Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCSCJDSQ0821048
BLEASE, Acting P. J.
Minor C.A., age 14, admitted that he came within the provisions of Welfare and Institutions Code section 602 in that he committed vandalism valued at $400 or more. (Pen. Code, § 594, subd. (b)(1).) The offense, an alternate felony/misdemeanor, was alleged to be a misdemeanor.
Following a contested jurisdiction hearing, the Siskiyou County Juvenile Court found that the minor came within the provisions of Welfare and Institutions Code section 602 in that he committed battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and falsely identified himself to a police officer (id., § 148.9, subd. (a)).
The minor was declared a ward of the juvenile court and placed in the custody of his mother under supervision of the probation officer.
On appeal, the minor contends (1) the true finding on the battery allegation must be reversed because there was insufficient evidence that he did not act in self-defense, (2) the juvenile court failed to indicate that it had discretion to declare the battery offense a felony or a misdemeanor, and (3) the court failed to determine whether he was entitled to deferred entry of judgment (DEJ). We shall remand for further proceedings.
Our statement of facts is limited to the battery allegation.
Prosecution case-in-chief
The minor and 15-year-old C.R. knew one another from school. On June 13, 2008, they attended a birthday party at a community center. After the party, C.R. pushed the minor into some dirt and bushes. The minor got back up and went about his business.
The minor and 15 or 16 other juveniles began walking home from the community center. Their route took them through the city park. Some of the juveniles told the minor to fight; they “basically made” him go to the tennis courts, where he encountered C.R. The minor told a friend that he did not “want to do this” and that they should leave. C.R. yelled at the minor, inviting the minor to “hit him.” A girl in the group pushed the minor into C.R. In response, C.R. threw a punch that contacted the minor’s “top left shoulder.” The minor “backed up a little bit,” and C.R. walked toward the minor with a “balled” fist. C.R. “tried to swing” his arm, and then he “hit” the minor “a little bit.” In response, the minor hit C.R. in the jaw, and C.R. began to fall.
T.M., age 17, testified that C.R. fell backwards, hit his head on the cement, and became unconscious. At that point “everybody ran,” including the minor. In response to clarifying questions by the court, T.M. testified that after C.R. was on the ground, the minor got on top of C.R. and hit him one more time.
C.N., age 14, testified that the minor hit C.R. a second time as he “was about to fall.” C.N. admitted that, on the night of the fight, he had not wanted the minor to get in trouble; thus, he had told an officer that the minor was not involved. C.N. later told the officer that the minor had hit C.R. a second time “as he was going down” to the ground. The officer responded that he did not believe it was possible for the minor to have delivered a second blow so quickly after the first. In reply, C.N. stated that the minor had delivered the second blow after C.R. was already on the ground.
Defense
D.P., age 14, testified that he had heard C.R. calling the minor names. D.P. explained that a girl pushed the minor into C.R. Then, C.R. swung and hit the minor. Next, the minor punched C.R. twice. The first punch sent C.R. falling to the ground; the second punch, a “split second” later, landed during the fall.
The minor testified on his own behalf that there is a rivalry between “jocks” and “skateboarders.” C.R. is a jock. The minor is a skateboarder.
After the party, C.R. pushed the minor into the dirt and bushes and then asked him what he “was going to do about it.” At the tennis courts, several youths surrounded the minor and told him that he had to fight. C.R. told the minor repeatedly to “punch him,” and the minor repeatedly told him “no.” A girl pushed the minor into C.R. C.R. punched the minor in the face, causing him to have “a very sore neck” and a scratch along his neck.
The minor recollected his first punch of C.R. but not his second punch because he had panicked. By the time he noticed that C.R. was unconscious, youths were “on top of” him, tearing off his skateboarding-themed shirt. The minor ran away. After the incident, C.R. sent the minor telephone text messages threatening to locate the minor and stab him.
DISCUSSION
I
The minor contends the true finding on the battery with serious bodily injury allegation is not supported by sufficient evidence that he did not act in self-defense. We disagree.
“As a matter of constitutional due process, the defendant need only raise a reasonable doubt regarding a defense that negates an element of the crime, and in this situation the burden of persuasion is on the People to show the nonexistence of the defense beyond a reasonable doubt. [Citations.]... Typically, the prosecution has the burden to prove a defendant did not act in self-defense, because self-defense negates an element of the offense. [Citations.]” (People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571.)
The juvenile court found that the People had met their burden of proof beyond a reasonable doubt with respect to the battery with serious bodily injury allegation. We review this ruling, including the negation of self-defense, for substantial evidence.
“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.3d269, 275.)
In its ruling, the juvenile court credited T.M.’s testimony that C.R. fell backwards, hit his head on the cement, and became unconscious; after C.R. was on the ground, the minor got on top of C.R. and hit him one more time. The court explained: “The witnesses -- counsel, it was not the witnesses all saying that [the minor] struck two blows as [C.R.] was falling down. And I think that testimony is a little -- is not believable. [T.M.,] who said he was both a friend of [C.R.] and [the minor], and continues to have a relationship with [the minor]. You know, he testified that that second blow was to [C.R.’s] face, and he was on the ground. [C.R.] was unconscious. [¶] [The minor] also admitted that people were on top of him at the end of that incident before he left and ran away. And for people to be on top of him, he had to be on the ground as well.” Shortly thereafter, the court stated: “I think that when you strike somebody in the face who’s unconscious on the ground, you know, you have no self-defense.”
Thus, the juvenile court found that the minor’s last punch, after C.R. was unconscious on the ground, was not justified by the defense of self-defense. It is not necessary to consider whether the defense justified the minor’s first punch.
“For an assault to be in self-defense, the defendant must actually and reasonably believe in the need to defend. ‘Although the belief in the need to defend must be objectively reasonable, a jury must consider what “would appear to be necessary to a reasonable person in a similar situation and with similar knowledge....” [Citation.] It judges reasonableness “from the point of view of a reasonable person in the position of defendant....” [Citation.] To do this, it must consider all the “‘“facts and circumstances... in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.”’” [Citation.] As we stated long ago, “... a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind....” [Citation.] [¶]... [¶]... Although the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found [himself].’ [Citation.]” (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.)
The record contains substantial evidence that a reasonable person in the minor’s position would not have believed it necessary to get “on top of” C.R. and “hit him one more time” while he was lying on his back on the ground. (People v. Jefferson, supra, 119 Cal.App.4th at p. 518; In re Jose R., supra, 137 Cal.App.3dat p. 275.)
The minor claims “the evidence does not show that [he] could possibly have known that C.R. was ‘unconscious’ [citation] as C.R. fell back during [the minor’s] two quick defensive hits. [Citations.]” However, even if the minor did not know that C.R. was unconscious as he fell, he must have known that C.R. was lying on the ground when he climbed on top of C.R. to deliver the last blow. No evidence supported a reasonable belief that C.R. remained conscious during the minor’s climb, or that C.R. was about to inflict further bodily injury upon the minor. (People v. Goins (1991) 228 Cal.App.3d511, 516.) No evidence supports the minor’s argument that punching the downed victim was either a “reasonable continuing use of force” or an allowable “pursuit.” The true finding on the battery with serious bodily injury allegation is supported by substantial evidence.
The minor’s claim that he delivered “two quick defensive hits” “as C.R. fell backwards” fails because it is based on his own testimony rather than the contrary testimony that was credited by the juvenile court.
II
The minor contends the juvenile court erred by failing to indicate that it had discretion to declare the battery with serious bodily injury a misdemeanor or a felony. We shall remand for the required determination.
Background
Count 1 of the July 8, 2008, petition alleged that the minor “did willfully and unlawfully use force and violence upon the person of C.R...., resulting in the infliction of serious bodily injury on such person, violating Section 243(d) of the California Penal Code, a felony. [2, 3, 4]”
In its summary of the allegations, the probation officer’s report described count 1 as “Section 243(d) of the California Penal Code, Battery with Serious Bodily Injury, a felony.” Finally, in classifying count 1 for purposes of the maximum allowable custody time, the probation report listed it simply as “F.”
At the conclusion of the contested jurisdiction hearing, the juvenile court orally stated: “I’m going to indicate to [the minor] the maximum confinement time in this matter on count 1 would be four years. And on count 2, the maximum -- I believe this is a six-month misdemeanor would be up to two months, add an additional two months.”
The court’s minutes from the contested jurisdiction hearing state: “The Court finds beyond a reasonable doubt that Counts 1, and 2, of the Juvenile Wardship Petition filed July 8, 2008, are true as alleged.”
At the disposition hearing this exchange occurred:
“THE COURT:... Do you have anything else to present?
“[THE PROSECUTOR]: I have one concern, your Honor. And [defense counsel] mentioned this to me this morning when we talked is that I’m not sure if Judge Kaster -- I believe it was -- did the finding after we did the contested jurisdictional hearing as to whether the offense is a felony or a misdemeanor. I thought he did, but [defense counsel] indicated he may not have, and I think that may be required.
“THE COURT: I’m looking at the minutes of September 4th, 2008. And it indicates that Judge Masunaga presided.
“[THE PROSECUTOR]: Oh, Judge Masunaga then. I’m sorry. I just don’t recall whether she did or not. Usually I pay attention to that. But it is possible. And if that’s the case, then that’s a problem.
“THE COURT: What the minutes reflect is that the court found beyond a reasonable doubt that counts 1 and 2 of the petition were true as alleged. Presumably as alleged means at the level alleged.
“[THE PROSECUTOR]: That was my understanding, but [defense counsel] indicated that perhaps not. So, I don’t know if that’s something he would stipulate to or...
“THE COURT: Well, let me put it this way. At this point, I have for disposition a felony allegation that is indicated to have been found true. [¶] If you believe that is inaccurate, [defense counsel], then it’s possible that we can put this on calendar for Judge Masunaga to preside over, but I cannot make a different determination obviously because I was not the one who heard the evidence.
“[DEFENSE COUNSEL]: Your Honor, if that’s -- if [the prosecutor] heard that from me this morning, it was a miscommunication likely on my part. I didn’t have a question whether Judge Masunaga had made that finding. [¶] I had my own questions of whether it was a felony or a misdemeanor and whether that was something we would discuss today. But I think we’re prepared to submit on the report.
“THE COURT: Okay. And you’re submitting as well, [Ms. Prosecutor]?
“[THE PROSECUTOR]: Yes, Your Honor.
“THE COURT: Okay. The adjudications to be included at this time are set forth on pages 9 and 10 of the report. The maximum allowable custody time is four years, eight months and that remains the amount of custody time available as there have been no days in custody.”
Analysis
The juvenile court found that the minor had committed battery with serious bodily injury. The offense is punishable “by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years.” (Pen. Code, § 243, subd. (d).) In common parlance, the minor’s offense is a “wobbler.”
Welfare and Institutions Code section 702 provides in relevant part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” In part, this statute serves an administrative purpose, providing a record from which the maximum term of physical confinement may be determined in the event of future adjudications. (In re Manzy W. (1997) 14 Cal.4th 1199, 1205-1207 (Manzy W.).) The statute also “serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under” Welfare and Institutions Code section 702. (Manzy W., supra, 14 Cal.4th at p. 1207.) “[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]” (Id. at p. 1208.) “The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Id. at p. 1209.)
Welfare and Institutions Code section 702 is implemented by two rules of court. (Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1); further references to “rules” are to the California Rules of Court.)
Rule 5.780(e), which applies at the jurisdiction hearing, provides in relevant part: “If the court determines... by proof beyond a reasonable doubt... that the allegations of the petition are true, the court must make findings on each of the following, noted in the order: [¶]... [¶] (5)... [T]he degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing.”
Rule 5.790(a) provides in relevant part: “At the disposition hearing: (1) If the court has not previously considered whether any offense is a misdemeanor or felony, the court must do so at this time and state its finding on the record. If the offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and must expressly declare on the record that it has made such consideration and must state its finding as to whether the offense is a misdemeanor or a felony.”
At the jurisdiction hearing in this case, the juvenile court (Judge Masunaga) did not make the determinations required by Welfare and Institutions Code section 702 and rule 5.780(e)(5); nor did she expressly defer them to the disposition hearing. This perhaps was understandable, because neither the July 8, 2008 petition, nor the probation report, ever alerted the court that count 1 was a “wobbler,” rather than a “straight” felony, and that a statute and court rules compelled at least some court action (i.e., decision or deferral) at the jurisdiction stage. Although Judge Masunaga indisputably determined that the minor’s offense was a felony, nothing in the record suggests that she did so while being “aware of” the fact it could also be a misdemeanor, and after “actually exercis[ing]” her discretion as to which description should apply to this case. (Manzy W., supra, 14 Cal.4th at p. 1207; rule 5.780(e)(5).)
At the disposition hearing, the prosecutor raised the Welfare and Institutions Code section 702 issue but the parties did not alert the juvenile court (Judge Davis) to rule 5.790(a), which mandated that the inadvertently deferred issue be resolved at disposition. While we do not fault Judge Davis for deferring to Judge Masunaga, who had heard the evidence, the fact remains that rule 5.790(a) required some judicial officer to resolve the issue before the hearing concluded.
Manzy W. explained that “remand would be merely redundant” where the record shows that “the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.” (Manzy W., supra, 14 Cal.4th at p. 1209.) In this case, the prosecutor made the juvenile court (Judge Davis) aware of its discretion. However, Judge Davis responded that he could not exercise that discretion (“cannot make a different determination”), because he “was not the one who heard the evidence.” Although defense counsel indicated that he was prepared to submit on the probation report, this did not relieve the court of its mandatory duty to declare the offense a felony or a misdemeanor. (Manzy W., supra, at pp. 1204, 1207 [failure to make the mandatory express declaration requires remand for strict compliance with Welfare and Institutions Code section 702].) The Attorney General’s argument that “the purposes of Welfare and Institutions Code section 702 were fulfilled” lacks merit because neither judge exercised the discretion that the statute confers. We shall remand to the juvenile court for an informed exercise of its discretion.
III
The minor contends the juvenile court failed to determine whether he should be granted DEJ. Because the DEJ process was never initiated in this case, and the matter must be remanded in any event (see part II of the Discussion, ante), we shall direct the prosecution and the juvenile court to take all steps necessary to initiate and comply with the DEJ process.
We begin with an overview of DEJ. “The DEJ provisions of [Welfare and Institutions Code] section 790 et seq. were enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The sections provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a [Welfare and Institutions Code] section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. [Citations.]
“[Welfare and Institutions Code] Section 790 makes a minor eligible for DEJ if all the following circumstances exist: [¶] (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [¶] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of [Welfare and Institutions Code] Section 707. [¶] (3) The minor has not previously been committed to the custody of the [Department of Corrections and Rehabilitation, Division of Youth Facilities]. [¶] (4) The minor’s record does not indicate that probation has ever been revoked without being completed. [¶] (5) The minor is at least 14 years of age at the time of the hearing. [¶] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. [Citation.]” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558-559 (Martha C.); see In re Luis B. (2006) 142 Cal.App.4th 1117, 1121-1122 (Luis B.).)
The DEJ process is initiated by the prosecutor. (Luis B., supra, 142 Cal.App.4th at p. 1122.) Rule 5.800 provides in relevant part: “(b) Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review the child’s file to determine if the requirements of [rule 5.800](a) are met. If the prosecuting attorney’s review reveals that the requirements of (a) have been met, the prosecuting attorney must file Determination of Eligibility--Deferred Entry of Judgment--Juvenile (form JV-750) with the petition.” Rule 5.800(e) provides that if the prosecutor determines the child is not eligible for DEJ, the prosecutor must complete and file the same form so indicating.
“If the minor waives the right to a speedy jurisdictional hearing, admits the charges in the petition and waives time for pronouncement of judgment, the court may summarily grant DEJ or refer the matter to the probation department for further investigation. The department is required to take into consideration ‘the defendant’s age, maturity, educational background, family relationship, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors in determining whether the minor is a person who would be benefited by education, treatment, or rehabilitation.’ [Citation.] The [juvenile] court makes ‘the final determination regarding education, treatment, and rehabilitation of the minor.’ [Citation.]” (Martha C., supra, 108 Cal.App.4th at pp. 558-559; see Luis B., supra, 142 Cal.App.4th at p. 1123.)
“[T]he duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make ‘the final determination regarding education, treatment, and rehabilitation....’ [Citations.]” (Luis B., supra, 142 Cal.App.4th at p. 1123.)
As in Luis B., the prosecutor in this case did not file a Determination of Eligibility form. (Luis B., supra, 142 Cal.App.4th at p. 1123.) The juvenile court thus had no occasion to make a determination regarding DEJ. As in Luis B., the failures to perform these mandatory duties were error. (Ibid.)
The minor’s opening brief relies on Luis B., which is squarely on point. The Attorney General’s brief relies on In re Usef S. (2008) 160 Cal.App.4th 276 and In re Kenneth J. (2008) 158 Cal.App.4th 973, which expressly distinguished Luis B. on the ground that the prosecutors in Usef S. and Kenneth J. gave the minors the requisite notice. (Usef S., supra, 160 Cal.App.4th at pp. 281, 286 & fn. 3; Kenneth J., supra, 158 Cal.App.4th at p. 980.) The present case is similar to Luis B. and distinguishable from Usef S. and Kenneth J.
DISPOSITION
The juvenile court’s findings and dispositional orders are set aside. The matter is remanded to the juvenile court for further proceedings in compliance with Welfare and Institutions Code sections 702 and 790 et seq., as well as rules 5.780 and 5.800. If, as a result of those proceedings, the juvenile court grants DEJ to the minor, it shall issue an order vacating the findings and orders. If the court denies DEJ to the minor, it shall consider in its discretion whether the battery offense is a felony or a misdemeanor and shall enter a new dispositional order, subject to the minor’s right to have the denial of DEJ reviewed on appeal. (See Luis B., supra, 142 Cal.App.4th at pp. 1123-1124.)
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.