Opinion
C056386
4-15-2008
In re MICHAEL M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL M., Defendant and Appellant.
NOT TO BE PUBLISHED
Minor Michael M. was charged with battery with serious bodily injury (Pen. Code, § 243, subd. (d) — count 1), felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) — count 2), and battery on school property (Pen. Code, § 243.2, subd. (a)(1) — count 3). The court sustained the petition as to counts 1 and 3, and set the maximum term of confinement at one year. The minor was adjudicated a ward of the court (Welf. & Inst. Code, § 725, subd. (b)), placed on one year of formal probation, and ordered to complete 16 days of work project and pay restitution to the victim.
The court subsequently declared count 1 a misdemeanor.
The minor contends on appeal there was insufficient evidence to support the juvenile courts finding that he used excessive force to defend himself against the victim. We disagree and will affirm the judgment of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Scott B., testified that he and the minor went to the same school and had known each other for approximately two years; however, the two were not friends. In the past, the minor had taken things from the victim, such as a baseball cap and a backpack. On those occasions when the minor took the victims hat, the victim would take the minors hat in an attempt to get his own hat back in a trade.
The victim was five feet three inches tall and approximately 100 pounds. The minor was bigger, a few inches taller, and weighed more than the victim.
On the school playground during lunch one day, the victim got "tagged in" to a basketball game. He played for a few minutes until he was approached by the minor, who "flipped" the victims hat off and threw it, claiming the basketball was his and telling the victim to stop playing. The victim grabbed the minors beanie from his head and threw it to the ground. He then walked over to his own hat and bent down to pick it up. The next thing he remembered was waking up on the basketball court with a headache, a large bump on his head, and people standing around him.
The victim was taken to the school office, and then to the hospital by ambulance. Immediately after the incident, he experienced a bruised head, vomiting, dizziness, and severe headaches. Since the incident, the victim has continued to experience occasional sensitivity to bright lights.
In a statement made to police following the incident, the minor said, "I was playing basketball with other kids who already had a game going. I told [the victim] to get off the court. [The victim] kept trying to jump in and play, even though we were already playing the game. I told him he couldnt play again. I took [the victims] hat off and threw it outside the basketball court. I thought he was going to start hitting me, so I threw him over my shoulder. It was self-defense."
The parties stipulated to the minors statement at the hearing on the petition.
Mark B., a student and friend of the minor, was watching the basketball game from another court. He did not see the minor knock off the victims hat, but he did see the victim pull off the minors beanie. He heard the victim tell the minor not to push him, and then saw the minor pick up the victim and throw him to the ground, where he landed on his head.
Cody K., a student and friend of the victim, testified that he was playing basketball when the victim asked if he could join in. Cody said it was okay, as did some of the other players, but the minor did not want him to play. While the victim was playing, the minor intentionally "tipped off [the victims] hat" and it fell to the ground. The victim continued to play, then grabbed the minors beanie and took it off. When the victim picked up his hat, Cody saw the minor grab the victim and throw him over his shoulder. The victim landed on the ground on his head.
Vincent D., a student and friend of both the minor and the victim, was playing basketball at the time of the incident. He saw the minor "flick" the victims hat off, and then saw the victim grab the minors beanie. Vincent was distracted playing basketball. The next thing he saw was the victim lying on the ground.
Thomas B., a student and friend of the minor, was playing basketball with the minor at the time of the incident. When the victim asked if he could play, the minor said no. The victim tried to play anyway and the minor told him several times to get off the court. The minor grabbed the victims hat and threw it on the ground. Then the victim pulled the minors beanie off. The two argued about whether or not the victim could join the basketball game. Thomas saw the victim jump on the minors back with his feet still on the ground and his hands around the minors shoulders. The minor crouched down, grabbed the victim around the head, and flipped him over his shoulder, dropping him on his head on the ground. Thomas spoke with police following the incident and told them he saw the victim jump on the minors back, and then saw the minor put the victim in a headlock.
A petition filed pursuant to Welfare and Institutions Code section 602 alleged the minor committed felony battery with serious bodily injury (Pen. Code, § 243, subd. (d) — count 1), felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) — count 2), and battery on school property, a misdemeanor (Pen. Code, § 243.2, subd. (a)(1) — count 3). The minor denied the allegations.
At the conclusion of the contested jurisdictional hearing, the court found that the act of the victims standing "behind [the minor], with his hands on [the minors] shoulders, with his feet on the ground" constituted an unauthorized touching, but concluded the level of force used by the minor to protect himself was excessive.
The court sustained the allegations in counts 1 and 3, and dismissed count 2. Count 1 was later reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b). Setting the maximum term of confinement at one year, the court declared the minor a ward of the court (Welf. & Inst. Code, § 725, subd. (b)), placed him on 12 months formal probation subject to specified terms and conditions, and ordered that he pay restitution.
The minor filed a timely notice of appeal.
DISCUSSION
The minor contends the evidence was insufficient to prove beyond a reasonable doubt that he used more force than was reasonably necessary to defend himself against the victim.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, "`[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The court must view the entire record in the light most favorable to the judgment (order) 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. In making such a determination we must view the evidence in a light most favorable to respondent and presume in support of the judgment (order) the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] [Citation.]" (In re Paul C. (1990) 221 Cal.App.3d 43, 52.) "`Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury." (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Battery is "any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242.) "To establish battery resulting in serious bodily injury, the People must prove: (1) a person used physical force or violence against another person; (2) the use of force or violence was willful and unlawful; and (3) the use of force or violence inflicted serious bodily injury on the other person." (People v. Lewis (2004) 120 Cal.App.4th 882, 887.) Penal Code section 243, subdivision (f)(4) provides that "`[s]erious bodily injury means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement."
The minor does not dispute that he threw the victim to the ground, nor does he appear to dispute that his actions resulted in serious bodily injury. He does argue, however, that his use of force was lawful in that it was appropriate under the circumstances in order to defend himself.
"`[I]n using force in self-defense, a person may use only that amount of force, and no more, that is reasonably necessary for that persons protection. However, since 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, that person will not be deemed to have exceeded his or her rights unless the force used was so excessive as to be clearly vindictive under the circumstances. Thus, a persons right of self-defense is limited by the reasonableness of his or her belief that such force was necessary at that time and under the particular circumstances. (2A Am. Jur. Pleading and Practice Forms (2000), Assault and Battery, § 164, pp. 516-517 . . . .)" (People v. Ross (2007) 155 Cal.App.4th 1033, 1057.) There is ample evidence to support the juvenile courts determination that the force with which the minor protected himself was excessive.
Although the victim had no recollection of what occurred after he bent down to pick up his hat, he denied jumping on the minors back or threatening him in any way prior to being rendered unconscious. His denial is supported by both Mark B. and Cody K., who testified they never saw the victim jump on the minor. Mark further testified he never saw the victim threatening the minor.
Thomas B. initially testified he saw the victim jump on the minors back. However, upon further examination, he clarified that the victim placed his hands on the minors shoulders but kept his feet on the ground. According to Thomas, the minor told the victim to get off and then flipped the victim over his shoulder when he failed to do so.
We conclude the minors belief that it was necessary to use the level of force he used to defend himself was unreasonable under the circumstances. By all accounts the minor, although younger, was bigger, taller, and heavier than the victim. The minor told police he threw the victim to the ground because he was afraid of being hit, not because he was in a chokehold or was trying to get the victim off his back. Under those circumstances, a reasonable person in the minors position would have pushed the victim off, perhaps with an elbow, or turned around and backed away.
The juvenile courts determination that the minor used excessive force to defend himself is supported by the evidence. On that basis, we affirm the finding of battery (Pen. Code, § 243, subd. (d)) and battery on school property (Pen. Code, § 243.2, subd. (a)(1)).
DISPOSITION
The judgment of the juvenile court is affirmed.
We concur:
BUTZ, J.
CANTIL-SAKAUYE, J.