In re Christian P.

Filed 2/28/07 In re Christian P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Joy W. Markman, Judge. Affirmed as modified and reversed in part.

Elizabeth Corpora, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

Following a contested jurisdiction hearing, the juvenile court sustained a petition alleging Christian P., a minor, had committed four aggravated assaults for the benefit of a criminal street gang. The minor contends insufficient evidence supports the courts findings he participated in the attacks or that the assaults were likely to produce great bodily injury. We agree the evidence was insufficient to support the finding on count 1 that the assault was committed with force likely to inflict great bodily injury and modify the order to reflect the minor committed the lesser included offense of simple assault. We also agree with the minors contention the court failed to specify the maximum period of confinement as required by Welfare and Institutions Code section 726, subdivision (c) and remand the case for the court to specify that term in the minutes. In all other respects, the order is affirmed.

FACTS

The minor, a 15 year old, actively participated in the criminal street gang Varrio Chico. Shortly after 1:00 p.m. during a weekday, a group of eight or nine Varrio Chico gang members drove to an area near Dana Hills High School in a black pickup truck with a camper shell. There, the gang members attacked four male high school students, yelling Varrio Chico San Clemente as they punched and kicked them.

Witnessing the attack, a neighbor smashed the trucks side window to create a distraction. The attackers ran back to the truck. Three of them got into the cab of the truck; the rest got into the back. The truck then took off.

About 15 minutes later, the police pulled over a black truck with a broken side window in San Clemente, 4.7 miles from the scene of the attack. Nine male youths were in the vehicle; three, including the minor, were in the cab, while six were in the back. Following a Miranda warning (Miranda v. Arizona (1966) 384 U.S. 436

[86 S.Ct. 1602, 16 L.Ed.2d 694]), and waiver, the minor admitted to getting into the truck earlier that afternoon with the other eight.

DISCUSSION

1. Sufficiency of the Evidence Regarding the Minors Involvement

The minor contends insufficient evidence exists to support the juvenile courts finding he participated in the attack. We disagree.

In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.] [Citations.] (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)

This standard applies to cases based on circumstantial evidence. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

Here, we agree with the court this is a very solid circumstantial evidence case. The minor actively participated in Varrio Chico. The youths who attacked the high school students yelled Varrio Chico before and during the attack. After the attack, all of the gang members left in a black truck with a shell and a broken side window; three were in the front and the rest were in the back. A police officer pulled over a black truck with a shell and a broken side window about 15 minutes after the attack in a location approximately 15 minutes away in distance. He found three males in the front and six in the back. The minor was one of the three males riding in the front cab of the truck and admitted to getting into the truck earlier that afternoon along with the other eight.

The minor argues the court ignored evidence none of the victims were able identify anyone in the truck as an assailant, three testified they were attacked by 10 to 15 people, and one testified two of the main assailants were not in the truck when it was pulled over. But witness credibility and resolution of factual conflicts are matters for the trier of fact. (In re Daniel G., supra, 120 Cal.App.4th at p. 830.) As part of its task, the trier of fact may believe and accept as true only part of a witnesss testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.] (Ibid.) In this case, the court could have reasonably determined the victims were too traumatized from the attack to correctly identify either their assailants or the number involved and instead relied on the neighbors testimony that eight or nine were involved. Because the neighbors testimony was not inherently incredible, it was sufficient.

For the same reason, we reject minors contention it took the truck 15-to-16 minutes to complete a 10 minute trip, leaving 5-to-6 minutes extra to stop and exchange passengers. A police officer testified that with absolutely no traffic, it would take approximately 10 minutes to travel from the location of the assault to where he stopped the truck and with traffic it would take about 13-to-15 minutes. Because the officers testimony was based on approximations only, it was not unreasonable for the court to conclude there was no five minute gap within which to stop and exchange passengers.

The minor also asserts there were significant discrepancies between the descriptions of the assailants given by the neighbor and the police officer who detained the truck. According to the minor, although the officer described the persons in the truck as Hispanics with shaved heads and white T-shirts, the neighbor only described the assailants as wearing wife-beater shirts and did not testify about hairstyle, shaved heads, or ethnicity. He reasons, the neighbors failure to mention [shaved heads] is evidence that it was not a feature of the group of assailants whom he observed. On the contrary, the court could have reasonably determined the neighbor did not mention shaved heads or other features because he was not asked the questions, the name Varrio Chico belonged to a Hispanic gang, and wife-beater shirts was not inconsistent with white T-shirts.

Finally, the minor claims his admission that he got into the truck did not rule out the possibility he may have entered the truck after the assault but before the detention. But a reversal of the judgment is not warranted merely because the circumstances could also be reasonably reconciled with a contrary finding. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.)

2. Sufficiency of the Evidence Regarding the True Findings of Aggravated Assault

The minor argues insufficient evidence exists to support the courts true findings of aggravated assault. We agree as to one of the victims, but disagree as to the others.

Penal Code section 245, subdivision (a)(1) (all statutory references are to this code unless otherwise indicated) prohibits an assault committed with force likely to cause great bodily injury. Great bodily injury is bodily injury which is significant or

substantial, not insignificant, trivial or moderate. [Citations.] (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) While the results of an assault are often highly probative of the amount of force used, they are not conclusive. The essential determination is whether the force was likely to produce great bodily injury rather than the actual injury incurred. [Citation.] (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) Because this is a factual question for the trier of fact, we must uphold its determination where supported by substantial evidence even where the circumstances might suggest a different finding. (People v. Escobar (1992) 3 Cal.4th 740, 750.)

Here, one of the victims, Jonathan was knocked to the ground and repeatedly kicked by three or four male gang members. A witness testified Jonathan was pretty hurt. Kicking the head and torso of a person lying on the ground is unmistakably an assault . . . a jury could reasonably find was likely to produce great bodily harm. (People v. Roberts (1981) 114 Cal.App.3d 960, 965.)

We reject the minors contentions there was no explanation of pretty hurt and no evidence of how the assailants were shod or where the kicks were directed. In People v.Roberts, the victim, after being knocked to the ground and kicked, suffered lapses of consciousness, cuts, bruises and a welt on his forehead. Although the injuries in that case supported a finding of great bodily injury, the court held this determination need not be made because the dispositive issue was whether the force used was likely to produce such injury and the force employed by the defendant could certainly have caused great bodily injury had his feet happened to strike the victim in the eye rather than a few inches away on the forehead. (People v. Roberts, supra, 114 Cal.App.3d at p. 965.) The same applies here. The force of three or four males kicking a victim lying on the ground could be found by a reasonable trier of fact to have the potential to produce severe consequences, regardless of where the kicks were actually directed or the type of shoes worn.

The other three victims, Julio, Juan, and Mario, were assaulted with fists. It is well established that the use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Wingo (1975) 14 Cal.3d 169, 176.) Indeed, a single blow with a fist is sufficient to support a conviction for assault by means likely to produce great bodily injury. (In re Nirran W., supra, 207 Cal.App.3d at pp. 1160-1161.)

The minor does not contest the determination that Julio was assaulted with force likely to produce great bodily injury. We thus turn our focus to Juan and Mario.

Juan was hit so many times by two or three gang members that he could not count the blows. The first blow to his head knocked him to the ground. He got up and defended himself by blocking blows to his head. In Nirran W., the assailant punched the victim once in the face using enough force to knock the victim to the ground. The court held this type of blow was sufficient for a trier of fact to find a violation of section 245, subdivision (a)(1). (In re Nirran W., supra, 207 Cal.App.3d at pp. 1161-1162.) That Juan was able to get up and start defending himself does not, as the minor contends, diminish the force of the blow to his head that knocked him down or the additional blows directed toward his head.

Mario was hit once in the back of the head. He turned around and started defending himself. Nothing else happened to him and the person who hit him ran off. The court justified the true finding of assault with force likely to produce great bodily injury because it believed Mario was hit multiple times and that prize fighters and football players have had concussions and permanent injuries . . . from a hit to the head.

We agree with the minor the evidence was insufficient to sustain the courts finding as to Mario. Mario testified he was hit only once. He did not suggest the blow knocked him down or caused injury and he never described how hard he was struck. Absent any evidence from which the court could infer the force used was likely to inflict great bodily injury, the courts finding cannot be sustained.

The minor concedes the evidence was sufficient to support a finding of ordinary misdemeanor battery. Battery is not a lesser offense necessarily included in the crime of assault in violation of section 245. (People v. Yeats (1977) 66 Cal.App.3d 874, 878.) But simple assault is a lesser included offense. (Ibid.) Thus, rather than reverse the order on count 1 finding the minor had committed an assault by means of force likely to produce great bodily injury on Mario, we modify the order to reflect the minor committed the necessarily included offense of misdemeanor assault in violation of section 240. ( 1260; see also People v. Beasley (2003) 105 Cal.App.4th 1078, 1088 [modifying judgment to reflect the defendant convicted of lesser included offense of misdemeanor simple assault after finding conviction for assault with a deadly weapon not supported by substantial evidence].)

3. Maximum Term of Confinement

The minor contends the case must be remanded because the court failed to state the maximum term of confinement as required by Welfare and Institutions Code section 726, subdivision (c) and former rule 1495(b) (now rule 5.795(b)) of the California Rules of Court (all rule references are to these rules). We agree.

Under Welfare and Institutions Code section 726, subdivision (c), [i]f the minor is removed from the physical custody of his . . . parent . . . as the result of an order of wardship . . ., the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. Former rule 1494(b) similarly

provided that [i]f the youth is declared a ward . . . and ordered removed from the physical custody of a parent . . ., the juvenile court must specify, and note in the minutes the maximum period of confinement under section [Welfare and Institutions Code] section 726.

Here, after making true findings on all charges and enhancements on the counts alleged (DL021730-002) and finding them to be felonies, the court took the minors admissions in three subsequent petitions. It found the maximum term of confinement for these misdemeanors to be one year and four months. The court then granted probation on all petitions with the condition the minor spend 210 days at an appropriate local juvenile facility, with 44 days credit, and then release[d] to mother. By requiring the minor to spend time at a juvenile facility, the court effectively removed the minor from his mothers physical custody. As a result, it was required to specify and note in the minutes the maximum period of confinement for petition DL021739-002. (In re James A. (1980) 101 Cal.App.3d 332, 339.) It did not. A remand is thus necessary.

Citing In re Ali A. (2006) 139 Cal.App.4th 569, the Attorney General argues the requirements of Welfare and Institutions Code section 726 do not apply because the minor was granted probation. Unlike here, however, in that case, the minor was not removed from her parents custody. The case is has no effect on our determination.

DISPOSITION

The order as to count 1 is modified to reflect that the minor committed misdemeanor assault in violation of Penal Code section 240. The case is remanded for the limited purpose of having the juvenile court specify and note in the minutes the

maximum period of confinement for petition DL021739-002, taking into account our conclusion that count 1 is only a misdemeanor. In all other respects, the order is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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