Opinion
F073616
05-02-2017
In re E.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.S., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MJL018189-E, F)
OPINION
THE COURT APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
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Appellant E.S., a minor, appeals from two juvenile court dispositional orders, one declaring him a ward of the court and another finding a violation of probation. Following a contested joint hearing on a petition filed under Welfare and Institutions Code section 602 and a juvenile notice of violation of probation filed under Welfare and Institutions Code section 777, appellant was found to have committed a battery (Pen. Code, § 242.) Appellant contends the juvenile court erred because the evidence was insufficient to show both that appellant knew his conduct was wrong and that a battery occurred. For the reasons set forth below, we affirm.
All further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, a 12-year-old student at Enterprise Secondary School in Madera, California, was involved in an altercation with another youth in front of the Madera County Independent Academy on January 29, 2016. According to two witnesses who viewed a recording of the incident on video surveillance and testified at appellant's contested hearing, but who did not witness the incident themselves, appellant, with his shirt off, approached another student in a group, in a manner which suggested conflict, and struck him. One of the testifying witnesses, the principal of the Enterprise Secondary School, described the incident as appellant striking the victim "on the left side of his face with [appellant's] right hand."
At the hearing, appellant raised no objection to the testimony regarding what these witnesses saw on the video, and appellant raises no objection to that testimony on appeal.
After the incident, the other testifying witness, the principal of the Madera County Independent Academy, came outside and observed some of the aftermath. He saw appellant, with his shirt off, approach another youth and say, "I will catch you later" or "I will catch you on Monday." The group of students then dispersed with no further incidents. Appellant was subsequently suspended from school.
At the time of the incident, appellant was an adjudicated ward of the court. He had been previously declared a ward under at least three prior petitions, for offenses including vandalism (§ 594), battery on school, park, or hospital property (§ 243.2, subd. (a)(1)), resisting a public officer (§ 148, subd. (a)(1)), and possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)). As a result, appellant faced both a notice of probation violation, alleging appellant violated directives to obey all laws, not use or possess unlawful drugs (appellant tested positive for marijuana upon arrest), and attend school, and another wardship petition alleging appellant committed a battery. Appellant denied the charges, resulting in the above mentioned contested hearing.
Although the trial court ultimately took judicial notice of the files related to appellant's vandalism, battery, and resisting an officer offenses, these files are not contained within the record on appeal. We note it is appellant's responsibility to ensure the record is adequate for review. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452.) --------
At the conclusion of the contested hearing, appellant moved for acquittal, arguing there was no clear and convincing evidence demonstrating, as required under section 26, that appellant knew the wrongfulness of his acts. Over counsel's objection, the trial court took judicial notice of appellant's case files, relying on them to deny appellant's motion. As the court explained, "the evidence shows that [E.S.] knew right from wrong just from his actions that particular day and also from taking judicial notice of the file. He knows right from wrong. He is not any stranger to this court." The court later added, "not only does the file shows [sic] it but his actions on the particular day, him taking off his shirt, his threatening students. I am going to catch you later, just the circumstances of the event show that he knew exactly what he was doing and knew it was wrong."
The juvenile court found true all three alleged probation violations and found true the contention under the wardship petition that appellant committed a battery. Appellant was subsequently ordered to reside with his mother, received 46 days in juvenile hall, with 46 days credit for time served, and the case was scheduled for transfer to Lake County where appellant's mother resides.
This appeal timely followed.
DISCUSSION
Appellant contends the evidence admitted is insufficient to support two relevant findings by the juvenile court. First, that appellant was aware his conduct was wrong under section 26. Second, that appellant actually committed a battery by causing a harmful or offensive touching. Standard of Review and Applicable Law
Generally, "[i]n reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.) "The applicable standard of review is the same as for adult criminal appeals." (In re Amanda A. (2015) 242 Cal.App.4th 537, 545.)
"A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) "The slightest degree of touching is sufficient. [Citation.] ' "Any harmful or offensive touching constitutes an unlawful use of force or violence" under this statute. [Citation.] "It has long been established 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 a mark." ' " (In re B.L. (2015) 239 Cal.App.4th 1491, 1495-1496.)
"Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime." (In re Manuel L. (1994) 7 Cal.4th 229, 231.) With respect to overcoming this presumption, the prosecutor "must present clear and convincing evidence," as opposed to proof beyond a reasonable doubt, "that the minor knows the wrongfulness of his conduct" as "demonstrated by [the child's] age, experience, conduct, and knowledge ...." (Id. at pp. 232, 234.) "While knowledge of wrongfulness may not be inferred from the act alone, ' "the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment" may be considered. [Citation.] Moreover, a minor's "age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts." ' " (People v. Cottone (2013) 57 Cal.4th 269, 280-281.) Sufficient Evidence Supports the Juvenile Court's Findings
We consider, first, appellant's claim there was no clear and convincing evidence he knew his conduct was wrong, as required by section 26. We do not agree. In taking judicial notice of appellant's criminal files, the juvenile court was in possession of evidence showing appellant had a long history before the juvenile court, including a prior wardship proceeding resulting from a past battery. While appellant argues there are no express findings under section 26 found in these records, even if we accept this position in light of the failure to provide these files in the record on appeal, such a finding is not dispositive. Rather, the court must consider appellant's experience, conduct and knowledge in reaching its conclusion. (In re Manuel L., supra, 7 Cal.4th at p. 232.) Past punishment for a similar crime is relevant evidence in such an inquiry. Moreover, the trial court relied on more than simply past punishment, recounting the evidence of appellant's conduct, dress, and apparent threat to another student as supporting evidence appellant knew his conduct was wrongful. We conclude such facts are sufficient to constitute clear and convincing evidence appellant knew the wrongfulness of his conduct.
We next consider whether sufficient evidence was presented to conclude appellant committed a battery. Appellant argues that the lack of testimony from the victim and bare assertions of fact from witnesses that only viewed a video demonstrate no reasonable court could find appellant's conduct was harmful or offensive. We do not agree. As noted above, all that is required to commit a battery is the slightest degree of harmful touching. (In re B.L., supra, 239 Cal.App.4th at pp. 1495-1496.) Two witnesses testified that appellant struck another student, with one of those witnesses describing the incident as a strike to the face. The testimony further demonstrated that the strike occurred in a confrontational setting and was followed by a perceived threat of later violence. We have no trouble concluding such evidence is sufficient for the trial court to determine appellant engaged in a harmful or offensive touching, regardless of whether the victim testifies to finding the conduct personally harmful or offensive.
DISPOSITION
The orders are affirmed.