Filed 6/28/17 In re D.W. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re D.W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.W.,
Defendant and Appellant.




A148291

(Alameda County
Super. Ct. No. SJ150247756)


Appellant D.W. was declared a ward of the juvenile court under Welfare and Institutions Code section 602, based on a finding that he and another youth had committed a second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) He contends: (1) the judgment must be reversed because the record does not contain substantial evidence he took the property in question by means of force or fear; (2) the trial court erroneously considered evidence of an incriminating hearsay statement made by his nontestifying codefendant in violation of his right to confrontation under the Sixth Amendment of the United States Constitution; and (3) the juvenile court erroneously considered evidence that his codefendant was carrying a replica handgun in his pocket at the time of their arrest. We affirm.
I. BACKGROUND
A petition was filed in the Los Angeles County juvenile court alleging that appellant and a codefendant (who is not a party to this appeal) had committed a second degree robbery. The following evidence was presented at the joint jurisdictional hearing:
When he was 15 years old, appellant was placed in a group home in Los Angeles County, having been declared a ward of the juvenile court in Alameda County. Codefendant also lived in the group home.
On February 23, 2016, at 11:00 p.m., appellant and codefendant approached Mark Lopez on 103rd Street just after he got off the Blue Line train. Both youths were taller than Lopez, and Lopez was frightened because they had their hands in their pockets. Appellant stood in front of Lopez and codefendant stood behind him, talking on a cell phone. Appellant said, “Give me your phone,” and Lopez responded, “I can’t give you my phone, I can give you money.” Appellant told Lopez, “I don’t want to make this the hard way, just give me everything you have.” Lopez took out his wallet and gave appellant a few five-dollar bills. Codefendant said something to the effect of, “Oh, that’s all you have?” Lopez walked away and appellant tried to shake his hand.
Los Angeles Police Department Officer Brown and his partner responded to the scene, where they spoke to Lopez and detained appellant and codefendant based on the description given by Lopez. Lopez identified appellant and codefendant as the youths who had taken his money. When they were searched, appellant had two five-dollar bills in his front pants pocket and codefendant had a five-dollar bill and a replica handgun in his front pants pocket.
After being read his rights under Miranda v. Arizona (1966) 384 U.S. 436, appellant told Officer Brown he had met codefendant two days earlier in their foster home and they had decided to run away. They went inside a store that sold toy guns and appellant shoplifted one of the guns by concealing it inside his hooded jacket. Outside the store, codefendant took the toy gun, broke off the orange tip with his teeth, and put it inside his own pocket. They were trying to make money for the train back to Oakland, so appellant approached Lopez and demanded his cell phone. When Lopez pulled out his wallet and gave appellant some cash, appellant and codefendant fled on foot and appellant gave five dollars to codefendant.
Codefendant was also Mirandized and told Officer Brown that he and appellant were in the process of running away from their foster home. When they were near the Blue Line platform, he looked up and saw that appellant had approached Lopez and “appeared to be robbing him.” Not wanting to “look like a chump,” codefendant starting participating in the robbery and took five dollars from appellant when appellant offered it to him.
Appellant testified that he was at the train station with codefendant when he approached Lopez and told him he and his brother had just run away from a foster home and needed money to get back to Oakland. When Lopez gave him the money, appellant thanked him and tried to shake his hand. Appellant denied asking Lopez for his cell phone.
Codefendant did not testify.
The court sustained the petition as to both appellant and codefendant. Appellant’s case was transferred to Alameda County for disposition, at which time the court continued appellant as a ward of the court and ordered future placement hearings. (See Welf. & Inst. Code, § 750.)
II. DISCUSSION
A. Evidence of Force or Fear
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.) Fear, in turn, includes “[t]he fear of an unlawful injury to the person or property of the person robbed. . . .” (Pen. Code, § 212, par. 1.) Appellant argues the evidence did not establish that the taking of Lopez’s money was accomplished by fear. We disagree.
The same standard governs review of the sufficiency of evidence in adult criminal and juvenile cases: we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction or jurisdictional finding, such that a reasonable fact finder could find guilt beyond a reasonable doubt. (In re Cesar V. (2011) 192 Cal.App.4th 989, 994; In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) “ ‘ ‘If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding.” ’ ” (Cesar V., at p. 994.)
This standard is easily met in this case. Appellant and codefendant approached Lopez with their hands in their pockets while he was walking alone at 11:00 at night. Appellant demanded that Lopez give him his cell phone, and when Lopez demurred, appellant told him he did not want to obtain the property “the hard way.” Both appellant and codefendant were taller than Lopez and they outnumbered him two-to-one. Lopez testified that he was afraid when appellant and codefendant approached him.
Appellant emphasizes that neither he nor codefendant used a weapon or expressly threatened Lopez with harm. But this does not render the evidence of fear legally insufficient. “The requisite fear need not be the result of an express threat or the use of a weapon. [Citations.] Resistance by the victim is not a required element of robbery [citation], and the victim’s fear need not be extreme to constitute robbery [citation]. All that is necessary is that the record show ‘ “ ‘conduct, words, or circumstances reasonably calculated to produce fear. . . .’ ” ’ [Citation.]” (People v. Morehead (2011) 191 Cal.App.4th 765, 775; see also People v. Brew (1991) 2 Cal.App.4th 99, 104.) Approaching a lone individual late at night and demanding a cell phone is sufficiently intimidating to satisfy the fear element of robbery.
B. Codefendant’s Statement to Police: Confrontation Clause
Over appellant’s objection, the juvenile court allowed Officer Brown to testify that after being read his Miranda rights, codefendant told him that appellant had “appeared to be robbing” Lopez and that codefendant had “participated in the robbery” because he did not want to appear to be a “chump.” Appellant argues that because codefendant did not testify at the jurisdictional hearing, the admission of this out-of-court statement violated his own confrontation clause rights under the Sixth Amendment and Crawford v. Washington (2004) 541 U.S. 36, 52 (Crawford). (See U.S. Const., 6th Amend.)
In Crawford, the court held that if the hearsay statement of a nontestifying declarant was offered for its truth and was testimonial in nature, its admission would violate the confrontation clause unless the defendant had been given a prior opportunity to cross-examine the now-unavailable declarant. (Crawford, supra, 541 U.S. at p. 52; People v. Price (2004) 120 Cal.App.4th 224, 237.) We agree that codefendant’s statement was testimonial in nature and was inadmissible against appellant given codefendant’s failure to testify. (See Davis v. Washington (2006) 547 U.S. 813, 822 [statements are testimonial under Crawford rule when “primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution”].)
We normally presume the trial court correctly understood and applied the law. (See People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) In this case, however, the juvenile court overruled appellant’s Crawford objection without specifically indicating it would only consider the challenged statement in connection with codefendant. But even assuming the court considered the statement in assessing appellant’s guilt, the error was harmless beyond a reasonable doubt. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225; Chapman v. California (1967) 386 U.S. 18, 24.) The victim testified that appellant demanded his cell phone, and the court expressly found the victim to be credible. Appellant admitted demanding the cell phone when he was interviewed by Officer Brown on the night of his arrest, though by the time of the jurisdictional hearing his story had changed and he claimed he had only asked Lopez for money to get back home. Codefendant’s statement to the officer that appellant “appeared to be robbing” Lopez did not add much to this equation. In assessing appellant’s guilt, what mattered was his own words and actions and Lopez’s response, not codefendant’s characterization of the incident.
C. Evidence of Replica Handgun
The juvenile court overruled a defense objection to a photograph of the replica handgun found in codefendant’s pocket. Appellant contends the evidence of the replica gun was more prejudicial than probative under Evidence Code section 352 because it was not used in the robbery. We review the court’s ruling admitting the evidence for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 743.)
Evidence a defendant possessed a weapon not used in the commission of a charged offense is generally inadmissible when its only relevance is to show the defendant is a person who surrounds himself with weapons. (See People v. Archer (2000) 82 Cal.App.4th 1380, 1392–1393; People v. Henderson (1976) 58 Cal.App.3d 349, 360.) Conversely, weapon possession may be admissible when it is relevant to some other issue. (People v. Jablonski (2006) 37 Cal.4th 774, 822 [possession of weapon not used in murder was admissible to show defendant’s preparation for crime].)
Here, evidence concerning the replica gun was probative because it was germane to appellant’s intent. (See Evid. Code, § 1101, subd. (b).) Appellant admitted to Officer Brown that he had stolen the replica gun from a store shortly before the robbery. His acquisition of the gun tended to show that he and codefendant had a plan to take property from others by instilling fear. This directly refuted appellant’s claim that they were simply panhandling to try to get money to go home.
Evidence of the replica gun was not unduly prejudicial to appellant. “ ‘The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Codefendant’s possession of a replica gun was not the sort of evidence that would cause appellant to be prejudged based on extraneous factors, particularly in a case where the trial court, rather than a jury, was sitting as the trier of fact. (See People v. Walkkein (1993) 14 Cal.App.4th 1401, 1408 [courts “presume that a professional jurist is capable of weighing admissible evidence without being prejudiced by extraneous matters”].)
D. Cumulative Error
Appellant argues the cumulative impact of the evidentiary errors violated his rights to due process and a fair trial. Because only one error was arguably committed, and because that error was harmless, there is nothing to cumulate and no violation of appellant’s constitutional rights. (See People v. Duff (2014) 58 Cal.4th 527, 562.)
III. DISPOSITION
The judgment is affirmed.
 

NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.










(A148291)