In re M.W.

Filed 10/30/09 In re M.W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Gibson Lee, Judge. Affirmed.

Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

The court found that appellant M.W., a male age 17, committed second degree robbery. M.W. was declared a ward of the court and the court imposed home probation. We reject M.W.s sole contention on appeal that the evidence is insufficient to sustain the judgment and therefore affirm the judgment.

FACTS

We summarize the evidence in accordance with the familiar rules.^[1]

On the evening of June 18, 2007, C.D., the female victim, was at the Long Beach Town Center with five friends. Appellant and three girls came up to C.D.s group and started saying what C.D. characterized as stuff to C.D. and her friends. (C.D. had never seen appellant before.) Three minutes passed. C.D. was holding her phone in her hand. Appellant came up and grabbed the phone; C.D. held on to it. Appellant picked up C.D. with his arms around her midsection and threw her to the concrete floor. She landed on her face. As far as the phone was concerned, C.D. testified that appellant took it from my hand. Appellant ran off. C.D. sustained cuts and bruises to her knees and elbows.

C.D. and her friends chased after appellant and also called the police. C.D. caught up with appellant, who was being detained by security. After the police arrived, an officer returned C.D.s phone to her.

Since there were a number of witnesses who saw the robbery and who testified, there are a number of slightly different versions of the foregoing. Those additions and subtractions aside, there is substantial evidence that appellant grabbed C.D.s phone, tried to pull it away, threw her to the ground, took the phone and ran off. In light of the contention on appeal, it is of some interest that appellant testified that he was able to overpower C.D. because he is stronger than she is and he also testified that he physically pulled the phone out of her hand.

DISCUSSION

Appellant contends: In appellants case, the act of tugging the phone out of the victims hand cannot reasonably be construed as rising to the level of force sufficient to prove the offense of robbery. There was no evidence of any threat and the sole evidence upon which the court based its determination was [appellants] testimony that he and the victim had a brief tug of war over the phone as he ran past and snatched it. Appellant relies on cases such as People v. Wright (1996) 52 Cal.App.4th 203, 210, which have held that when force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim, and is a question of fact to be resolved by the jury taking into account the physical characteristics of the robber and the victim.

Appellants argument overlooks the fact that it was only when he bodily picked up C.D. and threw her to the ground that he was able to wrest the phone from her hand. This was therefore no gentle tug at the phone but an act of substantial and brutal violence. Not everyone would have fared as well with only cuts and bruises, as did C.D., after being picked up and hurled onto a concrete floor on their face. It is very clear that the force used in this case was far more than was needed to simply take the phone away from C.D.

We must agree with defense trial counsel when he stated during argument: Here there is no question that [appellant] did use force to take the phone out of the girls hand. While defense counsel went on to argue that the evidence showed only grand theft from the person because the force used was very slight, we think defense counsel had it right at the outset when he said that there is no question that force was used to take the phone.

While we appreciate counsels efforts on behalf of his client in this appeal, when it comes to the use of force sufficient to constitute robbery, this is not a close case. There is nothing tentative or slight about being flung to the ground by a 17-year-old male.

DISPOSITION

The judgment is affirmed.

FLIER, J.

We concur:

RUBIN, Acting P. J.

MOHR, J.*

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^[1] The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] Thus, the standard of appellate review as delineated in People v. Johnson (1980) 26 Cal.3d 557, 562, is applicable in considering the sufficiency of the evidence in a juvenile proceeding. This court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ‑‑ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.