In re Nicholas S.
Filed 8/2/12
In re Nicholas S. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 TWO
In re NICHOLAS S.,
a Person Coming Under the Juvenile Court Law.
B234892
(Los Angeles County
Super. Ct. No. YJ33853)
THE PEOPLE OF THE
STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
NICHOLAS S.,
Defendant and Appellant.
APPEAL
from a judgment of the Superior Court of
County, Irma J. Brown, Judge.
Affirmed.
Courtney
M. Selan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds
and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
The
juvenile court sustained a petition under Welfare and Institutions Code section
602 alleging that minor Nicholas S. (appellant) committed
in violation of Penal Code sections 664 and 211,
section 242, on minor Brandon T.
Appellant contends the evidence was insufficient to support the juvenile
court’s findings. Appellant further
contends that if the juvenile court’s true finding for attempted robbery is
upheld, then the finding for battery must be reversed, because as alleged in
the petition, battery is a lesser included offense.
Appellant
failed to establish any error on the part of the
lesser included offense of attempted robbery under the accusatory pleading
test, and substantial evidence supports the juvenile court’s findings as to
both offenses. We therefore affirm the
judgment.
On
March 20, 2011, appellant
and a group of minors, including Brandon,
T., Walter G., and Ryan (also known as “Minky”
, were at the Redondo BeachPier. Brandon and Walter were previously
acquainted with one other, as were Walter and appellant; but Brandon,
appellant, and Ryan met each other for the first time that day. Appellant left the group at 7:00 p.m. but rejoined them at the bike path
adjacent to the pier two hours later.
The minors were consuming alcohol and smoking marijuana at the time.
At
some point later that night, appellant lost his wallet and became upset. He told the other minors that he was
conducting a “pocket check” and asked each of them to empty their pockets. Walter and Ryan complied, but Brandon
refused. Appellant told Brandon
“I’m gonna beat your ass” and began punching him with closed fists. Brandon
fell to the ground and bit appellant’s hand in an effort to defend
himself. Appellant got on top of Brandon
and continued to hit him. While doing
so, appellant told Brandon “I’m
gonna jack you.” Brandon
felt hands going through his pants pockets but could not identify whose hands
they were. Police officers arrived at
the scene, and Brandon and
appellant both fled but were subsequently apprehended.
Brandon,
Walter, appellant, and Redondo Beach Police Officer La Toya Felix testified at
the trial. Appellant denied consuming
alcohol or marijuana that night and denied initiating the physical altercation
with Brandon. Appellant and Walter both testified that Brandon
had been the aggressor during the altercation and punched appellant after being
asked to empty his pockets. Appellant
testified that after Brandon
attacked him, he grabbed Brandon by
the shirt and threw him to the ground. Brandon
then bit appellant’s hand and would not release the bite. In an effort to dislodge Brandon, appellant
punched Brandon a couple of times and then elbowed him in the chest. At that point Brandon released the bite and
fled.
During his
testimony at trial, Brandon admitted that he had told the responding police
officers that appellant had said “I’m gonna Jack you.” He testified, however, that he had lied to
the officers when he made that statement, because although he initially
believed appellant was the person going through his pants pockets, he now
believed it was Ryan. Brandon further
testified that he was afraid of appellant.
The juvenile court
found that appellant’s version of the incident was not credible, and noted that
appellant had an obvious size advantage over Brandon. The court further found that both a battery
and an attempted robbery had occurred, and that appellant was attempting to
take personal property from Brandon during their struggle. The juvenile court ordered that appellant
remain a ward of the court, and that a previous order of home probation remain
in full force and effect. This appeal
followed.
DISCUSSION
I. Standard of review
We review
appellant’s challenge to the sufficiency of the evidence supporting the
juvenile court’s findings for substantial evidence. Under this standard, we “review the entire
record in the light most favorable to the judgment to determine whether it
discloses evidence that it is reasonable, credible, and of solid value such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.]” (People
v. Bolin (1998) 18 Cal.4th 297, 331; In
re Babak S. (1993) 18 Cal.App.4th 1077, 1088.)
II. Substantial evidence
supports the juvenile court’s findings
A. Attempted robbery
“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.”
(§ 211.) “Robbery, like other
theft crimes in California, requires the specific intent to deprive the victim
of his or her property.
[Citations.]” (
812, 817.) The two elements of attempted
robbery are “a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.”
(§ 21a; People v. Medina (2007)
41 Cal.4th 685, 694.) The intent to
commit robbery must usually be inferred from the circumstances. (People
v. Bloom (1989) 48 Cal.3d 1194, 1208.)
Appellant contends the fact that he was searching for his own
wallet during his struggle with Brandon cannot be used to establish the
requisite intent to take personal property from another to sustain the
attempted robbery finding. He argues
that his good faith claim of right to ownership of the wallet he was seeking to
recover negates the element of felonious taking required for robbery. (See People
v. Tufunga (1999) 21 Cal.4th 935, 954-955.)
There was evidence, however, that appellant intended to take Brandon’s
property and not merely reclaim his own wallet.
Brandon told the responding police officers that appellant had said “I’m
gonna jack you,” and then tried to reach inside Brandon’s pants pocket. Although Brandon repudiated his out-of-court
statement by testifying at trial that he had lied to the police, he also admitted
that he was afraid of appellant. In
light of Brandon’s expressed fear of appellant, the trial court was entitled to
assign greater weight to his out-of-court statement when assessing his
credibility. (See People v. Burgener (2003) 29 Cal.4th 833, 869.)
Brandon’s out-of-court statement was sufficient to establish
appellant’s felonious intent. The
testimony of a single witness is sufficient to uphold a judgment, even if it is
contradicted by other evidence. (
353, 366.) “Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of
fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient
to support a conviction.
[Citation.]” (
1181.) Substantial evidence supports the
juvenile court’s finding that appellant had the requisite felonious intent for
robbery and that appellant made a direct but ineffectual act toward its
commission.
Battery is “any willful and unlawful use of force or violence upon
the person of another.” (§ 242.) Battery is a general intent crime. (People
v. Colantuono (1994) 7 Cal.4th 206, 217.)
The intent required for a general intent crime is simply the intent to
do the act or omission in question. (
67, 72.) “Thus, the crime of battery
requires that the defendant actually intend to commit a ‘willful and unlawful
use of force or violence upon the person of another.’ [Citations.]”
(People v. Lara (1996) 44
Cal.App.4th 102, 107.)
Appellant contends there was insufficient evidence to support the
juvenile court’s finding that he committed a battery upon Brandon. Appellant claims that Brandon was the
aggressor, that appellant acted in self-defense, and that he used no more force
than was necessary to defend against Brandon’s attack. Appellant maintains that under these
circumstances, he cannot be held culpable for
Appellant concedes the evidence was conflicting as to who started
the fight. Under the substantial
evidence standard all conflicts in the evidence and issues concerning the
credibility of witnesses must be resolved in favor of the juvenile court’s
determination. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) Here, Brandon testified that appellant was
the aggressor and that he punched Brandon, knocked him to the ground, got on
top of him, and beat him up. Substantial
evidence supports the juvenile court’s finding that appellant committed
battery.
robbery
A crime is a lesser included offense of another crime if either of
two tests is satisfied -- the statutory elements test or the
v. Birks (1998) 19 Cal.4th 108, 118.)
Under the statutory elements test, an offense is included in the charged
offense if all of its elements are among those in the statutory definition of
the charged offense. (
“Under the accusatory pleading test, if the facts actually alleged in
the accusatory pleading include all of the elements of the lesser offense, the
latter is necessarily included in the former.
[Citation.]” (
1227-1228.)
Appellant does not contend battery is a lesser included offense of
robbery or attempted robbery under the statutory elements test. A defendant may commit attempted robbery by
harboring a specific intent to commit robbery and by performing a direct and
unequivocal act toward its commission, but without a physical touching that
would constitute battery. (
116, 121.)
Appellant claims, however, that battery is a lesser included
offense of attempted robbery under the accusatory pleading test, because the
petition here alleged attempted robbery as a taking by force
lesser included offense of attempted robbery as pled here (referring to both
fear and force). Appellant’s failure to
raise this argument in the juvenile court proceedings below arguably precludes
him from establishing any error by the juvenile court in this regard. No error occurred, in any event.
The argument appellant raises was advanced and rejected in
203 (Wright), in which the court held
that assault was not a lesser included offense of robbery under the accusatory
pleading test. (See id. at p. 211.) As in the
instant case, the accusatory pleading in Wright
alleged that an attempted robbery resulted from the defendant’s application
of “force and fear.” (Id.
at p. 210.) The court in
required to commit a robbery necessarily includes the force required to commit
an assault. (Ibid.) The court concluded
that the force necessary to commit robbery could be merely “constructive”
force, defined as “‘force, not actual or direct, exerted upon the person
robbed, by operating upon [a] fear of injury . . . .’ [Citation.]”
(Ibid.) Included within the meaning of “force,”
therefore, is “‘such threat or
person as reasonably inspires fear of
pain, bodily harm, or death.’” (
quoting Webster’s New Internat. Dict. (3d ed. 1981) p. 887.) The court concluded: “Since the element of force can be satisfied
by evidence of fear, it is possible to commit a robbery by force without
necessarily committing an assault.
Consequently, under the ‘accusatory pleading’ test, assault is not
necessarily included when the pleading alleges a robbery by force.” (Wright,
at p. 211.)
The same analysis applies to the instant case. For appellant to be found to have committed
attempted robbery, it was not necessary that an actual battery was
committed. All that is required to
sustain a charge of attempted robbery is proof of “specific intent to commit
robbery and a direct unequivocal overt act toward its commission” beyond mere
preparation. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 861.) An attempted robbery may be found to have
occurred even without proof of either force or fear being used. Accordingly, as alleged here, battery is not
a lesser included offense of attempted robbery under the accusatory pleading
test.
In addition, the allegation that the attempted robbery was
perpetrated by means of “force and fear,” rather than “force or fear,” appears
merely to have been a function of conjunctive pleading. Conjunctive pleading is employed to avoid
uncertainty. (In re Bushman (1970) 1 Cal.3d 767, 775 (Bushman), disapproved on another ground by People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1;
147, 154, overruled on another ground by People
v. Jenkins (1995) 10 Cal.4th 234, 252; People
v. Fritz (1970) 11 Cal.App.3d 523, 526.)
In Bushman, for example, the
complaint had charged malicious disturbance of the peace by “‘tumultuous and
offensive conduct.’” (
proper to instruct the jury that the defendant could be found guilty if, in
accordance with the statute, he committed tumultuous or offensive conduct. (
The court explained: “When a
statute such as Penal Code section 415 lists several acts in the disjunctive,
any one of which constitutes an offense, the complaint, in alleging more than
one of such acts, should do so in the
conjunctive to avoid uncertainty.
[Citations.] Merely because the
complaint is phrased in the conjunctive, however, does not prevent a trier of
fact from convicting a defendant if the evidence proves only one of the alleged
acts. [Citation.]” (Bushman,
supra, at p. 775, italics added.) We
question whether the accusatory pleading test was intended to be met by
allegations asserted merely to satisfy our Supreme Court’s directive to plead
in the conjunctive.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________,
J.
CHAVEZ
We concur:
_____________________________,
P. J.
BOREN
_____________________________,
J.
DOI TODD
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
