Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV116120
OPINION
BLEASE, Acting P.J.
Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor A.C. was within the provisions of Welfare and Institutions Code section 602 in that she committed assault upon a school employee (Pen. Code, § 241.6; further undesignated statutory references are to the Penal Code) and unlawfully resisted, delayed or obstructed a peace officer (§ 148, subd. (a)(1)). She was placed on probation for six months under the supervision of the probation officer.
On appeal, the minor contends the assault adjudication is not supported by sufficient evidence of intent to commit an act that is likely to result in injury. We shall affirm the judgment.
FACTS
Prosecution case-in-chief
On May 9, 2006, at about 2:00 p.m., McClatchy High School Assistant Principal Andrew O’Neil got a call from a person at the in-house detention room requesting that the 15-year-old minor be removed from the room because she was not behaving. O’Neil had the person send the minor to his office so that he could suspend her from school.
The minor sat across from O’Neil’s desk while he tried without success to telephone the Children’s Home, where she resided. After about 10 minutes, she got up and walked out.
He told her not to leave, but she kept walking. He followed her and saw her go 30 yards or so down a hallway past some offices and a classroom that was in session. The whole time, O’Neil was behind the minor, saying, “Come back to my office.” She stopped at a locker but then continued down the hallway, yelling and cursing the whole way. Meanwhile, several people gathered in the hallway. Among them was Sacramento Police School Resources Officer Michael Frazer, who blocked the minor’s path and told her that her choices were to return to O’Neil’s office or leave campus. She replied that she would leave campus.
The minor turned and began to walk toward the front of the school with Officer Frazer following her. Then she turned left and started down another hallway. O’Neil got in front of her and said, “No, A., the front of the school is that way.” The minor’s demeanor was “out of control,” in that she was angry, upset, and “talking really loud.”
O’Neil extended his arms “perpendicular to the floor,” blocking her path, and said, “No, you can’t go down this hallway.” The minor, who was about two to three feet away, kept walking at a normal speed and walked into O’Neil’s left arm. Officer Frazer testified that the minor “tried to plow -- she actually did plow right into him.” The impact was “[n]ot hard.” O’Neil did not know where the minor was looking at the time.
O’Neil demonstrated his blocking position for the juvenile court. The prosecutor stated: “For the record the witness had both of his arms extended perpendicular to the floor extended.” The court responded that the “[r]ecord will so reflect.” The phrase “perpendicular to the floor” means vertical, not horizontal. (Webster’s New Collegiate Dict. (1979) p. 847.) It is unclear how effective O’Neil’s arms would be at blocking the minor’s path if they were extended vertically rather than horizontally. It is thus possible that the prosecutor meant to say “parallel to the floor” rather than “perpendicular.”
The minor pivoted and swung around, saying words to the effect of “Leave me alone or I will fucking hit you.” O’Neil testified that the minor “had a backpack she was swinging with.” Officer Frazer testified over objection that the minor “swung her backpack.” It is unclear whether the backpack was on the minor’s back or in her hand. Frazer interceded, said, “That’s it,” and grabbed the minor by the arm before the backpack impacted O’Neil. Frazer believed the minor was conducting an assault on O’Neil.
Officer Frazer testified that the minor told him, “Don’t fucking touch me.” As he tried to get her in a twist-lock, she flailed her arms and tried to spin out of his hold. Frazer switched to a different hold, in which her arms were secured behind her back. He walked her out the front of the campus.
Defense
The minor testified on her own behalf. She denied ever making contact with O’Neil, but she said that he grabbed the strap of her backpack. She tugged the backpack away from him, but she never swung it at him.
The minor claimed Officer Frazer gave her the options of going to the office or leaving campus, but, when she chose to go to the office, he said, “No, you’re not. You’re leaving campus.” She claimed she walked away from Frazer, went about 31 feet, and was on her way out the front door when he came around her, put his hand around the back of her neck, and pushed her against a wall. She did not fight back or try to get free. Nor did she know who was grabbing her until they got outside and she fell down the stairs. Frazer then said “get up” and kicked her in her mouth. He picked her up, handcuffed her, cut off her backpack and put her in the car.
The minor testified that she did nothing to get arrested. She denied physically running into O’Neil and testified that he never blocked her path. She further testified, “the only thing I’m guilty of, yes, I left the office when I didn’t have permission. Yes, I grabbed my backpack away from him.”
DISCUSSION
The minor contends the juvenile court violated her due process rights when it sustained the assault allegation even though there was insufficient evidence of any attempt to commit injury. She reasons that neither her physical confrontation with O’Neil, nor her oral statements after she bumped into him, is sufficient to constitute an assault. We are not persuaded.
“The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] Thus, the standard of appellate review as delineated in People v. Johnson (1980) 26 Cal.3d 557, 562, is applicable in considering the sufficiency of the evidence in a juvenile proceeding. This 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 Jose R. (1982) 137 Cal.App.3d 269, 275; parallel citations omitted.)
“‘To warrant rejection of a witness’ testimony that has been believed by the trier of fact, there must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.] Conflicts and even testimony subject to justifiable suspicion do not justify a reversal, for it is the exclusive province of the trier of fact to determine the credibility of a witness. [Citations.]’ [Citation.]” (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; accord, People v. Franz (2001) 88 Cal.App.4th 1426, 1447.)
Assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240, italics added.) Assault requires “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 785; but see People v. Wright (2002) 100 Cal.App.4th 703, 706 .)
In denying the minor’s motion to dismiss the assault charge at the close of the prosecution case (Welf. & Inst. Code, § 701.1), the juvenile court found that “the allegations have been proven beyond a reasonable doubt, at least as we sit at this point. [¶] . . . [¶] She doesn’t even have to run into his arms. Court is relying on Cal. Crim. 904[] which indicates that the terms ‘application of force’ and ‘apply force’ mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. [¶] Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] . . . [¶] The evidence in this case shows that she was obviously acting in a rude or angry manner. And the minute that she approached the Vice Principal shouting obscenities, including from the evidence that he testified to that she said, ‘If you don’t leave me alone I’m going to fucking hit you,’ at the same time as her touching and running into his arm, is enough to prove. So it’s not the backpack so much but the fact that she approached him and ran into his arm. [¶] I don’t think the backpack hit him. And in fact, the police officer testified that the backpack didn’t hit the Vice Principal, that he stepped in before.”
Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 904 provides in relevant part:
After the close of evidence and the parties’ summations, the juvenile court found: “The evidence as the Court has found did prove these allegation[s] beyond a reasonable doubt. They are technical violations, but nonetheless violations. [¶] The minor did testify. Had I found her testimony to be credible, then obviously neither of these crimes would have been proven beyond a reasonable doubt. For purposes of the record, I did not find the minor’s testimony to be credible. And based on the testimony of the Vice Principal and the police officer, again, although technical violations, nonetheless they are violations of the law.”
The minor argues “[t]he physical confrontation was not an assault,” because her conduct “did not involve actions likely to lead to injury.” However, she concedes that the requisite “‘injury to another’” is merely “‘a battery.’” (Quoting People v. Williams, supra, 26 Cal.4th at p. 786; see People v. Colantuono (1994) 7 Cal.4th 206, 214.) As the juvenile court noted, the slightest touching is sufficient for battery if done in a rude or angry way. (People v. Cox (2000) 23 Cal.4th 665, 674; Judicial Council of Cal. Crim Jury Instns. (2006-2007), CALCRIM No. 904; fn. 3, ante.) The juvenile court credited O’Neil’s testimony that the minor touched him in the requisite manner, and it rejected her contrary claim.
The minor notes that “[w]alking down a hallway, when one has been asked to leave,” is not an assault because it does not naturally and consequentially lead to a battery. But the evidence believed by the juvenile court showed that she did more than walk down the hallway.
Officer Frazer testified that O’Neil “stepped in front of [the minor] and she tried to plow -- she actually did plow right into him.” The words “tried to plow” support the finding that the minor’s act was intentional, even though it was O’Neil who first stepped into her path and not the reverse. (People v. Williams, supra, 26 Cal.4th at p. 785.) Although O’Neil testified that he did not know where the minor had been looking before the impact, the juvenile court was not required to speculate that she had been looking away from him while he was directly in front of her attempting to block her path. The minor chose to testify, but she did not claim that she collided with O’Neil because she had not seen him. Rather, she claimed there was no collision at all.
Because the court credited Officer Frazer’s testimony, the minor can prevail on appeal only by showing “either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions.” (In re Cheri T., supra, 70 Cal.App.4th at p. 1404.) But instead of showing that the evidence she “tried to plow” into O’Neil was impossible or false, the minor treats the evidence as if it did not exist. In her reply brief, devoted to the issue of intent, she argues “there is no evidence of an intent to commit any touching at all. There is no evidence that [she] intended to run into the vice-principal, Mr. O’Neil.” This does not satisfy the minor’s burden on appeal. (Ibid.)
Officer Frazer testified on cross-examination that he was looking at the minor from the back at the time of impact. When asked, “So you couldn’t actually see where she was looking when she ran into the Vice Principal, is that correct?” Frazer answered, “No.” (Italics added.) Because defense counsel did not pursue the point, we assume this ambiguous answer means that Frazer could not see where the minor was looking at the moment of impact. But defense counsel never established that Frazer would have been unable to deduce from all the circumstances that the minor “tried” to hit O’Neil.
Because there was substantial evidence that the minor’s physical confrontation with O’Neil constituted an assault, it is unnecessary to consider her argument that her oral statement was not an assault. The minor’s due process claim, based on insufficiency of evidence of assault, has no merit.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., BUTZ, J.
“The defendant is charged [in Count] with assault on a school employee. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, (he/she) had the present ability to apply force to a person; [¶] 5. When the defendant acted, (he/she) knew, or reasonably should have known, that the person assaulted was a school employee [and that (he/she) was performing (his/her) duties as a school employee]; [¶] [AND] [¶] 6. (When the defendant acted, the person assaulted was performing (his/her) duties[,]/ [or] (The/the) defendant acted in retaliation for something the school employee had done in the course of (his/her) duties)(;/.) [¶] [AND] [¶] 7. The defendant did not act (in self-defense/ [or] in defense of someone else).] “Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] [The touching can be done indirectly by causing an object [or someone else] to touch the other person.] [¶] [The People are not required to prove that the defendant actually touched someone.] [¶] The People are not required to prove that the defendant actually intended to use force against someone when (he/she) acted. [¶] No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was]. [¶] [Voluntary intoxication is not a defense to assault.] [¶] A school employee is any person employed as a permanent or probationary certificated or classified employee of a school district on a part-time or full-time basis, including a substitute teacher, student teacher, or school board member. [¶] [It is not a defense that an assault took place off campus or outside of school hours.]”