Opinion
B226914
09-26-2011
In re GONZALO L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GONZALO L., Defendant and Appellant.
Bruce A. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PJ43842)
APPEAL from a judgment of the Superior Court of Los Angeles County. Benjamin R. Campos, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). Affirmed as modified.
Bruce A. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
Gonzalo L., a minor, appeals from the juvenile court's order (judgment) sustaining allegations of vandalism and two counts of battery on a school employee. We modify the judgment by striking the term of maximum confinement and in all other respects affirm.
FACTS
Gerald Smith worked as assistant principal and Art Aguilar as dean of students at Valley High School, a nonpublic school for emotionally disturbed students. Appellant was a student at the school. On the morning of December 1, 2009, Aguilar informed appellant that the school officials were sending appellant home. Appellant became upset. He bolted into the locked administration building through an opened door to try to find out who had made the decision. Appellant accosted Smith in his office and aggressively asked who was responsible for sending him home and the reason for the decision. Appellant was agitated, huffing and making squeezing motions with his hands. When he attempted to charge Smith, Aguilar and another school employee, Art Gutierrez, physically intervened by grabbing appellant's arms and shuffling him against the wall away from Smith.
Appellant continued to struggle. During the struggle, Smith attempted to assist in containing appellant by grabbing one of his arms. Appellant was swearing at Smith, saying "F you, F you, F you" and "I'm going to get you." Smith cautioned appellant against getting into more trouble by taking a swing at anyone. Smith and Aguilar then escorted appellant out of the school with appellant still struggling and thrashing. When they reached the outside door, Smith released his hold on appellant. Immediately, appellant pivoted, swung his right hand with a closed fist at Smith and struck him on the head knocking his glasses off. Smith was not injured. Aguilar sustained an injury as a result of the struggle with appellant.
PROCEDURAL HISTORY
Prior to the events in issue, in December 2008, a petition was filed under Welfare and Institutions Code section 602, alleging that appellant had committed felony vandalism by breaking a window at the Crossroads School causing damages of over $400. Appellant initially denied the allegations but later admitted them. The juvenile court found the allegation of the petition to be true and sustained the petition in an order dated August 26, 2009. The court placed appellant home on probation for 12 to 36 months under a deferred entry of judgment. (Welf & Inst. Code, § 790, subd. (a).) The court declared in its August 26, 2009 order that appellant may not be held in physical confinement for a period to exceed three years.
As a result of the events of December 1, 2009, a second Welfare and Institutions Code section 602 petition was filed for appellant on February 5, 2010. The petition charged appellant with committing two counts of battery on a school employee in violation of Penal Code section 243.6. Appellant denied the allegations, and the matter was adjudicated by the juvenile court.
Appellant testified he had been enticed onto the school van on the pretext of going to the store and that he jumped out of the van when Gutierrez disclosed he was being taken home instead. Appellant returned to the school and stood outside Smith's office asking why he was being sent home, but Smith refused to tell him. Appellant testified he was only standing and questioning Smith when Aguilar and Gutierrez placed their hands on his chest trying to calm him down and pushed him outside. He started to push the men back and was twisting and thrusting. After Smith took hold of his arm, appellant inadvertently struck Smith trying to shake his arm free.
After hearing testimony from victims Smith and Aguilar and from appellant, the court found the allegations of the petition to be true and sustained the petition. In an August 3, 2010 order, the court declared both counts to be misdemeanors, and it revoked its previous order and placed appellant home on probation. The court's order further stated that appellant may not be held in physical confinement for a period to exceed three years four months. Appellant timely appealed the judgment.
CONTENTIONS
Appellant contends (1) he was denied federal due process because substantial evidence does not support a true finding of the battery allegations and (2) the juvenile court erred in setting a maximum term of confinement as he was committed to the custody of his parents subject to supervision on probation.
DISCUSSION
1. Substantial Evidence of Battery
Appellant asserts the record lacks substantial evidence to support the juvenile court's finding that he committed battery on two school employees. Appellant argues that because he was merely resisting Smith and Aguilar's efforts to subdue him, he did not have the requisite intent to support a battery finding under either count. As to Aguilar, appellant further contends he applied no force. We disagree.
In assessing the sufficiency of the evidence, a reviewing court reviews the entire record in the light most favorable to the judgment to determine whether the record contains evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Reversal due to insufficiency of evidence is unwarranted unless upon no hypothesis whatsoever is there sufficient substantial evidence to support the conviction. (Bolin, at p. 331.) "The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness's testimony and disregard the rest." (Daniel G., at p. 830.)
"Battery" is "any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242.) No specific intent to harm is required for a battery, which requires only a general intent. (People v. Colantuono (1994) 7 Cal.4th 206, 217.) "If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed." (Ibid.) Thus, "[t]he pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm." (Id. at p. 218.) For the crime of battery against a school employee, the prosecution must prove the defendant committed a battery 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, and the defendant knew or reasonably should have known the victim was a school employee. (Pen. Code, § 243.6.)
The evidence is undisputed that Smith and Aguilar were school employees and they were engaged in the performance of their duties during the events at hand. The record also reflects that appellant knew both were employees of the school and were engaged in their official duties at the time of the altercation. Furthermore, viewing the evidence in the light most favorable to the juvenile court's decision, there is substantial evidence in the record that appellant had the general intent to commit battery against both Smith and Aguilar and that he applied sufficient force to Aguilar to constitute battery.
While visibly agitated, appellant aggressively and verbally confronted Smith and then charged at him prompting Aguilar and Gutierrez to restrain appellant. Rather than calm down, appellant began to struggle against Aguilar and Gutierrez. Smith was then impelled to assist Aguilar with appellant who thrashed and struggled in their arms. Appellant continually cursed at Smith and said he was going to "get" Smith. When Smith and Aguilar escorted appellant out of the building, and once Smith let go of appellant, appellant turned and swung a fist at Smith, striking him in the head and knocking his glasses to the ground. Appellant's intent to make unlawful contact was clear from his aggressive behavior, his storming into Smith's office, his lunging at Smith and, most certainly, his swing at Smith once he was finally released.
Appellant's argument that he did not raise his hands or arms at Smith is inconsequential. "'[F]orce against the person is enough,'" and such force "'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, 88.) Nor is appellant's argument that he never struck, attempted to strike or otherwise applied any force to Aguilar of any moment. Once appellant charged at Smith, he set into motion Aguilar's action in restraining him from "getting" Smith. Appellant's continued struggling and twisting against Aguilar was of sufficient force given that the least touching is sufficient for battery. (Ibid.) A willful act that by its nature directly and immediately causes the least touching is enough. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1054.)
We also reject appellant's argument that he merely used reasonable force to resist Aguilar's battery against him. The juvenile court reasonably inferred that appellant knew that in charging at a school employee another school employee would try to assist to prevent such attack. "The plea of self-defense is not available to one who has sought a quarrel with the design or apparent necessity for making an assault." (People v. Duchon (1958) 165 Cal.App.2d 690, 693, citing People v. Hinshaw (1924) 194 Cal. 1, 26.) Whether appellant acted in self-defense was a question of fact for the juvenile court. The court here expressly found that "Mr. Aguilar, in the lawful performance of his duty, put hands on [appellant]; and I think Mr. Aguilar showed great restraint in . . . not attempting to escalate the situation." The court reasonably found "[t]here was no submission by this young man" and that it was "fortuitous there were no serious injuries given the minor's size and the relative size of the witnesses, particularly Mr. Smith, which the court observed . . . ." The court found appellant had no apprehension of peril but rather that he sought the quarrel and did not act in self-defense. (Duchon, at p. 694.)
Substantial evidence thus supports the juvenile court's sustaining the petition with respect to both school employees and appellant accordingly was not denied due process. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576.)
2. Maximum Term of Confinement Improper
The juvenile court's disposition order of August 3, 2010, directs the placement of appellant at home on probation, but it further declares that appellant may not be held in physical confinement for a period to exceed three years four months. Appellant contends that because the juvenile court placed appellant home on probation it had no authority under Welfare and Institutions Code section 726, subdivision (c) to set a maximum term of confinement. Relying on our opinion in In re Matthew A. (2008) 165 Cal.App.4th 537, 541 (Matthew A.), appellant asserts that the juvenile court's order should be corrected to delete any reference to a maximum term of confinement for appellant's disposition of home on probation. Respondent concedes the court had no authority to set a maximum term of confinement under the circumstances of this case. Respondent, however, invokes In re Ali A. (2006) 139 Cal.App.4th 569, 574, in arguing that appellant's request to have the maximum term of confinement completely stricken is unnecessary and this court should simply declare the term of confinement to be "of no legal effect."
As we have noted, the juvenile court is not authorized by law to set a maximum term of physical confinement if the minor is not ordered removed from the parental home. (Matthew A., supra, 165 Cal.App.4th at p. 541.) Appellant is entitled to a dispositional order that accurately reflects the punishment that was imposed upon him at the time of the dispositional hearing. Because that punishment did not include any confinement, the maximum term of confinement contained in the current dispositional order must be stricken. (Ibid.)
DISPOSITION
The term of maximum confinement set forth in the court's August 3, 2010 order is stricken. In all other respects, the judgment is affirmed.
FLIER, J. WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.