In re Timothy C.

Filed 4/1/08 In re Timothy C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County. Robin Kesler, Referee Presiding. Affirmed.

Kiana Sloan-Hillier, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General and Nancy G. James, Deputy Attorney General, for Plaintiff and Respondent.

__________________________

Timothy C. (hereinafter appellant) appeals from the juvenile courts order sustaining the robbery allegation against him and the juvenile courts failure to give him credit for his predisposition days in custody. We affirm.

FACTS AND PROCEDURAL HISTORY

In August of 2006, appellant approached victim, Jeremy, who was speaking with a friend during their Physical Education class. Appellant told victims friend not to talk to victim, saying, Hes a bitch. After the victim ignored appellants remarks, appellant threatened him, saying Ill whoop your ass and take your phone. Thereafter, appellant grabbed victims cell phone, which was clipped to his belt, and began to walk away. As appellant was walking away with the cell phone, victim demanded appellant give back the phone.

When appellant did not comply with victims request, victim grabbed appellant and pushed him against the wall. Victim tried to reach in appellants pocket for the phone, but appellant kept pushing victims hand away. Appellant pushed victim away and stated, fuck you. Im BOP gang. Its mine and squared up to fight victim. Victim punched appellant in the face and retrieved the cell phone.

Following the incident, the People filed a petition under Welfare and Institutions Code section 602 against appellant, alleging he committed second degree robbery (Pen. Code,  211). The juvenile court sustained the petition, declared appellant a ward of the court, and committed him to the custody of his mother under the supervision of a probation officer. This appeal followed.

DISCUSSION

1. Standard of Review

In juvenile proceedings involving criminal acts, the standard of proof is the same as the standard of proof in adult criminal trials. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088; In re Jose R. (1982) 137 Cal.App.3d 269, 275.) The appellate court must indulge all reasonable inferences to support the decision of the juvenile court in a wardship proceeding alleging a violation of criminal law, and will not disturb those findings when substantial evidence supports them. (In re Robert H. (2002) 96 Cal.App.4th 1317.)

2. Sufficiency of Evidence

Appellant challenges the sufficiency of evidence of the force or fear element of robbery.

When the challenge is to the sufficiency of the evidence,  [t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.  [Citations.] We view the evidence in the entire record in the light most favorable to the respondent and we presume the existence of every fact in support of the judgment that the trier could reasonably deduce from the evidence. [Citation.] To be substantial, the evidence must be  of ponderable legal significance . . . reasonable in nature, credible, and of solid value.  [Citation.] (In re Jose P. (2003) 106 Cal.App.4th 458, 465-466.) 

According to California Penal Code section 211, [r]obbery 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. The force necessary to elevate a theft to a robbery must be something that is more than what is required to seize the property. (People v Bolander (1994) 23 Cal.App.4th 155, 163.) A theft becomes a robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot. (People v. Torres (1996) 43 Cal.App.4th 1073, 1079, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 363, 365.)

Appellant contends the act of taking the phone did not demonstrate a taking by fear since Jeremy did not have a chance to develop a fear to resist the taking. Furthermore, appellant argues that the act of taking the cell phone did not demonstrate force exceeding the minimum amount necessary to accomplish a taking because no evidence exists that establishes appellant overcame any resistance by Jeremy when he took the phone. Appellants position is incorrect.

Robbery includes the element of asportation, making the robbers escape with the loot . . . as important in the commission of the crime as gaining possession of the property. . . . [] Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owners immediate presence, . . . the crime of robbery has been committed. (People v. Anderson (1966) 64 Cal.2d 633, 638.)

In People v. Estes, the defendant used a knife to threaten and forcibly resist a security guard who followed him outside the store after he had stolen store merchandise. (People v. Estes (1983) 147 Cal.App.3d 23, 26.) The court concluded that a robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owners immediate presence regardless of the means by which defendant originally acquired the property. (Id. at pp. 27-28.)

In Miller v. Superior Court (2004) 115 Cal.App.4th 216, 219, the defendant took the victims wallet that was left in a public bathroom. Upon exiting his stall, the defendant was confronted by victim and his friend who successfully retrieved the wallet after a great deal of scuffling. (Id. at p. 220.) The court concluded that although the immediate presence and force or fear elements of robbery originally had to be satisfied at the time of the gaining possession aspect of the taking, the law has long since allowed these elements to be supplied after the defendant has initially gained possession of the victims property. (Id. at p. 224; see also People v. Jackson (2005) 128 Cal.App.4th 1326 [defendant found guilty of robbery based on evidence that he used force to take property from the victims presence by resisting the victims attempts to stop him from fleeing with the stolen watch in his pocket]; see also People v. Pham (1993) 15 Cal.App.4th 61, 64-68 [robbery conviction based on evidence that the victim confronted the perpetrator as he was getting ready to flee with items taken from the victims automobile and chased him, after which he dropped the items and began to physically attack the victim].)

Here, appellant fought the victims attempt to retrieve the victims cell phone. By doing so, appellant used more force than necessary trying to thwart the victims recovery of his phone, not only in fending off the victims previous attempts to regain his cell phone, but most clearly during the fight with the victim. This fight occurred after appellant had resisted the victims attempts short of the victim punching appellant to retrieve the cell phone, which included grabbing appellant, choking him, and reaching into his pockets. The fact that appellant received the worse end of the fight merely meant appellant chose the wrong victim to rob. The fight and struggle satisfied the force element of robbery.

3. Predisposition Credits

Appellant argues he is entitled to 12 days of custody credit for the number of predisposition days in custody under Penal Code section 2900.5. He is mistaken.

Penal Code section 2900.5, subdivision (a), provides, in part, [i]n all felony and misdemeanor convictions . . . when the defendant has been in custody, including but not limited to, any time spent in [among other places] a jail, camp, . . . [or] juvenile detention facility . . . all days of custody . . . shall be creditedupon his [] term of imprisonment . . . . (Italics added.) By its terms, section 2900.5 applies to a term of imprisonment. The statute does not apply here because appellant was never imprisoned after he was declared a ward of the court. When statutory language is clear and unambiguous, there is no need for construction. The plain language of the statute controls. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1481.)

The statutes inapplicability by its plain terms is consistent with case law. In In re Randy J. (1994) 22 Cal.App4th 1497, the court held the statute governing custody credits for adult offenders does not directly apply to minors. (See also In re Leonard R. (1977) 76 Cal.App.3d 100 [held that juvenile court proceedings are distinguishable from adult proceedings and that P.C. 2900.5 did not apply to juveniles].) Although Penal Code section 2900.5 is inapplicable, Welfare and Institutions Code section 726 provides that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the [same] offense . . . . A minor is entitled to custody credit under section 726 only for physical confinement attributable to the same conduct that underlies the ultimate dispositional order. (In re Randy J., supra, at p. 1497.) As used in the Welfare and Institutions Code, physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority. (Welf. & Inst. Code,  726.) Since an adults term is reduced by credit for preconviction custody, section 726 should be interpreted as entitling a minor to credit for time previously spent in physical confinement when physical confinement is subsequently selected as a disposition. (In re Randy J., supra, at p. 1503; see also In re Eric J. (1979) 25 Cal.3d 522, 535-536.)

Appellant cites In re Antwon R. (2001) 87 Cal.App.4th 348, 353, to support his argument that credit for predisposition days served in custody should be awarded to him. In In re Antwon R., the court reversed a commitment order to the California Youth Authority since the trial court failed to calculate the precommitment custody credit. (Ibid.) Defendant had been committed to the California Youth Authority for a maximum period of 6 months. (Ibid.) Here, unlike the defendant in In re Antwon R., appellant was never committed to the California Youth Authority. Appellant was committed to his mothers care and control, subject to the supervision of a probation officer. Neither probation nor placement in the home constitutes physical confinement under section 726. Therefore, the trial court properly did not address the predisposition credits.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

EGERTON, J.*

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