Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. JJ17836, Steven R. Klaif, Referee.
Bahar Law Office and 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, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Denzel W. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the juvenile court’s finding that he committed the crime of second degree robbery, a felony, in violation of Penal Code section 211. Appellant contends that the evidence is insufficient to sustain the finding that he used the requisite force to commit robbery. Appellant further contends that the juvenile court erred in calculating his predisposition credit. We reject both contentions and therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
Prosecution Evidence
On February 24, 2010, around 7:30 a.m., Lesly A. noticed a boy walking behind her while she was walking to school. The boy ran up behind her, pulled her earrings down and out of her ears, and ran away. Her right ear became swollen afterward.
Lesly turned around and saw him running away. She saw two of her friends blocking his path, so she yelled out to them to stop him, but he pushed her friend away. Lesly chased him but stopped when he ran into an alley because she did not think it would be safe to follow him into an alley. Lesly identified appellant at the adjudication hearing as the perpetrator.
Paola L. was walking to school at the time of the incident and saw Lesly and appellant from a distance. She heard Lesly scream and saw appellant standing next to her. Paola then saw Lesly reach toward appellant, but he ran away. Lesly yelled at appellant to give back her earrings and told Paola to stop him. Lesly left her backpack in the middle of the sidewalk and started chasing appellant; Paola retrieved the backpack for her.
Defense Evidence
Officer Ian Clark responded to the robbery call. Paola told him appellant’s name and said she had taken a class with him the year before in ninth grade. Officer Clark went to appellant’s home on February 25, 2010, and searched his room, but he did not find the earrings.
Agnes Cesare was the guidance counselor at the high school. She testified at the adjudication hearing that Paola and the police officers told her about the incident and asked for a picture of appellant, but she was not able to find one.
Appellant’s mother testified that appellant had trouble waking up for school every day and often missed the first period of school. She said that on the date of the incident, appellant was still in bed when she left for work at 7:30 a.m.
Appellant testified that he was in bed at the time of the incident and that he woke up at 7:30 or later every morning. When the police came, he told them that he did not commit the offense and did not know Lesly. After he was read his Miranda rights, he chose not to speak to the police. (Miranda v. Arizona (1966) 384 U.S. 436.)
Cecilia Dominguez, an investigator for the public defender’s office, testified that Paola was not the person who identified appellant. Paola told Dominguez that she tried to stop appellant after hearing Lesly scream, “Stop him, he took my earrings, ” but he evaded her. Paola also said that the police asked her to identify someone they had stopped on the street, but she told them it was not the correct person.
Rebuttal Evidence
Los Angeles Police Department Officer Danny Monterroso testified that when he went to appellant’s home on February 25, 2010, appellant’s mother told him she did not know where appellant was at the time of the incident.
Procedural Summary
A petition was filed pursuant to Welfare and Institutions Code section 602, alleging that appellant committed second degree robbery, in violation of Penal Code section 211, a felony. After the close of evidence at the adjudication hearing, defense counsel moved to dismiss under Welfare and Institutions Code section 701.1, arguing that the evidence of force used established grand theft, but not robbery. The court found that the force involved in taking the earrings from the ears was sufficient to establish robbery and denied the motion. The court also rejected defense counsel’s argument that this case involved mistaken identification, stating that, in addition to in-court identification, the victim felt his hands on her ears moments after she saw him and there was no one else around. The court thus sustained the petition, declared appellant a ward of the court pursuant to Welfare and Institutions Code section 602, and placed him home on probation. The court imposed various terms, conditions, and fines, and set a restitution hearing to determine the value of the earrings. Appellant filed a timely notice of appeal.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence that he used the force required to establish the offense of robbery. We disagree.
The standard of review of an insufficiency of the evidence claim is the same in juvenile cases as in adult criminal cases: “we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt. [Citations.]” (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) “‘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.]’ [Citations.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1089.)
“The robbery statute, Penal Code section 211, describes 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.’” (People v. Burns (2009) 172 Cal.App.4th 1251, 1258.) “[T]he aggravating factors that elevate a theft to a robbery [are] the use of force or fear and the taking from the victim’s presence.” (People v. Gomez (2008) 43 Cal.4th 249, 255.)
Contrary to appellant’s contention that Lesly was wearing clip earrings, Lesly testified that the earrings had “a long stick” that went into her ear. Appellant used enough force to pull the earrings out of her ears and cause one ear to become swollen. The evidence is sufficient to establish that force was used in committing the offense. (See People v. Jones (1992) 2 Cal.App.4th 867, 869-871 [where the victim’s finger was bloodied and her shoulder injured by the force exerted by the appellant in taking her purse, the evidence not only supported the robbery conviction, but it did not support a jury instruction on the lesser offense of grand theft from the person].)
Appellant’s reliance on People v. Morales (1975) 49 Cal.App.3d 134 is unavailing. The appellant in Morales grabbed the victim’s purse and pushed her as he seized the purse. The victim later died, and the appellant was charged with robbery and first degree felony murder. He argued that the trial court erred in refusing to instruct the jury on the lesser included offense of grand theft from the person. The appellate court agreed, but that holding had nothing to do with whether the evidence was sufficient to support a robbery conviction. (Id. at pp. 139-140.) Here, the evidence is sufficient to sustain the court’s finding that appellant committed the crime of robbery.
Predisposition Credits
Appellant asks us to correct the juvenile court’s calculation of predisposition custody credits. He contends that he was not given any credit for the five days he spent in custody prior to his release.
“‘[A] minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. [Citations.] It is the juvenile court’s duty to calculate the number of days earned, and the court may not delegate that duty. [Citations.]’ [Citation.]” (In re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079 (Lorenzo).) Courts have held, however, that a minor “‘is entitled to credit against subsequent physical confinement only for earlier physical confinement.’” (Ibid., quoting In re Randy J. (1994) 22 Cal.App.4th 1497, 1505.)
Welfare and Institutions Code section 726, subdivision (c) states that “‘[p]hysical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.” In Lorenzo, the court rejected the minor’s request for predispositional credit for time spent in an electronic monitoring program at his residence, holding that electronic monitoring was not physical confinement. (Lorenzo, supra, 163 Cal.App.4th at p. 1080.)
Here, appellant was placed home on probation, a condition that constitutes physical confinement even less so than electronic monitoring. Because appellant is not subject to physical confinement, he is not entitled at this time to predispositional credit.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.