In re Julio R.
Filed 10/5/06 In re Julio R. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 TWO
| In re JULIO R., a Person Coming Under the Juvenile Court Law. | |
| THE PEOPLE, Plaintiff and Respondent, v. JULIO R., Defendant and Appellant. | E039954 (Super.Ct.No. J204979) OPINION |
APPEAL from the Superior Court of San Bernardino County. Douglas N. Gericke, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On November 9, 2005, Julio L. (father or victim), called the police because his son, 15-year-old Julio. R. (appellant), refused to turn the radio down.[1] San Bernardino Police Officer Heidi Pahls (Pahls) responded to the call. After Pahls handcuffed appellant and had him sit on his bed, appellant glared at his father and began kicking him as he carried the radio out of the room. Father did not react to the kicking, but continued to carry the radio away.
At a jurisdiction hearing on December 28, 2005, the juvenile court received and considered the probation report and heard testimony from Pahls and from appellant’s mother. Father did not testify. After hearing argument from both sides, the court reasoned aloud as follows: “Well, let’s look at the evidence . . . we have to go by what’s before the court.
We have [a] young [man] . . . angry and glaring . . . handcuffed on the bed and we have . . . the victim in here, who walks in and picks up some property . . . at which time [appellant begins] kicking him in the presence of a police officer.
I think that we have very, very strong circumstantial evidence that this is an unconsented touching, and I think that the evidence is strong enough to sustain the allegations . . . .”
The court then found appellant had committed misdemeanor battery in violation of Penal Code section 242, as charged in a Welfare and Institutions Code section 602 Petition filed November 18, 2005.
On January 26, 2006, appellant was declared a ward of the court and placed on probation in the custody of his parents.
On appeal, appellant contends that there is insufficient evidence to support the trial court’s finding that he committed battery. We disagree and will affirm.
DISCUSSION
A. Standard of Review
The principles which govern appellate review of a criminal conviction challenged on evidentiary grounds are well settled: “[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, 562, 578, citing Jackson v. Virginia (1979) 443 U.S. 307; People v. Rowland (1992) 4 Cal.4th 238, 269.) We do not re-weigh or resolve conflicts in the evidence: “‘”[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]”’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 361.)
B. Battery
Penal Code section 242 defines battery as “any willful and unlawful use of force upon the person of another.” The least touching, the least force against the person, may constitute battery. It need not be violent or severe; it need not leave a mark; it need not cause bodily harm or pain. (People v. Longoria (1995) 34 Cal.App.4th 12, 16.)
C. Analysis
Appellant argues that absent the victim’s own testimony, there was insufficient evidence that his kicks actually made contact with his father’s leg or that he intended to kick him. Not so. Pahls testified to the kicking. And the court found her testimony credible, as was its exclusive province, and relied upon that testimony in determining that appellant did indeed kick his father. Kicking is a kind of forceful touching. In addition, in view of the fact that father was himself the person who called the police about his son’s refusal to turn the radio down, it was reasonable for the court to conclude that he did not consent to being kicked as he carried the radio away. The fact that he apparently ignored the kicks is irrelevant.
There was sufficient evidence that appellant committed battery in violation of Penal Code section 242.
DISPOSITION
The judgment is affirmed.
/s/ MILLER
J.
We concur:
/s/ RAMIREZ
P. J.
/s/ RICHLI
J.
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[1] The facts are taken from the probation report and from testimony at the disposition hearing. Defense counsel for appellant’s brother successfully objected to the prosecutor’s attempt to introduce testimony about the relationship between appellant and the victim, but appellant told the probation officer the father was, in fact, his father and we will assume that this is the case. In addition, at the disposition hearing appellant’s counsel repeatedly referred to appellant and his brother as the victim’s “boys” and to the victim as appellant’s “father.”
