George B., In re

• Citation: 279 Cal.Rptr. 388,228 Cal.App.3d 1088
• Decision Date: 25 March 1991
• Docket Number: No. C008027,C008027
• Court: California Court of Appeals Court of Appeals
• Parties: In re GEORGE B., JR., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. GEORGE B., JR., Defendant and Appellant.

Page 388

279 Cal.Rptr. 388

228 Cal.App.3d 1088

In re GEORGE B., JR., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. GEORGE B., JR., Defendant and Appellant.

No. C008027.

Court of Appeal, Third District, California.

March 25, 1991.

Dissenting Opinion Modified March 26, 1991.

Review Denied June 20, 1991.

Richard L. Phillips, Burlingame, and Barbara Michel, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Michael Weinberger and W. Scott Thorpe, Supervising Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

The accomplice of George B., a minor, stole a bag of groceries from a shopping cart as the victim was pushing the cart in the parking lot of a market. The juvenile court sustained the allegation in a petition (Welf. & Inst.Code, § 602) that the minor committed grand theft from the person. (Pen.Code, § 487, subd. 2.) The minor, already a ward of the court, was continued in that status and committed to the California Youth Authority (CYA). The minor's parents were ordered to compensate the county for the reasonable costs of his support in the CYA and for the cost of legal services rendered to him at county expense. (Welf. & Inst.Code, §§ 903, 903.1.)

The minor alone appeals, contending (1) the evidence does not establish the elements of theft from the person; (2) the prosecution is bound by evidence it presented of the minor's allegedly exculpatory statements; and (3) the order requiring the minor's parents to pay costs for support and legal services is improper. None of these contentions has merit.

The victim, Shirley Ulbrich, drove into a supermarket parking lot with her son, Alex, her daughter Rachell, and her niece, Angela. Ulbrich noticed two boys standing near the store. Angela recognized one of them as Isaac, a boy with whom she went to school. The other boy was the minor. Angela did not know the minor's name but she recognized him as someone she had previously seen with Isaac. The minor is Isaac's brother.

When Ulbrich left the market she was pushing a shopping cart containing a bag of groceries she had purchased in the store. Isaac grabbed the bag from the cart and ran off with it toward a car parked in the lot. Ulbrich shouted to her son for help.

Alex saw Isaac running with the bag and gave chase. Isaac dropped the bag, ran to the parked car and got in. The minor was sitting in the driver's seat. The minor drove the car out of the parking lot.

Sheriff's Deputy Jackson interviewed the minor. The minor denied that he or his brother had been present when the theft occurred; he claimed they had been at a friend's house.

Sheriff's Deputy Trimble later arrested the minor for theft. The minor admitted to Trimble he had been present when the theft occurred and had been in the car; however, he denied he participated in the crime.

I

Penal Code section 487 provides in relevant part: "Grand theft is committed in any of the following cases: .... 2. When the property is taken from the person of another."

The minor, citing People v. McElroy (1897) 116 Cal. 583, 48 P. 718, contends the evidence does not establish that the theft was from the person of another. In McElroy the victim had removed his pants and was sleeping with his head resting on them as a pillow. His money was in his pants pocket. The defendant "abstracted" the pants and took the money. He was convicted of grand theft from the person. (Id. at p. 584, 48 P. 718.) The Supreme Court reversed, holding the theft was not from the person of another. (At pp. 586-587, 48 P. 718.) The court pointed out that theft from the person is a more serious crime than ordinary theft because of its potential to cause injury or death to the victim. But where the theft is from the victim's presence, not his person, the crime is only ordinary theft. (At pp. 584-586, 48 P. 718.) The court explained that the crime of theft from the person contemplates that "... the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession ... or ... held or carried in the hands, or by other means, upon the person; ... [the crime] was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands." (Id. at p. 586, 48 P. 718, emphasis added.)

McElroy is distinguishable on its facts. Ulbrich had not laid the grocery bag aside or abandoned control of it. She was actively carrying the bag, not in her hands to be sure but, as described in McElroy, "by other means," i.e., through the medium of the shopping cart with which, at the time of the theft, she was both in physical contact and control. Just as the shopping cart was "attached to [her] person" so also were its contents in precisely the same sense as are the contents of a purse which is stolen from the physical grasp of the victim. In McElroy, neither the money nor the pants were attached to or in the physical grasp of the slumbering victim. Although his head rested on the folded pants, he was neither holding nor carrying them or, perforce, the money. The circumstances in McElroy posed little or no threat of injury or death to the victim whereas in the instant case a theft from a cart in the victim's immediate grasp posed as real a threat of injury or death as a theft of the cart itself.

Other courts which have considered this issue have reached the same conclusion on similar facts. (See generally, 74 A.L.R.3d 271.) In Mack v. State (Tex.Cr.App.1971) 465 S.W.2d 941, the victim was in a store using a shopping cart. The defendant distracted her while his accomplice grabbed the victim's purse from the shopping cart and ran off. At the time of the theft, the victim's hand was on the cart. (At p. 941.) The jury was instructed under Texas law that "the theft must be from the person; it is not sufficient that the property be merely in the presence of the person from whom it is taken." (At p. 942.) The jury convicted defendant of theft from the person. Rejecting a challenge to the sufficiency of the evidence to support the verdict, the reviewing court reasoned: "The theft of the shopping cart under the circumstances presented would have been theft from person, therefore, it would be difficult to argue that theft of the purse from the cart upon which the complaining witness had her hand would not constitute theft from person." (At p. 942.)

In People v. Evans (1980) 44 Colo.App. 288, 612 P.2d 1153, the victim was pushing a shopping cart along the street. A car driven by the defendant stopped next to the victim and a woman got out and grabbed the victim's purse from the shopping cart. The woman returned to the car and defendant drove away. (612 P.2d at p. 1154.) Defendant was convicted of violating a Colorado statute condemning a taking "from the person of another." (612 P.2d at p. 1156.) The Colorado Court of Appeals, relying on the rationale of Mack v. State, supra, 465 S.W.2d 941, "conclude[d] that the taking of the purse from the cart which the victim was pushing, and which was under her control and in her present possession, constitutes taking 'from the person of another.' " (Evans, supra, 612 P.2d at p. 1156.) ¹

We hold that substantial evidence supports the court's finding sustaining the allegation the minor committed grand theft from the person.

II

The prosecution offered evidence of the two extrajudicial statements the minor made to the Sheriff's deputies. Citing People v. Toledo (1948) 85 Cal.App.2d 577, 193 P.2d 953, the minor argues that as they were exculpatory, the prosecution is bound by them.

In Toledo, the defendant was convicted of manslaughter. In his extrajudicial statements and testimony, defendant admitted that he killed the victim. Defendant's admissions were accompanied by the claim that the victim had first violently attacked him with a knife and that the killing had been committed in self-defense. (Id. at pp. 578-579, 581, 193 P.2d 953.) The defendant's admissions were the only evidence he killed the victim and the prosecution presented no evidence rebutting the defendant's claim of self-defense. (Id. at p. 581, 193 P.2d 953.) The reviewing court held the evidence insufficient to support the manslaughter conviction, because in the absence of contrary evidence, the prosecution was bound by the exculpatory evidence it had presented. (Id. at pp. 581, 582, 193 P.2d 953.) As acknowledged by the Toledo court, the rule applies only "... where there is no other competent and substantial evidence which could establish guilt." (People v. Acosta (1955) 45 Cal.2d 538, 542-543, 290 P.2d 1.)

Here, there was other evidence establishing the minor's guilt. The minor's flight from the scene of the crime occurred under circumstances which raise an inference of consciousness of guilt as well as an inference that he intentionally aided and abetted his brother, the actual thief. Moreover, the minor's statements are not, as he argues, "irreconcilable with guilt." In fact they raise an inference of consciousness of guilt. The falsity of the minor's first statement, in which he denied he was present at the crime scene, is demonstrated not only by eyewitness testimony but by his later admission that he was present. His accompanying denial of complicity is self-serving and is also contradicted by other evidence of his guilt.

To the extent the minor contends the evidence is insufficient to prove the criminal intent requisite to accomplice liability, the juvenile court could reasonably infer from the evidence that the minor was aware of Isaac's criminal act and specifically intended to aid his criminal design. (See People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606...