In re M.D.
Filed 5/2/13 In
re M.D. CA1/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re M.D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
M.D.,
Defendant and
Appellant.
A135883
(Alameda County
Super. Ct. No.
SJ10154292)
Sixteen-year-old M.D. (the minor)
appeals from juvenile court orders finding that he committed felony robbery and
placing him on probation. He contends that there is no evidence of force to
support the robbery finding and that
certain terms of his probation incorporated in the judgment differ from those
imposed by the court and are unconstitutional, unreasonable, or vague. We
affirm the robbery finding but agree, as does the Attorney General, that the
challenged probation conditions must be modified to conform to the juvenile court’s oral
pronouncements.
History
In 2009, the minor ran away from his
home in South Carolina and came to California. In August 2010, a petition was filed under Welfare and
Institutions Code section 602 alleging that the minor committed felony
§ 487, subd. (a)), exhibited a deadly weapon, a knife (§ 417, subd.
(a)(1)), and committed felony assault (§ 245, subd. (a)(1)). In September 2010,
the petition was dismissed on condition that the minor return to South Carolina.
In January 2012, the minor returned
to California.
On April 26,
2012, a “reopened†wardship petition was
filed alleging that the minor committed robbery (§ 211), used force
against a peace officer engaged in the performance of his duties (§ 243,
subd. (b)), and resisted arrest (§ 148, subd. (a)). The following evidence
was presented at the contested jurisdictional hearing:
About midnight on April 24, 2012, the victim was on her way home from work. She had a backpack on
her back with both straps over her shoulders. As she waited for a street light
to change, the minor approached and grabbed her arm, and asked her in an
“angry†tone of voice, “Do you want to be my friend.†The victim pulled away
from his grasp and said, “leave me alone.†She “was afraid.â€
As the victim started to walk away,
the minor followed her. The victim felt “[a] lot†of force when the minor
pulled on her bag. One of the straps on the backpack broke when the minor
pulled it from the victim. The victim tried to hold onto the broken strap, but
the minor pulled it away. The victim explained that she “tried to hold on to
it†but she could not “get a grip on the strap†because the minor was “very
fast.†Her finger was scratched when the strap “went through her hand.â€
After the minor ran away with her
backpack, the victim called the police. The minor did not present any evidence
in his defense.
At the conclusion of the hearing,
the minor’s counsel moved to dismiss the robbery charge on the ground that the
element of force had not been proven beyond a reasonable doubt and that the
evidence was sufficient only to support a finding of grand theft. The court
denied the motion and sustained the petition on all three counts.
At the disposition hearing, the
juvenile court dismissed all but the robbery charge, declared the minor a ward,
and found his maximum term of confinement to be five years, four months. The
court placed the minor on probation subject to various conditions and ordered
the case transferred to South Carolina.
The minor filed timely
1.
robbery finding.
The minor contends that the robbery
conviction must be reversed because there is no evidence he “took the backpack
with the level of force necessary to support a finding of felony robbery.†We
disagree.
In People v. Burns (2009) 172 Cal.App.4th 1251, 1257, the court
recognized that while there exists “some generalized impression that a purse
snatch—grabbing a purse (or similar object) from a person—is grand theft and
nothing more,†where “a person wrests away personal property from another person,
who resists the effort to do so, the crime is robbery, not merely theft.†The
court explained that the force necessary to establish a robbery “ ‘must be a
quantum more than that which is needed merely to take the property from the
person of the victim, and is a question of fact to be resolved by the [trier of
fact] taking into account the physical characteristics of the robber and the
victim.’ [Citation.] An accepted articulation of the rule is that ‘[a]ll the
force that is required to make the offense a robbery is such force as is
actually sufficient to overcome the victim’s resistance.’ †(
grabbed the backpack from the victim with such force that she fell to the
ground and one of the straps broke. The victim testified that she was unable to
hang on to the strap and that her finger was scratched in the struggle. This
evidence is sufficient to support the robbery finding. (See
grabbed the victim’s purse and stepped on the victim’s toe to overcome her
resistance was sufficient to support robbery conviction]; People v. Roberts (1976) 57 Cal.App.3d 782, 787 [“Certainly, the
evidence that the purse was grabbed with such force that the handle broke
supports the jury’s implied finding that such force existedâ€], disapproved on
another ground in People v. Rollo
(1977) 20 Cal.3d 109, 120, fn. 4.)
2.
juvenile court’s oral pronouncement.
The
court’s dispositional order, as reflected in the clerk’s transcript, imposes
various conditions of probation. The minor contends that several of these
conditions as they appear in the clerk’s transcript are unconstitutionally
broad and vague, and moreover are inconsistent with the conditions that the
court orally imposed at the hearing. The Attorney General agrees that the
challenged conditions should be modified to reflect the court’s oral
pronouncement. (See People v. Zackery
(2007) 147 Cal.App.4th 380, 388 [“clerk’s minutes must accurately reflect what
occurred at the [sentencing] hearingâ€]; People
v. Mitchell (2001) 26 Cal.4th 181, 185 [where a minute order or abstract of
judgment differs from the court’s oral pronouncements, the oral pronouncements
control and error may be corrected by the appellate court].)
The
parties agree that the challenged conditions should be modified as follows:
The
probation condition that presently states, “Do not frequent any campus other
than the school of enrollment, comply with school conditions†should be modified
to state, “Attend school regularly, obey school rules and regulations. Do not
leave the school campus during school hours without the permission of school
officials or probation.â€
The
probation condition that presently states, “Do not associate with anyone who
uses or possesses dangerous nor deadly weapons nor explosive devices nor remain
in any vehicle where such weapons are present†should be modified to state, “Do
not own, use or possess any deadly or dangerous weapons. This includes guns, knives,
ammunition, explosives, chemicals that can produce explosives, [or] any other
tool or instrument designed to be used as a weapon or that you intend to use as
a weapon.â€
The
probation condition that presently states, “Do not associate with anyone you know
to use, deal or possess illegal drugs†should be modified to state, “Do not
associate with any individual who you know, or reasonably should know, to use,
possess or attempt to sell illegal drugs.â€
The
minor asserts no constitutional infirmity with the conditions as corrected.
The
jurisdictional order is affirmed. The dispositional order shall be modified as
set forth above and is otherwise affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless otherwise
noted.
