In re Brandon B.
Filed 3/27/06 In re Brandon B. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
| In re BRANDON B., a Person Coming Under the Juvenile Court Law. | |
| THE PEOPLE, Plaintiff and Respondent, v. BRANDON B., Defendant and Appellant. | A111229 (Solano County Super. Ct. No. J34947) |
I. Introduction
Defendant Brandon B. (Brandon) was charged with one count of child abuse under circumstances likely to produce great bodily harm and death in violation of Penal Code[1] section 273(a) (count 3) and one count of assault with a deadly weapon or by means of force likely to produce great bodily injury in violation of Penal Code section 245(a)(1) (count 4). The charges arose out of an incident in which Brandon burned another minor with lighted cigarette butts. The juvenile court sustained both counts, finding that Brandon acted with force likely to produce great bodily injury or great bodily harm. On appeal, Brandon contends that the court's conclusion was unsupported by the evidence. We find the conclusion to be supported by substantial evidence and affirm.
II. Factual and Procedural Background
On May 12, 2005, the People filed an amended supplemental petition against Brandon as a result of burn injuries Brandon inflicted upon Charles F. (Charles) on May 10, 2005. The petition alleged, inter alia, one count of felony child abuse under circumstances likely to produce great bodily harm and death in violation of Penal Code section 273a, subdivision (a) (count 3) and one count of felony assault with a deadly weapon and by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1) (count 4).[2]
The court held a contested jurisdictional hearing on June 3, 2005. At the hearing, Charles, who was nine years old at the time, was called to testify about the May 10, 2005 incident. According to Charles, he was riding a bike near Pena Adobe Park in Vacaville with Brandon, who was then thirteen years old, and Antonio P. (Antonio). On the way to the park, they stopped, and Brandon took a number of cigarette butts out of a big ashtray in someone's yard. They then continued on until they reached a bushy area near the park. The boys got off their bikes, and Brandon began lighting the cigarettes. About ten minutes after they got there, Brandon burned Charles on the left side of his neck with a cigarette butt. Charles' testimony on how this burn occurred was inconsistent. On cross‑examination, Charles testified that this first burn occurred when Brandon flicked the cigarette at him. He also testified that when he told his mother about the incident the day after it occurred, he told her that Brandon had a flicked a cigarette at him. He did not tell his mother that Brandon burned him by putting a cigarette up to his neck and holding it there. On redirect, however, Charles testified that he received the first burn when Brandon physically held a lighted cigarette butt to his neck. After the first burn, Charles told Brandon to stop.
Charles received a second burn, this one on the right side of his neck, from Brandon flicking another lighted butt at his neck. Brandon also flicked a cigarette butt into his hair, but Charles flicked it out. In doing so, he burned the middle finger on his right hand, although it did not leave a mark.
Charles testified that he did not smoke any cigarettes, that he did not flick any butts back at Brandon, and that he was not laughing when Brandon flicked the lighted butts at him and Antonio. His burns did not bleed, and he did not put any medicine on them, although his mother put ointment on them the next day. The burn marks were still visible on Charles' neck at the time of the jurisdictional hearing, more than three weeks after the incident.
Vacaville Police Officer Jeff Polder testified that on May 11, 2005, he was dispatched to the apartment of Charles and his mother. He observed small, brown burn marks on both sides of Charles' neck. He did not observe any burn marks on Charles' finger.
Brandon testified in his own defense. According to Brandon, both he and Charles were smoking cigarettes. After Brandon smoked a cigarette, he flicked it at Charles or Antonio. The first time he did it, Charles picked it up and flicked it back at Brandon. Brandon then flicked another one at Charles. Antonio and Charles were both laughing. According to Brandon, they were just messing around. At one point, Charles asked Brandon to stop, and they stopped for approximately 30 minutes before Brandon resumed smoking and flicked another butt at Charles. Brandon admitted that he flicked lighted butts that hit Charles in the neck and landed in his hair, but Brandon denied that he ever physically put a cigarette butt on Charles' neck or Antonio's cheek. He thought he and Charles were just playing.
Following the hearing, the court sustained counts 3 and 4, finding there to be a substantial likelihood that Brandon's conduct could have caused significant or substantial injury.[3] At a dispositional hearing on June 16, 2005, the court reduced both counts to misdemeanors and continued Brandon as a ward on probation.[4]
Brandon filed a timely Notice of Appeal on July 29, 2005.
IV. Discussion
