In re Niko P.
Filed 3/20/13 In re Niko P. CA4/3
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opinion has not been certified for publication or ordered published for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 NIKO P., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
NIKO P.,
Defendant and Appellant.
G045909
(Super. Ct. No.
DL040877)
O P I
N I O N
Appeal from a judgment of
the Superior Court
of
County, Jacki C. Brown, Judge.
Affirmed in part, reversed in part.
Elizabeth Garfinkle,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Charles C. Ragland,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The
Orange County District Attorney filed a petition pursuant to Welfare and
Institutions Code section 602, alleging Niko P. had committed
other offenses. The court found the
allegations true and sentenced Niko P. to time served and probation. Niko P. argues there was insufficient
evidence to support the robbery count, claiming that he had abandoned the
property and reached a place of temporary safety before any force
occurred. We disagree and find
substantial evidence to uphold the robbery finding. We do agree that he cannot be convicted of
receiving stolen property and robbery of the same property, however, and
therefore order the adjudication on that count reversed.
I
FACTS
On August 5, 2011, Enrique Pallares and his uncle, Cesar Mora, were playing golf on a course in San Juan Capistrano. Pallares
noticed Niko P. (Niko), who was with
another male (Dalton D.) and a female.
Mora saw them arrive from a nearby neighborhood. Niko and his companions were loud and smoking
cigarettes near Pallares’s golf cart.
They were also drunk.
Pallares’s
black iPhone 4G was in the passenger-side cup holder in the golf cart. Pallares was on the green, about 15 to 20
yards away. While Pallares was lining up
a putt, Mora saw Niko reach into the cart and take the phone from the cup
holder. Mora yelled at Niko to leave the
phone. Niko did not drop the phone, but
instead he sprinted in the opposite direction from where he had entered the
green. As Pallares finished his putt, he
heard Mora yell and saw Mora pursue Niko across the green. He followed, and saw his phone in Niko’s
hand.
Mora
chased Niko for approximately 40 yards before returning to the golf cart to
secure the rest of their property. Pallares followed Niko for about 300
yards, then lost sight of him as he ran into a residential neighborhood. For 8 to 10 minutes, he spoke to several
people in the neighborhood and alerted them to what had happened. Pallares
then returned to the golf course, and he and Mora decided to leave the course
together and look for the phone.
After
about 8 to 10 minutes, they returned to the neighborhood where Pallares had
lost sight of Niko. Pallares and Mora
walked around the neighborhood and soon found Niko and his friends standing in
a side yard, behind a gate. Pallares
yelled at Niko to give him his phone back, and Niko responded that he didn’t
know what he was talking about. Mora,
who was about 30 feet away from Niko and his companions, also demanded the
return of the phone. All three denied
any knowledge of a phone.
Mora then
unlatched the gate to the yard, and he and Pallares entered. Mora approached Niko, Dalton D., and Niko’s
older brother, who was also present.
Dalton D., who was hosing off Niko with a garden hose, sprayed Mora,
purportedly unintentionally. Mora took
the hose and sprayed it at the three young men for approximately 10
seconds. They protested, telling Mora to
go away and that he was trespassing.
Mora kept demanding the phone.
Niko and his companions threatened to call the police, and Mora invited
them to do so.
Mora then
attempted to leave the yard, and some pushing and shoving ensued, and punches
were thrown. Pallares slipped while
trying to leave the property, and while he was on the ground, Niko jumped on
his back and attempted to choke him.
Niko’s brother, meanwhile, threatened Mora with a golf club while Mora
was threatening Niko with a metal plant hanger.
Eventually they both agreed to drop the items, and Pallares and Niko
were separated.
The police
arrived shortly thereafter. When Deputy
Michael Rupley arrived, about 15 people were on the street. Niko admitted to Rupley that he had taken
Paralles’s phone, which Niko retrieved from a small bush about 50 yards away
from his home, on the breezeway leading to the golf course. The phone was returned to Paralles.
On August 9,
2011, the Orange
County District Attorney filed a petition pursuant to Welfare and Institutions
Code section 602, alleging Niko committed second degree robbery, a felony (Pen.
Code,
title="">[1] § 211; count one), aggravated assault, a
felony
(§ 245, subd. (a)(1); count two), brandishing a deadly weapon, a
misdemeanor (§ 417, subd. (a)(1); count three); and battery, a misdemeanor (§
242; count four). The district attorney
later amended the petition to add receiving stolen property, a felony (§ 496,
subd. (a); count five). Niko denied the
allegations.
An
adjudication hearing began on September 1, 2011. At the close of the petitioner’s evidence,
the court granted Niko’s motion to dismiss count three, denying the motion to
dismiss other counts. At the close of
the hearing, the court concluded the petitioner had met its burden in proving
the remaining counts. The court declared
Niko a ward of the court, sentencing him to time served (60 days), and placing
him on probation.
II
DISCUSSION
A. Substantial Evidence of
Robbery
Niko argues the evidence
was constitutionally insufficient to sustain the true finding on the robbery
count. We must view the evidence in the
light most favorable to the judgment, drawing all reasonable deductions from
the evidence in the judgment’s favor. We
must accept all assessments of credibility as made by the trier of fact, then
determine if substantial evidence exists to support each element of the
offense. (See People v. Carpenter (1997) 15 Cal.4th 312, 387.) Before a verdict may be set aside for
insufficiency of the evidence, a party must demonstrate “that upon no hypothesis
whatever is there sufficient substantial evidence to support it.†(People
v. Redmond (1969) 71 Cal.2d 745, 755; People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“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.†(§ 211.) Thus, the elements of robbery are (1) the
taking of personal property (2) from a person or the person’s immediate
presence (3) by means of force or fear (4) with the intent to permanently
deprive the person of the property. (Ibid.; People v. Marshall (1997) 15
Cal.4th 1, 34.) The “taking†element
“has two aspects: (1) achieving possession of the property, known as ‘caption,’
and (2) carrying the property away, or ‘asportation.’†(People
v. Gomez (2008) 43 Cal.4th 249, 255 (Gomez).) Although the slightest movement may
constitute asportation (People v. Davis (1998) 19 Cal.4th 301, 305), the
robbery continues “as long as the loot is being carried away to a place of
temporary safety.†(People v. Cooper
(1991) 53 Cal.3d 1158, 1165.) The “force
or fear†element may occur at any point during which the property is being
carried to a place of temporary safety, as the crime has not yet concluded. (Gomez, supra, 43 Cal.4th at p. 257.) Niko offers two arguments as to why the
robbery count should be reversed.
Place of Temporary Safety
Niko
argues that the robbery count must be reversed because he had reached a place
of temporary safety before any force occurred.
Thus, he argues, the theft was concluded without any force being used,
and it was therefore not a robbery. In
his argument that he had reached a place of temporary safety, he essentially
argues that home is generally considered a place of temporary safety.
question for the trier of fact. (
552, 559-560 (Johnson).)
had actually reached a place of temporary safety, not whether the defendant
thought that he or she had reached such a location.†(Id.
at p. 560.)
In
Johnson, the defendant committed
robberies in San Mateo and fled in a stolen car. (Johnson,
He drove a considerable distance, during which time police did not
observe or follow him. Eventually an officer attempted to pull him over. (Id.
at p. 556.) The defendant turned
off the freeway and drove for eight or nine minutes in a residential area. During this period, he saw no one and thought
he was safe. (Ibid.) Returning to the
freeway, he was again spotted and pursued.
He hit another car, killing the driver.
(Id. at pp. 555,
557.) The accident occurred 30 minutes
after the defendant fled the robbery scene, and 22 miles away from the robbery
location. (Id. at p. 557.) The court concluded a reasonable jury, based
on the evidence, could have concluded that the defendant was in continuous
flight. (Id. at p. 561.)
Here,
there was substantial evidence that Niko had not reached a place of temporary
safety. He fled from victims who had
already tried to chase him once. Less
than a half-hour later, he was not ensconced inside his home and out of public view, but in a side yard clearly
visible from the sidewalk. He was close
both in time and space to the scene of the crime. “Temporary safety is not tested based on
subjective impressions or recklessness of the robber but on an objective
measure of safety following the initial taking.
[Citation.]†(People v. Haynes
(1998) 61 Cal.App.4th 1282, 1292.) The
relative speed and ease with which Pallares and Mora found Niko demonstrate
that he had not, objectively, reached a place of temporary safety. Thus, the court’s determination on this point
was supported by substantial evidence.
Abandonment
Niko
also argues that he had abandoned the phone before any force occurred, and
therefore the element of force was not satisfied. Unfortunately, Niko offers no evidence
whatsoever to support this contention.
The evidence demonstrated that the phone was not abandoned, but
concept. A reasonable trier of fact
could conclude that hiding the phone under a bush, as opposed to, for example,
hurling it away in the street or dropping it in a sewer, was evidence of his
intent to retrieve it later. While it
was hidden, therefore, the phone remained in Niko’s control and constructive
possession.
Once
the “abandonment†contention is rejected, there is little left to this
argument.
during either the initial caption or during asportation. (Gomez, supra, 43 Cal.4th at p. 261.) “[A] robbery occurs when defendant uses force
or fear in resisting attempts to regain the property . . . regardless of the
means by which defendant originally acquired the property.†(People v. Estes (1983) 147 Cal.App.3d
23, 27-28.)
In
People v. Pham (1993) 15 Cal.App.4th 61 (Pham), the victim saw the defendant in the back seat of his car,
removing items through an opening into the trunk. As the victim approached, the defendant
exited carrying a bag and started to flee.
The victim gave chase and caught the defendant by his shirt. Defendant dropped the bag and began hitting
the victim in the head. A friend of the
victim caught up to the two men and grabbed the defendant, who continued to
struggle with both of them. Eventually,
defendant was subdued and the police arrived.
They found property belonging to both men in the defendant’s bag. (Id.
at p. 64.)
The
court rejected Pham’s argument that because he had dropped the bag, the taking
was not accomplished by force or fear.
“Under the facts of this case, we conclude the asportation or carrying
away of the property occurred when defendant removed the victims’ property from
[the] 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.†(
supra, 15 Cal.App.4th at p. 65;
see also Gomez, supra, 43 Cal.4th at pp. 255-256.)
Further, there was no requirement that the robber have manual possession
of the property. (Ibid.)
Contrary
to Niko’s argument, Pham is on point
here. As in Pham, Niko used force to struggle with the victims during the
asportation phase of the robbery. The
force was sufficient, and the fact that Niko was not in immediate physical
possession of the phone was irrelevant.
He was still in control of the phone and knew where it was, as evidenced
by his rapid production of the phone once the police arrived. “Decades of case law have made clear that robbery in California is a
continuing offense, the ‘taking’ comprising asportation as well as
caption.†(Gomez, supra, 43 Cal.4th
at p. 262.)
“In
robbery, the elements of larceny are intertwined with the aggravating elements
to make up the more serious offense.†(
No policy purpose would be served by allowing a defendant to avoid a
robbery conviction if he secreted away the loot prior to engaging in force as
opposed to afterwards. Here, the
aggravating elements of taking the property by force or fear from the victim’s
immediate presence were satisfied. (§
211.) Although the order in which they
occurred is somewhat atypical, Niko is not entitled to the reward of a lesser
offense as a result. Thus, we conclude
the evidence was sufficient to sustain the robbery count.
Receiving Stolen Property
Niko
contends, and respondent agrees, that he cannot be adjudicated of both
receiving stolen property and robbery of the same property. We concur.
Section 496, subdivision (a)
states: “No person may be convicted both
pursuant to this section and of the theft of the same property.†(See also People v. Smith (2007) 40
Cal.4th 483, 522.) The proper course of
action is to reverse the true finding on the receiving stolen property count
and affirm the finding on the theft count.
(People v. Ceja (2010)
49 Cal.4th 1, 6.)
III
DISPOSITION
The
judgment is reversed as to count five, receiving stolen property. In all other respects, the judgment is
affirmed.
MOORE,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title="">[1]
Subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2]
In his reply brief, Niko argues for the first time that asportation ended
because he was no longer carrying the phone.
This is a variation on his second argument regarding abandonment of the
property, which we address post.
