Opinion
B316005
09-13-2022
THE PEOPLE, Plaintiff and Respondent, v. A.R., Minor and Appellant.
Mary Bernstein for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Mark A. Kohm and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MJ24876 Mario Barrera, Judge. Affirmed.
Mary Bernstein for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Mark A. Kohm and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
As members of her family were stealing items from a grocery store, A.R. assaulted a store manager who was trying to recover certain items. The People filed a petition under Welfare and Institutions Code section 602, alleging A.R. committed assault by means of force likely to produce great bodily injury and petty theft. After a contested adjudication, the juvenile court found both allegations true, sustained the petition, and declared A.R. a ward of the court. A.R. argues substantial evidence did not support the juvenile court's finding she aided and abetted a theft. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A.R.'s Family Goes to the Market To Steal Food
On May 19, 2020, when she was 16 years old, A.R. stayed overnight with her older cousin Dominique, whom she called "auntie." The next day Dominique went to a grocery store with A.R., A.R.'s sister Acacia, A.R.'s brother Garrick, and A.R.'s cousins Christina and Dante. While the family was in the store, the children, A.R., Acacia, Garrick, and Christina, played in the aisles, while the adults, Dominique and Dante, shopped for groceries.
After Dominique and Dante finished shopping, the group approached a cash register operated by Sienna Palm, a store employee. At the register, Dominique and Dante unloaded items from the carts, while Palm scanned and bagged the groceries. As Palm placed groceries in the cart, Dominique took a white bag of items "out of the cart and put it back on the belt" and said she "wanted to put it in a separate transaction."
There never was a separate transaction. Before Palm finished bagging all the items, Dominique told Dante to pay for them. Dominique left the store with the shopping cart full of groceries; A.R. left either just before or after Dominique. Dante remained at the register but did not pay for the items in the white bag.
Palm saw Dominique walking out of the store with a cart that contained merchandise the family had not yet paid for, including two cases of Ensure, some juice, two 12-packs of soda, and a blue reusable shopping bag with additional items. When Palm said to Dante that Dominique was stealing, Dante ignored her and paid for the juice and soda Dominique had taken out of the store. Dante took the white bag of unpaid merchandise and left the store. Palm called the store manager, Evelyn Hernandez, to report that the family was stealing.
"Ensure is a supplemental nutrition drink that provides a balance of protein, carbohydrates, and fat, fortified with vitamins." (Eads v. Tennessee (M.D. Tenn., Sept. 7, 2018, No. 1:18-CV-00042) 2018 WL 4283030, p. 3, fn. 1.)
Hernandez went outside to the parking lot to prevent Dominique from leaving with the stolen items. As Hernandez approached Domonique's car, she could see the Ensure in the bottom of the shopping cart. The entire family was around the cart. According to Hernandez, when she asked for a receipt, Dominique yelled she did not "have to show shit," used "a lot of profanity," and said "vulgar things." According to A.R., who testified at the hearing, Dominique calmly told Hernandez that Dante was bringing the receipt. Eventually, Dominique gave Hernandez the two cases of Ensure from the bottom of the cart, although there was some dispute over whether Dominique threw the items at Hernandez or threw them on the ground. A.R. testified that, when she saw Hernandez coming toward the family in the parking lot, A.R. knew Dominique had stolen the Ensure and other items from the store.
Hernandez saw the blue reusable shopping bag, which was still in Dominique's cart, "grabbed the bag," and "proceeded to open it and inspect it." As Hernandez reached for the bag, Dominique said her wallet was in the bag and tried to get it back. Hernandez and Dominique fought over the bag, and everyone began screaming. Palm testified A.R. was involved in the "commotion," "yelling," and "pushing." Ultimately, Hernandez gained control of the bag and allowed Dominique to retrieve her wallet. Hernandez discovered the bag contained unpaid merchandise, including "meat department deli items." Hernandez knew the items were from the store because they were still cold.
Meanwhile, as Hernandez and Dominque fought over the bag, Dante returned to the car, waived a receipt, and said he had paid for the soda. A.R. put the drinks in the car to prevent Hernandez from getting them. Hernandez saw the juice and soda inside Dominique's car and, assuming they were stolen, "proceeded to go in and grab" them. A.R. tried to block the entrance to the car and push Hernandez away but was unable to stop her.
As Hernandez reached into the car, she was hit in the back of her head with a closed fist and kicked in the back of her legs. She "turned around right away" and concluded it was A.R. who had hit her because A.R. was "really close" behind her. A.R., on the other hand, testified neither she nor anyone else touched Hernandez.
Hernandez left the juice and soda in the car. The family members, including some of the minors (Hernandez could not recall specifically which ones), threatened Hernandez and other store employees, saying they were going to return and beat them up. Hernandez began recording the family on her phone because she "was afraid they were going to come toward [her] again." Dante yelled at Hernandez and said he was "going to punch [her] out," while the family members were "walking around and throwing up their signs, whatever signs they were throwing up, and just yelling and using profanity."
The family got into the car, and Dominique drove them "to the front of the store." There, according to Hernandez, Dante took off his shirt, and the family members "got out of the vehicle and started coming toward [store employees] really aggressively, as if they were going to jump us. And they were actually verbally saying they were going to jump us." Hernandez testified: "They were threatening us and telling us that they were going to come back and beat us up." A.R. testified, however, that only Dante got out of the car and that the rest of the family did not harass the store employees. Instead, A.R. said, the family was merely trying to get Dante "back in the car."
Hernandez eventually went back into the store, scanned the items she had recovered, and compared them to the items on the receipt, which allowed her to determine which merchandise the family had not paid for. Hernandez suffered a "swollen and red" ear and a bruised hand.
Los Angeles County Sheriff's Deputy Jesus Carbajal arrived at the scene, detained all six members of the family in the parking lot, and arrested four of them, including A.R. After the deputy read A.R. her rights under Miranda v. Arizona (1966) 384 U.S. 436, A.R. agreed to speak with him. Deputy Carbajal testified that A.R. admitted "she was involved in a fight because [Hernandez] was trying to take the merchandise" from Dominique's car and that A.R. knew, before the family went to the store, "they were going to go with intent to steal from the store." A.R. denied making these statements.
B. The Juvenile Court Sustains the Petition
The juvenile court found A.R. knew her family was stealing because she admitted in her testimony "she thought that Dominique had stolen items from the store." The court also found A.R. knew a theft was in progress when Dominique gave "the Ensure to the manager" and when there was "an altercation between Dominique and the manager" over the blue bag.
The court also found A.R. was the person who hit Hernandez in the head and kicked her in the legs. The court stated that, because A.R. was directly behind Hernandez, "a reasonable inference can be drawn . . . that the person who is immediately behind her is the person who committed those offenses." The court ruled that, because A.R. knew a theft was in progress, she committed an assault "to prevent the manager from obtaining these items back," which made her "complicit in" the theft as an aider and abettor. The court also stated that theft "is a continuing crime until a place of safety has been reached" and that "the fact that the items are in the car is not a place of safety." The court sustained the petition, finding A.R. committed an assault by means of force likely to produce great bodily injury and aided and abetted a theft. The court declared A.R. a ward of the court and placed her on home probation under the supervision of the probation department. A.R. filed a timely notice of appeal.
The People originally charged A.R. with two counts of second degree robbery (one of Hernandez and one of another store employee). The People subsequently amended the petition to allege assault by means likely to produce great bodily injury and petty theft "to reflect the new [District Attorney's] policy."
DISCUSSION
A.R. argues substantial evidence did not support the juvenile court's finding she aided and abetted a theft. Specifically, A.R. argues (1) she "had no role in the theft while in the supermarket," (2) she was not involved in the altercation in the parking lot between Dominique and Hernandez over the blue bag, and (3) "the items she tried to stop Hernandez from taking were not stolen." A.R. does not challenge the juvenile court's finding she committed an assault by means of force likely to produce great bodily injury.
A. Applicable Law and Standard of Review
Penal Code section 484, subdivision (a), provides that every "person who shall feloniously steal, take, carry, lead, or drive away the personal property of another" is guilty of theft. If a person commits theft "where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950)," the crime is petty theft and punished as a misdemeanor. (Pen. Code, § 490.2, subd. (a).) Penal Code section 484 consolidated the "crimes known as larceny, embezzlement and obtaining property under false pretenses, into one crime, designated as theft." (People v. Vidana (2016) 1 Cal.5th 632, 640-641.) While Penal Code section 484 "simplified the procedure of charging larceny, embezzlement, and false pretense, [it] did not change their elements." (Id. at p. 641.) "'The elements of theft by larceny are well settled: [T]he offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away.'" (People v. Mireles (2018) 21 Cal.App.5th 237, 242.) "Larceny requires the taking of another's property, with the intent to steal and carry it away. [Citation.] 'Taking,' in turn, has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.'" (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. omitted.) The "slightest movement may constitute asportation" (id. at p. 255), and the "'interference with the owner's possession need be only for an appreciable interval of time, be it ever so short'" (People v. Pruitt (1969) 269 Cal.App.2d 501, 505-506).
"A person is liable as an aider and abettor when (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Campbell (2020) 51 Cal.App.5th 463, 502; see People v. McCoy (2001) 25 Cal.4th 1111, 1118.) An aider and abettor is liable as a principal. (Pen. Code, § 31; see People v. Morante (1999) 20 Cal.4th 403, 433.)
"'When reviewing a challenge to the sufficiency of the evidence, "'we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" [Citation.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for "'substantial evidence-that is, evidence which is reasonable, credible, and of solid value'" that would support a finding beyond a reasonable doubt.'" (People v. Navarro (2021) 12 Cal.5th 285, 302.) "We must 'view the evidence in the light most favorable to the People' and 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] We must also 'accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence.'" (People v. Flores (2020) 9 Cal.5th 371, 411.) We do not "reconsider the weight to be given any particular item of evidence" or ask whether the trier of fact's "judgment was the most probable interpretation of the evidence, but simply whether it was a rational one." (Navarro, at pp. 302, 307.) "This standard of review is equally applicable to proceedings adjudicated pursuant to section 602 of the Welfare and Institutions Code." (In re Jesse L. (1990) 221 Cal.App.3d 161, 165.)
B. Substantial Evidence Supported the Juvenile Court's Finding A.R. Aided and Abetted a Theft
A.R. argues substantial evidence did not support the juvenile court's finding she intended to commit, encourage, or facilitate a theft because she "did not have any role in the theft" while she was in the market and was not directly involved in the physical struggle between Dominique and Hernandez outside the market. A.R. is correct that the evidence did not show, and the court did not find, she participated in the theft inside the market or as a participant in the physical altercation between Dominique and Hernandez in the parking lot. But the evidence did show, and the court found, A.R. intended to facilitate the theft of items her family had stolen because, once outside the store, she knew Dominique had stolen items from the store, she saw Dominique return the cases of Ensure to Hernandez, and she saw Dominique fight with Hernandez over the blue bag. From this evidence, the juvenile court found that A.R. knew there was "a problem here with stolen goods" and that A.R. aided and abetted the theft of items from the store. Though A.R. "submits that the facts tell a different story," we defer to the version of the facts the juvenile court found true. (See People v. Covarrubias (2016) 1 Cal.5th 838, 890 [a "reviewing court neither reweighs evidence nor reevaluates a witness's credibility"]; People v. Casillas (2021) 65 Cal.App.5th 135, 152 [we do "not reweigh evidence, reevaluate the credibility of witnesses, or resolve factual conflicts"]; In re M.S. (2019) 32 Cal.App.5th 1177, 1187 ["we defer to the juvenile court's express and implied findings of fact that are supported by substantial evidence"].)
A.R. also argues Deputy Carbajal's testimony "should be viewed skeptically." An appellate court, however, does not view trial testimony skeptically (or, for that matter, unskeptically). As discussed, credibility determinations are for the juvenile court. We defer to the juvenile court's finding that Deputy Carbajal's "statements were credible," "reliable," and "truthful." (See In re George T. (2004) 33 Cal.4th 620, 634 [reviewing court defers to the juvenile court's credibility determinations because the juvenile court, as the trier of fact, "is in a superior position to observe the demeanor of witnesses"].)
A.R. contends substantial evidence did not support the juvenile court's finding she aided and abetted a theft because "the items [she] tried to stop Hernandez from taking were not stolen." A.R. argues: "By the time [Hernandez] reached into the vehicle, she had already recovered the boxes of Ensure and the contents of the blue bag. Those items, which had not been on the conveyor belt, had not been paid for. But the only items described as being inside the car were the juice and the sodas, and those items had been paid for.... Thus, [A.R.'s] actions, made in an effort to retain those items, cannot have been an effort to retain stolen items."
A.R. is correct that Dante paid for the juice and soda A.R. put in the car and that she cannot have aided and abetted a theft of property that was not stolen. (See People v. Tufunga (1999) 21 Cal.4th 935, 948 ["someone cannot steal his own property"]; see also People v. Ammerman (1897) 118 Cal. 23, 26 ["[t]he ownership of the property in some person other than the accused is deemed to be as essential in making out the crime of robbery as any other element of the offense expressed in the statute"]; People v. Vice (1863) 21 Cal. 344, 345 ["It is not necessary that the property should belong to the party from whose possession it was forcibly taken. It is requisite, however, that it should belong to some other person than the defendant."].) But there were other items neither Dante nor anyone else had paid for, and the theft of those items was still in progress when A.R. attacked Hernandez. True, Hernandez for the moment had possession of those items, including the Ensure and the merchandise in the blue bag. But the situation in the parking lot was fluid: A.R. and the other members of the family were threatening to use force against Hernandez, and law enforcement had not yet arrived. Under these circumstances, the theft of the non-juice/soda items was ongoing, even though Hernandez, at the precise moment she reached into the car, had reclaimed the property.
A.R. argues in her reply brief that a "claim of right is applicable to [her] case because she had a good faith belief that the juice container and the sodas in the vehicle, which she tried to stop the assistant manager from taking, belonged to her cousins." By not making the argument in her opening brief, however, A.R. forfeited it. (See People v. Tully (2012) 54 Cal.4th 952, 1075 ["arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party"]; People v. Taylor (2020) 43 Cal.App.5th 1102, 1114 [arguments raised for the first time in a reply brief are forfeited].) A.R. explains she did not raise the issue in her opening brief because her attorney's initial understanding "of the claim-of-right defense was too limited...." But A.R. cites to no authority suggesting that an attorney's failure to think of an argument until his or her reply brief saves such "tardy arguments" (Taylor, at p. 1114) from forfeiture.
Finally, to the extent A.R. is suggesting substantial evidence did not support the juvenile court's finding she aided and abetted a theft because Hernandez was able to recover the stolen items after the struggle in the parking lot, the law does not support such a suggestion. That a store employee, security guard, or law enforcement officer is able to recover stolen property after the defendant has left the store does not mean the defendant did not commit a theft. "'Asportation of the property with the intention to appropriate it is sufficient to constitute larceny even though the property may subsequently be returned to the owner.... The fact that a thief is prevented by an officer from getting away with the property, or that he may change his mind and return the property to escape prosecution for the crime, does not relieve him from the consequences of the theft. [Citations.] . . . [T]heft may be committed when the accused persons, with a preconceived design to obtain and appropriate property by means of fraud or trickery, thereby gain possession of the property, even though they do not retain or use it for their own benefit.'" (People v. Shannon (1998) 66 Cal.App.4th 649, 656; see People v. Thompson (1958) 158 Cal.App.2d 320, 323 ["that a thief is frustrated in an attempt to carry away stolen property does not relieve him of responsibility for the theft"]; see also In re Aaron J. (2018) 22 Cal.App.5th 1038, 1059 ["'once there has been a taking, "it is no defense that the property taken was restored, even though this occurs almost immediately"'"].) The family had possession of the store's personal property when Dominique and Dante carried the items past the cash register, into the parking lot, and to the car. That was enough. (See People v. Davis (1998) 19 Cal.4th 301, 305 ["if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation"]; People v. Catley (2007) 148 Cal.App.4th 500, 505 [elements of theft by larceny are satisfied where "the defendant moved the property, even a small distance, and kept it for any period of time, however brief"]; Shannon, at p. 654 [element of asportation is satisfied where the goods are "'"'severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment'"'"].)
A.R. does not argue that, if anything, she committed the lesser included offense of attempted theft, rather than theft.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. FEUER, J.