Opinion
F076272
10-22-2018
In re M.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JW136041-00)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
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The court adjudged appellant M.M. a ward of the court after it sustained allegations charging appellant with battery on a peace officer (Pen. Code, § 243, subd. (b); count 2). On July 10, 2017, the juvenile court placed appellant on probation until his 21st birthday.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, appellant contends the evidence is insufficient to sustain his adjudication for battery on a peace officer. We affirm.
FACTS
On May 4, 2016, appellant was arrested after he punched a police officer in the face while the officer attempted to take him into custody for willfully disturbing a public school (Ed. Code, § 33210).
Education Code section 32210 provides: "Any person who willfully disturbs any public school or any public school meeting is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500)."
On May 6, 2016, the Kern County District Attorney filed a petition charging appellant with resisting an executive officer by force (§ 69; count 1), battery on a peace officer (§ 243, subd. (b); count 2), and resisting arrest (§ 148, subd. (a); count 3).
Appellant's jurisdictional hearing began on May 3, 2017. The evidence at the hearing established that on May 4, 2016, at approximately 10:00 a.m., after being warned about using "foul" language, appellant, who was then 14 years old, left his middle school classroom in Ridgecrest, angry and yelling obscenities. Assistant Principal Michael Sernett was with Ridgecrest Police Officer Eddie Hamilton, the school's resource officer, when he was informed appellant had left his classroom. The men searched for appellant and found him seated at a desk at the on-campus suspension room. Appellant initially appeared calm to Hamilton, but when Sernett asked appellant to accompany him and the officer to the office, appellant became agitated, clenching his fists, breathing heavily out of his nose, and raising his voice. He also ignored Sernett's first request to accompany him and the officer and he responded to a second request in a disrespectful manner. When Hamilton told appellant he had to accompany them, appellant stood up, walked toward Hamilton, and placed his face four to five inches away from Hamilton's face. Hamilton told appellant he did not scare him and appellant replied that Hamilton did not scare appellant either.
The trio walked to the office with appellant in front, Hamilton three feet behind, and Sernett behind Hamilton. As appellant walked through the doorway into the office with Hamilton behind him, in an aggressive and forceful manner, appellant pushed the door toward Hamilton requiring Hamilton to use his hand to block it to prevent the door from hitting him. Appellant then clenched his fists and "got back into [Hamilton's] face." Due to appellant's aggressive and agitated state, Hamilton believed appellant was a danger to the students in the office and needed to be removed from the campus.
Hamilton testified that the door would have struck him in the right chest and shoulder and possibly his face, if he had not put his hand up.
On a prior occasion Hamilton had been called to campus because appellant had challenged a teacher in his classroom.
Hamilton told appellant to place his hands behind his back because he intended to arrest him for willfully disturbing a public school. Appellant, however, began to walk away from Hamilton. Hamilton instructed appellant a second time to put his hands behind his back but appellant ignored him and continued walking away. Hamilton attempted to grab appellant's left hand to handcuff him but appellant began pulling away from him. Hamilton attempted to grab appellant's hand a second time but appellant again pulled away from him. Because appellant was ignoring his commands and pulling away from him, Hamilton decided to grab appellant's left hand with one hand and place his other hand around appellant's back in order to take appellant to the ground, so he could gain control of appellant and take him into custody. Instead, as he and appellant moved around a corner of the hallway, Hamilton grabbed appellant's left hand with his left hand and he put his right hand on the back of appellant's neck. Simultaneously, he also put his right leg in front of appellant and pushed him in an attempt to trip appellant and get him on the ground.
Hamilton did not try to talk appellant down or reason with him because he did not think he would be successful due to appellant's aggressive and agitated state. --------
Hamilton lost his grip on appellant's left hand and began falling backward. Appellant, however, managed to remain standing and he punched Hamilton on the chin with a closed fist as Hamilton fell down. Appellant then angrily yelled at Hamilton and took a few steps backward. Hamilton got up, charged appellant, and threw two punches at him that missed. Hamilton then grabbed appellant, wrestled him to the ground, and took him into custody with the help of two other officers who arrived on the scene.
After hearing argument from counsel, the court took the matter under submission. On May 16, 2017, the court found the battery on a peace officer count true and the other charges not true. In doing so, the court found that Hamilton had probable cause to arrest appellant for disturbing a public school. However, the court also found that Hamilton used excessive force in attempting to take appellant to the ground. In so finding, the court stated, "Based upon what I saw [in surveillance video introduced into evidence], I don't think the force was reasonable in this instance based on the factor of the timing and the sequence." Nevertheless, the court found appellant did not act in self-defense when he punched Hamilton as Hamilton fell backward, because appellant could have stepped away or pushed the officer away. In reaching this conclusion, the court noted that appellant did nothing to get away after Hamilton fell and that, instead of acting like he was afraid of being attacked, appellant stood there momentarily with a clenched fist looking like he was challenging Hamilton.
DISCUSSION
Appellant contends Officer Hamilton used excessive force in arresting him and that he acted in reasonable self-defense when he punched the officer because: (1) he was in a vulnerable position by virtue of being a teenage boy surrounded by two grown men; (2) he did not have time to contemplate whether to step away or push the officer instead; and (3) he was only trying to counter the force the officer was applying to him. Thus according to appellant the evidence is insufficient to sustain his adjudication for battery on a police officer.
"Upon a claim of insufficient evidence to support a conviction, reviewing courts 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.] 'The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.' " (In re Joseph F. (2000) 85 Cal.App.4th 975, 981.)
In order to prove the battery against a peace officer charge the prosecutor had to prove: (1) Hamilton was a peace officer; (2) appellant willfully and unlawfully touched Hamilton in a harmful or offensive manner; and (3) at the time, appellant knew Hamilton was a peace officer who was performing his duties. (CALCRIM No. 945)
"Before a person can be convicted of [battery on a police officer] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed. [Citations.] ' "The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in 'duties' for purposes of an offense defined in such terms, if the officer's conduct is unlawful...." ' " (In re Joseph F., supra, 85 Cal.App.4th at p. 982.) "Even if [an arrest] were unlawful, a person may not use force or violence to resist it unless the police officer effectuated the unlawful [arrest] by excessive, i.e., unreasonable, force. [Citations.] The reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight. The inquiry is an objective one: Was the officer's action objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation? [Citation.] It is a pure question of fact whether a police officer used reasonable force in detaining a defendant, so reviewing courts determine if there is sufficient evidence in the record for a reasonable trier of fact to conclude that the force used in effectuating a detention was reasonable." (Id. at p. 989.)
The only issue here is whether appellant unlawfully touched the officer or was acting in self-defense when appellant punched him. The resolution of this issue depends on whether Hamilton used excessive force in attempting to take appellant to the ground because if an officer uses excessive force, an "arrestee may use reasonable force to protect himself in accordance with the principles of self-defense." (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47.) Further, if Hamilton used excessive force, he would not have been performing his duties and appellant could only be adjudicated of simple battery. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [defendant may still be guilty of simple battery if officer is not acting within the scope of his duties because of use of excessive force].)
Appellant left his classroom without permission, angry and yelling obscenities. After Hamilton told appellant he had do as instructed by the vice principal, appellant got agitated and put his face within four to five inches of the officer's face, which prompted Hamilton to tell appellant that appellant did not scare him. Appellant retorted that Hamilton did not scare appellant either. When Hamilton was about to enter the school office, appellant pushed the door toward Hamilton requiring the officer to block the door to prevent it from striking him. Appellant again confronted Hamilton aggressively and he walked away as Hamilton asked him twice to place his hands behind his back. Appellant then resisted two attempts by Hamilton to handcuff him, before the officer placed his hand on the back of appellant's neck and attempted to trip him, in an effort get appellant on the ground to gain control of appellant and take him into custody. Thus, the record shows that appellant was not cooperative, that he acted aggressively toward Hamilton, actively resisted the attempts to handcuff him, and that the officer's use of force was precipitated by appellant's conduct.
Further, the officer did not use a weapon, inflict pain on appellant, or cause appellant any injuries in attempting to take appellant to the ground. Moreover, since appellant continued to be in an aggressive and agitated state and resisted Hamilton's attempts to take him into custody, Hamilton could reasonably believe he needed to control appellant and take him into custody quickly because he might become violent. Thus, we conclude that Officer Hamilton did not use excessive force in attempting to take appellant to the ground in order to arrest him.
Since Hamilton did not use excessive force, appellant should have allowed the officer to get up and take him into custody, as he was obligated to do. (§ 834a [it is the duty of person who knows he is being arrested to refrain from using force to resist arrest].) Instead, appellant acted unreasonably and escalated the situation by punching the officer and continuing to resist his efforts to take him into custody. Accordingly, we reject appellant's contention that the evidence is insufficient to sustain his adjudication for battery on a peace officer.
DISPOSITION
The order is affirmed.