Filed 2/28/18 In re Rodrick W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


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




A149957

(Alameda County
Super. Ct. No. JV02657704)


Rodrick W. appeals from a dispositional order after the juvenile court sustained allegations of second degree robbery, unlawful driving or taking of a vehicle and receiving stolen property. Rodrick contends the evidence was insufficient to prove robbery or the unlawful driving or taking of a vehicle. He alternatively argues he was improperly found to have received stolen property based on the same conduct underlying the juvenile court’s true finding on the unlawful driving or taking a vehicle count. His assertions are meritless, so we affirm.
BACKGROUND
The Robbery
The victim was 14 years old when he testified at the jurisdictional hearing. He was acquainted with Rodrick but they did not socialize or share the same friends.
The victim testified that in May 2016 he bought a pair of purple Air Jordan “7” shoes from Rodrick for $130. He paid the full amount when he bought the shoes.
On September 11, 2016, the victim attended a party near his home. He was leaving with a friend when Rodrick approached with six or seven other people and said, “[W]here’s my money? You either got to give me some money or them shoes that you got.” Rodrick had never taken anything from the victim before, but the people with him had done so.
The victim tried to run because he “didn’t want [his] stuff tooken, or whatever would happen,” but he stopped. He had already paid Rodrick in full for the shoes and did not owe him any money. He told Rodrick “I didn’t have [the money], and I don’t know where it is.” Rodrick said, “you either have to give me some money or your shoes.”
The victim took off his shoes, a pair of blue Air Jordan “9’s” because he was afraid the group would “jump or beat [him] up.” He walked home barefoot.
On cross-examination, the victim testified that he bought the purple Air Jordans in March 2016, paid Rodrick $40 when he bought the shoes, and gave him another $100 the next day. After that, Rodrick kept demanding money even though the victim had paid him. They exchanged numerous text messages about how the victim would pay for the shoes. He offered to let Rodrick keep a pair of slippers he had given him and to get him some shirts from the mall. On another occasion the victim texted that he would get the money from his father, but he testified that he never intended to pay Rodrick anything more. He explained: “it was just, just to [make Rodrick] buzz off ” and “I already had paid it. It’s just, it’s just texting while I’m not really going to do it.” Later the victim offered to return the shoes or give Rodrick a belt or various items of clothing as partial or full payment. The victim never denied in any of his messages that he owed Rodrick for the shoes, but he said he told Rodrick in person “[l]ike three times” that he had already paid him. The victim continued to reply to Rodrick’s messages because “he keeps texting me. Obviously, I’m trying to really not have him texting me no more.” The victim eventually sold the shoes to someone else.
The victim knew the people with Rodrick on the night of the incident, but he only knew two of their names. Rodrick did not threaten the victim verbally but the victim thought “there was going to be a fight” because of Rodrick’s “body expression.” Rodrick was standing in front of him with “a whole group,” angry, standing on his toes and moving back and forth.
Rodrick testified on his own behalf. He said he bought a pair of purple and black “Jordan 7’s” for $150 on his birthday in December 2015. In February or March the victim asked to buy the shoes. Rodrick offered to sell them for $130. The victim gave Roderick $40 that day but never paid the rest. Later, when Roderick saw the victim in the neighborhood he would ask for his money. The victim told him he did not have it but that he was going to get it.
When Rodrick saw the victim at the party he initially looked like he was going to run away, but he stopped. Rodrick asked for the money. The victim said he did not have it. Rodrick said, “let me have those shoes then.” The victim took off his shoes and left them. Rodrick did not want the shoes, did not think the victim would actually take them off, and intended to give them back. He just wanted his money.
On redirect examination, defense counsel asked Rodrick what happens “when someone buys a car and they can’t afford to keep paying?” Rodrick said, “They get it tooken away.” Defense counsel asked what happens if someone does not pay the rent for their apartment. Rodrick replied, “They get kicked out.” Rodrick knew it was wrong to take things from other people, but he said he did not know it was wrong for him to ask the victim for his shoes because the victim “took my property from me” and “took my shoes basically and sold ‘em.”
Unlawful Driving Or Taking of Vehicle
On Wednesday, October 12, J. Dominguez reported that her aunt’s 1995 Infiniti J30 was stolen from an Emeryville parking lot that day.
The following day, Officer Billy Matthews of the Oakland Police Department was conducting surveillance in the parking lot of the Coliseum BART station when he saw the stolen Infiniti as it traveled south on 71st Avenue, slowed to make a right turn into the lot, and parked. As the car turned into the parking lot Officer Matthews got a good view of the driver and identified him in court as Rodrick. Before the car turned into the lot Matthews was able to see the driver’s profile and “upper chest-to-head.” He also saw two passengers, in the front and rear seats.
After the car parked, maybe 10 to 20 seconds after Officer Matthews first observed it, his view was briefly obstructed by a bus. When the bus passed he saw that the occupants had gotten out and were walking toward the entrance of the parking lot. Matthews radioed a description of the occupants and their direction of travel.
Oakland Police Officers Dickson and Lindsay were on patrol nearby when they heard Officer Matthews’ broadcast. They responded to the BART station’s underground crossing, where they saw three males matching Officer Matthews’ description. Officer Dickson recognized Rodrick and one of the other suspects, Cyrus G., from prior encounters. He grabbed Rodrick and Cyrus by their arms. The third suspect fled and Officer Lindsay pursued him.
Officer Dickson told Rodrick and Cyrus to stand against the wall. Rodrick fled, but was soon apprehended. Dickson searched Cyrus and found a pair of scissors and half of a broken pair of scissors. The other half of the scissors was found on the ground next to the Infiniti. A police sergeant was able to start the Infiniti’s ignition using the half scissors found on the ground.
Findings
The court found clear and convincing evidence that Rodrick understood the wrongfulness of his actions and found all three of the allegations to be true. It explained, “all witnesses were true. I didn’t find it hard to believe certain pockets of [the victim’s] testimony as well as the testimony of Rodrick. [¶] For example, it’s unclear what the deal was between them. And the back and forth about money owed was not clearly established. That said, that is a different question that need not be resolved by the Court on these charges. It provided some context, and frankly, gave the Court an opportunity, a better opportunity, to evaluate the credibility of the witnesses. [¶] The Court generally, generally agrees with the statement by the petitioner concerning the Penal Code 26.[ ] Factors that go into the Court’s ultimate decision, I will also point out that the minor fled from the police when stopped at the BART station on suspicion of auto theft or possessing a stolen vehicle.”
Rodrick was continued as a ward of the court, referred to the probation department’s intensive supervision unit and released to his father with numerous probation conditions including GPS monitoring, stay-away orders and community service. This appeal is timely.
DISCUSSION
Robbery
Rodrick contends the evidence was insufficient to prove the victim’s fear was attributable to his conduct or that he understood the wrongfulness of his acts. Not so.
The standard of proof in juvenile proceedings is the same as in adult criminal trials. (In re Babak S.(1993) 18 Cal.App.4th 1077, 1088.) “To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] 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. [Citation.] 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. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] 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 (2008) 43 Cal.4th 327, 357 (Zamudio).)
Moreover, we “ ‘must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it is the [trier of fact’s] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” (Zamudio, supra, 43 Cal.4th at pp. 357–358.)
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.) “The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.” (People v. Ramos (1980) 106 Cal.App.3d 591, 601–602, disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16.) It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances in which the property is taken. (People v. Holt (1997) 15 Cal.4th 619, 690.)
The element of force can be actual or constructive. (People v. Wright (1996) 52 Cal.App.4th 203, 210.) Constructive force encompasses “ ‘all . . . means by which the person robbed is put in fear sufficient to suspend the free exercise of . . . will or prevent resistance to the taking.’ [Citation.] This ‘constructive force’ means ‘force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury . . . .’ [Citation.] . . . [Citation.] Included within the common meaning of ‘force’ is ‘such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.’ . . . . [¶] As we have noted, ‘force’ is not an element of robbery independent of ‘fear’; there is an equivalency between the two. ‘ “[T]he coercive effect of fear induced by threats . . . is in itself a form of force, so that either factor may normally be considered as attended by the other.” ’ ” (Id. at pp 210–211.)
Here, Rodrick and six or seven others approached and confronted the victim at night. Some of the group had taken things from the victim before. Rodrick appeared angry and his body language was threatening. He was standing on his toes and moving back and forth. He demanded that the victim give him money or the shoes he was wearing. The victim complied because he was afraid the group was going to beat him up. No verbal threats were made, but Rodrick’s demeanor, his “body expression,” and the fact that he was accompanied by a group of associates conveyed to the victim that he was ready to fight. This was sufficient for the court to find the victim’s fear was caused by Rodrick’s conduct. Rodrick argues the victim’s fear was attributable only to the “coincidental presence of others in the group,” but his assertion does not change the analysis or result. “Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal.” (Zamudio, supra, 43 Cal.4th at pp. 358.)
The evidence was also sufficient to support the finding that Rodrick understood the wrongfulness of his behavior toward the victim. Section 26 establishes a presumption that a minor younger than 14 is incapable of committing a crime, rebuttable by clear and convincing evidence that the minor understood the act’s wrongfulness. (§ 26; People v. Lewis (2001) 26 Cal.4th 334, 378; In re Manuel L. (1994) 7 Cal.4th 229, 232.) “Although a minor's knowledge of wrongfulness may not be inferred from the commission of the act itself, ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment’ may be considered. [Citation.] Moreover, a minor's ‘age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts.’” (People v. Lewis, supra, at p. 378.) The prosecution bears the burden of proof. (In re Manuel L., supra, 7 Cal.4th at p. 234; In re Tony C. (1978) 21 Cal.3d 888, 900.)
Rodrick was just three months shy of 14 when he committed the robbery. That alone is an indication that he understood it was wrong to take the victim’s shoes by a show of force. Indeed, Rodrick admitted he felt wrong about making the victim walk home without his shoes. Moreover, a few months earlier Rodrick participated in a series of strong-arm robberies in May 2016 in which he and his friends, driving a stolen car, grabbed a phone from one female pedestrian and attempted to grab a phone from another. In the context of those offenses Rodrick acknowledged to his probation officer that he understood it was wrong to take another person’s property. On this record the juvenile court reasonably disbelieved Rodrick’s testimony that he did not know it was wrong to take the victim’s shoes “[b]ecause [the victim] took my property from me.”
Rodrick protests the court erred in considering the prior sustained findings of attempted robbery and being an accessory to robbery to show he knew the wrongfulness of his actions. In his view, the May strong-arm robberies were too dissimilar to Rodrick’s behavior on September 11 “to permit an inference that a minor cognizant of the wrongfulness of the former would also be cognizant of the wrongfulness of the latter.” (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161.) We disagree. The court could reasonably find that forcibly grabbing pedestrians’ phones and taking the victim’s shoes by threat of violence, both accomplished with a group of associates, reflect conduct similar enough to permit an inference that if Rodrick understood the former behavior was wrong, he also understood the latter was wrong. (See In re Nirran W., supra, 207 Cal.App.3d at p. 1161 [earlier offenses need not be identical if sufficiently similar to permit inference minor understood wrongfulness of subsequent offense].) Moreover, Rodrick was almost 14 years old at the time and the trial court had ample opportunity to assess the credibility of his testimony and consider his behavior when he and his associates confronted the victim and demanded his money or his shoes. Even without the prior findings, the record was sufficient to support the court’s finding that Rodrick appreciated the wrongfulness of his conduct.
Unlawful Taking Or Driving
Rodrick next contends the evidence was insufficient to support the juvenile court’s finding that he unlawfully drove or took the Infiniti. (Veh. Code, § 10851, subd.(a).) The contention rests on his claim that Officer Matthews never obtained an adequate view of the car’s driver and was unable to recall the occupants’ distinguishing features. Thus, he maintains, the identification was too unreliable to support the true finding.
The record proves him wrong. Matthews testified he had a good view of the driver, and he unambiguously identified him in court as Rodrick. It was a sunny day. Matthews had a clear view of the driver’s face as the Infiniti proceeded south past the officer’s car and turned right into the lot across from where the officer was parked facing west. The officer’s testimony was substantial evidence that Rodrick was the driver (see People v. Johnson (1980) 26 Cal.3d 557, 578 [substantial evidence is that which is ‘reasonable, credible, and of solid value”]) and it is not within our purview to disturb the court’s credibility determination. (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
Alternatively, Rodrick contends the true finding on the receiving stolen property count (count 3, § 496d, subd. (a)) must be reversed because it is based on the same conduct as the Vehicle Code 10851, subdivision (a) count for theft or unauthorized use of a vehicle. We disagree.
A defendant generally may not be convicted of stealing and receiving the same property. (§ 496, subd. (a); People v. Jaramillo (1976) 16 Cal.3d 752, 757 (Jaramillo).) Accordingly, Rodrick is generally correct that the court could not sustain allegations of both stealing the Infiniti and receiving it as stolen property. However, Vehicle Code section 10851, subdivision (a) punishes not only unlawfully taking a vehicle, but also unlawfully driving a vehicle after it has been stolen. (Jaramillo (1976) 16 Cal.3d 752, 758.) Thus, “where, as here, a defendant's dual convictions for violating section 10851(a) and section 496(a) relate to the same stolen vehicle, the crucial issue usually will be whether the section 10851(a) conviction is for a theft or a nontheft offense. If the conviction is for the taking of the vehicle, with the intent to permanently deprive the owner of possession, then it is a theft conviction that bars a conviction of the same person under section 496(a) for receiving the same vehicle as stolen property. Dual convictions are permissible, however, if the section 10851(a) conviction is for posttheft driving of the vehicle.” (People v. Garza (2005) 35 Cal.4th 866, 881 (Garza).) A defendant may also be convicted of both theft and receiving if there is a “significant break in the defendant’s possession and control over the stolen property.” (Id. at p. 879.)
“In determining here whether defendant's section 10851(a) conviction was for a theft or a nontheft offense, we are guided by certain principles. First, on appeal a judgment is presumed correct, and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error. [Citation.] The second principle is stated in the California Constitution, article VI, section 13: ‘No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ Applying those principles here, we begin with the presumption that defendant's dual convictions—for unlawful taking or driving under section 10851(a) and for receiving stolen property under section 496(a)—are valid; we will set aside either or both of the convictions only if defendant has affirmatively shown prejudicial error amounting to a miscarriage of justice.” (Garza, supra, 35 Cal.4th at p. 881.)
Rodrick cannot make such an affirmative showing. He was apprehended with his associates driving the Infiniti a day after it was reported stolen, but there was no evidence he was the person who stole it the previous day. Absent such evidence, we will not presume the juvenile court found the allegation true based on a theory that lacked any evidentiary support. (See People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [court is presumed to know and apply the law].) Since the court’s section 10851, subdivision (a) finding could only have been for unlawful driving, not theft, the dual true findings were permissible. To the extent Jaramillo, supra, 16 Cal.3d 752 is inconsistent with our reasoning, the Supreme Court in Garza approved a harmful error analysis similar to ours and distinguished Jaramillo as having been guided by a superseded version of section 496, subdivision (a). (Garza, supra, 35 Cal.4th at p. 882.) Garza, not Jaramillo, is the controlling precedent.
DISPOSITION
The judgment is affirmed.



 
_________________________
Siggins, J.


We concur:


_________________________
McGuiness, Acting P.J. *


_________________________
Jenkins, J.






















In re R.W., A149957