Opinion
A156605
02-27-2020
In re BRYAN S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BRYAN S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKJDSQ181784009001)
The juvenile court sustained allegations that 16-year-old Bryan S. committed a robbery in connection with a marijuana sale gone awry, and on appeal he contends there is no substantial evidence he committed the offense. We affirm.
BACKGROUND
At approximately 7:00 p.m. on the night in question, the victim, a 16-year-old youth, was driven by his older brother and his brother's girlfriend to a parking lot in Mendocino County, where the victim intended to conduct a pre-arranged drug sale with someone named Giovanni. After about a week of texting over Snap Chat, the victim had arranged to sell Giovanni a pound of marijuana for $900 and was expecting to meet Giovanni by himself.
Giovanni had suggested their meeting location and was standing in the parking lot when the victim arrived, waiting outside his own car with three other people. They were all dressed in black, wearing black hoodies. One person waited in the front seat of Giovanni's car for the others. When the victim saw that Giovanni wasn't alone he got worried
The victim's truck pulled up and parked next to Giovanni's car, the victim got out of the truck alone holding the drugs in a clear plastic bag, and the group immediately surrounded him. They encircled him, with Giovanni standing right in front of him. The victim testified that he showed them the drugs, then someone standing beside him pushed him with one hand and then he noticed the person was holding a handgun in their other hand, pointed down at about waist level. According to what he told law enforcement that evening, Giovanni grabbed the drugs from him. Asked at trial whether he was pushed before or after the drugs were taken, he answered, "Before. Well, like, when they were taking it. [¶] . . . [¶] [K]ind of at the same time." His brother, whose view was partially blocked by the assailants, didn't see the actual push but did feel the truck shake when his brother was pushed and saw his brother "leaning a little bit against the truck after" the push.
His brother didn't see a gun.
The victim testified that he got scared and quickly got back into his own car and told his brother what had happened, the group of assailants jumped back into their car and they sped away, and the victim and his brother immediately followed the assailants in their truck to get their license plate number.
It was dark out, and the victim didn't see anyone's face other than Giovanni's. His brother testified that the entire incident took "only two or three minutes," "[l]ess than five minutes."
While driving, his brother's girlfriend called 911 and gave police the license plate information. They placed the call practically as soon as they'd exited the parking lot, at a stop sign next to the park at a main intersection. They followed the vehicle onto the freeway and further for a brief period until it exited the highway. The victim's truck continued down the highway, and within five to ten minutes law enforcement returned the girlfriend's call. They met with law enforcement personnel at a gas station where the defendant and several others had been apprehended and arrested.
Scared, she fabricated a story to law enforcement rather than mention the marijuana deal, and the victim admitted that he repeated that lie to law enforcement when interviewed that evening. They concocted a story about accidentally leaving a bag of marijuana in the drawer of a dresser that they tried to sell through Craigslist to Giovanni, and that when they showed him the dresser the drugs fell out and someone grabbed them. Eventually, though, they admitted to police that the dresser story was untrue.
At the scene, the victim identified Bryan to law enforcement as the person holding the gun, because his clothing was different from the other four (he was wearing jeans) and because of his short hair. The victim was about 85 percent sure it was Bryan, because he hadn't seen the person's face.
The victim's brother also testified, corroborating the victim's account in all material respects. We refrain from summarizing his testimony.
The principal discrepancies in their accounts of what each saw concerned the number of assailants standing in the parking lot with Giovanni, and whether there was a gun.
Giovanni's vehicle had been spotted by a CHP officer at a location that was about a five-minute drive from the intersection where the occupants of the victim's car had placed their 911 call. The CHP officer, who had received a call about the car at approximately 7:08 p.m. that night, pulled the vehicle over without incident, Bryan and Giovanni were in the car with three others, and all five occupants were arrested. Bryan and Giovanni had been sitting in the backseat with another passenger (Giovanni in the center). The officers searched the car and found a one-pound bag of marijuana lying next to a baseball bat on the floor of the backseat in the area where Bryan and Giovanni had been sitting; $900 in the wallet of the third person who had been sitting in the backseat with them; and a cache of weapons in the front seat, including a billy club, multiple knives and a box cutter. They did not find any guns.
There was a baseball glove in the car too, although its location wasn't specified.
A juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) was filed alleging that Bryan, already a ward of the court, committed robbery (Pen. Code, § 211) with the personal use of a firearm (id., § 12022.53, subd. (b)); assault with a semiautomatic firearm (id., § 245, subd. (b)) with the use of a firearm (id., § 12022.5, subd. (a)); and various probation violations. After a contested jurisdiction hearing, the juvenile court found the robbery count true (count two) as well as several probation violation allegations and found not true the assault count (count three) and the two firearm use enhancements. Bryan appealed the resulting disposition order.
DISCUSSION
Bryan raises a single issue on appeal: he argues there is no substantial evidence he committed a robbery. His principal argument is that the evidence is insufficient to establish that a robbery even occurred. He also argues the evidence is insufficient to establish his liability for the robbery—either as a direct perpetrator or as an accomplice on an aiding and abetting theory.
Our standard of review is highly deferential. As recently summarized by our colleagues in Division One: "To evaluate a claim that a conviction lacks sufficient evidence, ' "we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . 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.] Our focus ' "is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence." ' " ' [Citation.] ' " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' [Citation.] Instead, reversal is required only if ' "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " ' [Citation.] [¶] Given this deferential standard of review, a 'defendant bears an enormous burden in claiming there is insufficient evidence' to support a conviction." (People v. Sanford (2017) 11 Cal.App.5th 84, 91.) Bryan has not met that burden.
First, there is substantial evidence of a robbery. "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.) It is only the "force or fear" requirement that Bryan contends is not satisfied here, but we conclude it was. There was substantial evidence of both force and fear.
Somebody shoved the victim up against his truck while the drugs were being taken, and did it sufficiently hard that the victim's brother sitting inside the truck could feel the vehicle shake. As Bryan's own cited authority establishes, the shove clearly entailed the use of force and thus is sufficient to sustain a finding of robbery. (See People v. Mungia (1991) 234 Cal.App.3d 1703, 1707-1708 [victim shoved during purse snatching].) Bryan doesn't seriously address the shove in his opening brief; but for the first time in his reply brief he argues there is no substantial evidence of any shove. We are satisfied from a review of the trial testimony that there is. Bryan's argument on this point in his reply brief boils down to challenging the witness's credibility (contending the brother's account "def[ies] reason," which is beyond our power to reassess.
Bryan concedes that only "minimal exertion" was required take the drugs from the victim's hand, there was "no evidence of a forceful struggle," and no evidence the victim resisted when the drugs were taken from him.
Further, there is substantial evidence of fear, which is an alternative basis for affirming the robbery finding. When he arrived at the meeting place, the victim saw that Giovanni was not alone but had three other people with him. This made him "worried." When he got out of the truck holding the bag of marijuana the four people immediately surrounded him, with Giovanni standing directly in front of him. Even if the victim had not seen what he thought was a gun, the trial court aptly described the effect likely to be felt by an individual who is surrounded by a group of young men in this context as "intimidation." Moreover, the victim testified that he got scared and quickly retreated to the truck, and his brother testified that he seemed scared. In claiming the latter evidence showed only fear that occurred after the marijuana was taken, Bryan parses the evidence too finely. He also ignores the reasonable inference that is amply supported by this record that the victim's "worry" grew into fear as the group surrounded him. Further, as the People point out, a robbery is not completed until the perpetrators have reached a place of temporary safety (People v. Gomez (2008) 43 Cal.4th 249, 255), and the victim testified he retreated and then the perpetrators fled. Bryan's contention that there was no evidence that any fear on the victim's part was such as to allow the crime to be accomplished is also without merit for the same reason; the robbery was not complete at the moment the marijuana was snatched. Further, since the victim testified that his intent was to sell the marijuana, the reasonable inference is that he chose not to insist on payment or the return of the marijuana because he was afraid Giovanni, Bryan and their compatriots would hurt him if he did.
There is also substantial evidence to support Bryan's role as an aider and abettor in the robbery. The victim identified him as one of the three persons standing in the parking lot with Giovanni who, when the victim arrived, quickly surrounded him. Further, as Bryan concedes there is substantial evidence he was present for the robbery. There is no evidence that Bryan was the person who remained in the front seat of the car during the robbery, and it is undisputed he was apprehended a short time later in the getaway car, sitting in the backseat with Giovanni and the stolen drugs. Given the speed with which the events unfolded after the robbery and Bryan's apprehension in the backseat, the juvenile court could reasonably infer he was not the person who had remained in the front seat of the car while the robbery was underway.
At page 26 of his opening brief, he asserts that, given the evidence, "a trier of fact might . . . conclude that Bryan was present at Lions Park"; at page 27, he similarly asserts the record contains "circumstantial evidence that Bryan was at the scene." --------
Although there is no direct evidence of Bryan's mental state, the evidence of his behavior during the robbery—standing together with the group beforehand and then surrounding the victim as he was robbed—is sufficient to sustain the finding that he aided and abetted the robbery. (See People v. Hill (1998) 17 Cal.4th 800, 851-852 [upholding conviction for aiding and abetting robbery in similar circumstances].) A trier of fact could reasonably conclude that Bryan was working together with the others, and that they had "a preconceived plan of attack." (Id. at p. 852.)
Evidence of intent need not be direct to be sufficient. What has been said before in upholding a finding that a juvenile aided and abetted a robbery is equally true here: "Testimony by witnesses at the trial disclosed that [appellant] was present at the scene of the crime and had fled with the perpetrator and . . . others after the crime had been committed and was still in their company shortly thereafter. Although flight, in and of itself, may be explained by a desire merely to disassociate oneself from an unexpected criminal activity, the trial court was not required to adopt that view; it could, reasonably, have concluded that had [appellant's] flight been from fear of an unjustified charge of involvement, [he] also would have immediately disassociated herself from the other [individuals]. [¶] On the record before us, we cannot say that the trial court erred in finding that [appellant] had aided and abetted the robbery of [the victim]." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095.)
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.