In re Alan B.















Filed 6/25/12 In re Alan B. CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

In re ALAN B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. ALAN B., Defendant and Appellant.	G045311 (Super. Ct. No. DL039926) O P I N I O N

Appeal from orders of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Nick A. Dourbetas, Judge. Affirmed in part, reversed in part and
remanded with directions.

Doreen B. Boxer, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, James D.
Dutton, Donald W. Ostertag and Joy Utomi, Deputy Attorneys General, for
Plaintiff and Respondent.

* * *

Introduction

In April 2011, then 14‑year‑old
Alan B. walked into a drug store, took four candy bars from a shelf, concealed
the candy bars in his pants, and walked out of the store without paying for the
candy bars. Alan was immediately
confronted by a security guard who had seen Alan steal the candy bars and asked
Alan to return to the store. Alan
started to run away and the security guard gave chase. As the security guard got close to Alan, Alan
threw the skateboard that he had been carrying; the skateboard struck the
security guard in the head. The href="http://www.fearnotlaw.com/">juvenile court found Alan had committed
one count of robbery and one count of aggravated assault as alleged in a
juvenile dependency petition (the petition), sustained the petition, and declared
Alan a ward of the court under Welfare and Institutions Code
section 602.

Alan contends the
juvenile court erred by finding Alan committed robbery because insufficient
evidence showed he used force or fear “to gain original possession of the property
or to resist attempts to retake the stolen property.” (People
v. Estes (1983) 147 Cal.App.3d 23, 28.)
He argues the portion of the order sustaining the petition as to the
robbery count should therefore be reversed.
As Alan does not challenge the finding in the same order that he
committed aggravated assault, that
portion of the order is affirmed. He
also argues the juvenile court’s disposition order, which set a maximum six‑year
confinement period and imposed restitution fines, violated Penal Code
section 654.

We reverse the portion
of the order sustaining the petition as to the court’s finding Alan committed
robbery. The juvenile court erred by
finding Alan had committed robbery, because insufficient evidence showed he had
possession of the stolen candy bars at the time he used force against the
security guard. We remand to the
juvenile court with directions to dismiss the robbery count. We therefore do not need to decide Alan’s
arguments based on Penal Code section 654.
Because the juvenile court made a single disposition order based on the
true findings on both the robbery and aggravated assault counts, the latter of
which is not at issue in this appeal, we remand with directions to issue a new
disposition order.

Summary of Trial Testimony

Around 8:30 p.m. on April 9, 2011, Tupulata Talo was on duty, working as
a loss prevention agent for a Rite Aid store in Westminster,
when he saw Alan walk into the store.
Talo watched Alan walk into the candy aisle, lift up his shirt, and
conceal candy bars in his pants. Talo
positioned himself outside the store and waited about 40 seconds before Alan
walked out of the store without paying for the candy.

Talo stopped Alan in
front of the store, identified himself as “Rite‑Aid security,” showed
Alan his badge, and asked Alan to step back inside the store. Alan initially appeared cooperative, but then
turned around and ran away. Talo chased
after Alan. When Talo came within a
couple of feet of Alan, Alan threw the skateboard that he had been carrying;
the skateboard hit Talo in the head.
Another employee caught up with Alan and detained him. The record does not show that Alan was
searched after he was detained.

Talo never saw the candy
bars outside the store; he never saw Alan with the candy bars outside the
store; and he did not see Alan throw, remove any of the candy wrappers, or eat
the candy bars. Talo, along with Officer
Jose Flores of the Westminster Police Department, who reported to the scene, retraced
the path Talo took when he was chasing after Alan to look for the stolen candy
bars; no one found the candy bars Alan took.
Talo found one brown Hershey’s candy bar wrapper, which had creases and
appeared to be bent, in the center of the parking lot.

Flores
interviewed Alan. Alan admitted he went
into the Rite Aid and decided to steal four Hershey’s bars. He told Flores that
Talo approached him and Alan initially pretended to cooperate with Talo, but
then threw away the candy bars and started to run from Talo. Flores understood from
the interview that Alan threw away the candy bars before he started running
from Talo, and, thus, before he threw the skateboard that hit Talo.

Alan’s trial testimony
was consistent with Talo’s testimony regarding the sequence of events. Alan also testified he threw away the candy
bars before he threw the skateboard. He
further testified he never removed any wrappers from the candy bars he
stole.

Procedural Background

The petition was filed
in the Orange County Juvenile Court and alleged that on April 9, 2011,
Alan committed one count of second degree
robbery in violation of Penal Code sections 211and 212.5,
subdivision (c) (count 1), one count of aggravated assault in
violation of Penal Code section 245, subdivision (a)(1)
(count 2), and one count of making a false representation to a peace
officer in violation of Penal Code section 148.9, subdivision (a)
(count 3). The juvenile court
dismissed count 3 of the petition on the motion of the People.

Following trial, the
juvenile court found the allegations of the petition as to counts 1 and 2
true beyond a reasonable doubt, and declared Alan a ward of the court under
Welfare and Institutions Code section 602.
The court found the “matters to be felonies with maximum term of
confinement of 6 years.” The court
credited Alan with 41 days of actual custody credit in a juvenile facility,
placed him on supervised probation, and ordered that he be released to his
mother’s care. Alan appealed.

Discussion

I.

Standard
of Review

The same substantial
evidence standard of review in adult criminal cases is applicable in href="http://www.fearnotlaw.com/">juvenile delinquency proceedings. (In re
Roderick P. (1972) 7 Cal.3d 801, 809.)
“In considering the sufficiency of the evidence in a juvenile
proceeding, the appellate court ‘must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. We must
presume in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence [citation] and we must make all
reasonable inferences that support the finding of the juvenile court. [Citation.]’”
(In re Babak S. (1993) 18
Cal.App.4th 1077, 1088‑1089; accord, People
v. Thomas (1992) 2 Cal.4th 489, 514; People
v. Barnes (1986) 42 Cal.3d 284, 303.)

II.

Insufficient Evidence Supported the Juvenile Court’s Finding Alan
Committed Robbery.

Penal Code
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.” Alan contends the
juvenile court’s finding that he committed robbery was not supported by
substantial evidence because insufficient evidence showed he took or retained
the stolen candy bars by means of force or fear. We agree with Alan.

“‘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 to retain it or carry it away in the
victim’s presence. [Citations.]’ [Citation.]
That is, ‘[a] robbery is not completed at the moment the robber obtains
possession of the stolen property. The
crime of robbery includes the element of asportation, the robber’s escape with
the loot being considered as important in the commission of the crime as gaining
possession of the property. . . . [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 owner’s immediate presence
regardless of the means by which defendant originally acquired the
property.’ [Citation.]” (People
v. McKinnon (2011) 52 Cal.4th 610, 686‑687.) “‘A robbery cannot be committed against a
person who is not in possession of the property taken or retained.’” (Id.
at p. 687.) Possession may be actual
or constructive. (Ibid.) “‘“‘[T]he theory of
constructive possession has been used to expand the concept of possession to
include employees and others as robbery victims.’”’” (Ibid.)

At trial, the People
argued Alan committed a robbery because he used force to retain the candy bars
by throwing his skateboard at Talo.
Insufficient evidence supported the juvenile court’s finding Alan
committed such a robbery because there was no evidence presented at trial, which
showed Alan had the candy bars in his possession at the time he threw the
skateboard.

The Attorney General
argues that “[t]here are a host of reasonable inferences that can be drawn,” in
support of the juvenile court’s robbery finding, including that “if [Alan]
discarded the stolen candy, it was not until Talo was distracted from being hit
in the head with a skateboard. That
would be consistent with Talo’s testimony that he never saw [Alan] discard the
stolen candy, and that if [Alan] had discarded the property, it was likely in
the area where Talo was hit with the skateboard.”

Although “substantial
evidence may consist of inferences, such inferences must be ‘a product of logic
and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the
result of mere speculation or conjecture cannot support a finding
[citations].” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1633; see Casella v. SouthWest Dealer
Services, Inc. (2007) 157 Cal.App.4th 1127, 1144 [same].) On this record, the inference Alan had the
candy bars in his possession at the time he threw the skateboard did not rest
on the evidence presented at trial, but was the product of mere
speculation.

Talo testified he saw
Alan place the candy bars in his pants while inside the store. Talo also testified he lost sight of Alan for
about 40 seconds while Talo walked out of the store and waited to confront
Alan. During Flores’s interview with
Alan, Alan stated he had thrown away the candy bars before he started running
away from Talo. At trial, Alan testified
that he threw away the candy bars as he was running, but before he threw the
skateboard. No evidence was presented at
trial that contradicted Alan’s statement to Flores and trial testimony that he
had thrown away the candy bars before he threw the skateboard.

Talo did not testify
that he watched all of Alan’s movements from the moment Alan walked out of the
store until he threw the skateboard. No
evidence showed that if Alan had thrown away the candy after leaving the store,
but before he threw the skateboard, Talo necessarily would have seen it. Talo testified he never saw the stolen candy
bars outside the store and the stolen candy bars were never found. The juvenile court’s finding that Alan used
force by throwing the skateboard to retain possession of the candy bars was
therefore speculative and not supported by substantial evidence.

In the respondent’s
brief, the Attorney General cites People
v. Pham (1993) 15 Cal.App.4th 61 (Pham),
in support of the argument substantial evidence supported the juvenile court’s
robbery finding. That case, however, is
factually distinguishable from this one.

In Pham, supra, 15
Cal.App.4th at page 64, one of the victims discovered the defendant in the
backseat of that victim’s car, removing items through an opening in the
trunk. The defendant got out of the car
and fled, carrying away a black bag containing items that he stole from the
car. The victim chased the defendant and
caught him by his shirt. (>Ibid.)
The defendant “dropped the bag where he stood and began slugging [the
victim] in his head several times.” (>Ibid.)
The victim’s companion grabbed the defendant, who “continued to
struggle, kicking, punching, biting, and kneeing both” the victim and the
victim’s companion. (>Ibid.)


After the defendant was
convicted of robbery, he argued on appeal that insufficient evidence showed he
took the property by force or fear because he dropped the stolen goods just as
the victim apprehended him. (>Pham, supra, 15 Cal.App.4th at pp. 64‑65.) The appellate court rejected that argument,
holding: “[T]he asportation or carrying
away of the property occurred when defendant removed the victims’ property from
[the victim]’s car and began to flee.
The asportation continued while defendant struggled with the victims and
prevented them from immediately recovering their goods. Contrary to defendant’s contention, robbery
does not require that the loot be carried away after the use of force or fear.”
(Id. at p. 65.)

Unlike the circumstances
in Pham, supra, 15 Cal.App.4th 61, there was no evidence Alan threw the
skateboard to prevent Talo from recovering the candy bars. The undisputed evidence at trial showed that
the candy bars had already been thrown away at the time the skateboard was
thrown. After the skateboard was thrown,
Alan continued to run away. The facts of
Pham are simply not analogous to
those here.

Disposition

The order sustaining the
petition is reversed as to the true finding on count 1. The juvenile court is directed to dismiss
count 1. The same order is affirmed
as to the true finding on count 2.
Because the juvenile court made a single disposition order based on the
true findings on both counts 1 and 2, we reverse the disposition order and
remand with directions to issue a new disposition order.







FYBEL,
J.



WE CONCUR:







ARONSON,
ACTING P. J.







IKOLA, J.