Filed 1/4/18 P. v. Ferguson & Hernandez CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH FERGUSON,

Defendant and Appellant. F071365

(Super. Ct. No. BF158229A)



THE PEOPLE,

Plaintiff and Respondent,

v.

NICTE HERNANDEZ,

Defendant and Appellant.

(Super. Ct. No. BF158229B)


OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Ferguson.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant Nicte Hernandez.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This case arises from the theft of a wallet by defendant Nicte Hernandez. While the victim was trying to retrieve his wallet from Hernandez, codefendant Joseph Ferguson hit him in the face and knocked his tooth out. Hernandez and Ferguson then fled in Ferguson’s car but were arrested shortly thereafter.
Following their trial by jury, Hernandez and Ferguson were convicted of robbery (Pen. Code, § 212.5, subd. (c)) (count 1), battery with serious bodily injury (§ 243, subd. (d)) (count 2), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 3). The trial court sentenced Hernandez to the middle term of three years in state prison for robbery. Ferguson was sentenced to a total determinate term of 11 years in state prison for robbery as follows: the court imposed the middle term of three years, doubled due to his prior strike conviction, and the sentence was enhanced by an additional five years pursuant to section 667, subdivision (a), based on his prior serious felony conviction (§ 667, subd. (a)). Ferguson’s and Hernandez’s sentences for assault and battery were stayed under section 654.
On appeal, Hernandez, joined by Ferguson, claims the trial court erred in instructing the jury on the natural and probable consequences doctrine because the doctrine does not apply to trivial target offenses such as petty theft. (Cal. Rules of Court, rules 8.200(a)(5) & 8.360(a).) Ferguson also claims the trial court erred in denying his section 1118.1 motion for acquittal on the robbery count because there is not substantial evidence that he knew Hernandez stole the victim’s wallet or that he intended to permanently deprive the victim of his wallet at the time he hit the victim. Finally, Hernandez claims the trial court erred in denying her probation.
The People dispute Hernandez’s and Ferguson’s entitlement to any relief.
We find no merit to the claims raised on appeal and affirm the judgments.
FACTUAL SUMMARY
On November 9, 2014, Hernandez was working as a prostitute. Victim Jonas S. contacted Hernandez by phone after viewing her online advertisement and they arranged to meet at a Howard Johnson hotel in Bakersfield. Ferguson dropped Hernandez off and waited at an adjacent gas station. After Jonas confirmed Hernandez was the woman he had spoken to, she got in his car. Their accounts diverge from there.
A. Prosecution’s Case
Jonas, who was granted immunity, testified he placed his wallet, containing $61—three $20 bills and one $1 bill—in the center console of his car prior to meeting Hernandez in the parking lot and she did not see him place it there. He told the jury he had never engaged the services of a prostitute before, but his oilfield coworkers talked about it. He thought Hernandez had a room available but, after she got in his car, she told him her friend was in the room and asked him for the money up front so she could rent a room. Jonas testified he was already regretting his decision to hire a prostitute and he just wanted to leave. He told Hernandez he needed to pick up his nephew and would come back later. Hernandez would not get out of his car, however, and he described her as insistent he give her money for “wasting [her] time.”
Wanting to get her out of his car so he could leave, Jonas pulled his car up to the check-in area of the hotel and asked the front desk employee who came out to call the police because Hernandez would not get out of his car. Hernandez, however, told the employee Jonas was just playing around. Jonas testified Hernandez said she was going to call 911, but he could tell she was not dialing a three-digit number on her cell phone. He noticed Hernandez was looking toward the gas station and he thought she was trying to get the attention of a red Charger there. He then started driving toward the gas station and Hernandez asked if he was kidnapping her. She was trying to wave the Charger down, which by then was moving toward them.
Jonas and Ferguson, who was driving the Charger, parked approximately 15 to 20 feet apart and Ferguson got out of his car. He approached the driver’s side door of Jonas’s car. Jonas rolled the window down, asked Ferguson if he knew Hernandez, and requested he get her out of Jonas’s car. Ferguson asked what the problem was. Jonas’s attention was focused on Ferguson and he testified he “was trying to keep [his] guard up” because Ferguson “looked like someone you shouldn’t trust.” As Jonas’s attention was focused on Ferguson, he heard the center console lid click and when he looked over, the car door was closing and Hernandez was walking away from his car. In her hand, he saw what looked like his wallet, which had a distinctive Star Wars design on the exterior. Jonas tried to get out of the car, but Ferguson was keeping the door shut with his body. Once Hernandez got close to the Charger, Ferguson moved back and walked toward his own car.
Jonas exited his car, went to the front of the Charger and took a picture of the license plate with his cell phone. Hernandez confronted him. He testified he saw she had his wallet in her hand and he walked toward her with his hand out, telling her she could keep the money, but he wanted the wallet back. Hernandez was backpedaling away from Jonas as he approached with his hand out and the next thing he knew, he was down on the ground. Ferguson had punched him in the mouth and knocked out his tooth. Although dizzy, Jonas testified he got back up and drove around trying to find Ferguson and Hernandez, who had left in Ferguson’s car. He also called 911 and, subsequently, met the police at the hotel.
After Jonas shared his license plate photo with responding officers, an officer who had a previous encounter with Hernandez and Ferguson while they were in Ferguson’s Charger spotted the car several miles away. Hernandez and Ferguson were thereafter arrested. Jonas’s wallet was not recovered but separate from the other money in Ferguson’s wallet, police found three $20 bills and one $1 bill folded up. Officers also recovered five cell phones from the Charger and one of the phones rang when an officer dialed the number from the website provided by Jonas.
B. Defense Case
Hernandez testified she agreed to perform oral sex on Jonas for 15 minutes for $60, and he gave her money from his shorts pocket after she said she needed paid up front. He handed her the money folded up and she did not count it. After his 15 minutes were up, however, Jonas became angry because he was not finished and he wanted his money back. Hernandez testified he kept telling her to give his money back and get out of his car. He then drove to the front of the hotel and asked staff to call security. She told them not to because she was afraid of getting in trouble for engaging in prostitution.
Hernandez described Ferguson as her boyfriend and denied he was her pimp, although she admitted she gave him the money she earned. She testified Ferguson came along to provide security and, when Jonas started driving away from the hotel, she became scared because she did not see Ferguson at first. She then saw him and flagged him down.
After Ferguson approached Jonas’s car, Hernandez told him Jonas wanted his money back, but she had said no. Hernandez then got out of Jonas’s car. Hernandez denied opening the center console or glove box in Jonas’s car, denied seeing his wallet, and said the only things in her hand were her cell phone and a bottle of lotion.
After Jonas exited his car and took the photos, Hernandez told him to stop. He then came toward her insisting she give his money back, but he did not threaten her. She kept walking backward, holding her cell phone behind her back. Hernandez testified she did not see Ferguson hit Jonas but, after he fell to the ground, she ran to Ferguson’s car.
Hernandez admitted she had committed two thefts from retailers in 2013, but she denied ever stealing from a client. She also denied Jonas asked her to get a room or told her he did not want her services.
DISCUSSION
I. Instructional Error—Natural and Probable Consequences Doctrine
A. Background
In this case, Hernandez initiated a petty theft of Jonas’s wallet. As to Ferguson, the prosecutor’s theory was that he aided and abetted Hernandez’s theft of the wallet and then elevated the offense to robbery when he hit Jonas. (See People v. Gomez (2008) 43 Cal.4th 249, 261 [“The force or fear element of robbery can be satisfied during either the caption or the asportation phase of the taking.”]; People v. Estes (1983) 147 Cal.App.3d 23, 28 [use of force to prevent victim from retaking property and to facilitate escape sufficient to support robbery conviction].) As to Hernandez, the prosecutor proceeded on the theory that under the natural and probable consequences doctrine, Hernandez was liable for the robbery, assault and battery perpetrated by Ferguson. Citing People v. Montes (1999) 74 Cal.App.4th 1050, 1055 (Montes), Hernandez, joined by Ferguson, argues on appeal that the natural and probable consequences doctrine does not apply to trivial offenses such as petty theft and, therefore, the trial court erred in instructing the jury on that theory as the basis for her liability. Hernandez maintains that robbery, assault, and battery, which are serious and violent crimes, are not reasonably foreseeable consequences of petty theft, a nonviolent offense.
B. Standard of Review
The trial court has a duty to “instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953; accord, People v. Cruz (2016) 2 Cal.App.5th 1178, 1183.) We review allegations of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Cruz, supra, at p. 1183.)
C. Analysis
At the outset, we note the People argue that because Hernandez and Ferguson failed to raise any constitutional challenges in the trial court, they may not raise any constitutional issues on appeal. The forfeiture doctrine does not apply if the error complained of affects a defendant’s substantial rights and, here, the error at issue involves instruction to the jury on the theory of Hernandez’s criminal liability. (§ 1259; People v. Landry (2016) 2 Cal.5th 52, 81, fn. 5; People v. Nelson (2016) 1 Cal.5th 513, 534.) We therefore reject the People’s forfeiture argument.
Turning to the merits, “[u]nder California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted. To convict a defendant of a nontarget crime as an accomplice under the ‘natural and probable consequences’ doctrine, the jury must find that, with knowledge of the perpetrator’s unlawful purpose, and with the intent of committing, encouraging, or facilitating the commission of the target crime, the defendant aided, promoted, encouraged, or instigated the commission of the target crime. The jury must also find that the defendant’s confederate committed an offense other than the target crime, and that the nontarget offense perpetrated by the confederate was a ‘natural and probable consequence’ of the target crime that the defendant assisted or encouraged.” (People v. Prettyman (1996) 14 Cal.4th 248, 254 (Prettyman); accord, People v. Chiu (2014) 59 Cal.4th 155, 161–162 (Chiu).) While this doctrine is not without its difficulties, the California Supreme Court has long recognized it is an established theory of liability under California law. (Prettyman, supra, at pp. 260, 267; accord, Chiu, supra, at p. 163; People v. Favor (2012) 54 Cal.4th 868, 874.)
During oral argument, Hernandez clarified she is not suggesting the natural and probable consequences doctrine cannot, as a matter of law, apply where the target offense is trivial and it is instead the close connection between the target offense and nontarget offense that is relevant. She maintains, however, that in this case, the close connection is absent, an issue we address post. We turn first to the California Supreme Court’s decision in Prettyman, as the relevant discussion in Montes relied on by Hernandez to support her argument draws from that case.
The prosecutor in the Prettyman case did not rely on the natural and probable consequences doctrine, but the trial court nevertheless instructed the jury on the theory. (Prettyman, supra, 14 Cal.4th at pp. 254, 269–270.) The trial court did not identify the uncharged target offense, however (id. at p. 254), and the California Supreme Court, resolving a conflict between Courts of Appeal on the issue, held that “once the trial court, without a request therefor, chose to instruct the jury on the ‘natural and probable consequences’ rule, it had a duty to issue instructions identifying and describing each potential target offense supported by the evidence” (id. at p. 270).
In relevant part, Prettyman addressed the appellate court’s decision in People v. Solis (1993) 20 Cal.App.4th 264, 273 (Solis), disapproved in part by Prettyman, supra, 14 Cal.4th at page 268, footnote 7. The court, speaking to a concern articulated in Solis, observed, “In People v. Solis, supra, 20 Cal.App.4th at page 272, the court stated that an aider and abettor can ‘become liable for the commission of a very serious crime’ committed by the aider and abettor’s confederate even though ‘the target offense contemplated by his aiding and abetting may have been trivial.’ Rarely, if ever, is that true. Murder, for instance, is not the ‘natural and probable consequence’ of ‘trivial’ activities.” (Prettyman, supra, at p. 269.) Prettyman then reiterated that “[t]o trigger application of the ‘natural and probable consequences’ doctrine, there must be a close connection between the target crime aided and abetted and the offense actually committed.” (Ibid.)
Montes, in turn, quoted from Prettyman for the proposition that “it is rarely, if ever, true that ‘an aider and abettor can “become liable for the commission of a very serious crime” committed by the aider and abettor’s confederate [where] “the target offense contemplated by his aiding and abetting [was] trivial.”’” (Montes, supra, 74 Cal.App.4th at p. 1055, quoting Prettyman, supra, 14 Cal.4th at p. 269.) The Montes court went on to reject the defendant’s instructional challenge relating to the natural and probable consequences doctrine, concluding that under the circumstances of the case before it, “the targeted offenses of simple assault and breach of the peace for fighting in public were not trivial.” (Montes, supra, at p. 1055.)
Neither Prettyman nor Montes defines “trivial” offense and neither involved target offenses deemed by the court to be trivial. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 299.) Thus, while the language in Prettyman regarding trivial target offenses appears to be dictum, we nevertheless do not view either Prettyman or Montes as articulating the proposition that a target offense may be viewed in isolation and deemed trivial, thereby precluding applicability of the natural and probable consequences doctrine. (People v. Gonzales and Soliz, supra, at p. 299.) To the contrary, the focus is on the foreseeable consequences of the target offense. (Chiu, supra, 59 Cal.4th at pp. 161–162.) As the California Supreme Court has explained, “‘[a]lthough variations in phrasing are found in decisions addressing the doctrine—“probable and natural,” “natural and reasonable,” and “reasonably foreseeable”—the ultimate factual question is one of foreseeability.’ [Citation.] Thus, ‘“[a] natural and probable consequence is a foreseeable consequence”.…’ [Citation.] But ‘to be reasonably foreseeable “[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.…” [Citation.]’ [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury.” (People v. Medina (2009) 46 Cal.4th 913, 920; accord, People v. Lara (2017) 9 Cal.App.5th 296, 315; People v. Weddington (2016) 246 Cal.App.4th 468, 488.) Acceptance of defendant’s position that the natural and probable consequences doctrine does not apply in this case requires us to embrace her general characterization of petty theft as trivial and robbery, assault and battery as serious and violent without taking into consideration of facts of the case. We decline to do so.
In denying Hernandez’s motion for acquittal under section 1118.1, the trial court addressed the foreseeability of the nontarget offenses as follows: “The idea that a petty theft would not somehow rise to the level of the type of crime that would result in some act of violence, I don’t think is supported by what happens on an every day basis. It’s not infrequent at all that someone goes in to steal something at a store, and they think they are going to conceal it and get away, and if they are known, if they are seen, somebody is going to try and get it back. If they are trying to get it back, there could potentially be some force involved, or you might have to use some force to get away with the object that you are attempting to take. [¶] So, I don’t think it’s unforeseeable. In fact, I think it’s foreseeable under the circumstances of this case. You are taking a wallet from somebody’s immediate presence. He’s in the car, right there. You are taking the wallet. And certainly, it’s foreseeable for someone to think under those circumstances, if they see me taking it, they are going to try and get it back. If I want to get away, I might have to use force. In this case, somebody might have to use force.” We agree with the trial court.
“Robbery 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.’ (Pen. Code, § 211.) Robbery is larceny with the aggravating circumstances that ‘the property is taken from the person or presence of another …’ and ‘is accomplished by the use of force or by putting the victim in fear of injury.’” (People v. Anderson (2011) 51 Cal.4th 989, 994; accord, People v. McKinnon (2011) 52 Cal.4th 610, 686–687; People v. Gomez, supra, 43 Cal.4th at p. 254.)
The issue of whether a nontarget offense is a foreseeable consequence of a target offense is a question for the jury (People v. Medina, supra, 46 Cal.4th at p. 920) and, here, there was sufficient evidence supporting the jury’s determination that robbery, assault and battery were natural and probable consequences of the petty theft of Jonas’s wallet. We agree with Hernandez that petty theft is not a violent offense, but all that is required to elevate larceny from petty theft to robbery is the injection of force or fear into the theft. (People v. Anderson, supra, 51 Cal.4th at p. 994.)
The evidence presented at trial supports a finding that Hernandez stole Jonas’s wallet from the center console of his car while he was sitting right next to it, but was distracted by his interaction with Ferguson. There was also evidence that Ferguson had a clear view of Hernandez and the two made eye contact, which supports a reasonable inference that Ferguson saw Hernandez take Jonas’s wallet. Jonas testified that after he heard the center console click and saw the passenger door closing, Ferguson prevented him from opening his car door to go after Hernandez, and the surveillance video footage shows Ferguson remaining at the car door after Hernandez exited the car. Once Ferguson moved away from the car door and headed toward his own car, Jonas got out and from there took a photo of Ferguson’s license plate. Hernandez confronted him and he advanced toward her with his hand out as she backed away with something held behind her back. The video footage then shows Ferguson hit Jonas, after which Hernandez and Ferguson drove away.
The proposition that violent offenses such as robbery, assault and battery are not reasonably foreseeable consequences of petty theft is not logical given the facts of this case and it ignores the reality of a victim’s common response to the discovery of theft. (See e.g., People v. Gomez, supra, 43 Cal.4th at p. 253 [the defendant fired two shots at restaurant manager who arrived at work during break-in, saw the defendant leave through a side door, and followed him]; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 219–220 [after the defendant stole the victim’s pants containing his wallet, the victim and his friend waited at least 20 minutes for the defendant to exit the bathroom stall he was hiding in and a fight over the wallet ensued]; People v. Estes, supra, 147 Cal.App.3d at pp. 25–26 [after security guard witnessed petty theft of retail merchandise and followed the defendant outside to retrieve it, the defendant pulled a knife, swung at the guard, and threatened to kill him].) Under the circumstances here, Hernandez’s ability to commit the taking undetected was questionable at best and the victim in fact detected the taking. Given Jonas’s proximity to and awareness of the taking, his attempt to retrieve his wallet and Ferguson’s use of force to prevent him from doing so and to facilitate escape were reasonably foreseeable consequences.
Hernandez’s reliance on People v. Leon (2008) 161 Cal.App.4th 149 as instructive does not persuade us otherwise. In that case, the defendant was convicted of burglary, attempting to dissuade a witness and two gang related firearms offenses. (Id. at p. 152.) The appellate court reversed the witness intimidation conviction on the grounds that there was insufficient evidence that he aided and abetted his codefendant, who fired a gun in the air after the victim threatened to call the police, or that witness intimidation was the natural and probable consequence of the target crimes of vehicle burglary or illegal weapon possession. (Id. at pp. 159–161.) The crimes were gang related and committed in rival gang territory, which the court recognized increased the possibility of violence, but in considering all of the circumstances surrounding the crimes, the court concluded there was no “‘close connection’ between any of the target crimes [the defendant] aided and abetted, and [his codefendant’s] commission of witness intimidation.” (Id. at p. 161.)
Here, for the reasons explained, we find a close connection between the petty theft of Jonas’s wallet and the resulting robbery, assault and battery. Accordingly, we reject Hernandez’s and Ferguson’s claims that the trial court erred in instructing the jury on the natural and probable consequences doctrine.
II. Sufficiency of the Evidence Supporting Ferguson’s Robbery Conviction
A. Standard of Review
Next, we turn to Ferguson’s claim that the trial court erred in denying his motion for acquittal on the robbery count. (§ 1118.1.) “In considering whether the trial court erred in failing to grant the motion for judgment of acquittal under section 1118.1 … we ask whether ‘there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged.’” (People v. Watkins (2012) 55 Cal.4th 999, 1019.)
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) [136 S.Ct. 1714].) “The record must disclose substantial evidence to support the verdict—i.e., 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. Zamudio (2008) 43 Cal.4th 327, 357.) “In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt .…’” (People v. Nguyen, supra, at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, at p. 357.) However, “speculation, supposition and suspicion are patently insufficient to support an inference of fact.” (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 34–35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
B. Analysis
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164; accord, Chiu, supra, 59 Cal.4th at p. 161.) With respect to liability for aiding and abetting a robbery, commission of the crime “continues until all acts constituting the offense have ceased.” (People v. Cooper, supra, at p. 1164, fn. omitted; see People v. Montoya (1994) 7 Cal.4th 1027, 1041.)
We disagree with Ferguson’s argument there is no evidence supporting a reasonable inference that he knew Jonas’s wallet was stolen or that he intended to permanently deprive Jonas of it prior to striking him. As we have discussed, there was evidence that Jonas’s wallet was in the center console of his car, he backed out of the transaction with Hernandez without paying her, and she insisted he pay her for her time. Jurors saw video surveillance footage from two different angles that shows some of the events. Although Ferguson is correct that the footage does not include audio, footage taken from the second angle clearly shows Ferguson approached the driver’s side of Jonas’s car and leaned down, which is consistent with Hernandez’s testimony that he bent down and looked inside the car at her. Based on Jonas’s testimony, it was reasonable to infer that while Jonas was occupied with Ferguson, Hernandez opened his center console, removed his wallet and then exited the car with his wallet in her hand.
A tree obscured the video view of the passenger side of the car, but approximately 20 seconds passed between the time Ferguson arrived at the driver’s side door and Hernandez walked around the back of Jonas’s car, giving Hernandez ample time to lift the wallet. Ferguson remained at the driver’s side door for another 14 seconds, approximately, before he moved back and walked toward his car, supporting Jonas’s testimony that Ferguson initially prevented him from exiting his car when he realized Hernandez had taken his wallet.
The footage shows Jonas exited his car after Ferguson moved away from the door and he walked to the front of Ferguson’s car where he took the photo. Hernandez then came from the passenger side of Ferguson’s car to confront Jonas and she started backpedaling away as Jonas advanced toward her. The footage shows Hernandez was holding something behind her back during this time, and Jonas was extending his hand and gesturing in a manner consistent with his testimony that he was demanding the return of his wallet. As Hernandez was backing up and Jonas was advancing with his hand out, Ferguson exited his car, walked up to Jonas, and hit him in the face.
Given the evidence of Ferguson’s vantage point into the car, the location of the wallet in the center console between Jonas and Hernandez, the audible clicking sound made by the center console latch, and the wallet’s placement in Hernandez’s hand as she walked away, we find there is substantial evidence supporting a reasonable inference that Ferguson saw Hernandez take Jonas’s wallet from the center console. Moreover, Jonas’s testimony that Ferguson initially prevented him from exiting the car and Ferguson’s delay in moving away from driver’s side door following Hernandez’s departure further support the prosecutor’s theory that Ferguson saw the theft and assisted by preventing Jonas from exiting his car until Hernandez got closer to Ferguson’s car.
As Ferguson points out, “[i]f intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent.” (People v. Webster (1991) 54 Cal.3d 411, 443; accord, People v. Huggins (2006) 38 Cal.4th 175, 214; People v. McCoy (2013) 215 Cal.App.4th 1510, 1541.) However, there is also substantial evidence supporting a reasonable inference that Ferguson formed the requisite intent prior to hitting Jonas. Viewing the evidence in the light most favorable to the prosecution, after Ferguson saw Hernandez steal the wallet, he was aware Jonas was demanding it back from Hernandez because he could both hear Jonas and see him as he advanced on Hernandez with his hand outstretched. Ferguson thereafter hit Jonas, which prevented Jonas from regaining his wallet and allowed Ferguson and Hernandez to escape.
The critical inquiry is whether the evidence presented at trial is sufficient to support a reasonable inference, not whether every other possible explanation has been eliminated. “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Albillar (2010) 51 Cal.4th 47, 59–60.) Ferguson’s robbery conviction was supported by substantial evidence and, accordingly, we affirm the trial court’s denial of his motion for acquittal.
III. Denial of Probation
A. Standard of Review
Finally, Hernandez challenges the trial court’s decision to deny her probation. “Following a defendant’s conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.’ [Citation.] A grant of probation is ‘qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither “punishment” (see § 15) nor a criminal “judgment” (see § 1445). Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].’ [Citation.] Accordingly, we have explained that a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. [Citation.] Stated differently, ‘[p]robation is not a right, but a privilege.’” (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).)
“[I]n most circumstances the trial court has broad discretion to choose probation when sentencing a criminal offender. A reviewing court will defer to such choice absent a manifest abuse of that discretion.” (Moran, supra, 1 Cal.5th at p. 402.) “To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason.” (People v. Bradley (2012) 208 Cal.App.4th 64, 89.) “In reviewing the matter on appeal, a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary.” (People v. Martinez (1985) 175 Cal.App.3d 881, 896, abrogated on other grounds by amendment to Cal. Rules of Court, rule 4.406(b).)
B. Analysis
Hernandez argues “the trial court’s denial of probation illustrates it failed to consider all of the facts and circumstances of this case,” and its “decision not to grant probation was irrational.” On appeal, we presume the trial court considered all relevant factors unless the contrary is affirmatively shown (People v. Kelley (1997) 52 Cal.App.4th 568, 582; Cal. Rules of Court, rule 4.409) and, here, Hernandez fails to identify any specific bases in the record that support her claim the trial court failed to consider the relevant factors.
This case did not involve the use of a weapon and, therefore, the prosecutor misstated the law when he argued that under section 1203, subdivision (e)(1), a grant of probation is inappropriate for a robbery charge except in unusual circumstances. However, the probation report, which the trial court read, correctly stated no statutory provisions limited or prohibited a grant of felony probation to Hernandez. Moreover, Hernandez’s counsel addressed the prosecutor’s misstatement of law when she countered, “I agree with Probation that there are no statutory requirements preventing … probation in this case.” Nor is there any indication in the record that the court was misled by the prosecutor’s misstatement.
Hernandez contends she was arguably a passive participant in an unsophisticated crime, had a minimal record of two petty thefts, and would not present a danger to others. She disputes the trial court’s description of her behavior as “escalating,” given that the offense was petty theft, as were her prior offenses, and it was Ferguson’s actions that escalated the crime. She also points out that she was not previously on felony probation, which could provide her the opportunity to reform and take advantage of beneficial services.
None of these factors was overlooked by the trial court, however. The court’s comments during sentencing reflect careful consideration of the facts underlying the offenses, Hernandez’s young age, the absence of any lengthy criminal history, and the fact she had never been on felony probation. The court also considered the facts that Hernandez committed the present offenses while out on bail, her prior placement on probation twice failed to alter her conduct, and she set in motion events that led to a robbery in which the victim was injured. Thus, Hernandez has shown nothing more than her mere disagreement with the trial court’s decision not to grant her probation, which does not suffice to demonstrate error on appeal. (Moran, supra, 1 Cal.5th at p. 402; People v. Bradley, supra, 208 Cal.App.4th at p. 89.) Accordingly, we find no abuse of discretion and reject Hernandez’s claim to the contrary.
DISPOSITION
The judgments are affirmed.



BLACK,* J.
WE CONCUR:



HILL, P.J.



DETJEN, J.