In re J.N.

Filed 4/4/06 In re J.N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lawrence Kapiloff (retired Judge of the San Diego Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.), and Desiree Bruce-Lyle, Judges. Affirmed.

I.

INTRODUCTION

After a court trial, the trial court found J.N. guilty of attempted murder (Pen. Code,^[1] §§ 187, 664). The court also found that J.N. committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court committed J.N. to the California Youth Authority (CYA), with a maximum term of confinement of eight years.

On appeal, J.N. claims there is insufficient evidence of his intent to kill to support the court's finding that he committed attempted murder, a specific intent crime. In addition, J.N. claims the trial court abused its discretion in committing him to the CYA because there is no substantial evidence that he will benefit from such a commitment.

We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The attack

On December 16, 2004, at approximately 2:30 p.m., the victim, Phuc Vo, was driving on El Cajon Boulevard in San Diego with his girlfriend, Kim Tran, and another friend. J.N. attended the same high school as Vo. While Vo was stopped at a stop sign, J.N. approached the driver's side of the car and said, "OBS, cuz."^[2] Vo asked J.N., "What are you looking at?" J.N. then challenged Vo to a fight. Vo got out of the car. After fighting briefly with Vo, J.N. ran off. Vo got back into his car and left.

Approximately 20 to 25 minutes later, after dropping off his friend, Vo and Tran drove to Vo's house. As soon as Vo parked his car, he saw J.N. and another male. J.N. and his companion were wearing black gloves and carrying knives. J.N.'s knife was approximately five inches in length. Vo ran across the street to a parking lot, and J.N. and the other male chased him. They caught Vo and began to punch and stab him. As they attacked Vo, J.N. and his companion yelled, "OBS, cuz. OBS, cuz."

Tran ran to the scene of the attack. She told J.N. to stop attacking Vo. J.N. and the other male left the scene. Tran telephoned the police on her cellular phone. Vo was bleeding heavily.

Paramedics took Vo to the hospital. He suffered five or six stab wounds, including to his ribcage, left arm, middle of his back, and below his lip. The wounds were deep. Vo was hospitalized for two days.

B. The defense

J.N.'s mother, V.N., testified that she had picked him up from school at 1:30 p.m. on the day of the incident, and that he had been at home all afternoon. J.N.'s brother's girlfriend, Martha Thy, also testified that J.N. was at home at the time of the attack. J.N. testified that he was at home at the time of the incident. He denied fighting with or stabbing anyone.

C. Procedural history

In January 2005, the People filed a petition in which they alleged that J.N. had committed attempted murder (§§ 187, 664). The People also alleged that J.N. committed the attempted murder for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist the gang's criminal conduct (§ 186.22, subd. (b)(1)).

In March 2005, after a court trial, the court found both allegations true. The court committed J.N. to the CYA, with a maximum term of commitment of eight years. J.N. timely appeals.

III.

DISCUSSION

A. There is sufficient evidence of J.N's intent to kill to support the court's finding

that J.N. committed attempted murder

J.N. claims there is insufficient evidence of his intent to kill to support the court's finding that he committed attempted murder.

The law regarding appellate review of claims challenging the sufficiency of the evidence in the juvenile context is the same as that governing review of sufficiency claims generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The crime of attempted murder includes the element of a specific intent to kill. (People v. Visciotti (1992) 2 Cal.4th 1, 56.) "One who intentionally attempts to kill another does not often declare his state of mind . . . . Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer's actions and words. Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)

In this case, J.N. attempted to instigate a gang fight with Vo. After fleeing from the initial fight, J.N., along with a companion, confronted Vo at his home. They brought knives and were wearing gloves. J.N. and his companion repeatedly punched and stabbed Vo. Vo suffered five or six stab wounds all over his body, including in his ribcage below his heart, in his face, and near his spinal cord. Vo was bleeding heavily after the attack and was taken by paramedics to the hospital. He spent two days in the hospital.

We reject J.N's argument that there was insufficient evidence of his intent to kill because the wounds inflicted on Vo were purportedly "wild and unaimed" (People v. Paton (1967) 255 Cal.App.2d 347, 352). Vo suffered stab wounds in his chest and in his face, both of which are vulnerable areas of the body. We also reject J.N.'s argument that the level of violence involved in the attack was inconsistent with an intent to kill. J.N's attack on Vo was vicious and fully consistent with an intent to kill. "While a less violent attack might have been consistent with the claim of an intent to stab but not to kill, this was not such an attack." (People v. Moore (2002) 96 Cal.App.4th 1105, 1114.)

We also reject J.N's contention that People v. Montes (2003) 112 Cal.App.4th 1543 (Montes) supports his claim that there was insufficient evidence of an intent to kill. To begin with, contrary to J.N.'s assertion in his brief, Montes is not "an example of a case where the reviewing court found insufficient evidence to support a finding of intent to kill." Montes involved a jury instruction claim, not a sufficiency claim.

In Montes, after concluding that the trial court failed to properly instruct the jury that the crime of attempted voluntary manslaughter requires proof of intent to kill, the Montes court concluded that the error was prejudicial. (Montes, supra, 112 Cal.App. 4th at pp. 1547, 1552.) The court noted that although defendant had stabbed the victim three times after he had fallen to the ground, the jury acquitted him of attempted murder and the People did not argue that the error was harmless. (Id. at p. 1552.) The Montes court found that under these circumstances there was a reasonable probability that the jurors considered defendant to have acted with a conscious disregard for life with the intent to frighten or injure, but not with an intent to kill. (Ibid.)

The Montes court thus did not suggest that there was insufficient evidence of the defendant's intent to kill, but only that there was a reasonable probability that the jury might have found that the defendant did not have the intent to kill. Therefore, Montes does not support J.N.'s argument that there was not sufficient evidence from which a fact finder could find that he acted with the intent to kill in this case.

A rational fact finder could find that J.N.'s actions in going to Vo's home with a companion armed with knives after a gang fight, chasing Vo, and repeatedly stabbing Vo all over his body, evinced an intent to kill Vo. Accordingly, we conclude that there was sufficient evidence to support the court's finding that J.N. committed the offense of attempted murder.

B. The trial court did not abuse its discretion in committing J.N. to the CYA

J.N. claims the trial court abused its discretion in committing him to the CYA.

In In re Angela M. (2003)111 Cal.App.4th 1392, 1396, the court outlined the law applicable to appellate review of a trial court's commitment of a juvenile to the CYA:

"The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A CYA commitment may be considered, however, without previous resort to less restrictive placements. [Citations.]"

In this case, the trial court found that J.N. had committed a serious violent felony. J.N. planned the attack. He brought a companion with him. He and his companion armed themselves with knives and wore gloves. J.N. reported to a probation officer that he was a documented gang member. The trial court found the charged crime was committed for the benefit of the gang. While J.N. was in custody awaiting disposition, he was involved in a gang-related fight with another detainee.

At the time of the disposition, J.N. was 16 years old and had suffered two prior true findings on battery offenses. J.N. had attended an assaultive behavior class, anger management class, and a class designed to promote tolerance, prior to the events in this case. The circumstances of the offense and J.N.'s prior record support the trial court's commitment of J.N. to the CYA.

We reject J.N.'s contention that there was no evidence in the record that he was likely to benefit from a commitment to the CYA. The probation officer's report states that J.N. will be able to complete his high school education and participate in various therapeutic programs at the CYA. The trial court stated that J.N. was in need of the structure, heightened discipline, counseling, and educational services of the CYA. The court expressly found that it was probable that J.N. would benefit from commitment to the CYA.

We conclude that the trial court did not abuse its discretion in committing J.N. to the CYA.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Apartment Manager Attorneys.

^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] "OBS" is an acronym for Oriental Boy Soldiers, a criminal street gang. "Cuz" is a term of confrontation used by the gang.