Filed 4/10/18 In re A.M. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re A.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant. A145654

(Contra Costa County
Super. Ct. No. J1500062)


A.M. (Minor) appeals an order of the juvenile court adjudging him a ward and committing him to an out-of-home placement. He contends that his felonies should be reduced to misdemeanors, that the finding that he resisted officers should be reversed because the officers used excessive force, and that the court should not have removed him from his parents. We shall affirm the order.
I. BACKGROUND
The Contra Costa County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602) alleging as a felony that Minor “did unlawfully drive and take” a vehicle (Veh. Code, § 10851, subd. (a), count one); one count of felony evading a police officer through reckless driving (Veh. Code, § 2800.2, count two); two counts of felony resisting an executive officer (Pen. Code, § 69, counts three and four); and one count of misdemeanor hit-and-run driving (Veh. Code, § 20002, subd. (a), count five).
At the contested jurisdictional hearing, Katherine Randolph testified that her home was broken into on October 17, 2014; one of the items stolen was an extra key to a silver Volkswagen Jetta Sportwagen TDI, which her father-in-law had loaned to the family. The car was in “good to excellent” condition. The following day, she saw someone driving the car out of her driveway. She did not see who was driving.
Shortly after midnight on October 20, 2014, Officer Brandon Hodges of the Richmond Police Department received information from dispatch that a stolen vehicle had been detected nearby. He drove to the location where the car had been observed and saw a silver Volkswagen, later identified as the car stolen from Randolph’s driveway. The car ran a stop sign, and Hodges activated his lights and siren. Rather than stopping, the car continued, going at 40 or 45 miles an hour in a 25 mile per hour zone, and reaching speeds up to 55 miles an hour. Hodges pursued the car into a residential area, where it crashed into a parked car and a fence. Hodges’s patrol car ran into the back of the stolen car. The chase had taken about 40 seconds, and traversed between three quarters of a mile and a mile.
The driver of the stolen vehicle, later identified as Minor, got out of the car and ran, and Hodges chased him, yelling that he was law enforcement and telling Minor to stop. Other officers arrived on the scene and caught Minor. Officer Jesse Sousa testified that he saw Hodges and Minor running. He got out of his patrol car, told Minor he was a police officer, and directed him to stop running. Minor kept running. Another officer, Mitchell Peixoto, stopped his police vehicle, and Minor ran into it before Sousa caught up to him. Minor stopped and waved his hands in the air, saying, “What did I do?” Sousa told Minor to lock his fingers behind his head and get on the ground, but Minor kept waving his hands in the air. When Sousa tried to grab Minor’s arm, Minor pulled it away from him. Sousa tried to grab Minor again and pulled him to the ground, falling on top of him. Minor “kick[ed] his legs and flail[ed] his arms, slapping towards Officer Sousa.” As soon as Peixoto got within a foot of Minor, Minor reached up with his leg, kicking him in the groin. Peixoto grabbed Minor’s leg and leaned down. Minor started to sit up toward Peixoto, and Peixoto punched him in the face. Peixoto did not know whether Minor was going to “headbutt” him or bite him. Minor fell back to the ground, Peixoto rolled him over onto his stomach, and he and Sousa handcuffed him. Peixoto saw redness and bruising underneath Minor’s eye. Peixoto did not have to take any time off work as a result of the kick to his groin.
Minor testified at the hearing. He was 14 years old at the time of the incident and lived in Richmond. On Friday, October 18, he skipped school and went by himself to Berkeley. As he walked around, he saw a silver car with keys in it, got in the car, and drove to Richmond. He thought the car had been stolen because the stereo was missing. At the end of the school day, he picked up a friend and drove around, then parked the car away from his home so his parents would not see it. The next day, he went back to the car and drove around again with a friend and two girls. He dropped them off around 11:30 in the evening, made a phone call from a store, then got back into the car. He passed a light that was turning red, then started speeding up because he saw a police officer. He was frightened because he had never had contact with a police officer before. He saw the lights on the police car but did not hear the siren. Eventually he lost control of the car and crashed. Seconds later, the police car hit the car Minor was driving.
Minor ran out of the car. He heard the police officer screaming at him. About two blocks later, he ran into a police car, but he kept running. An officer grabbed his arm, and Minor pushed his hand away. The officer bumped into him, causing him to fall to the ground. Two other officers approached, and they hit him with batons. Minor swung his legs around as they did so. One of the officers was hurting Minor’s hand, and Minor told him he had had surgery on his hand. The officer replied, “I don’t care, I’ll break it again,” then punched him in the face. Officer Peixoto “stepped on the back of [Minor’s] neck,” pressing his head to the ground. Minor was placed in handcuffs and taken to the police station, then released to his parents.
The juvenile court found true the allegations that Minor drove and took a motor vehicle (Veh. Code, § 10851) and evaded an officer through reckless driving (Veh. Code, § 2800.2, subd. (a), and set the offenses as felonies. It found not true the allegation that Minor resisted Officer Sousa with threats or violence (Pen. Code, § 69) but found he committed the lesser included misdemeanor offense of resisting an officer in the discharge of his duties. The court found true the allegation that Minor resisted Peixoto with force or violence, and set the offense as a felony. (Pen. Code, § 69.) The court also found Minor committed misdemeanor hit-and-run driving. (Veh. Code, § 20002, subd. (a))
At the dispositional hearing, the juvenile court found Minor a ward of the court and committed him to Orin Allen Youth Rehabilitation Facility (OAYRF) for nine months.
II. DISCUSSION
A. Felony Violation of Vehicle Section 10851
Vehicle Code section 10851 is a “wobbler,” a violation of which may be punished as either a felony or a misdemeanor. Minor contends that, pursuant to Proposition 47, his violation of Vehicle Code section 10851 must be reduced to a misdemeanor. “Approved by the voters in 2014, Proposition 47 (the ‘Safe Neighborhoods and Schools Act’) reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. (Id., subd. (a).)” (People v. Page (2017) 3 Cal.5th 1175, 1179 (Page).)
In Page, our high court had occasion, in the context of a petition for resentencing, to consider the application of Proposition 47 to a conviction for taking or driving a vehicle without the owner’s consent. (Veh. Code, § 10851; Page, supra, 3 Cal.5th at p. 1180.) We quote extensively from Page: “Vehicle Code section 10851 differs in two important ways from Penal Code section 487, subdivision (d)(1) [grand theft of an automobile]. For one thing, the Vehicle Code section does not expressly designate the offense as ‘grand theft.’ And for another, its prohibitions sweep more broadly than ‘theft,’ as the term is traditionally understood. Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner’s consent, and ‘with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.’ (Veh. Code, § 10851, subd. (a), italics added.) Theft, in contrast, requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession. [Citations.] [¶] We recognized the distinction between the theft and non-theft forms of the Vehicle Code section 10851 offense in People v. Garza [(2005)] 35 Cal.4th 866 (Garza). In that case, we considered whether dual convictions under Vehicle Code section 10851 and Penal Code section 496, subdivision (a) (receiving stolen property) violated the statutory rule against convicting a person for both stealing and receiving the same property. We concluded the answer depended on the basis for the Vehicle Code section 10851 conviction—whether it was for stealing the automobile or for taking or driving it in another prohibited manner: ‘Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete. . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .’ (Garza, at p. 871, italics omitted.) . . . [¶] By its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who ‘obtain[ed] any property by theft’ where the property is worth no more than $950. An automobile is personal property. ‘As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.’ [Citation.]” (Page, supra, 3 Cal.5th at pp. 1182-1183.)
Minor argues these principles apply to his case and that his violation of Vehicle Code section 10851 must be designated a misdemeanor rather than a felony. On the facts before us, we are unpersuaded. Our high court explained in Page, “Because vehicle theft often involves driving the vehicle, determining eligibility for resentencing under section 1170.18 will frequently require distinguishing between theft and unlawful driving after a theft. Posttheft driving in violation of Vehicle Code section 10851 consists of driving a vehicle without the owner’s consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a ‘substantial break’ between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft.” (Page, supra, 3 Cal.5th at p. 1188; accord Garza, supra, 35 Cal.4th at p. 872 [where the evidence did not show “that the defendant took the vehicle but did not engage in any posttheft driving,” Vehicle Code section 10851 conviction may be construed as one for posttheft driving].)
Here, there is no evidence of the identity of the person who took the car from Randolph’s driveway on October 18, 2014. Minor was found driving the car on October 20. Minor himself testified that he found the car and drove it to Richmond on October 18, and that he returned to the car the next day and drove it around until late into the evening, when he was stopped by police officers. This record clearly shows a “substantial break” between the theft of the vehicle—whoever the thief was—and Minor’s driving of the car early on October 20, at least a day after it was stolen. (See People v. Van Orden (2017) 9 Cal.App.5th 1277, 1286 [“posttheft driving . . . is driving that ‘occurs or continues after the theft is complete.’ [Citation.]”)
We are not persuaded otherwise by Minor’s contention that the theft of the car was the basis for the Vehicle Code section 10851 violation. The wardship petition alleged that on October 20, 2014, Minor “did unlawfully drive and take [the vehicle] without the consent of the owner and with the intent to temporarily and permanently deprive the owner of title to and possession of the vehicle.” At the conclusion of the hearing, the prosecutor argued: “Your Honor, on October 20th, 2014, the minor was driving around in a stolen vehicle in the city of Richmond. He was driving around in a vehicle he knew to be stolen based on the fact that it had had a broken stereo and that it was messy and he had found the key in the car. [¶] Actually, by taking the car from Berkeley, if we accept his version of events, he stole the car at that point in that he did not have the consent to drive it, and it was not his vehicle. Essentially, he steals the car, goes to Richmond, and is found by the police. At that point, he was guilty of the 10851.” Whether or not the trial court accepted Minor’s version of events, however, the evidence established a substantial break between the theft and Minor’s act of driving the vehicle on the date the offense was alleged to have taken place.
Minor argues that this result—in which violation of Vehicle Code section 10851 by theft is a misdemeanor but violation of the same statute by another method is a wobbler—deprives him of equal protection. In the circumstances before us, we reject this contention. In Page, our high court stated, “We have no occasion here to consider whether equal protection or the avoidance of absurd consequences requires that misdemeanor sentencing under sections 490.2 and 1170.18 extend not only to those convicted of theft under Vehicle Code section 10851, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession.” (Page, supra, 3 Cal.5th at p. 1188, fn. 5.) The question the Supreme Court reserved is not presented here, where the record shows Minor’s offense was based on his driving around in a stolen vehicle, rather than simply taking a vehicle without intent to deprive the owner permanently of possession. “To prevail on an equal protection challenge, a party must first establish that ‘ “ the state has adopted a classification that affects two or
more similarly situated groups in an unequal manner.” ’ [Citation.]” (People v. Zamudio (2017) 12 Cal.App.5th 8, 16.) Minor has not shown he is similarly situated to those found to have committed only auto theft: as we have explained, the record shows his violation of Vehicle Code section 10851 was based on his posttheft conduct, rather than on the theft of the vehicle alone. Moreover, “neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging under one such statute and not the other, violates equal protection principles. [Citation.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Minor’s equal protection challenge fails.
B. Resisting Police Officers
Minor contends the findings that he resisted officers in the performance of their duties must be reversed because the officers used excessive force. Section 69, subdivision (a), applies to “[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or duty. . .” Section 148, subdivision (a), applies to “[e]very person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment . . .”
“ ‘[I]t is no crime in this state to nonviolently resist the unlawful action of police officers.’ [Citation.] Thus, ‘[b]efore a person can be convicted of [a violation of section 148, subdivision (a)] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.’ [Citation.]” (In re Chase C. (2015) 243 Cal.App.4th 107, 113-114; accord In re Joseph F. (2000) 85 Cal.App.4th 975, 982; see also People v. Smith (2013) 57 Cal.4th 232, 241 [where defendant violates section 69 by resisting with force or violence, officer must have been acting lawfully at time of offense]; People v. Adams (2009) 176 Cal.App.4th 946, 952-953 [person has right to use reasonable force to protect against use of excessive force in making arrest].) Even if a detention is unlawful, “a person may not use force or violence to resist it unless the police officer effectuated the unlawful detention 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. [Citation.]” (In re Joseph F., 85 Cal.App.4th at p. 989.)
At the hearing, Minor’s counsel argued that the officers used excessive force in detaining Minor. The record supports the juvenile court’s rejection of this contention. Minor led officers on a chase well above the speed limit in the stolen car. When he got out of the car, he ran from officers and refused the command to get on the ground with his fingers behind his head, instead waving his hands in the air. He pulled away when Sousa tried to grab his arm. Sousa then pulled Minor to the ground. Even when on the ground, Minor kept “flailing” his hands, “slapping” toward Sousa, and kicking his legs. When Peixoto approached, Minor kicked him in the groin. It was only after this kick that Peixoto punched Minor in the face as Minor started to sit up toward him. In light of Minor’s active physical resistance to the officers’ attempts to detain him, the juvenile court properly concluded Minor’s actions were not an effort to defend himself against the use of excessive force.
C. Failure to Rule on Motion to Reduce Felonies to Misdemeanors
At the jurisdictional hearing, the court set the violations of section 69 and Vehicle Code sections 10851 and 2800.2, subdivision (a) as felonies. Minor’s counsel told the court she wanted to be heard about having those counts, which were wobblers, reduced to misdemeanors and asked when the court wanted the motion heard. The juvenile court responded, “We’ll do that at disposition,” and stated, “The record will reflect that you preserved your right to argue for reduction to a misdemeanor.” However, Minor’s counsel did not raise the issue at the dispositional hearing and the court made no ruling on the issue. Minor contends the court erred in failing to consider his request.
We reject this contention. By failing to raise the issue and seek a ruling at the dispositional hearing, Minor forfeited the issue. Where a trial court inadvertently fails to hear or rule on a motion, a defendant “must make some appropriate effort to obtain the hearing or ruling. [Citations.] . . . [¶] This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent. [Citations.] ‘ “In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them.” ’ [Citation.]” (People v. Braxton (2004) 34 Cal.4th 798, 813; and see People v. Cornejo (2016) 3 Cal.App.5th 36, 56.)
Minor makes a two-pronged challenge to this conclusion. First, he contends the trial court’s failure to exercise its discretion to decide whether to treat the offenses as misdemeanors deprived him of his fundamental rights. He relies on In re Sean W. (2005) 127 Cal.App.4th 1177, 1182, which held the appellant had not forfeited an argument that the juvenile court had completely failed to exercise its discretion in setting his maximum term of confinement; this failure, the court concluded, deprived the appellant of a fair hearing and his fundamental procedural rights. In re Sean W. is inapposite. In making its jurisdictional findings as to each challenged offense, the juvenile court here stated explicitly that it “set” the offense as a felony. It is clear the court was aware of and exercised its discretion to set the offenses as either felonies or misdemeanors.
Minor also argues we should exercise our discretion not to treat the matter as forfeited because his substantial rights were implicated. He draws our attention to section 1259, which provides that an appellate court “may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after the judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.” Here, as we have explained, the juvenile court exercised its discretion in setting the challenged offenses as felonies. In our view, the court’s failure to rule on Minor’s motion that it change its determination does not raise a question of law that affected his substantial rights. Nor does this contention raise a constitutional issue which courts have examined for the first time on appeal. (See People v. Curlee (2015) 237 Cal.App.4th 709, 714, 715-716.)
Minor contends cursorily that if the issue is forfeited, his counsel rendered him ineffective assistance in failing to renew the motion at the dispositional hearing. He fails to cite any authority for this proposition, and we may therefore treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) In any case, he could not meet his burden to show ineffective assistance of counsel. “ ‘It is fundamental that “a defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of a reasonable probability of a different outcome.” [Citation.]’ [Citations.]” (People v. Denard (2015) 242 Cal.App.4th 1012, 1020, fn. 2.) Minor cannot meet this burden. After hearing the evidence and argument, the juvenile court had already exercised its discretion to set the offenses as felonies. There is no basis to conclude it is reasonably probable the court would have reached a different decision had Minor’s counsel raised the issue again at the dispositional hearing.
D. Removal from Parents
At the dispositional hearing, Minor’s counsel asked the juvenile court to place him in a six-month regular program at the Orin Allen Youth Rehabilitation Facility (OAYRF), a treatment center for adolescent delinquent youngsters also known as the Ranch. Counsel asserted that such a placement would enable Minor to get needed treatment and allow him to prove to the court, his parents, and the probation officer that he could follow the rules. Minor nevertheless contends the trial court erred by removing Minor, a first-time offender, from his parents’ care and placing him at OAYRF. Minor forfeited the issue by acquiescing to the placement in the trial court. (See In re Sheena K. (2007) 40 Cal.4th 875, 881 [“In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law”].) Even if the issue had not been forfeited, it lacks merit.
Section 726 of the Welfare and Institutions Code provides in pertinent part: “[N]o ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts: [¶] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor’s parent or guardian.” (Welf. & Inst. Code, § 726, subd. (a); see In re W.B. (2012) 55 Cal.4th 30, 44.) As explained in In re Kazuo G. (1994) 22 Cal.App.4th 1, 8, a minor who is granted juvenile probation ordinarily remains in the parent’s physical custody.
Minor argues that the juvenile court erred in removing him from his parents’ custody without finding applicable any of the exceptions set forth in Welfare and Institutions Code section 726, subdivision (a). He is incorrect. The court ordered: “Your custody will be removed from your parents pursuant to 726 (a)(3) of the [Welfare and Institutions] Code.” (Italics added.) Thus, the court did find that Minor’s welfare required him to be removed from his parents’ custody.
Nor do we find any error or abuse of discretion in this ruling. As explained in In re Asean D. (1993) 14 Cal.App.4th 467, 473, “We review a commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. [Citations.]” “ ‘ “We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” ’ [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330 [juvenile court did not abuse its discretion by committing minor to Camp Community Placement instead of home supervision, where disposition was dictated by gravity of minor’s offense].) A court need not place a minor in the least restrictive placement in the first instance. (In re Asean D., at p. 473.) Among the goals of the juvenile law are “punishment as a tool of rehabilitation, and a concern for the safety of the public.” (Ibid.)
In making its ruling, the court stated: “I think the nine-month regular program [at OAYRF] is the right program for [Minor] because it will give him some time with the counselors with the program and the school to make steps towards being successful in his life. [¶] The purpose of the Ranch is to help rehabilitate you, let you know how you have to act in society, and to help you develop the skills and tools you’ll need for life. Because you’re going to grow up, and you need to be able to be an adult and provide for yourself. You can’t do it by stealing cars and running from the police. That’s only going to get you time in custody.”
Minor’s offenses involved not only a property crime but also danger to the public. While he was living at home in the time between the offenses and the dispositional hearing, Minor’s performance in school was sorely wanting: He had poor attendance at school, earned mostly D’s and F’s, failed to attend Saturday school, was disciplined for disruptive behavior in class, and was suspended for having marijuana at school, which he admitted smoking before school. Based on all the circumstances, the juvenile court could reasonably find Minor’s welfare required his removal from his home and placement in an environment that offered him greater structure and accountability.
III. DISPOSITION
The order is affirmed.





_________________________
Schulman, J.*




We concur:


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Reardon, J.


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Streeter, Acting P.J.