Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. J210829, Marsha Slough, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
King, J.
The juvenile court found true allegations that minor had committed as a misdemeanor the offenses of resisting an officer (count 1 -- Pen. Code, § 69) and battery upon a peace officer (count 2 -- § 243, subd. (b)). On appeal, minor contends the court’s judgment is not supported by substantial evidence because the officer’s use of excessive force negated the element that he was engaged in a lawful duty at the time the offenses were committed. We conclude substantial evidence supports the court’s ruling and, therefore, affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On the day of minor’s arrest there was a civil disturbance or riot on her high school campus. Campus police had detained a number of suspects, including minor’s brother, whom they were holding in the security office on campus. Officer Alan Robison, a school police officer, approached the security office in uniform from the outside and noticed minor standing in front of the door looking in.
According to the officer, he asked her to leave the area. She responded, “I’m not going anywhere.” He then advised her to leave two more times, warning her that if she did not leave she would be arrested for interfering with police duties. Minor replied, “fuck that, I’m staying here.” The officer then attempted to place her under arrest by grabbing her right elbow. Minor immediately pulled away, throwing and landing at least three or four punches on the officer’s nose, chest, and forehead. Another officer had to help Officer Robison subdue minor.
On cross-examination the following exchange between defense counsel and the officer occurred:
“Q: Now, when you first approached her you said you grabbed her right elbow?
“A: Uh-huh
“Q: Did you grab her right wrist as well?
“A: I grabbed her right elbow.
“Q: Did she - - did you twist it behind her back.
“A: I attempted to put her into a control hold. That’s when she pulled out of the control hold.
“Q: And then what happened after she pulled out of the control hold?
“A: She started punching me.”
Minor testified that she saw her brother lose his shirt and she picked it up off the ground. She, likewise, witnessed her brother taken away by security, to the security room. Minor went to the security office where she stood in front of the door for a few seconds when the officer approached her. The officer briefly questioned her and told her to leave. She told her brother that she was going to class, turned, and began walking away when the officer grabbed her and put her in a choke hold. Another officer grabbed her and threw her to the ground. She never struck the officer.
Minor’s brother testified that as he was sitting in the security room he saw his sister arrive outside. The door was open; he was only six or seven feet away from her. He heard the officer tell his sister to leave, to which she responded that she wanted to give her brother his sweater. The officer immediately grabbed her arm and put her in a choke hold for at least five seconds. Two more security officers assisted him in taking her to the ground. She never hit the officer.
The People filed a juvenile wardship petition alleging minor had committed felony resisting an officer (count 1 -- § 69) and misdemeanor battery upon a peace officer (count 2 -- § 243, subd. (b)). After a contested hearing on the matter, the trial court sustained both allegations, reducing count 1 to a misdemeanor. The court declared minor a ward of the court and imposed probation on various terms and conditions.
II. DISCUSSION
Minor’s sole contention on appeal is that substantial evidence fails to support the trial court’s finding, because the officer’s use of excessive force negates the essential element on both counts that the officer was engaged in lawful duties.
The offenses of resisting an officer (§ 69) and battery upon a peace officer (§ 243, subd. (b)) both require that the police officer be engaged in the performance of lawful duties. (In re Manuel G. (1997) 16 Cal.4th 805, 816-817; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7.) “[W]here excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties [citations].” (People v. White (1980) 101 Cal.App.3d 161, 164.)
“The reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight. The inquiry is an objective one: Was the officer’s action objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation? [Citation.] It is a pure question of fact whether a police officer used reasonable force in detaining a defendant, so reviewing courts determine if there is sufficient evidence in the record for a reasonable trier of fact to conclude that the force used in effectuating a detention was reasonable. [Citation.]” (In re Joseph F. (2000) 85 Cal.App.4th 975, 989.)
“We must consider all of the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence tending to establish the correctness of the trial court’s decision, and resolving conflicts in support of the trial court’s decision. [Citations.] In short, in juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)
Here, Officer Robison’s testimony on direct examination amounted to substantial evidence to sustain the allegations. He testified that he was dispatched to the high school in response to “civil unrest that was occurring on the school grounds.” As he approached the security office in uniform, he witnessed minor standing in front of the security office. He requested that she immediately depart. After she refused, he twice more told her to leave, threatening her with arrest if she did not comply. When minor still refused to depart, declaring “fuck that, I’m staying here,” the officer attempted to place her under arrest by grabbing her elbow. He testified that as soon as he touched her, she unleashed a barrage of blows. These facts support the true findings. The officer, based on his knowledge of what had occurred on the campus that day and the threat he believed the minor posed while standing outside the security office, was clearly acting within the scope of his duty in asking her to leave. Upon her refusal to leave after three requests, it was reasonable for him to forcibly attempt to remove her from the area near the door of the security office. Thereafter, it was minor who escalated the degree of force being used in the incident. Moreover, at no time did the officer ever testify that he administered a choke hold on minor. Therefore, substantial evidence supported the trial court’s inherent determination that the officer was engaged in lawful duties at the time of the incident when it sustained both allegations against minor.
Nonetheless, minor contends that the officer’s testimony on cross-examination amounted to an admission that he had used excessive force. The testimony quoted at length above belies that contention. First, the officer testified that he attempted to put minor in a control hold, not that he actually succeeded in placing her in a choke hold. The reasonable inference of this testimony when viewed within the context of the officer’s testimony on direct examination would be that he intended to put her in a control hold, but that as soon as he touched minor, she became combative. Moreover, even to the extent that the officer’s later testimony that “she pulled out of the control hold” would require one to assume he actually succeeded in putting her in one, nothing in the record suggests that a “control hold” amounts to excessive force. Likewise, contrary to minor’s assertion, the officer never testified that he began “choking her” or placed her in a “choke hold.” Here, minor mistakenly conflates the testimony of Officer Robison with that of herself and her brother who did so testify. However, to the extent that minor, her brother, and Officer Robison’s testimonies conflict, it was the province of the trial court in making the determination as to which testimony was more credible. By virtue of the court’s ultimate judgment, it is obvious it found Officer Robison’s testimony the more credible. We do not reweigh that determination on appeal. (In re Ryan N., supra, 92 Cal.App.4th at p. 1373.) Furthermore, minor’s contention that Officer Robison failed to comply with section 841’s requirement that an officer announce his intent and rationale in arresting someone is belied by the officer’s testimony that he twice so informed her. Thus, substantial evidence supports the court’s judgment.
III. DISPOSITION
The judgment is affirmed.
We concur: Richli, Acting P.J., Gaut, J.