In re L.M.

Filed 10/30/07 In re L.M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Judge.

Patricia Lea Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.

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The court adjudged appellant, L. M., a ward of the court after it found true allegations charging her with battery on a school employee (count 1/Pen. Code, 243.6),^[1]disturbing the peace at a school (count 2/ 415.5 subd. (a)(2)), and resisting ^[2]arrest (count 3/ 148, subd. (a)(1)). On June 1, 2007, the court placed L. M. on probation for a period not to exceed three years. On appeal, L. M. contends: 1) the evidence is insufficient to sustain the courts true finding on the disturbing the peace at a school offense; and 2) she was denied the effective assistance of counsel. We will find merit to L. M.s first contention and reverse the courts findings on count 2. In all other respects we will affirm.

FACTS

At L. M.s adjudication hearing, Kressa Coy testified she worked as a secretary/clerk at Mojave High School. On October 30, 2006, she was in the front office when L. M. and Katherine P. were brought in for fighting. L. M. was screaming and was left in front of the counter in the office. Katherine was brought behind the counter so Coy could examine her. As Coy bent over Katherine, L. M. shoved Coy from behind almost knocking her down.

Kern County Sheriff Deputy Gregory Rutter testified he was the resource officer at the high school. Rutter was interviewing another student in his office when he heard screaming. He went to the front office and saw a student, later identified as L. M., behind the counter cursing and shoving Coy. Deputy Rutter grabbed L. M. by the arms and escorted her back to the area in front of the counter. L. M. told him to get his hands off of her and continued to yell profanities. Rutter placed his hands on her shoulders and pushed her onto a chair. Eventually, he took her to the vice principals office.

DISCUSSION

Section 415.5, subdivision (a) provides:

Any person who (1) unlawfully fights within any building or upon the grounds of any school, community college, university, or state university or challenges another person within any building or upon the grounds to fight, or (2) maliciously and willfully disturbs another person within any of these buildings or upon the grounds by loud and unreasonable noise, or (3) uses offensive words within any of these buildings or upon the grounds which are inherently likely to provoke an immediate violent reaction is guilty of a misdemeanor punishable by a fine not exceeding four hundred dollars ($400) or by imprisonment in the county jail for a period of not more than 90 days, or both. (Italics added.)

Subdivision (f) of this section provides, in pertinent part,

This section shall not apply to any person who is a registered student of the school .

L. M. contends the courts true finding on count 2 (disturbing the peace at a school offense) violated her federal constitutional right to due process because the prosecutor failed to prove an element of the offense, i.e., that she was not a registered student at the school. Respondent contends that being a registered student is an affirmative defense to the charge in count 2, which required L. M. to raise a reasonable doubt whether she was registered at the school. We need not determine whether nonregistration is an element of a violation of section 415.5, subdivision (a) or registration an affirmative defense because the evidence established L. M. was a registered student at Mojave High School.

The role of an appellate court in reviewing the sufficiency of the evidence is limited. 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. [Citations.] (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

It is well established that where a statute first defines an offense inunconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant. [Citations.] [T]he question is whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the definition, or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. It is the nature of the exception and not its location which determines the question.... Thus, where exceptions or provisos are not descriptive of the offense, or define it, but rather afford a matter of excuse, they are to be relied on in [the] defense. [Citations.] (People v. Spry (1997) 58 Cal.App.4th 1345, 1364.) When a defendant raises an affirmative defense he is required only to raise a reasonable doubt as to the facts underlying the defense. (People v. Mower (2002) 28 Cal.4th 457, 464.)

Registered and enrolled are synonymous terms. (Prudential Ins. Co. of America, Inc. v. Superior Court (2002) 98 Cal.App.4th 585, 600.) Education Code section 48200, provides that every person between the ages of 6 and 18 years not exempted is subject to compulsory full-time education and unless otherwise provided by the Education Code shall not be enrolled for less than the minimum schoolday established by law.

Deputy Rutter testified L. M. was a student at Mojave High School. The courts jurisdiction over L. M. establishes she was under the age of 18^[3]when the underlying incident occurred. (Welf. & Inst. Code, 602, subd. (a).) The only reasonable inference from these circumstances and the compulsory education provisions of Education Code section 48200 is that L. M. was a registered student at the school when she committed the disturbing the peace at a school offense. Thus, we conclude that because section 415.5, subdivision (a) did not apply to L.M., the court erred in finding she violated this section.

DISPOSITION

The courts true finding on the disturbing the peace at a school offense (count 2) is reversed. As modified, the judgment is affirmed.

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^*Before Levy, Acting P.J., Gomes, J., Kane, J.

^[1] All further statutory references are to the Penal Code, unless noted otherwise.

^[2] In view of this, we will not address L. M.s ineffective assistance of counsel claim.

^[3] The petition indicates L. M. was 15 years old when the underlying incident occurred.