Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. TJ17915 Charles R. Scarlett, Judge.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
K.H. appeals the juvenile court’s order sustaining a Welfare and Institutions Code section 602 petition alleging appellant assaulted his sister with a deadly weapon in violation of Penal Code section 245. Specifically he claims the prosecutor failed to present sufficient evidence that he had the requisite intent to commit the offense. He claims that the evidence presented at trial demonstrated that his sister’s injuries were the result of an accident rather than a deliberate intent to injure her. Substantial evidence presented in the juvenile court supported the court’s order. In the alternative, appellant argues that the juvenile court’s failure to determine whether the offense was a misdemeanor or felony pursuant to Welfare and Institutions Code section 702 mandates remand for such a determination. Although we find that sufficient evidence supported the court’s order sustaining the petition, we also conclude that the matter must be remanded to the juvenile court to allow the court to exercise its discretion to determine whether the assault with a deadly weapon was a misdemeanor or felony.
FACTUAL AND PROCEDURAL HISTORY
On February 6, 2009, appellant, who was then 15 years old, came to the attention of the Los Angeles Police Department (LAPD) when police came to appellant’s home at about 10:00 p.m. to investigate an alleged assault. Appellant’s mother had called police because she had been involved in an argument and physical altercation with appellant. Appellant’s mother wanted the police to remove appellant from the home so he could “cool down.”
While the police were at the home, appellant’s nine-year-old sister, Az.Y., told LAPD Officer Marco Sobrino, that earlier that morning while she and her siblings were getting ready for school, she witnessed appellant and another sister, Fel.J., argue. Az.Y. told the officer that during the course of the argument, she saw appellant, who had been ironing his clothes at the time, burn Fel.J. on the shoulder with the hot clothes iron. Fel.J. refused to discuss the incident with police.
The police took appellant into custody. Officer Sobrino advised appellant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 and appellant agreed to speak about the incident. According to Officer Sobrino, appellant stated that he was ironing his clothes in a bedroom of the family home and that Fel.J. was also in the room. Appellant told the officer that he and Fel.J. started to argue, that she hit him in the back and that he burned his sister on the shoulder with the iron.
Appellant was arrested and charged with being a minor coming within the provisions of Welfare and Institutions Code section 602. The petition alleged appellant assaulted Fel.J. with a deadly weapon in violation of Penal Code section 245.
At the hearing on the section 602 petition, Officer Sobrino testified as to the information provided by Az.Y. and the statements appellant gave during his police interview.
Appellant and his family members also testified. Specifically, Fel.J. testified that on the morning of February 6, 2009, she was in a small bedroom of the family home with appellant. She stated that at the time, she was bending down in a walk-in closet of the bedroom looking for a shoe while appellant was nearby ironing his clothing. She testified that appellant was also talking to their younger brother, who was also in the room in bed; appellant was yelling at the younger brother, telling him that it was time to get up because they were already late for school. Fel.J. said that appellant and she were facing away from each other, and that appellant was holding the hot iron behind his back. She stepped out of the closet and backed into the hot iron appellant was holding. She suffered a burn on the back of her right shoulder. After being burned, Fel.J. stated that she ran to her mother’s bedroom to seek aid. She said that she told her mother that it was an accident and never spoke to police about it. She denied that appellant intentionally burned her with the iron.
Az.Y. also testified that the hearing. Az.Y. stated that she could not remember speaking with Officer Sobrino about the incident. Az.Y. denied that she told the officer that she had witnessed appellant and Fel.J. argue that morning, and that she did not see appellant burn Fel.J. with the hot iron. Az.Y. stated that at the time she was in the bathroom getting ready for school. Az.Y. said she heard appellant yelling at her brother about getting ready for school. Az.Y. testified that Fel.J. had told her that she had been accidently burned by the iron when she backed into it as she was exiting the closet.
Appellant’s mother, Christina Y. also testified at the hearing. She told the court that she was in her bed in another room when she heard Fel.J. scream. Fel.J. ran into Christina Y.’s bedroom. According to Christina Y., Fel.J. reported that she had been burned by accident. Christina Y. stated that she took the iron from appellant but she did not call the police because of the incident. She testified that she told the officers that the burn was the result of an accident.
Appellant also testified at the adjudication hearing. He told the court that he was ironing his clothing in the bedroom that morning while Fel.J. was searching inside the closet for a shoe. He further testified that he had been yelling at his younger brother to get out of bed. According to appellant, he put the hot iron on the top shelf of the closet, and that when Fel.J. stood up she backed into the iron and was burned.
Appellant admitted that he spoke to police, telling them that he and Fel.J. had argued and that he had intentionally burned her, but appellant also testified that he made those statements because the police kept asking him the same question-“why did you burn Felisha?”-and that at first he told them it was an accident. But because officers persisted in questioning him, and because he was tired, he lied to the police so that they would leave him alone.
The juvenile court sustained the allegation in the petition against appellant and declared him a ward of the court, placed him in the care, custody and control of the parole officer, and permitted appellant to remain in his family’s home. The court did not declare whether the offense was a felony or misdemeanor, although the petition charged the offense as a felony and the minute order from the adjudication hearing indicated that the offense was a felony. The dispositional order also indicated that appellant was required to submit a DNA sample pursuant to Penal Code sections 296 and 296.1
This appeal followed.
DISCUSSION
Before this court, appellant challenges the evidence supporting the juvenile delinquency court’s finding that he committed assault with a deadly weapon in violation of Penal Code section 245. In the alternative, appellant also claims that he is entitled to remand because the court failed to declare whether the offense, which is a “wobbler, ” was a felony or a misdemeanor. We turn our attention first to sufficiency of the evidence claim.
I. Appellant’s Challenge to the Sufficiency of the Evidence Supporting the Court’s Finding that He Violated Penal Code Section 245
Appellant claims that sufficient evidence presented at trial did not support the court’s conclusion that he was a minor described under Welfare and Institutions Code section 602, based on a finding that appellant committed assault with a deadly weapon. Specifically he argues that the prosecution failed to present any evidence that he had the intent to commit the assault. He claims that all of the direct evidence presented at trial demonstrated that his sister was burned by the iron by accident, and that the evidence supporting his conviction was unreliable.
A. Standard of Review
In a criminal case when sufficiency of the evidence is challenged on appeal, our role in reviewing the evidence is limited. “It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the ‘substantial evidence’ test.” The standard of proof is the same in juvenile delinquency proceedings as that required in adult criminal trials. (See In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) Under this standard, this court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Cuevas (1995) 12 Cal.4th 252, 260; People v. Johnson (1980) 26 Cal.3d 557, 578.)
“‘[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction... [is] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ [Citation.] Explaining this standard the [United States Supreme Court has] said that ‘this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Johnson, supra, 26 Cal.3d at p. 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
“The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
A single witness’s testimony is sufficient to support a conviction, unless it is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296; Evid. Code, § 411.) “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the [substantial evidence] standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.) With this standard in mind we turn to the evidence presented at the adjudication hearing.
B. Assault with Deadly Weapon
The Welfare and Institutions Code section 602 petition alleged that appellant had committed an assault with deadly weapon, to wit an iron, upon Fel.J. in violation of Penal Code section 245, subdivision (a)(1), which provides: “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished” A conviction (or in this case a finding by the juvenile court) for assault requires proof “that there was an assault, that it was with a deadly weapon, and that the defendant intended to commit a violent injury on another.” (People v. Birch (1969) 3 Cal.App.3d 167, 177.)
Before this court, appellant does not dispute that Fel.J. was assaulted or that the clothes iron qualifies as a deadly weapon. Instead, appellant contends there was not sufficient evidence to prove the element of intent. We do not agree.
The mental element for the assault charge is that “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) “The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm.... The evidence must only demonstrate that the defendant willfully or purposefully attempted a ‘violent injury’ or ‘the least touching, ’ i.e., ‘any wrongful act committed by means of physical force against the person of another.’ [Citation.] In other words, ‘[t]he use of the described force is what counts, not the intent with which same is employed.’ [Citation.] Because the offensive or dangerous character of the defendant’s conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 214-215.)
The evidence presented at the hearing, through the testimony of Officer Sobrino, indicated that Az.Y. volunteered to police that she had witnessed appellant and Fel.J. argue, and that during the argument, appellant burned Fel.J. with the hot iron. In addition, the court heard evidence of appellant’s confession to police in which he admitted he and Fel.J. had argued, that she struck him and then he burned her with the iron. From this evidence the court could reasonably infer appellant’s criminal intent under Penal Code section 245, subdivision (a)(1).
We reach this conclusion notwithstanding that the testimony of appellant and his family members at the hearing contradicted that of Officer Sobrino. While the testimony of appellant and Fel.J. was inconsistent on whether appellant held the iron at the time of the injury, significantly in all other respects the family’s testimony supported appellant’s version that Fel.J. was injured as a result of her accidently backing into the iron. Nonetheless, a mere conflict in the evidence at the hearing-between that offered by police and appellant (and his family)-does not, standing alone, justify the reversal of a judgment in view of the governing standard of review. (See People v. Maury (2003) 30 Cal.4th 342, 403.) To justify reversal, appellant would have to demonstrate that Officer Sobrino’s testimony was physically impossible or inherently improbable or unreasonable. Appellant has failed to make such a demonstration.
In fact in this court, appellant’s effort to assail Officer Sobrino’s testimony as unreliable (because it was based on a hearsay statement of a nine-year-old, and a confession of a tired and inexperienced juvenile) pertains to the weight of that evidence. It is the province of the trier of fact, here the juvenile delinquency court, to determine the weight accorded to the evidence presented. We note that the court expressly stated its view that appellant’s family’s testimony was incredible. Thus, it appears the court afforded the family’s testimony supporting appellant’s version no weight. In any event, “[e]ven if the evidence could be reconciled with a different finding, that does not justify a conclusion that the [trier of facts] was not supported by the evidence, nor does it warrant a reversal.” (People v. Romero (2008) 44 Cal.4th 386, 400.) Thus, we conclude sufficient evidence in the record could reasonably support the juvenile delinquency court’s order sustaining the allegation in the petition.
After Felisha J. and Azhzne Y. testified and the prosecution rested its case, the following exchange occurred:
II. Determination of Whether the Offense is a Felony or Misdemeanor
Welfare and Institutions Code section 702 provides that, in a juvenile proceeding, “[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” (Italics added.) “The requirement is obligatory” and “requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).)
A juvenile court’s failure to make the required declaration under Welfare and Institutions Code section 702 does not automatically require a remand of the matter to the juvenile court. The record in a given case “may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.” (Manzy W., supra, 14 Cal.4th at p. 1209.) If so, the failure to make an explicit declaration would be harmless error. Therefore, “[t]he key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Ibid.)
A. Remand Required
Penal Code section 245, subdivision (a)(1) is a “wobbler” subject to a felony or misdemeanor characterization at the discretion of the juvenile court. Consequently, the court was required to make “an explicit declaration... whether [the] offense would be a felony or misdemeanor in the case of an adult.” (Manzy W., supra, 14 Cal.4th at p. 1204; see also Cal. Rules of Court, rule 5.780(e)(5) [in a § 602 matter, “[i]f any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony”].)
Penal Code section 245, subdivision (a)(1) provides in pertinent part that assault with a deadly weapon “shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”
Here, the petition alleged the offense to be a felony. But, filing a Welfare and Institutions Code section 602 petition alleging a “wobbler” offense as a felony is insufficient to show that the juvenile court made the required Welfare and Institutions Code section 702 finding, as the contents of the petition are in the hands of the prosecutor, not the court. (Manzy, supra, 14 Cal.4th at p. 1207; In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) Similarly, checking the felony box, rather than the misdemeanor box, on the minute order does not satisfy the mandates of Welfare and Institutions Code section 702. (In re Eduardo D. (2000) 81 Cal.App.4th 545, 549, disapproved on other grounds in In re Jesus O. (2007) 40 Cal.4th 859, 867.) As the Attorney General concedes, none of these facts, individually or collectively, sheds any light on whether the juvenile court knew that the adjudicated offense was a “wobbler” and that it had the option of determining the offense to be a misdemeanor.
As the Supreme Court in Manzy W. explained, a declaration that a minor has committed a felony, as opposed to a misdemeanor, “may... have substantial ramifications in future criminal adjudications of the minor, including under Penal Code section 667, subdivision (d)(3)(A)-the ‘Three Strikes’ law.” (Manzy W., supra, 14 Cal.4th at p. 1209.) Moreover, “‘“[i]t is common knowledge that such an adjudication when based upon a charge of committing an act that amounts to a felony, is a blight upon the character of and is a serious impediment to the future of such minor. [Citation.]”’” (Ibid.) A reviewing court cannot take lightly the juvenile court’s obligation to declare an offense either a felony or misdemeanor.
We have carefully reviewed the entire record and find nothing that gives any assurance that the juvenile court was aware of its obligations under Welfare and Institutions Code section 702. During the disposition hearing, the juvenile court said nothing reflecting such awareness. Given the record as a whole, we cannot say that “the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Manzy W., supra, 14 Cal.4th at p. 1209.)
B. DNA Sample Requirement
Appellant also contends, and the Attorney General concedes, that if the juvenile court finds the offense to be a misdemeanor, the minor cannot be ordered to provide a DNA sample. The juvenile court ordered the minor to provide a DNA sample pursuant to Penal Code sections 296 and 296.1, which require the collection of DNA from anyone convicted of a felony, including a juvenile whose adjudication under Welfare and Institutions Code section 602 was based upon the commission of a felony. When a minor has been adjudicated to have committed an offense that would be either a misdemeanor or felony if committed by an adult, however, the requirement to provide a DNA sample is not triggered until the juvenile court expressly declares the offense to be a felony. (In re Nancy C. (2005) 133 Cal.App.4th 508, 512.)
Accordingly, we agree with both parties that the probation condition requiring minor to provide a DNA sample should be stayed pending remand. Should the juvenile court subsequently declare the offense to be a misdemeanor, it should strike its order requiring the minor to provide a DNA sample pursuant to Penal Code section 296, subdivision (a)(1). If the sample has already been collected, the minor may seek relief pursuant to the expungement procedure provided by Penal Code section 299. (In re Nancy C., supra, 133 Cal.App.4th at p. 512.)
DISPOSITION
We remand with directions to the juvenile court to exercise its discretion to declare on the record whether the underlying offense is a felony or misdemeanor as required by Welfare and Institutions Code section 702. If the juvenile court determines the offense to be a misdemeanor, it may not order minor to provide DNA samples. In all other respects, the wardship order is affirmed.
We concur: PERLUSS, P. J. JACKSON, J.
“The Court: I understand about family, but they should not get on the witness stand and lie.
“[Defense Counsel]: Your honor, you are saying that you think the testimony was not credible?
“The Court: That’s exactly what I am saying.
“[Defense Counsel]: Okay. Well, it’s a credibility call.
“The Court: That’s exactly what it is.”