In re I.C. CA2/4 ( 2015 )

Filed 4/20/15 In re I.C. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
In re I.C., a Person Coming Under the B254988
Juvenile Court Law.
___________________________________ (Los Angeles County
THE PEOPLE, Super. Ct. No. TJ20495)
Plaintiff and Respondent,
v.
I.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Catherine J. Pratt, Commissioner. Affirmed.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Minor I.C. appeals from the juvenile court’s adjudication and disposition orders on
a Welfare and Institutions Code section 602 petition, alleging appellant committed
robbery (Pen. Code, § 211). He argues the robbery finding is not supported by
substantial evidence since the court did not credit the victim’s testimony that appellant
took away his cell phone at gun point. We conclude that other evidence supports the
robbery finding and affirm the orders.
PROCEDURAL AND FACTUAL SUMMARY
On December 3, 2013, the victim, Arthur Stephen, was talking to his mother on
his cell phone while walking down the street, when appellant pulled up from behind him
on a bicycle. Appellant was 16 years old, while Stephen was 28 years old, but appellant
admittedly knew Stephen was “kind of special.” When he saw appellant, Stephen hurried
to hang up the phone and put it in his jacket pocket.
Appellant asked if Stephen had a phone or if appellant could use his phone.
Stephen did not answer because he was “so shocked to see” appellant, and he did not
allow appellant to use the phone. At the adjudication hearing, Stephen testified appellant
“started checking my pockets to see what I had,” “patted” the pocket, “went into” it, “and
took the phone.” Stephen denied having told a police officer that he took out the phone
by himself, or that appellant had threatened to shoot him. Stephen variously testified that
appellant pulled out a “small silver gun” when Stephen asked for his phone back, or after
Stephen refused to let him use the phone. Stephen also testified he was scared before he
saw the gun, and that it “looked like” appellant had a gun “bulging in his pocket.”
Appellant tried to make a call, but could not because the phone was locked and
Stephen refused to give him the passcode. Appellant then rode away on his bicycle
without returning the phone. Stephen told his mother that his phone had been stolen,
tried calling appellant on the phone in the hope he would bring it back, and reported it
stolen five days later.
At the adjudication hearing, Officer Han testified that on December 8, 2013,
Stephen reported appellant had startled him by pulling up on his bicycle; had initially
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simulated a gun by putting his finger in his pocket; had said, “Give me your phone or I
will shoot you”; had pulled a chrome revolver; and had rummaged through Stephen’s
pockets. Stephen was impeached with Officer Nemeroff’s report, which stated Stephen
had reached into his own pocket to retrieve the phone.
Appellant testified he had been “hanging out” on Stephen’s porch when Stephen
“len[t]” him the phone. He denied having threatened Stephen and claimed never to have
seen or used a gun. In appellant’s version of events, he used the phone to call and text
“people to hang out with,” then accidentally put it in his own pocket and rode away with
it. Appellant admitted he did not return the phone when Stephen started calling it, and
sold it to a store several days later.
In ruling on the robbery allegation in the Welfare and Institutions Code section
602 petition, the court was concerned about “the use of a gun, whether it was a simulated
gun, when it was pulled,” and could not “conclude beyond a reasonable doubt that a gun
was used.” Nevertheless, the court sustained the petition, finding that Stephen had been
“fearful” and “intimidation” had been used. The court stated: “If they were on truly
equal footing, then if [appellant] takes the phone, then he would give it back to him. He
wouldn’t ride away with it in his pocket. [¶] I think that [appellant’s] indication that he
forgot that he had it, that he rode away with it is disingenuous, and I think that calls into
question any of the rest of his testimony. [¶] So while, again, I cannot conclude 100
percent that there was a gun, I do believe that I can conclude beyond a reasonable doubt
that force or fear was used in taking the phone.”
At the time of disposition, appellant already had been ordered to suitable
placement for a maximum term of 5 years, 4 months, based on the disposition of several
earlier petitions. (In re I.C. (Dec. 17, 2014, No. B253859) [nonpub. opn.].) The court
followed the probation officer’s recommendation to keep appellant in suitable placement
under its previous order.
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This appeal followed.1
DISCUSSION
The standard of review of the sufficiency of the evidence in delinquency cases is
the same as in criminal cases. (In re Matthew A. (2008) 165 Cal. App. 4th 537, 540). We
review the record in the light most favorable to the judgment to decide whether
substantial evidence supports the conviction. (Ibid.) We do not resolve issues of witness
credibility or conflicts in the evidence as that is the trier of fact’s exclusive province.
(People v. Young (2005) 34 Cal. 4th 1149, 1181.) “[T]he trier of fact may believe . . .
only part of a witness’s testimony and disregard the rest. On appeal, we must accept that
part of the testimony which supports the judgment. [Citation.]” (In re Daniel G. (2004)
120 Cal. App. 4th 824, 830.)
“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.” (Pen. Code, § 211.) Appellant argues that without the alleged gun use,
there is no evidence supporting the fear element of robbery. We disagree.
While the court gave appellant the benefit of the doubt regarding the actual use of
a gun, it did not expressly find he did not simulate a gun. In the absence of an express
finding to the contrary, we may imply all findings necessary to support the judgment.
(People v. Francis (2002) 98 Cal. App. 4th 873, 878; Reid v. Moskovitz (1989) 208
Cal. App. 3d 29, 32 [appellate court will not imply finding where record shows trial court
expressly declined to make it].) According to Officer Han, Stephen reported appellant
had simulated a gun and threatened to shoot, which is sufficient by itself to support the
robbery finding. (People v. Wolcott (1983) 34 Cal. 3d 92, 100.) At trial, Stephen did not
1
Although appellant purports to appeal from the disposition order, he does not
raise any issues about that order, noting only that the court did not impose a separate
maximum term of confinement in this case. In case No. B253859, supra, we reversed the
finding of felony vandalism and remanded for a recalculation of appellant’s maximum
confinement time. Since the issue is not before us, we express no view as to the effect of
any recalculation in that case on the disposition of this case.
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testify to the reported threat, but he claimed “[i]t kind of looked like” appellant had a
weapon bulging in his pocket. The evidence is sufficient to support an implied finding
that appellant simulated having a gun.
Regardless, the use of a weapon or an express threat is not required to establish the
element of fear, which need not be extreme. (People v. Morehead (2011) 191
Cal. App. 4th 765, 775.) “[T]he fear necessary for robbery is subjective in nature,
requiring proof ‘that the victim was in fact afraid, and that such fear allowed the crime to
be accomplished.’ [Citation.]” (People v. Anderson (2007) 152 Cal. App. 4th 919, 946.)
Contrary to appellant’s contention, there is evidence his actions intimidated Stephen, who
reported being “startled” and “shocked” when appellant “pulled up on” him from behind,
and being “scared” before he saw any weapon. Although no evidence regarding
Stephen’s mental abilities was introduced, appellant himself admitted knowing Stephen
was “kind of special,” supporting an inference that he knowingly took advantage of
Stephen’s vulnerability. (See People v. Mungia (1991) 234 Cal. App. 3d 1703, 1709
[recognizing relevance of victim’s characteristics].)
Consistent with his initial report to Officer Han, Stephen testified appellant
rummaged through his pockets and helped himself to the phone. Appellant analogizes
rummaging through a victim’s pockets to the surreptitious actions of a pickpocket
because it involves no more force than necessary to seize the property. (See People v.
Garcia (1996) 45 Cal. App. 4th 1242, 1246, overruled on other grounds in People v.
Mosby (2004) 33 Cal. 4th 353, 365, fn. 2.) The analogy is flawed. The open search
through the pockets of a victim who has refused to turn over his property is a display of
power and disrespect for the victim’s will. (Pen. Code, § 211.) Even assuming the search
involves no more force than necessary to locate and retrieve the property, it can
reasonably be characterized as an act of intimidation.
To the extent appellant relies on his own testimony that Stephen let him use the
phone, he invites us to reconsider the court’s adverse credibility finding, which “call[ed]
into question any of the rest of his testimony.”
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
COLLINS, J.
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