Filed 6/12/17 In re Tabitha B. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re TABITHA B., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
TABITHA B.,
Defendant and Appellant.

A149826

(Solano County
Super. Ct. No. J043469)

Tabitha B. was declared a ward of the court (Welf. & Inst. Code, § 602) after the juvenile court sustained allegations she committed battery on a peace officer (Pen. Code, § 243, subd. (b)), a misdemeanor. On appeal, Tabitha maintains the court’s jurisdictional findings are unsupported by substantial evidence. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, the Solano County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602) alleging Tabitha, who was then 15 years old, committed misdemeanor battery on a peace officer (§ 243, subd. (b)). Because Tabitha had been an abused child, chronic runaway, and human trafficking victim, the court referred the case to probation and the Solano County Department of Health and Social Services for a joint assessment report (Welf. & Inst. Code, § 241.1). The juvenile court subsequently found Tabitha would be “best served” under the court’s delinquency jurisdiction (id., § 602).
Evidence from the contested jurisdictional hearing, viewed in the light most favorable to the judgment, establishes the following. On January 10, 2016, at about 3:00 p.m., Vacaville Police Detective Daniel Stoddard was dispatched to a residence, along with Officers Foderaro and Windham, to respond to a “physical altercation between [Tabitha] and her stepmom.” The officers were dressed in full police uniform.
When Stoddard arrived, he saw Tabitha’s father and stepmother on the front porch of the home. Tabitha was sitting in a blue car, parked at the curb in front of the house. Initially, Stoddard and Foderaro spoke with Tabitha’s father and stepmother, while Windham stayed with Tabitha. After about an hour, Tabitha’s father and stepmother decided Tabitha’s mother should pick her up.
Stoddard approached Tabitha, who was then standing next to the blue car. Tabitha appeared “agitated.” A pair of shoes were on top of the car. Stoddard’s role, at this point, was to watch Tabitha and assist “with keeping the parties separated.” Stoddard directed Tabitha “to stay on the curb” and “not to enter the house.”
Tabitha exchanged profanities with the occupants of a car driven by a man she apparently knew. Tabitha also called her stepmom “a fat-ass bitch.” Next, Tabitha “said out loud that she wanted to get some clothes and then started walking towards the front door of the residence.” Tabitha’s father and stepmother were no longer on the porch. Tabitha was holding the pair of shoes. Stoddard told Tabitha to “stop.” She did not stop, and Stoddard then “grabbed ahold of one of her arms” and turned her back toward the parked car. Stoddard testified: “[Tabitha] said . . . she was just trying to sit down and then she had a pair of shoes in her hand and she kind of flung back with the shoes, and one of the shoes struck me in the face.” Stoddard then handcuffed Tabitha and placed her under arrest.
The events were also captured by Stoddard’s body camera, which was admitted into evidence. Although the audio from the recording was not transcribed, Stoddard described the events shown. At the beginning of the recording, Stoddard describes: “You can hear the family still kind of yelling back and forth. And during the whole time, the family was talking bad about [Tabitha] to the officers.” Stoddard said the officers “could hear it from where we were standing,” next to Tabitha. Stoddard also observed Tabitha’s siblings “were also talking back and forth to [Tabitha] trading insults.” During this time, Stoddard was acting as “a barrier between [Tabitha] and the family” because he was trying to prevent “another altercation.” While the final portion of the recording played, Stoddard narrated: “Now everyone has gone inside, but the door is still open or at least the inside door is still open. The security screen is closed, and they are yelling at each other. [¶] [Tabitha] just asked for her clothes. [¶] So she hit me with the shoe. It was the arm that I originally held, and we pushed her up against the car, the white car, that was in the driveway.”
Defense counsel argued Stoddard was not lawfully performing his duties when he grabbed Tabitha’s arm and, thus, she was legally entitled to reasonably defend herself. However, the juvenile court sustained the charges. The trial court explained: “I did see the video as presented. . . . I also heard the testimony and I am familiar with the elements of a [battery on a peace officer], . . . as well as unlawful use of force, and the jury instruction referenced by [defense counsel] . . . . In this particular case, there is no doubt the officers were there as part of their duties as city police officers to insure the peace and safety of the community. They were called out for a disturbance which was still at least audible upon their arrival. You could hear it on the tape, and it was also described by the officer. They were there for almost an hour. We saw about three minutes’ worth of the interaction. We did see the charged act captured on video. [¶] Clearly, the officers knew that Tabitha was making profane remarks to the stepmom in the area of the house. We know the stepmother was there. There was a continuing dispute of some sort, so the officer has an absolute duty to insure the safety of Tabitha, as well as anybody else there. So when Tabitha went towards the house, contrary to their orders, that was a lawful order. [¶] The officer is not required, nor is it reasonable to expect an officer to allow [Tabitha] to approach the house with what they knew and allow the situation to potentially escalate. It would be a dereliction of duties not to stop Tabitha. They gave verbal commands. She didn’t comply. The grabbing of the arm, considering where she was headed, would have been in their presence and what had been reported. The officer was acting reasonably and lawfully.”
The trial court also rejected Tabitha’s theory that she hit Stoddard only accidentally. The trial court explained: “The introduction of violence was solely by Tabitha. There was no other reason to fling the shoes in the manner she did. Clearly, it was an attempt to throw it towards the officer. She doesn’t physically have to touch [him] with her hand or otherwise a body part. If she throws an object at the officer, that’s a completed battery. There’s no evidence from the video or what I heard that suggests it was accidental.”
The juvenile court adjudged Tabitha a ward of the court and placed her on formal probation. Tabitha filed a timely notice of appeal.
II. DISCUSSION
Tabitha maintains the juvenile court’s jurisdictional findings are unsupported by substantial evidence. We disagree. When faced with a substantial evidence challenge, we “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; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318–319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) “[O]ur perspective must favor the judgment. [Citations.] ‘This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.’ ” (Ryan N., at p. 1372.)
“By definition, ‘substantial evidence’ requires evidence and not mere speculation.” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, italics omitted; accord, In re Roderick P. (1972) 7 Cal.3d 801, 809.) Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) “ ‘Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.’ (Evid. Code, § 411.) ‘If a trier of fact has believed the testimony . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions.’ ” (In re Andrew I. (1991) 230 Cal.App.3d 572, 578.)
The elements of battery on a peace officer are as follows: (1) any willful and unlawful use of force or violence (2) against the person of a peace officer (3) engaged in the performance of his or her duties, and (4) the defendant knew, or reasonably should have known, the victim was a peace officer. (§§ 242, 243, subd. (b); People v. Lindsay (1989) 209 Cal.App.3d 849, 857.) It is undisputed that Stoddard was a peace officer and that Tabitha was aware of that fact. The only elements Tabitha challenges are (1) and (3).
A. Lawful Performance of Duties
Tabitha insists the evidence is insufficient to support the juvenile court’s finding Stoddard was engaged in the lawful performance of his duties because, when Stoddard grabbed Tabitha’s arm, he had no reasonable suspicion she was involved in criminal activity. The People disagree, contending Stoddard had the reasonable suspicion necessary to detain Tabitha. In the alternative, Tabitha maintains Stoddard did not act lawfully because, by grabbing her arm, he used excessive force in detaining her. The People have the better argument.
An essential element of battery against a peace officer is the officer, at the time of the arrest, must be engaged in the performance of his or her duties. If the arrest is found to be unlawful, a defendant cannot be convicted. (In re Joseph F. (2000) 85 Cal.App.4th 975, 982; People v. Castain (1981) 122 Cal.App.3d 138, 142; People v. White (1980) 101 Cal.App.3d 161, 166.) Thus, “there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.” (Joseph F., at p. 982; accord, In re Manuel G. (1997) 16 Cal.4th 805, 810–811, 816–817.)
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.) A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that “(1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other grounds by Cal. Const., art. I, § 28; accord, People v. Hernandez (2008) 45 Cal.4th 295, 299.) “ ‘Although a mere “ ‘hunch’ ” does not create reasonable suspicion, [citation], the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause [citation].’ (Navarette v. California (2014) 572 U.S. ___ [134 S.Ct. 1683, 1687] . . . ; accord, [(People v. Souza (1994) 9 Cal.4th 224,] 229–231.) ‘[W]here a reasonable suspicion of criminal activity exists, “the public rightfully expects a police officer to inquire into such circumstances ‘in the proper exercise of the officer’s duties.’ ” ’ ” (People v. Brown (2015) 61 Cal.4th 968, 981.) We must consider the totality of the circumstances and remember “[a] determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” (United States v. Arvizu (2002) 534 U.S. 266, 277; accord, Brown, at pp. 985–986.) “ ‘What is required is not the absence of innocent explanation, but the existence of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” ’ [Citation.] Although each of a series of acts may be ‘ “perhaps innocent in itself,” ’ taken together, they may ‘ “warrant[] further investigation.” ’ (Arvizu, at p. 274 . . . .) The purpose of the detention is to resolve the ambiguity by allowing the officer to briefly investigate further.” (Brown, at pp. 985–986, italics omitted.)
Absent a lawful detention, a person “may decline to listen to [an officer’s] questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” (People v. Hughes (2002) 27 Cal.4th 287, 328, italics added.) Furthermore, when excessive force is used in making what otherwise is a lawful arrest, the arrest becomes unlawful. (People v. White, supra, 101 Cal.App.3d at pp. 164, 167.) “ ‘When a peace officer or a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right of self defense against such force. [Citations.] On the other hand, the use of unreasonable or excessive force to make an arrest constitutes a public offense. [Citation.] And all persons have a right to prevent injury to themselves by resisting a public offense (. . . § 692).” (People v. Adams (2009) 176 Cal.App.4th 946, 952.) It is a question of fact whether a police officer has used reasonable force. We only determine if sufficient evidence supports the trier of fact’s finding, without reweighing the evidence. (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 8.)
In rejecting Tabitha’s argument that Stoddard was not lawfully performing his duties, the juvenile court relied on Stoddard’s testimony, as well as the body camera recording. When asked why he detained Tabitha, Stoddard explained: “During the course of our interaction with both [Tabitha] and her . . . dad or stepparents, they had been yelling profanities at each other, threatening—[Tabitha] had been threatening her stepmom, calling her . . . names. And also there was another vehicle that pulled up. [¶] . . . [¶] . . . [A] male who was not identified . . . started yelling at [Tabitha], and she, again, with this male . . . they had been yelling back and forth profanities, threatening each other as well. So I did not want [Tabitha] to enter the residence for the possibility of their [sic] being another altercation.” (Italics added.) The recording, which we have reviewed, confirms Stoddard’s observations. It also shows Tabitha walking towards the door of the home while stating she was going to get her clothes, refusing Stoddard’s order to stop, and continuing to walk purposefully towards the house. Given Stoddard’s observations, as well as his awareness the police had responded to reports of a “physical altercation” between Tabitha and her stepmother, the juvenile court could reasonably infer Stoddard had a reasonable suspicion Tabitha was about to disturb the peace or engage in violence. (See § 415, subd. (3) [“[a]ny person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction” is guilty of a misdemeanor].)
Tabitha insists we must ignore the evidence favorable to the judgment because she “made clear that she merely wanted to sit on the porch . . . while she waited for her mother.” We are not convinced. This was merely an after the fact justification given by Tabitha. She had previously said she was going to get some clothes, which we can infer were inside the house, as were her father and stepmother. “ ‘[T]he possibility that the circumstances are consistent with lawful activity does not render a detention invalid, where the circumstances also raise a reasonable suspicion of criminal activity. The public rightfully expects a police officer to inquire into such circumstances; indeed the principal function of the investigative stop is to resolve that ambiguity.’ ” (People v. Conway (1994) 25 Cal.App.4th 385, 390.)
Tabitha also misstates the evidence in suggesting Stoddard grabbed her arm “without first seeing whether she would respond to a directive to stop or a more peaceful show of authority.” In fact, she quite clearly ignored his requests to stop and stay away from the house. The juvenile court could reasonably find Stoddard had reasonable suspicion Tabitha was about to engage in criminal activity and took measures reasonably appropriate in response to Tabitha’s refusal to heed his instructions to stop and not go inside the house. Thereafter, it was Tabitha who escalated the level of force involved in her detention. As Tabitha resisted Stoddard’s lawful effort to detain her, the officers responded reasonably by increasing the level of force to effect a detention and then an arrest. Substantial evidence supports the juvenile court’s finding the force was reasonable in light of Tabitha’s resistance. Substantial evidence supports the juvenile court’s finding Stoddard was lawfully performing his duties when he detained Tabitha.
B. General Intent
Tabitha also challenges the sufficiency of the evidence supporting the trial court’s finding she acted with the intent required to commit battery. She maintains: “[T]he evidence showed she merely swung around in reaction to being grabbed unexpectedly by the officer; there was no evidence that she intended that the shoes in her hand would hit the officer.”
Battery is a general intent crime. (People v. Lara (1996) 44 Cal.App.4th 102, 107.) “[T]he crime of battery requires that the defendant actually intend to commit a ‘willful and unlawful use of force or violence upon the person of another.’ [Citations.] In this context, the term ‘willful’ means ‘simply a purpose or willingness to commit the act . . . .’ [Citation.] [¶] ‘Reckless conduct alone does not constitute a sufficient basis for . . . battery . . . .’ [Citation.] However, if an act ‘ “inherently dangerous to others” . . . is done “with conscious disregard of human life and safety,” the perpetrator must be aware of the nature of the conduct and choose to ignore its potential for injury, i.e., act willfully.” (Id. at pp. 107–108.) “ ‘Any harmful or offensive touching constitutes an unlawful use of force or violence.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404.) “The slightest degree of touching is sufficient.” (In re B.L. (2015) 239 Cal.App.4th 1491, 1495.)
The juvenile court explicitly found that Tabitha intentionally flung the shoe at Stoddard. Contrary to Tabitha’s assertion that she hit Stoddard accidentally, the recording does not unambiguously show that Tabitha flung her arm backwards reflexively. The juvenile court could reasonably infer that Tabitha intentionally flung her arm backwards. The juvenile court could also reasonably infer, from Stoddard’s testimony and its own viewing of the recording, that, despite not facing Stoddard, Tabitha was aware that Stoddard was right behind her, while attempting to detain her and prevent her from entering her father’s home. Awareness of these facts would lead a reasonable person to infer a battery would be the direct, natural and probable result of her willful act of flinging her arm backwards towards Stoddard. When viewed in the light most favorable to the People, substantial evidence supports the juvenile court’s intent finding.
III. DISPOSITION
The judgment is affirmed.




_________________________
BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.