In
re F.V.

 

 

 

 

 

 

Filed 10/7/13  In re F.V.
CA2/7

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

In re F.V.,   a Person Coming Under the Juvenile Court Law.	B243302         (Los Angeles County       Super. Ct. No. PJ45900)
THE PEOPLE,               Plaintiff and Respondent,               v.   F.V.,               Defendant and Appellant.

 

            APPEAL from an order of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Robert J. Schuit, Judge.  Affirmed.

            Sarvenaz Bahar, 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, Stephanie A. Miyoshi and Rama R. Maline, Deputy
Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

 

            F.V. appeals from an
order finding that he committed second
degree robbery (Pen. Code, § 211) and assault by means likely to
produce great bodily injury (id., § 245, subd. (a)(4))href="#_ftn1" name="_ftnref1" title="">[1] and ordering that he remain a dependent of the
juvenile court under Welfare and Institutions Code section 602.  The court placed F.V. in the camp-community
placement program for six months, with a maximum term of confinement of six
years.  On appeal, F.V. argues that there
is insufficient evidence to support
the juvenile court’s findings that he committed robbery and assault by means
likely to produce great bodily injury. 
We affirm.

 

FACTUAL BACKGROUND

 

            On the afternoon of June 10, 2012 Justin R. and his younger brother Branden
were riding their skateboards at the Ritchie
Valens Skate Park
in Pacoima.  F.V. and a companion
approached Justin, and F.V. asked if he could use Justin’s cell phone to call a
friend.  Justin said yes, as long as F.V.
used the phone in front of him.  Justin
handed F.V. the phone.  F.V. put it in
his pocket and started to walk away, which “was an indication to [Justin] that
he was trying to steal it.”  Justin
approached him and said, “Hey, you can call your friend, and I’ll forget that you
just did that.”  F.V. held onto the
phone.

            Justin warned F.V. to return the phone or there would be
problems.  F.V. approached to within a
few inches of Justin and asked what Justin was going to do about it.  Justin, who had mixed martial arts training
and participated in high school wrestling, punched F.V., who became dazed.  F.V. then took a swing at Justin “with a
closed fist.”  Justin, however, was able
to avoid F.V.’s punch and hit F.V. a second time, causing F.V. to fall to the
ground.

            F.V.’s friend, who had accompanied F.V. when he first
approached Justin, then stepped up to fight Justin.  Justin testified that F.V.’s companion “had
his fist already ready to come at me.  He
was physically walking towards me already. 
And I decided to act in self-defense, and I started hitting him as
well.”  Justin hit this second attacker
in the nose.  Then, “[o]ut of nowhere,”
Justin felt a sharp pain in the back of his head.  Justin turned to see who had stabbed him and
picked that person up.  Someone else then
pulled Justin’s arm back, dislocating his shoulder, and he tried fighting his
attackers “with the one fist I had.”  At
some point, he knelt down and several people began hitting him.  After about 30 seconds, Justin “picked
[him]self up” and asked for a fair fight. 
His attackers said they were “going to pull a strap” on him.  As F.V. and his companions left, they yelled,
“Pacas Trece,” which Justin understood was Spanish for Pacoima 13, the name of
a gang.  At that point, they started
walking away and were trying to get Justin to their car.  Although Justin had not been afraid when he
initially attempted to get his phone back, he did have “some level of fear”
when they called out “Pacas Trece” and “knew to be careful,” because Justin had
friends who had been killed by members of the Pacoima 13 gang.  Justin never got his phone back.

            Branden was some distance away at the time of the
incident.  He saw someone “rushing to the
back of [Justin’s] head,” and then saw Justin “kneel down and try to get back
up.”  Brenden saw four people around
Justin.  As the four people were leaving,
Branden heard one of them say something like, “Hey, fool, Cowboy, let’s
go.  Let him get to the car so we can
pull out a gun.”  F.V.’s gang moniker is
“Cowboy.”  Branden saw blood on Justin’s
head and covered the wound with Justin’s shirt.

 

DISCUSSION

 

            A.        Standard
of Review

            “The same
standard governs our review of the sufficiency of evidence in juvenile cases as
in adult criminal cases:  ‘[W]e review
the whole record to determine whether any rational trier of fact could have
found the essential elements of the crime or special circumstances beyond a
reasonable doubt.  [Citation.]  The record must disclose substantial evidence
to support the verdict—i.e., evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. 
[Citation.]  In applying this
test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence. 
[Citation.]  “Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. 
[Citation.]  We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.  [Citation.]” 
[Citation.]  A reversal for
insufficient evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support’” the
jury’s verdict.’”  (In re Christopher
F. (2011) 194 Cal.App.4th 462, 471, fn. 6, quoting People v. Zamudio
(2008) 43 Cal.4th 327, 357; see In re Brandon T. (2011) 191
Cal.App.4th 1491, 1495-1496.)

 

            B.        There
Is Sufficient Evidence of Robbery

            The trial court found beyond a reasonable doubt that F.V.
committed robbery.  F.V. argues that
there is insufficient evidence that he personally used force or fear to take
and keep Justin’s cell phone, and thus he committed grand theft, not
robbery.  F.V. asserts that Justin was
the only person who testified about the Pacoima 13 comment, which led to his
fear, and that there is no evidence that F.V. made the comment regarding
Pacoima 13.

            Penal Code section 211 defines robbery as “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 crime of robbery includes
“‘the element of asportation and appropriation of another’s property.  The escape of the thief with his ill-gotten
gains . . . is as important to the execution of the robbery as
gaining possession of it.’”  (People
v. Gomez (2008) 43 Cal.4th 249, 256-257; accord, People v. McKinnon
(2011) 52 Cal.4th 610, 686-687; see People v. Williams (2013) 57 Cal.4th
776, 787 [“[b]ecause larceny is a continuing offense,
a defendant who uses force or fear in an attempt to escape with property taken
by larceny has committed robbery”].)href="#_ftn2" name="_ftnref2" title="">>[2]  Moreover, “a reasonable assumption is that,
if not prevented from doing so, the victim will attempt to reclaim his or her
property.”  (Gomez, supra,
at p. 264).  Thus, a robbery is not over
until the robber has reached a place of temporary safety.  (People v. Hodges (2013) 213
Cal.App.4th 531, 540; People v. Haynes (1998) 61 Cal.App.4th 1282,
1291-1292; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1374.)  Although robbery is a continuous offense and
all the elements must be satisfied before the crime is completed, no
“artificial parsing is required as to the precise moment or order in which the
elements are satisfied.”  (Gomez, supra,
at p. 254; Hodges, supra, at p. 540.)

            Thus, the defendant can commit a robbery even if he or
she acquired the property peacefully, if the defendant uses force or fear to
carry it away.  (People v. Gomez, supra,
43 Cal.4th at p. 257; see People v. McKinnon, supra, 52 Cal.4th
at pp. 686-687.)  A mere theft becomes
robbery “if [a] perpetrator, having gained possession of the property without
use of force or fear, resorts to force or fear while carrying away the loot.”  (Gomez, supra, at p. 257.)

            F.V. argues that “it is conceded that [he] himself did
not use force or fear.”  The People made
no such concession, however, and there is substantial evidence that the robbery
was accomplished by force or fear.

            While F.V. may not have initially obtained Justin’s phone
by force or fear, there is substantial evidence that F.V. retained possession
of Justin’s phone by fear.  It is true
that Justin was not afraid when F.V. and his companions attacked him, and even
after F.V.’s companions injured Justin, he was still ready to fight them “with
the one fist [he] had.”  Justin did
experience fear, however, when they yelled out “Pacas Trece.”  At this point, F.V. had not yet completed his
escape and carrying away of Justin’s cell phone to a place of safety.  (See People v. Barnett (1998) 17
Cal.4th 1044, 1153 [“crime of robbery continues until the robber has reached a
place of temporary safety”]; People v. Flynn (2000) 77 Cal.App.4th 766,
772 [“robbery remains in progress until the perpetrator has reached a place of
temporary safety,” and the “scene of the crime is not such a location, at least
as long as the victim remains at hand”].) 
The act of identifying oneself as a member of a gang can satisfy the
robbery element of fear.  (See People
v. Mendoza (2000) 24 Cal.4th 130, 178 [victim’s understanding that the
defendant’s statement he was a “homeboy” meant he was a member of a gang was
“directly relevant to establishing the element of fear” for robbery].)

            The fact that F.V. may not have been the person who
yelled “Pacas Trece” does not preclude a finding that he committed the robbery
by fear.  As discussed in People v.
McCoy (2001) 25 Cal.4th 1111, “the dividing line between the actual
perpetrator and the aider and abettor is often blurred.  It is often an oversimplification to describe
one person as the actual perpetrator and the other as the aider and
abettor.  When two or more persons commit
a crime together, both may act in part as the actual perpetrator and in
part as the aider and abettor of the other, who also acts in part as an actual
perpetrator. . . .  The
aider and abettor doctrine merely makes aiders and abettors liable for their
accomplices’ actions as well as their own. 
It obviates the necessity to decide who was the aider and abettor and
who was the direct perpetrator or to what extent each played which role.”  (Id. at p. 1120; accord, People v.
Thompson (2010) 49 Cal.4th 79, 117-118 [“a sharp line does not always exist
between the direct perpetrator and the aider and abettor”].)  If all of the participants shared the same
intent, they may all be “equally guilty.” 
(People v. Nunez (2013) 57 Cal.4th 1, 43.)

            For example, in People v. Fagalilo (1981) 123
Cal.App.3d 524, the defendant entered a store with three codefendants.  While the codefendants were talking loudly to
distract the cashier, the defendant approached the cashier from behind and,
when she opened her cash register, grabbed money from it.  The defendant ordered the cashier to remove
the drawer from the register, but she pushed him away and he left.  When the assistant manager came to assist the
cashier, one of the codefendants threw a bottle of wine at him.  He ducked and two other people were hit by
the bottle and broken glass.  (Id.
at p. 528.)  The defendant
challenged the sufficiency of the evidence to support his conviction of assault
by means of force likely to produce great bodily injury, based on the throwing
of the wine bottle.  The court concluded
the evidence was sufficient to support his conviction, explaining:  “The evidence was . . . sufficient
to establish [the defendant’s] liability as an aider and abetter of [his
codefendant’s] assault.  The defendants
entered the store together and escaped together.  The jury could reasonably infer that they
were jointly engaged in a robbery, the natural and probable consequences of
which included resistance by any of the defendants to avoid capture.  [Citations.]” 
(Id. at p. 532.)

            Here, it is a reasonable inference that F.V., the
individual who was with him when he first approached Justin, and the others who
attacked Justin were jointly engaged in the robbery.  (See People v. Watkins (2012) 55
Cal.4th 999, 1019 [in reviewing the sufficiency of the evidence of attempted
robbery, “we ask whether ‘there is any substantial evidence, including all
reasonable inferences to be drawn from the evidence, of the existence of each
element of the offense charged’”]; People v. Aragon (2012) 207
Cal.App.4th 504, 511 [evidence viewed in light most favorable to judgment must
contain “substantial evidence, including reasonable inferences,” of
guilt].)  After F.V. and his original
companion were unsuccessful in their attempts to keep Justin from reclaiming
his phone, the others quickly intervened and attacked Justin.  Then they left together, completing the
asportation of Justin’s cell phone by calling out the name of the gang and
threatening to get a gun.  This evidence
is sufficient to support a finding that F.V. committed the robbery by means of
fear.

 

            C.        There
Is Sufficient Evidence of Assault

            Penal Code section 245, subdivision
(a)(4), punishes “[a]ny person who commits assault upon the person of another
by any means of force likely to produce great bodily injury.”  The force required “must be such as would be
likely to produce great bodily injury, but it is not required that a defendant
intends to inflict such injury.”  (People
v. Covino (1980) 100 Cal.App.3d 660, 667.) 
“While it is true that ‘when the evidence shows
that a blow has been struck or a physical injury actually inflicted, the nature
and extent of the injury is a relevant and often controlling factor in
determining whether the force used was of a felonious character’ [citations],
an injury is not an element of the crime, and the extent of any injury is not
determinative.”  (Ibid.)  “‘“The crime . . . , like
other assaults, may be committed without infliction of any physical injury, and
even though no blow is actually struck. 
[Citation.]  The issue, therefore,
is not whether serious injury was caused, but whether the force used was such
as would be likely to cause it.”’ 
[Citation.]”  (People v.
McDaniel (2008) 159 Cal.App.4th 736, 748.) 
A defendant may commit an assault by means likely to produce great
bodily injury by the use of hands or fists alone, or any object used in a
manner likely to cause great bodily injury. 
(See People v. Aguilar (1997) 16 Cal.4th 1023, 1028, 1037-1038.)

            Here, the individuals who attacked Justin after he had
punched F.V. committed an assault by means of force likely to produce great
bodily injury.  The issue is whether F.V.
may be held liable for their actions.href="#_ftn3" name="_ftnref3" title="">>[3]  F.V. argues that he cannot be held liable for
the actions of his companions under an aiding and abetting theory because there
was no evidence that he and the others were members of a gang, making the use
of force foreseeable.  We conclude there
is sufficient evidence to support the finding of assault by means likely to
produce great bodily injury.

            It is a reasonable inference from the evidence presented
at trial that F.V., the individual who was with him when he approached Justin,
and the others who attacked Justin, were accomplices sharing the same intent—to
take Justin’s cell phone.  Regardless of
whether the individuals were all members of a gang, F.V.’s companions stood
ready to assist F.V. should he be unable to get away with Justin’s cell
phone.  “‘[A]iders and abettors should be
responsible for the criminal harms they have naturally, probably and
foreseeably put in motion.’  [Citation.]”  (People v. Prettyman (1996) 14 Cal.4th
248, 260.)  Because the commission of the
assault on Justin was a reasonably foreseeable consequence of the robbery (id.
at pp. 262-263 [assault is a natural and probable consequence of robbery]; People
v. Fagalilo, supra, 123 Cal.App.3d at p. 532 [same].), F.V. may
be liable for the assault under an aiding and abetting theory.  (See People v. Nunez, supra, 57
Cal.4th at p. 43; People v. McCoy, supra, 25 Cal.4th at
pp. 1215-1216; Fagalilo, supra, at p. 532.)  Substantial evidence supports the juvenile
court’s finding that F.V. committed assault by means likely to produce great
bodily injury.

 

DISPOSITION

 

            The order is affirmed.

 

 

                                                                                    SEGAL,
J.href="#_ftn4" name="_ftnref4" title="">*

 

 

We
concur:

 

 

 

                        PERLUSS, P. J.

 

 

 

                        ZELON, J.