Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J35778
RIVERA, J.
B.H. appeals from an order of wardship (Welf. & Inst. Code, § 602, subd. (a)) upon a finding that he committed the misdemeanors of battery on a school employee (Pen. Code, § 243.6; count 1), simple battery (§ 242; count 2), and interfering with campus activity (§ 626.6, subd. (a); count 3). The minor contends that there is insufficient evidence to support the court’s finding as to count 2 for simple battery. We affirm.
All subsequent statutory references are to the Penal Code.
I. FACTS
On October 19, 2007, around 9:00 p.m., the Armijo High School in Fairfield held a school dance in its gym. The dance was restricted to students of the school.
Ann Neubert, an assistant principal, was working at the entrance to the dance when she saw the minor being escorted out of the gym by another assistant principal. Neubert, who was seven months pregnant, was wearing proper school identification and a jacket with the Armijo school colors and the Armijo administration logo on it. The minor attempted to return to the dance, but Neubert stood between him and the gym and told him that he had to leave the school campus. The minor continued to go toward the gym entrance as he tried to hand off something to a friend behind Neubert. The minor paid no heed to Neubert’s instructions to leave the school, but continued to move toward the gym until he got very close and stood over her in a threatening demeanor. Neubert told him to leave, then put her hand out, and backed up to give the minor some space. The minor smacked Neubert’s arm away.
Jackie Diaz, a parent volunteer who was selling tickets at the gym entrance, witnessed the confrontation between Neubert and the minor. Although Diaz did not see the minor hit Neubert, she did see the minor walk toward her and raise his arms, and believed he was going to hit her. Diaz then decided to intervene. She approached the minor, told him to leave the school, and put her arm on his upper arm. The minor turned around, slapped Diaz’s arm off, and said, “ ‘Don’t you F’ing touch me.’ ” The minor’s slap caused Diaz’s arm to bleed. The minor left the gym.
The minor testified that, after sneaking into the gym, he was asked to leave the dance. As the minor was leaving he tried to return a student I.D. to an acquaintance. Neubert, who was at the gym entrance, started to talk to the minor. The owner of the I.D. was standing behind Neubert. Neubert put her hand on the minor’s chest and the minor removed it. Diaz came up to the minor and told him he had to leave. The minor explained that he was just trying to return the I.D. and he would then leave. At that point Diaz grabbed the minor’s arm and the minor jerked his arm free. The minor left the gym and was arrested as he was walking away.
II. DISCUSSION
The minor contends that there is insufficient evidence to support the finding that he committed simple battery against Diaz. He asserts that it was Diaz who committed a battery by placing her arm on him and that he was, thus, acting in self-defense when he slapped Diaz’s arm away.
We review the trial court’s finding under the substantial evidence standard. (People v. Huggins (1997) 51 Cal.App.4th 1654, 1656.) Under this standard, we 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the trial court’s finding, we cannot reverse merely because a contrary finding might also be reasonably deduced from the circumstances. (People v. Redmond (1969) 71 Cal.2d 745, 755.) We will reverse only if it “clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].” (Ibid.)
Section 242 provides that a battery is committed when there is “any willful and unlawful use of force or violence upon the person of another.” California courts have recognized that “an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335.) Section 693 states that a party about to be injured may use “[r]esistance sufficient to prevent the offense.” Thus “[a] battery cannot be committed by acts done in self-defense.” (People v. Duchon (1959) 165 Cal.App.2d 690, 693.) However, “[i]f there is substantial evidence incompatible with the theory of [justification,] excuse[,] or mitigation, the [trier of fact] may consider all the evidence and determine whether the act amounted to unlawful [battery].” (People v. Chapman (1968) 261 Cal.App.2d 149, 177.)
Here, there is ample evidence to support the prosecution’s theory that the minor did not act in self-defense. Diaz saw the minor confront and position himself in a threatening manner in front of Neubert. Although Diaz did not see the minor hit Neubert, she did hear their confrontation and saw him raise his arms, and believed that the minor was going to hit Neubert. Diaz intervened to assist Neubert. She approached the minor, told him to leave the school, and put her arm on his upper arm. Her actions were justified as she was attempting to defend Neubert. (See § 692 [“Lawful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured; [¶] 2. By other parties.”].) Diaz’s efforts to defend Neubert did not constitute excessive force and were limited to putting her arm on the minor’s shoulder or upper arm. (People v. McKee (1968) 265 Cal.App.2d 53, 61.)
On these facts, the minor was not privileged to repel Diaz’s touching by slapping her arm away. The juvenile court, thus, properly found that the minor committed a battery.
III. DISPOSITION
The order is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.