In re Juan S.











Filed 4/28/17 In re Juan S. CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re JUAN S., a Person Coming Under the Juvenile Court Law.



THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN S.,

Defendant and Appellant.



G053311

(Super. Ct. No. 16DL0252)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Cheryl L. Leininger, Judge. Affirmed.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Kathryn Kirschbaum and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Ruling on a petition pursuant to Welfare and Institutions Code section 602, the juvenile court found the allegation that the minor, Juan S., had committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))[1] to be true. He now appeals, arguing there was insufficient evidence to find the robbery allegation true. More specifically, Juan argues there was not substantial evidence that he used force or fear to accomplish the robbery. We disagree and affirm the judgment.
I
FACTS
On January 27, 2016, Jordan Gavel, a loss prevention officer for CVS, was working at a store in Anaheim. In the midafternoon, he saw Juan in the store wearing a backpack. The backpack was noticeable to him because shoplifters often use backpacks to conceal stolen items. Juan went to the alcohol aisle and attempted to put threeone-liter bottles of liquor into the backpack; one bottle, apparently, would not fit, and he returned it to the shelf. Gavel, who observed this via mirrors from another aisle, went to the exit to wait for Juan to leave, which he eventually did.
Gavel approached Juan outside and said he was a loss prevention agent for CVS. He asked Juan to return the products, but Juan denied taking anything. Gavel said he saw Juan take property from the store, and Juan returned one bottle. Gavel then asked him for identification, and Juan gave him a school ID. Gavel testified: “I went to take a picture of the school I.D. which [was when] he pushed me. I tried to take a picture. The picture was blurry and then he got aggressive. . . .[¶]. . . [¶] . . . and asked for the other bottle of alcohol back. I told him the police were right behind him.” Juan said to Gavel multiple times, “Do you want to get f[–]ed up?” When demanding the alcohol back, Juan said: “Give me the alcohol back. If you don’t want to get f[–]ed up, give me the alcohol back.” As he said this, he gave Gavel a “soft push.”
Gavel was afraid because he did not know Juan and did not know what he was capable of doing. Juan told Gavel he could not get the other bottle out “because he had drug paraphernalia in his backpack.” Gavel, who had at some point returned the school ID, picked up the bottle of alcohol Juan had removed from his backpack and went back into the store, where the police were called. The second bottle was not recovered.
The supervisor on duty in the store that day, Ngoc Tran, saw Juan in the store. He said Juan seemed “tipsy.” He saw the bottle that was recovered from Juan, but did not witness Juan take anything in the store, and never checked the inventory to see what was missing.
CVS provided a photograph to the police, from which Juan’s identity was ascertained. A robbery detective spoke to Juan at the station about two weeks after the incident. Juan recalled the incident and did not deny his presence. He could not remember if he threatened Gavel. Juan told the detective that “he may have because [Gavel] wasn’t going to give him back his ID.” Juan also said he was intoxicated that day.
At trial, Juan testified on his own behalf. He said he attempted to take two bottles, but one would not fit and he put it back on the shelf. He said only one bottle would fit because his backpack already contained a gram of marijuana, school papers, and a brick-size speaker.
With respect to the encounter with Gavel outside, Juan testified Gavel accused him of taking four bottles, but Juan told Gavel he only had one and agreed to give it back. After Gavel took a picture of his identification, Juan asked for it back, but Gavel, he testified, snatched it away from him. Gavel asked to see inside Juan’s backpack, but Juan would not let him look because he also had drugs in the backpack.
When asked if he had any physical contact with Gavel, he said he did not remember any such contact. He heard Gavel say the cops were behind him, then he left, without any liquor, because the police were coming and he did not want to get caught.
The court found the robbery allegation true, and Juan was ordered to serve 175 days in custody in a juvenile institution, less credit for time served.
II
DISCUSSION
The only issues on appeal are whether there was substantial evidence of “force or fear” within the definition of the robbery statute and whether a robbery was completed. (§ 211.)

Standard of Review
“Our role in considering an insufficiency of the evidence claim is quite limited. We . . . review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the . . . verdict. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Substantial evidence is “evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11.) We presume the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 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. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young, supra,34 Cal.4th at p. 1181.)
Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Completed Robbery Committed by Force or Fear
Juan argues there was insufficient evidence to demonstrate a completed robbery committed by force or fear. He argues only three items could have constituted the property that was the basis for the conviction: Juan’s identification, the bottle Juan gave to Gavel, or the bottle in Juan’s backpack.
The first two items are red herrings. As to the bottle in Juan’s backpack, there was both sufficient evidence that its presence resulted in a completed robbery and that Juan used force or fear to carry it away. Gavel testified he saw Juan put two bottles in his backpack. Despite Juan’s contrary and self-serving testimony, the court was free to believe Gavel. “[I]t 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 on which that determination depends. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) Further, Gavel’s testimony is sufficient to establish this fact. (People v. Young, supra,34 Cal.4th at p. 1181.)
A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain the property, carry it away, or escape. (People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) “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; see People v. Kelley (1990) 220 Cal.App.3d 1358, 1366.)
Robberies in which force or fear is not used until after the perpetrator has already taken the loot “are commonly referred to as ‘Estesrobberies.’” (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.) The terms “‘force’” and “‘fear,’” have no technical meaningpeculiar to the law. (People v. Anderson (1966) 64 Cal.2d 633, 640.) “[T]he degree of force is immaterial.” (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) “The requisite fearneed not be the result of an express threat or the use of a weapon.” (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)
Juan argues that there was no use of force or fear in his attempt to carry away the second bottle, located in his backpack. He argues that his verbal threat was not about that bottle, which was already in his possession. He further contends it is not “reasonable to believe that the ‘soft push’ [he] gave to Gavel . . . was an effort to use force to maintain or obtain possession of the bottle [he] had in his backpack, since [he] could (and ultimately did) simply walk away with the bottle.”
We disagree. There is every reason to believe that Juan’s “soft push” was both an attempt to retain the bottle he currently had as well as regaining possession of the bottle he surrendered. Indeed, it would be illogical to believe otherwise. Juan obviously wanted the first bottle back – it belies logic to believe he was uninterested in retaining the second bottle as well. Further, he used both threats and force to do so, eventually leaving with the second bottle and completing the robbery. Accordingly, his actions fulfilled all the necessary elements of robbery. His argument seems to boil down to the idea that he should get “extra credit” for surrendering half the loot that he stole, but that, simply, is not the law.
III
DISPOSITION
The juvenile court’s judgment is affirmed.



MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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[1] Subsequent statutory references are to the Penal Code unless otherwise indicated.