Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Donna Groman, Judge. Los Angeles County Super. Ct. No. JJ 16045
Gerald Peters, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Minor V.H. appeals from the order of wardship entered after the juvenile court found that she assaulted minor K.B. with a deadly weapon in violation of Penal Code section 245. The minor contends the evidence is insufficient to support the juvenile court’s findings. We agree and reverse.
BACKGROUND
V.H. was 11 years old and in sixth grade at the time of the incident. She and her friend D.L. testified that between the fifth- and sixth-period classes on February 27, 2008, 13-year-old eighth-grader K.B. and about five of K.B.’s friends called V.H. and her friends names and threatened to beat them up after school. (All date references pertain to 2008, unless otherwise noted.) The older girls’ threats “scared” V.H. V.H.’s friend R., who lives on the same street as K.B., had told V.H. that K.B. was a bully who had been in “many fights.” Before February 27, K.B. had been suspended or otherwise punished at least twice for starting fights with other girls at school. V.H. had never before been involved in a fight and did not know how to fight.
K.B. and several of her friends entered teacher Charles Pfuhl’s classroom and continued speaking to V.H. and her friends. Pfuhl testified that two girls whose names he did not know entered his classroom near the end of the sixth-period class on February 27 and “taunted” V.H. “in a threatening manner,” and Pfuhl was “concerned” that the incident might “possibly” “turn physical.” Pfuhl ordered the two girls to leave, and he called campus security. According to V.H., she told Pfuhl about the threats from K.B.’s group after the class ended, but Pfuhl just told her to leave the classroom. V.H. left with her friends D.L., R., and D.
K.B. and four other girls walked a short distance behind V.H., D.L, R., and D. as they left school. Someone from K.B.’s group repeatedly threw an empty plastic water bottle at V.H. and struck her on the head and back. V.H. confronted K.B. and told her to stop. V.H. and K.B shoved one another, and each girl then grabbed the other’s hair and began pulling it. V.H. testified that K.B. pulled her hair so that her head was down by her knees. V.H. testified that she “could not do nothing,” was “trying to back off from” K.B., and “tried to pull back but... could not because it hurt more.” V.H. tried three times to get away but failed. Once the hair pulling began, V.H.’s friends D.L. and R. left because they were “scared.”
Neither V.H. nor K.B. punched or kicked the other, but V.H. testified that she thought K.B. was going to punch her and throw her on the ground, and that then K.B.’s friends would join in the attack. After three seconds (according to V.H.) or three minutes (according to K.B.) of hair pulling, V.H. struck K.B.’s temple or forehead with a small, square mirror. The mirror inflicted a cut that required five stitches and left a scar. K.B. bled “really badly” and felt that she was going to faint. The mirror broke, although it was unclear from the testimony whether this happened upon impact with K.B.’s head or when it fell to the ground. V.H. testified that she “was just trying to get her [i.e., K.B.] away from me” when she hit K.B. with the mirror, and that she did not think she would be able to get away from K.B. “without hitting her with the mirror.” K.B.’s friend C.G. testified that V.H. reached out with one hand and her friend passed her the mirror just before she used it to strike K.B. V.H. testified she had the mirror in her hand before the fight started because she was looking at herself as she was walking.
V.H. testified that the mirror was “like 4 inches” square. C.G., one of the girls accompanying K.B., appears during her testimony to have physically demonstrated with her hands the approximate size and shape of the mirror, which the court then described for the record as “[a]bout six inches, square.” D.L. similarly demonstrated the size of the mirror, which the court then described for the record as “[i]ndicating about four by two.”
V.H. testified that she did not think what she did was wrong because she could not get away from K.B. without hitting her. She testified that her parents had taught her she had to defend herself if someone was touching or hitting her, but if a person was just talking or “bothering” her, she should “leave it alone.” She had never before been involved in a fight.
V.H.’s father testified that he had taught V.H. “the difference between right and wrong.” He also taught her “not to be a bully” and that “if she has to defend herself, she has to follow the proper procedures,” such as telling someone and then using force as “the last resort.” He taught her that if she felt “threatened in any way” then he “would not be mad at her” if she “defended herself,” but that it “was wrong if you were not threatened to hit somebody.” In his opinion, V.H. knew prior to the date of the fight with K.B. that it was wrong to “hit[] somebody without being threatened.”
The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging assault with a deadly weapon, declared V.H. to be a ward of the court, and ordered her placed home on probation. In announcing its true finding on the assault count, the court stated that “[t]he level of force used by [V.H.] in response to the hair pulling by [K.B.] was excessive,” thereby implicitly finding that V.H. acted in self-defense but used an unreasonable amount of force.
DISCUSSION
I. Knowledge of Wrongfulness
V.H. contends that the evidence was insufficient to show that she “appreciated the wrongfulness of defending herself by striking K.B., a 13-year old bully, with a small mirror.” She raised this issue in the juvenile court by means of a motion to dismiss (Welf. & Inst. Code, § 701.1) and again in her closing argument. The juvenile court rejected the contention each time and stated that it found “clear and convincing evidence that the minor understood the wrongfulness of her conduct at the time.” We agree with V.H. that the evidence was not sufficient.
When a child under the age of 14 years is charged with a criminal offense, the prosecution must prove by clear and convincing evidence that the child understood the wrongfulness of his or her conduct. (In re Manuel L. (1994) 7 Cal.4th 229, 232, 239.) The minor’s knowledge of the wrongfulness of his or her conduct must often be shown by circumstantial evidence. (In re Tony C. (1978) 21 Cal.3d 888, 900.) Pertinent considerations include the minor’s age, experience, conduct, knowledge, understanding, and the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and circumstances demonstrating a consciousness of guilt, such as flight, concealment, or false statements regarding the offense. (Ibid.; People v. Lewis (2001) 26 Cal.4th 334, 378–379.)
On appeal, we review the whole record in the light most favorable to the juvenile court’s wardship order to determine whether substantial evidence supports the court’s finding. (In re Jerry M. (1997) 59 Cal.App.4th 289, 297–298.) We also presume in support of the juvenile court’s finding the existence of every fact the court could reasonably deduce from the evidence and make all reasonable inferences that support the finding. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1089 (Babak).) Where substantial evidence supports the finding, we must affirm, even though the evidence would also reasonably support a contrary finding. (People v. Towler (1982) 31 Cal.3d 105, 118.)
The trial court found that V.H. was defending herself when she struck K.B. with the mirror but that striking her with the mirror constituted excessive force. Assuming for the sake of argument that it did constitute excessive force—an assumption that we ultimately reject, post—we cannot affirm the trial court’s order unless the record contains substantial evidence that V.H. was aware that using that amount of force was wrongful, i.e., that although it would not have been wrong for her to defend herself in some other way, it was wrong for her to defend herself by hitting K.B. with the mirror. The record contains no such evidence.
The only evidence in the record that could arguably support the trial court’s finding is the testimony of V.H.’s father. He testified that he had taught V.H. that it was wrong to hit somebody if she was not threatened. But there is no evidence that V.H. was not (or believed she was not) threatened. Both V.H. and D.L. testified that K.B. and her friends had threatened to beat up V.H. and her friends. That testimony was directly corroborated by the testimony of V.H.’s teacher, Pfuhl, who testified that two girls had entered his classroom and “taunted” V.H. “in a threatening manner” and that he had called security as a result. Moreover, the trial court itself found that K.B. was the aggressor, a finding that was abundantly supported by the evidence, including K.B.’s own admission that she has repeatedly been disciplined for starting fights. And V.H. had every reason to take K.B.’s threats seriously, because V.H.’s friend R., who lives on the same street as K.B., had told V.H. that K.B. was a bully who had been in “many fights.”
We note that although he was called as a witness by the defense, Pfuhl was not a very helpful or cooperative witness, repeatedly responding to questions on direct examination by stating that he could not remember or did not know the answer. (For example: “Were these girl[s] speaking in English?” “I cannot remember if they were speaking in English or Spanish.” “Do you recall that you just told me in my office that the girl came into [your] classroom and was speaking to [V.H.] in Spanish?” “If it was Spanish, it was probably Spanish.” “Sir, do you remember telling me that in my office?” “Yes.”) But in one of the few unequivocal parts of his testimony, Pfuhl, who was clearly making no effort to assist the defense, did testify that two girls had entered his classroom and taunted V.H. in a threatening manner.
Against all of the evidence that V.H. was threatened and was well aware of the threats and their seriousness, there is no evidence that V.H. was not threatened or did not believe she was threatened. V.H.’s father’s testimony that he had taught her it was wrong to hit someone if she was not threatened therefore has no tendency to show that V.H. was aware of the wrongfulness of her conduct.
V.H.’s father also testified that he taught her that even if she did need to defend herself, “she has to follow the proper procedures,” such as “let[ting] somebody know,” and that using force herself “will be the last resort.” Again, that testimony has no tendency to show that V.H. knew that what she did was wrong. V.H. testified that after K.B. and her friends left Pfuhl’s classroom, V.H. told Pfuhl about K.B.’s previous threats. But even if we discount that testimony, we are still left with Pfuhl’s own testimony that two girls had threatened V.H. in Pfuhl’s presence and that he had called security as a result. Consequently, V.H. would have concluded that the requirement of “let[ting] somebody know” had been satisfied—Pfuhl knew about the threats that had taken place in his presence, and he took them sufficiently seriously that he not only told the girls who made the threats to leave but also called campus security.
As for the requirement that the use of force be only “the last resort,” V.H. testified that she “was just trying to get [K.B.] away from” her, that she tried repeatedly to get away from K.B. but was unable to, that she believed she would not be able to get away from K.B. without hitting her with the mirror, and that she believed that if she did not get away then K.B. and her friends would make good on their threats by throwing her to the ground and beating her. She further testified that K.B. had pulled V.H.’s head down to her knees, so V.H. “could not do nothing.” There is additional evidence that K.B. had the upper hand in the fight—two of 11-year-old V.H.’s friends left because they were “scared,” but there is no evidence that any of 13-year-old K.B.’s friends left or were scared. Again, against all of this evidence, there is no countervailing evidence that V.H. had any reason to believe that hitting K.B. with the mirror was anything but a last resort.
In sum, V.H.’s father’s testimony has no tendency to show that V.H. was aware that what she did was wrong. And the only other evidence bearing on the issue is V.H.’s own testimony that she does not believe what she did was wrong. There is simply no evidence to support the trial court’s determination that V.H. was aware of the (alleged) wrongfulness of her conduct.
V.H.’s father also testified that he had taught V.H. the difference between right and wrong, but that is not sufficient to establish a minor’s knowledge of the wrongfulness of the charged conduct. (See, e.g., In re Michael John B. (1975) 44 Cal.App.3d 443, 446.)
Respondent argues that because V.H. was 11 years old at the time of the incident, “one would reasonably expect a child of that age to know the difference between right and wrong with respect to using a sharp-edged mirror to violently hit another child on the forehead with enough force to inflict such a serious injury.” Respondent thus seems to suggest that further evidence is unnecessary, because common sense indicates that V.H. must have known that what she did was wrong. Respondent cites no authority for the proposition that an 11-year-old girl, fully three years away from the statutory threshold for being exempted from the knowledge-of-wrongfulness requirement, could reasonably be expected, when largely incapacitated by a 13-year-old bully (accompanied by four of her friends) who had threatened to beat her up, to understand that she could not strike the bully with a small mirror in order to try to escape. We are aware of no such authority, and the proposition is implausible on its face.
Respondent’s argument does not take issue with any of the facts we have described. Instead, respondent relies heavily upon evidence purportedly showing that the mirror was “sharp-edged.” The trial court relied on that evidence as well, stating that V.H. struck K.B. “with a mirror with sharp edges.” Upon carefully reviewing the record, however, we conclude that the evidence cannot bear the weight that respondent and the trial court have placed on it.
At trial, the prosecution cross-examined V.H. as follows about the size and shape of the mirror: “How big is this mirror?” “Like 4 inches.” “Is it a trim around the mirror or straight mirror?” “Just a mirror.” “You kind of outlined. Is it kind of like [a] rectangle?” “Square.” “So were the edges sharp like a square?” “Yes.” “It’s not rounded or anything like that, like an oval?” “No.” The record contains no other evidence that the mirror had “sharp edges.”
Viewed in context, the prosecutor’s question about whether the edges of the mirror were “sharp like a square” appears to ask only whether the edges were straight (or, equivalently, whether the shape was angular), as opposed to “rounded or anything like that, like an oval.” Indeed, we see no other way of interpreting the question, because the prosecutor did not merely ask if the edges were “sharp.” Rather, the question was whether the edges were “sharp like a square.” (Italics added.) Moreover, the preceding and following questions concerned only the mirror’s shape, and the question about whether the edges were “sharp like a square” began with the word “[s]o,” indicating that it too was merely a question about shape. The edges of a mirror that is “like a square” will certainly be straight (unlike a mirror that is “rounded or anything like that, like an oval”), but the edges of a square mirror are no more likely to be sharp than the edges of a mirror of some other shape. We conclude that the only reasonable interpretation of the prosecutor’s question is that it asked merely whether the edges were straight, not whether they were sharp.
Given that that is the only reasonable interpretation, we must assume that V.H. interpreted the question that way when she answered “Yes.” There is consequently no evidence that the edges of the mirror were sharp. As a result, there is also no evidence that V.H. was aware that striking K.B. with the mirror could or would injure K.B. as severely as it in fact did.
The evidence indicates that the mirror broke, but there is no evidence from which it can be reasonably inferred that the mirror broke upon impact with K.B.’s head as opposed to impact with the ground, much less evidence that V.H. was aware that the mirror would break (or was likely to break) upon impact with K.B.’s head.
For all of the foregoing reasons, we conclude that the trial court’s finding that V.H. understood the wrongfulness of her conduct is not supported by substantial evidence. The trial court’s order sustaining the petition and declaring V.H. a ward of the court must therefore be reversed.
II. Self-Defense
In the alternative, we also agree with V.H.’s contention that she presented sufficient evidence that she acted in self-defense and that the juvenile court erred by failing to find the assault justified.
Self-defense against an assault requires an actual and reasonable belief in the need to defend against an imminent danger of bodily injury. (People v.Jefferson (2004) 119 Cal.App.4th 508, 518.) The trier of fact must consider what would appear to be necessary to a reasonable person in the position of the defendant, with the defendant’s knowledge and awareness. (Ibid.) Self-defense is limited to the use of force that reasonably appears to be necessary to resist the other party’s misconduct; the use of excessive force destroys the justification. (People v. Hardin (2000) 85 Cal.App.4th 625, 629–630.)
The juvenile court stated that “[t]he level of force used by [V.H.] in response to the hair pulling by [K.B.] was excessive. It was not a reasonable response to the hair pulling. Striking [K.B.] with a mirror with sharp edges, knowing that the mirror is likely to break, caused serious injury to [K.B.]” We have already concluded that the record contains no evidence that the mirror had sharp edges. So the question is whether striking K.B. with the mirror would have appeared necessary to a reasonable person in V.H.’s position, given her knowledge and awareness. We conclude that it would have.
V.H. was 11 years old at the time of the incident, had never been in a fight before, and did not know how to fight. She knew that 13-year-old K.B., who had repeatedly been disciplined for starting fights at school, was a bully. K.B. and her friends had threatened to beat up V.H. and had even been so brazen as to threaten V.H. in front of a teacher. When the confrontation after school began, K.B. was accompanied by four of her friends. Once the fight started, two of V.H.’s three companions abandoned her. K.B. got hold of V.H.’s hair and pulled her head down to her knees (leaving V.H.’s neck and spine exposed). V.H. also got hold of K.B.’s hair and tried repeatedly to get away but could not. V.H. then struck K.B. with the mirror. Under all of the circumstances, it was reasonable for V.H. to believe that she was in imminent danger of bodily injury and would not have been able to escape without using the mirror.
Respondent argues that because “there is no question the hair grabbing was nonlethal,” it was not reasonable for V.H. to respond “by the use of a deadly weapon.” But there is no evidence that V.H. had reason to consider the mirror a deadly weapon or was knowingly attempting to use it as a deadly weapon. Had V.H. responded to the hair pulling with a knife or a gun, respondent’s point would be well taken. But V.H. did not use a knife or a gun. She used a small mirror, and there is no evidence that she knew of its allegedly lethal potential.
Respondent also argues that the earlier threats by K.B. and her friends are of no consequence because they happened “approximately 45 minutes before the fight began” and “did not pose an imminent danger of death or great bodily injury.” The argument fails because it does not matter that there was a substantial delay between the threats and the fight. K.B. and her friends threatened during the school day to beat up V.H. after school. When K.B. and her friends picked a fight with V.H. after school by throwing the bottle at her, V.H. reasonably inferred that they intended to make good on their threats. Her belief that the group of older girls was going to beat her up was thus reasonable, because that is exactly what those girls had told her they were going to do, and because their conduct—following her after school and picking a fight with her—matched their words.
For identical reasons, there is no merit in respondent’s argument that it was mere “speculation” for V.H. to believe that K.B.’s friends were going to join in the attack. K.B.’s friends had joined K.B. in threatening V.H. earlier in the day, and they accompanied K.B. to the confrontation after school. Their words and their conduct thus gave V.H. every reason to believe that they were indeed going to join K.B. in beating her up. There is no evidence that V.H. had any reason to believe the contrary.
For all of the foregoing reasons, we conclude that the trial court’s rejection of V.H.’s claim of self-defense is not supported by substantial evidence.
DISPOSITION
The order under review is reversed, and the superior court is directed to enter a new and different order overruling the petition.
I concur: JOHNSON, J.
MALLANO, P. J., Dissenting.
I would affirm the order of wardship.
1. Knowledge of wrongfulness
V.H. contends that the evidence was insufficient to show that she “appreciated the wrongfulness of defending herself by striking K.B., a 13-year old bully, with a small mirror.” She raised this issue in the juvenile court by means of a motion to dismiss (Welf. & Inst. Code, § 701.1) and again in her closing argument. The juvenile court rejected the contention each time and stated that it found “clear and convincing evidence that the minor understood the wrongfulness of her conduct at the time.”
When a child under the age of 14 years is charged with a criminal offense, the prosecution must prove by clear and convincing evidence that the child understood the wrongfulness of his or her conduct. (In re Manuel L. (1994) 7 Cal.4th 229, 232, 239.) The minor’s knowledge of the wrongfulness of his or her conduct must often be shown by circumstantial evidence. (In re Tony C. (1978) 21 Cal.3d 888, 900.) Pertinent considerations include the minor’s age, experience, conduct, knowledge, understanding, and the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and circumstances demonstrating a consciousness of guilt, such as flight, concealment, or false statements regarding the offense. (Ibid.; People v. Lewis (2001) 26 Cal.4th 334, 378–379.)
On appeal, we review the whole record in the light most favorable to the juvenile court’s wardship order to determine whether substantial evidence supports the court’s finding. (In re Jerry M. (1997) 59 Cal.App.4th 289, 297–298.) We also presume in support of the juvenile court’s finding the existence of every fact the court could reasonably deduce from the evidence and make all reasonable inferences that support the finding. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1089 (Babak).) Where substantial evidence supports the finding, we must affirm, even though the evidence would also reasonably support a contrary finding. (People v. Towler (1982) 31 Cal.3d 105, 118.)
Substantial evidence in the record supports the juvenile court’s finding that V.H. understood the wrongfulness of her conduct. V.H. was over 11 years old at the time of the fight. V.H.’s father testified that he taught V.H. that it was wrong to hit someone. V.H. essentially admitted that she had been taught this. After the fight, V.H. was distraught and crying, which was consistent with consciousness of guilt. This was sufficient to support a conclusion by the court that V.H. knew that hitting K.B. with the mirror was wrong. Although V.H. had been taught that she should defend herself and may have thought she was doing so when she struck K.B., this merely amounted to a claim of self-defense. It did not negate the sufficiency of the evidence showing that V.H. knew it was wrong to hit another person with a mirror during a hair-pulling struggle.
2. Use of a deadly weapon
V.H. contends that there was insufficient evidence to establish that the mirror was a deadly or dangerous weapon.
To resolve this issue, we review the whole record in the light most favorable to the juvenile court’s wardship order to determine whether substantial evidence supports the juvenile court’s finding, so that a reasonable fact finder could find guilt beyond a reasonable doubt. (Babak, supra, 18 Cal.App.4th at pp. 1088–1089.)
A deadly weapon may be any object, instrument, or weapon used so as to be capable of producing, and likely to produce, death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029.) Great bodily injury is significant or substantial injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) In the context of a sentence enhancement for infliction of great bodily injury, the same phrase has been held not to require permanent or protracted impairment, disfigurement, or loss of function. (People v. Escobar (1992) 3 Cal.4th 740, 750.) “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (Aguilar, at p. 1029.) Evidence supporting an inference that a defendant intended, if necessary, to use the object as a weapon tends to establish its character as a dangerous or deadly weapon. (People v. Page (2004) 123 Cal.App.4th 1466, 1471.) “Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration.” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086.) Objects that are ordinarily innocuous have been found to be deadly weapons based upon the manner of their use. (See, e.g., Page, at pp. 1472–1473 [pencil held against victim’s neck]; People v. Helms (1966) 242 Cal.App.2d 476, 486 [pillow placed over victim’s face].) Where the deadly character of the instrumentality depends on the manner in which it is used, the determination is one for the trier of fact. (Helms, at p. 486.)
The mirror was not an inherently deadly or dangerous object. The juvenile court’s implicit finding that the mirror was capable of producing, and likely to produce, death or great bodily injury was supported by evidence of the significant injury it actually inflicted upon K.B.’s face. The gash was near her eye, required five stitches to close, and left a permanent scar that the juvenile court had the opportunity to view. It caused significant bleeding and made K.B. feel she was going to faint. Had V.H. actually struck K.B.’s eye, the mirror might have damaged K.B.’s sight. Pieces of the broken mirror might also have caused K.B. great bodily injury by puncturing or lacerating her face or other body parts. In addition, the juvenile court could infer, especially from C.G.’s testimony that during the fight V.H. reached out with one hand and received the mirror from her friend, that V.H. intended to use the mirror as a weapon against K.B.
3. Self-defense
V.H. also contends that she presented sufficient evidence that she acted in self-defense, and the juvenile court erred by failing to find the assault justified.
The juvenile court stated that “[t]he level of force used by [V.H.] in response to the hair pulling by [K.B.] was excessive. It was not a reasonable response to the hair pulling. Striking [K.B.] with a mirror with sharp edges, knowing that the mirror is likely to break, caused serious injury to [K.B.]”
Self-defense against an assault requires an actual and reasonable belief in the need to defend against an imminent danger of bodily injury. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) The trier of fact must consider what would appear to be necessary to a reasonable person in the position of the defendant, with the defendant’s knowledge and awareness. (Ibid.) Self-defense is limited to the use of force that reasonably appears to be necessary to resist the other party’s misconduct; the use of excessive force destroys the justification. (People v. Hardin (2000) 85 Cal.App.4th 625, 629–630.)
The juvenile court concluded that V.H. used greater force than was reasonably necessary under the circumstances. Substantial evidence supports this conclusion. K.B. was merely pulling V.H.’s hair; she did not punch or kick V.H. or use any weapon against her. V.H.’s concern that K.B. might escalate the fight and that K.B.’s friends might join in was simply speculation. V.H. responded with excessive force when she struck K.B. with a deadly weapon. The juvenile court properly rejected V.H.’s self-defense theory.
I would affirm the order of wardship.