Filed 6/28/13 In re K.C. CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re K.C., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

 Plaintiff and Respondent,

v.

K.C.,

 Defendant and Appellant.

 G047389

 (Super. Ct. No. DL043151)

 O P I N I O N

Appeal from orders of the Superior Court of Orange County, 

Gregory W. Jones, Judge. Affirmed.

Paul S. Berger, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, 
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Ifeolu E. Hassan and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * *

INTRODUCTION

The juvenile court found true allegations that K.C., then 16 years old (the 

minor), committed two counts of attempted robbery. We reject each of the minor‟s 

claims of error, and affirm the court‟s orders.

First, the minor argues there was insufficient evidence to support the 

juvenile court‟s true findings. We conclude, however, that there was substantial evidence 

of the minor‟s specific intent to rob the two victims, and of overt acts in furtherance of 

that intent.

Second, we find no error in the juvenile court‟s admission of evidence that 

a BB pistol was found in the minor‟s waistband when he was stopped by the police 

shortly after the attempted robberies. The minor‟s possession of a BB pistol was relevant 

to the issue of his intent.

Finally, the juvenile court‟s reference to an inference of innocence does not 

show the court violated the minor‟s constitutional rights by ignoring the presumption of 

innocence or shifting the burden of proof to the minor.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

About 1:00 a.m. on July 31, 2012, Maria C. was walking home from work; 

her son, Luis C., was walking his bicycle beside her. Two young men approached Maria 

and Luis. One of the young men, identified as the minor, was on a bicycle, while the 

other was on a skateboard. The minor asked Luis if he had a phone, and Luis replied, 

“no.” The minor then asked, “what is sticking out from your shirt?” Luis responded, 

“my earphones.” The minor then asked, “so you do have a phone?” Luis replied, “no. 
3

They are just earphones [for] listening to an MP3.” The minor again asked, “so you do 

have a phone?” Luis said, “no,” and showed the minor his iPod.

The minor asked, “[d]o you think I am stupid or something?” When Luis 

replied “no,” the minor said, “come over here and let me talk to you.” The minor let his 

bike fall to the ground as he got “more mad” and went toward Luis. Luis was scared. 

The minor called to the young man on the skateboard, saying something like, “come on, 

let‟s check this fool.” Maria placed herself between the minor and Luis, saying, “no, 

please.” Maria testified she was frightened.

Luis slipped as he was moving away, but got up quickly because he was 

scared the minor might grab him. Maria was screaming, and the minor moved back 

toward his bike. Maria told Luis to find help, and he got on his bike and rode away as 

fast as he could. As Luis rode away, the minor got on his own bike, and “quickly 

followed” Luis. Maria was scared, and was afraid the minor would hurt Luis; she ran 

after the minor, screaming, “leave him alone.” The minor then rode his bike toward 

Maria and demanded her phone, saying, “give it to me. Give it to me.” Maria told the 

minor she did not have a phone, and said, “I am sorry. No speak English.” The minor 

then walked away from Maria. When Maria caught up with Luis, he had called 911.

The parties stipulated that when the minor was arrested later the same 

night, a semiautomatic BB pistol was discovered tucked into his pants, with the pistol 

grip above the waistband. The minor‟s trial counsel objected to the evidence on the 

ground it was not relevant because there was no testimony either Luis or Maria saw the 

pistol. The juvenile court overruled the objection because the minor‟s possession of the 

BB pistol was relevant to the issues of intent and his state of mind.

A petition was filed to declare the minor a ward of the juvenile court, under 

Welfare and Institutions Code section 602, alleging the minor had committed two counts 

of second degree attempted robbery. (Pen. Code, §§ 211, 212.5, subd. (c), 664, 

subd. (a).) After a trial, the court sustained the allegations of the petition, and calculated 
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the maximum term of confinement to be three years eight months. At a separate 

disposition hearing, the court ordered that the minor would be adjudicated a ward of the 

court, and placed him on formal supervised probation with terms and conditions. The 

minor timely appealed. 

DISCUSSION

I.

INSUFFICIENCY OF THE EVIDENCE

The minor argues there was insufficient evidence to support the true 

findings on both attempted robbery counts. The same substantial evidence standard of 

review in adult criminal cases is applicable in juvenile dependency proceedings. (In re 

Roderick P. (1972) 7 Cal.3d 801, 809.) “In considering the sufficiency of the evidence in 

a juvenile proceeding, the appellate court „must review the whole record in the light most 

favorable to the judgment below to determine whether it discloses substantial evidence—

such that a reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt. We must presume in support of the judgment the existence of every fact the trier 

of fact could reasonably deduce from the evidence [citation] and we must make all 

reasonable inferences that support the finding of the juvenile court. [Citation.]‟” (In re 

Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) 

“An attempted robbery requires a specific intent to commit robbery and a 

direct, ineffectual act (beyond mere preparation) toward its commission. [Citations.]” 

(People v. Medina (2007) 41 Cal.4th 685, 694.) The minor argues there was insufficient 

evidence of a specific intent to rob either Luis or Maria, or of any overt acts to further 

that intent. We disagree.

There was substantial evidence supporting the juvenile court‟s finding that 

the minor had the specific intent to rob Luis and Maria of their cell phones. The minor 

repeatedly demanded a phone, first from Luis and then from Maria. The minor became 
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angry when he thought Luis was lying about not having a phone, approached Luis in a 

threatening manner, and called to his companion in an apparent show of force. Maria 

stepped between the minor and Luis to protect her son. When Luis rode off on his bike, 

the minor chased him. Both Maria and Luis were frightened by the minor‟s actions and 

statements. The minor was in possession of a BB pistol. 

There was also substantial evidence supporting a finding that the minor 

committed overt acts in furtherance of his intent to rob Maria and Luis. The minor used 

threatening language and actions to incite fear in both Maria and Luis. The minor moved 

toward Luis after he denied having a phone, and called to his companion to join him. As 

Luis was leaving the scene, the minor chased him on his bicycle. The minor then 

returned to Maria and demanded her phone. These unequivocal overt acts show the 

commencement of the commission of the intended crimes. (See People v. Luna (2009) 

170 Cal.App.4th 535, 543.) 

II.

EVIDENCE OF BB PISTOL

The minor argues the juvenile court erred by admitting evidence that he had 

a BB pistol in the waistband of his pants when he was stopped by the police shortly after 

his confrontation with Luis and Maria. We review the court‟s admission of evidence for 

abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) While the minor 

correctly notes that he did not brandish the BB pistol during his encounter with Maria and 

Luis, and there was no testimony that either Maria or Luis saw the BB pistol, it is 

nevertheless relevant to the issue of intent. The minor‟s possession of a BB pistol, to 

which he had ready access, has a tendency in reason to prove his intent in confronting 

Maria and Luis was to deprive them of their property. Despite the minor‟s argument to 

the contrary, his possession of a BB pistol was a circumstance surrounding the offense; it 

is a reasonable inference that the minor was in possession of the BB pistol when he 
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confronted Maria and Luis, given that it was found in his waistband when stopped by the 

police very shortly thereafter.1

III.

DID THE COURT APPLY AN INCORRECT STANDARD OF PROOF?

A bedrock principle of our legal system is the presumption of innocence, 

which is codified in Penal Code section 1096: “A defendant in a criminal action is 

presumed to be innocent until the contrary is proved, and in case of a reasonable doubt 

whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the 

effect of this presumption is only to place upon the state the burden of proving him or her 

guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: „It is not a 

mere possible doubt; because everything relating to human affairs is open to some 

possible or imaginary doubt. It is that state of the case, which, after the entire 

comparison and consideration of all the evidence, leaves the minds of jurors in that 

condition that they cannot say they feel an abiding conviction of the truth of the charge.‟” 

The minor argues that the juvenile court failed to adhere to the presumption 

of innocence in this case, requiring reversal of the court‟s orders. A claim that a criminal 

defendant‟s constitutional right to due process was violated, and that his or her trial was 

fundamentally unfair, is subject to de novo review. (People v. Albarran (2007) 149

Cal.App.4th 214, 225, fn. 7.)2 

 

1

 Although we conclude there was no error, even if there were error, it was 

harmless. Given the evidence supporting the court‟s true findings, detailed ante, it is not 

reasonably probable that a result more favorable to the minor would have been reached if 

the evidence of the BB pistol had been excluded. (People v. Watson (1956) 46 

Cal.2d 818, 836.) 

2

 Although the minor‟s trial counsel did not object to the juvenile court‟s 

comments, the constitutional argument is not forfeited. (People v. Thornton (2007) 41 

Cal.4th 391, 434, fn. 7.)
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The juvenile court found Maria and Luis to be “very credible” witnesses. 

Based on the evidence, the court was “convinced beyond a reasonable doubt as to the 

truthfulness of the allegations of both count 1 and count 2.” The court also made the 

following statements on the record: “I have not heard anything that supports an 

inference of innocence in regards to this conduct demonstrated by this minor. The 

normal person would have said, could I borrow your phone? I want to make a phone call. 

I am out of gas, I need to call home. Something that would have immediately created a 

lack of fear and a presentation of innocence in the mind of the person who hears this. 

And we don‟t have anything like that at all.” (Italics added.) The minor contends the 

italicized sentences show the juvenile court presumed the minor to be guilty and placed 

on him the burden of establishing his own innocence.

To the contrary, the statements quoted above show the juvenile court was 

following the law regarding circumstantial evidence of intent. Where proof of criminal 

intent is based completely or substantially on circumstantial evidence, and that evidence 

is susceptible of two reasonable constructions, one of which points to guilt and the other 

to innocence, the trier of fact must adopt the inference pointing to innocence. (People v. 

Merkouris (1956) 46 Cal.2d 540, 560-563; People v. Yokum (1956) 145 Cal.App.2d 245, 

253.) The juvenile court‟s statements reflect its consideration of whether any reasonable 

construction of the evidence before it could point to the minor‟s innocence. 

Moreover, when considered in the context of the closing arguments, the 

juvenile court‟s statements are in response to the minor‟s counsel‟s argument that the 

encounter between the minor and Luis and Maria was an innocent one, to which Luis and 

Maria overreacted. As the minor‟s appellate counsel stated at oral argument, if the 

juvenile court had prefaced the above quoted statements by remarking that a significant 

amount of evidence supported a finding of guilt, the comments regarding the lack of 

evidence supporting an inference of innocence would have been irrelevant. Even if we 
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construed the juvenile court‟s comments as failing to make the first statement, there is no 

constitutional error on this record.

DISPOSITION

The orders are affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.