Opinion
NOT TO BE PUBLISHED
Contra Costa County County Super. Ct. No. J0900408
Richman, J.
Christopher M. appeals a September 9, 2009 disposition granting him supervised probation in the home of his mother after the juvenile court sustained juvenile wardship allegations that, at age 13, he committed mayhem and assault with force likely to create great bodily injury (GBI) (Pen. Code, §§ 203, 245, subd. (a)(1)) against Amanda D., also personally and actually inflicting GBI (Pen. Code, § 12022.7, subd. (a)). We affirm the judgment, rejecting his claim that trial counsel rendered ineffective assistance by not seeking dismissal at the close of the People’s case (Welf. & Inst. Code, § 701.1). This also serves as reason to deny the same claim as posed in a petition for habeas corpus, which we summarily deny.
Background
Defendant committed the offenses in school at lunchtime by throwing heated soup onto Amanda’s back, causing first and second degree burns. The appeal issue requires us to review the state of the evidence at the close of the People’s case (Welf. & Inst. Code, § 701.1; fn. 1, post), during which the People presented three witnesses—the mothers of defendant and Amanda, and Amanda herself. Later testimony from defense witnesses—cousins Michael S. and Anton S., and defendant—is not strictly relevant to that inquiry, but we summarize it to frame defendant’s arguments, which rely on it.
People’s Case
Courtney M. Defendant’s mother was not an eyewitness to the event and testified mainly on the threshold issue of her son’s knowledge of wrongfulness, since he was not yet 14 years old (Pen. Code, § 26, part One). The court found by her testimony that defendant knew the wrongfulness of the alleged acts when committed, a finding not challenged on appeal, but there was no ruling or stipulation that her testimony was limited to the competency issue. Her testimony included that defendant had voluminous disciplinary write-ups at school, a number of suspensions at a prior school identified as a junior high or middle school, and had a history of throwing things at other students.
Leslie D.
Amanda’s mother was likewise not an eyewitness to the event, and she testified mainly about the extent of Amanda’s injuries. On March 5, 2009, she was called to Amanda’s school, and arrived as other relatives
came in another car. Having no information from the school about what happened, she followed them to John Muir Hospital, where Amanda was treated and released after four hours. She authenticated photographs of the burns taken then, and a few days later, when the blisters had popped. Doctors described the injuries as first and second degree burns, and the mother treated Amanda with a burn ointment on her back for three weeks afterward. Amanda had follow-up visits with a plastic surgeon, and by the time of the mother’s testimony, four weeks later, the burned areas were no longer blistered or red, but were pink and still healing.
Amanda D.
Amanda testified seven weeks after the event and showed the scarring to her back. Dark brown and pink discoloration extended from her neck down to her shoulder blades, an area eight inches long, and between four and one half to two inches wide. She had received morphine injections at the hospital, and obtained pads and ointment from the plastic surgeon. The ointment had not stopped the pain but took away a heat sensation in about two weeks. She had ceased getting the ointment a week and a half before testifying.
As background to the event, Amanda said she had been attending the school for about a year. She and defendant had altercations and argued several times a week. It had never become physical, but they had thrown “pencils and things back and forth.”
At lunchtime on that March 5, Amanda took her soup to the school’s “break room, ” to heat it in a microwave. The room had two microwaves, but she could only use one because the other required “a knife” to operate, which she did not have. Defendant was standing at a desk or table in front of the workable one and heating his own soup, a “microwaveable cup of noodles” that was not like hers. She stood next to defendant, waiting, but he kept heating his “over and over.” The microwave beeped after each setting, and defendant reset it twice. When he was done, he stayed in front of the microwave, blocking it so that she could not use it. Amanda set her cold soup down on the table, took the microwave and carried it to another part of the room where she could use it. After setting it down, she saw defendant put a napkin into her soup. She went to examine it and found pizza crumbs and other things in it, besides the napkin, and by then defendant had walked across the room.
“[K]ind of mad” because the soup was all she had for lunch, Amanda took it across the room and confronted defendant. She did not recall whether she said anything to him, but did see him with his soup in his hand, “holding his fork up and blowing on it and saying it was hot.” She took the cold napkin from her soup, and threw it at him. She saw it hit his chest and stomach (not face). She turned around to walk away from him, and he “threw the soup” at her. It hit her hair at the back of her head, around her ear. She wore a tank top with a big hooded jacket over it, yet felt “boiling hot soup” all over her skin, through the tanktop, and fell to the ground screaming in pain. She had never felt pain like that—a “10” on a scale of one to ten. She was writhing on the ground, “too busy screaming in pain” to see what defendant did then. She had not seen anyone else with the soup like defendant’s.
Defense Case
Defense witnesses introduced the idea that defendant might have tossed the soup reflexively rather than deliberately, and defense counsel pursued that idea in argument, alternatively (and inconsistently) arguing that it was an act of self-defense against being hit with a cold, wet napkin.
Defendant.
Defendant claimed the microwave’s plug was loose, causing him to restart it and prompting Amanda to complain that he was taking too long, that his napkin “fell” into Amanda’s soup as he finished, that he put nothing else in her soup, and that he left the napkin in there and went across the room to Anton S. Amanda then came up to him and, at a (demonstrated) distance of six to eight feet, threw the wet napkin—loose, not balled up—in his face. He did not recall either of them saying anything before she threw it. Defendant demonstrated that he jerked his head back and that his right hand went up, tossing the soup. This was two seconds later, when Amanda turned to walk away, and after defendant saw the napkin fall from his face to the floor, by his foot. He “reflected to” being hit, he said, but the soup did not splash everywhere or get him wet. Amanda dropped to the ground, screaming and rolling around, and he ran to the bathroom and hid, “nervous and scared” about what he had done. He explained, “I always get like that whenever something happen [sic]. I get like mad at myself for like what I did.”
Anton S.
Anton, his friend, corroborated being with him, Amanda being “really close, ” and the napkin hitting defendant in the face, on the left side. Anton was not otherwise much help on defendant’s reflex-reaction theory. He said defendant told her just before not to hit him with the napkin, and that defendant “reacted” by throwing his soup when she did so anyway. Anton first said it looked like defendant was trying to throw the noodles on her, then said it “was out of reflex, ” then said, “I don’t really know, ” could not “really explain it, ” and did not remember. He thought Amanda “tried to turn around real fast” to get away, but defendant “[k]ind of like flicked” his right hand, which held the noodles. He had not said it was “reflex” in his statement to police.
Michael S.
Anton’s cousin Michael was even less helpful on the reflex theory. He was sitting at another table when he saw Amanda, standing in the middle of the break room, throw a napkin at defendant and hit him in his right “eye area” when he made a motion with his right hand, that held the cup of noodles. It was “[k]ind of like a reaction to hitting him in the eye kind of like flicking his wrist.” He was vague about the time lapse, saying “three to five” seconds, so counsel had him count out the time, which proved to be six seconds between the napkin hitting defendant’s face and him flicking his wrist. This was “quick” or “really quick” in Michael’s view. Before this, Michael recalled them arguing, saw defendant place the napkin into Amanda’s soup, and heard Amanda say, “ ‘You jerk, ’ ” before throwing the wet napkin at him. He saw defendant run to the bathroom afterward.
Discussion
The parties agree that both counts required an intentional act (People v. Williams (2001) 26 Cal.4th 779, 790 [assault]; People v. Golde (2008) 163 Cal.App.4th 101, 108 [aggravated assault]; People v. Ausbie (2004) 123 Cal.App.4th 855, 860-861 [mayhem, being a battery with an intent to vex, injure or annoy]), and defendant contends that a motion for dismissal would have been granted due to an absence of evidence that his act of hurling the soup as intentional rather than just reflexive.
We begin with the claim as presented on appeal. “To demonstrate ineffective assistance of counsel, defendant must show both that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. [Citations.]” (People v. Cleveland (2004) 32 Cal.4th 704, 746.)
The asserted error is failure to bring a motion to dismiss at the close of the People’s case (Welf. & Inst. Code, § 701.1), the juvenile law equivalent to a criminal law motion for acquittal (Pen. Code, § 1118; In re Man J. (1983) 149 Cal.App.3d 475, 482). The motion requires the juvenile court “ ‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is “proved beyond a reasonable doubt before [the defendant] is required to put on a defense” ’....” (In re Anthony J. (2004) 117 Cal.App.4th 718, 727.) For prejudice, defendant reasons, by analogy to failure to bring a motion for acquittal in a criminal jury trial, that this failure forfeited review on appeal as to whether substantial evidence supported the charges as of the close of the People’s case (cf. People v. Smith (1998) 64 Cal.App.4th 1458, 1461, 1464 [applying Pen. Code, § 1118.1]; In re Andre G. (1989) 210 Cal.App.3d 62, 65-66 [applying Welf. & Inst. Code, § 701.1]), and thus requires us to examine the evidence at that point and, if substantial evidence did not support the allegations, reverse. The People do not dispute that analysis.
To begin with, we question whether our review should be quite so deferential. The analogy to an acquittal motion in a criminal jury trial is imperfect, because there the trial court examines the evidence for substantial evidence, deciding whether to allow the case to go to the jury, and appellate review naturally utilizes the same substantial evidence standard. (People v. Harris (2008) 43 Cal.4th 1269, 1286; People v. Bloyd (1987) 43 Cal.3d 333, 350.) The closer analogy is an acquittal motion under Penal Code section 1118, where the court, in a trial to the court as trier of fact, weighs the evidence and decides whether the burden of proof beyond a reasonable doubt has been met, the same test as Welfare and Institutions Code section 701.1. (In re Andre G., supra, 210 Cal.App.3d at pp. 65-66.) While a denial of a dismissal motion requires deferential, substantial evidence review (In re Man J., supra, 149 Cal.App.3d at p. 482), there was no such motion or denial here. Thus it is arguable that our ineffective assistance examination for prejudice as a different result (People v. Cleveland, supra, 32 Cal.4th at p. 746) should probe the probabilities of the motion having succeeded under the trial court’s duty to assess the case by the reasonable doubt standard. On the other hand, it is an awkward role for an appellate court to assess for itself whether a reasonable doubt standard would have been met, and could invite a negative policy result of encouraging minors’ counsel to avoid moving for dismissal, as a tactical move to gain what might amount to independent consideration by three appellate court justices.
Penal Code section 1118 reads part: “In a case tried by the court without a jury, ... the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged... after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense of offenses....”
Given that this issue is not briefed by the parties, we decline to decide it. Out of caution, however, we hold that the result would be no different in this case whether under the substantial evidence inquiry, or an inquiry whether the motion would have succeeded (e.g., Kimmelman v. Morrison (1986) 477 U.S. 365, 374-375 [4th Amendment claim]; People v. Cudjo (1993) 6 Cal.4th 585, 627 [same]; People v. Mayfield (1993) 5 Cal.4th 142, 175-176 [Miranda claim]).
Looking solely to the evidence at the close of the People’s case, we see no reasonable probability of a dismissal motion having succeeded. Defendant’s arguments about weakness in proof of an intentional versus reflexive act draw upon testimony that was not yet before the court. At the close of the People’s case, the evidence was that defendant and Amanda, already having a history of altercations, had a conflict over the microwave as defendant kept Amanda from using it. He then placed a napkin, and other food particles, into the soup she left on the table while moving the microwave to a spot where he would not be in her way. The overwhelming inference was that they were both fully aware and engaged in the spat. Amanda crossed the room, went up to defendant, and threw her cold, soup-soaked napkin at him, hitting him on the chest. She turned to walk away and was struck squarely in the back of the head with enough of the cup of superheated soup to leave first and second degree burns down her back that left scarring or discoloration, visible seven weeks later, down a path two to four and one half inches wide and eight inches long. The only evidence of how it hit Amanda was her testimony that defendant “threw” it. It is true that she was not examined further on how she knew he “threw” it. She either put two and two together or, as the People suggest, saw him make some motion before turning completely around, Nevertheless, Amanda’s testimony that she saw him holding it to his mouth and blowing on it just before she turned away, and that no one else had soup like that, leaves a simple, overwhelming inference that he did it and, given his provocation of her minutes earlier, did so deliberately. There was no testimony at that point about defendant being hit in the face or reacting reflexively. True as well, there was no testimony from Amanda specifying how far she was from him, how much time elapsed between her launch and his, and the guilt-suggesting flight into the bathroom. Nevertheless, Amanda said she “threw” the wet napkin at him, and common experience dictates that she had to be several feet away—i.e., beyond arm’s reach—to throw something. Even if she covered no further distance in turning around before being hit from behind with the soup, it would be an extraordinary fortuity that she could be hit so squarely in the middle of her head and back, and with enough boiling liquid to leave a large area of burn down her back, for this to have been administered through a flinch.
Defendant’s reliance on the court’s remarks in sustaining the petition at the close of all of the evidence do not assist him. In rejecting the reflex theory, the court stressed: (1) Michael S.’s in court demonstration of a six-second delay between the napkin and soup being thrown, (2) Anton S.’s testimony that Christopher told Amanda not to throw the napkin just before she did, and (3) defendant’s own testimony that he was six to eight feet away from her when he “reacted.” This was an unusual case where perhaps the strongest evidence against the defense came from the defense case, which posed a factually implausible theory. It was natural for the court to focus on those flaws in its final decision, but none of that evidence—indeed even the notion that defendant acted less than deliberately—was before the court at the close of the People’s case, when it would have ruled on a motion to dismiss (In re Anthony J., supra, 117 Cal.App.4th at pp. 727-728; Welf. & Inst. Code, § 701.1; cf. People v. Lines (1975) 13 Cal.3d 500, 505 [motion for acquittal in a criminal jury trial]).
Our analysis also answers the petition for writ of habeas corpus, which raises the same ineffective assistance claim but with a declaration from appellate counsel that trial counsel declined to execute one. The declaration is evidently offered to show that trial counsel had no tactical purpose for not moving to dismiss, but even if we accord it that effect, the result is unchanged because of lack of reasonable probability of a different result. A reviewing court may, of course, dispose of an ineffective assistance argument based on this prejudice prong of the inquiry, without reaching the question of deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Mayfield, supra, 5 Cal.4th 142, 175.) We therefore deny the petition summarily.
Disposition
The disposition order is affirmed on the appeal, and the petition for habeas corpus is denied.
We concur: Kline, P.J., Haerle, J.
Welfare and Institutions Code section 701.1 reads in part: “At the hearing, the court on motion of the minor or on its own motion, shall order that the petition be dismissed..., after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602....”