In re Thomas B.

Filed 2/19/08 In re Thomas B. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of the County of Los Angeles, S. Robert Ambrose, Referee (pursuant to Cal. Const., art. VI, 21). Affirmed as modified.

Stephen M. Hinkle, 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, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant Thomas B. (Thomas) came within the provisions of Welfare and Institutions Code section 602 because he committed a second degree robbery (Pen. Code, 211[1]). The juvenile court found the allegation to be true and declared the offense to be a felony. The juvenile court continued Thomas on probation and ordered him suitably placed. The juvenile court set the maximum period of physical confinement at five years and awarded Thomas 19 days of predisposition custody credit.

On appeal, Thomas contends that there is insufficient evidence to support the juvenile courts finding that he committed a second degree robbery and that the juvenile court erred in awarding him 19 days of predisposition custody credit rather than 27 days. We affirm the juvenile courts finding that Thomas committed a second degree robbery and direct the juvenile court to amend its wardship order to reflect 27 days of predisposition custody credit.

BACKGROUND

About 9:50 p.m., on March 16, 2007, Susanna Hernandez; Hernandezs daughter, Patricia Andrade; and their neighbor, Ricardo, parked in front of a liquor store on Figueroa Avenue in Los Angeles. Andrade and Ricardo went into the store. Hernandez remained in the car, seated in the front passenger seat. As Hernandez sat in the car, she saw Thomas approach the car. Hernandez tried to lock the doors, but Thomas opened the drivers side door before Hernandez could lock it.

Thomas asked Hernandez for a number, but she told him she did not have one. Thomas then spotted Andrades open purse in the back of the car and grabbed it. Hernandez pulled the purse from Thomas. Thomas grabbed the purse and Hernandez tried to take it from him, but was unsuccessful. Thomas ran away. Andrade had not given Thomas permission to take her purse. Hernandez got out of the car to call for help. Andrade came out of the store when she heard her mother screaming. Andrade and Ricardo got in the car and searched for Thomas. Andrade did not see Thomas, and flagged down Los Angeles Police Department Officer Jose Carbral and his partner, apparently Officer Gomez.

Officers Carbral and Gomez searched the area, located Thomas, and detained him. Officer Carbal advised Thomas of his Miranda^[2] rights. Officer Gomez recovered a wallet from Thomas. The wallet contained Andrades identification. Officer Steven Sieker was assigned to investigate the robbery and interviewed Thomas. Thomas told Officer Sieker that a friend had given him some things and that he did not rob people. Officer Sieker asked Thomas if he knew where Andrades purse was. Initially, Thomas told Officer Sieker that he did not know about a purse, but eventually led Officer Sieker to Andrades purse.

DISCUSSION

I. Sufficient Evidence Supports Thomass Second Degree Robbery Conviction

Thomas contends that there is insufficient evidence to support his second degree robbery conviction because there is no evidence that Hernandez was in actual or constructive possession of Andrades purse.[3] Sufficient evidence supports the conviction.

A. Standard of Review

We review claims of insufficient evidence to sustain a criminal allegation in a petition under Welfare and Institutions Code section 602 using the same standard as in a criminal case. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ([People v.] Rowland [(1992) ] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].) (People v. Young (2005) 34 Cal.4th 1149, 1175.)

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] (People v. Young, supra, 34 Cal.4th at p. 1181.)

B. Application of Relevant Legal Principles

Section 211 provides, 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. [T]he possession required for robbery is evidence the person charged as the victim owns the property, has actual possession or acts in some representative capacity with respect to the owner of the property. The person must have express or implied authority over the item taken. [Citation.] (People v. Jones (1996) 42 Cal.App.4th 1047, 1054.)

At the hearing, Hernandez testified that when he grabbed [the purse], I pulled it from him but he grabbed it and I tried to take it away from him, but he grabbed it and took it. On cross-examination, Hernandez testified that after Thomas grabbed the purse and began to pull it away, she reached toward it. Thomass attorney then asked, So the gentleman already grabbed the bag when you were trying to grab it back? Hernandez responded, Yes; he grabbed it and I tried to grab it from him. He grabbed it. Asked how long Thomas had the purse before she reached for it, Hernandez responded, as soon as I saw he grabbed it, I grabbed it and we struggled.

Hernandezs direct testimony is sufficient evidence from which a reasonable trier of fact could conclude that Hernandez wrested physical control of the purse from Thomas, thus establishing sole physical, or actual, possession of the purse, and that Thomas then took the purse from her possession by force. Once Hernandez was in sole physical custody of Andrades purse, Thomass taking of the purse by force was a robbery. ( 211.) To the extent that Hernandezs testimony on cross examination might be viewed as conflicting or inconsistent with her direct testimony on the issue of whether she took sole physical possession of the purse from Thomas, any such conflict or inconsistency was for the juvenile court to resolve. (People v. Young, supra, 34 Cal.4th at p. 1181.)

Even if we were to hold that the facts did not establish that Hernandez had actual possession of Andrades purse, however, we would hold that the facts establish that Hernandez had constructive possession of the purse. In People v. Gordon (1982) 136 Cal.App.3d 519, the defendant and another man entered the home of Joseph and Mary Lopes. (Id. at p. 523.) Mr. and Mrs. Lopes were ordered at gunpoint to lie on the floor. (Id. at pp. 523-524.) The defendant then entered the Lopes sons bedroom from which he took a shoulder bag, $1,000, and two pounds of marijuana. (Id. at p. 524.) The prosecution did not provide any evidence that either Mr. or Mrs. Lopes had had physical possession of the stolen items. (Id. at p. 529.) Rejecting a claim of insufficient evidence based on an asserted lack of possession, the court of appeal cited a number of cases where employees were held to be the victims of a robbery because they were responsible for protecting and preserving the property taken and stated, Clearly, if those individuals enumerated in the paragraph above were responsible for the protection and preservation of the property entrusted to them, parents have at least the same responsibility to protect goods belonging to their son who resides with them in their home. (Ibid.)

Under the facts of this case, a reasonable trier of fact could have found that Hernandez was in constructive possession of Andrades purse. When Andrade left her open purse which contained her wallet, among other things in the back seat of an unlocked car, a trier of fact properly could infer she did so because she knew that her mother remained in the front seat of the car in a position to guard the purse. Thus, as the parents in People v. Gordon, supra, 136 Cal.App.3d 519, Hernandez had the responsibility to protect her daughters purse. (Id. at p. 529.) That is, Hernandez was Andrades representative with respect to Andrades purse and had authority over the purse. (People v. Jones, supra, 42 Cal.App.4th at p. 1054.) Significantly, mother acted in that representative capacity when she tried to lock the cars doors when Thomas approached.

II. Thomass Predisposition Custody Credit

Thomas claims that the juvenile court erred in awarding him 19 days of predisposition custody credit rather than 27 days. Respondent agrees that the juvenile court erred in calculating Thomass custody credit, but argues that we should reject Thomass contention because Thomas did not raise the issue first in the juvenile court as required by section 1237.1.[4] We agree with Thomas and order the wardship order amended to reflect 27 days of predisposition custody credit.

Pursuant to Welfare and Institutions Code section 726, a juvenile court is to grant credit against the maximum period of physical confinement for the time a juvenile spends in custody before the disposition hearing. (In re Eric J. (1979) 25 Cal.3d 522, 533-536, 538; In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067-1068.) Thomas was arrested on March 16, 2007, and remained in custody until the disposition hearing was held on April 11, 2007 a period of 27 days. Accordingly, the juvenile court should have awarded Thomas 27 days of predisposition custody credit.

Citing section 1237.1 and People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101, respondent contends that we should not consider Thomass predisposition custody credit claim because Thomas did not raise it in the juvenile court. Section 1237.1, however, applies to adult defendants who appeal their criminal convictions under section 1237, and not to juveniles who appeal their adjudications under Welfare and Institutions Code section 800. (In re Antwon R. (2001) 87 Cal.App.4th 348, 350-352.) Even if section 1237.1 were to apply in this case, we would resolve the issue in the interest of judicial economy. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428).

DISPOSITION

The juvenile courts finding that Thomas committed a second degree robbery is affirmed. The juvenile court is to modify its wardship order to reflect that Thomas has 27 days of predisposition custody credit.

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] All statutory citations are to the Penal Code unless otherwise noted.

[2]Miranda v. Arizona (1966) 384 U.S. 436.

[3] The petition alleged that defendant robbed Andrade. As is evident from the foregoing recitation of facts, the prosecutions theory at the hearing on the petition was that Thomas robbed Hernandez. We note that Thomas did not object in the juvenile court to this variance between the allegation in petition and the proof at the hearing or claim that he did not receive adequate notice of the charge against him, and he does not raise either claim on appeal. (See People v. Bright (1996) 12 Cal.4th 652, 671 [a defendant forfeits any challenge to the adequacy of notice in the charging document when he fails to object in the trial court], disapproved on another ground in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6; In re Michael D. (2002) 100 Cal.App.4th 115, 127-128 [The charging document provides notice to the accused. As long as it serves that purpose, it is adequate. [Citations.] The same is true with a petition in a delinquency proceeding. [Citation.]].)

[4] Section 1237.1 provides, No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.