Opinion
A152819
09-25-2019
In re N.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1600904)
Appellant N.W. appeals from the juvenile court's dispositional order adjudging her to be a ward of the court and placing her on home supervision after a contested jurisdictional hearing in which it sustained charges that she committed two counts of attempted second degree robbery in violation of Penal Code sections 211, 212.5, subdivision (c), and 664, and two counts of resisting an executive officer in violation of Penal Code section 69. Appellant claims insufficiency of the evidence supporting those findings. We affirm.
I. BACKGROUND
Appellant, with three other girls, entered a WinCo store in Pittsburg, California early in the morning on September 25, 2016. The only cashier working at the time, Alejandro Solis, noticed the girls carrying sodas and snacks and exiting the store without paying. Solis notified WinCo assistant manager Steven Lagos; both Solis and Lagos followed the girls into the parking lot to obtain the license plate number of their car. Lagos identified appellant as the one who carried the merchandise out of the store.
In the parking lot, the girls had placed some of the merchandise on the ground next to the car and some of the merchandise in a shopping cart. Solis approached appellant and tried to retrieve the merchandise from the cart, but appellant pushed the cart towards him forcefully, as if trying to run him over with the cart. Lagos noticed Solis backpedal, so Lagos stepped in front of the cart.
Then, there was a back and forth altercation between Lagos and appellant in which each pushed the cart towards the other. Appellant tried to push the cart at Lagos, and Lagos pushed it back, causing appellant to fall down. Lagos told appellant and the other girls to leave, but appellant stood up, told Lagos to "square up," and began throwing punches at Lagos. A struggle ensued between Lagos and appellant in which appellant ended up being thrown to the ground by Lagos.
At that point, appellant got into the car with the three other girls and began to drive off. But instead of leaving, the car stopped in front of the store, where appellant got out and threw a punch at Robert Dewitt, a store employee, but may not have made contact. Lagos intervened, threw appellant to the ground, and remained on top of her. Appellant continued to struggle while being pinned by Lagos, and during Lagos's attempts to control appellant, he explained to the girls that the police had been called and that he was holding appellant until the police arrived.
A WinCo employee had called 911, and Sergeant Erik Severe was one of the on-duty officers who responded. Sergeant Severe testified that he arrived in response to a reported fight in front of WinCo that had to do with shoplifting. He said that upon his arrival on the scene, he saw "one gentleman" (Lagos) trying to handcuff a female (appellant) on the ground. Sergeant Severe assisted in detaining appellant in handcuffs and prepared to escort appellant to the patrol car.
As Sergeant Severe was escorting appellant to the patrol car, another dispatched on-duty officer, Officer Arquel Curran, came over to assist Sergeant Severe. As Officer Curran approached appellant and Sergeant Severe, appellant kicked Officer Curran, and while Sergeant Severe and Officer Curran were taking appellant to the patrol car, appellant continued to physically resist, and kicked backwards (described as a "mule kick") at the officers. After the "mule kick" all three (Officer Curran, Sergeant Severe, and appellant) fell to the ground. Following the incident appellant was taken into custody.
A juvenile wardship petition was filed in Contra Costa County on September 27, 2016 against appellant. Counts one and two alleged appellant committed the felony of attempted second degree robbery in violation of Penal Code sections 211, 212.5, subdivision (c), and 664 against Lagos and Solis respectively. Counts three and four alleged appellant committed the felony of resisting an executive officer in violation of Penal Code section 69 against Sergeant Severe and Officer Curran respectively.
Counts five and six alleged appellant committed the felony of threatening public officers and employees in violation of Penal Code section 71 against Sergeant Severe and Officer Curran respectively. Counts seven and eight alleged appellant committed misdemeanor battery in violation of Penal Code sections 242 and 243, subdivision (a), against Lagos and Dewitt respectively.
After a jurisdictional hearing, the juvenile court sustained counts one, two, three, four, and seven, and dismissed counts five, six, and eight. Appellant was placed on probation with home supervision for 90 days. Appellant now appeals the juvenile court's order as to counts one and two for attempted second degree robbery and counts three and four for resisting an executive officer in violation of Penal Code section 69.
II. DISCUSSION
Appellant argues 1) insufficient evidence supports the juvenile court's findings on counts one and two for attempted second degree robbery, and 2) insufficient evidence supports the juvenile court's findings on counts three and four for resisting an executive officer. We disagree. Having reviewed the record, we conclude that substantial evidence supports the juvenile court's orders as to all sustained counts.
A. Standard of Review
We are governed here by familiar principles of substantial evidence review. (People v. Johnson (1980) 26 Cal.3d 557, 562.) The trial court's judgment must be affirmed if, after viewing the whole record in the light most favorable to the judgment, there is sufficient evidence to support a reasonable trier of fact finding the defendant guilty beyond a reasonable doubt. (Id. at p. 578.) Substantial evidence is reasonable, credible, and of solid value. (Ibid.) Limiting review to isolated pieces and merely pointing out " ' "some" ' " evidence supporting the trial court's conclusion is not enough. (Id. at p. 577.) But on the other hand, circumstantial evidence will be sufficient, even if the reviewing court believes the circumstances could be reasonably interpreted as consistent with a contrary finding. (People v. Bean (1988) 46 Cal.3d 919, 933.) These appellate standards for considering sufficiency of evidence in adult criminal trials are also applicable to juvenile proceedings involving criminal acts. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
B. Attempted Robbery Counts
Appellant argues the record does not support the findings of attempted robbery against Solis and Lagos because there is no substantial evidence of appellant's intent to commit robbery. We disagree.
Under Penal Code section 211, "[r]obbery 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." As to the possession element, "[a] person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required" to satisfy the robbery statute's possession element. (People v. Scott (2009) 45 Cal.4th 743, 749.) Store employees can be victims of robbery through constructive possession, even if they are not owners of the property and are not in immediate control of the stolen property. (Id. at p. 751.) An employee's constructive possession of his or her employer's property during a robbery is based upon employee status regardless of whether employee duties involved control over or access to the stolen property. (Id. at pp. 751-752.)
As to the force or fear element, the commission of robbery can be a continuing offense not requiring the use of force or fear during the initial capture of the stolen property. (People v. Gomez (2008) 43 Cal.4th 249, 255-256.) If property is peacefully acquired but force or fear is used to carry the property away, the force or fear element of the robbery statute is still satisfied. (Id. at p. 256.) Thus, " '[a] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's immediate presence regardless of the means by which defendant originally acquired the property.' " (People v. McKinnon (2011) 52 Cal.4th 610, 686-687, quoting People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) Additionally, robbery has an intent element where specific intent to permanently deprive the victim of his or her property is required. (People v. Clark (2011) 52 Cal.4th 856, 943.)
Attempted robbery has a separate intent requirement. "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a.) Therefore, "[a]n attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission." (People v. Medina (2007) 41 Cal.4th 685, 694; see People v. Moran (1912) 18 Cal.App. 209, 210-211.) This should be distinguished from robbery's intent element, which does not necessarily involve the intent to use force against the victim or to cause the victim to feel fear. (See People v. Anderson (2011) 51 Cal.4th 989, 991.) A robbery results if the defendant commits "a forcible act against the victim motivated by the intent to steal, even if the defendant did not also intend for the victim to experience force or fear." (Id. at pp. 991-992.)
Attempted robbery requires the intent to rob. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1023.) But while that intent may be inferred from the use of force or fear to steal, the use of force or fear to steal is not a required element, as it is with the completed offense of robbery. (See People v. Vizcarra (1980) 110 Cal.App.3d 858, 862-863.) In People v. Navarette (2003) 30 Cal.4th 458, for example, an attempted robbery conviction was upheld because the defendant entered the victim's apartment and murdered the victim in order to take the victim's property, but never completed the theft. (Id. at p. 499.) And in Vizcarra, an attempted robbery conviction was upheld where the defendant approached a liquor store at night wearing a poncho and carrying a rifle, even though he fled the scene before going through with the robbery. (Vizcarra, at pp. 861-862.) In these cases, as the court in Vizcarra put it, there was a "direct unequivocal overt act toward [the] commission" of robbery, beyond mere preparation. (Id. at p. 861.)
Appellant argues there is no substantial evidence she intended to use force or fear to steal and thus no substantial evidence she intended to rob Solis or Lagos. Her argument is built on the premise that the stolen merchandise was abandoned and surrendered in the parking lot and thus there is no substantial evidence that appellant resisted any attempts by store personnel to recover the merchandise. Appellant contends the juvenile court mischaracterized the struggle with Lagos as a tug of war, and actually, the parties were pushing the cart away from themselves, with appellant attempting to surrender the property by pushing the cart towards the store.
Substantial evidence supports the view that appellant pushed the cart towards Solis and Lagos to force or threaten them back in order to resist their efforts to recover the merchandise. Solis testified that he tried grabbing the merchandise from the cart when he first approached appellant in the parking lot. But appellant pushed the cart towards him, causing Solis to backpedal. After Lagos knocked her down with the cart, appellant did not back off, but instead stood up and looked to engage with Lagos by telling him to "square up," which further supports the conclusion that the merchandise was not surrendered. Even when appellant had the chance to escape after getting into the car with her friends after her initial struggle with Lagos in the parking lot, appellant got out of the car in front of the store and came back to reengage with store employees. We disagree with appellant that this case is comparable to People v. Hodges (2013) 213 Cal.App.4th 531, 536 because in Hodges, after the defendant tossed stolen items back toward the victim, he drove away and did not return.
Factually, appellant insists her reengagement with Lagos after starting to drive away had nothing to do with the merchandise, but rather that she returned out of frustration, feeling wronged. And legally, appellant contends that the prosecution had to prove appellant used force to maintain possession of the property against the lawful efforts of the owner to regain it, and that because Lagos's actions towards appellant were an unreasonable use of force, Lagos's actions did not constitute a lawful effort to retrieve the property. We need not address either line of argument. There is substantial evidence to support a finding that the offense of attempted robbery was complete the moment appellant pushed the cart back at Solis and Lagos in the parking lot encounter, effectively turning the cart into a weapon in an effort to retain stolen property, some of which remained on the ground. Our role is finished upon determining there is enough to support a true finding on the offense of attempted robbery. That offense is not erased because of whatever happened later or whatever additional motives appellant may have had for her actions beyond intent to rob.
For all of the above reasons, we conclude there is substantial evidence to support the finding that appellant intended to rob Solis and Lagos. Thus, we affirm the judgment on counts one and two for attempted second degree robbery.
C. Penal Code Section 69 Violations
Appellant next argues there is insufficient evidence to support the findings of resisting an executive officer because there is no substantial evidence that the officers were performing lawful duties. Here, too, we disagree.
Resisting an executive officer falls under Penal Code section 69, subdivision (a), which states "[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty" may be punished. There are two ways an offense can be committed per the statute. (In re Manuel G. (1997) 16 Cal.4th 805, 814.) "The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." (Ibid.)
The present case deals with the second type of offense. When prosecuting under Penal Code section 69's second type of offense where defendant resists by force or violence an officer while the officer is engaged in his or her duties, the prosecution must show that defendant " 'knowingly and unlawfully resisted an executive officer in the performance of his [or her] duties' " and that " '[t]he resistance was accomplished by means of force or violence.' " (People v. Carrasco (2008) 163 Cal.App.4th 978, 985.) Thus, the defendant's actual knowledge that the person she is resisting is an executive officer, and the defendant's actual knowledge that the officer is performing his or her duties is required. (People v. Hendrix (2013) 214 Cal.App.4th 216, 237.) Police officers are considered executive officers. (People v. Buice (1964) 230 Cal.App.2d 324, 335.)
A defendant can only be convicted of an offense against a peace officer engaged in the performance of his or her duties if the officer was acting lawfully when the offense was committed. (People v. Brown (2016) 245 Cal.App.4th 140, 150.) Police officers Severe and Curran are governed by Welfare and Institutions Code section 625, subdivision (a), regarding taking juveniles into temporary custody. "A peace officer may, without a warrant, take into temporary custody a minor . . . [w]ho is under the age of 18 years when such officer has reasonable cause for believing that such minor" has violated "any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age . . . ." (Welf. & Inst. Code, §§ 625, subd. (a) & 602, subd. (a).) Reasonable cause exists when there is a state of facts which would lead a person of ordinary caution or prudence to believe or entertain a strong suspicion of guilt of the accused. (People v. Mower (2002) 28 Cal.4th 457, 473.) Even if there is some doubt, reasonable cause can still exist. (Ibid.)
Appellant argues Sergeant Severe and Officer Curran did not have reasonable cause to believe appellant was acting unlawfully, and thus the officers were not executing lawful duties and appellant cannot be convicted of resisting an officer under Penal Code section 69. Appellant asserts Sergeant Severe did not conduct enough investigation of the situation to support a belief that appellant was the aggressor, nor did Sergeant Severe receive any confirmation about shoplifting before arresting appellant. We reject that argument. The circumstances Sergeant Severe and Officer Curran encountered at the scene, and the state of their knowledge at the time, warranted their taking appellant into custody. A WinCo employee called the police; Sergeant Severe testified that he was responding to a reported fight in front of WinCo that had to do with shoplifting; and Sergeant Severe observed Lagos trying to handcuff appellant while surrounded by other employees. Officer Curran was dispatched to WinCo and went to assist her sergeant, Sergeant Severe, who was walking appellant to the patrol car in handcuffs.
Appellant also contends that the officers made an unlawful arrest because there is no evidence that the officers advised appellant of her rights as required by Welfare and Institutions Code section 625, nor is there any evidence that the officers advised appellant of information required by Penal Code section 841. We reject that line of argument as well. Under Welfare and Institutions Code section 625, when a minor is taken into temporary custody on the basis that there is reasonable cause to believe such minor has violated the law, "the officer shall advise such minor that anything he says can be used against him and shall advise him of his constitutional rights, including his right to remain silent, his right to have counsel present during any interrogation, and his right to have counsel appointed if he is unable to afford counsel." (Welf. & Inst. Code, § 625.) Not reading these rights (often dubbed "Miranda warnings") while taking a suspect into custody affects the admissibility of any custodial statements made prior to admonishment, but does not invalidate the arrest or take the officer's action outside the scope of his or her official duties. (See Miranda v. Arizona, supra, 384 U.S. at pp. 443-445; People v. Lujan (2001) 92 Cal.App.4th 1389, 1403-1404.)
Miranda v. Arizona (1966) 384 U.S. 436.
In regard to Penal Code section 841, the statute states that "[t]he person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape." Here, appellant was found to be engaged in an attempted robbery at the time officers took her into custody, so appellant falls under the exception outlined in Penal Code section 841. Therefore the officers' actions were lawful.
Accordingly, we conclude there is substantial evidence to support the finding that appellant knowingly and unlawfully resisted the officers by using force and violence while the officers were performing their duties. Lagos told appellant that police had been called, both Sergeant Severe and Officer Curran were on duty and in full uniform with their patrol vehicles, and Sergeant Severe notified appellant she was being detained. Appellant physically resisted Sergeant Severe and Officer Curran as they tried to take her to the patrol car, appellant at one point kicked both officers, and Sergeant Severe and Officer Curran fell to the ground with appellant. Both Sergeant Severe and Officer Curran testified that appellant's physical resistance delayed them in performing their duties.
We need not address appellant's remaining arguments regarding a merchant's privilege to detain and citizen's arrest, which are both alternative theories justifying the officers' actions, because we affirm the judgment on counts 3 and 4 for resisting an executive officer in violation of Penal Code section 69 based on the above analysis. --------
III. DISPOSITION
The jurisdiction and disposition orders are affirmed.
/s/_________
STREETER, Acting P.J. We concur: /s/_________
TUCHER, J. /s/_________
BROWN, J.