Opinion
E054413
02-14-2013
In re P.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.T., Defendant and Appellant.
Patrick McKenna, 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, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIJ1100839)
OPINION
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed with directions.
Patrick McKenna, 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, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
The minor, P.T., appeals after the juvenile court adjudicated her a ward of the court, following a true finding that the minor had violated Penal Code section 245, subdivision (a)(1), assault with a deadly weapon. The minor raises contentions that the evidence was insufficient to support the true finding on the charge, the juvenile court improperly failed to consider the applicability of a lesser included offense, the trial court failed to make a determination whether the offense was a felony or a misdemeanor, and one of the minor's probation conditions should be modified. We affirm the judgment, but agree the matter must be remanded to specify whether the offense is a felony or misdemeanor. As to the challenged probation condition, we find that the trial court spoke in error and imposed no such condition.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In June of 2011, the 14-year-old minor had run away from home and been missing for about a week when she was taken into custody by the police. The minor's mother came to the police station, and took the minor home.
Once at home, the minor went into her bedroom and began putting her clothes into a backpack. She kept telling her mother that she wanted to leave. The minor's mother did not want the minor living on the streets; she said she would take the minor to live with the maternal grandmother. The minor argued angrily with her mother. The minor did not want to live with her grandmother, she wanted to go live with her friends.
The minor's mother attempted to take the minor's backpack, to prevent her from leaving. The minor pushed her mother and grabbed her mother's wrists. Her mother complained that the minor was hurting her, and the minor let her go.
Another person in the house, Joy Hurtado, heard the scuffle or commotion, and came into the minor's bedroom. Hurtado told the minor to stop, and that she would not let the minor hurt her mother. Hurtado attempted to restrain the minor, they struggled, and eventually Hurtado got the minor on the floor. The minor's mother asked Hurtado to leave the room, which she did.
The minor's mother took the minor's backpack into her own bedroom. The minor was very upset. She went into the living room and picked up a pair of scissors that had been on top of the television set. While her mother blocked the back door, to prevent the minor from leaving, the minor held the scissors in her hand, up next to her head, with the blades pointed at her mother. The minor repeatedly told her mother to open the door. The minor's brother came into the room, grabbed the minor's wrists, and wrested the scissors away from her. He tossed the scissors into the bathroom and pushed the minor onto the bed. The minor threatened to have her friends come and kill the family.
The brother asked the minor what she intended to do with the scissors; the minor responded that she wanted to leave. The minor's brother told their mother she should just let the minor leave. Someone had apparently called the police, however, because a deputy sheriff arrived and detained the minor just as she was leaving the house. The deputy found a broken lamp in the den, and interviewed the minor's mother and brother. The minor's mother signed a private arrest application, so the deputy arrested the minor and took her to juvenile hall.
At the detention facility, the minor waived her constitutional rights and made a statement. She told the deputy that she was upset when she returned home. Her mother told her that she was going to be sent to live with her grandmother, and her possessions had already been packed into boxes. The minor also told the deputy that another woman at home had assaulted her. The minor described picking up the scissors, and said that everyone had backed up when she did that. The minor picked up the scissors because she felt cornered, and no one was letting her leave. The minor denied threatening to have her friends come and kill the family.
At the juvenile court hearing, the minor's mother testified that she thought the minor only wanted to scare her with the scissors, so she would open the door and allow the minor to leave. She stated that she did not think the minor was going to hurt her with the scissors. She emphasized that the minor never swung the scissors at her, and testified that the minor did not wave or point the scissors at her, she did not come near her with the scissors, and did not threaten to hurt her with the scissors. The minor's brother testified that he was not afraid for his mother's safety and did not see the minor make any motions with the scissors. However, he did take the scissors away "as a precaution," in case the minor "did something stupid."
The district attorney had filed a petition alleging that the minor had committed an assault with a deadly weapon (§ 245, subd. (a)(1)), and had made a criminal threat (§ 422). The juvenile court dismissed the criminal threat allegation, but sustained the petition as to the allegation of assault with a deadly weapon. The court declared the minor a ward of the court and placed her on probation, on certain terms and conditions, among which was a minimum term of confinement of 47 days, and a maximum term of confinement of 94 days.
The minor filed a timely notice of appeal.
ANALYSIS
I. Substantial Evidence Supported the Finding That the Minor Assaulted Her Mother
With the Scissors
The minor first contends that the evidence was insufficient to support a true finding that the minor committed an assault with a deadly weapon on her mother. The minor argues that "the prosecution failed to provide sufficient evidence that an assault occurred since Minor did not commit an act that directly and probable could result in the application of force."
We disagree. The minor improperly emphasizes only the evidence in her own favor, e.g., testimony that the minor merely held the scissors, and did not wave the scissors toward her mother, and the mother's trial testimony that she did not think the minor would hurt her with the scissors. She also makes much of the mother's testimony that the minor was seven or eight steps away when the minor held the raised scissors.
The minor's contention stands the standard of review on its head. As a reviewing court, we are required to view the evidence in the light most favorable to the judgment, not, as the minor does here, in the light most favorable to the appealing party. (See People v. Valdez (2004) 32 Cal.4th 73, 104 [When considering a challenge to the sufficiency of the evidence to support a conviction, the appellate court reviews the entire record in the light most favorable to the judgment.].) We do not reweigh the evidence or reassess the credibility of the witnesses. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
Reviewing the matter under the appropriate standard of review, we conclude that the evidence was more than sufficient to support a true finding. The minor did not "merely hold" the scissors without moving. She raised and held them upright, near her ear; that is an attitude of readiness to strike. The blades were pointed toward her mother. The minor was plainly angry. While some testimony estimated that the minor was seven or eight steps away from her mother (purportedly a distance too great from which to strike), her brother's evidence was to the effect that the minor stood only two to three feet away from her mother, a closer distance from which to strike. Despite the minor's contention to the contrary, the brother's evidence was not inherently improbable and, in either case, the mother was in a zone of immediate danger. The minor admitted to the deputy in her interview that everyone "backed up" when she displayed the scissors. Despite the testimony of the minor's brother that he did not fear for his mother's safety, his actual conduct belies that testimony. He grabbed the minor's wrists, took the scissors forcibly away from her, and tossed them out of the minor's reach. The actual subjective fear or lack of fear of the victim, or the injury or lack of injury to the victim, are not elements which must be proven to convict an accused of assault with a deadly weapon. (People v. Griggs (1989) 216 Cal.App.3d 734, 739, 742.) All the evidence, viewed in the light most favorable to the judgment, supports the conclusion that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (See People v. Lindberg (2008) 45 Cal.4th 1, 27.)
The elements include: the general intent to willfully commit an act the direct, natural and probable consequences of which, if successfully completed, would be the injury to another; the awareness of facts that would lead a reasonable person to realize that the act would result in physical force being applied to another person; and the present ability to apply such physical force on another. (People v. Miller (2008) 164 Cal.App.4th 653, 662-663.)
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The minor's argument to the contrary relies heavily on People v. Dodel (1888) 77 Cal. 293. Her reliance on this early case is misplaced, however. For one thing, Dodel involved an alleged error in the instructions, not the sufficiency of the evidence. (Id. at p. 294.) For another, the defendant in Dodel was moving away from the potential victim and was never near enough to strike. (Ibid.) In addition, the "present ability" element of assault "is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.] In this context, however, 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (People v. Chance (2008) 44 Cal.4th 1164, 1168, fn. omitted, italics added.) The minor here also raised the scissors in a threatening manner, a factor which was absent in Dodel. Dodel provides no support for the minor's argument that the evidence was insufficient to sustain the true finding here.
II. Remand Is Not Required to Consider a Lesser Offense of Brandishing a Weapon
The minor next contends that, if this court finds substantial evidence supports the juvenile court's true finding on the charged offense, remand is nevertheless required, to permit the juvenile court to properly consider brandishing a weapon as a lesser included offense. The minor points to the trial court's remark, during closing arguments, that the minor was not charged with brandishing. The minor argues that the court's remark demonstrates that the juvenile court did not properly consider lesser, necessarily included offenses in determining the minor's guilt.
The People respond that brandishing a weapon is not a necessarily lesser included offense of assault with a deadly weapon. The People advert to the two general tests for determining whether one offense is a necessarily included lesser offense to another: the statutory elements test (People v. Lopez (1998) 19 Cal.4th 282, 288-289), and the accusatory pleading test (People v. Reed (2006) 38 Cal.4th 1224, 1227).
Under the statutory elements test, we see that the elements of the greater offense, assault with a deadly weapon, are: "(1) The defendant did an act with a deadly weapon ... that by its nature would directly and probably result in the application of force to a person; (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; (2) The defendant did that act willfully; and (4) When the defendant acted, (he/she) had the present ability to apply force . . . with [the] deadly weapon . . . ." (CALCRIM No. 875; see also People v. Golde (2008) 163 Cal.App.4th 101, 121.) "Brandishing a weapon," a violation of section 417, "may be committed by drawing or exhibiting a weapon in a rude, angry, or threatening manner." (People v. Booker (2011) 51 Cal.4th 141, 189.) An assault with a deadly weapon may be committed without drawing or exhibiting a weapon, and it does not require that a weapon be displayed in a rude, angry or threatening manner. Thus, on the statutory elements test, brandishing a weapon is not a lesser included offense of assault with a deadly weapon. It is possible to commit an assault with a deadly weapon without also committing a brandishing offense. (Cf. People v. Birks (1998) 19 Cal.4th 108, 117.)
In terms of the accusatory pleading test, the petition did not allege anything beyond the required elements of the offense (assault with a deadly weapon other than a firearm), other than naming the specific victim (the minor's mother), and specifying the weapon (scissors). Nothing in the allegations—i.e., manifestation of the prosecutor's intent to prove the elements of the assault with a deadly weapon—also necessarily entailed proof of the elements of brandishing a weapon. The facts actually alleged in the pleading were insufficient to encompass the elements of brandishing a weapon. Even if further facts were adduced or clarified at trial, established law requires that the determination of whether a lesser offense is necessarily included must be based on the statutory elements or accusatory pleading, not on events occurring during the trial. Thus, "[t]he evidence adduced at trial is not to be considered in determining whether one offense necessarily is included within another." (People v. Cheaves (2003) 113 Cal.App.4th 445, 454.) Thus, it is of no moment that the evidence at trial indicated that the minor brandished the scissors in the course of committing the assault on her mother.
The minor cites several older California Supreme Court cases, which directly stated or implied that brandishing a weapon in violation of section 417 is a lesser included offense of assault with a deadly weapon. (See, e.g., People v. Lee (1999) 20 Cal.4th 47; People v. Coffey (1967) 67 Cal.2d 204; People v. Wilson (1967) 66 Cal.2d 749; People v. Carmen (1951) 36 Cal.2d 768.) The minor is mistaken.
People v. Carmen, supra, 36 Cal.2d 768, did not hold that brandishing a firearm was a lesser included offense of assault with a firearm. Rather, the case involved instructions to the jury on lesser offenses which were shown by the evidence. (Id. at p. 773-774.) The defendant in Carmen was charged with murder; he argued that he had not intended to kill anyone, but had discharged the firearm (the bullets struck and killed the victims) while intending only to frighten the victims. The defendant argued the court had erred in failing to instruct on a lesser offense of involuntary manslaughter, based on misdemeanor conduct of brandishing. (Id. at p. 775.)
In People v. Steele (2000) 83 Cal.App.4th 212, also analyzed the cases cited and concluded that there was no compelling reason to conclude that brandishing is a lesser included offense of assault with a deadly weapon. In Wilson, in which the defendant killed his wife, another man, and threatened two others, the California Supreme Court reversed a conviction for assault with a deadly weapon, because "the evidence would have justified the conclusion that defendant committed a violation of [the brandishing statute] rather than the assault found." (People v. Wilson, supra, 66 Cal.2d at p. 764.) However, the Steele court observed that, "the Supreme Court implied—but did not directly hold—that brandishing was a lesser included offense to assault with a firearm. That holding has no prior case support, and only scant subsequent support." (People v. Steele, supra, 83 Cal.App.4th at p. 219.) The Steele court "especially note[d] that in Wilson, the Supreme Court failed to follow its own rule, i.e., that the determination of whether an offense is lesser included is made from the language of the statute or the information, and not from the evidence adduced at trial. (In re Hess, supra, 45 Cal.2d at pp. 174-175.) Except for Wilson, that rule has continued unabated, and in 1998 was affirmed in by the Supreme Court in Birks, supra, 19 Cal.4th at page 117. When that rule is applied here, the conclusion is inescapable that an assault with a firearm may be committed without the defendant brandishing such weapon. Ergo, under the Supreme Court's own rule of analysis, as recently affirmed in Birks, brandishing cannot be a lesser included offense to assault with a firearm." (Id. at p. 221.)
The Steele court found Coffey, (People v. Coffey, supra, 67 Cal.2d 204, 222, fn. 21) unpersuasive, because its statement that, "The jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in those charged [which included assault with a firearm]," was not only aberrational, but also not binding, as it was not a holding in the case. (People v. Steele, supra, 83 Cal.App.4th at p. 220.)
People v. Lee, supra, 20 Cal.4th 47, also did "not compel an opposite result. In that case, the defendant was charged with murder by use of a firearm. Like Wilson, there was evidence that the defendant meant only to frighten the victims. In both Lee and Wilson, our Supreme Court held that it was error for the trial court not to have instructed on section 417 as a predicate for the 'misdemeanor manslaughter' theory of involuntary manslaughter, a lesser included offense to murder. (Wilson, supra, 66 Cal.2d at pp. 759- 760; Lee, supra, at p. 61.) However, in the noncapital case before us, an instruction under section 417 was not being requested as a predicate in order to justify instructing on a different lesser included offense. Rather, the instruction was being sought as the basis for conviction under section 417 itself." (People v. Steele, supra, 83 Cal.App.4th at p. 221.)
Because the offense of brandishing a weapon was not a lesser included offense of the charge of assault with a deadly weapon, there is no reason to order a remand to require the trial court to consider the matter.
III. Remand Is Required to Direct the Juvenile Court to Declare Whether the Offense Is a
Felony or a Misdemeanor
The minor next contends that the matter must be remanded to require the juvenile court to make an express declaration whether the offense was a felony or a misdemeanor. The People concede the error.
Welfare and Institutions Code section 702 requires the juvenile court to make an express determination whether a "wobbler" offense shall be designated as a felony or as a misdemeanor. The determination must be made explicitly; neither the court's recitation of a felony charge as made in the petition, nor the imposition of a maximum felony-length commitment term, is sufficient to satisfy the statutory mandate. (In re Ricky H. (1981) 30 Cal.3d 176, 191; In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 1208.)
The matter must be remanded for the juvenile court to make an explicit finding on the record as to the felony or misdemeanor character of the offense.
IV. The Trial Court Did Not Actually Impose the Challenged Probation Condition, That
the Minor Have "No Negative Contact" With Her Mother and Siblings
Lastly, the minor urges that one of the conditions of probation imposed on her is unconstitutionally vague and overbroad. When the juvenile court placed the minor on probation, the trial court recited a summary of the conditions of probation, and stated that the minor must have "no negative contact with her mother [and] siblings in the home." The minor complains that the expression, "no negative contact," is not further defined. She urges that, to pass constitutional muster on the issue of vagueness, a probation condition "'must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated' . . . ." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The minor contends that the stated condition also appears to be overbroad, as the prohibition against "negative contact" with the mother or siblings could bring within its sweep a wide variety of acts (e.g., disagreements or arguments) which would impinge on the minor's liberty and free speech rights. The restriction must be more narrowly tailored to avoid overbreadth. (Ibid.)
The People again concede error on this issue, and agree that the case must be remanded. We disagree.
An examination of the record shows that the written terms of probation included no such condition as avoiding "negative contact" with the minor's mother and siblings. The trial court's oral remarks were intended as a summary, rather than a verbatim repetition, of the written conditions of probation. The court summarized that the minor was to be released to her mother's custody, "on the following conditions. That the minor violate no law. That the minor attend school every day, every period that school's in session. The minor is not to have any negative contact with her mother, siblings in the home. [¶] The minor is to be inside her house between the hours of 8:00 p.m. and 6:00 a.m. unless accompanied by a parent. The minor is ordered to participate in counseling and attend anger management classes. [¶] The minor is also ordered to pay a restitution fine in the amount of $100." The court requested, and received, a waiver of "further reading of the terms and conditions."
Obviously, the court intended its statements to equate to a "reading" of the written conditions of probation. Its recitation paralleled and correctly summarized the written terms in all respects, except for mention of the "no negative contact" statement:
The written conditions set forth that the minor was to be "released to the custody of [the minor's mother] on the following conditions:
"Violate no law, ordinance, or court order. . . ;
"Obey and keep parent(s)/guardian(s) and the Probation Officer informed of whereabouts, associates, and activities;
"Attend school, every period, everyday, and obey school rules and staff;
"Report to the Probation Officer as directed and obey said officer's directives;
"Advise the Probation Officer of any change in address or telephone number. Not move without prior consent of the Probation Officer;
"Not have any direct or indirect contact with anyone known to be disapproved by parent(s)/guardian(s)/Probation Officer/staff; and any non-relative known to the minor to be on probation or parole;
"Not be out between the hours of 8:00 p.m. and 6:00 a.m. unless accompanied by parent(s)/guardian(s)/staff;
"Participate in counseling/psychotherapy as deemed necessary by parent(s)/guardian(s)/Probation Officer/Therapist;
"Participate in substance abuse counseling or therapy for such period of time as deemed necessary by PO. . . ;
"Attend and complete Anger Management classes. . . . [¶] . . . [¶]
"Pay Restitution fine in the amount of $100.00 . . . ."
All the conditions of probation recited orally by the court in its "reading" correspond to the written conditions of probation—violate no law, attend school, curfew, counseling, anger management, restitution fine—except for the directive that the minor was "not to have any negative contact with her mother, siblings in the home." That statement corresponded instead to the written probation condition that the minor was not to have contact with anyone disapproved by her mother or the probation officer, or with anyone known to be on parole or probation, other than the minor's own relatives. We conclude that the trial court misread or misunderstood the written term of probation, and therefore misspoke when it stated that the minor was to have "no negative contact with her mother, siblings in the home."
Because the objected-to condition of probation was not actually imposed, but instead was a misstatement by the court, no modification or remand is required.
DISPOSITION
As to the minor's contentions that the evidence was insufficient to support the true finding on the allegation of the petition (assault with a deadly weapon), and that the juvenile court should have considered brandishing a weapon as a lesser included offense, we reject the contentions and affirm the judgment. We remand the matter, however, with directions to the trial court to specify whether the offense shall be designated as a felony or a misdemeanor (Welf. & Inst. Code, § 702). As to the supposed condition of probation that the minor must have "no negative contact" with her mother and siblings, we conclude that no such condition was actually imposed, and thus no remand or modification is required concerning that condition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur: MILLER
J.
CODRINGTON
J.