In re Mario R.

Filed 8/31/07 In re Mario R. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

The juvenile court sustained allegations of robbery and assault upon a transit operator against appellant Mario R. after he attempted to board a bus without paying the fare and, upon being prevented from riding, severely beat the bus driver. Appellant does not challenge the assault finding, but he contends that the evidence was insufficient to support a finding that he committed robbery by tearing a bus transfer from the stack maintained by the bus driver. We affirm.

I. BACKGROUND

Appellant, 16 years old at the time, was alleged in a juvenile wardship petition to have committed first degree robbery of a transit operator (Pen. Code,  211, 212.5, subd. (a)) and assault upon a transit operator by means likely to produce great bodily injury (Pen. Code,  245.2). As to both offenses, it was alleged that appellant had inflicted great bodily injury upon the transit operator. (Pen. Code,  12022.7, subd. (a).)

Appellant had previously been adjudged a ward of the court. At the age of 15, he was found to have brought a BB gun to school and placed on informal probation. (Welf. & Inst. Code,  725, subd. (a).) Less than a month after that disposition, an amended petition was filed alleging that appellant had committed robbery and attempted extortion from a classmate. The robbery count was sustained, and appellant was adjudged a ward of the court and placed on probation in his mothers custody.

At the contested hearing on this petition, a Vallejo Transit bus driver testified that he was driving his route in mid-afternoon. At one stop, he noticed a passenger on the bus pass a bus transfer out the window to appellant. Appellant then boarded the bus and handed the driver the same transfer. When the driver declined to accept the transfer and told appellant he would have to pay the fare, appellant asked for the transfer back. When the driver refused to return the transfer, appellant grabbed at the book of transfers near the driver.

The driver was unable to remember whether appellant merely grabbed at the book of transfers or whether appellant was successful in removing a transfer. The prosecutor then played for the driver and the court a DVD containing a videotape recording of poor quality made on the bus that day. Upon first viewing the videotape, the driver was unsure if appellant was actually able to remove a transfer from the book of transfers. After viewing the tape for a second time, however, the driver concluded that appellant was able to get one transfer.

The driver testified that he reacted by attempting to stop appellant from taking a transfer, first grabbing and then releasing appellants hand. He said that although appellant then began to leave the bus, he turned and, without provocation, beat the driver severely. The driver suffered cuts, bruises, and a mild concussion, and had only been able to return to light duty. He testified that he managed to hit appellant only once in self-defense, with a hand that held his ticket punch.

Appellant testified that he was waiting for the bus after school. When he discovered he had lost his bus pass, another boy passed him a transfer. After appellant boarded the bus, the driver called him back to the front of the bus and told him he could not use the transfer. When the driver refused to return the transfer, appellant reached for a transfer from the book maintained by the driver. As appellant reached for the book of transfers, the driver grabbed his hand, and he was unable to tear off a transfer. After the driver released his hand, appellant testified, he began to leave the bus. As he was leaving, however, the driver used a racial epithet. When appellant turned, he saw that the driver had assumed a fighting stance. It was only after the driver first hit appellant with a hole punch that appellant beat him.

II. DISCUSSION

Appellant does not challenge his conviction for assault. He contends, however, that the evidence was insufficient to support his conviction for robbery.

Appellant first contends that there was insufficient evidence that he actually took the bus transfer. The test for sufficiency of the evidence in a juvenile proceeding is the same used in review of an adult criminal proceeding. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) We must determine, viewing the evidence in the light most favorable to the judgment, whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615.) The judgment must be supported by substantial evidence, which is evidence that is reasonable, credible, and of solid value. (In re Ryan N., at p. 1371.) The successful taking of property is one of the elements of the crime of robbery. (Pen. Code,  211; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.)

The driver initially testified that appellant was unsuccessful in tearing off a transfer. When pressed, he acknowledged that he could no longer remember, perhaps as a result of the concussion he suffered during the beating. After reviewing the DVD made from the videotape of the incident, the driver concluded that appellant had, in fact, managed to grab one transfer.

Appellant cites his own denial, but the juvenile court was permitted to reject this testimony. It was for the juvenile court, not us, to resolve this conflict in the testimony. (People v. Watts (1999) 76 Cal.App.4th 1250, 12581259.) Appellant also contends that the drivers testimony was too equivocal to support the verdict. While the testimony of the driver alone may have been insufficient, the juvenile court also was able to form its own judgment based on the DVD. Although the DVD is of poor quality, we conclude that the DVD, when combined with the testimony of the driver, constitutes substantial evidence to support the juvenile courts conclusion that appellant was successful in tearing off a transfer. Presented with this evidence, we conclude that a reasonable trier of fact could have determined beyond a reasonable doubt that appellant took the transfer.

Appellant also contends that there is no evidence that he used the quantum of force necessary to support a charge of robbery. In order for a taking to constitute robbery, it must be accomplished by force or fear. (Pen. Code,  211; People v. Carrasco, supra, 137 Cal.App.4th at p. 1057.) As appellant notes, the force required is more than that necessary merely to seize the object. (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. 2.) Appellant argues that, even if he was successful in tearing off a bus transfer, he used no more force than that necessary to take the transfer, without either threatening or using force against the driver.

If appellant had turned and run off the bus after grabbing the transfer, his argument might have merit. The crime of robbery, however, continues until the robber reaches a place of relative safety. (People v. Carrasco, supra, 137 Cal.App.4th at p. 1059.) For that reason, to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. (People v. Flynn (2000) 77 Cal.App.4th 766, 771, quoting People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8, italics added.) The crime therefore includes simply deterring a victim from preventing the theft or attempting to immediately reclaim the property. (Flynn, at p. 771.) The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery. (Id. at p. 772.) The juvenile court was entitled to conclude that appellants beating of the driver was done in part to deter the driver from pursuing him or retrieving the stolen transfer, thereby satisfying the force or fear element of robbery.

Finally, appellant argues that he was entitled to the claim-of-right defense, which holds that a defendant who uses force to obtain specific property in which he has a good faith and bona fide claim of ownership or title does not commit robbery. (People v. Tufunga (1999) 21 Cal.4th 935, 956.) Appellant relies on his own testimony that he took the transfer only because the driver would not return the original transfer he had obtained from his friend.

The argument fails because the juvenile court was entitled to conclude, from the circumstances presented, that appellant did not hold a good faith belief in his claim to the bus transfer. Appellant conceded that he was passed the transfer by a person from inside the bus. Having lost his bus pass, appellant would otherwise have been required to pay the ordinary fare to ride the bus. Instead, he sought a free ride by using the transfer of another rider. It is common knowledge among those who ride the bus that only persons who pay the proper fare are entitled to the use of a transfer. In the unlikely event appellant was unaware of this, the driver testified that he told appellant the transfer was nontransferable. From these facts, the juvenile court was permitted to conclude that appellant stole the transfer not because he believed he was legitimately entitled to a transfer, but because he wanted to use the transfer for a free ride on the next bus to arrive. The court was not required to accept appellants self-serving testimony regarding his intentions. (People v. Demetrulias (2006) 39 Cal.4th 1, 22.)

III. DISPOSITION

The judgment of the juvenile court is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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