In re F v. CA2/7

Filed 10/7/13 In re F.V. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN

In re F.V., B243302

a Person Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. PJ45900)

THE PEOPLE,

Plaintiff and Respondent,

v.

F.V.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert J.
Schuit, Judge. Affirmed.
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, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 INTRODUCTION

F.V. appeals from an order finding that he committed second degree robbery (Pen.
Code, § 211) and assault by means likely to produce great bodily injury (id., § 245,
subd. (a)(4))1 and ordering that he remain a dependent of the juvenile court under
Welfare and Institutions Code section 602. The court placed F.V. in the camp-
community placement program for six months, with a maximum term of confinement of
six years. On appeal, F.V. argues that there is insufficient evidence to support the
juvenile court‟s findings that he committed robbery and assault by means likely to
produce great bodily injury. We affirm.

FACTUAL BACKGROUND

On the afternoon of June 10, 2012 Justin R. and his younger brother Branden were
riding their skateboards at the Ritchie Valens Skate Park in Pacoima. F.V. and a
companion approached Justin, and F.V. asked if he could use Justin‟s cell phone to call a
friend. Justin said yes, as long as F.V. used the phone in front of him. Justin handed F.V.
the phone. F.V. put it in his pocket and started to walk away, which “was an indication to
[Justin] that he was trying to steal it.” Justin approached him and said, “Hey, you can call
your friend, and I‟ll forget that you just did that.” F.V. held onto the phone.
Justin warned F.V. to return the phone or there would be problems. F.V.
approached to within a few inches of Justin and asked what Justin was going to do about
it. Justin, who had mixed martial arts training and participated in high school wrestling,
punched F.V., who became dazed. F.V. then took a swing at Justin “with a closed fist.”
Justin, however, was able to avoid F.V.‟s punch and hit F.V. a second time, causing F.V.
to fall to the ground.

1 The court dismissed the allegations that F.V. used a deadly and dangerous
weapon, a pen, in the commission of the offenses (Pen. Code, § 12022, subd. (b)(1)).

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 F.V.‟s friend, who had accompanied F.V. when he first approached Justin, then
stepped up to fight Justin. Justin testified that F.V.‟s companion “had his fist already
ready to come at me. He was physically walking towards me already. And I decided to
act in self-defense, and I started hitting him as well.” Justin hit this second attacker in the
nose. Then, “[o]ut of nowhere,” Justin felt a sharp pain in the back of his head. Justin
turned to see who had stabbed him and picked that person up. Someone else then pulled
Justin‟s arm back, dislocating his shoulder, and he tried fighting his attackers “with the
one fist I had.” At some point, he knelt down and several people began hitting him.
After about 30 seconds, Justin “picked [him]self up” and asked for a fair fight. His
attackers said they were “going to pull a strap” on him. As F.V. and his companions left,
they yelled, “Pacas Trece,” which Justin understood was Spanish for Pacoima 13, the
name of a gang. At that point, they started walking away and were trying to get Justin to
their car. Although Justin had not been afraid when he initially attempted to get his
phone back, he did have “some level of fear” when they called out “Pacas Trece” and
“knew to be careful,” because Justin had friends who had been killed by members of the
Pacoima 13 gang. Justin never got his phone back.
Branden was some distance away at the time of the incident. He saw someone
“rushing to the back of [Justin‟s] head,” and then saw Justin “kneel down and try to get
back up.” Brenden saw four people around Justin. As the four people were leaving,
Branden heard one of them say something like, “Hey, fool, Cowboy, let‟s go. Let him
get to the car so we can pull out a gun.” F.V.‟s gang moniker is “Cowboy.” Branden
saw blood on Justin‟s head and covered the wound with Justin‟s shirt.

DISCUSSION

A. Standard of Review
“The same standard governs our review of the sufficiency of evidence in juvenile
cases as in adult criminal cases: „[W]e review the whole record to determine whether any
rational trier of fact could have found the essential elements of the crime or special

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circumstances beyond a reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and
of solid value—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.]
“Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]” [Citation.] A reversal for
insufficient evidence “is unwarranted unless it appears „that upon no hypothesis whatever
is there sufficient substantial evidence to support‟” the jury‟s verdict.‟” (In re
Christopher F. (2011) 194 Cal.App.4th 462, 471, fn. 6, quoting People v. Zamudio
(2008) 43 Cal.4th 327, 357; see In re Brandon T. (2011) 191 Cal.App.4th 1491, 1495-
1496.)

B. There Is Sufficient Evidence of Robbery
The trial court found beyond a reasonable doubt that F.V. committed robbery.
F.V. argues that there is insufficient evidence that he personally used force or fear to take
and keep Justin‟s cell phone, and thus he committed grand theft, not robbery. F.V.
asserts that Justin was the only person who testified about the Pacoima 13 comment,
which led to his fear, and that there is no evidence that F.V. made the comment regarding
Pacoima 13.
Penal Code section 211 defines 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.” The crime of robbery includes “„the
element of asportation and appropriation of another‟s property. The escape of the thief
with his ill-gotten gains . . . is as important to the execution of the robbery as gaining

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possession of it.‟” (People v. Gomez (2008) 43 Cal.4th 249, 256-257; accord, People v.
McKinnon (2011) 52 Cal.4th 610, 686-687; see People v. Williams (2013) 57 Cal.4th
776, 787 [“[b]ecause larceny is a continuing offense, a defendant who uses force or fear
in an attempt to escape with property taken by larceny has committed robbery”].)2
Moreover, “a reasonable assumption is that, if not prevented from doing so, the victim
will attempt to reclaim his or her property.” (Gomez, supra, at p. 264). Thus, a robbery
is not over until the robber has reached a place of temporary safety. (People v. Hodges
(2013) 213 Cal.App.4th 531, 540; People v. Haynes (1998) 61 Cal.App.4th 1282, 1291-
1292; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1374.) Although robbery is a
continuous offense and all the elements must be satisfied before the crime is completed,
no “artificial parsing is required as to the precise moment or order in which the elements
are satisfied.” (Gomez, supra, at p. 254; Hodges, supra, at p. 540.)
Thus, the defendant can commit a robbery even if he or she acquired the property
peacefully, if the defendant uses force or fear to carry it away. (People v. Gomez, supra,
43 Cal.4th at p. 257; see People v. McKinnon, supra, 52 Cal.4th at pp. 686-687.) A mere
theft becomes robbery “if [a] perpetrator, having gained possession of the property
without use of force or fear, resorts to force or fear while carrying away the loot.”
(Gomez, supra, at p. 257.)
F.V. argues that “it is conceded that [he] himself did not use force or fear.” The
People made no such concession, however, and there is substantial evidence that the
robbery was accomplished by force or fear.
While F.V. may not have initially obtained Justin‟s phone by force or fear, there is
substantial evidence that F.V. retained possession of Justin‟s phone by fear. It is true that
Justin was not afraid when F.V. and his companions attacked him, and even after F.V.‟s
companions injured Justin, he was still ready to fight them “with the one fist [he] had.”
Justin did experience fear, however, when they yelled out “Pacas Trece.” At this point,

2 “Asportation” means “carrying away.” (People v. Montoya (1994) 7 Cal.4th 1027,
1041.)

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F.V. had not yet completed his escape and carrying away of Justin‟s cell phone to a place
of safety. (See People v. Barnett (1998) 17 Cal.4th 1044, 1153 [“crime of robbery
continues until the robber has reached a place of temporary safety”]; People v. Flynn
(2000) 77 Cal.App.4th 766, 772 [“robbery remains in progress until the perpetrator has
reached a place of temporary safety,” and the “scene of the crime is not such a location,
at least as long as the victim remains at hand”].) The act of identifying oneself as a
member of a gang can satisfy the robbery element of fear. (See People v. Mendoza
(2000) 24 Cal.4th 130, 178 [victim‟s understanding that the defendant‟s statement he was
a “homeboy” meant he was a member of a gang was “directly relevant to establishing the
element of fear” for robbery].)
The fact that F.V. may not have been the person who yelled “Pacas Trece” does
not preclude a finding that he committed the robbery by fear. As discussed in People v.
McCoy (2001) 25 Cal.4th 1111, “the dividing line between the actual perpetrator and the
aider and abettor is often blurred. It is often an oversimplification to describe one person
as the actual perpetrator and the other as the aider and abettor. When two or more
persons commit a crime together, both may act in part as the actual perpetrator and in
part as the aider and abettor of the other, who also acts in part as an actual perpetrator. . . .
The aider and abettor doctrine merely makes aiders and abettors liable for their
accomplices‟ actions as well as their own. It obviates the necessity to decide who was
the aider and abettor and who was the direct perpetrator or to what extent each played
which role.” (Id. at p. 1120; accord, People v. Thompson (2010) 49 Cal.4th 79, 117-118
[“a sharp line does not always exist between the direct perpetrator and the aider and
abettor”].) If all of the participants shared the same intent, they may all be “equally
guilty.” (People v. Nunez (2013) 57 Cal.4th 1, 43.)
For example, in People v. Fagalilo (1981) 123 Cal.App.3d 524, the defendant
entered a store with three codefendants. While the codefendants were talking loudly to
distract the cashier, the defendant approached the cashier from behind and, when she
opened her cash register, grabbed money from it. The defendant ordered the cashier to
remove the drawer from the register, but she pushed him away and he left. When the

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assistant manager came to assist the cashier, one of the codefendants threw a bottle of
wine at him. He ducked and two other people were hit by the bottle and broken glass.
(Id. at p. 528.) The defendant challenged the sufficiency of the evidence to support his
conviction of assault by means of force likely to produce great bodily injury, based on the
throwing of the wine bottle. The court concluded the evidence was sufficient to support
his conviction, explaining: “The evidence was . . . sufficient to establish [the
defendant‟s] liability as an aider and abetter of [his codefendant‟s] assault. The
defendants entered the store together and escaped together. The jury could reasonably
infer that they were jointly engaged in a robbery, the natural and probable consequences
of which included resistance by any of the defendants to avoid capture. [Citations.]” (Id.
at p. 532.)
Here, it is a reasonable inference that F.V., the individual who was with him when
he first approached Justin, and the others who attacked Justin were jointly engaged in the
robbery. (See People v. Watkins (2012) 55 Cal.4th 999, 1019 [in reviewing the
sufficiency of the evidence of attempted robbery, “we ask whether „there is any
substantial evidence, including all reasonable inferences to be drawn from the evidence,
of the existence of each element of the offense charged‟”]; People v. Aragon (2012) 207
Cal.App.4th 504, 511 [evidence viewed in light most favorable to judgment must contain
“substantial evidence, including reasonable inferences,” of guilt].) After F.V. and his
original companion were unsuccessful in their attempts to keep Justin from reclaiming his
phone, the others quickly intervened and attacked Justin. Then they left together,
completing the asportation of Justin‟s cell phone by calling out the name of the gang and
threatening to get a gun. This evidence is sufficient to support a finding that F.V.
committed the robbery by means of fear.

C. There Is Sufficient Evidence of Assault
Penal Code section 245, subdivision (a)(4), punishes “[a]ny person who commits
assault upon the person of another by any means of force likely to produce great bodily
injury.” The force required “must be such as would be likely to produce great bodily

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injury, but it is not required that a defendant intends to inflict such injury.” (People v.
Covino (1980) 100 Cal.App.3d 660, 667.) “While it is true that „when the evidence
shows that a blow has been struck or a physical injury actually inflicted, the nature and
extent of the injury is a relevant and often controlling factor in determining whether the
force used was of a felonious character‟ [citations], an injury is not an element of the
crime, and the extent of any injury is not determinative.” (Ibid.) “„“The crime . . . , like
other assaults, may be committed without infliction of any physical injury, and even
though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious
injury was caused, but whether the force used was such as would be likely to cause it.”‟
[Citation.]” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) A defendant may
commit an assault by means likely to produce great bodily injury by the use of hands or
fists alone, or any object used in a manner likely to cause great bodily injury. (See
People v. Aguilar (1997) 16 Cal.4th 1023, 1028, 1037-1038.)
Here, the individuals who attacked Justin after he had punched F.V. committed an
assault by means of force likely to produce great bodily injury. The issue is whether F.V.
may be held liable for their actions.3 F.V. argues that he cannot be held liable for the
actions of his companions under an aiding and abetting theory because there was no
evidence that he and the others were members of a gang, making the use of force
foreseeable. We conclude there is sufficient evidence to support the finding of assault by
means likely to produce great bodily injury.
It is a reasonable inference from the evidence presented at trial that F.V., the
individual who was with him when he approached Justin, and the others who attacked
Justin, were accomplices sharing the same intent—to take Justin‟s cell phone. Regardless
of whether the individuals were all members of a gang, F.V.‟s companions stood ready to
assist F.V. should he be unable to get away with Justin‟s cell phone. “„[A]iders and
abettors should be responsible for the criminal harms they have naturally, probably and

3 While F.V. did take a swing at Justin, there is nothing in the record that supports a
finding that the blow was likely to produce great bodily injury had it landed.

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foreseeably put in motion.‟ [Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248,
260.) Because the commission of the assault on Justin was a reasonably foreseeable
consequence of the robbery (id. at pp. 262-263 [assault is a natural and probable
consequence of robbery]; People v. Fagalilo, supra, 123 Cal.App.3d at p. 532 [same].),
F.V. may be liable for the assault under an aiding and abetting theory. (See People v.
Nunez, supra, 57 Cal.4th at p. 43; People v. McCoy, supra, 25 Cal.4th at pp. 1215-1216;
Fagalilo, supra, at p. 532.) Substantial evidence supports the juvenile court‟s finding
that F.V. committed assault by means likely to produce great bodily injury.

DISPOSITION

The order is affirmed.

SEGAL, J.*

We concur:

PERLUSS, P. J.

ZELON, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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