In re Nicholas B.

Filed 3/12/07 In re Nicholas B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Juvenile Court Referee.

Verna Wefald for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Nicholas B., challenges his conviction for felony assault with great bodily injury. He contends: (1) There was not substantial evidence of great bodily injury; (2) the juvenile court abused its discretion by finding the offense to be a felony rather than a misdemeanor; and (3) should he reoffend, the Sixth Amendment prevents the use of his felony juvenile adjudication as a strike under the three strikes law (Pen. Code,  667).^[1] We affirm.

FACTS

Sixteen-year-old appellant loaned his paintball gun to his friend, Jacob, who did not return it promptly. On Saturday, January 7, 2006, appellant confronted Jacob about the paintball gun by yelling at him from his truck window. According to mutual friend, S.L., Jacob appeared scared. Jacob showed her a three-inch pocket knife and said he would stab appellant if he got out of his vehicle. S.L. later told appellant about Jacobs remark. Jacob and his friend, Justin, denied Jacob said this.

There were rumors at North High School the following Monday that Jacob threatened to stab appellant. Jacob went to the deans office to speak with Dean Weir about the issue. Dean Weir called the boys out of class. Appellant told Weir everything was cool and he did not want any problems. Weir had campus Police Officer Sotelo speak with the boys next. Appellant told Officer Sotelo the problem was solved.

Justin observed appellant return to class visibly angry. Appellant sent out text messages on his cell phone and told Justin he was going to have a bunch of people at school at the end of the day to mess with Jacob.

Jacob walked to Circle K after school, not carrying a knife. Meanwhile, appellant met friends and headed for Circle K where they saw Jacob. Appellants friend, Nick, approached Jacob in front of the store while appellant remained five to seven feet away. As Jacob put his cell phone into his pocket, Nick told appellant to watch-out, as if Jacob was reaching for a knife. Appellant quickly approached Jacob and started punching him within view of the store surveillance camera.

Jacob suffered four facial fractures, which required surgical insertion of two metal plates and 10 screws in his face. He also had a swollen eye, bloody nose, and missed three weeks of school.

PROCEDURAL HISTORY

Appellant was charged with (1) assault with force likely to produce great bodily injury, with a great bodily injury enhancement ( 245, subd. (a)(1), 12022.7, subd. (a), count 1), and (2) use of force and violence against another resulting in serious bodily injury ( 243, subd. (d), count 2).

At trial, appellant argued his actions were justified as self-defense, but the juvenile court rejected this and found the charges true. The court found count 1 to be a felony and confinement time of seven years, consisting of four years for the underlying assault and a three-year enhancement for infliction of great bodily injury. The juvenile court stayed sentencing for count 2 pursuant to section 654.^[2]

Insufficient Evidence of Great Bodily Injury

Appellant contends the great bodily injury enhancement under section 12022.7, subdivision (a) should be reversed because Jacobs facial injuries were not a substantial injury beyond that inherent in the offense. We disagree.

On review of a substantial evidence claim, [w]e apply the same principles in reviewing juvenile proceedings that we invoke in scrutinizing a criminal conviction, i.e., the evidence must be construed in the light most favorable to the finder of fact. [Citation.] (In re Dennis B. (1976) 18 Cal.3d 687, 697.) We will affirm the lower courts finding if the record contains substantial evidence supporting the referees conclusions. (Ibid.)

Section 12022.7, subdivision (f) defines great bodily injury as a significant or substantial physical injury. Whether an injury constitutes great bodily injury within the meaning of section 12022.7 is a question of fact. (People v. Escobar (1992) 3 Cal.4th 740, 750.)

Case law amply supports the juvenile courts finding in this case. In People v. Escobar, supra, 3 Cal.4th at pages 744, 750, the California Supreme Court found sufficient evidence of great bodily injury where a rape victim suffered multiple abrasions, bruises and walked with a limp for over a week following the attack. In People v. Johnson (1980) 104 Cal.App.3d 598, 608-609, the court found sufficient evidence of great bodily injury where the victim suffered a fractured jaw. The court explained, a bone fracture is not merely a transitory bodily distress, but a severe and protracted injury which causes significant pain and requires considerable time to heal. (Id. at p. 609.)

Here, Jacob sustained facial fractures which necessitated surgery and the insertion of metal plates and screws. Jacob testified: I had felt like my face had been broken and fractured, and I had -- my eye was swollen up and I was bleeding from my nose. The injuries kept Jacob out of school for three weeks. On this record, there was ample evidence of great bodily injury to support the juvenile courts finding.

Abuse of Discretion to Find Assault Offense a Felony

Appellant argues the juvenile court abused its discretion in not reducing his offense to a misdemeanor in light of evidence he acted in self-defense, had no criminal record, and displayed contrition.

To prevail on this claim, appellant must show the courts decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) [T]he trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (Id. at pp. 977-978.) The lower courts decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] [Citation.] (Id. at p. 978.)

When a court has discretion to punish a crime by imprisonment in state prison or by fine or imprisonment in county jail, the crime can be classified as a misdemeanor under certain circumstances. ( 17, subd. (b).) Any exercise of discretion under section 17, subdivision (b) involves an intensely fact-bound inquiry taking all relevant factors, including the defendants criminal past and public safety, into due consideration. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 981-982.) In addition, the court must consider the objectives of the juvenile justice system, which include providing care, treatment and guidance consistent with the best interests of those found delinquent and holding them accountable for their behavior. (Welf. & Inst. Code,  202, subd. (b).)

In the present case, the juvenile court properly treated the assault offense as a felony. The court reasonably rejected evidence regarding appellants self-defense theory. There was conflicting testimony whether Jacob had threatened to stab appellant two days before the assault. And there was evidence that appellant planned to assault Jacob after school, which negated appellants testimony that he found himself trapped in a perilous situation. Jacobs presence at Circle K, during afternoon business hours, in clear sight of others, did not pose a reasonable threat to appellant. Finally, the amount of force, consisting of multiple strikes against Jacobs face causing fractures, was unreasonable under the circumstances. The juvenile courts felony treatment was commensurate with appellants behavior considering the significance of Jacobs injuries.

Appellants remorse and lack of criminal history did not compel a misdemeanor finding. The juvenile court appropriately considered these factors. The court released appellant to his parents custody pending trial. The court committed appellant to a program at Camp Erwin Owen rather than continued confinement at juvenile hall. Appellant has not established an abuse of discretion by the court below.

A Finding that Count 1 Cannot Be Applied to the

Three Strikes Law Is Not Ripe for Review

Appellant requests that we find that his count 1 felony juvenile adjudication cannot be used as a strike under the three strikes law ( 667) should he reoffend. The issue is not ripe for review.

[T]he ripeness requirement prevents courts from issuing purely advisory opinions, or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute. [Citation.] (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998.) It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. [Citation.] (People v. Johnson (2006) 142 Cal.App.4th 776, 789, fn. 4.)

In People v. Ybarra (1988) 206 Cal.App.3d 546, 549, the defendant was convicted of a serious felony under section 1192.7, subdivision (c)(8). The defendant asserted his conviction rendered him prospectively eligible for a five-year sentence enhancement under section 667 if he committed another qualifying felony. In contemplation of this possibility, the defendant argued that his current offense should not fall under the purview of the serious felony enhancement provisions. The court responded that the issue was premature:

The complaint before the court did not allege defendant had suffered a prior serious felony conviction. Accordingly, the instant conviction could only affect defendant if he were to suffer conviction of a serious felony in the future. A decision as to whether or not the present offense qualified as a serious felony would at most constitute an advisory opinion relating to the hypothetical use of the current felony conviction to enhance punishment for a future offense. Such a ruling would violate the well-settled rule that courts should avoid advisory opinions on abstract propositions of law. [Citations.] [Citation.] (Ybarra, at p. 549.)

Likewise, it is conjectural whether appellant will be convicted of an offense, which, in combination with the assault, will bring him within the three strikes sentencing scheme. In essence, we would have to speculate not only about future convictions, but also about what sentencing law would be in effect at the time of those convictions. Hence, an opinion on this issue would be advisory and not based on facts before us.

CONCLUSION

There is substantial evidence that appellant caused great bodily injury when he assaulted Jacob. There was no abuse of discretion in finding the assault offense to be a felony. Appellants argument regarding the potential effect of his felony juvenile in future criminal proceedings is premature.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J. and Gomes, J.

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

^[2] The court did not declare the battery offense under count 2 a felony. (Welf. & Inst. Code,  702.)