Opinion
D076399
10-07-2020
In re Matthew H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MATTHEW H., Defendant and Appellant.
Gary Crooks, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General for the Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J241905) APPEAL from a judgment of the Superior Court of San Diego County, Aaron Katz, Judge. Affirmed in part, reversed in part. Gary Crooks, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General for the Plaintiff and Respondent.
Following a disagreement, 12-year-old Matthew H. fired a loaded pellet rifle through a couch at his friend Jesse J., causing a metal pellet to lodge in Jesse's jaw. The court determined that the State met its burden to overcome the presumption offered by Penal Code section 26, and it found that Matthew violated section 245, subdivisions (a)(1) and (a)(4), for assault with a deadly weapon, and assault with force likely to cause great bodily injury. The court placed Matthew into the legal custody and care of the probation department, and it imposed several probation terms, including a prohibition on leaving San Diego County without the probation officer's permission and a curfew from 6:00 p.m. to 6:00 a.m., with some exceptions.
Further unspecified statutory references are to the Penal Code.
Matthew appeals, challenging the court's determination that the State met its burden to overcome the presumption in section 26, and contending there was not substantial evidence to support the court's conclusions regarding section 245, subdivisions (a)(1) and (a)(4). He challenges the probation conditions as vague and overbroad, and Matthew further maintains that the court improperly failed to strike the conviction for section 245, subdivision (a)(4) under section 954, which does not permit multiple convictions for different statements of the same offense based on the same act or course of conduct.
There is substantial evidence to support the juvenile court's findings regarding sections 26 and 245, subdivisions (a)(1) and (1)(4), and Matthew forfeited the probation challenges by failing to object to them at the disposition hearing. Thus, we will affirm those conclusions and findings. However, we agree that the court should have struck count 2, the violation of section 245, subdivision (a)(4).
FACTUAL AND PROCEDURAL BACKGROUND
Twelve-year-old Matthew H. and 13-year-old Jesse J. participated in a weekend sleepover at Matthew's house in December 2018. On Sunday morning, December 16, the boys went to church then returned to Matthew's house, where they ate lunch, engaged in target practice outdoors using Matthew's pellet rifle, and played a video game.
While they were playing the video game, the two began to argue. Jesse told Matthew he was finished playing, and he put down the game controller, laid back on the couch and began playing on his phone. Jesse later testified Matthew seemed irritated. Matthew told Jesse, "You better play with me or I am going to shoot you."
Jesse did not think Matthew would follow through with the threat, but Matthew left the room and returned with the pellet rifle. Matthew told Jesse he was serious, twice warned that he was going to shoot Jesse, and pointed the weapon toward the back of the couch on which Jesse was laying. Jesse ignored Matthew and continued to look at his phone.
About 10 seconds later, Matthew pulled the trigger of the pellet rifle, causing a metal pellet to fire through the couch and hit Jesse's chin, lodging in his jaw. The force of the pellet caused Jesse to tumble to the ground.
Matthew ran to the bathroom and took out the first aid kit. He looked scared, and he asked Jesse not to tell his parents what happened.
Matthew's dad, Robert H., came into the room and saw Jesse bleeding. Matthew said Jesse fell; Jesse said Matthew had shot him. Robert told Matthew's mom what happened, and she drove Jesse home. When she arrived at Jesse's home, Jesse's mother said they should go to the hospital, so Matthew's mom drove them there.
At the hospital, Jesse told the doctor he shot himself. Jesse later explained he said this because he wanted to protect Matthew.
Sheriff Deputy Nikolaos Katrantzis investigated the incident in response to a report he received December 17, 2018. He viewed the couch that the pellet had traveled through and noted it was three or four inches thick. The bullet holes were about a foot from the top of the couch, and the bullet traveled straight through.
The State filed a Welfare and Institutions Code section 602 petition, charging Matthew with assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and alleging Matthew personally inflicted great bodily injury on Jesse (§ 12022.7, subd. (a)), as well as assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2) and personal infliction of great bodily injury (§ 12022.7, subd. (a)).
At the adjudication hearing, Matthew testified that he picked up the pellet rifle because he wanted to go back outside to shoot at targets. He knew the pellet rifle was loaded, and he carried it by the stock, holding it near his hip while pointing it downward. He testified that he was pointing it downward when Jesse sat up and reached over the top of the couch with his left hand while playing on his phone with his right hand, causing the pellet rifle to lift and fire through the couch.
The court heard testimony from Robert and Matthew that Robert had taught Matthew gun safety, and Matthew knew never to point guns at anyone, to always point them to the ground or the sky to ensure nobody got hurt. Robert said Matthew knew these rules at the time of the incident.
Matthew also told the court that the rifle was not meant for short range firing, and he testified that he used the pellet rifle sometimes to shoot at intruding animals that were disturbing the family's pets or tearing up items in the front yard, understanding the rifle could hurt the animals. He told the court the house rules prohibited him from shooting the pellet rifle inside the house.
Matthew denied ever threatening Jesse. He also denied asking Jesse not to tell anyone what happened.
Following closing arguments, the court explained the case came down to physical evidence, the pictures of the couch, and whether it found Jesse's or Matthew's testimony more credible. The court found Jesse to be the more credible witness and commented that Jesse lacked any motivation to lie about what had transpired. It concluded Matthew's version of events was inconsistent with the physical evidence.
The court found section 26 was satisfied because Matthew understood the difference between right and wrong and knew how to safely use the gun. The court further concluded that Matthew had violated sections 245, subdivisions (a)(1) and (a)(4), and the allegation regarding section 245, subdivision (a)(4) that he personally inflicted great bodily injury on his victim (§ 12022.7, subd. (a)) was proven beyond a reasonable doubt. The parties stipulated Jesse suffered great bodily injury.
The court sustained the petition, adjudged Matthew a ward of the state, pursuant to Welfare and Institutions Code, section 602, and at the disposition hearing, it put Matthew's care, custody, and control under the supervision of the probation officer, placed physically with his parents. Among the probation terms and conditions, the court imposed a curfew from 6:00 p.m. to 6:00 a.m., subject to modification at the probation officer's discretion, unless in the company of his parents or guardian, or another adult with legal care or custody, or for verifiable school or employment, religious activities, organized sports, or court-ordered programs. It also prohibited Matthew from knowingly leaving San Diego County without the probation officer's permission. Matthew did not object to any of the imposed probation terms or conditions.
DISCUSSION
I
Substantial Evidence Supports the Conclusion the State Overcame the Penal
Code, Section 26 Presumption
Matthew argues there was insufficient evidence to demonstrate he understood the possible consequences of his actions at the moment he pulled the trigger of the rifle and, thus, the State failed to overcome the presumption that children under age 14 know of the wrongfulness of a criminal act they commit.
Section 26 provides in part: "All persons are capable of committing crimes except those belonging to the following classes: ¶ One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness." The prosecution bears the burden of proving by clear and convincing evidence that a minor appreciated the wrongfulness of his or her act at the time the minor committed the act. (In re Manuel L. (1994) 7 Cal.4th 229, 232.) The minor's actions alone cannot be used to infer a minor's knowledge of wrongfulness; however, " 'the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment' may be considered." (People v. Lewis (2001) 26 Cal.4th 334, 379 (Lewis).)
We review the juvenile court's determination of capacity for substantial evidence. (Lewis, supra, 26 Cal.4th at p. 379.) In reviewing a challenge to the sufficiency of the evidence, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) If there is substantial evidence to support the verdict, we give deference to the trier of fact rather than substitute our own judgment. (Ibid.; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The crux of Matthew's argument is that his actions displayed impulsivity and a failure to appreciate the potential consequences of his dangerous conduct rather than knowledge of wrongfulness. However, a juvenile's "transient rashness, proclivity for risk, and inability to assess consequences" (Miller v. Alabama (2012) 567 U.S. 460, 471) are not mutually exclusive with a youth's understanding or knowledge of wrongfulness.
Matthew knew and understood that he should not point a rifle at another person. He testified that he understood the rifle was not for short range firing, the house rules prohibited him from shooting the pellet rifle inside his home, and he understood he was always to point the weapon at the ground or the sky so nobody would get hurt. Matthew's father testified Matthew knew the pellet gun safety rules at the time of the incident.
Matthew's testimony indicates he understood the potential damage the pellet rifle could cause; he told the court the rifle was not intended for short-range use, and he understood the rifle's pellets could cause harm because he had used the pellet rifle to shoot at intruding animals to protect his family's pets. Thus, he knew his act of firing the weapon at Jesse was wrong. (See § 26.) He also asked Jesse to lie, and he himself lied about what occurred, evidence of attempting concealment that shows his understanding of wrongfulness. Even accepting Matthew's argument that he did not " 'fully understand the seriousness of his actions' " and that he did not intend to hurt his friend, the record demonstrates Matthew understood right from wrong and specifically knew that firing a pellet rifle at a person was wrong.
II
The Section 245 Findings Were Supported by Substantial Evidence
Matthew next maintains there was insufficient evidence to support a finding that he violated section 245, subdivisions (a)(1) (assault with a deadly weapon) and (a)(4) (assault with force likely to cause great bodily injury [force-likely assault]) because the State failed to meet its burden in proving his mental state.
We review a challenge to the sufficiency of evidence for substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576-577 (Johnson).) Under that standard, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We draw all reasonable inferences in favor of the decision. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) We do not make credibility decisions or weigh the evidence; our role is to determine if there is sufficient substantial evidence from which a reasonable jury could find the prosecution proved each element of the crime beyond a reasonable doubt. (Johnson, supra, 26 Cal.3d at pp. 576-577.) Reversal of a conviction is only required for insufficient evidence if under no hypothesis whatever there is substantial evidence to support the conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Assault requires an intentional act with actual knowledge of the facts sufficient to establish the act will probably and directly result in application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) "[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (Id. at p. 788.) Thus, to demonstrate intent, the State needed to show that "a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id. at p. 788, fn. 3.)
Matthew argues there is insufficient evidence to support his mental state because there is some evidence that he did not intend to cause Jesse harm and an intent to frighten does not demonstrate a general intent to commit assault. (See People v. Wolcott (1983) 34 Cal.3d 92, 99.) In so arguing, Matthew points to Jesse's testimony that Jesse did not take the threats seriously or try to get off the couch, and he notes that his reaction to Jesse's injury demonstrates he was surprised by the injury, which he implies contradicts a finding of intent.
These arguments ignore other evidence in the record that explains why and how a reasonable trier of fact could have found the requisite mental state beyond a reasonable doubt. Specifically, Matthew told the court the pellet rifle was intended for long-range, not up-close use, implying understanding of the potential damage it could cause. And he testified that he had experience firing the pellet rifle and he understood the harm it could cause when explaining his experiences shooting at animals. Matthew also indicated he knew not to fire the weapon in the home, and he knew to point the weapon down or at the sky, but never at any person, implying knowledge about the dangerous impact the pellets could have on property or people.
Additionally, the court could infer Matthew was familiar with the couch because it was in his family's home and he had personally used it, and Matthew described the couch as "soft." Despite his knowledge, Matthew pointed the loaded weapon at the back of the couch, and he aimed it at Jesse, who was laying on the other side. This evidence shows knowledge about the power and the probable impact of a metal pellet discharged at a person, and reasonable person viewing these facts would understand the act of firing the weapon at Jesse through the couch would naturally and probably result in a battery. (Williams, supra, 26 Cal.4th at pp. 788, fn. 3, & 790.)
III
Defendant Forfeited Challenges to Probation Conditions
Matthew acknowledges he did not challenge any of the probation conditions in the juvenile court. He argues, however, his challenge here is cognizable because it is a constitutional challenge based upon claims of vagueness and overbreadth.
The general rule requires challenges of this sort to be raised in trial court. (People v. Welch (1993) 5 Cal.4th 228, 234-235; In re Justin S. (2001) 93 Cal.App.4th 811, 814.) Failure to timely object to probation conditions can serve as a basis for applying the forfeiture doctrine to attempts to raise objections for the first time on appeal. (Welch, at pp. 234-235.)
The principal and frequently cited exception to the forfeiture rule is the holding in In re Sheena K. (2007) 40 Cal.4th 875, 880-888 (Sheena K.). The court in Sheena K. held that where the challenge is to the language of the condition based on vagueness or overbreadth, and the challenge can be decided without reference to the facts of the record, failure to timely object does not require forfeiture. (Id. at p. 887.) In that case the court forbade the minor from associating with anyone disapproved of by the probation officer. The court determined from the language of the condition that it was vague. It did not contain a knowledge or scienter provision; thus, the minor could err without knowing the probation officer disapproved of her associate. It was not necessary to refer to the factual record in order to address the constitutional question. (Ibid.)
Our review is limited to "a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court" because those conditions "can be said to present a pure question of law." (Sheena K., supra, 40 Cal.4th p. 887.) Matthew maintains that we have discretion to remand the matter when the probation condition is not patently unconstitutional but still suffers from vagueness or overbreadth, but he also concedes that in order to address the probation challenges here, it is necessary to review the factual record to determine the relationship of the conditions to Matthew's criminal act and his need for supervision and rehabilitation. Because our review is limited to questions of pure law, without reference to the particular disposition record developed (id. at pp. 887-889), we find the constitutional challenge to the search condition should be deemed forfeited.
Although we conclude the minor forfeited this issue, we note that the condition prohibiting Matthew from traveling outside San Diego County without probation officer approval may not be related to the assault charges or future criminality. (See People v. Lent (1975) 15 Cal.3d 481, 486.) The minor has the option of petitioning the juvenile court for modification of the probation condition even without the matter being remanded on that point. (Welf. & Inst. Code, §§ 775, 778.)
IV
Section 954 Prohibits Multiple Convictions for Different Statements of the
Same Offense
Matthew further argues that one of the assault counts must be struck because section 954 does not permit multiple convictions for a different statements of the same offense based on the same act or course of conduct. (People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana).) He recognizes the court stayed count 2 subject to section 654, but he maintains it was error not to strike one of the two counts, either because they were descriptions of the same crime, or because force-likely assault is necessarily included in the crime of assault with a deadly weapon.
Matthew requested to strike his originally-filed opening brief and to replace it with a version addressing this additional issue, a request which we denied. Instead, we permitted Matthew to file a supplemental brief and the Attorney General to file a supplemental response brief. Matthew then subsequently filed supplemental reply brief, which we reject.
Two cases from our division, People v. Brunton (2018) 23 Cal.App.5th 1097 (Brunton), and People v. Aguayo (2019) 31 Cal.App.5th 758 (Aguayo), review granted May 1, 2019, S254554, have addressed the application of section 954 to assault charges under section 245, subdivisions (a)(1) and (a)(4). The defendants in those cases used noninherently dangerous objects to assault their victims (Aguayo, at p. 761 [bicycle lock and chain]; Brunton, at p. 1101 [towel twisted tightly like a rope]), but as explained in Aguayo, the same analysis applies even in cases in which the defendant uses an inherently deadly weapon. (Aguayo, at p. 768.)
The First Appellate District in In re Jonathan R. (2016) 3 Cal.App.5th 963 (Jonathan R.) also addressed section 954 requirements. We will follow the cases from our district that address the Supreme Court's decision in Vidana, supra, 1 Cal.5th 632, which was decided close in time to Jonathan R. --------
Applying the statutory elements test to assess application of section 954 as required (People v. Reed (2006) 38 Cal.4th 1224, 1231), the panel in Aguayo concluded force-likely assault was not a lesser-included offense of assault with a deadly weapon. (Aguayo, supra, 31 Cal.App.5th at p. 766, rev.gr.) However, because section 954 does not allow multiple convictions for different statements of the same offense based on the same act (Vidana, supra, 1 Cal.5th at p. 650; Brunton, supra, 23 Cal.App.5th at pp. 1107-1108), we consider the factual bases of the charges here.
Matthew was charged with both assault with a deadly weapon (§ 245, subd. (a)(1)) and force-likely assault (§ 245, subd. (a)(4)) based on firing the pellet rifle at Jesse. For purposes of count 1, Matthew used a pellet rifle, which courts have concluded can be used as a deadly weapon. (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 540-541 [Pellet guns can be deadly weapons because they are capable of inflicting great bodily injury].) He also committed force-likely assault because he used the pellet rifle in a manner "likely to produce great bodily injury." (§ 245, subd. (a)(4).) Thus, while he was charged with separate counts, each one effective asserts only a " ' different statement of the same offense.' " (Vidana, supra, 1 Cal.5th at p. 650), and the court's findings were based on the same conduct. Accordingly, Matthew cannot be convicted of both counts, and one finding must be vacated.
DISPOSITION
The matter is remanded to the trial court to vacate count 2. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. DATO, J.