In re Nicholas L.

Filed 5/3/07 In re Nicholas L. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a contested jurisdictional hearing, the juvenile court sustained a charge against Nicholas L., a minor, of brandishing a deadly weapon (Pen. Code, 417, subd. (a)(1)). The minor was declared a ward of the court and placed on home probation.

On appeal, the minor contends (1) the evidence is insufficient to support the sustaining of the brandishing charge, and (2) reversal is required because the juvenile court precluded him from presenting evidence of self-defense. We reject both claims.

FACTS

In July 2004, the minor lived at home with his father and his older brother.^[1] The home is two stories with three bedrooms upstairs and a staircase with a midlevel landing eight stairs from the top.

The father testified that on July 14, 2004, he returned home about 4:00 p.m. from his work as a correctional officer and both of his sons were home. Around 9:00 p.m., the father came downstairs and discovered that the minor, in violation of a house rule, had left the home without asking permission. Although the father was concerned, he returned to his room.

About 10:15 p.m., the father heard the minor return and came out of his room. From the top of the stairs the father asked the minor where he had been. The minor said he had been to a friends house helping them with their Frontier DSL. In a calm tone, the father lectured the minor on leaving without asking permission. Not wanting to get into an argument with the minor, the father did not mention any punishment. After about five minutes, the father returned to his room and went to bed.

Shortly thereafter, the father heard yelling and screaming from downstairs. Suspecting his sons were arguing, the father went downstairs and asked what was going on. The minor was in the kitchen ranting and raving and throwing his medicine bottles, at least one of which he threw at his father. The brother was sitting on the couch in the living room with his face buried in his hands.

Since the minor was out of control, the father grabbed him by the shoulders and tried to calm him down. However, the minor continued his tirade, saying, F this, F that, fuck this, fuck that, Im not taking this . . . Fn meds anymore. When the father was unable to calm the minor down, he went upstairs and took the minors Play Station 2 from his room and put it in his own room. While the father was taking the Play Station 2, the minor remained downstairs ranting and raving.

After the father put the Play Station 2 in his room, he heard the minor, who was still yelling, storm[] up the stairs, and go into his room. Because the father had found a large knife in the minors room and taken it from him about six months previously, the father feared the minor was going to his room to get something. The father got his gun, put it behind his back and went to his bedroom door. From there, the father saw the minor on the landing holding a three-foot sword, Samurai sword. The minor made a motion to come up the stairs, but didnt get that far because the father instinctively shot him. The bullet entered the minors right front quadriceps and exited the back of his leg.

According to the brother, he was at home when the minor arrived. The brother told the minor that their father was going to take his Play Station 2 away from him. The father came downstairs, had a conversation with the minor in the kitchen and then went back upstairs to his room. The minor remained downstairs yelling and raving.

The father again came downstairs and argued with the minor. The minor threw his medicine bottles on the floor. The father was very angry and grabbed the minor by the shoulders and shook him. Although the brother was unable to recall how hard their father shook the minor or whether the minor fell down, he did recall that their father never choked the minor.^[2] This was the worst argument the brother had witnessed between their father and the minor, with both of them yelling. Both the father and the minor went upstairs to their rooms, but the brother could not remember who went first.

The brother saw the minor come out of his room carrying a sword and go into their fathers room. The brother lost sight of the minor for a couple of seconds and then saw him running down the stairs, still carrying the sword. The next thing the brother saw was their father shoot the minor in the leg while the minor was on the landing. The brother could not remember which way the minor was facing when he was shot.

The brother said that their father never hit either him or the minor and that their fathers discipline consisted of grounding them. On two occasions, the minor had come after the brother with a steak knife.

Deputy Eric Cravener, who responded to the minors home, found the sword, which was measured in court as three feet long with the blade being 26 inches. He also found medication bottles on the family room floor, a Play Station 2 in the master bedroom, and a knife sheath under the mattress in the minors room.

Austin B., who lived two houses away from the minor and hung out with him, was walking home the night of the shooting and saw the minor go to the minors front door. The brother opened the door and Austin heard the brother laughing. Austin also heard the fathers voice and it sounded angry.

The minor testified that he was scared when he arrived home because his father had beaten him before. The first beating the minor could recall occurred when he was three or four. His father brutal[ly] beat him with a leather belt, striking him on the face, stomach, back, legs, and arms. The beating left marks [l]ike patches. Each time the minor was beaten with the belt he would be hit 15 to 20 times. On three occasions, the father beat him with a stick, again striking him 15 to 20 times [e]verywhere on his body. [U]sually the father would strike him with his [b]are fists. The beatings with the belt stopped when the minor was in the eighth grade, but his father continued thereafter to beat the minor with his fists and choke the minor. When the minor was being choked, the father would lift the minor off the ground for five to seven seconds, terrifying him because he feared his father would never let go. The discipline administered by the minors father scared the minor because it was like getting beat up by a school bully everyday . . . .

When the minor was asked whether he had told anyone of these incidents, he recalled that in March or May of 2004, his father had choked and head-butted him. After his father had let go of him, the minor ran out of the house and called the police from a pay telephone. The minor also spoke with Child Protective Services (CPS) at school about the abuse, but when CPS came to his home he only said hi to them. When the minor was in the third or fourth grade he heard his father threatening to get a gun during an argument with his mother; however, his father could not find the gun.

The minor, who was 15 at the time of trial, testified that on the night of the shooting he had gone to a friends house to help him set up an Internet connection and that he had so told the brother. When he returned about 45 minutes later, the brother opened the door and laughingly told him, Youre in trouble. Youre going to get it. His brother also told him that his Play Station 2 was going to be taken away.

The father started loud talking at the minor from the stairs, which lasted five to 10 minutes, and the minor just listened.^[3] The father returned to his room and for the next several minutes, the minor and his brother engaged in loud talking regarding the brothers failure to tell their father where the minor had gone. While they were arguing, the father came downstairs and, with face turned red and eyes [] kind of big, scream[ed] at the minor for not telling him where he had gone. The minor loud talked back to his father, claiming his father had no reason to punish him. This confrontation lasted about 10 minutes.

When his father went back upstairs and got the minors Play Station 2, the minor threw one of his medicine bottles across the counter. While the minor was talking to his brother about being grounded for no reason, the father came back downstairs and yelled at the minor for coming home late. Afraid his father would do something because he was extremely angry, the minor threw another one of his medicine bottles on the floor. His father then ran to the minor, grabbed him by the neck, lifted him up and choked him. The minor tried to kick and punch his father and after about five seconds he broke free and ran upstairs to his room for safety.

The father followed the minor upstairs and went into his own room. Knowing his father had weapons in the house and believing his father was going to come after him again, the minor got his Samurai sword. Thinking his father would not try to attack him if he had the sword, the minor started running downstairs to get out of the house and to safety. When the minor reached the middle landing, he heard his fathers footsteps. The minor pivoted, his face looking directly back up the stairs and his body diagonal to the stairs. The minor saw his father coming out of his room toward him with a gun pointed directly at the minor. The minor, who was not yelling or holding up the sword or making any motion to go toward his father, was then shot by his father.

The minor admitted having chased his brother with a knife and, while at school, breaking his hand when he intentionally punched a wall instead of a student with whom he was trying to avoid a fight.

On rebuttal, Deputy Cravener testified that while at the minors home, the minor told him that his father had run into his room to get a handgun after he saw the minor with the sword.^[4]

DISCUSSION

I

The minor contends the evidence is insufficient to sustain the charge of brandishing a weapon in violation of Penal Code section 417, subdivision (a)(1). We disagree.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Green (1980) 27 Cal.3d 1, 55; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.)

Penal Code section 417, subdivision (a)(1) provides: Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner . . . is guilty of a misdemeanor . . . . At the conclusion of the jurisdictional hearing, the juvenile court sustained the charge of brandishing, finding the minor had exhibited the sword in an angry manner.

The minor argues the evidence is insufficient to support the courts finding he exhibited the sword in an angry manner. This is so, he claims, because at the time he was shot there was no evidence he was making verbal or threatening gestures with the sword, there was no evidence he was actually coming up the stairs, and there was no evidence he was still angry after the initial argument with his father. The argument is not persuasive.

By its express terms, Penal Code section 417, subdivision (a)(1), may be violated by exhibiting a deadly weapon in an angry manner, and the minor does not argue otherwise. Here, there was evidence that after an extremely heated argument with his father downstairs, the minor went up the stairs to his room, obtained a three-foot long Samurai sword, openly carried the sword past his fathers room and down to the landing of the stairs. From within the fathers bedroom, the father, who had retrieved his gun after he heard the minor storm up the stairs and go into his room, saw the minor with the sword on the landing. When the minor, with sword in hand, took a step to come up the stairs, the father asserted, and the court apparently believed, he instinctively shot him. Since the heated argument between the minor and his father had occurred immediately prior to the minors obtaining the sword, the court could reasonably conclude the minor was still angry notwithstanding that he was no longer ranting, yelling or making verbal threats. Consequently, the minors attempt to come up the stairs while still angry and armed with the sword constituted substantial evidence supporting the juvenile courts finding that the minor exhibited the sword in an angry manner.

II

The minor contends the juvenile court prejudicially erred when, on four occasions, it ruled inadmissible evidence which was relevant to prove he had obtained the sword in self-defense. While we agree the court erred in some of the cited rulings, we nevertheless conclude that in these circumstances the errors were not prejudicial.

The minor cites the following instances in support of his contention: (1) The court precluded him from testifying that [he] heard his father threaten to use a gun during arguments with his mother; (2) the juvenile court precluded him from presenting evidence that upon his return home, his brother
told him that he was going to get it; (3) the court sustained the prosecutors relevancy objection to the question whether
the minors brother knew there were weapons in the house; and (4) the court precluded his neighbor, Austin B., from testifying that upon the minors return home, Babtiste heard his brother tell the minor he was going to get a whooping.

We initially consider the first and third cited instances. As to the first instance, during the minors direct testimony counsel asked him whether he had ever heard his father threaten to use a gun. The minor replied that when he was in the third or fourth grade he heard his father threaten to use a gun while arguing with his mother. Counsel then asked the minor to [d]escribe for us what happened in that instance. Citing Evidence Code section 352 and noting the minor had already gotten into evidence that the minor had heard his father threaten to use a gun, the court refused to permit the minor to go into the details of what had occurred. Thus, contrary to the minors assertion, the court did not preclude him from presenting evidence that [he] heard his father threaten to use a gun during arguments with his mother. The court merely exercised its discretion by precluding him from testifying to the details of an argument, which had little if any relevance to the present charge.

As to the third cited instance, during cross-examination of the minors brother, counsel asked the brother, [D]o you know that your father keeps weapons in the house? The court sustained the prosecutors relevancy objection. The minor argues, [t]he relevance here is to whether [the brothers] knowledge of weapons in the house confirmed [the minors] belief that his father had a gun, and thus, [was] relevant to [the minors] beliefs about what his father might do to him, and the danger he was in. We do not follow the argument. The only way in which the brothers knowledge would be relevant to the minors state of mind would be if the brother had communicated his knowledge to the minor. Since there was neither evidence the brother had communicated such knowledge to the minor, nor an offer to so prove, the court properly sustained the objection.

The second instance also occurred during the minors cross-examination of his brother. Counsel asked the brother if he remembered telling the minor when he got home that he was going to get it. The prosecutor objected on hearsay grounds. Notwithstanding counsels statement that it goes to the mind set of [the minor] when he came into the house, the court sustained the objection.

The fourth contention occurred during the minors direct examination of Austin B., the minors neighbor. Counsel asked Austin how he knew it was the minors brother who had answered the door when the minor returned home. Austin replied, Cause I heard like the brother laughing and like telling [the minor] that he was going to get a whooping. The prosecutor objected as to what he told him, and the court sustained the objection and struck the latter part of Austins testimony. The minor then asked Austin what he heard when the brother opened the door. The prosecutor made a hearsay objection, which the court sustained. When the minor requested to make an offer of proof, the court replied, No. Sustained.

The second and fourth instances were relevant and nonhearsay. Since self-defense would be available to the minor if he actually and reasonably believed he was in imminent physical danger from his father (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1066), the evidence the brother told the minor that he was going to get it and he was going to get a whooping was relevant to the minors state of mind, namely, whether the minor actually and reasonably believed he was in such imminent physical danger from his father that he was justified in arming himself with and exhibiting the sword.

Nor was the evidence hearsay. Hearsay evidence is evidence . . . that is offered for the truth of the matter stated. (Evid. Code, 1200, subd. (a).) [O]ne important category of nonhearsay evidence [is] evidence of a declarants statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. (People v. Scalzi (1981) 126 Cal.App.3d 901, 907, cited with approval in People v. Turner (1994) 8 Cal.4th 137, 189, overruled on a different point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)

Here, the evidence that the minor was told he was going to get it and he was going get a whooping was not being offered for the truth of the matter stated; instead, the evidence was being offered to show the minor heard the words, believed he was in physical danger from his father, and acted in conformity with that belief by arming himself with and exhibiting the sword. Consequently, the juvenile court erred in refusing to admit this evidence. However, notwithstanding the error, we conclude on this record the error was harmless.

The minor claims the error in excluding the foregoing evidence is measured pursuant to the beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. We disagree. When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant (People v. Humphrey (1996) 13 Cal.4th 1073, 1089), which is commonly referred to as Watson error (see People v. Watson (1956) 46 Cal.2d 818, 836-837.)

Here, the excluded evidence went to whether the minor actually and reasonably believed it was necessary for him to arm himself with the sword. While the court accepted that the minor had been abused in the past by his father and that his fathers prior violence may have given the minor a reason for getting the sword, the court concluded the minors arming himself was not objectively reasonable in light of the circumstances occurring the night of the offense. Thus, the court stated: I think [self-defense is] a non-issue. Although all the history of prior violence may have given [the minor] a motive, as argued, to go get that sword, I have to focus on what happened that night. And as far as the Court determines, there really was no reason for [the minor] to get that sword that night. [] Yes, he had an argument with his father. That argument actually stopped after the first discussion. [The minor] had gone out. He knew his father was mad at him. His father let him know that, and that was the end of the discussion. [] What the evidence clearly shows and what [the minor] fails to, I think, accept responsibility for, he started this argument all over again. Hes the one that went into the kitchen. Hes the one that started throwing things. As his brother testified, he was raving; he was angry. [] . . . [] Was he choked? I have my doubts. Again, I think [the minor] is embellishing that for purposes of helping his case. Has he been abused in the past? I think he has. I think his father has used corporal punishment on him. [] I dont have any doubt about that, but thats not the issue. The issue is what happened that night? And was there a reason for [the minor] to go up and get that sword because he felt he had to defend himself? The Court finds absolutely not. [] Again, [the minor] created this situation. Had he simply accepted the fact that his dad was angry at him, had he accepted the act that he had left home without permission, it would have ended there. [] Also, as [the prosecutor] argues, [the minors] testimony is that after his dad choked him, he needed to get away from his dad. And as the pictures showed, if he wanted to get away from his dad, . . . he simply could have run out the door. [] There was no need for him to run up to his room and grab the sword.

While the wrongfully excluded evidence would have strengthened the minors claim that he had good reason to fear his father, such evidence still would not have altered the objective facts which demonstrated that on the night in question the minor had no reasonable cause to arm himself. Consequently, the error did not affect the finding, and therefore was harmless within the meaning of People v. Watson, supra, 46 Cal.2d at pages 836-837.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1] The minor was 14 years old at the time of the brandishing and 15 at the time of the jurisdictional hearing. The brother was 18 years old at the time of trial.

^[2] On cross-examination, the brother also testified that he did not remember if their father had grabbed his brother around the neck.

^[3] The minor described loud talking as yelling without being angry.

^[4] Appellate counsel for the minor has included within the Statement of Facts a section entitled, Appellants Family History. According to the minors citations to the record, this section was taken from the probation officers report filed August 6, 2004. While the jurisdictional hearing was conducted in December 2004, i.e., approximately four months after the filing of the report, the August 6, 2004, report was never entered into evidence at the jurisdictional hearing. Consequently, we have not included in the above statement of facts the information set forth under Appellants Family History.