In re Kevin W.

Filed 4/24/07 In re Kevin W. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

David Schachter did not meekly accept being a victim of crime. When his laptop computer was snatched while he waited for a bus, he immediately began pursuing the thief and saw him enter a waiting car. Schachter grabbed the cars door in an attempt to prevent the thiefs escape, and was dragged half a block before letting go as the car accelerated. Although Schacters efforts to regain possession of his property were not successful, they were observed, and with the help of bystanders, and the prompt intervention by the police, the thief was apprehended.

The juvenile court concluded that appellant Kevin W. was the thief, and that in the circumstances surrounding his taking of Schachters computer he had committed second degree robbery (Pen. Code,  211). The court further concluded that Schachter was also the victim of assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)) for the injuries suffered falling from the car. Appellant was declared a ward of the court, and committed to the probation department for an out‑of‑home placement.

Appellant contends that the evidence is insufficient to establish that he committed either the robbery or the assault. He also contends the matter must be remanded because the juvenile court did not comply with its statutory duty to exercise its discretion and determine whether the assault would be treated as a felony or a misdemeanor. We conclude that there is substantial evidence that appellant committed robbery and assault. We further conclude that a remand is not necessary because the record shows that the juvenile court was aware of its discretion and exercised it by treating the assault as a felony. In light of these conclusions, we affirm.

BACKGROUND

The evidence received at the jurisdictional hearing, viewed most favorably in support of the juvenile courts decision (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615; In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404), shows the following:

Shortly after midnight on December 16, 2005, Schachter was reading an article on his laptop while waiting for a San Francisco streetcar, when suddenly [the computer] was not in my hands anymore. It was in the hands of a young man running away from me. I got up and gave chase. Schachter pursued the man for about two blocks when he saw him jump into the passenger side of a dark-colored Honda that was parked in a driveway.

Schachter grabbed the handle of the drivers side (the side closest to him) and tried to open it, but it was locked; he then pounded with his fist on the drivers side window. According to Schachter, the car very quickly started to move, and I grabbed onto the radio antenna and was dragged down the street by the car . . . [] . . . [] trying to figure out how to get up onto the car, figuring that if I got on the hood maybe it would stop. He was in this position for about half a block, while the car was traveling 10‑to‑20 m.p.h. Schachter then let go because it became clear to me that the driver was not going to stop, and I didnt want to get hit by another car. Schachter suffered abrasions on his head, knee, and hands.

After Schachter came to a rest, he approached a police car driven by Officer Pomatto, who had already seen Schachter hanging from the drivers side door of the Honda. Officer Pomatto described the Honda as traveling at a high rate of speed as it went through a stop sign, with its lights off. The Honda roared past Officer Pomattos cruiser, almost striking a pedestrian with whom he was talking. Schachter told Officer Pomatto what had happened. Officer Pomatto and his partner drove off in pursuit of the car Schachter pointed out to them, the partner broadcasting that they were chasing a possible carjacking. Schachter then called 911, and additional officers quickly arrived.

Jason Felix was also waiting for the bus when he saw a man grab Schachters computer. Felix also saw Schachters pursuit of the thief because he joined the chase. Felix noted that the thiefs hair was braided into cornrows. Although Felix did not see the thief get into the car, he did observe Schachter holding onto the car as it drove away.

David Palmer was working as a security guard for a nearby housing project. He and his partner were at the 400 block of Rose Street when they heard the police broadcast about a carjacking, and then saw a car coming down the wrong way of the alley with its lights out. When the occupants of this vehicle saw Palmers car, which Palmer described as maybe . . . look[ing] like a police vehicle . . . the subjects jumped out . . . started running away from us. Officer Pomattos cruiser appeared on the scene and screeched to a halt, and Palmer and his partner took up the chase of the subjects, concluding that they ditched the car, seeing as they were running from the police, so we gave chase to provide assistance to the police.

Palmer chased the two persons who jumped out of the car, who shortly after the chase began split up and ran in different directions. Palmer saw one of the men run onto Haight Street and, knowing the area and that there were police vehicles on Haight Street, took up position at a spot in Rose Street where he reckoned the man would appear after seeing and evading the police. However, the first person who appeared was Officer Pomatto, who had been chasing appellant down Rose Street from Haight Street, who was soon followed by another officer. The officers went into an alleyway and apprehended appellant, who was hiding behind a recycling bin. The car Palmer identified as the one abandoned in the alley was the same car the thief had entered, the same one that Schachter tried to stop.

Schachter was brought to the scene, where he identified appellant as he looks like the person who had attacked [him], but [he] couldnt be a hundred-percent sure. He also said that the clothes appellant was wearing were similar to those worn by the man who took his computer. Schachter was shown the Honda, which he believe[d] it [was] the car that dragged me down the street. Inside the car was his computer. At the jurisdictional hearing, Schachter testified that appellant looks like the thief. Felix made positive identifications of appellant both at the scene and at the hearing.

Officer Pomatto estimated that no more than three minutes occurred between his seeing Schachter hanging on to the Honda and appellants apprehension.

Appellants version was that he was simply in the wrong place at the wrong time. He testified that he was in the alley drinking gin when he saw police lights, and that a number of other males and one female were also in the alley, all of whom (like appellant) were African-American. Appellant ran despite a police officer ordering him to stop, doing so because he was out past his curfew, and he hid until he was discovered. Appellant testified he did not take the laptop, and was never in the Honda.

On cross-examination, appellant admitted he had a curfew because I was on probation for robbery. All of the other persons in the alley also ran when the police appeared.

A police technician called by the defense testified that she dusted the laptop for fingerprints and found none; however, on cross-examination she admitted she had never recovered a fingerprint from a laptop. Another technician recovered fingerprints from inside and outside of the Honda, but they were not from appellant.

DISCUSSION
I

Appellant first contends that the evidence he committed robbery was insufficient because it does not establish that Schachters laptop was obtained by means of force or fear as required for robbery. We disagree.

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. (Pen. Code,  211.) If the taking is not accomplished by force or fear, it is only theft. (E.g., People v. Church (1897) 116 Cal. 300, 304; People v. Jackson (2005) 128 Cal.App.4th 1326, 1331.)

With respect to a taking accomplished by force, the quantum of force required is not great. It need only be more than the amount of force needed to gain possession of the property. (People v. Thomas (2005) 133 Cal.App.4th 488, 494; People v. Garcia (1996) 45 Cal.App.4th 1242, 1246.) Once this minimum has been exceeded, for purposes of the crime of robbery, the degree of force is immaterial. (Id. at p. 1246.)

But robbery is not limited to situations where force or fear is experienced at or before the actual seizing of the victims property. In the civil law context Judge Cardozo penned the famous aphorism of human conduct that Danger invites rescue. (Wagner v. International Ry. Co. (1921) 232 N.Y. 176, 180 [133 N.E. 437].) No less inexorable a law of human nature is that not all victims will stand passively by when their property is wrongfully taken. (See People v. Frye (1998) 18 Cal.4th 894, 956 and decisions there cited.) Force, or the threat of it, is common in robbery for the obvious purposes of forestalling resistance by the victim, preventing the victim from calling police, or deterring efforts by the victim to regain possession of the property.

Robbery is not viewed as a single moment when all elements must necessarily coincide. Experience has taught that the use of threat or force often comes after possession of anothers property has been wrongfully obtained. Thus, our Supreme Court has noted that mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. [Citations.] In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. [Citation.] Thus . . . the asportation component of the taking continues while the loot is carried away, and does not end on slight movement. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8.)

Following this lead, one Court of Appeal has held:  Gaining possession or . . . carrying away includes . . . deterring a victim from preventing the theft or attempting to immediately reclaim the property. . . . [] . . . The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772, italics added.) The same court further held: A theft or robbery remains in progress until the perpetrator has reached a place of temporary safety. [Citation.] The scene of the crime is not such a location, at least as long as the victim remains at hand. (Id. at p. 772.)

This precedent does not stand by itself. In 1961, Division Three of this District examined California authorities and distilled the following rule: The escape of the robber with the loot is a part of the robbery itself, and this has been repeatedly affirmed in many California cases. [Citations.] (People v. Phillips (1962) 201 Cal.App.2d 383, 385; cited with approval in People v. Anderson (1966) 64 Cal.2d 633, 638‑639; see also 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property,  95, p. 127.)

Another Court of Appeal has reached the same conclusion, using a slightly different approach. Directing its attention to the statutory requirement that the taking must be from the victims immediate presence, the court held: The immediate presence component focuses on whether the stolen property was located in an area in which the victim could have expected to take effective steps to retain control over his property. . . . [] . . . Circumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victims property, but then uses force to retain or escape with it. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222.) The court then quoted People v. Estes (1983) 147 Cal.App.3d 23, 27, for the proposition that, by preventing the victim from regaining control over the stolen property,  [the] defendant is held to have taken the property as if the [victim] had actual possession of the goods in the first instance.  (Miller v. Superior Court, supra, 115 Cal.App.4th 216, 222-223.)

Finally, the court cited an excerpt from Estes that is particularly germane to conceptualizing the scope of action which the law penalizes as robbery: The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. . . . The crime is not divisible into a series of separate acts. Defendants guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.] Whether appellant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied . . . in furtherance of the robbery and can properly be used to sustain the conviction. (People v. Estes, supra, 147 Cal.App.3d 23, 28, partially quoted in Miller v.Superior Court, supra, 115 Cal.App.4th 216, 223.)

We endorsed these thoughts in People v. Pham (1993) 15 Cal.App.4th 61. There, the robber fled with the loot and was chased by one of the victims, and caught. The robber fought vigorously with fist and foot until police arrived and arrested him. (Id. at p. 64.) We affirmed the robbery conviction, holding there was sufficient evidence for the jury to conclude that appellant forcibly asported or carried away the victims property when he physically resisted their attempts to regain it. (Id. at p. 67.)

Applying these principles, it is quickly apparent that we cannot sustain appellants claim that the evidence is not sufficient to establish robbery. We accept that the original taking of Schachters computer was accomplished without force or fear. But the asportation component of robbery did not conclude at that moment. (See People v.Cooper, supra, 53 Cal.3d 1158, 1165, fn. 8.) Because Schachter immediately gave chase to regain his property, his immediate presence shifted from the bus stop to the Honda. His pursuit and resistance made the Honda an extension of the bus stop as the locus of the crime. (People v. Flynn, supra, 77 Cal.App.4th 766, 772.)

Appellant argues that the conduct of the Hondas occupants did not constitute the use of force as required by Penal Code section 211. There was nothing inherently violent about the way in which the Honda drove away; there is no evidence that the thieves aimed the car at Schachter or drove so erratically that he would be thrown from the vehicle, for example. In fact, there is no evidence to suggest that they would have acted any differently had Mr. Schachter not hung on to the vehicle . . . . Significantly, had Mr. Schachter not grabbed on to the car, there would be no basis to find that a robbery had occurred. . . . [] . . . The persons who took the laptop did not apply force against Mr. Schachter when he pursued them. They did not maneuver the Honda in a manner so as to injure him or to apply force to him. Their conduct was not violent and could not have resulted in any injury to Schachter had he not decided to grab on to the moving car. As emphatically as is possible, we reject this reasoning.

To put it as mildly as we can, it is neither appropriate, nor efficacious, for the criminal to try to shift any portion of blame to the victim. As explained above, it is natural and foreseeable that some victims will pursue thieves in an effort to regain property wrongfully taken from them. What Judge Cardozo said with respect to negligence is no less true with respect to how California views robbery: The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. . . . The risk . . . is born of the occasion. (Wagnerv. International Ry. Co., supra, 133 N.E. 437.)

Appellant also takes too selective a view of the evidence, and implicitly invites us to reweigh the testimony in his favor. This we cannot do, for our function is to examine the entire record to determine only whether it has substantial evidence to support the juvenile courts finding that appellant robbed Schachter. (E.g., In re S.C. (2006) 138 Cal.App.4th 396, 415; In re Cheri T., supra, 70 Cal.App.4th 1400, 1404.)

Thus, for example, it does not matter that the Honda was not driven at Schachter with an aim of running into him. In any event, such an interpretation would not be indulged, because Schachter testified that he had already reached the vehicle and tried to open the drivers side door before the car started moving. It is equally irrelevant to consider what the fleeing thief did not do to Schachter, because we must consider what was in fact done to him. And the evidence on that point is more than sufficient.

First, there is evidence that supports the inference that the persons inside the Honda did expose Schachter to a substantial risk of harm. The evidence can be read as showing that the occupants of the Honda knew that Schachter was in pursuit. He testified that as soon as he reached the Honda he tried to open the drivers side door, but it was locked; that he pounded on the drivers side window; and that when the car began moving, he grabbed the cars antenna. This was obviously a dangerous position, fraught with the potential for physical injury. Moreover, Officer Pomatto testified that the Honda was traveling at a high rate of speed, and that it came so close when it drove past Officer Pomattos vehicle that he had to pull a pedestrian out of the way. In this context, Schachters testimony that he let go because I didnt want to get hit, and that while hanging on I was concentrating on not getting caught under the wheels of the car, assumes a very ominous connotation.

Reasonable inferences from this evidence are that the occupants of the Honda: (1) knew that Schachter was trying to regain possession of his laptop; (2) knew that Schachter was hanging onto the car after it began moving; (3) thought that by driving off Schachter might give up the chase; and (4) concluded that when Schachter continued to hang on that efforts such as increasing speed and almost hitting cars or pedestrians might get him to desist. Because these are reasonable inferences, we assume the juvenile court drew them. (In re Arcenio V., supra, 141 Cal.App.4th 613, 615; In re S. C., supra, 138 Cal.App.4th 396, 415.)

Appellants argument proceeds on the assumption that the evidence will not establish that force was applied to Schachter except in the sense of what Schachter in effect did to himself. Whether Schachters being dragged on the car before he decided to let go amounts to force for purposes of Penal Code section 211 presents an interesting question. But it is not one which demands an answer. For regardless of the answer that inquiry might produce, it is quite clear that Schachter gave up his efforts to retrieve his property because he was afraid of possible injury. Although Schachter did not expressly testify that he acted because he was afraid, the juvenile court, sitting as the trier of fact, was entitled to conclude that fear for his personal safety was the key. (E.g., People v. Cuevas (2001) 89 Cal.App.4th 689, 698; People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.) That is enough for robberyand enough to sustain the juvenile courts finding.

II

Appellant next contends that the evidence for assault is not sufficient because it does not establish that the driver of the Honda intended to use the car as a weapon against David Schachter, or in a manner likely to produce great bodily injury. As set forth earlier [i.e., appellants first argument about robbery], the car began to move before Schachter grabbed on to it. The car was traveling, by Schachters estimate, only 10‑20 miles per hour, a reasonable speed for a city street. There is no evidence that the driver intentionally maneuvered the Honda so as to cause Schachter injury, for example by weaving or stopping abruptly. We are not persuaded.

Appellant analyzes a number of decisions involving the use of automobiles and resulting convictions for violating Penal Code section 245 (People v. Jones (1981) 123 Cal.App.3d 83; People v. Cotton (1980) 113 Cal.App.3d 294; People v. Finney (1980) 110 Cal.App.3d 705; People v. Claborn (1964) 224 Cal.App.2d 38), and from them discerns the principle that an accuseds conduct must go beyond recklessness to show that the car was intentionally used . . . as a weapon. Appellants analysis is unavailing for at least two reasons.

First, the decisions cited by appellant all involve situations where the appellant‑driver was charged with assault with a deadly weapon. (See People v. Jones, supra, 123 Cal.App.3d 83, 87, 95-96 [appellants car struck another car during police chase; conviction reversed]; People v. Cotton, supra, 113 Cal.App.3d 294, 301 [defendant collided with pursuing police car while trying to evade it; conviction reversed]; People v. Finney, supra, 110 Cal.App.3d 705, 715-716 [defendant repeatedly rammed police cars; conviction affirmed]; People v. Claborn, supra, 224 Cal.App.2d 38, 41 [defendant tried to ram police vehicle to avoid apprehension; conviction affirmed].) Here, however, appellant was alleged only to have committed an assault upon David Schachter by means of force likely to produce great bodily injury. There was no claim by the prosecutor, and no evidence in the record, that Schachter was injured by the Honda used as a weapon.

Second, appellant appears to treat a violation of Penal Code section 245, subdivision (a)(1) as a specific intent offense. It is not. All of the decisions cited by appellant predate People v. Colantuono (1994) 7 Cal.4th 206, in which our Supreme Court held that assault is a general intent crime (id. at pp. 215-216), and that the mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. (Id. at p. 214.)

Five years ago, the court clarified Colantuono and reiterated its central holding: [A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790.) In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur. (Id. at p. 788, fn. omitted.)

The court in Williams reiterated a statement from Colantuono that mere recklessness or criminal negligence is still not enough to convict for assault. (People v.Williams, supra, 26 Cal.4th 779, 788.) It went on explain: In stating that reckless conduct cannot constitute an assault . . . Colantuono meant recklessness in its historical sense as a synonym for criminal negligence, rather than its more modern conception as an appreciation of the risk of harm to another. (Id. at p. 788, fn. 4.) In light of these authorities, we conclude that the juvenile court had an ample basis for concluding that the evidence showed more than just recklessness, and satisfied the mental state required for assault.

As shown in part I, ante, there was abundant evidenceSchachters trying to open the Hondas door, pounding on the window, and holding onto the antennafrom which it could be concluded that the occupants of the Honda were aware when they started forward that Schachter was holding onto the car. Officer Pomatto testified that he first observed the Honda when it illegally went through a stop sign, at a high rate of speed with its lights off, and with Schachter hanging on. And that other vehicles were in the vicinity is clear from the testimony from Schachter and Officer Pomatto.

These circumstances establish a situation with a significant potential for physical danger. The peril would extend to pedestrians (as witness the near miss to the person talking with Officer Pomatto), and to occupants of other vehicles. And most clearly the risk of harm would also extend to a person being dragged by the Honda as it sped along an urban street at night with its lights out.

It was not necessary for appellant to push Schachter off the Honda, or for the car itself to be the direct agent and most proximate cause of the victims injuries. One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) It is the injury-producing potential of the moving vehicle that supplies the likelihood of great bodily injury or worse. (People v. Russell (2005) 129 Cal.App.4th 776, 788.)

In light of the foregoing, we conclude that there was substantial evidence from which a rational trier of fact could determine that the occupants of the Honda had knowledge of the risks to Schachter if the Honda began moving while he was hanging on. The juvenile court, sitting as the trier of fact, could also find that the force used on Schachter constituted force likely to cause great bodily injury. In light of these conclusions, there is no basis for overturning the juvenile courts ultimate finding that appellant committed assault with that quantum of force.

III

A violation of Penal Code section 245, subdivision (a)(1) is punishable by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. It is thus what is colloquially known as a wobbler, that is, an offense that may be punished as either a felony or a misdemeanor. (Pen. Code,  17.) When a minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the [juvenile ] court shall declare the offense to be a misdemeanor or a felony. (Welf. & Inst. Code,  702.) This is a mandatory duty. (Cal. Rules of Court, rules 5.780(e)(5), 5.795(a); In re Manzy W. (1997) 14 Cal.4th 1199, 1204 and decisions cited.)

Failure to comply with the statutory directive does not automatically require a remand for the juvenile court to perform that duty; the dispositive issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor . . . . (In re Manzy W., supra, 14 Cal.4th 1199, 1209.) If the record does so show, the error may be treated as harmless. (Ibid.)

Appellant contends that a remand is necessary because the record does not establish that the juvenile court was aware of, and exercised, its discretion to declare the assault to be a misdemeanor. The Attorney General responds that a remand would be a pointless waste of judicial resources because (1) the offense was charged as a felony and at no point did the defense argue that the court should treat the offense as a misdemeanor, and (2) the court made written findings that the assault was a felony. We conclude the Attorney General is substantially correct.

The Attorney Generals first point is ineffective, because the pleading can play no part in the inquiry of the courts knowledge. (In re Manzy W., supra, 14 Cal.4th 1199, 1208.) Neither, ordinarily, do the courts minutes. (Ibid.) However, the minutes here are not ordinary minutes, i.e., those that are ministerially prepared by the court clerk. Rather, the minutes for the jurisdictional hearing recite that the court found true the allegation of the petition that appellant committed the assault as a felony. Moreover the minutes for the dispositional hearing have blanks to be filled in depending on whether the robbery and the assault is/are felony(s) or misdemeanor(s). The assault is set out on the line for felony, and the misdemeanor line is left blank. But what makes these sets of minutes particularly special is that both of them are signed by the juvenile court.

These minutes leave no doubt that the experienced juvenile court judge in this case was aware that the assault could be classified as either a felony or a misdemeanor. She chose to treat it as a felony. Because we can answer the question whether the record as a whole that the juvenile court was aware of its discretion to treat the offense as a misdemeanor (In re Manzy W., supra, 14 Cal.4th 1199, 1209), we agree with the Attorney General that it would be pointless to remand for the purpose of requiring the court to articulate its conclusion in a more formalistic manner.

DISPOSITION

The dispositional order is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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