In re K.S.
Filed 10/2/06 In re K.S. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re K. S., a Person Coming Under The Juvenile Court Law. |
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THE PEOPLE, Plaintiff and Respondent, v. K. S., Defendant and Appellant. |
F049607
(Super. Ct. No. JJD057986)
O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
The juvenile court found 15-year-old K.S. (Appellant) committed several criminal offenses and placed him on an electronic monitoring program. Appellant contends the juvenile court’s finding he committed an assault with a deadly weapon is unsupported by substantial evidence and must be reversed. (Pen. Code,[1] § 245, subd. (a)(1).) We disagree and will affirm the disposition.
BACKGROUND
A group of approximately 12 teenagers arrived at Appellant’s home around midnight on August 8, 2005. Most of the group members were angry with Appellant’s sister, M.S. and went to confront her. Three or four of the youths were male and the rest were female.
Appellant and his 13-year-old brother, Y.S., ran toward the group approaching their home. The brothers asked one of the girls why they were there and told them to leave their sister alone. The brothers both said, “ ‘We don’t care if you’re girls, we’ll hit you.’ “ Appellant and Y.S. then ran back into the house. Appellant’s brother came out with a BB gun, which he pulled out and waved around, while Appellant came out swinging a Samurai sword, repeatedly threatening that he would slash their throats. The group members became scared and ran to their cars.
Appellant was aggressive and noncompliant when the Visalia police arrived. Appellant admitted he retrieved the sword because several group members were talking about guns. He explained that when he saw his brother surrounded, he began swinging and warned that he would “cut your guys’ throats if you get close to me.” Appellant claimed he swung the sword only to frighten the others away and denied that he removed the sword from its sheath.
Following a consolidated jurisdictional hearing involving both brothers, the juvenile court determined Appellant committed an assault with a deadly weapon (§ 245, subd. (a)(1); count 1), made criminal threats (§ 422; count 2), possessed a deadly weapon (§ 12020, subd. (a)(1); count 3), and resisted, obstructed, or delayed a police officer (§ 148, subd. (a)(1); count 4). Appellant also admitted committing a battery at school (§ 243.2, subd. (a); count 5) regarding an unrelated June 1, 2005, physical altercation. The juvenile court declared counts 1 through 3 felonies and counts 4 and 5 misdemeanors. Aggregating a prior April 14, 2004, petition in which Appellant admitted receiving stolen property (§ 496, subd. (a)), the juvenile court imposed a maximum period of confinement of six years eight months. The juvenile court placed Appellant under the supervision of the probation officer while residing with his parents on an electronic monitoring program for 60 to 90 days and ordered he complete 80 hours of community service.
DISCUSSION
Appellant contends the juvenile court’s finding he committed an assault with a sword is not supported by substantial evidence. In reviewing the sufficiency of the evidence, “the 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; In re Robert V. (1982) 132 Cal.App.3d 815, 821.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813; see Evid. Code, § 600, subd. (b).) “Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ “ (People v. Catlin (2001) 26 Cal.4th 81, 139.) Accordingly, this court will reverse a judgment only if based on evidence so insubstantial that it could not support the conviction upon any hypotheses whatsoever. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 245, subdivision (a)(1) provides in pertinent part: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by means of force likely to produce great bodily injury shall be punished.” An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) As a general intent crime, the prosecution must prove “the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (People v. Colantuono (1994) 7 Cal.4th 206, 214.)
Appellant claims insufficient evidence demonstrates his actions would have probably and directly resulted in injury to the individuals named in the amended juvenile wardship petition, D.R., M.B., and A.D.[2] Appellant does not dispute that the Samurai sword he swung at the group approaching his home is a deadly weapon.[3]
At the adjudicatory hearing, Appellant admitted he told a youth with the initials D.R. that “if anybody touches my sister I will slit your throat.” D.R. testified that Appellant swung the sword around and that his actions made her fearful. Although Appellant denied that he had removed the sword’s sheath, he admitted swinging it over his head to frighten the group away. Another youth, M.B., testified that Appellant said specifically to her, while carrying the sword, “I’ll fucking slice your throat.” Another youth not named in the petition, J.S., heard Appellant say, “I’ll slash your throat and everything.” As described by the juvenile court, J.S. demonstrated Appellant was swinging the sword in “the front of her body, it appears, in the direction of her waistband.” From the testimony of Appellant, D.R., M.B., and J.S., the juvenile court could reasonably infer Appellant posed the general intent and present ability to commit an assault with a deadly weapon.
Appellant complains the juvenile court did not hear any evidence that an individual with the initials A.D. was near him while he swung the sword. However, even absent evidence of an assault against A.D., substantial evidence supports the juvenile court’s finding. “Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts.” (In re Bushman (1970) 1 Cal.3d 767, 775, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) Here, the petition adequately notified Appellant of the allegation that he committed an assault with a deadly weapon under section 245, subdivision (a)(1). The testimony regarding either D.R. or M.B. alone would have been sufficient to sustain the allegation.
DISPOSITION
The judgment is affirmed.
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* Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.
[1] Further statutory references are to the Penal Code, unless otherwise stated.
[2] The juvenile wardship petition alleged Appellant committed “an assault upon D.R., M.B., A.D. with a deadly weapon ”
[3] “As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)