Filed 9/10/18 In re F.F. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

F.F. appeals from an order declaring her a ward of the juvenile court and placing her in out-of-home placement after the court sustained a petition (Welf. & Inst. Code, § 602) that alleged she committed misdemeanor battery on a bus passenger (Pen. Code, § 243.3).[1] On appeal, she challenges the sufficiency of the evidence to support the court’s findings. We affirm.

Background

Late in an evening in March 2017, F.F. and a “group of kids, like pre-teens,” were at a bus stop, along with other waiting passengers. The juveniles were throwing bottles at passing motorists, and once aboard the bus, some of them, but apparently not F.F., continued throwing objects. They appeared to be targeting one woman in particular, and one of them stated, several times, “they’re going to beat her ass.” The woman was then struck by a thrown bottle, and she “sat there and looked very shocked.” When a second bottle was thrown at her, she “yelled for help” and asked the bus driver to pull over. One of the juveniles then “stood up and threatened” the woman, walked towards her, and “grabbed a bottle and knocked” her on the head. Some of the juveniles then tried to steal the woman’s cell phone. While attempting to take her phone, the group threatened her life and called her “many, many horrible things.” Finally, one of the juveniles opened a bottle and poured the contents over her. Scared, the woman attempted to make her way to the front of the bus.

Another woman on the bus, Mercedes L., saw the misbehavior, and at some point, was also hit with liquid from a thrown drink bottle. Mercedes got up and walked towards the rear of the bus, passing F.F. who was then seated. Mercedes confronted the boy who had thrown the drink, asking him, “ ‘Like what the fuck for and why.’ ” When he did not respond, she hit him a “couple of times.”

At that point, “they all” began hitting Mercedes, including F.F.; it became “sort of like a dog pile.” F.F., stating something like “not my brother,” hit her on the shoulder, and was the first person Mercedes saw on turning around. F.F. was then “swept around to the side,” out of the fray.[2] The boy who had tossed the drink, and whom she had hit, “kicked [her] in the face.” Another girl pulled her hair.

Finally, an older gentleman on the bus stepped into the melee and stopped the fight. Mercedes suffered a swollen face and bruised nose but did not seek medical treatment that night. She did go to the hospital the following Sunday, and had to wear a neck brace for about a month.

Several months later, F.F. was arrested in connection with the incident on the bus and for violating court orders related to other crimes she had committed. The district attorney filed a wardship petition alleging F.F. had committed felony commercial burglary in connection with a different incident (§ 459; count 1), and battery on transit passengers (§ 243.3; counts 2–3) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 4) in connection with the bus incident.

At the contested jurisdictional hearing, the trial court bifurcated count 1 from the remaining counts. The court then heard testimony regarding the counts arising out of the bus brawl.

Probation Officer Barbara Ross testified that, pursuant to department policy, F.F. had been given a Gladys R.[3] questionnaire to determine if she knew “right from wrong,” and then a Miranda[4] warning. F.F. indicated she did know right from wrong, and when asked to give an example, stated “ ‘Murder is to do something wrong,’ ” and “ ‘To go to school is to do something right.’ ” She stated that at home she did not face consequences for doing something wrong; however, at school, she would get suspended. The probation officer asked her, “ ‘Has your mother or father told you that it is wrong to steal, assault, rob, commit burglary, commit attempted robbery, possess stolen property, use or sell drugs or alcohol,’ ” and she responded that her parents had done so. The officer did not ask F.F. if she understood what the terms (e.g., steal, assault, burglary) meant. When asked why it would be wrong to steal or assault someone, F.F. responded, “Because you wouldn’t want . . . it done to yourself.”

The following day, the court, in addressing a defense objection as to F.F.’s capacity to know right from wrong, stated that given the “number of contacts with this bright young person,” there was not a “question in my mind that she satisfie[d] Penal Code [section] 26.” The prosecution then asked the court to take judicial notice of two prior sustained petitions involving F.F., an “admitted 459” and “a 484(a) misdemeanor.” Over the defendant’s objection, the court took judicial notice of the commercial burglary (§ 459) finding, since it had taken “the plea on that petition.”

At the close of evidence, the court found F.F. had capacity under section 26, stating it was “satisfied based on the testimony in the trial, and my experience in the case, and my viewing [of] that video many times, where it did appear to me, [F.F.], that you were thinking about whether you really ought to be here or not, and you were going back and forth in your mind, as you were going back and forth in that bus, and you knew this was a situation that you should not be in.” The court also found F.F. committed misdemeanor battery as to Mercedes, a lessor included offense of count 2, and then found the remaining allegations relating to the first victim not true. The court declared F.F. a ward of the court pursuant to Welfare and Institutions Code section 602, with out-of-home placement.

Discussion

Capacity

There is a presumption that a minor under the age of 14 is incapable of committing a crime. (§ 26;[5] see Gladys R., supra, 1 Cal.3d 855.) To overcome this presumption, the prosecution must prove by “clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed.” (In re Manuel L. (1994) 7 Cal.4th 229, 232.) We review a finding as to a minor’s capacity to commit a crime for sufficiency of the evidence. If, when reviewing the entire record in the light most favorable to the finding, there is evidence to support a juvenile court’s determination of capacity, we must affirm. (In re Joseph H. (2015) 237 Cal.App.4th 517, 538 (Joseph H.).) The testimony of “just one witness” is enough to sustain a court’s determination. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)

While F.F. acknowledges she “undoubtedly knows that it is generally wrong to hit people,” she claims the prosecution failed to present clear and convincing evidence, in light of all the circumstances, that she understood the wrongfulness of her conduct in the context of defending another. She cites In re Michael B. (1983) 149 Cal.App.3d 1073 (Michael B.) as instructive.

In Michael B., the Court of Appeal, in reversing the judgment, held the nine-year-old appellant had not understood the wrongfulness of his conduct. (Michael B., supra, 149 Cal.App.3d at pp. 1077, 1087–1088.) The appellant had shot and killed a 14-year-old boy with whom he had been playing. (Id. at p. 1077.) Afraid his parents would return home and see he had a guest over, the appellant tried to make the older child leave by pointing a gun at him and scaring him. (Id. at pp. 1078, 1089.) Appellant pulled the trigger when the other boy was only 18 to 24 inches away. (Id. at p. 1078.) While the appellant’s father had told him to stay away from the rifle and not to point a gun at anyone, appellant had never been taught how to use or handle the gun or about the gun’s safety mechanism. (Id. at p. 1078.) Observing that the appellant “was not charged merely with pointing a gun at the victim or brandishing a weapon,” but rather “committing involuntary manslaughter—the killing of a human being with criminal negligence,” the court held that “before a child may act without a proper disregard for human life in the context of an unlawful homicide, he must fully appreciate the consequences of taking a life”—a child “must appreciate the permanence of death,” and there was insufficient evidence the appellant had such appreciation. (Id. at p. 1088.)

The circumstances of the instant case do not begin to compare with those in Michael B. There is no evidence F.F. suffers from any cognitive deficits, and given her juvenile record, the evidence presented here, and the fact she was then 13 years old, there is no basis for her assertion that she did not appreciate the wrongfulness of joining a mob assaulting a passenger on a public bus.

Nor is there any merit to F.F.’s assertion that, even if she could appreciate generally the wrongfulness of an assault of transit passengers, she thought the assault of Mercedes was not wrongful because she (F.F.) thought she was acting in “defense of another.” F.F. made this claim in the juvenile court, and the court rejected it.

In determining capacity, a juvenile court must consider the child’s age, experience, understanding, and may also infer understanding of the act’s wrongfulness from the circumstances of the crime, such as the method of commission or its concealment. (Joseph H., supra, 237 Cal.App.4th at p. 539.) Here, F.F. was 13 years old at the time of the offense. Generally, the closer a child is to age 14, the more likely it is that she appreciates the wrongfulness of her conduct. (In re James B. (2003) 109 Cal.App.4th 862, 872–873.) The juvenile court was also very familiar with F.F., stating, “to be perfectly candid with you, in this case, one of the challenges is that I’ve had a number of contacts with this bright young person, and there really isn’t a question in my mind that she satisfies Penal Code 26.” Additionally, the court had F.F.’s answers from the Gladys R. questionnaire, including that her parents had told her it was wrong to hit people. Perhaps most significantly, the court watched the video of the incident “many times” and could reasonably infer from F.F.’s behavior (for example, her walking back and forth as if debating whether to enter the fray) that she appreciated the wrongfulness of her conduct.

In sum, given the totality of the record before the juvenile court, there is ample evidence to support the court’s determination of capacity under section 26.

Misdemeanor Battery

F.F. further contends that even if she had capacity under section 26 to commit a battery in this case, she only used reasonable force in defense of the boy who actually threw the drink bottle and who was, in turn, hit by Mercedes.

We review a juvenile court’s finding that a minor used unlawful force for sufficiency of the evidence, affirming if, in the light most favorable to the judgment, there is “ ‘substantial evidence’ ” supporting that conclusion. (In re Joseph F. (2000) 85 Cal.App.4th 975, 981.)

In the juvenile court, defense counsel maintained that, even assuming F.F. in fact hit Mercedes on the shoulder, it was merely a “touch” and was “much less than the force [F.F.] would have been entitled to apply,” given that Mercedes had “beaten” the juvenile who threw the bottle. As for the supposed “kick” that occurred later, counsel maintained there was no evidence F.F. actually made contact with Mercedes. Defense counsel also maintained Mercedes was certainly not a “victim,” and that she, rather than F.F., had engaged in “blatant” battery. F.F., by contrast, was just “hanging around with these other lunkheads that are doing all this stupid stuff, outrageous stuff,” and that was not a crime. The prosecutor had a different view and asserted F.F. aided and abetted the assaults on the two women by encouraging the boy to toss the bottles and douse the victims, and then went to the back of the bus “to help her known associates batter a woman.” There was no need for her to get involved, as the juveniles outnumbered Mercedes. In addition, there were other adults, as well as the bus driver, who could have come to the aid of the boy had he really needed it.

The court rejected defense counsel’s effort to portray Mercedes as the assailant and F.F. as the well-intentioned rescuer of her misbehaving friend. “[F]irst of all,” said the court, as to the two women, “let me just set aside any question about how they fit into this. . . . They are the victims. I think most people in this society who saw that video would be appalled by the treatment that they endured. . . . [I]t’s not acceptable that they were subjected to what they were subjected to.”

The court nevertheless also rejected the prosecutor’s assertion that F.F. should be held accountable, as an aider and abettor, for all of Mercedes’ injuries, including her serious injuries. In the court’s view, while F.F. committed a battery by touching Mercedes, F.F. then pulled back and was not part of the “dog pile” that followed. Rather, F.F. stood by and watched “some kids being really mean. . . . They were just making people feel weak or scared or uncomfortable. And they weren’t rich people, powerful people. This wasn’t some kind of protest. They were just regular folks trying to go home from work, on public transportation. And it was pretty disgusting. It was pretty disgusting. I watched it many times, and it was sad.” But, as the court observed, doing nothing was not a crime. Accordingly, the court found F.F. guilty only of misdemeanor battery based on the initial touching, rather than felony battery based on the serious physical attack by the other juveniles that ensued and caused Mercedes’ injuries.

Substantial evidence supports the trial court’s conclusion that the juveniles, including F.F., did not attack Mercedes in order to “defend” the boy who lobbed the bottles that started the brawl. Indeed, there is ample evidence F.F. got up and walked to the end of bus to inject herself into the fray, and that the other juveniles picked up where she left off, in order to retaliate and aggrandize themselves, and to further harass and scare the other passengers.[6]

Disposition

The juvenile court orders are affirmed.

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Dondero, J.

A153596, In re F.F.