Opinion
H045947
10-03-2019
In re T.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18JV000309 )
The minor, T.S., was declared a ward of the juvenile court based on findings that he committed robbery and first degree burglary. The juvenile court ordered him to serve 365 days in custody. On appeal, the minor contends that the true finding on the robbery allegation was unsupported by sufficient evidence. And he argues the trial court erred in considering rap lyrics he authored in connection with his disposition. In a separate petition for habeas corpus in case No. H046664, which we ordered considered with the appeal, the minor raises a claim of ineffective assistance of counsel based on counsel's failure to object to the admission of the rap lyrics at the dispositional hearing. We affirm the orders of the juvenile court and resolve the habeas corpus petition by separate order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Welfare and Institutions Code Section 602 , Subdivision (a) Petition
The Monterey County District Attorney filed an amended Welfare and Institutions Code section 602, subdivision (a) wardship petition alleging that the minor committed two counts of robbery (Pen. Code, § 211); first degree burglary (§§ 459); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); assault with a deadly weapon (§ 245, subd. (a)(1)); and dissuading a witness by force or threat (§ 136.1 subd. (c)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
B. Jurisdictional Hearing
The juvenile court held a four-day contested jurisdictional hearing in May 2018. The following evidence was adduced.
Eighteen-year-old John Doe 1 lived in a Monterey apartment with his 32-year-old brother, John Doe 2. Early in the afternoon of March 17, 2018, Doe 1 came home from work at a nearby restaurant to eat lunch. He closed the apartment door but did not lock it. At some point, Doe 1 went into the bathroom to wash his face.
Doe 2 was home that afternoon doing work in his bedroom. He had his door partially open and saw people he assumed were his brother's friends enter the living room. He saw one of the people pick up the Play Station 4 and heard one say "slow down, Nick." Doe 2 thought that was odd but was busy working and ignored it.
While Doe 1 was washing his face, he heard something. He looked into the living room, where he saw the minor, the minor's brother Nick, and a third individual he described as a "Caucasian kid." Nick was holding Doe 1's Play Station 4. Doe 1 knew the minor and Nick, but he was surprised to see them and "assume[d] it was some sort of robbery."
Doe 1 asked them to go outside because he didn't want his brother getting involved. They complied. Outside the apartment, Doe 1 asked what was going on. Nick said "Don't call the police" and "Give me everything you've got." Doe 1 testified that "the conversation escalate[d] and intensifie[d]," so he yelled for Doe 2 to come outside. Doe 2 testified that Doe 1 sounded as if "he was scared for his life" when he called out.
When Doe 2 got outside, he saw people running and he chased them on "instinct." He could not remember if he saw his brother or checked in on him but thought he might have. Doe 2 said he was chasing three people at the beginning; when one broke away, he continued to follow the other two. He caught up with the two in a driveway and they beat him up. Doe 2 was unable to identify the people who attacked him other than to describe one as black and the other as white.
The minor and his brother are black.
Doe 1 testified that Doe 2 chased Nick and the third suspect, who fled with the Play Station 4. At some point, the minor pulled out a knife and pointed it at Doe 1. As the others ran, Doe 1 slowly backed away until he was in a corner. The minor then poked him in the "belly" and left arm with the knife. A neighbor came out and the minor ran away.
As discussed below, Doe 1's testimony as to when the minor pulled the knife was inconsistent.
Doe 2 returned to the apartment with a bloody nose and lip. About five minutes later, Doe 1 walked to Chris P.'s house, because he knew that the minor and Nick were friends with Chris. He thought they might be there, and he wanted to get his belongings back. Chris was not home but his parents were. After Doe 1 described what had happened, they called 911.
Doe 2 went to the hospital for his injuries. Police recovered the Play Station 4 from the driveway where Doe 2 had been attacked.
The minor testified that he met Doe 1 in late December 2016. The minor was new in town and was looking for marijuana; he had heard that Doe 1 might have some. The two met up, but the minor declined to buy any marijuana from Doe 1 because he thought the quality was poor. The minor and Doe 1 did not like each other because of that encounter. The minor testified that in January 2018 he went to a party with his friend Chris. When they arrived, the minor realized the party was at Doe 1's apartment. According to the minor, Doe 1 stole a sweatshirt and two electronic cigarettes from him that night. The minor testified that he had a friend take pictures of Doe 1's I.D. and bank card with the intention of buying something; the minor obtained the pictures but did not buy anything using Doe 1's bank card. The minor denied all the allegations in the wardship petition.
Doe 1 denied that the minor had reached out to him in December 2016 about buying marijuana. Doe 1 acknowledged that the minor had spent time at his home in January 2018. He told police he thought the robbery was related to the fact that the suspects thought he had stolen $30 from them.
At the close of the jurisdictional hearing, the juvenile court found one allegation of robbery and the first degree burglary allegation true; it found the other allegations not true.
C. Disposition and Appeal
The court held a dispositional hearing on June 13, 2018. At that time, the court declared the minor a ward of the court, placed him on probation, and—as a term of probation—ordered the minor to serve 451 days in custody at the Monterey County Youth Center Program with credit for 86 days served.
The minor timely appealed from the dispositional order.
II. DISCUSSION
A. Sufficiency of the Evidence to Support the Robbery Adjudication
The minor contends there was insufficient evidence to support the juvenile court's finding that he committed robbery because the evidence failed to show that he took or retained Doe 1's property by means of force or fear. The minor argues that Doe 1's testimony established that the other suspects had fled with the stolen property before he pulled out a knife, such that Doe 1 could not have retained possession of his property regardless of whether he was overcome by force or fear. The Attorney General contends that Doe 1's testimony showed that the minor brandished a knife while the other suspects were still present with the property, such that there was sufficient evidence to satisfy the force or fear element.
1. Factual Background
As the parties' arguments suggest, Doe's 1's testimony was inconsistent as to when the minor first brandished the knife. Doe 1 first testified that the minor pulled a knife on him "[w]hen my brother is chasing Nick and the other person the opposite direction down the hallway of the apartment." Immediately thereafter, Doe 1 testified that the minor pulled the knife "[p]retty much immediately" after he called for his brother. Doe 1 then revised the timeline again, saying he called for his brother "when a knife was pulled out." Next Doe 1 testified that "it all happened all at once," apparently referring to the knife coming out and his brother arriving on the scene and pursuing two of the suspects.
Doe 1 acknowledged that he told police officers at the time of the incident that the minor was pointing a knife at him when Nick said, "Don't call the police." But, at the jurisdictional hearing, he denied that that was true.
On cross-examination, Doe 1 testified to the following order of events: "I called for my brother, and he came out and chased the other two out. That is when the knife got pulled out." On redirect, Doe 1 again acknowledged that he told a police officer that the minor had the knife out long before his brother came outside. And he offered: "That could have been the case, because maybe my memory is more fresh on the date of the incident than as it is now."
Doe 1 also testified that he did not want the minor to get in trouble or "to make this a big deal."
2. Governing Legal Principles
"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." (§ 211.) "The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim's person or immediate presence, and (2) accomplished by the use of force or fear." (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221 (Miller).) " 'The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot.' " (Ibid.) "In order to support a robbery conviction, the taking[—]either the gaining possession or the carrying away[—]must be accomplished by force or fear." (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.) Accordingly, "a robbery occurs when [a] defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which [the] defendant originally acquired the property." (People v. Estes (1983) 147 Cal.App.3d 23, 27-28 (Estes).) Put differently, "where the perpetrator peacefully acquires the victim's property, but then uses force to retain or escape with it," a robbery has been committed. (Miller, supra, at p. 222.)
" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.' [Citation.] Thus, 'we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.' " (In re Cesar V. (2011) 192 Cal.App.4th 989, 994.) Under that standard, "we review the whole 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. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.) " 'The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]' [Citation.]" (In re Robert V. (1982) 132 Cal.App.3d 815, 821.) "[T]he fact that inconsistencies may occur in the testimony of a given witness does not . . . mean that such testimony is necessarily insufficient to support the verdict. It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony." (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878 (Clemmer), overruled on other grounds by Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.)
3. Analysis
The juvenile court, as finder of fact, was free to accept the version of events that Doe 1 first recounted to police and that he acknowledged at the jurisdictional hearing might be more accurate because his memory would have been fresher at the time he relayed it. (Clemmer, supra, 22 Cal.3d at p. 878.) Under that version of events, the minor brandished the knife while the other two suspects were still present with the property. The court reasonably could have inferred that that show of force forestalled any attempt by Doe 1 to regain the property, thereby enabling the minor's accomplices to escape with it. Under those circumstances, a robbery was committed. (See Estes, supra, 147 Cal.App.3d at pp. 27-28; Miller, supra, 115 Cal.App.4th at p. 222.)
The minor argues that, even under the version of events where he brandished the knife while his accomplices and the property were present, there is insufficient evidence of the force or fear element because Doe 1 made no attempt to regain the property. But the crime of robbery does not require a physical attempt to regain the property. As noted above, a robbery occurs when a defendant uses force or fear to retain or escape with the victim's property. (Miller, supra, 115 Cal.App.4th at p. 222.) The juvenile court reasonably could have inferred that the minor brandished the knife to prevent Doe 1 from attempting to get his property back and to facilitate the removal of the property.
Alternatively, there was sufficient evidence of robbery even if the minor did not brandish the knife until Doe 2 arrived on the scene, as Doe 1 testified at times. In that circumstance, the minor's brandishing of the knife reasonably could be viewed as an attempt to prevent Doe 1 from following his brother's lead and trying to regain the property. Doe 1's testimony was that the knife came out just as the property was being carried away. Thus, it would still have been possible for Doe 1 to attempt to regain it. For the foregoing reasons, we conclude the evidence was sufficient to support the juvenile court's finding that the minor committed robbery.
B. Admissibility of the Minor's Rap Lyrics at the Dispositional Hearing
The minor also argues that the juvenile court erred in considering rap lyrics he authored in connection with the disposition. According to the minor, use of the lyrics to increase his punishment violated his First Amendment right to free expression because the lyrics were not relevant.
1. Factual Background
At the jurisdictional hearing, the prosecutor sought to admit evidence of rap lyrics the minor wrote while he was in Juvenile Hall, arguing the lyrics referenced the events underlying the allegations. The lyrics repeatedly referred to killing snitches, firearms, and robberies, among other things. The minor's counsel objected on relevance grounds, contending the lyrics were fictional. The court excluded the evidence under Evidence Code section 352, finding "very, very little probative value" and "certainly prejudicial value" in the lyrics. The court also excluded, pursuant to Evidence Code section 352, pictures posted to the minor's Instagram account, which showed him pointing a gun at the camera with captions like "Ima blow yuh head" and "[I] let it bang." In view of those rulings, the minor's counsel did not call an expert witness he had planned to have testify about the social media posts and lyrics.
Apparently in response to the probation report, the minor's dispositional brief addressed the rap lyrics. The minor argued there that the lyrics were fictional and evidenced no gang affiliation. The prosecutor's dispositional brief—filed after the minor's—relied on the rap lyrics and social media posts to argue that the minor posed a threat to public safety.
At the dispositional hearing the minor's counsel spoke first. He raised the issue of the rap lyrics and argued that that they were "fiction." Counsel also compared the lyrics to other artistic works involving sex and violence, including the movies of Quentin Tarantino and Mario Puzo and the music of Jimi Hendrix and Johnny Cash.
The court pointed to a number of factors in explaining its decision to remove the minor from his home and order him committed to the Youth Center. On the plus side, the court noted the minor's "potential" and "very strong support system," including his "nurturing, dedicated, loving[,] capable . . . [,] educated, resourceful, and very altruistic" parents and an older sister "willing to give up her time and her early professional life to help" him. The court noted that the minor's "parents have tried valiantly to address" the minor's "history of mental health and psychiatric issues, ongoing truancy issues, and significant substance abuse issues," without success. The court contrasted the positive factors with what it saw as the minor's "extremely dark side" reflected in his social media posts and writings, where he "was characterizing himself as a criminal and glamorizing crime." The court also pointed to the minor's actions, including arming himself during the underlying offenses and uncharged conduct in which he "got someone to send him an I.D. and a bank card of the victim" so that he could "commit identity theft."
2. The Claim of Error Has Been Forfeited
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880.) This rule applies in the context of juvenile wardship proceedings. (Ibid.)
At the dispositional hearing, the minor's counsel did not object to the admission of the rap lyric evidence as irrelevant, unduly prejudicial, violative of the minor's First Amendment rights, or otherwise. Instead, counsel attempted to place the lyrics in context by arguing that they were fictional and were no more "connected to criminality" than are movies and popular songs containing violent or sexual themes.
The Attorney General argues that the minor forfeited his challenge to the admission of the rap lyrics by failing to object below. The minor effectively concedes as much, stating that the issue is "properly before this court" because he raised it "in his habeas petition arguing that trial counsel was ineffective for failing to object . . . ." We conclude that the lack of objection below forfeited the claim of error.
III. DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.