Filed 5/2/17 In re E.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re E.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
E.S.,
Defendant and Appellant.
F073616
(Super. Ct. No. MJL018189-E, F)
OPINION
THE COURT*
APPEAL from orders of the Superior Court of Madera County. Thomas L.
Bender, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and
Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J., Kane, J., and Poochigian, J.
2
Appellant E.S., a minor, appeals from two juvenile court dispositional orders, one
declaring him a ward of the court and another finding a violation of probation. Following
a contested joint hearing on a petition filed under Welfare and Institutions Code section
602 and a juvenile notice of violation of probation filed under Welfare and Institutions
Code section 777, appellant was found to have committed a battery (Pen. Code, § 242.)1

Appellant contends the juvenile court erred because the evidence was insufficient to show
both that appellant knew his conduct was wrong and that a battery occurred. For the
reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, a 12-year-old student at Enterprise Secondary School in Madera,
California, was involved in an altercation with another youth in front of the Madera
County Independent Academy on January 29, 2016. According to two witnesses who
viewed a recording of the incident on video surveillance and testified at appellant’s
contested hearing, but who did not witness the incident themselves,
2 appellant, with his
shirt off, approached another student in a group, in a manner which suggested conflict,
and struck him. One of the testifying witnesses, the principal of the Enterprise Secondary
School, described the incident as appellant striking the victim “on the left side of his face
with [appellant’s] right hand.”
After the incident, the other testifying witness, the principal of the Madera County
Independent Academy, came outside and observed some of the aftermath. He saw
appellant, with his shirt off, approach another youth and say, “I will catch you later” or

1 All further statutory references are to the Penal Code unless otherwise noted.
2 At the hearing, appellant raised no objection to the testimony regarding what these
witnesses saw on the video, and appellant raises no objection to that testimony on appeal.
3
“I will catch you on Monday.” The group of students then dispersed with no further
incidents. Appellant was subsequently suspended from school.
At the time of the incident, appellant was an adjudicated ward of the court. He
had been previously declared a ward under at least three prior petitions, for offenses
including vandalism (§ 594), battery on school, park, or hospital property (§ 243.2,
subd. (a)(1)), resisting a public officer (§ 148, subd. (a)(1)), and possessing a controlled
substance (Health & Saf. Code, § 11350, subd. (a)).3
As a result, appellant faced both a
notice of probation violation, alleging appellant violated directives to obey all laws, not
use or possess unlawful drugs (appellant tested positive for marijuana upon arrest), and
attend school, and another wardship petition alleging appellant committed a battery.
Appellant denied the charges, resulting in the above mentioned contested hearing.
At the conclusion of the contested hearing, appellant moved for acquittal, arguing
there was no clear and convincing evidence demonstrating, as required under section 26,
that appellant knew the wrongfulness of his acts. Over counsel’s objection, the trial court
took judicial notice of appellant’s case files, relying on them to deny appellant’s motion.
As the court explained, “the evidence shows that [E.S.] knew right from wrong just from
his actions that particular day and also from taking judicial notice of the file. He knows
right from wrong. He is not any stranger to this court.” The court later added, “not only
does the file shows [sic] it but his actions on the particular day, him taking off his shirt,
his threatening students. I am going to catch you later, just the circumstances of the event
show that he knew exactly what he was doing and knew it was wrong.”

3 Although the trial court ultimately took judicial notice of the files related to
appellant’s vandalism, battery, and resisting an officer offenses, these files are not
contained within the record on appeal. We note it is appellant’s responsibility to ensure
the record is adequate for review. (In re Raymundo B. (1988) 203 Cal.App.3d 1447,
1452.)
4
The juvenile court found true all three alleged probation violations and found true
the contention under the wardship petition that appellant committed a battery. Appellant
was subsequently ordered to reside with his mother, received 46 days in juvenile hall,
with 46 days credit for time served, and the case was scheduled for transfer to Lake
County where appellant’s mother resides.
This appeal timely followed.
DISCUSSION
Appellant contends the evidence admitted is insufficient to support two relevant
findings by the juvenile court. First, that appellant was aware his conduct was wrong
under section 26. Second, that appellant actually committed a battery by causing a
harmful or offensive touching.
Standard of Review and Applicable Law
Generally, “[i]n reviewing a sufficiency of evidence claim, the reviewing court’s
role is a limited one. ‘ “The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record, a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must
view the evidence in the light most favorable to the People and must presume in support
of the judgment the existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738-739.) “The applicable
standard of review is the same as for adult criminal appeals.” (In re Amanda A. (2015)
242 Cal.App.4th 537, 545.)
“A battery is any willful and unlawful use of force or violence upon the person of
another.” (§ 242.) “The slightest degree of touching is sufficient. [Citation.] ‘ “Any
harmful or offensive touching constitutes an unlawful use of force or violence” under this
statute. [Citation.] “It has long been established that ‘the least touching’ may constitute
5
battery. In other words, force against the person is enough; it need not be violent or
severe, it need not cause bodily harm or even pain, and it need not leave a mark.” ’ ”
(In re B.L. (2015) 239 Cal.App.4th 1491, 1495-1496.)
“Penal Code section 26 articulates a presumption that a minor under the age of 14
is incapable of committing a crime.” (In re Manuel L. (1994) 7 Cal.4th 229, 231.) With
respect to overcoming this presumption, the prosecutor “must present clear and
convincing evidence,” as opposed to proof beyond a reasonable doubt, “that the minor
knows the wrongfulness of his conduct” as “demonstrated by [the child’s] age,
experience, conduct, and knowledge ....” (Id. at pp. 232, 234.) “While knowledge of
wrongfulness may not be inferred from the act alone, ‘ “the attendant circumstances of
the crime, such as its preparation, the particular method of its commission, and its
concealment” may be considered. [Citation.] Moreover, a minor’s “age is a basic and
important consideration [citation], and, as recognized by the common law, it is only
reasonable to expect that generally the older a child gets and the closer [he] approaches
the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts.” ’ ”
(People v. Cottone (2013) 57 Cal.4th 269, 280-281.)
Sufficient Evidence Supports the Juvenile Court’s Findings
We consider, first, appellant’s claim there was no clear and convincing evidence
he knew his conduct was wrong, as required by section 26. We do not agree. In taking
judicial notice of appellant’s criminal files, the juvenile court was in possession of
evidence showing appellant had a long history before the juvenile court, including a prior
wardship proceeding resulting from a past battery. While appellant argues there are no
express findings under section 26 found in these records, even if we accept this position
in light of the failure to provide these files in the record on appeal, such a finding is not
dispositive. Rather, the court must consider appellant’s experience, conduct and
knowledge in reaching its conclusion.
6
(In re Manuel L., supra, 7 Cal.4th at p. 232.) Past punishment for a similar crime is
relevant evidence in such an inquiry. Moreover, the trial court relied on more than
simply past punishment, recounting the evidence of appellant’s conduct, dress, and
apparent threat to another student as supporting evidence appellant knew his conduct was
wrongful. We conclude such facts are sufficient to constitute clear and convincing
evidence appellant knew the wrongfulness of his conduct.
We next consider whether sufficient evidence was presented to conclude appellant
committed a battery. Appellant argues that the lack of testimony from the victim and
bare assertions of fact from witnesses that only viewed a video demonstrate no
reasonable court could find appellant’s conduct was harmful or offensive. We do not
agree. As noted above, all that is required to commit a battery is the slightest degree of
harmful touching. (In re B.L., supra, 239 Cal.App.4th at pp. 1495-1496.) Two witnesses
testified that appellant struck another student, with one of those witnesses describing the
incident as a strike to the face. The testimony further demonstrated that the strike
occurred in a confrontational setting and was followed by a perceived threat of later
violence. We have no trouble concluding such evidence is sufficient for the trial court to
determine appellant engaged in a harmful or offensive touching, regardless of whether
the victim testifies to finding the conduct personally harmful or offensive.
DISPOSITION
The orders are affirmed.