Filed 10/3/17 In re E.S. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Following a bench trial, the juvenile court found the minor, E.S., had committed two acts of misdemeanor battery. The juvenile court placed the minor on informal probation and ordered her to serve 40 hours of community service.

On appeal, the minor contends the evidence was insufficient to support the court’s finding that she committed two acts of misdemeanor battery because there was insufficient evidence that she did not act in self-defense. We conclude the finding is supported by substantial evidence in the record. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a physical altercation that occurred between the minor, Tammy L. (Tammy), and Tammy’s daughter, F. L., on October 29, 2015. On March 10, 2016, the San Joaquin County District Attorney filed a petition under Welfare and Institutions Code[1] section 602, subdivision (a) against the minor, then 14 years old, alleging the minor had committed one count of misdemeanor battery on school grounds and one count of misdemeanor disturbing the peace.

On April 29, 2016, the district attorney filed an amended section 602 petition against the minor alleging a second count of misdemeanor battery on school grounds. On May 16, 2016, she denied all allegations.

On June 13 and 16, 2016, the juvenile court held a contested jurisdictional hearing. In the prosecution’s case, Tammy testified that on October 29, 2015, around 2:30 p.m., she received a call from F. L. asking to be picked up from school because several girls threatened her, and she was afraid to ride the bus home. When Tammy arrived at her daughter’s school, F. L. walked to the car, pointed to a group of teenage girls, and said, “Mom, that’s them right there.” Tammy exited her car and walked over to the school’s resource officer, James Pendergast. Tammy explained to Officer Pendergast that her daughter had been threatened for the past several months and that she had previously complained to school officials. She told him that the school, however, had done nothing about the bullying and had told Tammy that “they’re teenage girls, . . . they’ll get over it.” During this conversation between Tammy and Officer Pendergast, one of the teenage girls yelled out to F. L. that she was going to kick her butt. Despite witnessing the harassment himself and despite Tammy asking him to address the issue immediately, Officer Pendergast replied that he would “take care of it in the morning.”

Shortly thereafter, Tammy got back into her car with F. L. to drive home. As they were driving, F. L. again pointed out the group of girls that had been threatening her. The girls were walking on the sidewalk near the student parking lot back toward the school. There were four girls in the group, including the minor. Tammy pulled her car into the driveway of the student parking lot and stopped where the girls were walking. She got out of her car and over the top of her car asked the girls, “Is there a problem? Why don’t you tell me where you live and we’ll go talk to your parents and settle this.” F. L. remained in the front seat of her mother’s car. The group of girls responded with “all kinds of profanity.” The minor yelled, “You don’t need to know where I live. You don’t need to talk to my parents, you F[uck]ing bitch.” Rather than leaving, Tammy replied, “Well, we’re right here by the school. Let’s go up to the office and talk it out, get it straightened out. I want this over with. I’m tired of my daughter being afraid to come to school.” In response, the group of girls told Tammy that they were not going to go and were going to “beat [F. L.] up and there was nothing [she could] do.”

As the yelling continued, some of the girls reached their hands through the car window and began pulling on F. L. From Tammy’s angle, it was not clear whether the girls actually touched F. L. Throughout this altercation, the minor taunted F. L., yelling statements such as, “Why don’t you get out of the car so we can . . . beat your ass.” F. L. eventually stepped out of the car, put her hands up with her palms facing out, and said “I’m done, do what you want to do.” As she stepped out of the car, she did not advance toward the group of girls. The minor approached F. L. and punched her in the face with her right fist. F. L. kept her hands up around her head in a defensive posture and did not fight back. The minor then grabbed F. L. and threw her onto the road, causing F. L. to hit the back of her head on the pavement. The minor straddled F. L. and began punching her in the face and beating her “head into the cement.” The minor took a fistful of F. L.’s hair in each hand and used the hair as “handles” to lift F. L.’s head and pound it back into the ground. Rebecca Vickrey, a third-party witness, testified that the minor “[l]ift[ed] the head [and] push[ed] it back into the ground . . . [f]orcibly, repeatedly[,] and quickly.”

Tammy ran around the car to help her daughter as she yelled for the minor to stop. The minor continued punching F. L. Tammy attempted to pull the minor off of F. L. herself because the minor was “pounding [F. L.’s] head into the asphalt so bad, [she] thought [the minor] was gonna crack [F. L.’s] head.” Tammy did not know what part of the minor’s body she grabbed, but acknowledged it could have been her arm or neck. She remembered hearing the minor’s shirt rip. At this time, two of the minor’s friends were swearing and hitting the back of Tammy’s head. After pulling the minor off of F. L., Tammy let go of the minor, and the minor fell to the ground. No further words were exchanged between Tammy and the minor. Tammy did not approach or walk toward the minor. The minor then stood up, looked at Tammy, and punched her square in the nose. causing it to fracture. After the minor punched Tammy, Tammy helped F. L. into the car and said, “Let’s go, we’re gonna go back up to the office and take care of this.”

Two of the minor’s friends who witnessed the altercation testified. They did not deny that the minor punched F. L. and Tammy; however, they testified F. L. threw the first punch. Similar to the prosecution’s witnesses, minor’s friends testified that the minor told F. L. to “get out of the car and do something about it” and one witnessed the minor bang F. L.’s head on the cement multiple times.

At the conclusion of the hearing, the juvenile court found true that the minor committed two acts of misdemeanor battery (a lesser included offense of misdemeanor battery on school grounds). The court granted the prosecution’s request to dismiss the charge of misdemeanor disturbing the peace in the interest of justice.

On August 15, 2016, the juvenile court adjudged the minor a ward of the court and placed her on probation in the custody of her parents. As a condition of her probation, the court ordered the minor to complete 40 hours of community service, among other terms and conditions.

This timely appeal followed.

DISCUSSION

On appeal, the minor contends the juvenile court erred in sustaining the section 602 petition because “there was insufficient evidence presented at her jurisdictional hearing to prove beyond a reasonable doubt that [s]he did not act in lawful self-defense.” We disagree and affirm the judgment.

When evaluating the sufficiency of the evidence in a criminal case, the reviewing court must determine whether a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt by reviewing the whole record in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The standard of review in juvenile delinquency proceedings is the same as the standard in adult criminal trials. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) A judgment must be affirmed if the record discloses substantial evidence to support the verdict. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence that is “ ‘of ponderable legal significance . . . reasonable in nature, credible, and of solid value,’ ” such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) Although a reviewing court “must ensure the evidence is reasonable, credible, and of solid value,” it should not evaluate the credibility of the witnesses. (Ochoa, at p. 1206.) “t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.” ([i]Ibid.)

Self-defense is the only legal justification for battery. (People v. Mayes (1968) 262 Cal.App.2d 195, 198.) To justify a battery as an act of self-defense, the defendant “must have an honest and reasonable belief that bodily injury is about to be inflicted on him.” (People v. Minifie (1996) 13 Cal.4th 1055, 1064, italics omitted.) The amount of force used to defend must be reasonable under the circumstances. (Id. at p. 1065.) An initial aggressor may claim self-defense in two instances: when he or she uses nondeadly force and the victim responds with deadly force (People v. Hecker (1895) 109 Cal. 451, 464) or when he or she clearly renounces his or her initial physical attack through words or conduct (id. at p. 463).

The minor contends that “the prosecution did not prove beyond a reasonable doubt that [she] committed the crime alleged.” Specifically, she argues the standard of reasonable doubt was not met because the prosecution did not disprove self-defense. In support of this point, the minor claims she acted as “any reasonable 14-year-old girl under the same or similar circumstances” to “defend[] herself against th[e] perceived threat brought on and caused by the alleged victims.” She asserts that it was “not unreasonable to perceive an imminent threat of danger” when Tammy stopped her car and confronted her about bullying her daughter and that she had a right to defend herself against F. L. when F. L. exited her mother’s car.

The problem with the minor’s argument, however, is that the juvenile court found the testimony of Tammy, F. L., and the third-party witness, Vickrey, asserting that the minor was the aggressor from beginning to end, to be credible. The court observed the behavior and demeanor of each witness during the dispositional hearing. In issuing its final ruling, the court recounted the independent witness’s testimony and found it mirrored the prosecution’s case. As the minor herself notes, we must give deference to that credibility finding. It is not the role of the appellate court to put on a second trial or engage in credibility determinations.

The minor also argues that regardless of whether the court “accepts the testimony that [she] threw the first punch that hit F. L., it was not without reasonable justification for her to do so.” Viewing the evidence in the light most favorable to the judgment, the record does not support the conclusion that the minor was acting to defend herself. The evidence supports a reasonable conclusion that no reasonable person in the minor’s position would have felt the need to defend herself against F. L. or Tammy. Although there is some disagreement as to whether F. L. fought back, there is substantial evidence the minor threw the first punch and never retreated.

The minor argues that she was “under no duty to retreat” when F. L. exited her mother’s car because “F. L. posed a real threat when she exited the vehicle with her hands up.” The juvenile court, however, did not find F. L. was a threat and found the minor was the only assailant.

Accordingly, we conclude there was substantial evidence to support the juvenile court’s determination that the minor did not act in lawful self-defense.

DISPOSITION

The order is affirmed.

/s/

Robie, J.

We concur:

/s/

Nicholson, Acting P. J.

/s/

Hoch, J.