In re S.N.

Filed 1/29/07 In re S.N. CA1/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

The minor S.N. appeals from an order of the juvenile court sustaining one count of a petition, which alleged that he attempted to rob a victim named Lolita S. (Pen. Code,  211, 664.)^[1] He alleges that there was insufficient evidence presented at the jurisdictional hearing to prove his specific intent to rob the victim. We reject this claim and affirm.

I.
Factual Background

Evidence adduced at the jurisdictional hearing relating to the sustained allegation of attempted robbery which is the subject of this appeal,^[2]indicated that a group of youngsters were engaging in rave behavior by going crazy or acting hifey, and bumping people on the street outside the Metreon in San Francisco at around 7:22 p.m. on March 30, 2006. Although the minors friend, Jason B., testified that he, the minor, and the two other friends they were with were not a part of this group, other testimony would support the conclusion that they were. Lolita S. was walking outside the Metreon where observed a group of eight to ten young men, one of whom was the minor. Lolita was listening to her iPod, which was in her right jacket pocket with the zipper closed all but one-quarter of an inch, tightly holding the iPod but exposing part of it. She was listening to it with earphones, attached to the iPod with a cord extending from the iPod to her ears.

Lolita was afraid of the group^[3]and tried to avoid them, but the minor blocked her path as another young man tried to grab her iPod. When the young man was unable to pull the iPod out of her pocket, he pulled on the cord to the earphones, knocking the left one from her ear. Lolita was then in the middle of the group. She yelled at the individual who tried to grab her iPod, and he rolled his eyes as if he had done nothing.

Lolita tried to walk away, but the minor walked up to her and tried to grab her iPod; he was able to pull it partially out of her pocket. He held on to the iPod, but Lolita retained possession by pulling her jacket away from him. The minor did not hurt Lolita, but he used enough force to hold on to the iPod until Lolita forcibly pulled it from him by pulling back her jacket. She quickly walked away. Police present at the scene brought her to a street show-up, where she identified the minor and the first young man who accosted her as the individuals who tried to take her iPod. Contrary to the minors assertion here, there was evidence that the minor tried to grab Lolita. Lolita testified that the minor tried to grab my pocket. She went on to testify that she had to pull her jacket away from him and that he held onto it.

San Francisco Police Officer Shaughn Ryan was working undercover near the Metreon when these events occurred. He observed a large group of young men that included the minor, as they assaulted and robbed another victim named Geraldine C. After Geraldine escaped, the group assaulted Lolita. When Lolita fended off the first individual who tried to take her iPod, the minor grabbed the right side of her jacket and tried to pull something from her pocket. Lolita was able to pull and twist away from the minor, and appeared to elbow him. Lolita fled from the group and Officer Ryan followed her. He had to convince Lolita, who appeared really scared, that he was really a police officer (as he was in plain clothes). When a marked police car arrived on the scene, the group of suspects took off running. Officer Ryan ultimately detained the minor and others, and Lolita identified the minor.

II.
Discussion

The parties agree as to the basic law applicable to this case. Attempted robbery requires proof of these elements: (1) the specific intent to commit a robbery and (2) a direct unequivocal overt act toward its commission. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) Robbery itself 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.  (People v. Bacigalupo (1991) 1 Cal.4th 103, 127, italics omitted; Pen. Code,  211.) While the actions of the accused need not have reached the point of the application of force or fear in order for the attempt to be proven (People v. Vizcarra, supra, 110 Cal.App.3d at pp. 862-863), the evidence must demonstrate that the accused intended to apply such force or fear in order to deprive the owner of her property permanently . The intent of the accused may, as the minor concedes in his reply brief, be shown by circumstantial evidence.

Here, there was ample evidence that the minor attempted to commit a robbery, by trying to deprive Lolita permanently of her iPod by the application of physical force and/or fear. His participation in the actions of this group of young men, intimidating individuals on the street by their numbers and actions in jostling individuals and blocking their paths, and then trying to grab Lolitas iPod from her pocket, is sufficient to sustain the juvenile courts finding that the minor had the requisite intent to rob the victim. While it is true, as the minor argues, that the force required for robbery is more than just the quantum of force which is necessary to accomplish the mere seizing of the property,  and must be more than incidental to the seizing of the property, it does not require a great deal of force to be applied. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, overruled on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.) Indeed, in Garcia the defendant apparently gave the cashier a mere tap  in order to grab money out of her register. This rather polite use of force was found to be sufficient to constitute a completed robbery.

The minors use of intimidation by blocking the victims path, along with the number of other individuals surrounding her, as well as the force he directly applied in his attempt to steal her iPod, was sufficient evidence of his intent to apply physical force and/or fear in order to permanently deprive her of her property. The victim testified that while the minor used force,, it was not enough to hurt her but it was almost enough to get her iPod out of her jacket pocket. She had to resist by pulling her jacket away from him. His force was greater than that used by the first minor who attempted to take the iPod. Officer Ryan testified that the minor grabbed onto her right jacket or right side jacket and began trying to pull. It was like he was trying to pull something out of the pocket. He indicated that it appeared that Lolita elbowed the minor with her right elbow and then pulled and twisted away.

Given the totality of the circumstances, we have no problem finding, as did the juvenile court, that there was sufficient evidence of the minors intent to rob Lolita, by using force and/or fear to obtain her property. The fact that the victim was able to escape before further force was applied by the minor, and before the attempted robbery ripened into fruition, does not negate the demonstration of his intent. ( See also People v. Flynn (2000) 77 Cal.App.4th 766, 772 [even though no evidence that defendant did anything to instill fear prior to initial taking, his choice of moment and location of crime, with likely effect of taller and larger defendant accompanied by five fellow gang members on lone female victim, sufficient to establish taking accomplished by fear]; People v. Thomas (2005) 133 Cal.App.4th 488, 494 [force required to make offense robbery is only such force as actually sufficient to overcome the victims resistance]; People v. Brew (1991) 2 Cal.App.4th 99, 104 [evidence defendant, who was much larger in size than clerk, interjected himself between clerk and cash register, causing her to step back in fear, sufficient to support finding defendant took money by fear or intimidation].)

III.
Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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^[1]Other allegations in the petition were found not true. The minor was declared a ward of the court and placed on probation.

^[2]We summarize only the evidence relating to the allegation that is the subject of this appeal.

^[3]Lolita testified that she was a fearless person, who came from a country where worse things had happened to her. Thus, she was shocked and appalled but not really scared. She was relieved when the police came, so she told them she was not afraid.