Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. J21473B.
Bamattre-Manoukian, Acting P.J.
The minor, Isaac S., appeals from a dispositional order, following the finding by the juvenile court that he committed a battery (Pen. Code, § 242). The court placed the minor on six months’ probation under certain terms and conditions. (Welf. & Inst. Code, § 725, subd. (a).)
Further unspecified statutory references are to the Penal Code.
On appeal the minor contends that there is not sufficient evidence to support the finding that he committed a battery, that the juvenile court did not apply the correct legal standard in evaluating his asserted acts against the victim and in defense of his pregnant girlfriend, and that his counsel rendered ineffective assistance by failing to make an offer of proof concerning certain testimony that was excluded from evidence.
For reasons that we will explain, we will affirm the dispositional order.
BACKGROUND
In August 2009, a petition was filed under Welfare and Institutions Code section 602 alleging that the minor, then age 17, committed misdemeanor battery (§ 242). The contested jurisdictional hearing was conducted over the course of three days. The evidence presented at the hearing was as follows.
The Prosecution’s Case
On June 5, 2009, Stephanie S., the victim, went to a Watsonville shopping center with Marissa L., Alyssa G., and Stephanie’s young daughter. Stephanie is Marissa’s best friend. The pair entered Starbucks to buy coffee, while Alyssa and Stephanie’s daughter stayed in the car. The car belonged to Marissa.
While inside Starbucks, Stephanie and Marissa saw Maria H. outside in a car that was being driven by the minor. The three females knew each other from high school. Stephanie and Maria used to be “pretty good friends.” During their friendship, Maria started dating the minor. By the time of the incident at issue, Stephanie and Marissa hated Maria. Stephanie knew that Maria was “very pregnant” at the time.
Stephanie testified that while she and Marissa were in Starbucks, they did not talk about seeing Maria and the minor. Marissa testified that they “pretty much” said, “Oh, hey, look who it is....” When Stephanie and Marissa exited Starbucks with their drinks, they “split up” to walk back to Marissa’s car, each one taking a different route. Stephanie testified that she saw the minor and Maria in a car that was “blocking” other cars that were parked in the parking lot. The two were “looking at” her. She “flip[ped] them off, ” although it was “intended toward Maria only.” She engaged in the gesture because she “had problems in the past with Maria.” As Stephanie walked towards Marissa’s car, the minor “pulled up closer” in his car, got out, took off his hat, threw it in his car, and said “Who the fuck are you flipping off?” Stephanie stopped walking when the minor exited his car. She responded, “I’m not flipping you off; so don’t worry about it.”
Stephanie testified that she started to “walk away, ” but the minor walked up to her, grabbed her coffee, and threw it. He then “kicked” her from “behind [her] ankles” and pushed her. She was wearing “heels” or “wedges.” She fell back on the ground and landed on her elbow. According to Marissa, the minor “hit the coffee out of [Stephanie’s] hand” and “put his foot underneath her feet and pushed her, ” causing her to fall backwards.
Stephanie testified that she “tried getting up” but was not “completely” standing up before the minor “pushed” her again. This second push was downwards on her shoulders, and she fell back on the ground again. Marissa testified that she yelled at the minor to “stop and not to hit a woman like that....” The minor also yelled and stated that he did not “give a fuck.”
Stephanie testified that she “tried getting up again” while the minor was “standing over” her, and he pushed her a third time, by her shoulders. She then “got up” and “started pushing” the minor. She “tried pushing” him on his shoulder or chest to “defend” herself. She stated that the minor was able to “push [her] off, ” so she “never really got to... push him.” She later testified, however, that she “did push him.” During this time, they were both moving towards his car.
Stephanie testified that the minor then pushed her a fourth time. She acknowledged that she told a police officer after the incident that the minor had pushed her down three times. She later testified, however, that she told the police officer about the minor’s “last push.”
At some point, Stephanie dropped her cell phone and was crawling around the minor’s car looking for it. Stephanie testified that the minor followed her and told her to get away from the car. As a result of the incident, Stephanie suffered a scratched elbow and knee and her bracelet broke.
During the entire incident between the minor and Stephanie, Maria remained in the front passenger seat of the car. According to Stephanie, when the minor drove up after she had “flipped” them off, Maria was “yelling” or “arguing something to” Stephanie while the window was “rolled down” on the passenger-side door. Maria “seemed angry” and was “yelling stuff” but Stephanie did not remember, or did not know, most of what was said. She did hear Maria state, after one of the pushes by the minor, “That’s what you get, Bitch.” Stephanie and her friends called Maria “at different points... names like fat bitch....” Stephanie also engaged in “name calling” with Maria between the third and fourth pushes by the minor. The minor was standing in front of Stephanie when she was “arguing” with Maria. After the minor stopped pushing Stephanie, she again exchanged words with Maria while the minor was between them. At some point during the incident, the passenger-side window was “up” and only open approximately one or two inches while Maria was yelling “through it.” The minor eventually got back into the car and drove off with Maria.
Stephanie testified that she did not intend to harm Maria that day. According to Stephanie, she never walked up to the car in which Maria was sitting in order to get into the car, or to try to grab her. Marissa testified that she never saw Stephanie touch the minor’s car or Maria.
At some point, Alyssa had gotten out of Marrisa’s car. She and Marissa did not physically intervene in the incident.
Lynn P. testified that she was walking past Starbucks to another store with her daughter when she heard a “commotion” from the parking lot. She heard yelling and someone said, “Get off me, don’t hit me.” She turned and saw “a gentleman having an altercation with a girl.” She explained that she saw “two girls. One girl was standing away.” The other “girl, ” however, was “on the ground trying to get up....” The male “grabbed her from under the arms and picked her up” and she was either “dropped, ” “pushed, ” or “thrown down” by him. Lynn testified: “I don’t know if he was pushing her or dropping her because I don’t think her legs were steady, if that makes sense.” The female landed on her “butt.” The female “got up again” and the male “went to grab her... arms.” He pushed her again. Although the female had been “trying to push off, ” she went “down... again” onto her “butt.” By this later push, the female “was also hitting him, trying to get him because he was reaching for her arms or he had her arms and she was trying to push him away.”
Lynn had earlier seen the two females as she went past Starbucks. The pair “had crossed in front” of her and “were going in the direction where the altercation happened.” When asked to describe their demeanor at this earlier point in time, Lynn said, “Just girls talking.”
During the incident, Lynn saw a car behind the altercation. Inside the car, there was a “girl” who was “screaming” or “yelling out the window.” She had an “aggressive” demeanor, as she was “flailing her hands” and yelling. The window was “cracked” open “a couple of inches.” The male involved in the altercation was between the car and the female who was being pushed to the ground. It did not appear to Lynn that the female, who was being pushed, was trying to go towards the car. According to Lynn, “it looked like” the male “was hurting” the female based on “the way he was throwing her down.” It also appeared that he was using force by preventing her from getting up. The male eventually got into the car and drove away.
The police arrived 10 or 15 minutes after the incident ended. When Lynn was talking to the police, she recognized Alyssa, who had accompanied Stephanie and Marissa to the shopping center. Alyssa’s mother was the babysitter of Lynn’s children. Lynn did not know Stephanie or Marissa.
The Defense Case
Alex Z. testified on behalf of the minor. They are second cousins who saw each other a “couple of times a year.” Alex was waiting in line at Starbucks behind two females who were talking “pretty loud” about “something that they’d seen... or something they didn’t like.” Later, after he exited Starbucks, he saw them again, on the opposite side of a vehicle from where he was located. At least one of the females was taunting or arguing with the passenger of the vehicle. He believed this first female was “trying to open the door” of the vehicle, although he could not see the latch of the passenger door. The second female was “[r]ight next to her.” The driver of the vehicle got out and the females began to “back off.” At this point, Alex recognized the driver as the minor. The minor walked to the front passenger side of the car and “kind of smack[ed] the Starbucks drink” out of the hand of the first female. Alex characterized the altercation as “like a wrestling.” He described the minor as “trying to grab her” and “restraining” her, and that he kept “pushing her off.” The female still came “towards” the vehicle.
During the incident, Alex kept walking towards his own car, which was parked approximately two aisles away from the driver’s side of the minor’s car. Alex “glanced” at his own car to open the door and when he looked up, he saw the first female getting up from the ground. The second female was screaming and at some point she “tried to grab” the first female to “get her away... from the conflict.” The first female “just kept walking forward.” Once Alex reached his own vehicle, he got in and drove off. He eventually called the minor’s parents.
Maria testified on behalf of the minor that he was her boyfriend and the father of her baby. On the date of the incident, she was nine months pregnant. The minor drove her to a RadioShack at the shopping center. When they were departing in the car, she saw Stephanie “staring” at them “through the Starbucks window.” As they were exiting the shopping center, Stephanie opened the Starbucks door and “started flipping [them] off.” The minor continued driving until they received a call from his mom to buy food. They then returned to the shopping center, “head[ing] for Save Mart.”
According to Maria, they drove near Starbucks. At this point, Stephanie “walk[ed] fast towards [the car] like she was going to do something” to Maria, and she “came right up to” the front passenger window. The car had stopped and was “stuck, ” because there was a car in front of them and a car behind them. Maria did not say anything to Stephanie when she approached the car. Marissa was by the front passenger side of the car and Alyssa was “farther” away. Maria’s window was rolled down “all the way, ” and Stephanie “started trying to put her hand in... to get” Maria. Maria put her “hand up to block” Stephanie, and did not “really feel [Stephanie] touch” her. Maria ultimately sustained a bruise on her arm, which she attributed to Stephanie hitting her.
Maria stated that the minor got out of the car, which was in “park” but still “running, ” and placed himself between her and Stephanie. The minor told Stephanie, “You’re not going to hit her.” Stephanie started “scratching” at the minor and “hitting his chest.” She also continued to try to get “into the window” of the car. Stephanie said to the minor, “What, What, You’re going to hit me?” She continued hitting his chest, and the minor “mov[ed] her away” by “pushing her over.” Stephanie fell backwards but “got back up and started hitting him again.” The minor again told her that she was “not going to hit” Maria. He “moved her away, ” and she fell a second time. She came at him again, he pushed her, and she fell a third time. Somehow, Stephanie’s coffee ended up on the car window.
Maria testified that at some point after the minor exited the car, Stephanie said to her, “Get out of the car, Fat Bitch.” Marissa similarly said, “Get out of the car, Fat Bitch; Get out of [the] car.” These statements by Stephanie and/or Marissa were made approximately five times. Maria told them they were “stupid” and that she was pregnant. She did not call Stephanie any other names.
According to Maria, the minor had previously “locked” the windows using a button on the driver’s side of the car. At some point during the incident, she reached over and hit the “unlock button” and then rolled up her window so that it was only open approximately three inches. After she rolled up her window, the minor got back into the car and they drove home.
The minor testified in his own behalf that he and Maria were leaving the shopping center when a female flipped them off. He knew of Stephanie but did not recognize her that day. The minor and Maria returned to the shopping center after receiving a call from his mom. At that point, Maria pointed out someone who was walking “real fast” towards the passenger side of the car. The person appeared “tense.” The minor was “scared” of something happening to the baby, but he could not drive away because there was a car in front of him and a car behind him. He ran around to stand by the passenger side window. The minor recognized the person as the same one who had flipped them off earlier.
The minor stated that when Stephanie approached the car, she had her coffee “in a position to throw it.” When she “tried to throw it, ” he “kind of blocked it” and it hit his windshield. According to the minor, Stephanie was yelling for Maria to get out of the car. Stephanie “div[ed] into the window, ” which was rolled “all the way down, ” and tried to grab “something” or tried to grab Maria. The minor positioned himself between the two females and had one or both arms out while Stephanie was “reaching inside the window.” He saw Maria’s hand “go out the window” and Stephanie was holding it, so he gave Stephanie “the first shove” and she fell. He did not “really mean to push her that hard” and “just wanted to give her enough push to just back up.”
The minor testified that Stephanie got up, came towards him, and tried to hit him. He was “blocking” her, but she “got [him] a couple of times” on his chest. He moved backwards towards the rear passenger door, at which time she “turned around and bolted back to the passenger window.” He later testified that she was coming at him and towards the car. He gave her a “second shove, ” “hit[ting] her arm to the side, ” and she “fell back down.” This push was “a little harder than the first” because he thought she was going to get hold of Maria. He did not intend for her to fall, however. At this point, there were still cars in front of and behind his car.
According to the minor, during the first two shoves, Stephanie stated to him, “What, You’re going to hit me?” She also called him “Fat bitch.” In addition, she told Maria to get out of the car and referred to her as “Fat bitch.” The minor stated at some point, “What are you thinking? She’s pregnant. Are you dumb?” He also said, “She’s pregnant, why are you going to hit her?”
The minor stated that Stephanie looked for her phone after the second push. He testified that she then went “right back towards” him and the car and was “cussing [him] out.” He later described Stephanie as “charg[ing]” at him. The minor stated: “As she got close enough, I seen [Maria’s] window was rolled up – it was rolling up. I pushed [Stephanie] back, and that’s when I ran towards -- went to the front of the car and jumped right back in.” He later testified that he “shoved her back far enough to where [he] could run to the driver’s door and drive away.” This third and last push was with one hand, and it caused Stephanie to fall again. He returned to his car because the window was rolled up.
According to the minor, he did not intend to cause injury to Stephanie. In getting out of the car and pushing Stephanie, his “main concern” was the baby, but he was also protecting Maria. Maria had a bruise and “a couple of scratches” on her arm.
After all the witnesses testified, the juvenile court received into evidence several photographs from the prosecution and the defense, including photographs of the injuries suffered by Stephanie and aerial photographs of the shopping center where the incident occurred, with markings by the witnesses.
The Juvenile Court’s Finding
After the close of evidence on the second day of the jurisdictional hearing, the juvenile court made comments concerning the witnesses and the evidence. The minor’s counsel interrupted, seeking the opportunity to present argument. The court agreed to allow argument at a future date and stated, “you can assume everything I said thus far is a tentative. [¶]... [¶] So you can now focus your arguments. ”
On February 10, 2010, the jurisdictional hearing resumed for the third day. The juvenile court heard argument from counsel and then explained its “analysis.” The court ultimately found true the allegations of the count for battery. The minor was placed on six months’ probation under certain terms and conditions.
DISCUSSION
Sufficiency of the Evidence
The court’s comments on the third day of the jurisdictional hearing, after argument from counsel and just prior to its oral ruling that it found the allegations true, were as follows: “Let me approach this by telling you in advance a lot of what [the minor] felt, he was absolutely justified in feeling. He was probably, I’m gathering from the evidence, scared that something was going to happen to his girlfriend and baby.
“And I’ll give him that. I’m not trying to take that away from him. I’m certain that was the only thing going through his head at that moment. And I don’t think that it’s unreasonable for him to have had that thought at this moment.
“The problem is... what did he do with that thought while he had it. I’m going to disagree with Counsel that rolling up a window or some sort of other avoidance mechanism is akin to retreat because I don’t think it really is. I think it’s avoidance, but maybe this... [¶]... [¶]... 17-year-old doesn’t have the thought process. He’s developed enough to maybe rationally say, Well, now what do I do; I’m scared for my girlfriend and my baby. And maybe that’s true. I don’t know....
“The analysis I have with this case is the following: That whatever [the minor] did in the beginning, which may have been justified -- getting out of the car. Some people would say maybe that was justified. Maybe [the minor] thought that, All I need to do is step between this person, who I don’t recognize, and my girlfriend and baby; maybe that will be enough.
“And had it been enough, then nobody would be here; right? Because she would have said, Okay, All right. And it would have stopped. And so, to that extent, I don’t think you can be faulted. I don’t think you can be convicted, let’s put it that way, for getting out of the car.
“But what happened thereafter is what causes me problems in trying to analyze what I think took place. And, again, I’m not going to restate everything I said the other day. But I look at [Lynn] as being a fairly reliable witness who saw a push, pick up, maybe. I don’t think she was thrown to the ground.
“He let her go. He let her go to the ground on more than one occasion. Clearly, Maria is in the car screaming. She sees that. So there’s a lot of tension going on at this time. There’s a lot of excitement. There’s a lot of concern going on by everybody.
“At some point the Court believes that the use of force was no longer justified. And whether that happened at shove two or shove three or shove four, I can’t be entirely certain at this moment. I do know that at some point, the testimony was undisputed, that Maria rolled up the window. And once Maria rolled up the window, Maria was no longer a party to this confrontation because she was no longer in -- she and your baby were no longer in danger whether you were standing in front of them or not.
“Again, this is something in the heat of the moment. Maybe it just didn’t click. And maybe that’s what went wrong here. And whether that happened just before shove number two or shove number three or shove number four, I don’t know because the evidence was not entirely clear.
“But at that point, at least, the proper thing would have been for [the minor] to say, Okay, I’ve got to stop because she’s no longer in danger and I’m not afraid of her; she’s not trying to hurt me; so I’ve got to stop what I’m doing here.
“So from a legal analysis, I’m going to have to find the charges, allegation, sustained because of what transpired in that regard.”
On appeal, the minor refers to several comments by the juvenile court, including some that we have quoted above, and characterizes them as “express findings and conclusions of fact.” He argues that such findings and conclusions are “directly analogous to ‘special verdicts’, and... contrary to the court’s general verdict of guilty.” The minor contends that “there is insufficient evidence to convict him in light of the ‘special verdicts’ by the court.”
The People respond that the minor provides no authority for the proposition that the “juvenile court’s comments... are ‘akin to a special verdict.’ ” The People further argue that the court’s comments do not “conflict with the court’s ultimate finding that [the minor] acted unreasonably” and that the court’s “express findings are supported by substantial evidence.”
The standard of proof in juvenile court proceedings involving criminal activity is the same as in adult criminal trials. (In re Winship (1970) 397 U.S. 358, 368; People v. Nguyen (2009) 46 Cal.4th 1007, 1022 (Nguyen).) The People must prove beyond a reasonable doubt that the minor committed the offense alleged in the Welfare and Institutions Code section 602 petition. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809; Nguyen, supra, 46 Cal.4th at p. 1022.)
“ ‘In determining whether a reasonable trier of fact could have found [the minor] guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175.) “ ‘A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.” ’ [Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 891.) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of solid value.’ [Citations.]” (Ibid.) “An appellate court must accept logical inferences that the [factfinder] might have drawn from... circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
In this case, the prosecutor argued to the juvenile court that the minor committed a battery and that he did not act in the lawful defense of another. “A battery is any willful and unlawful use of force or violence upon the person of another.” (§ 242.) “Any harmful or offensive touching constitutes an unlawful use of force or violence. [Citation.]” (People v. Martinez (1970) 3 Cal.App.3d 886, 889.) “ ‘ “It has long been established, ... that ‘the least touching’ may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.” [Citation.]’ ” (People v. Myers (1998) 61 Cal.App.4th 328, 335 (Myers).)
Self-defense or defense of another is a “legal justification of battery.” (People v. Mayes (1968) 262 Cal.App.2d 195, 198; see People v. Cain (1995) 10 Cal.4th 1, 73; Myers, supra, 61 Cal.App.4th at p. 335; CALCRIM Nos. 960, 3470.) “[T]he defendant must actually and reasonably believe in the need to defend. [Citations.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; see CALCRIM No. 3470.) More specifically, the defendant must reasonably believe that the defendant or someone else was in imminent danger of suffering bodily injury or of being touched unlawfully, and that the immediate use of force was necessary to defend against that danger. (CALCRIM No. 3470.) The defense “ ‘is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1065; see CALCRIM No. 3470). Further, the right to use force continues only as long as the danger exists or reasonably appears to exist. (CALCRIM No. 3474; see also People v. Martin (1980) 101 Cal.App.3d 1000, 1010 (Martin); People v. Perez (1970) 12 Cal.App.3d 232, 236 (Perez); 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 76, pp. 410-411.) Generally, a person lawfully exercising the right of self-defense need not retreat, and the person is entitled “if reasonably necessary, to pursue an assailant until the danger... has passed. This is so even if safety could have been achieved by retreating.” (CALCRIM No. 3470; see People v. Hughes (1951) 107 Cal.App.2d 487, 494; People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346.) The prosecution had the burden to prove beyond a reasonable doubt that the minor’s use of force was not in lawful self-defense or defense of another. (CALCRIM Nos. 960, 3470.)
In this case, the juvenile court determined that “whatever [the minor] did in the beginning, which may have been justified, ” such as getting out of the car, “[a]t some point... the use of force was no longer justified.” The court stated that it was not “entirely certain” whether “that happened at shove two or shove three or shove four” by the minor. The court observed that “the testimony was undisputed” that Maria “rolled up the window.” The court explained that once the window was rolled up, Maria and the baby “were no longer in danger.” At that point, the court believed the minor should have stopped shoving Stephanie. The court stated that “the proper thing would have been for [the minor] to say, Okay, I’ve got to stop because she’s no longer in danger and I’m not afraid of her; she’s not trying to hurt me; so I’ve got to stop what I’m doing here.”
Substantial evidence supports the juvenile court’s determination that the minor committed a battery on Stephanie. Stephanie testified that the minor pushed her four times. The minor himself acknowledged shoving or pushing Stephanie three times. The minor testified that in getting out of the car and pushing Stephanie, he was protecting Maria and the baby. At some point during the incident, however, Maria rolled up her window. Lynn, who happened to be walking by when the incident occurred, testified that she saw the window only open “a couple of inches.” When Lynn saw the incident, Stephanie was already on the ground and the minor appeared to push her twice. Even the minor acknowledged seeing Maria’s window rolled up or being rolled up, and he admitted that he pushed Stephanie thereafter. This evidence is more than adequate to support the juvenile court’s determination that the minor’s use of force in continuing to push Stephanie was not justified in defense of another, as no danger existed or reasonably appeared to exist with respect to Maria or the baby when the window was up or rolling up. (See CALCRIM No. 3474; Martin, supra, 101 Cal.App.3d at p. 1010; Perez, supra, 12 Cal.App.3d at p. 236; 1 Witkin & Epstein, Cal. Criminal Law, supra, § 76, pp. 410-411.) Further, by the minor’s account, this last push was in response to Stephanie coming towards the car and him. He never testified, however, that he believed she was going to touch him on this occasion, and he did not otherwise testify that he made this push to prevent her from touching him. The factfinder might therefore reasonably conclude that any actual or apparent danger to the minor had also passed, and that the minor was not acting in lawful self-defense with his admitted final push. In sum, substantial evidence supports the juvenile court’s determination that the minor committed a battery on Stephanie.
We are not persuaded by the minor’s argument that some of the juvenile court’s statements after the close of evidence amount to “special verdicts” that are “squarely inconsistent with the general verdict of guilty” and that “there is insufficient evidence to convict him in light of the ‘special verdicts’ by the court.”
First, to the extent the minor relies on statements made by court on the second day of the jurisdictional hearing after the close of evidence, it is not clear from the record the extent to which those statements actually reflect the court’s ultimate findings or ruling. The court specifically told the parties that “everything” it had said after the close of evidence on the second day of the jurisdictional hearing was “a tentative.” When the jurisdictional hearing resumed for the third day, the court heard argument from the prosecutor and the minor’s attorney and then stated, “you should not feel this [argument by counsel] was a futile effort at any point because I’m willing to listen to argument. [¶] I’m willing to listen to what one of you, or each of you, believes to be his or her interpretation of the facts if it’s different than mine or the same as mine.” Although later the court stated that it was “not going to restate everything [it] said” during the second day of the jurisdictional hearing, it is not clear from this comment whether the court intended to adopt the entirety of the statements it made during the second day of the jurisdictional hearing.
Second, even if we consider all of the juvenile court’s comments cited by the minor, we do not believe that those comments are inconsistent with the juvenile court’s ultimate determination that the minor committed a battery. For example, to the extent the court found that the minor was justified in exiting the car and shoving Stephanie the first time, such a finding is not inconsistent with a determination by the court that a later shove was not in lawful defense of Maria, the baby, or the minor. The court explained that once the window was rolled up, Maria and the baby were not in danger and, at that point, the minor should have stopped shoving Stephanie. Although the minor points to the court’s lack of certainty as to which shove by the minor was the point at which the use of force was no longer justified, the minor does not make any argument concerning the significance of identifying one shove over another. Further, the legally significant issue is whether at least one offensive touching took place after the use of force was no longer justified. As we have stated, the testimony established that at least one shove occurred after Maria was rolling up the window and the minor never testified that this shove was based on a belief that Stephanie was going to touch him. Thus, the juvenile court’s determination that the use of force was no longer justified and that the minor committed a battery thereafter was supported by substantial evidence. In reaching this conclusion, we reject any implication by the minor that the court’s comments concerning certain witnesses, such as its statement that it “appreciat[ed]” the minor’s “honesty” and its reference to Alex, the minor’s distant cousin, as being “very honest, very candid, very believable, ” meant that the court accepted these witnesses’ entire description of the incident. Other comments by the court, as well as its ultimate finding that the minor committed a battery, reflect that the court did not accept every aspect of those witnesses’ testimony.
In sum, we determine that substantial evidence supports the juvenile court’s finding that the minor committed a battery.
Application of Legal Standard Regarding Defense of Others
We understand the minor to next argue that the juvenile court committed “prejudicial legal errors” by applying the “wrong legal standard” in evaluating the minor’s acts in defense of his pregnant girlfriend. According to the minor, instead of using the “reasonable person standard, ” the court “assumed the role of a father figure and dispensed advice as to what would have been the best possible choice [the minor] ‘could’ or ‘should’ have made.” The minor asserts that he suffered prejudice as a result of the court’s misapplication of the law.
The People respond that the juvenile court did not commit error and, to the extent the court offered “advice, ” the minor “could not have” suffered prejudice.
We do not believe that the juvenile court applied the wrong legal standard in evaluating the evidence. To the extent the minor’s argument is based on certain statements made by the court after the close of evidence on the second day of the jurisdictional hearing, such as statements concerning the “reasonable” acts the minor “could have done, ” as we have discussed, the court’s statements in this regard were only “a tentative.” Further, on the third day of the jurisdictional hearing, the court was careful to separate its “legal analysis” and ruling on the petition from the “advice” it was offering to the minor after it made its ruling. At the outset of its “legal analysis” concerning the battery count, the court explained that “we need to focus on... three instructions” and then referred to CALCRIM Nos. 960 [simple battery (Pen. Code, §§ 242, 243(a))], 3470 [right to self-defense or defense of another (non-homicide)], and 3474 [danger no longer exists or attacker disabled]. There is no contention by the minor on appeal that these instructions are not legally correct, or that the instructions omit the pertinent legal standard that the minor now contends the court failed to apply. As we have discussed, the court’s finding that the minor committed a battery, which included a determination that any right to use force ceased before the minor’s admitted final push of Stephanie, reflects the applicable legal principles and is supported by substantial evidence. As for the court’s “advice” to the minor after it made its legal ruling, such as its comment that “unless you feel your life is in danger, the preferred path is to just turn around and walk away, ” the court prefaced these comments by stating that it hoped the minor would “indulge” the court “for a minute” while it gave some “advice” and that the “advice” would “keep [the minor] out of jail.” When actually giving the “advice, ” the court clearly stated that it was acting “in the advice column” and “not in the legal analysis column.” In sum, based on our review of the record, we believe that the court was aware of the applicable legal principles and correctly applied those principles to the evidence when it determined that the minor committed a battery.
CALCRIM No. 960 states: “The defendant is charged with battery [in violation of Penal Code section 243(a)]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully [and unlawfully] touched ___________________ in a harmful or offensive manner(;/.) [¶]... [¶] [AND [¶] 2. The defendant did not act (in self-defense/ [or] in defense of someone else...).] [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶]... [¶] [It is no defense to this crime that the defendant was responding to a provocative act that was not a threat or an attempt to inflict physical injury.] [Words alone, no matter how offensive or exasperating, are not an excuse for this crime.]”
CALCRIM No. 3470 states: “Self-defense is a defense to ___________________ . The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: [¶] 1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] ___________________ ) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/ [or] defense of another). [¶] When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] [The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.] [¶]... [¶] [A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ _________________ ) has passed. This is so even if safety could have been achieved by retreating.] [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of _________________ .”
CALCRIM No. 3474 states: “The right to use force in (self-defense/ [or] defense of another) continues only as long as the danger exists or reasonably appears to exist. [When the attacker (withdraws/ [or] no longer appears capable of inflicting any injury), then the right to use force ends.]”
We also note that the minor’s counsel herself discussed the issue of what might be “good advice” to the minor. During argument on the third day of the jurisdictional hearing, the minor’s counsel discussed CALCRIM No. 3470, which pertains to self-defense and defense of another and provides that a defendant is entitled to stand his or her ground and, if reasonably necessary, to pursue the assailant until the danger has passed, even if safety could have been achieved by retreating. The minor’s counsel stated: “[T]he Court’s comments at the end of our [previous] hearing... gave me pause in terms of that portion of [CALCRIM No. 3470] because what the Court was saying to [the minor] was there was a number of things he could have done or maybe even should have done, such as, rolling up the windows, driving away, to avert the danger to his girlfriend in other ways. [¶] And I think the law doesn’t require that. I think that’s good advice. I think that would have been perhaps the right thing to do. I think that is the right advice for the Court to give [the minor]. It’s the right advice for his parents to give [the minor]. It’s the same advice I would give my kids. It’s good advice. [¶] But I don’t think it’s what the law requires.” (Italics added.)
Assistance of Counsel – Failure to Make Offer of Proof
During the jurisdictional hearing, the minor testified that when he saw Stephanie approach his car, he did not drive away because there was a car in front of him and a car behind him. When the minor’s counsel thereafter asked why he did not drive away after the first push, he testified that the cars were still there. When the minor’s counsel asked, “What about the second time, ” the minor stated: “Still there. The guy in back of me, actually, got out of his car and was telling Stephanie to, Stop, Stop. The guy that had been backing out that was in back of me, he got out of this truck and was telling Stephanie to, Stop, Stop.” The prosecutor made a hearsay objection, which the juvenile court sustained. The minor’s counsel did not comment on the objection either before or after the court’s ruling and instead proceeded with the direct examination of the minor.
On appeal, the minor argues that his counsel below provided ineffective assistance of counsel “by failing to make an offer of proof as to an exception to the hearsay objected to by the prosecution. Specifically, the bystander’s statement to Stephanie of ‘Stop! Stop!’ was an excited utterance under Evidence Code Section 1240.” The minor contends that the asserted error was prejudicial because, among other things, the bystander’s statement showed that Stephanie “was the aggressor” and that “she continued to be an aggressor well beyond” his first push.
The People respond that the juvenile court properly excluded the testimony and thus the minor’s counsel was not ineffective for failing to argue its admissibility. The People further contend that even if the testimony was admissible, the minor cannot show prejudice.
To prevail on an ineffective assistance of counsel claim, the minor must show that (1) “counsel’s performance fell below a standard of reasonable competence” and (2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) A minor establishes prejudice by demonstrating that without the deficient performance there is a reasonable probability the result would have been more favorable. (People v. Ledesma (1987) 43 Cal.3d 171, 218; People v. Anderson, supra, 25 Cal.4th at p. 569.) We “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the [minor] as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Here, we need not decide whether the performance by the minor’s counsel was deficient, because we determine that the minor has not shown prejudice from counsel’s failure to make an offer of proof, or failure to otherwise get the statement into evidence. The juvenile court heard evidence from numerous witnesses, including the participants to the incident and two individuals, Lynn and Alex, who happened to be at the shopping center at the time of the incident. The witnesses were at various locations near the shopping center and/or in the parking lot. Each witness provided detailed testimony about the incident, including their perceptions of what transpired between Stephanie and the minor. In view of the testimony, we do not believe that introduction into evidence of the minor’s statement that an unidentified individual told Stephanie to “Stop, Stop, ” apparently around the time of the minor’s second push, where it is unaccompanied in the record by any other evidence concerning what this unidentified individual saw and when, would have made it reasonably probable that a more favorable determination would have resulted. Accordingly, we determine that the minor has failed to establish his claim of ineffective assistance of counsel.
DISPOSITION
The dispositional order of February 10, 2010, is affirmed.
WE CONCUR: MIHARA, J., LUCAS, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.