Filed 3/28/18 In re S.B. CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re S.B., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

S.B.,

Minor and Appellant.


G054401

(Super. Ct. No. 16DL1862)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Fred W. Slaughter, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Minor and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court declared S.B. (minor) a ward of the juvenile court after finding he committed two counts of felony assault with a deadly weapon (Pen. Code, §§ 245, subd. (a)(1); counts 1 & 2) and two counts of misdemeanor vandalism (§ 594(a), (b)(2)(A); counts 3 & 4). On appeal, minor contends the court erred in denying his motion to dismiss counts 1, 2, and 3 because there was insufficient evidence to support them. He also asserts the court abused its discretion in refusing to reduce his felony convictions in counts 1 and 2 to misdemeanors. We disagree and affirm.
FACTS
One night, minor’s mother picked him up from a friend’s house. Minor seemed nervous, saying he had had an argument with a friend. He became so agitated that he began punching the inside of the car. His mother had never seen him like that and believed he may have been under the influence of alcohol or drugs.
Minor continued acting agitated and angry when they arrived home, and began throwing dishes on the floor. His father stated he would call the police if minor did not stop throwing things around. Rather than comply, minor smashed and broke two cell phones against the wall. He also yelled at his father not to call the police or he would destroy the apartment. Minor’s father also believed minor was on drugs.
Minor’s parents went outside their apartment to call the police. While on the phone with the 911 dispatcher, minor’s father saw minor exit the apartment “almost at the same time.” Minor was holding a kitchen knife with a five-inch blade and a black handle behind his back. Upon seeing the knife, minor’s parents ran from minor. Minor’s father told the 911 dispatcher minor was following them and was out of control, and they needed help. As minor’s parents walked toward a parking garage across the street, the 911 call ended. At trial, minor’s parents testified he did not walk toward, or lunge at, them but rather walked past them toward their car, a Prius, on the other side of the street.
Neighbors David Zuluaga and his live-in girlfriend Kayla Spani heard a commotion and went to their second-floor balcony. They saw minor holding a knife behind his back in a fist and heard him cursing at his parents. Minor yelled things like, “don’t push me” and “don’t ‘F’ with me.” Spani believed minor’s words were “aggressive” and threatening toward his parents. Zuluaga observed minor “[c]hasing, in maybe taking five, six steps forward and then stopping. Lunging forward, kind of running little bit” at his parents “[a]nd then stopping and backtracking slowly.” Spani saw minor move toward his parents more than once, then turn around and go in the other direction, like he was pacing, while his parents tried to “put more distance between” them. As he walked back and forth, minor yelled at his parents to leave him alone and to stay away. He got within 20 to 25 feet of his parents.
Zuluaga yelled several times at minor to drop the knife. After about 10 to 15 seconds, minor dropped the knife, picked it back up, and went inside the apartment. Shortly thereafter, minor came back outside without the knife but holding a metal spoon in his hand. He then went over to the parking lot, climbed on top of his parents’ Prius, and started hitting it with the spoon and trying to kick in the window.
Tustin Police Officer Rene Barraza responded to the parents’ 911 call and saw minor had something silver in his hand. He ordered minor to drop the silver item and minor complied. Barraza found the silver item, which turned out to be a metal spoon, and saw a Prius nearby. The Prius had handprints and shoeprints on its roof, windshield, and hood, and a dent in its hood. Minor later told Barraza he was jumping on the Prius because he wanted to damage it.
When Barraza learned about the knife, he asked minor what he intended to do with it. Minor initially responded that he wanted to stab his father with the knife, but later changed his story to self-defense. Minor also warned Barraza he would cause harm to his parents in the future and to get used to responding to incidents because he was going to commit other acts in the City of Tustin.
Minor’s parents both told Barraza they were afraid minor was going to use the knife against them. Minor’s mother described how minor came out of their apartment with a knife in his hand, held in a downward position, and walked “aggressively” towards them, at which point they “ran away” from minor and “never looked back.” According to Barraza, it would take “mere seconds, if that” to close a distance of 15 feet.
Minor’s parents did not want to prosecute him and gave him a choice to stay or to leave their residence. Minor chose to leave. While gathering his things, minor continued to be irrational and angry. When minor tried to take a bottle of Crown Royal, Barraza placed him under arrest.
At the close of the prosecution’s case, minor’s counsel moved to dismiss counts 1 through 3 under Welfare and Institutions Code section 701.1. As to counts 1 and 2, minor’s counsel argued that while the prosecution proved minor possessed the knife, it did not establish minor committed any assault with it, because the evidence was insufficient to establish the required present ability to inflict injury. With regard to count 3, minor’s counsel asserted the evidence was insufficient to establish vandalism because the prosecution did not prove minor caused the dent on the roof of the Prius. The court denied the motion to dismiss and found the prosecution had met its burden of proof beyond a reasonable doubt.
Minor’s counsel did not present any witnesses, incorporated his insufficiency of the evidence arguments from the Welfare and Institutions Code section 701.1 motion into his closing argument, and submitted.
The court found all counts true, ruled minor came within its jurisdiction and declared counts 1 and 2 to be felonies. Minor’s counsel requested the court to proceed to disposition that same day and moved to reduce counts 1 and 2 to misdemeanors under section 17(b). The court denied the section 17(b) motion and declared minor a ward of the court. Minor was committed to the custody of the probation department, with 45 days in juvenile hall, and then released to the custody of his parents on specified terms.
DISCUSSION
1. Denial of Motion to Dismiss
Welfare and Institutions Code section 701.1 provides in relevant part: “[T]he court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged . . . after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by [Welfare and Institutions Code s]ection 601 or 602.” “Courts have held that [Welfare and Institutions Code] section 701.1 is substantially similar to Penal Code section 1118 governing motions to acquit in criminal trials and that therefore the ‘rules and procedures applicable to section 1118 . . . apply with equal force to juvenile proceedings.’ [Citation.]” (In re Anthony J. (2004) 117 Cal.App.4th 718, 727, fn. omitted.)
In ruling on a motion to dismiss under Welfare and Institutions Code section 701.1, the juvenile court is required “‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against [minor] is “proved beyond a reasonable doubt before [minor] is required to put on a defense.”’” (In re Anthony J., supra, 117 Cal.App.4th at p. 727.)
On appeal, “the standard for review of the juvenile court’s denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition. [Citation.] In applying the substantial evidence rule, we must ‘assume in favor of [the court’s] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense. [Citations.] Accordingly, we may not set aside the court’s denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’ [Citations.]” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)
a. Counts 1 and 2 (Assault with a Deadly Weapon)
Counts 1 and 2 charged minor with felony assault with a deadly weapon (§ 245(a)(1)), alleging he assaulted his parents with the knife. Minor contends the evidence does not support counts 1 and 2. He argues the evidence shows he did not have the required present ability to inflict injury because “[h]e either had the knife behind his back or in a downward position,” and he “was never closer than 20 to 25 feet from his parents, and they were across the street from each other.” We disagree.
To establish a violation of section 245(a)(1), the prosecution must prove, among other things, “that the defendant had the ‘present ability . . . to commit a violent injury,’ [on the person of another]. [Citations.] To have a ‘present ability,’ there must be threat of ‘“a present, and not a future injury.”’ (§ 240.) However, immediacy is not required. [Citation.] ‘[W]hen a defendant equips and positions himself to carry out a battery, he has the “present ability” required . . . if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.’ [Citations.]” (People v. Nguyen (2017) 12 Cal.App.5th 44, 48-49 (Nguyen), citing People v. Chance (2008) 44 Cal.4th 1164, 1168-1169 (Chance). )
“Although temporal and spatial considerations are relevant to a defendant’s ‘present ability’ under section 240, it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of defendant’s conduct.” (Chance, supra, 44 Cal.4th at p. 1171.) Thus, where the deadly weapon is a knife, “it [is] not necessary that the prosecution introduce evidence to show that the appellant actually made an attempt to strike or use the knife upon the person of the [victim.]” (People v. McCoy (1944) 25 Cal.2d 177, 189 (McCoy).)
As Chance explained: “[I]t is a defendant’s action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay. . . . [Citation.] ‘There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one’s hand upon his sword, would be sufficient.’ [Citations.]” (Chance, supra, 44 Cal.4th at p. 1172, italics added.)
Nor must the defendant be close enough to strike the victim in order to be guilty of assault. (Chance, supra, 44 Cal.4th at p. 1174, citing People v. Yslas (1865) 27 Cal. 630, 634 (Yslas).) Yslas is a prime example. In that case, the defendant approached within seven or eight feet of the victim with a raised hatchet, but the victim escaped injury by running to the next room and locking the door. (Yslas, at p. 631.) The court concluded the defendant had committed assault, even though he never closed the distance between himself and the victim, or swung the hatchet. (Id. at p. 634.)
Yslas explained, “[it] is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self-defense or retreat, the assault is complete.” (Yslas, supra, 27 Cal. at p. 634; see Chance, supra, 44 Cal.4th at p. 1174 [“‘Once a defendant has attained the means and location to strike immediately he has the “present ability to injure.”’].)
Similarly in Nguyen, relying primarily on Chance and Yslas, this court rejected the notion “that a person with a knife who is standing 10 to 15 feet away from a police officer . . . may never be convicted of aggravated assault because the person will never, as a matter of law, have the requisite “‘present ability” to commit a battery.’” (Nguyen, supra, 12 Cal.App.5th at p. 48.) Instead, we “decline[d] to distinguish, as a matter of law, a situation involving seven or eight feet of separation between the perpetrator and the victim, from that involving 10 or 15 feet . . . [and held s]uch is a factual matter within the province of the trier of fact. [Citation.]” (Id. at p. 49.)
Applying these principles and assuming the existence of every fact which the court could have reasonably deduced from the evidence, we conclude substantial evidence supports the assault with deadly weapon findings on counts 1 and 2. Before minor’s parents went outside to call the police, minor was already angry and violent, throwing dishes on the floor. He became angrier after his father said he was going to call the police, smashing two cell phones and threatening to destroy the apartment.
When minor’s parents went outside to call 911, minor grabbed a knife with a five-inch blade, and immediately followed them, walking aggressively toward them. Holding the knife, minor lunged back and forth at his parents, while cursing and yelling at them aggressively and threateningly. Fearing minor would use the knife against him, his parents “ran away” from him to put distance between them and “never looked back.” This combination of facts and circumstances is sufficient.
Minor notes he held the knife behind his back or pointed it at the ground, and he did not “display[] the knife aggressively, . . . threaten his parents with it,” nor “expose, point, slash, or swipe” it at them. But under McCoy, supra, 25 Cal.2d at page 189 and Chance, supra, 44Cal.4th at page 1172, such actions were not necessary. Minor’s indirect preparation toward violence by grabbing the knife was itself sufficient to constitute the actus reus of assault. (Chance, at p. 1172.)
Minor also emphasizes he “never got closer than 20 to 25 feet from his parents.” But the distance was maintained only because his parents retreated in fear, and the fact that an intended victim takes effective steps to avoid injury has never been held to negate present ability. (Chance, supra, 44 Cal.4th at p. 1174.) Furthermore, based on Barraza’s testimony that it would take “mere seconds, if that” to close a distance of 15 feet, the juvenile court could reasonably infer it would not take much longer to cover another five to 10 feet.
Minor claims reliance on Barraza’s testimony ignores the fact that he “passed by his parents who were on the other side of the street, and never came toward them.” These asserted facts, however, are premised entirely on his parents’ trial testimony, which the court discounted in favor of other evidence.
Contrary to minor’s parents’ testimony, Zuluaga testified he saw minor lunging and “running a bit” at his parents before slowly backtracking. Spani confirmed minor did this several times while his parents attempted to get further away. Likewise, minor’s mother told Barraza that minor walked aggressively toward her and minor’s father, which caused them to run away from him because they were afraid he would use the knife against them.
For all these reasons, we conclude substantial evidence supports the juvenile court’s finding that minor commit an assault with a deadly weapon. Thus, the court properly denied the motion to dismiss counts 1 and 2.

b. Count 3 (Vandalism)
Count 3 charged minor with misdemeanor vandalism, alleging he maliciously damaged his mother’s Prius in an amount less than $400. Minor argues the court erred in denying his motion to dismiss count 3, because the dent in the hood of the Prius could have existed before the incident and there was no direct evidence which showed he caused it. We are not persuaded.
Minor admitted to Barazza that he had jumped up on the Prius to damage it, because he was upset with his parents. Minor’s mother acknowledged to Barazza that minor jumped up onto the Prius. Spani also testified minor had “climbed up on top of the car.” Minor was 15 years old and weighed 140 pounds at the time of the incident.
It was reasonable for the juvenile court to infer that an angry 140-pound male jumping on a car in order to damage it would cause a dent in the hood. Thus, viewing the evidence in the light most favorable to the court’s ruling, substantial evidence supports the denial of minor’s motion to dismiss count 3.
2. Refusal to Reduce Counts 1 and 2 to Misdemeanors
The court found all counts true, ruled minor came within its jurisdiction and declared counts 1 and 2 to be felonies. Minor’s counsel moved to reduce counts 1 and 2 to misdemeanors under section 17(b). The court “decline[d] to grant the motion at this time” but stated it would “gladly grant it” “if there is a time in which the record demonstrates a [section] 17(b) motion is appropriate.”
Minor contends the court erred in declining to exercise its discretion “at this time” because Welfare and Institutions Code section 702 and California Rules of Court, rules 5.780(e)(5) and 5.790(a)(1) required the court to expressly state the status of the offenses as felonies or misdemeanors at the jurisdiction or disposition hearing and not at some later date. Minor is mistaken. No error occurred.
Welfare and Institutions Code section 702 states, in part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” The declaration may be made at the jurisdiction hearing or at the disposition hearing. (Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1).) Here, the juvenile court made the declaration required by Welfare and Institutions Code section 702 when it made its jurisdiction findings. Nothing more was required.
Minor’s section 17(b) motion was a separate issue. A section 17(b) motion can be made at any time. (People v. Wood (1998) 62 Cal.App.4th 1262, 1267, fn. 3.) The court has broad discretion under section 17(b), and the exercise of such discretion is “an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-982 (Alvarez)). “[T]hose factors that direct similar sentencing decisions are relevant, including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’” (Id. at p. 978.)
On appeal, we presume the court acted to achieve legitimate sentencing objectives. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) The burden is on the appellant “‘to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination . . . will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] 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.”’” (Ibid.)
Minor has not shown the court abused its discretion. The court stated it had considered counsel’s arguments, the factors set forth in Alvarez, and the evidence, before it exercised its discretion and denied the motion. As the Attorney General notes, minor mischaracterizes the court’s statement that it would not grant the motion “at this time.” Taken in context, “at this time” just meant minor could renew the motion in the future. The court explained that while it understood counsel’s arguments, they were “premature given the record that the court has before it at this time.” It determined the case was serious and believed there was a possibility of the “risk of harm in the future.” The court also found minor’s statements “troubling” and while it was confident minor could “turn it around, that is . . . based on speculation rather than what the record is at this point.”
Finally, minor maintains the juvenile court abused its discretion because there were numerous mitigating factors in his favor. He cites, among other things, “his straight ‘A’ school performance prior to his father’s cancer diagnosis, the fact this was his first experience with the criminal justice system, and the favorable progress reports since he was in custody.” But these mitigating factors were all argued, and the court stated it considered them before it denied the motion. In sum, the court did not act irrationally or arbitrarily, and no abuse of discretion has been shown. As the court suggested, minor is free to renew the section 17(b) motion in the future.
DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.