In re Sergio M.
Filed 5/24/13 In re Sergio M. CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re SERGIO M., a Person
Coming Under the Juvenile Court Law.
B244322
(Los Angeles
County
Super. Ct.
No. NJ26254)
THE PEOPLE,
Plaintiff and Respondent,
v.
SERGIO M.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court
of
County. Charles R.
Scarlett II and John C. Lawson II Judges.
Affirmed.
Esther
R. Sorkin, 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, Victoria B.
Wilson, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney
General, for Plaintiff and Respondent.
Minor Sergio M. appeals from the
order of wardship entered following a finding that he committed attempted
robbery. Minor contends that the
evidence was insufficient to support the juvenile court’s finding that he committed
attempted robbery because there was no
evidence he used force. We affirm.
BACKGROUND
On
April 4, 2012, minor entered
a store in Torrance where Mehdi
Amini and his brother Gosham Amini were working. Minor apparently left his skateboard near the
store entrance, then went to a rack of sunglasses. Mehdi testified that he saw minor remove two
pairs of sunglasses from the rack and place them in his pocket. Mehdi approached minor and asked minor to
give him the sunglasses. Mehdi testified
that minor refused and said, “‘You cannot touch me.’†Mehdi said he was not going to touch minor,
but was asking for the sunglasses. Mehdi
testified that minor “just act[ed] angry, and he came toward me; and he goes,
‘Look. You cannot touch me.’†Mehdi told minor he was going to call the
police, then did so. Mehdi testified, “I
was on the phone with the officer. Then
he start going through the—my brother, he was over there. He just push him and tried to force himself
out, and he grabbed his skateboard.
That’s the time I thought he was going to strike him with the
skateboard, because he was holding it to him.â€
The prosecutor asked, “You observed Sergio pushing your brother?†Mehdi replied, “Yeah, he pushed him, because
I—he’s coming through the checkstand.
It’s narrow. But he pushed
him. And he has a heart condition.†Mehdi testified that after minor grabbed his
skateboard, “[W]e took it away from him.
And the way he was moving and shaking up the things, we just hold him down.†Mehdi then testified that only he, not his
brother, held minor, and while Mehdi was holding minor, minor “put his hand in
his pocket. He throw the sunglasses up
in the air.†Mehdi restrained minor
until the police arrived.
On
cross-examination, Mehdi testified
that when he held minor, he was on top of minor, who was on the floor. Mehdi was six feet tall and weighed about 250
pounds. Gosham was the same height and
weighed about 220 pounds. Mehdi denied
that both he and Gosham held minor, but then testified, “He hold him when he
strike him.â€
Rosemary
Diaz testified that she and her foster child were in the store at the time of
the events giving rise to the attempted robbery allegation against minor. When she walked into the store, Diaz saw
Mehdi staring toward the back of the store.
Diaz went down two aisles before she saw minor. Mehdi said something to minor like, “‘You got
something in your pockets.’†Minor
denied he had anything in his pockets. Diaz
testified that Mehdi went up to minor and “kind of grabbed him,†then minor
“fell back; and [Mehdi] got him from the legs and dragged him from where
[minor] was all the way to the counter where he was behind the register.†Minor was “struggling†and received a “burnâ€
on his face from Mehdi dragging him.
Diaz testified that Mehdi had minor in a “choke-hold,†but Diaz
protested, so Mehdi lowered his arm to minor’s shoulder. Mehdi then grabbed minor’s skateboard and
Diaz thought Mehdi was going to strike minor with it, so she again
protested. Mehdi then dropped the
skateboard. Mehdi’s brother got on top
of minor, too. Mehdi said he was going
to call the police and minor said, “‘Why?
That’s unnecessary. I didn’t do
anything.’†At some point, one of the
Amini brothers turned minor’s pockets inside out while the other one held him
down. Diaz did not see anything in
minor’s pockets. After the police
arrived, Diaz noticed a single pair of white sunglasses on a chair in the
corner near the cash register. Diaz
never saw minor hit or push either of the Amini brothers.
The
juvenile court sustained a Welfare and Institutions Code section 602 petition
alleging attempted robbery, declared minor to be a ward of the court, and
ordered him home on probation on conditions including completion of 60 days of
community detention program. Minor
successfully completed the program, and at a second dispositional hearing, he
was placed home on probation.
DISCUSSION
Minor contends that the evidence was insufficient to support
the juvenile court’s finding that he committed attempted robbery because there
was no evidence he used force.
To resolve
this issue, we review the whole record in the light most favorable to the
juvenile court’s order to decide whether substantial evidence supports the
court’s finding, so that a reasonable fact finder could find the allegation
true beyond a reasonable doubt. (
537, 540.) We also presume in support of
the juvenile court’s finding the existence of every fact the trier could
reasonably deduce from the evidence and make all reasonable inferences that
support the finding. (
1077, 1089.)
Robbery
is defined as the taking of personal property of some value, however slight,
from a person or the person’s immediate presence by means of force or fear,
with the intent to permanently deprive the person of the property. (Pen. Code, § 211; People v.
15 Cal.4th 1, 34.)
“A
defendant who does not use force or fear in the initial taking of the property
may nonetheless be guilty of robbery if he . . . ‘uses force or fear
in resisting attempts to regain the property or in attempting to remove the
immediate presence . . . .’â€
(People v. McKinnon (2011) 52
Cal.4th 610, 686–687 (McKinnon),
quoting People v. Estes (1983) 147 Cal.App.3d 23, 27–28 (
“It is the conduct of the perpetrator who resorts to violence to further
his theft, and not the decision of the victim to confront the perpetrator, that
should be analyzed in considering whether a robbery has occurred.†(People
v. Gomez (2008) 43 Cal.4th 249, 264.)
“The
force required for robbery is more than ‘just the quantum of force which is
necessary to accomplish the mere seizing of the property.’ [Citation.]â€
(People v. Garcia (1996) 45
Cal.App.4th 1242, 1246, disapproved on another ground in People v. Mosby (2004) 33 Cal.4th 353, 365, fn.3.) But the degree of force is immaterial; all that is required is
sufficient force to overcome the victim’s resistance. (Ibid.; People v. Jones
(1992) 2 Cal.App.4th 867, 870.)
Whether the evidence demonstrates a use of force or fear is a factual
question. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.) In determining whether force was used, the
trier of fact may consider and compare the physical characteristics of the
victim and the defendant. (
“An attempted robbery requires a
specific intent to commit robbery and a direct, ineffectual act (beyond mere
preparation) toward its commission.
[Citations.] Under general
attempt principles, commission of an element of the crime is not
necessary. [Citation.] As such, neither a completed theft [citation]
nor a completed assault [citation], is required for attempted robbery.†(People
v. Medina (2007) 41 Cal.4th 685, 694–695.)
The direct, ineffectual act need not reflect the use of force or
fear. (People v. Vizcarra (1980) 110 Cal.App.3d 858, 862.) “[A]n attempted robbery may also
include
offense, but it is erroneous to say that the crime must have progressed
this far in order to constitute an attempt.â€
(Id. at pp. 862–863.)
Here,
Mehdi’s testimony that minor pushed Gosham was sufficient to support a finding
that minor either used force or attempted to use force to escape with the
sunglasses. Gosham was apparently
blocking minor’s exit from the store, and minor attempted to get past him by
pushing him. This constitutes an attempt
to use force to resist a store employee’s attempt to prevent him from escaping
with the stolen property. There can be
no doubt that if minor had succeeded in pushing Gosham out of his way, the
force he used would be deemed sufficient, and it is probable minor would have
completed the robbery. (See
52 Cal.4th at pp.
686–688 [sufficient evidence of force to support robbery where defendant shoved
teacher who attempted to block defendant from leaving school cafeteria with
cash box].) That minor’s push was
ineffective in no way detracts from the sufficiency of the push to support the
juvenile court’s finding that minor committed an attempted robbery.
Minor
argues that because he was much smaller than Gosham, his push should not be
deemed to constitute the use of force.
This overlooks the nature of the charge (attempted robbery) and the absence of any evidence in the record
regarding minor’s height, weight, or strength.
In any event, the juvenile court had the opportunity to view minor and
was thus able to compare minor’s physical characteristics with Mehdi’s testimony
regarding Gosham’s size, and it found sufficient use of force to support the
attempted robbery allegation.
Minor
also argues that the push of Gosham was “essential to an escape†and “more
analogous to the ‘quantum of force which is necessary to accomplish the’ taking
. . . rather than an application of force that is in addition to the
force required to take the property (or to escape with it).†Minor mischaracterizes both the facts and the
law. Minor had already acquired physical
possession of the sunglasses by taking them from the rack and placing them in
his pocket before he pushed Gosham. He
applied force during the attempted asportation portion of the crime, which
placed him squarely within the legal principle that a theft becomes robbery if
force or fear is used during asportation.
In every Estes-type robbery,
the use of force or fear is “required†to escape with the property, but this
“necessity†does not nullify the legal effect of the perpetrator using force or
fear.
In
addition, Mehdi’s testimony supported an inference that minor attempted to use
fear to escape when he picked up his skateboard and “[held] it to [Gosham]†in
a manner that caused Mehdi to think minor was going to strike Gosham with the
skateboard.
Minor
argues, in essence, that the juvenile court misunderstood the law because it
based its finding of force upon the victims’ use of force. Just before minor’s closing argument, the
court characterized this as “a classic case†“with respect to the petty theft
turning into a robbery.†Minor
responded, “I believe that a petty theft that the court is referring to that is
turning into a robbery, there has to be a struggle over retention of the
property.†The court stated, “That’s
what it was. They had to use force to
get the property back.†Minor noted,
“But it’s not them using the force to get the property back. It’s the defendant having to use force to
retain the property. [¶] The defendant never used force against the
people asking for it back, to retain the property.†Minor argued that he did not struggle to
retain the sunglasses, but only in self-defense because Mehdi had him in a
choke hold. The court responded that
minor “was struggling to keep them from getting the sunglasses back.†Minor then argued, “He didn’t use physical
force to keep them from getting them.â€
The court responded, “To resist them from getting them. [¶]
And then he finally, all of a sudden, based on the testimony, if I
believe the victim in the case, when he saw that he wasn’t going to let him go,
then he threw them out in the store.†We
conclude that the court’s initial statement about the victims using force did
not reflect a belief that a robbery (or attempted robbery) is committed where
the victim, but not the defendant, uses force.
The court’s later remarks reveal that the court understood the law and
found that minor used force “[t]o resist [the victims] from getting [the
sunglasses]†back. The initial statement
appears to be merely a comment upon minor’s argument.
Minor
also argues that there was no evidence that he struggled to retain the
sunglasses. We note that although the
juvenile court referred to minor “struggling,†and the only evidence of minor
struggling was Diaz’s testimony that minor struggled as Mehdi dragged him
across the floor, the court’s use of this word apparently stemmed from minor’s
argument that “there has to be a struggle over retention of the property.†The court clearly found minor used force to
resist the Amini brothers from retaking the sunglasses, substantial evidence
supports this finding, and the juvenile court’s use of the word “struggle†does
not undermine the sufficiency of the evidence to support the court’s finding.
DISPOSITION
The order under review is affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We
concur:
ROTHSCHILD, J.
CHANEY,
J.
