Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J35556
Jones, P.J.
Desiree F. appeals the order placing her on six months probation without wardship (Welf. & Inst. Code, §§ 602, 725, subd. (a)) after the court found she committed battery on a peace officer (count 1) and resisted a peace officer (count 2). (Pen. Code, §§ 242/243, subd. (c); 148, subd. (a)(1).) She contends there is insufficient evidence to sustain the finding because the People failed to prove beyond a reasonable doubt that the officer was engaged in the lawful performance of his duties when appellant committed the offenses.
This order is appealable. (See In re Do Kyung K. (2001) 88 Cal.App.4th 583, 586-590.) All further section references are to the Penal Code.
BACKGROUND
Prosecution’s Case
Vacaville Police Detective Chris Waldrop was dispatched to the intersection of Foxboro Parkway and Youngsdale Drive to respond to a fight between 30 African American males and females. The radio dispatch did not otherwise describe the members of the group, e.g., age, clothing, height, and it did not mention that any weapons were involved.
Officer Waldrop was the first officer to arrive at the scene. When he first arrived he saw three or five people running across a field toward an elementary school and 10-15 people standing alongside vehicles parked on Youngsdale Drive. No fighting was going on.
One of the vehicles was a black Mustang. It was legally parked and its three or four occupants did not appear to be engaged in any kind of illegal conduct. Appellant was one of the Mustang’s passengers. Officer Waldrop approached the Mustang and ordered its occupants to exit and sit on the curb so he could determine what had happened.
As appellant got out of the car she was talking on a cell phone. She refused Officer Waldrop’s several directions to her specifically that he wanted her to sit down. When he gave these directions approximately 10 juveniles and adults were already sitting on the curb. She told him she did not have to sit and that he had no reason to detain her. She held her cell phone in his face, yelling that she wanted him to talk to her mother. Waldrop grabbed her by the right arm and began to push her toward the curb to sit. She immediately pulled away and punched him on the left side of his face with a closed fist. The blow left a red mark on his cheek. Using force, he took her to the ground and handcuffed her.
Defense
Glenn DeLorenzo lives on Youngsdale Drive near its intersection with Foxboro Parkway. He described the area as a “quiet” neighborhood. He was standing in his driveway when he saw a “bunch of kids” up the street arguing and yelling. The group gradually moved along the street until it was directly in front of his house. His wife telephoned the police. He saw Officer Waldrop arrive and instruct the group to sit down and be quiet. Everyone in the group complied. DeLorenzo did not see any of the juveniles assault Officer Waldrop. DeLorenzo could hear everything during the incident with Officer Waldrop, but he could not identify any of the 15 to 20 juveniles who were at the scene.
Michelle Alvarez testified that she and appellant were driving in Alvarez’s black Mustang after school to pick up two male friends at a park on the corner of Foxboro and Youngsdale that is adjacent to a school. She knew there had been a fight earlier in the vicinity, but she and appellant were in another town at the time. There were other people and a blue truck at the corner when they arrived. She parked behind the blue truck. The two friends got in the Mustang, and the other people gathered around her car to talk about the fight. Officer Waldrop arrived about two minutes later. He parked in front of the truck. He spoke to the people in the truck, and they got out. He then told Alvarez and her passengers to get out of the car and sit on the curb. Although Alvarez thought his tone was unprofessional, she cooperated with his directive.
While Alvarez and appellant were sitting on the curb, Alvarez told appellant to telephone her mother. Appellant reached her mother, stood up, and told Officer Waldrop that her mother wanted to speak to him. He replied to the effect that he did not want to talk to appellant’s mother and directed appellant to sit back on the curb. Alvarez saw Officer Waldrop and appellant engage in a physical altercation, but she did not know how it began. Once their altercation began, all the juveniles who had been sitting on the curb jumped up and gathered around them in a circle. Alvarez was standing behind the circle, so she could not see what was going on. She did not see appellant strike Officer Waldrop or make any threats toward him. She saw Officer Waldrop grab appellant’s arm and push her against a fence. Appellant pulled back, and Officer Waldrop twisted her arm behind her back and pushed her head down. After the confrontation between Officer Waldrop and appellant began, appellant’s telephone fell to the ground.
Appellant’s mother, Beverly Brown, testified that appellant telephoned her to say she had been pulled over and was sitting on a curb. She told Brown that she did not know what was going on, and Brown instructed her to ask. Brown could hear an officer yelling in the background. She heard appellant tell the officer, “‘My mom wants to know what’s going on,’” and heard the officer respond in a derogatory, agitated fashion, “‘If your mom wants to know what’s going on, she needs to get her ass up here.’” Brown instructed appellant to give the officer the telephone, and then heard appellant say, “‘My mom wants to talk to you.’” Brown heard the officer say he would not talk to her mother, heard him order appellant to sit down, and heard appellant say, “‘I am.’” Just as Brown told appellant to “‘watch [her] tone,’” she heard appellant yelling, “‘Don’t touch me. Stop it. You are hurting me.’” She heard the phone fall to the ground; it then went dead. In less than a minute she received a call from a woman she did not know, who told her to “‘get [appellant] right now,’” because “‘[t]hey threw her into the fence, he threw her onto the roof of the car, and they now have her in the middle of the street and he’s choking her.’”
Appellant’s testimony largely corroborated Alvarez’s testimony. She explained that she and Alvarez went to the park to pick up their two friends, and Alvarez was then going to give them a ride home. The park was on the route to appellant’s house, which was about a three minute drive away from the park. Between 10 and 15 people and one vehicle were in the area when she and Alvarez arrived. Appellant knew there had been an argument earlier in the day, but there were no fights going on when she and Alvarez arrived. A minute later Officer Waldrop arrived. He spoke to the people in the other vehicle, and they got out and sat on the curb. In a rude tone he then told appellant and her companions to do the same. As they sat on the curb, Alvarez told her to telephone her mother. Officer Waldrop refused to speak to her mother and told appellant to sit down. She said, “‘okay’” and turned around to sit. He grabbed her right arm; she dropped the phone and started to scream. She never intentionally struck Officer Waldrop or tried to hurt him, and he instructed her to sit just once.
Orders
As to count 1, the court found appellant committed a misdemeanor battery on a police officer, in violation of sections 242 and 243, subdivision (c). It also found true count 2, resisting an officer in violation of section 148, subdivision (a)(1).
In disposition of the matter, the court placed appellant on six months informal probation without wardship.
DISCUSSION
Appellant contends there was insufficient to prove the two counts because the prosecution did not prove beyond a reasonable doubt that Officer Waldrop was engaged in the lawful performance of his duties when she committed the alleged violations.
When a juvenile court sustains the allegations of criminal counts in a Welfare and Institutions section 602 petition, the appellate court reviews a challenge to the sufficiency of the evidence to support the ruling under the sufficiency of the evidence standard: on the whole record, could a rational trier of fact have found the defendant guilty beyond a reasonable doubt? (In re Roderick P. (1972) 7 Cal.3d 801, 808-809; In re Andrew I. (1991) 230 Cal.App.3d 572, 577.) It views the evidence in the light most favorable to the ruling and presumes the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) It determines whether the evidence of each essential element of the offense charged is substantial, that is, reasonable, credible and of solid value, cognizant that questions of witness credibility are the exclusive province of the trier of fact. (Ibid.; People v. Thornton (1974) 11 Cal.3d 738, 754.)
Conviction of a violation of section 148, subdivision (a)(1) requires proof of willfully resisting an officer “in the discharge or attempt to discharge any duty . . .” A violation of section 243, subdivision (c) similarly requires proof of a battery on an officer “engaged in the performance of his or her duties.” A person cannot be convicted of these offenses “unless the officer was acting lawfully at the time the offense against the officer was committed.” (In re Manuel G. (1997) 16 Cal.4th 805, 815.) Appellant argues Officer Waldrop was not acting lawfully when she pulled away from his grasp and struck him as he pushed her to the curb because he had detained her without a reasonable suspicion that she had participated in the reported fight or any other criminal activity.
The Fourth Amendment of the United States Constitution prohibits unreasonable “seizures,” which include brief investigative stops, of a person. (People v. Souza (1994) 9 Cal.4th 224, 229.) A police officer’s temporary detention of a person is reasonable for Fourth Amendment purposes “when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Id. at p. 231.)
We conclude there was insufficient evidence to establish beyond a reasonable doubt that Officer Waldrop’s detention of appellant was lawful. Other than race, sex, and approximate number, the radio dispatch he received had no particular description of any of the participants in the reported fight, nor of any weapon use. When he arrived at the site of the reported fight, there was a group of 10-15 people gathered outside two vehicles, but these people were not fighting. Officer Waldrop did not testify that the group was, or appeared to be, engaged in any other illegal or disruptive behavior or that anyone was injured. The car in which appellant was sitting was legally parked, and there was no apparent illegal activity occurring in the car. Officer Waldrop’s testimony did not express any concern for officer safety when he approached the car in which appellant was sitting.
We recognize that the focus of the jurisdictional hearing was whether or not appellant actually struck Officer Waldrop, not whether the detention was lawful, presumably because appellant’s prehearing motion to suppress (Welf. & Inst. Code, § 700.1) had been denied. However, the People discharge their burden of showing a seizure was reasonable in response to a motion to suppress under the lesser standard of proof by a preponderance of the evidence. (See People v. James (1977) 19 Cal.3d 99, 106, fn. 4.)
The circumstances as described in Officer Waldrop’s testimony did not constitute specific articulable facts to provide an objective manifestation that appellant might be involved in criminal activity. Therefore, he did not have grounds to detain her by ordering her to get out of the car and sit on the curb. Because there was insufficient evidence of a requisite element of the offenses charged--officer acting lawfully at the time of the offenses--there was insufficient evidence to find appellant guilty of the offense of section 148, subdivision (a)(1), resisting a peace officer or of section 243, battery on a peace officer.
However, in finding appellant guilty of battery on a peace officer, the court necessarily had to find all the elements of section 242, often referred to as “simple” battery, and appellant has not asserted on appeal a lack of sufficient evidence to support such a finding. Given the deference granted by the appellate court to the trial court’s factual findings and resolution of witness credibility, we find substantial evidence in the record to support a finding that appellant committed a battery on Chris Waldrop, in violation of section 242. The findings shall be modified accordingly. (See §§ 1181, subd. (6), 1260; People v. Navarro (2007) 40 Cal.4th 668, 671.)
DISPOSITION
The February 24, 2006 and April 5, 2006 orders are modified to reflect a finding that appellant committed a violation of section 242 only. As so modified, the orders are affirmed.
We concur: Simons, J., Needham, J.