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Filed 5/23/14 In re A.W. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In re A.W., a Person Coming Under the Juvenile 

Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

A.W.,

Defendant and Appellant.

C072616

(Super. Ct. No. 69198)

A.W. (the minor) forcibly removed a necklace from Jenny P.’s neck and ran away 

with it. Jenny’s boyfriend, Dylan, gave chase. When Dylan caught up to A.W. and 

demanded the necklace be returned, he was beaten and rendered unconscious by the 

minor and several of his friends. 

The minor was adjudicated a ward of the juvenile court (Welf. & Inst. Code, § 

602) based upon findings he committed the crimes of robbery and assault with force 
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likely to produce great bodily injury. (Pen. Code, §§ 211, 245, subd. (a)(4).)1 He was 

committed to juvenile hall for a period of 45 days, with 21 days credit for time served; an 

additional commitment of 90 days was suspended pending a successful school review. 

On appeal, the minor argues: (1) the evidence was insufficient to support the true 

findings for robbery and assault with force likely to produce great bodily injury; (2) the 

maximum term of confinement found by the juvenile court must be modified to reflect 

that any sentence imposed for the assault must be stayed pursuant to section 654; and (3) 

the juvenile court improperly imposed a $100 fine pursuant to Welfare and Institutions 

Code section 731 without finding an ability to pay.

We affirm. Substantial evidence supports the juvenile court’s findings the minor 

committed the crime of robbery when he forcibly removed Jenny’s necklace and 

committed the crime of assault with force likely to produce great bodily injury when he 

and his friends beat Dylan to the point of unconsciousness. Section 654 does not apply to 

reduce the maximum term of confinement because the robbery and the assault were 

committed against separate victims. And the minor’s claim the juvenile court improperly 

imposed the $100 fine without finding an ability to pay is forfeited because the minor 

failed to object to this fine when it was imposed. 

FACTS

On January 25, 2012, around 3:20 p.m., Jenny and Dylan were walking together 

near Edison High School in Stockton. Jenny’s friend, K., was also there. Jenny and K. 

attended Edison; Dylan attended McNair High School. As the threesome walked past a 

larger group, who also appeared to be “high school age,” the minor emerged from the 

group and grabbed Jenny’s necklace from around her neck. The force of the pull caused 

the necklace to break, but not before creating a red ligature mark on her neck. As the 

 

1 Undesignated statutory references are to the Penal Code. 
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minor ran off with the necklace, Jenny yelled: “Ow, babe, my necklace.” This prompted 

Dylan to take off his jacket and chase after the minor. The minor’s group “backed him 

up.” One member of the group stepped in front of Dylan and “hit [him] with his 

shoulder.” When Dylan continued his pursuit, other members of the group chased after 

Dylan, saying, “let’s go, let’s go.” 

Dylan caught up to the minor a short distance away and demanded: “Give me the 

necklace back.” Unfortunately, the rest of the minor’s group also caught up to Dylan and 

began hitting him from behind. Dylan fell to his knees. At this point, the minor hit 

Dylan in the face with an open fist, causing him to fall to the ground. The minor and 

others in the group then “stomped” Dylan while he was on the ground. He could not tell 

how many people kicked him because he “blacked out.” When Dylan regained 

consciousness, he was surrounded by people who were trying to help him. An ambulance 

arrived a short time later and took him to the hospital. 

The next day, Jenny, Dylan, and K. each identified the minor as the perpetrator in 

separately administered photo lineups. They also positively identified him during the 

jurisdictional hearing. 

DISCUSSION

I

Sufficiency of the Evidence

The minor contends the evidence was insufficient to support the true findings for 

robbery and assault with force likely to produce great bodily injury. We disagree. 

“ ‘The standard of proof in juvenile proceedings involving criminal acts is the 

same as the standard in adult criminal trials.’ [Citation.] Thus, ‘we must apply the same 

standard of review applicable to any claim by a criminal defendant challenging the 

sufficiency of the evidence to support a judgment of conviction on appeal. Under this 

standard, the critical inquiry is “whether, after reviewing the evidence in the light most 
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favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” [Citation.] An appellate court “must 

review the whole record in the light most favorable to the judgment below to determine 

whether it discloses substantial evidence—that is, evidence which is reasonable, credible, 

and of solid value—such that a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt.” [Citations.]’ ” (In re Cesar V. (2011) 192 Cal.App.4th 989, 

994, quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371; People v. Johnson (1980) 

26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 

572-574].) 

With these legal principles in mind, we address and reject each of the minor’s 

sufficiency of the evidence claims. 

A.

Robbery

1. Identification

The minor challenges the sufficiency of the evidence establishing he was the one 

who took Jenny’s necklace, arguing, “there were too many inconsistencies to render the 

testimony of Jenny and [K.] and Dylan sufficiently reliable under the standards discussed 

above.” He is mistaken. 

Jenny and K. each identified the minor as the person who took the necklace in 

separate photo lineups and also positively identified him during the jurisdictional hearing. 

Jenny testified the minor was standing in a group of about 10 teenagers when she first 

saw him. As she walked past with Dylan and K., Jenny “had a feeling something was 

next to [her]” and turned around. At this point, she saw the minor grab her necklace and 

run off with it. He was wearing a gray hooded sweatshirt with white stripes. The hood 

was pulled over his head, but she could see his face “a little bit.” Jenny also testified she 

believed K. yelled out the minor’s name when he took the necklace. Dylan chased after 
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the minor in an attempt to retrieve Jenny’s necklace. K.’s testimony paralleled that of 

Jenny. The minor was standing in a large group before he took the necklace. He was 

wearing a hooded sweatshirt. After he took the necklace, Dylan chased after him. On 

direct examination, K. testified she did not remember whether or not the hood was pulled 

over the minor’s head, but she did remember being able to see his face. During crossexamination, K. initially testified the hood was over his head, but then said she did not 

remember. She remained firm that she could see his face. K. did not remember the color 

of the sweatshirt. She further testified she told Jenny the minor’s name after he took the 

necklace, but denied yelling out his name when he took it. 

Dylan did not see the minor take the necklace. He heard Jenny say, “Ow, babe, 

my necklace,” and then chased after the minor, who was running away. It was not until 

Dylan caught up to the minor a short distance away that he saw the minor’s face. Dylan 

testified the minor was wearing a black hooded sweatshirt with the hood pulled over his 

head and the strings drawn tightly around his face. Despite the fact the minor’s face was 

mostly covered, Dylan “saw his eyes.” After demanding the necklace be returned, Dylan 

was hit from behind by several of the minor’s friends. The minor then participated in the

beating that sent Dylan to the hospital. Like Jenny and K., Dylan identified the minor 

both in a photo lineup and during the jurisdictional hearing. 

The foregoing evidence is more than substantial. “[T]he testimony of a single

witness is sufficient for the proof of any fact.” (People v. Richardson (2008) 43 Cal.4th 

959, 1030-1031.) Here, we have two witnesses who identified the minor as the person 

who grabbed Jenny’s necklace and ran off with it. Jenny and K. further testified Dylan 

chased after the minor. While Dylan did not see the minor take the necklace, he 

identified the minor as the person he chased after and who assaulted him with the help of 

several others. The few inconsistencies in the testimony of these witnesses do not render 

the evidence insubstantial. “[T]o entitle a reviewing court to set aside a finding of guilt 
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the evidence of identity must be so weak as to constitute practically no evidence at all. 

[Citations.] The strength or weakness of the identification, the incompatibility of and 

discrepancies in the testimony, if there were any, the uncertainty of recollection, and the 

qualification of identity and lack of positiveness in testimony are matters which go to the 

weight of the evidence and the credibility of the witnesses and are for the observation and 

consideration of the trier of fact, whose determination will stand unless the testimony is 

inherently incredible. [Citations.]” (In re Corey (1964) 230 Cal.App.2d 813, 825-826; 

People v. Mohamed (2011) 201 Cal.App.4th 515, 522.) 

Nor are we persuaded by the minor’s argument that “the identifications overall 

were tainted and therefore unreliable.” The minor points out K. either “yelled out [his] 

name” when the necklace was taken or “told Jenny who the robber was” as they walked 

back to Edison after the incident occurred, but does not explain how this would 

undermine their subsequent identifications. Jenny, K., and Dylan picked the minor out of 

a photo lineup that did not include his name. The identifications were not tainted. 

2. Use of Force

In a related argument, the minor contends the robbery finding “may not stand” 

because “the force that was used to take Jenny’s necklace was only that which was 

required to complete the taking and no more.” Not so. 

This case is analogous to the situation in People v. Lescallett (1981) 123 

Cal.App.3d 487, in which the defendant ran up to the victim and forcefully removed a 

purse from her hand. The Court of Appeal held the evidence to be “sufficient to support 

[the jury’s] verdict of robbery,” explaining: “We note initially that: ‘ “The degree of 

force used is immaterial. All the force that is required to make the offense a robbery is 

such force as is actually sufficient to overcome the victim’s resistance . . . .” ’ [Citation.] 

[¶] The nonconsensual snatching of a purse has been held to entail such force as to 

permit a jury to return a verdict of robbery. ‘Where property is snatched from the person 
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of another . . . the crime amounts to robbery.’ [Citations.]” (Id. at p. 491; see also People 

v. Roberts (1976) 57 Cal.App.3d 782, 787 [robbery conviction supported by substantial 

evidence where “purse was grabbed with such force that the handle broke”], overruled on 

another point in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4, in turn superseded by 

statute as stated in People v. Olmedo (1985) 167 Cal.App.3d 1085, 1095–1096.) Here, 

Jenny’s necklace was taken with enough force to break it against her neck, causing a red 

ligature mark. The juvenile court’s implied finding the necklace was taken by force is 

supported by substantial evidence.2 

B.

Assault with Force Likely to Produce Great Bodily Injury

The minor also challenges the sufficiency of the evidence establishing he assaulted 

Dylan with force likely to produce great bodily injury, arguing: “It cannot be said that 

[the act of] slapping Dylan with an open hand should be able to be construed as the kind 

of act that could result in great bodily injury.” Acknowledging “one or more of [his] 

group of friends attacked Dylan from behind,” he argues, “there was no evidence that any 

of these boys used anything but their hands and feet” and “there was no evidence of a 

conspiracy or agreement of any kind between [the minor] and these boys that the boys 

should attack Dylan when he ran up to [the minor] and demanded that the necklace be 

returned.” We are not persuaded. 

“That the use of hands or fists alone may support a conviction of assault ‘by 

means of force likely to produce great bodily injury’ is well established . . . .” (People v. 

Aguilar (1997) 16 Cal.4th 1023, 1028.) Whether the use of hands or fists “would be 

likely to cause great bodily injury is to be determined by the force of the impact, the 

 

2 This conclusion makes it unnecessary to address the minor’s contention the assault 

on Dylan cannot be used to support both the force element of robbery and the separate 

crime of assault with force likely to produce great bodily injury. 
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manner in which it was used and the circumstances under which the force was applied.” 

(People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) While not conclusive, the 

fact that an assault actually results in great bodily injury, i.e., “bodily injury which is 

significant or substantial, not insignificant, trivial or moderate,” is highly probative on the 

issue of whether the force used was likely to produce such injury. (Id. at p. 748.) 

Here, the minor actively participated in a group beating that sent Dylan to the 

hospital. After members of the minor’s group hit Dylan from behind and knocked him to 

his knees, the minor hit Dylan in the face with an open fist and, along with other group 

members, kicked Dylan until he lost consciousness. There can be no doubt the beating as 

a whole was likely to produce―and did in fact produce―great bodily injury. Moreover, 

even if we were to agree with the minor that his contribution to the assault, in and of 

itself, was not likely to produce great bodily injury, he nevertheless “aid[ed] or abet[ted]

the crime [and] may be found guilty of an assault by means of force likely to produce 

great bodily injury” on that basis. (People v. Brown (1980) 110 Cal.App.3d 24, 34.) 

Substantial evidence supports the finding the minor committed the crime of assault with 

force likely to produce great bodily injury.3 

II

Section 654

The minor also claims the maximum term of confinement found by the juvenile 

court must be modified to reflect that any sentence imposed for the assault must be stayed 

pursuant to section 654. We disagree. 

 

3 This conclusion makes it unnecessary to address the minor’s claim the assault 

finding “may not stand as it is a ‘lesser included offense’ of robbery.” This claim is 

premised on the theory the assault on Dylan was not accompanied by force likely to 

produce great bodily injury, but was instead a simple battery. It is also premised on the 

theory the assault on Dylan was the application of force that transformed a petty theft into 

a robbery. We have rejected both theories. 
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Section 654, subdivision (a), provides in relevant part: “An act or omission that is 

punishable in different ways by different provisions of law shall be punished under the 

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision.” 

This section “prohibits punishment for two crimes arising from a single indivisible 

course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the 

means of accomplishing or facilitating one objective, a defendant may be punished only 

once. [Citation.] If, however, a defendant had several independent criminal objectives, 

he may be punished for each crime committed in pursuit of each objective, even though 

the crimes shared common acts or were parts of an otherwise indivisible course of 

conduct. [Citation.] The defendant’s intent and objective are factual questions for the 

trial court, and we will uphold its ruling on these matters if it is supported by substantial 

evidence. [Citation.]” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525; People v. 

Latimer (1993) 5 Cal.4th 1203, 1208, 1216-1217; People v. Correa (2012) 54 Cal.4th 

331, 341.) 

In People v. Miller (1977) 18 Cal.3d 873 (Miller), overruled on another ground as 

stated in People v. Oates (2004) 32 Cal.4th 1048 at pages 1067-1068, footnote 8, the 

defendant was convicted of first degree robbery, first degree burglary, and assault with a 

deadly weapon. (Miller, supra, 18 Cal.3d at p. 877.) He and an accomplice entered a 

jewelry store with the intent to steal jewelry. While the accomplice was being helped by 

the sales clerk, the defendant approached the security guard, announced the purpose of 

their visit, and attempted to pull a gun. A struggle for the gun ensued. The defendant 

shot the security guard. The accomplice also pulled a gun and ordered the clerk onto the 

floor. The robbers then broke into two display cases and made off with a substantial 

amount of jewelry. (Id. at pp. 878-879.) Applying the foregoing intent and objective 

test, our Supreme Court explained: “It appears clear . . . that in the instant case [the] 
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defendant entertained but a single criminal objective―to commit a theft of the contents 

of the jewelry store―and that those acts which constituted the burglary, the robbery and 

the assault were performed only as incidental objectives to that principal objective.” (Id. 

at p. 885.) Nevertheless, the court held the defendant could be separately punished for 

the burglary and the robbery because each was a violent crime committed against a 

separate victim, i.e., the robbery was committed against the sales clerk and the burglary 

was committed against the security guard. (Id. at pp. 885-886.) Punishment for the 

assault, however, was precluded by section 654 because “[t]hat crime was committed 

during the same course of conduct and against the same victim as in the case of the 

aggravated burglary conviction.” (Id. at p. 886.) 

Here, it appears the minor entertained a single criminal objective―to steal a

necklace―when he forcibly removed the necklace from Jenny’s neck and ran off with it 

(the robbery) and then joined in a group beating of Dylan to effect his escape with the 

property (the assault with force likely to produce great bodily injury). We note there is a 

point at which the amount of force used in a subsequent assault “may evince ‘a different 

and a more sinister goal than mere successful commission of the original crime,’ i.e., an 

independent objective warranting multiple punishment.” (People v. Perry, supra, 154 

Cal.App.4th at p. 1527; see also People v. McGahuey (1981) 121 Cal.App.3d 524, 528-

529 [multiple punishment permissible for burglary in which money and hatchet stolen 

from home and assault with a deadly weapon in which defendant threw hatchet through 

window from outside house at victim who was calling police].) However, we need not 

determine whether that point was reached in this case. Like Miller, supra, 18 Cal.3d 873, 

the minor may be separately punished for the robbery and the assault because each was a 

violent crime committed against a separate victim, i.e., the robbery was committed 

against Jenny and the assault was committed against Dylan. Section 654 does not apply 

to reduce the maximum term of confinement. 
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III

Forfeiture

Finally, we conclude the minor’s claim the juvenile court improperly imposed a 

$100 fine pursuant to Welfare and Institutions Code section 731 without finding an 

ability to pay is forfeited because the minor failed to object to this fine when it was 

imposed. 

“In order to encourage prompt detection and correction of error, and to reduce the 

number of unnecessary appellate claims, reviewing courts have required parties to raise 

certain issues at the time of sentencing. In such cases, lack of a timely and meaningful 

objection forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351; see 

also In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating the correct legal term for loss 

of right based on failure to assert it in a timely fashion is forfeiture, not waiver].) This 

forfeiture doctrine applies to claims of sentencing error asserted by both the People and 

the defendant. (People v. Tillman (2000) 22 Cal.4th 300, 303.) “Thus, all ‘claims 

involving the trial court’s failure to properly make or articulate its discretionary 

sentencing choices’ raised for the first time on appeal are not subject to review.” (People 

v. Smith (2001) 24 Cal.4th 849, 852.) However, there is a “narrow exception” to this 

forfeiture rule for sentences that are unauthorized or entered in excess of jurisdiction:

“Because these sentences ‘could not lawfully be imposed under any circumstance in the 

particular case’ [citation], they are reviewable ‘regardless of whether an objection or 

argument was raised in the trial and/or reviewing court.’ [Citation.]” (People v. Smith, 

supra, 24 Cal.4th at p. 852.) Our Supreme Court has “deemed appellate intervention 

appropriate in these cases because the errors presented ‘pure questions of law’ [citation], 

and were ‘clear and correctable’ independent of any factual issues presented by the 

record at sentencing.’ [Citation.] In other words, obvious legal errors at sentencing that 
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are correctable without referring to factual findings in the record or remanding for further 

findings are not [forfeited].” (Ibid.) 

In People v. McCullough (2013) 56 Cal.4th 589, our Supreme Court held the 

defendant forfeited his challenge to the sufficiency of the evidence supporting the finding 

he had the ability to pay a jail booking fee by failing to object in the trial court. (Id. at pp. 

591, 598.) “Defendant may not ‘transform . . . a factual claim into a legal one by 

asserting the record’s deficiency as a legal error.’ [Citation.] By ‘failing to object on the 

basis of his [or her] [ability] to pay,’ defendant forfeits both his [or her] claim of factual 

error and the dependent claim challenging ‘the adequacy of the record on that point.’ 

[Citations.]” (Id. at p. 597; see also People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 

[“defendant should not be permitted to assert for the first time on appeal a procedural 

defect in imposition of a restitution fine, i.e., the trial court’s alleged failure to consider 

defendant’s ability to pay the fine”]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 

[failure to object to a crime prevention program fine forfeits the claim the trial court 

failed to consider ability to pay the fine and the record did not support such an ability]; 

People v. Valtakis (2003) 105 Cal.App.4th 1066, 1070-1072, 1076 [defendant forfeited 

claim that, while the probation report recommended a $250 probation fee, neither the 

probation officer nor the trial court expressly found an ability to pay].) 

Here, the juvenile court imposed a $100 fine pursuant to Welfare & Institutions 

Code section 731, subdivision (a)(1), which provides the juvenile court with discretion to 

“[o]rder the ward to make restitution, to pay a fine up to two hundred fifty dollars ($250) 

for deposit in the county treasury if the court finds that the minor has the financial ability 

to pay the fine, or to participate in uncompensated work programs.” Whether the minor 

possesses an ability to pay the $100 fine is a factual issue. Failure to object to imposition 

of the fine on this basis forfeits the issue on appeal. 
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DISPOSITION

The judgment is affirmed. 

 HOCH , J.

We concur:

 MURRAY , Acting P. J.

 DUARTE , J.