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In re D.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jan 17, 2020
C084673 (Cal. Ct. App. Jan. 17, 2020)

Opinion

C084673

01-17-2020

In re D.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.W., Defendant and Appellant.


ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:

Appellant filed a petition for rehearing with this court. It is ordered that the nonpublished opinion filed herein on January 17, 2020, be modified as follows:

1. At page 2 of the slip opinion, modify the fourth sentence in the first paragraph, so that the sentence reads:

C.S. testified one of the teenagers hit C.S. in the mouth and took his money.

2. At page 2 of the slip opinion, modify the second paragraph to read in its entirety:

C.S. followed the group to the parking lot of a supermarket. He testified they turned toward him and attacked him, grabbed tools out the back of a nearby truck, and threw the tools at him. Those items included a caulking gun, boards, and crutches. C.S. testified the minor threw several items at him, including the caulking gun, which grazed C.S.'s elbow. C.S. testified that after the minor threw the caulking gun, C.S. took his belt off and began swinging it in circles over his head in order to "deter" the group.

3. At page 2 of the slip opinion, following the now modified second paragraph, add the following third paragraph:

Surveillance footage showed the minor take an item from the back of a truck and he and the other teens walked toward C.S. C.S. retreated as they continued toward him. C.S. then removed his belt and began swinging it in the air. The minor stood his ground and positioned himself as if to engage with C.S., and the minor then threw the item at C.S. The footage did not show other items being removed from the truck.

4. At page 2 of the slip opinion, following the eighth sentence in the fourth (previously the third) paragraph that reads "The guard did not recall the teenager with the cut say that C.S. had cut him, but he believed C.S. had assaulted him and was prepared to detain C.S." add the following sentence:

The guard also did not recall the teens claiming C.S. had a knife.

5. Modify the next sentence which reads "The group did not claim C.S. had a knife and declined to report the incident to the police" to read in its entirety:

The teens declined to report the incident to the police.

6. At page 8 of the slip opinion, in the second sentence of the first full paragraph, modify the sentence to read in its entirety:

There is no evidence C.S. threatened violence verbally or physically.

There is no change in the judgment. Appellant's petition for rehearing is denied. BY THE COURT: /S/_________
MURRAY, Acting P. J. /S/_________
HOCH, J. /S/_________
RENNER, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV137775)

The minor, D.W., appeals the juvenile court order sustaining allegations of two counts of assault with a deadly weapon. He contends: (1) the juvenile court denied him due process by failing to consider his claim of self-defense; (2) there is insufficient evidence he did not act in self-defense; and (3) amendment of the charging document after the matter was submitted deprived him of due process. We affirm the order.

I. BACKGROUND

C.S. was walking near a general store on his way to a nearby liquor store. A group of "teens," including the minor, surrounded C.S. and asked him to buy them a "blunt wrap." Instead, he gave them a dollar. One of the teenagers hit C.S. in the mouth and took his money. The minor was not the person who punched him. C.S. followed the group from the market and tried to call 911.

C.S. followed the group to the parking lot of a supermarket. He testified they turned toward him and attacked him, grabbed tools out the back of a nearby truck, and threw the tools at him. Those items included a caulking gun, boards, and crutches. The minor threw several items at him, including the caulking gun, which grazed C.S.'s elbow. Surveillance footage showed the minor take an item from the back of a truck and throw it at C.S. The footage did not show other items being removed from the truck. After the minor threw the caulking gun, C.S. took his belt off and began swinging it in circles over his head in order to "deter" the group.

A security guard working at the supermarket saw C.S. swinging a belt, and a group of teenagers. They were all yelling back and forth at each other. When the guard yelled out, the group of teenagers started to leave, and C.S. remained. C.S. received a call from the 911 dispatcher. C.S. told the guard the group had "tried to rob" him. The guard called the teenagers back. When they returned, one of them showed the guard a bleeding cut on his forearm and another told the guard that C.S. was following them and acting weird. The guard did not recall the teenager with the cut say that C.S. had cut him, but he believed C.S. had assaulted him and was prepared to detain C.S. The group did not claim C.S. had a knife and declined to report the incident to the police. C.S. told the guard the group had attacked him and tried to rob him, and he was following them. When the group left the supermarket parking lot, C.S. again followed them.

C.S. maintained some distance from the group. In the area of Harris Avenue and Balsam Street, C.S.'s phone connected with 911 and he told the dispatcher, "I got robbed." During the call, C.S. repeatedly screamed, yelled for help, and sounded distressed. C.S. told the dispatcher that his attackers used a "[b]ig bat" and then said, "[T]hey're trying to hit me with bats." C.S. told the dispatcher that the group "stole some shit out of a guy's truck" and used it to hit him. He also yelled, "Get away bro. Help. No, no." According to C.S., during this attack, the minor rushed at him and hit him in the head with a "two-by-four." The altercation ended when the minor jumped over a fence, fell on his face, and ran away. According to C.S., he suffered several injuries as a result of the altercation.

When Officer David Burnett arrived at the scene, he found C.S. bleeding from his head, his backpack on the ground, and his possessions strewn on the ground. C.S. had lacerations on his left temple and upper lip, and his jaw looked as if it was swelling. C.S. described his assailants. Officer Burnett showed C.S. a photographic lineup, and C.S. identified the minor as the person who had hit him.

C.S.'s trial testimony and statements had many inconsistencies. C.S. initially denied "pulling" a knife during the altercation. He later stated he had acted like he had a weapon, then later admitted he had told Officer David Eagleton he had pulled a knife to defend himself and lost it during the struggle. At trial, he did not remember pulling out a knife.

C.S. initially told Officer Burnett that a group of four young men took $19, a cell phone, and sunglasses from him. He followed them, they threw rocks and bricks at him, and when they got to the supermarket, one of the young men hit him with a pipe. Burnett testified that C.S. told him that the incident began when four male teenagers approached him and asked for a dollar. As he reached into his pocket, one of them punched him. After he was punched, all four teenagers searched through his pockets and took approximately $19. They also took a Samsung Galaxy phone.

A few days later, Officer Eagleton interviewed C.S. C.S. told Officer Eagleton that he followed the teenagers, including the minor, to Harris Avenue—around the corner from the supermarket—where the group attacked him by hitting him with boards, rocks, and crutches. C.S. specified that the minor was the one who hit him with a two-by-four with a nail in it. The other teenagers were responsible for hitting him with rocks and crutches. After Officer Eagleton showed C.S. the surveillance video from the supermarket, C.S. admitted that he had a knife with him during the confrontation. He insisted, however, that he did not use it until after they had left the supermarket. And, he only pulled it out after they left the supermarket because they began hitting him. C.S. told Officer Eagleton that when the teenagers started hitting him with boards and rocks, he "brought out his knife and started threatening them with the knife." None of the items that C.S. said he was hit with were ever recovered from the scene.

Officer Eagleton recognized the minor from the surveillance video and went to interview him. During his interview of the minor, Officer Eagleton observed a bruise on the minor's left forearm "that appeared to be in a squared off U-shape, almost like a belt buckle." The minor resisted efforts to have his arm with the buckle-shaped bruise photographed. Three officers wrestled the minor to the ground to get him to comply. He then spit blood on Officer Eagleton's shoes and the wall in the interview room.

The defense presented evidence of an unrelated incident in 2015 in which C.S. intimidated passengers on the light-rail train and threatened to beat one passenger who confronted him. C.S. had a knife and swung it at a transit security guard. C.S. told a police officer that he was defending himself against an attack.

An original Welfare and Institutions Code section 602 petition charged the minor with robbery (Pen. Code, § 211—count one), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)—count two), assault with a deadly weapon, a pipe (§ 245, subd. (a)(1)—count three), misdemeanor battery on a peace officer (§ 243, subd. (b)—count four), and misdemeanor resisting or delaying a peace officer (§ 148, subd. (a)(1)—count five).

Undesginated statutory references are to the Penal Code. --------

Following a contested jurisdictional hearing, and after the matter was submitted for decision, the juvenile court raised an issue about whether there was a fatal variance between the trial testimony and count three as alleged, in that the evidence showed that C.S. was hit with a two-by-four with a nail, not a pipe. The minor's counsel objected on due process grounds. After hearing arguments and reviewing the parties' closing arguments, the juvenile court noted it could not find any prejudice to the defense under the circumstances of this case and could not discern how the defense would have conducted the trial differently. Relying on In re Man J. (1983) 149 Cal.App.4th 475 (Man J.), the juvenile court found the charge was the same and granted the prosecution's request to amend the wardship petition to specify assault with a "two-by-four with a nail" rather than a pipe as to count three.

Following the amendment, the juvenile court found all of the allegations true except the robbery in count one (§ 211). In making this finding, the trial court noted C.S. was an unreliable reporter, as his testimony was confusing, internally inconsistent, and inconsistent with prior accounts. The trial court suspected C.S. had some type of mental disability. Nonetheless, the juvenile court concluded irrespective of the unreliability of C.S.'s testimony, he was clearly beaten that day, based on his injuries and the 911 call. C.S. immediately identified the minor as his attacker and that identification was corroborated by the surveillance video from the supermarket. The surveillance video also showed minor advancing on C.S. and throwing an object at him. The trial court concluded, "[The minor] . . . had a motive to attack [C.S.]. He was clearly irked by the fact that [C.S.] continued to follow the group . . . . [¶] There are no facts which support self-defense. Even if for the sake of argument [minor] felt justified in his anger of being followed, there's no justification for committing a battery under such circumstances."

At the dispositional hearing the juvenile court declared the minor a ward of the court and granted probation. He was ordered to serve 67 days in juvenile hall with credit for 67 days.

II. DISCUSSION

A. The Court Considered Minor's Self-Defense Claim

The minor contends the trial court violated his due process rights by refusing to consider his self-defense claim. He argues this error relieved the prosecution of its burden to prove beyond a reasonable doubt that he was not acting lawfully in self-defense.

We disagree with the minor's interpretation of the record. The minor reads the trial court's statement, "There are no facts which support self-defense," as a refusal to consider the defense. The more accurate reading of that statement is that the trial court considered the claim and rejected it. The juvenile court did not exclude evidence of self-defense nor did it preclude counsel from arguing the minor acted in self-defense. The juvenile court took the matter under submission and reviewed the videos and exhibits before making its decision. Nothing in the record supports the conclusion the juvenile court refused to consider minor's claim of self-defense; rather, the record indicates, based largely on the surveillance video and 911 calls, the juvenile court rejected that claim as unpersuasive and unsupported by the evidence. Instead, the court found that D.W. was angered by C.S. following him and his group of friends, and D.W. was motivated by that anger to attack C.S. Thus, the court impliedly found that D.W. was the aggressor and that he did not act out of fear that C.S. would harm him or the group. B. Court's Ruling on Self Defense

The minor contends the juvenile court's findings of assault with a deadly weapon must be reversed, as there was insufficient evidence to prove he did not act in self-defense.

To establish self-defense as a justification for battery, " 'the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], and any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]' " (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) Imminent harm is not that which appears to be prospective or even in the near future. (In re Christian S. (1994) 7 Cal.4th 768, 783.) " ' "An imminent peril is one that, from appearances, must be instantly dealt with." ' " (Ibid., italics omitted.)

Whether defendant's conduct constituted an act of defense of himself or another, or an unlawful use of force, is a factual question. Therefore, the appropriate standard of review is sufficiency of the evidence. (People v. Colbert (1970) 6 Cal.App.3d 79, 85.)

When assessing the sufficiency of the evidence, we consider the entire record in the light most favorable to the judgment below to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hawkins (1995) 10 Cal.4th 920, 955, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.) This same standard applies in reviewing juvenile cases. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) We do not reweigh evidence or determine if other inferences more favorable to the defendant could have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

The surveillance video showed C.S. following the minor and his friends to the supermarket. He maintained a significant distance between them, but it appeared there was some verbal interaction between the minor and C.S., with him turning and pointing aggressively at C.S. As the group was leaving the store, the minor apparently realized C.S. was still following them, at a distance, and he walked back towards C.S. He turned back around and continued with his friends. As he passed the pickup truck, he slowed as he looked in the bed of the truck. He stopped and his friends continued on. The minor then walked back to the truck and C.S. stopped. Three of the minor's friends came back to join him. The minor grabbed something out of the truck and walked back toward C.S. C.S. turned and walked away, the minor and his friends continued to approach him, then C.S. removed his belt. The minor continued to approach C.S. as he backed away with his hands up. As the group continued to approach him, C.S. started swinging the belt around. The minor and his friends backed up, then the minor stopped, stood his ground with C.S., and threw the caulking gun at him. C.S. walked away and the group followed him. Then the group walked away. Nothing in this video suggests the minor or his friends were under an imminent threat of bodily injury. To the contrary, there is no evidence C.S. threatened violence, swung his belt, or pulled a knife until the minor aggressively approached him.

As to the later incident, where minor hit C.S. with a two-by-four, there is no evidence the minor had an honest and reasonable belief he was in imminent danger of bodily harm. There is no evidence defendant threatened violence verbally or physically. There is no evidence he got any closer to the group than was previously noted in the surveillance videos. There is no evidence the minor thought C.S. was going to assault him or his friends. The only evidence as to that charge is C.S.'s testimony and statements, the 911 call, and the injuries to C.S. In the 911 call, as he was reporting the group robbed and hit him, he reported one had a stick and was coming toward him and hitting him. The call was filled with his cries for help.

In sum, there is no evidence in this record that the minor and his friends were in imminent peril from C.S. that needed to be dealt with instantly. Accordingly, substantial evidence supports the juvenile court's determination that the minor did not act in self-defense. C. Amendment to Petition

Minor contends the trial court abused its discretion in permitting the amendment of the petition. He claims this error denied him his due process rights to "prepare and present a defense to the new offense."

Due process requires that a minor have adequate notice of the charge so that they may intelligently prepare a defense. (In re Robert G. (1982) 31 Cal.3d 437, 442.) Compliance with this requirement mandates that the minor be notified, in writing, of " 'the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.' [Citation.]" (Ibid.) But a juvenile court may allow an amendment of a wardship petition to correct or make more specific the factual allegations supportive of the charged offense when the nature of the charge remains unchanged. (Man J., supra, 149 Cal.App.3d at pp. 479-480.) The court's decision to allow amendment of a petition is reviewed for abuse of discretion. (Id. at p. 481.)

In Man J., the petition alleged that the minor maliciously damaged four vehicles, all belonging to one victim. At the close of trial, the court amended the petition to conform to proof: that the vehicles belonged to different individuals. (Man J., supra, 149 Cal.App.3d at p. 478.) The Court of Appeal affirmed and held that the amendment did not deny the minor due process. (Id. at p. 481.) The court concluded that: "At all times the minor was on notice as to the charges and the allegations against which he would have to defend." (Id. at pp. 479-480.)

Here, the juvenile court determined that its amendment to reflect the weapon was a two-by-four with a nail, rather than a pipe, was in the nature of a Man J. amendment because the charging statute remained the same, assault with a deadly weapon; only the factual allegation in support of the offense charged, the specific weapon used, was amended. The proof and defenses would be the same as to each. The defense never challenged the type of weapon used. Rather, the defense was that the minor acted in self-defense, that the minor's conduct was reasonable, and the prosecution was required to prove the minor did not act in self-defense. We agree with the court's analysis and find no abuse of discretion.

III. DISPOSITION

The order is affirmed.

/S/_________

RENNER, J.

We concur:

/S/_________

MURRAY, Acting P. J.

/S/_________

HOCH, J.


Summaries of

In re D.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jan 17, 2020
C084673 (Cal. Ct. App. Jan. 17, 2020)
Case details for

In re D.W.

Case Details

Full title:In re D.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Jan 17, 2020

Citations

C084673 (Cal. Ct. App. Jan. 17, 2020)