In re Brandon S.

Filed 8/21/07 In re Brandon S. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant Brandon S., a minor, appeals from the juvenile courts dispositional order continuing him as ward of the court after finding he committed three counts of second degree robbery, in violation of Penal Code section 211. Appellant contends the evidence was insufficient to support the robbery allegations. We conclude that the evidence was sufficient to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed two of the robberies, but not all three. Accordingly, we affirm the juvenile courts order in part and reverse in part.

Background

The three young female victims, Clarissa (aged 13), M. (aged 13) and Ashley (aged 14), were going home from the cinema on October 13, 2006, at around 10:30 p.m., when they were accosted by a large group of about 15-20 young African-American and Filipino boys. At first, the boys made derogatory sexual remarks to the girls, and the girls told the boys to leave them alone. Next, a smaller group of the boys surrounded the girls, told them to empty out their pockets and give up their money. Clarissa replied she had no money. One of the boys went through her pockets and slapped her on the face, knocking her glasses to the ground. M. gave them about $40 in cash and then her pockets were rifled for change. M. was hit in the face and arm and pushed to the ground. Three of the youths approached Ashley demanding money. They went through her pockets and took 75 cents in change. A couple of the youths threatened to kill the girls if they called the police.

After the youths ran off, the victims flagged down a passing police car. The police obtained general descriptions of the suspects and began to search the locality. Subsequently, the victims were escorted to a total of five in-field lineups at which they identified a number of suspects. Appellant was in the company of Santiago P. when both were detained and positively identified by the victims.

Based on these events, a subsequent petition was filed on October 16, 2006, alleging appellant committed second degree robbery against Clarissa M. (count 1), M. W. (count 2) and Ashley S. (count 3).[1] Appellant and co-responsible Jovany P. (brother of another co-responsible, Santiago P.) contested the robbery allegations at a jurisdictional hearing on November 6, 2006, after which the juvenile court sustained the petition on all three counts as to appellant and discharged Jovany P. At a dispositional hearing on November 20, 2006, the juvenile court continued appellant as a ward of court, determined the maximum period of confinement to be eight years and six months, and committed him to Fouts Youth Facility. Appellant filed a timely notice of appeal. Appellants sole contention on appeal is that the juvenile court sustained the petition on insufficient evidence.

Discussion

In an appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of a petition made under the provisions of section 602 of the Welfare and Institutions Code, 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 Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) [W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellants guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (In re Michael M. (2001) 86 Cal.App.4th 718, 726 [citations and footnotes omitted].) We do not second guess the courts credibility calls or reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) (In re Merrick V. (2004) 122 Cal.App.4th 235, 254.)

Appellant asserts that the weak, contradictory out-of-court identification was insufficient to sustain the petition against him for robbery. In this regard, appellant stresses the fact that Clarissa could not identify him in court as one of the gang who accosted her, Ashley did not identify him in court as one of the youths who searched her, and M. was unable to identify him in court as one of the youths who assaulted her. However, it is not necessary that a prior out-of-court identification be corroborated by an in-court identification. (See People v. Cuevas (1995) 12 Cal.4th 252, 274.) Rather, the probative value of the [out-of-court] identification and whatever other evidence there is in the record are considered together to determine whether a reasonable trier of fact could find the elements of the crime proven beyond a reasonable doubt. (Citations.) (Ibid.)

In this case, Clarissa did not recant her out-of-court identification of appellant. To the contrary, she testified that when she identified appellant at the in-field lineup she was certain he was one of the youths who accosted her. Moreover, there is other evidence in the record supporting the juvenile courts finding. Officer Munoz testified that the victims flagged him down as he was on patrol in Vallejo. The victims told him they had just been robbed and were very upset. After Munoz took the victims statements, he assisted with the in-field lineup of suspects. Munoz testified all three victims identified appellant as one of the robbers. On cross-examination, Officer Munoz stated the only victim who made an identification in his presence was Ashley, and she identified another co-responsible as the one who removed 75 cents from the pocket of her pants. However, Ashley identified appellant as being one of those present during the robbery.

Officer Greenberg testified he conducted a search of the area while Officer Munoz stayed with the three victims. While the officers were still on the scene, appellant came walking down the hill accompanied by Santiago P. Appellant and Santiago P. were detained and thereafter identified by the victims as being involved. Greenberg testified that M. identified appellant as being there during the robbery. Her pockets were already emptied and he came up behind her and told her to empty her pockets and she said they already had. On cross-examination, Greenberg replied that the Filipino male whom Clarissa stated had gone through her pockets was later identified as Santiago P., who was accompanying appellant at the point they were detained.

Appellant testified in his own defense. Appellant claimed he was going to his godsisters house when he noticed a group of males were messing with some young girls. Appellant told the group they were being stupid. After that, he just kept on walking. He denied he messed with any of the girls. On cross-examination, appellant stated Santiago P. walked with him to his godsisters house. Appellant stated he didnt see [Santiago P.] do anything. The prosecutor asked the court to take judicial notice of the fact that Santiago P. admitted one count of robbery, two counts being dismissed with a Harvey waiver. Recalled as a witness, appellant further testified that at first he was walking behind a group of males who were moving towards several girls on the street near the movie house, then I got mixed in the group because I had to go through Doncaster to go to my godsisters house. Appellant stated he was right next to them when he told them what they were doing was stupid. The court then questioned appellant as follows:

Court: If you didnt see anything, why were you telling them it was stupid?

Appellant: Because they were robbing some 13-year-old-girls.

Court: I thought you said that you didnt see anything?

Appellant: I didnt say that. Thats what the officer said. I said I didnt see anyones face.

We conclude the victims out-of-court identification of appellant together with the testimony of Officers Munoz and Greenberg provide substantial evidence appellant robbed M. and Ashley. This evidence shows M. was robbed of over $40 and Ashley robbed of at least 75 cents. It not only places appellant at the scene of the crime, but also shows appellant was an active participant in the robbery because he ordered M. to empty her pockets only to be told she had already done so. Thus, even if appellant did not personally take the money from M. and Ashley, this evidence showed appellant actively aided and abetted the robbery. (People v. Mitchell (1986) 183 Cal.App.3d 325, 330; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 [Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense].)[2] In addition, the juvenile court did not believe appellants testimony that he was not involved in the robbery. This was understandable because appellant testified he was among the group of robbers with Santiago P. but did not see Santiago P. do anything or see anyones face. Yet Santiago P. was identified as the person who rifled through Clarissas pockets and struck her on the face, and he ended up admitting to one count of robbery in return for dismissal of the other two counts.

However, we also conclude that the allegation in count one, robbery of Clarissa, cannot be sustained. To secure a robbery conviction, the following elements must be proved: (1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. [Citation.] (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) Moreover, [t]he taking element of robbery itself has two necessary elements, gaining possession of the victims property and asporting or carrying away the loot. (Citation.) (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) Here, count one cannot be sustained because there is no substantial evidence to show any property belonging to Clarissa was taken from her and carried away.

The Attorney General would have us sustain this count on the basis that, inferably, Clarissas glasses were taken after being knocked from her face. However, Clarissa did not testify one of the robbers took her glasses. She testified one of the robbers slapped her, then My glasses fell off my face. On recross examination, Clarissa was asked if she had spoken with the other victims since the robbery, and, if so, what they had been talking about. Clarissa replied they all three spoke together the day after the robbery and, We were just talking about my glasses being missing and how much my face hurt. . . . Clarissa never alleged her glasses were taken during the robbery, nor did either of the police officers note any such allegation. Neither of the other victims said the robbers took Clarissas glasses. Indeed, M. said the robbers didnt take any money from Clarissa because she had none.

Despite the lack of substantial evidence of taking and asportation as to count one, the Attorney General asserts this element may be inferred, relying on People v. Arline (1970) 13 Cal.App.3d 200 (Arline) (rejected on other grounds by People v. Hall (1986) 41 Cal.3d 826). In Arline, two service station attendants, Jackson and Gomez, were on duty when they were approached by Arline and two others. Arline threatened both employees with a gun, so they handed over the money in the cash box. Arline was charged with robbery of Jackson. On appeal, Arline contended that because Gomez held the key to the cash box he was the only victim. (Arline, supra, 13 Cal.App.3d at pp. 202-203.) The Court of Appeal noted both Gomez and Jackson were employees, both were threatened, and all of the acts occurred while Jackson was physically present. Accordingly, the court concluded that the items taken were within [Jacksons] constructive possession as well as the constructive possession of Gomez. (Id. at p. 202.) Therefore, the court concluded the information was sufficient in charging Arline with robbery of Jackson. (Ibid.)

In Arline, there was no doubt the robbers took the money and made off with itthe issue was whether the robbery victim had actual or constructive possession of the money before it was taken. (Arline, supra, 13 Cal.App.3d at pp. 202-203.) The issue here, by contrast, is whether there was a taking at all. On that question, Arline has no bearing; it certainly does not stand for the proposition that substantial evidence of taking and asportation may be inferred where there is none. In sum, the petition cannot be sustained as to count one.

DISPOSITION

The dispositional order of the juvenile court is reversed as to count one and affirmed as to counts two and three.

_________________________

Horner, J.*

We concur:

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McGuiness, P. J.

_________________________

Pollak, J.

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Appellant was first declared a ward of court under Welfare and Institutions Code section 602 on August 4, 2004.

[2] In his reply brief, appellant complains [t]here is no indication that the prosecution ever presented this [aiding and abetting] theory of guilt to the juvenile court, or that the court sustained the petition as to any of the counts on that theory. Even if thats true, it does not prevent us from affirming on an aiding and abetting theory. (Green v. Superior Court (1985) 40 Cal.3d 126, 138 [holding that where the record fully establishes another basis for affirming the trial courts ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory, . . . the failure to have urged the theory below does not preclude our reliance on it to affirm the trial courts ruling] fn. omitted.)