Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ10014583.
KLINE, P.J.
Jose M. appeals a dispositional order of July 9, 2010, placing him on probation after the court sustained a wardship petition (Welf. & Inst. Code, § 602, subd. (a)) based on misdemeanor battery (Pen. Code, § 242) and declared a reasonable doubt as to an allegation of felony robbery (id., § 211). He claims that no substantial evidence supports the battery, but we disagree. We affirm the judgment.
All further section references are to the Penal Code, and all dates are in 2010.
Background
Evidence described mainly three incidents: Jose’s alleged robbery of Adrian Flores at the Berkeley Skate Park on February 26; Jose’s found-true battery of Adrian the next day at the park, when Adrian tried to retrieve his property; and a March 28 arrest of Jose, also at the park, after Flores again saw him and summoned police. Jose’s defense to the robbery was alibi, supported by two relatives who said they were with him at home that Friday evening, and a friend who said Jose was not at the skate park that evening.
We cannot tell the extent to which the court believed the alibi defense beyond the remark, in declining to make a true finding on that count, that it had a reasonable doubt. On the other hand, there was no question of Jose’s identity for the battery, where his claim was self-defense. Hence, we may focus on the battery evidence and largely ignore identification conflicts on the robbery, including statements Flores gave to police.
February 26. Flores, a 40-year-old Albany resident and optical network engineer for Google, rode his skateboard two to three times a week at the Berkeley Skate Park on Harrison Street, between Fourth and Fifth Streets, in Berkeley, near the border of Albany. On the evening of Friday, January 26, Flores skated there about 20 minutes and, when he went to leave, saw Jose and a Black male, each also with skateboards, sitting on a bench inside the fence, between him and the park’s sole exit. They stood as he neared. Jose started a dialogue that was at first informal but then grew menacing as he commented on Flores’ Nextel cell phone and skateboard, and then said, with a smirk, “ ‘I’m going to have to take your stuff, and there’s nothing you can do about it.’ ” It was dark, with no one else in the park. The companion urged, “ ‘Leave him alone, man, just let it go, ’ ” but Jose snatched the cell phone from Flores’s left hand and walked toward the gate with it. Flores followed the two as they reached the gate, which was closed, and demanded his phone back, but Jose just grabbed the skateboard, too. The cohorts jumped the fence and skateboarded away. Flores opted against further personal confrontation at that point but drove around in his car awhile, unable to find them. Lacking his cell phone or any other phone at home, and discouraged at losing his $700 phone (with pictures and work material on it) and board, Flores decided not to call the police.
February 27. Being in the area the next evening to pick up some food he had ordered, Flores drove by the park and saw someone who looked like one of the robbers. The park being well lit, open, and inhabited by other youths and some adults, he stopped and went in for a closer look. He saw Jose and others sitting on the ground by the fence. He did not see the other assailant but, certain now that Jose was one of them, went up to him and demanded firmly: “ ‘Where’s my stuff? Where is my skateboard? Where is my cell phone? I want it back.’ ” Jose replied: “ ‘What are you talking about?... I didn’t do it.’ ” Flores retorted, “ ‘Yes, you did, you know you did, ’ ” and grabbed Jose by the shirt with one or both hands, holding but not pulling on him, and said (still not yelling), “ ‘Where is my stuff?’ ”
Jose was 15 and a half years old, “heavy in build” and, at five feet eight or 10 inches tall, three to five inches taller than Flores. Jose stood up, grabbed Flores by the upper arms, “outpowered” him in strength, turned him around to the right (breaking Flores’s grip on his shirt) and, with both arms, pushed him forcefully against the fence. Flores had been unable to break loose during the turn but did put his arms out forward to keep his face from hitting the fence (or wall). Flores then felt a “very strong impact” to his lower right torso and knew Jose had punched him. Flores had been looking back over his left shoulder at Jose and could see, with peripheral vision, that others had backed off, leaving just the two of them.
After the blow, Flores was able to turn back around, left to face Jose, and at that moment felt punches to the back of his head from others. Finding himself surrounded and being beaten up, he screamed “ ‘Wait!’ ” and started stepping back. At a distance of 10 or 15 feet, he warned: “ ‘You better get’—‘you better leave this place now because I’m coming back. I’m going to go get the police.’ ”
Flores left the park, got into his car, and drove around a couple of times to see if the assailants were leaving. Seeing that they remained, and still lacking a replacement for his phone, he drove to the police. Being an Albany resident, and then just a couple of blocks from the Albany police station, he drove there, reported the matter and, within five minutes, had driven back to the park with two Albany officers. The assailants were gone. The officers gave him a card, explained that the park was in the jurisdiction of Berkeley police, and urged him to make a report. Flores drove home (after picking up the food he had ordered) and discussed with his “wife” (longtime girlfriend) whether to report it. He was “on the fence” and weighed concern of retaliation against himself and family. Using Skype on his home computer, he contacted Berkeley police that night, but was placed on an extended hold. He eventually opted for “hanging up, ” a decision he would come to regret. Bothered later by pain on an upper arm that Jose had grabbed, and his lower right back, where he had been punched, Flores took pictures of bruises and got medical treatment. One upper arm had fingertip-shaped bruises.
Flores did phone a Berkeley officer days later, in early March, first from work in Mountain View, but it proved difficult, given his work hours, to find a time to meet with the officer. So on the officer’s advice, he wrote up and emailed a report before dawn one morning, and followed up briefly by phone.
Jose’s friend David S., 15 years old and about six feet tall, gave a very different account from Flores’s. He testified that he was sitting and talking with Jose and another friend, Chris, when he noticed Flores walk into the park (without his distinctive “long board”). Flores walked up to them, loudly demanded his skateboard from Jose, grabbed Jose by the shirt “in his neck area, on his shoulders, ” and tried to pick Jose up. Jose rose, denied having the board, and hit Flores in the face (not from behind), but this did not break Flores’s grip. David then rose, came up behind Flores, grabbed him by a forearm (not both upper arms), and “pushed him off” Jose, into the fence, which broke Flores’s grip. According to David, Jose never grabbed Flores, and no one else punched Flores. Chris (14 years old and shorter than Jose) got up and also tried to push Flores off, David said, but “we weren’t trying to jump him or anything.” Jose was the only one who threw a punch. David was the one who fell against the fence, falling when he tripped over a backpack. Flores left the skate park, walking backwards toward the exit saying, “ ‘You have my skateboard.’ ” He got into his car and sped off.
Jose testified that he was at the park that day not to skateboard, but to watch a competition, and was sitting talking with his friend David that evening, after the event, when Flores came up. Also around them were his friends Kevin, Chris, and Terence S. Adding a new wrinkle to the accounts, Jose said Flores first “tried to be nice” and tried to shake his hand, but Jose declined an extended hand because he did not know Flores and “just don’t shake random people’s hands.” He claimed he had never seen Flores before, but knew about him from others who said he rode a really long board.
After Jose declined to shake hands, Flores asked, “ ‘Where is my skateboard?’ ” and Jose responded: “ ‘Get out of here. I don’t know what you’re talking about.’ ” Flores grabbed him by the shoulders, using both hands. Jose then got up and grabbed Flores at the shoulders (or upper chest area, according to Jose’s in-court demonstration), but only by his shirt, not by his arms. He pushed Flores back, into the fence, stumbling on a backpack and falling forward into him at the same time, so that Flores hit the fence pretty hard. But Flores still had his grip on Jose. Then, although Jose already “had him to the fence, ” Flores “got out, ” whereupon David pushed him (or possibly hit him), finally causing Flores to let go. Right after Flores let go of him and was still on the fence, Jose punched him in the face (not the back) with his right fist. The blow, to Flores’s chin area, was hard enough that Flores just screamed and ran off to his car. Thus, in contrast to Flores’s account, Jose insisted that he never hit Flores in the back, never saw anyone else hit him there, instead punched him once in the face, did so when Flores was backed (not pushed forward) into the fence, and never hit or grabbed Flores’s upper arms.
Jose said he then saw Flores get into his car, and drive up and down the street once before driving off. Jose sat back down and stayed awhile but, worried that Flores might return with others to “retaliate” against him, went home.
Since self-defense was the main issue for the battery, much of Jose’s examination focused on whether his punching of Flores was excessive as opposed to motivated by an honest and reasonable belief of imminent bodily injury. Jose described himself as taller than Flores (although only five foot six inches), and weighing in the “190’s.” Flores, by contrast, was “a little guy.”
On what motivated Jose, first, to push Flores into the fence, Jose said it was because Flores grabbed him, and he did not know Flores. He repeatedly gave the same explanation, however, as to why, after David had intervened and Flores let go of his shirt, he punched Flores in the face: “I mean, ‘cause he—I don’t know him, and then he tried to put his hands on me”; “he grabbed me, so I’m not just gon’ let anybody grab me like that if I don‘t know them”; “I’m not just gon’ let anybody grab me[, ] that I don’t know, especially”; “Well, how would you feel if somebody just grabbed you and you don’t even know them?” He said he felt “disrespected, ” felt “adrenalin, ” and wanted Flores to leave him alone. He also offered: “I mean, because—I mean, losing a fight—I mean, I’m not gon’—I guess you supposed to hit him.”
But when asked about it in various ways, Jose said he did not fear or anticipate a physical attack from Flores at that point: “Q. And since he’s a little guy and you have all your friends with you, you weren’t really worried about this guy really being a physical threat towards you, correct? [¶] A. No.” “Q. So you didn’t think that Mr. Flores... was going to hit you, actually. [¶] A. Nah.” “Q. [A]t no time you felt like he was actually going to hit you, right? [¶] A. No, I didn‘t give him a chance to hit me.”
Once, at the leading suggestion of his own counsel, Jose did say he had some kind of fear, but without saying it was a fear of physical attack: “Q. Were you feeling scared at all?... [¶] A. Yes.” Twice he said he was not threatened or afraid, but felt “intimidated” by Flores being an adult. Asked the first time if Flores being “a little guy” was why he was never really afraid of him, Jose said: “Well, I was threat—I mean, I’m not threatened, but I was intimidated because he was an adult, but not that much ‘cause he was shorter than me.” He said the second time, “... I was not that scared because he was, like, shorter than me, but I was intimidated ’cause he was an adult.” Finally, when asked the different question of whether he was afraid Flores would come back and hit him after Flores had left the park, Jose answered similarly: “Nah, I didn’t—I wasn’t, like, that afraid that he was going to hit me ’cause he was kind of short....”
March 28. Flores returned to the park on March 28 to skate and, on his way in, saw Jose and others sitting on a bench outside the park. He just went about his business, skating, but after 20 or 30 minutes, saw Jose’s friends start circling him and checking him out. Then after a few minutes, Jose walked up. Trying to keep things cool and avoid another confrontation, Flores said, “What’s up?” Jose said, “ ‘Fuck you, ’ ” skated out of the skateboarding area, and went to the back of the park.
Jose’s aggression in seeking him out convinced Flores he had to call the police, or this would keep happening. He left the park, called the police and met with an officer to recapitulate his earlier reports. Jose was arrested that day.
Discussion
Jose claims insufficient evidence of battery, meaning he urges that the evidence compels finding that he punched Flores in self-defense. “When reviewing a judgment, an appellate court ‘must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier or fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” [Citation.]’ [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 822.)
We review a wardship finding, as we do a criminal conviction (In re Roderick P. (1972) 7 Cal.3d 801, 809), for “whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) “The People... may rely on circumstantial evidence to connect the defendant with the commission of the crime charged and to establish beyond a reasonable doubt that he committed it.” (People v. Reilly (1970) 3 Cal.3d 421, 424.) “It is the trial court’s role to assess the credibility of the various witnesses [and] to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
“A battery is any willful and unlawful use of force or violence upon the person of another” (§ 242), and includes even a least touching, if offensive (People v. Golde (2008) 163 Cal.App.4th 101, 108). One who is “about to be injured” may resist a public offense (§ 692, subd. 1) with “[r]esistance sufficient to prevent the offense” (§ 693), but not with force that is excessivei.e., vindictive or beyond what appeared, from the defendant’s perspective, to be reasonably necessary to avert the threatened harm in the circumstances (People v. Ross (2007) 155Cal.App.4th 1033, 1057 (Ross)). Thus where there are several acts by the defendant (here, grabbing, pushing, and punching), the People bear the burden of proving beyond a reasonable doubt that the defendant “struck at least one blow” against the victim that was “unlawful, i.e., not struck in self-defense.” (Id. at p. 1050.)
We assume, contrary to the People’s view, that the trial court was untroubled by Jose grabbing and pushing Flores in response to Flores grabbing him by the shirt. “[A]n offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335.) While the grabbing left bruising (Flores’s account) and the pushing into the fence was harsh, “ ‘in the heat of conflict or in the face of an impending peril[, ] a person cannot be expected to measure accurately the exact amount of force necessary to repel an attack....’ [Citations.]” (Ross, supra, 155 Cal.App.4th at p. 1057.) Under the versions by both Flores and the defense, Flores had to be turned and/or pushed into the fence to loosen his grip on Jose.
We therefore assume that the court was troubled by the punch that followed the grabbing and pushing, and this raises a question of what version of the punch the court accepted. The defense version was that Flores was pushed back against the fence, facing Jose, and that Jose punched him in the chin. Flores’s version was that he was turned around and pushed face-first into the fence, then punched from behind in the lower torso. We imply in support of the true finding that the court adopted the latter version, which was consistent with the photos of the physical injuries and, in our view, a clearer case for concluding that the force was excessive. The court could reasonably find that Jose just sucker-punched Flores after he had “outpowered” him, spun him around, and pushed him into the fence. At that point, Flores could see Jose only over his left shoulder and was in no immediate position to further touch Jose. As soon as he did turn back around, he was pelted in the head by others throwing punches. Jose’s was a very strong blow that led Flores to seek medical attention. Whether deemed vindictive or just unreasonable under the circumstances, it supports the trial court’s implicit finding of no self-defense. This scenario also closely track’s Jose’s testimony that he threw the punch “because—I mean, losing a fight—I mean, I’m not gon’—I guess you supposed to hit him.”
Jose’s testimony about being unafraid of Flores hitting or physically injuring him was not fully dispositive, of course, given that a fear of being offensively touched would have been enough for continued self-defense against a simple battery. (People v. Myers, supra, 61 Cal.App.4th at p. 335.) The court, however, could believe beyond a reasonable doubt that Jose, who admitted having no fear of a further physical attack, also lacked any fear of being offensively grabbed again. Lack of an actual fear of imminent harm (be it hitting or offensive touching) defeated self-defense. (People v. Stitely (2005) 35 Cal.4th 514, 552; In re Christian S. (1994) 7 Cal.4th 768, 783.)
Jose stresses David’s testimony that he looked scared and his own testimony that he had some fear. The simple answer is that the trial court did not have to believe that testimony. But even if it did, Jose never said what it was that he feared. He did not fear being hit. He twice said he was “intimidated” by the fact that Flores was “an adult, ” but the court could reasonably construe that as a fear of being accused by an authority figure, and view David’s observation of fear the same way.
Substantial evidence supports the battery finding.
Disposition
The judgment is affirmed.
We concur: Lambden, J., Richman, J.