Opinion
F049320
12-13-2006
In re JEFFREY S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JEFFREY S., Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On May 28, 2004, appellant Jeffrey S. and Michael C. attacked Cody D. and repeatedly punched and kicked him in the head and torso. Cody died as a result of a skull fracture sustained during the attack.
In April 2005, the juvenile court found true the allegations in a wardship petition that appellant committed second degree implied malice murder (as a lesser included offense to the charged first degree murder) and that he personally inflicted great bodily injury on the victim. (Pen. Code, §§ 187, 245, subd. (a)(1), 12022.7, subd. (a).) The maximum term of confinement was set at 15 years. He was committed to the Department of Corrections and Rehabilitation, Juvenile Justice.
Appellant argues the second degree murder finding must be reduced to involuntary manslaughter because the record lacks substantial evidence supporting the courts implied finding that appellant was subjectively aware of or appreciated the life-threatening risk created by his conduct when he and Michael beat Cody. We disagree and will affirm.
FACTS
I. The attack on Cody
In early May 2004, Cody whistled at Becky C. while he was driving past her residence. Cody subsequently apologized to Becky and her boyfriend, Anthony U.
On May 28, 2004, Cody went to a park with Amanda L., Christina M. and Melissa F. A boy named Craig approached the group and said that "Mike" wanted to talk to Cody. He mentioned something about fighting because someone had whistled at his sister or someones sister. Craig wanted Cody to accompany him to the basketball courts.
Cody was concerned that he was going to be "jump[ed]" so he and the three girls decided to leave the park. As they left, a group of about five boys and two girls followed them; appellant, Michael and Michaels older brother, Daniel, were members of this group. Appellant and Michael tried to approach Cody but were blocked by Amanda, Christina and Melissa. Appellant was angry and told the girls to get out of the way. Appellant pulled off his shirt. Amanda testified that appellant yelled at Cody something that sounded like, "Stop, were going to whomp your ass right now." Amanda yelled, "Go away. There is no need for this."
Appellant and Michael hit Cody and he fell to the ground. Appellant and Michael punched Cody in the ribs, face and stomach. Cody rolled into a ball to protect himself. He did not fight back.
Cody got up and ran across the street. Appellant, Michael and the rest of their group chased Cody until they cornered him in a driveway area where he could not escape. Appellant and Michael hit Cody with their fists and appellant knocked him to the ground. Amanda testified that "all five of them" started kicking Cody.
Everyone except appellant and Michael backed away. Appellant and Michael continued beating Cody. Amanda testified that some of the blows were kicks and some were stomps on Codys head and ribs. She saw appellant kick Codys head. Melissa saw Michael stomp on Codys head at least one time; she did not see appellant stomp on Codys head. Gina R. testified that she saw appellant kick Cody on the side of his head. The beating stopped when Daniel told appellant and Michael that it was "enough" and pulled Michael away. Gina and Amanda testified the beating lasted about a minute and a half while Melissa thought it lasted four to five minutes.
In an interview with Detective Blake, Gina said Michael took his shirt off and stomped on Codys head. She did not see appellant hitting or kicking Cody.
Robert and Jacquelyn Miller testified that they saw a boy being chased by two to four other boys. Two of the boys knocked the boy they were chasing to the ground. One of the boys straddled and struck him five to seven times. Mrs. Miller testified that it appeared at least two boys were punching him. Neither of the Millers saw anyone kick or stomp him.
Appellant and the other boys walked away. Appellant showed Trevor Q. his hands and said, "Look at my knuckles." Appellants hands were swollen.
Amanda and Melissa helped Cody to stand. Cody said he was "fine," but he repeatedly asked "if his ears were bleeding." Amanda noticed a large lump over one of Codys eyes and a lump on the back of his head. No one sought medical treatment for Cody.
Zachary F. told Deputy Whitfield that he talked with Cody round 9:00 or 9:30 p.m. Cody said he had been "jumped by four guys." Cody "wanted to get a group of guys together and go back and finish it."
Around 9:30 p.m. Cody sent a text message to his mother, who was at a movie with Codys sister. Cody wrote that "he was jumped but he didnt know why."
Codys mother and sister returned home from the movies around 1:00 a.m. Cody assured them that he was fine. Codys mother did not observe any injuries. Around 4:00 a.m., Codys sister checked on him. He yelled at her for waking him up.
Around 7:10 a.m., Codys mother went into his bedroom. He was laying face-down and his body was partially underneath his dresser. She rolled him over and saw that "he was blue." She called for emergency assistance.
John Eisele, a forensic pathologist, performed the autopsy on Codys body. Codys death resulted from a small skull fracture in the left temporal bone near the left ear. The skull fracture was caused by a "blunt impact." The fracture was probably caused by one forceful blow, such as a kick. Cody also suffered several small abrasions over the back of his head with swelling and bruising over the back left portion of his head. There was an abrasion over the right forehead just below the hairline and a bruise above the right eyebrow. He had small bruises on the left chest, the right hipbone, a shoulder and the lower back. He had scrapes on his arms, kneecap and left shin.
After appellant was arrested, he was interviewed by Modesto Police Detectives Thomas Blake and Mark Copeland. Appellant admitted that he was in the park with Michael, Daniel and others. Michael confronted Cody. Appellant said that he hit Cody twice. Cody got up from the ground and ran. When Cody fell, he jumped on him and hit him two or three times. The incident ended when he was pulled away by a girl. Appellant said that he was angry and when he is angry, "Its like I cant control myself. If I wanna stop I cant." Appellant denied kicking or choking Cody. Appellant told Detective Copeland that "in the past he had hit somebody so hard that ... `I made it to where he couldnt stand up again ...."
II. Appellants prior assaults
Stanislaus County Deputy Sheriff Glenn Caldwell testified that on October 8, 2002, he was a resource officer at Hanshaw Middle School. Appellant pushed Jose M. to the ground and repeatedly kicked him. Jose complained of pain in his left ear and upper chest area. Appellant said he attacked Jose because Jose ripped his shirt while they were playing soccer. When Deputy Caldwell asked appellant why he kicked and beat Jose after Jose was on the ground, appellant replied "that `He only knows one way to fight. And thats to savagely beat someone." Deputy Caldwell requested that appellant take classes in conflict resolution and anger management.
Joseph H. testified that he was attacked and beaten by appellant, Michael, Daniel and Anthony U. on December 11, 2003. The group of boys approached Joseph. Michael asked Joseph why he was "trying to take [his] girl," and then said, "Im going to beat your ass," and "You aint going to see the light of day again." Michael hit Joseph on the back of the head. Appellant called Joseph "a pussy bitch" and started to wrestle with him. Before Joseph knew it, the confrontation had escalated into "a brawl." The fight broke up and Michael said, "Well see you down the block." The group of boys walked away from Joseph. As Joseph walked down the street talking on a cell phone, appellant and Michael said, "We werent finished." Appellant, Michael and Daniel kicked and punched Joseph in the head, face and body for about seven minutes. Joseph suffered bruises, bumps and swelling. Travis G. saw Joseph "being jumped" by "a group of guys."
As a result of this incident, juvenile charges were filed against appellant. Probation Officer Regina Coffee interviewed appellant and his mother about this crime. Appellant admitted hitting Joseph one time. Coffee discussed appellants anger management problem with him and told him "[t]hat he needs to work on that, controlling his anger." Coffee recommended that appellant become a ward of the court and receive anger management counseling. Appellant was sentenced on March 16, 2004.
III. Defense evidence concerning appellants mental state
Dr. Robin Schaeffer, a psychologist, reviewed the police reports and videotape of appellants interview with Detective Blake. He interviewed appellant and administered an I.Q. test. Appellant told Dr. Schaeffer that his mothers boyfriend beat him from the age of eight until he was 14 years old. Appellant said that his biological father rarely and inconsistently interacted with him.
Dr. Schaeffer determined that appellant, who was 15 years and 10 months old at the time of testing, was cognitively at the developmental level of a 13 to 14 year old and is relatively immature emotionally. Appellant has an average I.Q. but his reasoning ability is decreased in interpersonal situations. Appellant was not able to apply logical reasoning in real-life situations. Also, adolescents do not appreciate mortality. Dr. Schaeffer concluded that appellant did not have the ability to understand the consequences of his actions when he participated in the beating. He could not "factor in in advance the fact that someone could die as a result of his actions in the fight." Appellant did not intend to kill Cody, only "to make him hurt, to teach him a lesson, and to teach him that he could not get away with humiliating [Betsy]."
Dr. Gerald Emery, the principal at P.A.C.E. (the juvenile hall education center), testified that appellant had only minor disciplinary contacts with him and did not get into any fights. Appellant is easily led by other students and strived to please and be accepted by them. Appellant is naive and impulsive; he does not always think through the consequences of his actions.
DISCUSSION
The record contains substantial evidence supporting a reasonable inference that appellant appreciated the risk of death involved in hitting and kicking Cody.
The standard principles of judicial review are applicable to the appellate courts when considering the sufficiency of evidence admitted in juvenile proceedings. (In re Michael B. (1983) 149 Cal.App.3d 1073, 1089 (Michael B.).) In reviewing the sufficiency of the evidence supporting a conviction, the appellate court determines whether there is any substantial evidence of the existence of each element of the offense charged. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Direct and circumstantial evidence is considered in the light most favorable to the judgment and all reasonable inferences are drawn in its favor. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
The court found appellant guilty of second degree murder based on an implied malice theory. "Normally, hitting a person with the hands or feet does not constitute murder in any degree. [Citations.] But if death or great bodily harm is a reasonable or probable consequence of the beating the offense may be murder. [Citation.] Thus, to constitute murder there has to be ... such wanton and brutal use of the hands without provocation as to indicate that they would cause death or serious bodily injury so as to indicate an abandoned and malignant heart." (People v. Teixeira (1955) 136 Cal.App.2d 136, 150.) If a defendant commits an act that endangers human life and he or she realizes the risk involved but nevertheless acts in total disregard of the danger, he is guilty of second degree murder based on implied malice. (People v. Cleaves (1991) 229 Cal.App.3d 367, 378.) "[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (People v. Watson (1981) 30 Cal.3d 290, 296-297.)
Appellant argues his second degree murder conviction must be reduced to involuntary manslaughter because there is insufficient evidence proving that he appreciated the risk of death involved in his conduct. Appellant cited the following facts in support of this argument: (1) he used only his hands and feet during the attack on Cody; (2) the attack lasted only a few minutes; (3) Cody was able to walk away after the beating concluded; (4) in appellants past violent incidents the victims were not seriously injured; (5) Dr. Schaeffer offered an uncontroverted expert opinion that appellant was unable to subjectively appreciate the dire nature of his conduct; and (6) Dr. Emery testified that appellant is impulsive and does not always think through the consequences of his actions. In opposition, respondent points to the following facts, arguing they support a reasonable inference that appellant realized the danger: (1) the brutality of the beating; (2) appellants prior attacks on Jose and Joseph; (3) appellants statement that he only knows one way to fight and that is savagely; and (4) appellants statement that he previously hit someone so hard he knocked the person to the ground. We agree with respondent.
Respondent points to numerous cases upholding second degree murder convictions in which death resulted from an attack with fists and feet. (See, e.g., People v. Matta (1976) 57 Cal.App.3d 472, 476-481; People v. Beyea (1974) 38 Cal.App.3d 176, 186-189; People v. Breland (1966) 243 Cal.App.2d 644, 646-649, 653; People v. Efstathiou (1941) 47 Cal.App.2d 441, 442-443.) While none of these cases involve a juvenile, they impliedly support the general proposition that one may infer subjective awareness of the possibility of serious injury or death from the circumstances surrounding the fatal beating.
Appellant attempts to minimize the duration and severity of the beating. We cannot do so. This was a horrific group beating that lasted for up to five minutes. Appellant removed his shirt and told Cody something to the effect that "we" are going to "whomp" his "ass." When Cody fled at one point, appellant and his cohorts chased him and cornered him where he could not escape. Cody was knocked to the ground and then he was hit and kicked by five assailants. Amanda and Gina saw appellant kick Cody in the head. Melissa saw Michael stomp on Codys head at least one time. Three of the assailants eventually backed away but appellant and Michael continued to kick and hit Cody. The beating only ended when Daniel pulled Michael away from Cody and told them it was "enough." After the beating, appellant showed Trevor Q. his hands and told him to look at his knuckles, which were swollen.
Appellant also minimizes the importance of his prior assaults and statements concerning these prior attacks. Appellant said that he only knew one way to fight and that was to "savagely beat" the person. Appellant told Detectives Blake and Copeland that "in the past he had hit somebody so hard that ... `I made it to where he couldnt stand up again ...." Appellant told the detectives that when he was angry he "cant control myself. If I wanna stop I cant." These statements certainly support a reasonable inference that appellant knew that when he began a fight, he would lose control and would savagely beat the victim. Furthermore, appellant was prosecuted for the attack on Joseph H. and was sentenced approximately two and a half months before he attacked Cody. Thus, appellant knew the wrongfulness of fighting and the serious consequences that result. He also knew that he had a problem with anger management.
Appellant heavily relies on Michael B., supra, 149 Cal.App.3d 1073, arguing that it is analogous to this matter. There, the appellate court concluded the evidence was insufficient to support the finding that Michael, age nine, was guilty of involuntary negligence in the shooting death of John, age 14. John had refused to leave Michaels house after Michael asked him to do so. Michael pointed his fathers rifle at John and pulled the trigger in the hope this would scare John into leaving the house. Michael believed the gun was unloaded and he did not understand the safety mechanisms. Michael had to been warned by his parents not to play with the gun. He had not received any safety rules for handling guns. Appellant was hospitalized after the shooting because he was hysterical, hyperventilating, and incoherent. (Id. at pp. 1077-1078.) A psychiatric expert testified that Michael could not appreciate the consequences of threatening John with a gun and did not understand the permanence of death. (Id. at pp. 1082-1083, 1088.) The appellate court determined that the evidence was insufficient to show that Michael understood the wrongfulness of his act under all of the circumstances. Therefore, the prosecution failed to prove that Michael had the legal capacity to commit involuntary manslaughter. (Id. at pp. 1088-1098.) Furthermore, "it necessarily follows that a rational trier of fact could not find [Michaels] conduct so aggravated, culpable, gross or reckless as to be `incompatible with a proper regard for human life ...." (Id. at p. 1089.)
We find Michael B. factually distinguishable. First, Michael was nine years old; appellant was 15. A 15 year old, even an immature one, is substantially more cognitively and emotionally developed than is a nine year old. Even if we were to accept Dr. Schaeffers opinion that appellant is cognitively a year or two behind the norm, a 13 year old is significantly better developed than is a nine year old. Next, Michael had not committed any prior assaults with a firearm. In this case, appellant previously attacked two other people in a manner similar to the beating that killed Cody. Appellant had been disciplined for these attacks. He expressed awareness that he loses control when he starts a fight and savagely beats the victim. Finally, Michael had to be hospitalized after the shooting because he was hysterical. Here, appellant showed no such concern. Rather, appellant and his cohorts fled the scene without any apparent concern for Cody.
Appellant also relies on Dr. Schaeffers testimony. However, the trial court was not constrained to accept Dr. Schaeffers opinion over conflicting circumstantial evidence. This point is even acknowledged in Michael B., supra, 149 Cal.App.3d at page 1088. The court was the trier of fact and it was its duty to assess the credibility of witnesses and to make factual findings on contested evidentiary points.
Accordingly, we conclude the record contains substantial evidence supporting a reasonable inference that appellant appreciated the risk of great bodily injury or death inherent in actively participating in group beating that involves blows, kicks and stomps to the victims torso and head.
DISPOSITION
The judgment is affirmed.
We Concur:
HILL, J.
KANE, J.