Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV128231
BLEASE, Acting P. J.
The juvenile court found the minor, S. S., committed battery, made him a ward of the court, and placed him on probation. (Pen. Code, § 242, Welf. & Inst. Code, § 602.) The minor timely filed this appeal.
In two related contentions, the minor claims the juvenile court misapplied legal principles relating to self-defense. Although at one point the trial court misstated the applicable law, the record shows the court rejected the self-defense claim because even if the minor had a right of self-defense in the abstract, on the facts, the minor used excessive force and therefore could not establish that defense. The minor also challenges probation conditions requiring him to submit to searches and drug testing. We find the minor did not preserve these challenges. Accordingly, we shall affirm.
BACKGROUND
The minor was an eighth-grade student at the Marian Anderson Therapeutic Center, a school for emotionally disturbed children operated by the Sacramento City Unified School District. The minor has an Individualized Education Plan (IEP) to address his needs, and in part it states that he should be allowed to “take space” to calm down. A social worker testified he should not be prevented from leaving class if he becomes agitated.
On November 13, 2008, the seventh and eighth grade classes were combined, due to a staffing shortage. Andilaw Noyogiere, a substitute instructional aide, was in the classroom. The campus monitor, Ka’Ron Marshall, was called to the class because the minor was teasing another student. When Marshall asked him to stop, the minor became argumentative, swore at Marshall, and “bolted” towards a classroom door.
Noyogiere was standing by the door. He threw his arms out and said “You can’t go this way.” He testified the minor punched him in the stomach, then hit and kicked him. Marshall testified the minor ran into Noyogiere, who threw his arms around the minor, then the minor punched Noyogiere several times. Greg Milton, a teacher’s associate, testified that when he entered the classroom, he saw the minor and Noyogiere in a bear hug, with the minor struggling and punching Noyogiere with a closed fist.
The petition alleged a violation of Penal Code section 243.6. A simple battery “is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) A battery can be aggravated by various factors. In particular, Penal Code section 243.6 provides a greater punishment when a battery “is committed against a school employee engaged in the performance of his or her duties, or in retaliation for an act performed in the course of his or her duties[.]” The court had a doubt about whether Noyogiere acted in the performance of his duties, and did not sustain this charge. Instead, the court found the minor committed a simple battery, a lesser included offense.
DISCUSSION
I.
The minor contends the court erred in finding he could not assert self-defense based on his reasonable fear of an offensive touching and unlawful restraint by Noyogiere. He also contends the court used the wrong standard to conclude the he used excessive force against Noyogiere.
Both of these arguments are based on comments made by the trial court at the jurisdictional hearing, which the minor interprets to mean the juvenile court did not apply the correct legal principles. However, when the trial court’s comments are read in context, the trial court found the evidence did not support the minor’s claim of self defense.
Before addressing the minor’s claims in more detail, we make two observations.
First, “‘in the absence of any contrary evidence, we are entitled to presume that the trial court... properly followed established law.’” (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914; see People v. Adanandus (2007) 157 Cal.App.4th 496, 503; In re Fred J. (1979) 89 Cal.App.3d 168, 175.)
Second, we view the facts in the light most favorable to the juvenile court’s finding: “‘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 minor 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.’” (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)
Before the jurisdictional hearing, the minor filed a memorandum outlining his self-defense theory. In short, because his IEP permitted him to leave the classroom to calm down, the minor argued that he was entitled to use force to resist Noyogiere’s efforts to keep him in the classroom. The juvenile court stated that the IEP might have given the minor the subjective belief that he could leave the classroom at will, but it did not give the minor the right to batter anybody. The court agreed to consider the IEP in determining whether the victim was acting in the performance of his duties when he blocked the minor, and to show the minor’s subjective state of mind, but not to show whether the minor’s actions were objectively reasonable. The court also ascertained from counsel that there was a dispute about whether the minor acted with excessive force, if he was acting out of self defense.
After the evidence was heard, the juvenile court explained its reasoning in detail, and we quote the court as relevant.
The juvenile court stated there was no dispute “that the reason that the contact is being made is because the employee is trying to stop him from leaving the room. And that is something that the minor did not want to do. He did not want to obey that order. And the question is whether he should have been allowed to disobey or not. [¶] So this issue isn’t in dispute. The issue [that] comes in dispute is whether the retaliation is for an act performed in the course of that employee’s duties.” The court concluded that because the IEP called for the minor to be allowed to leave the classroom, when Noyogiere “was being rushed” “he should have stepped aside and let the minor go by.” Accordingly, the court found Noyogiere was not acting within the performance of his duties and the minor was not guilty of aggravated battery.
However, the court found the minor had committed simple battery. The court stated: “It doesn’t matter to this Court on the issue of battery, whether Mr. Noyogiere did or did not block the doorway.” The court also stated that once the minor ran at Noyogiere, he naturally would hold out his arms “to somewhat protect himself from this person who’s running right at him. Doesn’t matter to me who hit who first. Whether the arms grabbed him first or whether they bumped chests first, that doesn’t matter to me. Because what is more clear is that there [were] punches thrown.” The evidence showed “clear punches after Mr. Noyogiere had his arms wrapped around the minor in a bearhug. [¶] Those actions, the wrapping and punching, were practically simultaneous. They are all going on at one time. Running into him. Mr. Noyogiere wasn’t moving. Now for purposes of the Education Code, he should have moved. But for purposes of the battery charge, he has no obligation to move. If someone’s running at him, he has no obligation to step out of the way.”
“The minor could not have construed that action of Mr. Noyogiere as being threatening. Holding his hands up and saying, ‘Don’t go this way,’ is just an attempt to redirect him. And no reasonable person would think he’s about to cold cock him. [¶] The evidence does not support that the minor was trying to lever himself away, to pry himself away as [counsel] suggests. The punches that were demonstrated showed that wasn’t what he was doing. Yes, he was trying to get away. We all agree on that. I don’t think there’s any dispute on that. But the way he was doing it was to punch at this man.”
“In the context of a school employee holding onto a person who’s just run directly at them, whether they bump chests or not, whether he grabs him as he runs by, in that context it had to be clear to any reasonable person that Mr. Noyogiere was not trying to hurt the minor. It had to be clear to any reasonable person that he was trying to hold him there.”
The minor might reasonably have pushed himself free, but “[i]t is completely unreasonable to punch somebody to try to get them to let you go when they are not trying to hurt you. And no reasonable person would think he was trying to hurt him at that point. So he did not have a reasonable fear of injury; therefore he cannot exercise any type of self-defense. [¶] About the only reasonable inference is that he’s trying to get away and he’s trying to hold him. There’s no issue here... about unnecessary force being imposed by the teacher, and it is unnecessary force by the minor to punch back. He punched willfully.” (Italics added.)
Based on the italicized portion of the above passage, the minor contends the juvenile court mistakenly “equated ‘injury’ with bodily injury, i.e., with being ‘hurt’. It then premised the right to self-defense on the reasonable fear of such bodily injury.” We agree this passage misstates the law.
“A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) A touching is required, but the touching need not be violent. (People v. Hamilton (2009) 45 Cal.4th 863, 934 [spitting at deputy]; see People v. Pinholster (1992) 1 Cal.4th 865, 961 [throwing urine in deputy’s face].) “The word ‘violence’ [in the battery statute] has no real significance. ‘It has long been established, both in tort and criminal law, that “the least touching” may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’” (People v. Mansfield (1988) 200 Cal.App.3d 82, 87-88, orig. italics.)
In People v. Myers (1998) 61 Cal.App.4th 328, the court held a person can use reasonable force to resist a battery that does not threaten physical injury: “[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.” (Id. at p. 335.) Thus, to the extent the trial court’s italicized comment quoted above suggests an injury must be threatened before a person can defend against a battery, such remark was in error.
But even if we assumed Noyogiere’s actions amounted to a battery, or were perceived as a battery to the minor, the trial court also found “[i]t is completely unreasonable to punch somebody to try to get them to let you go when they are not trying to hurt you. And no reasonable person would think he was trying to hurt him at that point.... [¶] About the only reasonable inference is that he’s trying to get away and he’s trying to hold him. There’s no issue here... about unnecessary force being imposed by the teacher, and it is unnecessary force by the minor to punch back. He punched willfully.”
Thus, the juvenile court found the minor responded with excessive force and rejected the self-defense claim for that alternative reason. Although a battery may be resisted by reasonable force whether or not the battery threatens injury or merely an offensive touching, the type of battery the actor perceives informs as to whether the actor’s response was reasonable or excessive. “Any force which is excessive, i.e., unreasonable under the circumstances, is not justified.” (1 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Defenses, § 72, p. 407; see CALCRIM 3470 [self defense requires that the “defendant used no more force than was reasonably necessary to defend against” the perceived danger].)
The record supports the trial court’s finding that the minor’s reaction to being restrained was excessive. Nothing Noyogiere did called for the minor to punch him. The minor’s claim that his efforts to break away were unsuccessful, and therefore he properly resorted to punching Noyogiere, amounts to an invitation to reweigh the evidence.
The minor also argues as follows: The trial court found Noyogiere acted outside his authority by restraining the minor, but “nonetheless took Mr. Noyogiere’s role as an instructional aide, and the school setting, into account in finding that Mr. Noyogiere did not use excessive force against appellant, and that appellant had no right to resist his actions.”
This misreads what the trial court found. The trial court found “[i]t is completely unreasonable to punch somebody to try to get them to let you go when they are not trying to hurt you” and “it is unnecessary force by the minor to punch back.” In determining whether the minor used excessive force, the trial court properly considered all of the circumstances, including the fact that Noyogiere was an aide at the school, and that the minor had no basis to think Noyogiere was a threat.
Those facts were relevant to whether the minor’s actions would appear to be necessary to a reasonable person in the minor’s circumstances. (See People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) “The issue is not whether defendant, or a person like him, had reasonable grounds for believing he was in danger. The issue is whether a ‘reasonable person’ in defendant’s situation, seeing and knowing the same facts, would be justified in believing he was in imminent danger of bodily harm [or an offensive touching].” (Id. at p. 519.) The fact the minor is emotionally disturbed and became unusually agitated when he was admonished to stop bothering another student does not play into this analysis. As we stated in rejecting a claim similar to the minor’s claim, “By definition, a reasonable person is not one who hears voices due to severe mental illness. In blunt fashion, our Supreme Court long ago defined as reasonable person as a ‘normal person.’ [Citation.] The reasonable person is an abstract individual of ordinary mental and physical capacity who is as prudent and careful as any situation would require him to be.” (Ibid.)
Finally, we reject the minor’s claim that the juvenile court improperly relieved the prosecutor of the burden to disprove self-defense. As stated, although the court misstated one aspect of self-defense, its findings, as a whole, show that it also rejected the claim of self-defense based on the alternative ground that the facts showed the minor used excessive force, vitiating the claim of self-defense. Based on this record, we will not disturb that factual finding.
II.
The minor challenges two probation conditions that require him to submit to drug testing and to submit to warrantless searches. He has not preserved his challenges.
Generally, a probation condition will be upheld unless it “‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality[.]’” (See People v. Lent (1975) 15 Cal.3d 481, 486.) Also, “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
The minor frames his claims as legal challenges, with headings contending the conditions are constitutionally overbroad. But the minor does not actually argue the conditions are constitutionally infirm. Instead, he contends the conditions bear no logical nexus to the facts of his case, and were not adequately tailored to fit the purposes of probation, in his case.
Because the minor’s challenges to his probation conditions are fact-based, he forfeited them by failing to lodge them in the juvenile court. (In re Vincent G. (2008) 162 Cal.App.4th 238, 246; cf. In re Sheena K., supra, 40 Cal.4th at p. 885 [forfeiture applies where trial court is better able “to review and modify a... probation condition that is premised upon the facts and circumstances of the individual case”; but forfeiture not generally applicable to “an appellate claim — amounting to a ‘facial challenge’— that phrasing or language of a probation condition is unconstitutionally vague and overbroad”].)
In his reply brief, the minor contends the drug testing condition is overbroad because it included blood testing. This contention, too, is forfeited. Although it may present a legal question, by not making this claim in the opening brief, the minor prevented the Attorney General from responding to it and therefore forfeited the claim. (See People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J. ROBIE, J.