Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Shep A. Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed in part, and affirmed as modified.
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WILLHITE, J.
INTRODUCTION
Michelle A., a minor, appeals from the juvenile court’s order declaring her a ward of the court under Welfare and Institutions Code section 602, based on findings that she committed battery on a school employee (Pen. Code, § 243.6) and disturbed the peace of a school campus (Pen. Code, § 415.5). The court placed appellant home on probation.
All undesignated statutory reference are to the Welfare and Institutions Code.
In this appeal, appellant contends that (1) the evidence was insufficient to support the finding that she committed battery against a school employee, (2) the finding that she disturbed the peace of a school campus was erroneous because it punished as a separate offense actions that were part of the same course of conduct as the battery, and (3) the juvenile court erroneously declared appellant a ward of the court under section 602 because it assumed, incorrectly, that appellant was not eligible for informal probation under section 725, subdivision (a).
We agree that there was not substantial evidence to support the finding that appellant knew or reasonably should have known that the victim was a school employee. However, the evidence supports a finding that appellant committed the lesser included offense of battery. (Pen. Code, § 242.) On that basis we modify the wardship order to reduce the finding of battery against a school employee to simple battery. We further conclude that because appellant was enrolled as a student in the school at issue, she could not be found to have disturbed the peace there as a matter of statutory definition. (See Pen. Code, § 415.5, subd. (f).) We therefore reverse the order as to that finding. As to the third contention, we conclude that the court properly exercised its discretion in applying section 602 rather than section 725.
FACTUAL BACKGROUND
On May 26, 2006, in the lunch area of Manual Arts High School, security guard Monrue Brooks observed a group of female students beginning to fight and intervened to stop them. Appellant was in the group. Brooks testified that as he attempted to stop the fight, appellant “was touching me, maybe hitting me . . ., trying to get to the other girl.”
Assistant Principal Todd Engle arrived on the scene and observed appellant “trying to get Brooks to release her sister.” Engle saw appellant move toward Brooks with her arms raised as though to push him away from her sister, telling him to let her sister go. Following established school procedure, Engle approached appellant from behind, reached around her, and tried to pull her away from Brooks. Engle testified that appellant was very agitated and struggled to free herself for “a couple of minutes,” although he acknowledged “[i]t’s hard to judge time accurately in those situations.” Engle testified that “in the course of attempting to free herself, she struck my right jaw.” His jaw was sore afterward. Appellant continued to struggle and use profanity, but stopped when the school police sprayed her with pepper spray. Engle was also hit with the spray.
Appellant testified that she observed Brooks restraining her twin sister in his attempt to stop the fight, and appellant stepped in to politely tell him to release her. Appellant said that as she spoke to Brooks, “I didn’t [see] anybody. I just saw somebody coming behind me.” She said the person threw her onto a bench and then an Officer Gonzalez sprayed her with pepper spray.
DISCUSSION
I. Sufficiency of the Evidence to Establish Appellant Knew or Should Have Known the Victim Was a School Employee
Appellant argues that the record does not provide substantial evidence that appellant knew or reasonably should have known that the victim, Engle, was a school employee. We agree.
In reviewing a challenge to the sufficiency of evidence, an appellate court “‘consider[s] the evidence in a light most favorable to the judgment and presume[s] the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’” (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615.) Substantial evidence is that which is “reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’” (In re Arcenio V., supra, 141 Cal.App.4th at p. 616.)
Appellant was charged with violating Penal Code section 243.6, which allows for an enhanced disposition “[w]hen a battery is committed against a school employee engaged in the performance of his or her duties, or in retaliation for an act performed in the course of his or her duties . . . and the person committing the offense knows or reasonably should know that the victim is a school employee.” (Italics added.)
The record establishes that Engle was a school employee engaged in the performance of his duties. However, we conclude that there is insufficient evidence that appellant knew or reasonably should have known that the person with whom she struggled was a school employee. Engle testified that when he first came on the scene, he saw appellant trying to prevent the security guard from restraining her sister. Between this moment and his intervention, all of appellant’s attention, words and actions were directed at the guard, Brooks. Engle testified that he approached appellant from the back. Appellant likewise testified, “I just saw somebody coming behind me.” There is no evidence that appellant ever looked directly at Engle or identified him in any way. He did not testify that he said anything to her. The People did not present facts to establish the knowledge element of the charged crime, based upon which the court could reasonably infer that appellant knew or reasonably should have known that Engle was a school employee.
Respondent argues that appellant should have known Engle’s identity because a reasonable person would have expected another school employee to intervene during the two-minute struggle. However, before Engle intervened, the group included one employee and approximately four students. Because this group consisted primarily of students and the incident occurred in the lunch area, it would be equally reasonable for a person in appellant’s position to expect that another student was intervening in the fight – just as she had – rather than a school official.
Respondent also argues that “[t]he juvenile court could reasonably infer that appellant knew or reasonably should have known during the two minutes of the struggle that a school employee would try to assist another school employee in breaking up a fight on the school campus.” Respondent cites People v. Mathews (1994) 25 Cal.App.4th 89 to support this theory. There, police officers twice announced their presence to the defendant before defendant brandished a weapon. The appellate court found under those circumstances that “[i]f sufficient time elapsed, so that appellant was aware officers were in his house, he would have no right to brandish a weapon.” (Id. at p. 97.) Here, in contrast, there is no evidence that Engle identified himself to appellant in any way before the offense. Further, Engle’s statement that appellant struggled against him for approximately two minutes was qualified by the acknowledgement that “[i]t’s hard to judge time accurately in those situations.” The evidence concerning the passage of time here does not provide the substantial evidence needed to support the finding that appellant had the requisite knowledge.
In summary, there is no evidence that appellant recognized Engle, that Engle identified himself before the incident, or that the circumstances were such that appellant reasonably should have known that the person grabbing her was a school employee. Therefore, the finding that appellant violated Penal Code section 243.6 must be reversed.
An appellate court may reduce a disposition to a lesser included offense when it finds the evidence sufficient to support a lesser crime than that originally charged. (People v. Daly (1992) 8 Cal.App.4th 47, 57.) “‘“[W]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”’” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1742.) Here, simple battery (Pen. Code, § 242) is a necessarily included offense of battery against a school official. If the elements of battery were established, we may modify the order to reduce the finding of battery against a school employee to simple battery. As we shall next discuss, we conclude the evidence was sufficient to support the court’s finding that appellant committed battery.
II. Substantial Evidence Supports the Finding that Appellant Committed Battery
Appellant claims that there is insufficient evidence her act was willful, and therefore she did not commit battery. She contends her conduct was merely reckless, and did not rise to the level of willfulness necessary to support a finding of battery. We disagree.
Battery is “any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) Battery is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 217.) “As with all general intent crimes, ‘the required mental state entails only an intent to do the act that causes the harm . . . .’ (People v. Davis (1995) 10 Cal.4th 463, 519, fn. 15.) Thus, the crime of battery requires that the defendant actually intend to commit a ‘willful and unlawful use of force or violence upon the person of another.’ (§ 242; People v. Colantuono, supra, 7 Cal.4th at p. 217.) In this context, the term ‘willful’ means ‘simply a purpose or willingness to commit the act . . . .’ ([Pen. Code], § 7, subd. 1.) [¶] ‘Reckless conduct alone does not constitute a sufficient basis for . . . battery . . . .’ [Citation.] However, if an act ‘“inherently dangerous to others” . . . [is] done “with conscious disregard of human life and safety,” the perpetrator must be aware of the nature of the conduct and choose to ignore its potential for injury, i.e., act willfully. If these predicates are proven to the satisfaction of the trier of fact, the requisite intent is . . . established by the evidence. [Fn. omitted.]’ (People v. Colantuono, supra, 7 Cal.4th at p. 220, italics omitted, quoting People v. Lathus [(1973)] 35 Cal.App.3d [466] at pp. 469-470.)” (People v. Lara (1996) 44 Cal.App.4th 102, 107-108.)
Both Engle and security guard Brooks testified that appellant was already using force and violence by participating in a fight before the battery on Engle occurred. Engle testified that after he seized appellant, “she was very agitated and she did not calm down. She continued to struggle.” Engle said that appellant “was struggling to free herself and in the course of attempting to free herself, she struck my right jaw.” Instead of ceasing to fight when restrained, appellant chose to continue using force to free herself from Engle’s hold. The fact that there was no proof that appellant intended to hit Engle is immaterial; her continued struggle was a willful act and the blow he received was a likely result of that struggle. Engle’s position immediately behind appellant made it almost certain that she would strike him if she did not immediately stop moving. The fact that she chose to continue her forceful movements under these circumstances, and chose to ignore the potential for injury posed by her conduct, constituted substantial evidence of the criminal intent necessary to support a finding of battery.
The juvenile court had before it substantial evidence to establish the elements of battery. Accordingly, we modify the order to reduce the finding that appellant committed battery against a school employee to a finding that she committed simple battery.
III. Appellant Was Erroneously Found to Have Disturbed the Peace of a School Campus
Appellant was charged with violating Penal Code section 415.5 by disturbing the peace of a school campus. Subdivision (f) states that “This section shall not apply to any person who is a registered student of the school.” Appellant disturbed the peace at Manual Arts High School. However, she is a registered student at Manual Arts High School. As respondent correctly concedes, the exception stated in subdivision (f) applies to appellant. We therefore strike from the order the finding that appellant violated Penal Code section 415.5.
IV. The Court Exercised Its Discretion When Declaring Appellant a Ward of the Court (§ 602)
Appellant claims that the court declared her a ward of the court under section 602 because it assumed in error that informal probation under section 725 was not available after a hearing. She also claims that the court abused its discretion in choosing section 602 because she is the type of minor for which section 725 was designed. We disagree.
Both sections 602 and 725 are available after the hearing. Here, the record reveals that while the court initially questioned whether section 725 could be applied after the hearing, it resolved the uncertainty and considered both sections, ultimately deciding that because appellant had testified untruthfully, application of section 602 was more appropriate than section 725. The court thus properly exercised its discretion. Its consideration of appellant’s lack of credibility when testifying was a proper basis upon which to choose to apply section 602 over section 725. We will not disturb this result.
Section 602 provides: “[A]ny person who is under the age of 18 years when he or she violates any law of this state or of the United States . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”
DISPOSITION
The order is modified to reduce the charge of battery against a school employee to simple battery (Pen. Code, § 242), and to strike the finding that appellant disturbed the peace of a school campus. In all other respects, the order of wardship under section 602 is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
Section 725 provides: “After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows: [¶] (a) If the court has found that the minor is a person described by Section 601 or 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation.”