Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. JD-SQ-08-6061
SIMONS, J.
An April 1, 2008 juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleged that on March 28, 15-year-old defendant A.C. (appellant) committed misdemeanor battery on school property (Pen. Code, § 243.2, subd. (a)). An April 3, 2008 section 602 petition alleged that on April 2, she committed misdemeanor battery on the person of deputy probation officer Linda Sanford. Appellant admitted the April 1 petition, and the court sustained the allegations of the April 3 petition. Appellant appeals the juvenile court’s disposition order declaring her a ward of the court (§ 602) and placing her on probation subject to various conditions. She contends there is insufficient evidence to sustain the battery on the person allegation and the probation conditions imposed are impermissible vague and overbroad.
All undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
On April 2, 2008, probation officer Linda Sanford was working at the McCarthy School, “the probation school.” It was appellant’s first day at the school, and it was a particularly “rowdy day.” At about 1:30 p.m., appellant was sent to Sanford’s office because she refused to participate in a class exercise—a review of school rules. Sanford and appellant agreed that appellant would either do the exercise in class or stay after school. Because Sanford was concerned about whether appellant would do the exercise, she entered and sat in the back of appellant’s classroom until Sanford was called away to talk with a staff member about another student.
As Sanford talked with the staff member, appellant, who was supposed to remain in class, walked by, heading for the street. Sanford followed appellant, calling for her to stop and talk. At some point, appellant walked toward Sanford, and then continuing walking past her. Sanford put her hand on appellant’s right upper arm and said, “Stop, talk to me. What’s going on?” Appellant pushed Sanford and said, “Get your fucking hands off me.” Sanford perceived appellant’s push as a “hostile action,” and handcuffed appellant. At the time of the incident, Sanford thought that appellant was on probation, but apparently appellant was not on probation at the time.
At the jurisdiction hearing, appellant’s counsel argued that the evidence did not establish that Sanford touched appellant in an attempt to arrest her. Therefore, appellant’s act of pushing Sanford was an act of self-defense directed against Sanford’s unjustified physical contact. The court found that because appellant was apparently not on probation, Sanford did not have authority to arrest her for a probation violation. However, the court sustained the battery allegation after finding that Sanford touched appellant with a “flat touch,” which did not justify appellant’s responsive shoving.
DISCUSSION
I. There Was Substantial Evidence that Appellant Committed Battery
Appellant contends that Sanford’s touching her arm was itself a battery, and in response, appellant had the right to use reasonable force to terminate or prevent Sanford’s “offensive touching” by pushing her away.
In an appeal challenging the sufficiency of the evidence to support a juvenile court order sustaining the criminal allegations of a section 602 petition, we determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 139; accord, In re Robert V. (1982) 132 Cal.App.3d 815, 820.)
Battery is defined as “any willful and unlawful use of force or violence upon the person of another.” (§ 242.) “Only a slight unprivileged touching is needed to satisfy the force requirement of a criminal battery. [Citation.]” (People. v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.) We conclude that Sanford’s testimony that appellant pushed her was sufficient to affirm the juvenile court’s finding that appellant committed misdemeanor battery against Sanford.
We also conclude substantial evidence supports the court’s rejection of appellant’s claim of self-defense. Penal Code section 693 provides that a party about to be injured may use “[r]esistance sufficient to prevent the offense.” Self-defense is the only legal justification for battery. (People v. Mayes (1968) 262 Cal.App.2d 195, 198.) A battery victim “is privileged to resist with such force as is reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335.)
“Issues arising out of self-defense, including whether the circumstances would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of defense of himself, and whether the force used was excessive, are normally questions of fact for the trier of fact to resolve. [Citations.]” (People v. Clark (1982) 130 Cal.App.3d 371, 378, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.) “[W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense,” it may be found as a matter of law. (Clark, at p. 379.) However, where the evidence tends to show a situation in which the use of force may not be justified, or whether the force resorted to was excessive, the self-defense issue is a question of fact for the trier of fact. (Ibid.)
Here the evidence establishes that Sanford put her flat hand on appellant’s upper arm when appellant was walking away while Sanford was trying to question her. No evidence was presented that this brief touching was in any way harmful, that appellant felt threatened by it or felt a need to defend herself. Based on this evidence, the court could reasonably conclude appellant’s act of pushing Sanford was not done in self-defense.
II. The Challenged Probation Conditions Must Be Modified
At the disposition hearing the juvenile court placed appellant on probation subject to various conditions. For the first time on appeal, she objects to the following two conditions imposed by the court: (1) that she “shall not associate with any person . . . that her parent or her probation officer may specify” and (2) that she “not possess any paraphernalia, pictures, clothing or other miscellaneous items that promote drug or alcohol use.”
The People concede, and we agree, that appellant can challenge these conditions of probation for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 880-889 (Sheena K.).)
A. Condition Prohibiting Appellant’s Association
Appellant contends the probation condition prohibiting her from associating with persons specified by her parent or probation officer is unconstitutionally vague and overbroad because it does not expressly require that she “know” the identity of any person(s) disapproved by the probation department. She also argues the condition gives her parent or probation officer arbitrary discretion to forbid her from associating with anyone “for no good reason.” The People agree that the condition is unconstitutional because it does not contain a knowledge requirement.
“The juvenile court has wide discretion to select appropriate conditions and may impose ‘ “any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ [Citations.] In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in ‘adult’ court, we have advised that, ‘[a]lthough the goal of both types of probation is the rehabilitation of the offender, “[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment . . . .” [¶] In light of this difference, a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. . . . [¶] . . . [N]o choice is given to the youthful offender [to accept probation]. By contrast, an adult offender “has the right to refuse probation, for its conditions may appear to [the] defendant more onerous than the sentence which might be imposed.” [Citations.]’ [Citations.]” (Sheena K., supra, 40 Cal.4th at pp. 889-890.)
In order to withstand a vagueness challenge, a probation condition “ ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.” (Sheena K., supra, 40 Cal.4th at p. 890.)
In Sheena K., our Supreme Court held that in the absence of an express requirement of knowledge, a probation condition forbidding a juvenile defendant from associating with anyone disapproved by probation was unconstitutionally vague. (Sheena, K., supra, 40 Cal.4th at p. 891.) The court concluded that modification of the probation condition to require that the defendant have knowledge of who was disapproved by her probation officer cured the constitutional invalidity of the challenged condition. (Id. at p. 892.) Sheena K. cited with approval In re Byron B. (2004) 119 Cal.App.4th 1013, 1015, 1018, which upheld a probation condition prohibiting a minor’s contact with any person known by the minor to be disapproved by a parent, guardian or probation officer or staff. (Sheena K., at p. 891.)
The People correctly assert that, as in Sheena K., the probation condition here should be modified to require that appellant be prohibited from associating with persons she knows to be disapproved by her parent or probation officer. In her reply brief, appellant agrees with the People’s suggested modification.
B. Condition Prohibiting Possession of Paraphernalia, etc.
Appellant contends that the condition that she “not possess any paraphernalia, pictures, clothing or other miscellaneous items that promote drug or alcohol use” is unconstitutionally vague and overbroad because the terms “items” and “promote” are not sufficiently precise for her to know what is required of her, and for the court to determine whether the condition has been violated. She argues that the condition is broad enough to prohibit magazines containing advertisements for local pubs, as well as posters, CD’s, or movies depicting the likes of a “tipsy Dean Martin sing[ing] while waving around” a glass of alcohol.
The People suggest that the condition be modified “to provide that the prohibited item’s chief purpose be the promotion of drug or alcohol use,” and as modified, it would be constitutional. Once again, in her reply brief, appellant agrees to the People’s suggested modification.
Based on the parties’ agreement as to the modification of the two challenged probation conditions, we will modify them accordingly. (People v. Lopez (1998) 66 Cal.App.4th 615, 638.)
DISPOSITION
The order is affirmed with the following probation condition modifications:
1. Appellant shall not associate with those known by her to be involved in criminal activities or with any person known by her to be disapproved by her parent or her probation officer.
2. Appellant shall not possess any paraphernalia, pictures, clothing or other miscellaneous items whose chief purpose is to promote drug or alcohol use.
We concur. JONES, P.J., NEEDHAM, J.