and the departure of the minor and his companion did not occur until the necklace had been obtained, while still in the victim's presence.

Nor did the court discuss the principle that the taking of more than one article during a theft or robbery constitutes but a single crime. (See People v. Jaska (2011) 194 Cal.App.4th 971, 981-983 [multiple theft convictions are prohibited where the defendant commits a series of thefts pursuant to a single intention], citing People v. Bailey (1961) 55 Cal.2d 514, 519; see also People v. Rush (1993) 16 Cal.App.4th 20, 25 [a defendant who steals various items by force or fear, in a continuing transaction, commits but one offense and the loot may not be splintered into separate counts of theft].) Nor did the court consider that robbery is a crime which is spread over distance and varying periods of time, encompassing three phases: the assault of the victim, seizure of the victim's property, and the robber's escape to a location of temporary safety. (See People v. Laursen (1972) 8 Cal.3d 192, 199-200; see also People v. Irvin (1991) 230 Cal.App.3d 180, 185 [defendant relieved victim of her purse and money and then, a short time later, removed her car from her].)

Because an opinion is not authority for a proposition not considered (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66; In re A.B. (2008) 164 Cal.App.4th 832, 842), and because the facts of the instant case are easily distinguishable from the facts of Jesus O., we conclude the necklace, which was forcibly broken from the victim's neck with the requisite intent to steal, was taken from the victim by force, in one continuous, forcible act. The victim in the present case testified that he felt his chain necklace being pulled from behind and grabbed it as it broke. He was able to hold on to it, and was eventually able to turn around to see that defendant was the person pulling on the necklace. When the defendant and his companion saw that the victim was holding onto the chain, they attempted to hit the victim. It was then that the victim threw the chain down to the ground, where it was grabbed by one of the robbers. The robbery was a single, continuous crime.

Because the minor was found to have committed a robbery and grand theft for the same act of taking the victim's necklace during a single, continuous period and in the victim's presence, the grand theft was necessarily included in the crime of robbery. (People v. Irvin, supra, 230 Cal.App.3d at p. 184.) The true finding on count 8, grand theft from the person, must be reversed.

DISPOSITION

The judgment is reversed as to count 8. The juvenile court is directed to amend the minutes of the jurisdiction hearing, and any subsequent judgment or order, by striking or vacating the true finding as to count 8. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Ramirez P.J. We concur: King J. Codrington J.


Summaries of

In re T.H.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 11, 2012
E052505 (Cal. Ct. App. Jan. 11, 2012)
Case details for

In re T.H.

Case Details

Full title:In re T.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 11, 2012

Citations

E052505 (Cal. Ct. App. Jan. 11, 2012)