Filed 5/18/18 In re V.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


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

A152015

(Contra Costa County
Super. Ct. No. J16-00482)

INTRODUCTION
The juvenile court sustained a Welfare and Institutions Code section 602 wardship petition alleging that V.B. possessed a BB gun on school grounds (count 1), brandished an imitation firearm at another (count 2), and failed to stop at the scene of an accident (count 3). V.B. contends substantial evidence is lacking for the brandishing and hit-and-run offenses. We agree and reverse the judgment as to those counts.
COMBINED STATEMENT OF THE CASE AND FACTS
In 2016, both S.C. and V.B. were students at Freedom High School in Oakley. On April 5, 2016, after the bell rang, S.C. got into her car and joined the line of cars leaving the school’s parking lot. Most people were taking turns to get out, but one car was trying to cut people off. S.C. did not think that was fair, so she “pushed up a little bit” by taking her foot off the brake and letting her car roll forward. But the car approaching her from the right did not stop; it just kept moving forward slowly, getting closer, as if the driver were trying to cut her off, and “ended up bumping [her] car.” Both cars were moving when they made contact. After contact, both cars stopped and S.C. started texting a friend. Her car was hit at an angle “and it just scraped a little bit.” She did not have the scrape repaired. S.C. knew the driver’s name was [V.B.] through friends, but did not know him personally.
S.C. tried to move up a little bit to avoid further scraping. She made eye contact with the driver and verbally told him to back up, while she also motioned for him to do so. His response was to tell her no. “And then he just kind of pulled out a gun that looked like a gun [¶] . . . [¶] hoping that maybe I would back up instead [¶] . . . [¶] for a quick second, pointed it at me, and put it back down.” She did not know how she felt at that moment, except that “[i]t was . . . kind of shocking that he pulled a gun out on school campus.”
Asked by the prosecutor if she was “scared at all or anything like that,” S.C. responded, “Uhm, I just didn’t really know how to feel at the moment.” In fact, she later told a police officer that she was not feeling scared when it happened because the gun she saw was put away so quickly. S.C. was also asked by the court, “So you weren’t afraid of the gun?” S.C. replied, “Uhm, at the moment it was kind of like my adrenaline came in, so I was not sure if it was, like, real or if it wasn’t, so I didn’t really know how I felt at the time.” S.C. did not see where V.B. put the gun because she was looking at her phone at that time while texting.
After that, she “tried going up a bit. So I just ended up going but then he backed up, and there was enough room, so he could try to pass me and go behind me.” The parking lot had “two exits and entrances.” The lane V.B. backed into was the lane for parents entering the parking lot to pick up their children. There was a car coming in, so he had to back out all the way. When S.C. exited the parking lot, he was still inside it. That was the last time she saw him that day.
S.C. described the scene and drew a picture of it, which was admitted into evidence. She testified there were cars both in front of and behind her in the line, but in the picture she drew, her car was at the head of the line of cars moving towards the exit. There was enough room between the cars in the line for someone to cut in. There was a lane and parked cars on her left. There were probably more than 50 cars in the parking lot. V. B. approached the right side of her car from behind. After the collision, there were no unsafe circumstances in terms of other cars in the parking lot that would have made it difficult for both of them to step out of their cars to communicate with each other.
Contra Costa County Sheriff’s Deputy Lance Wallace spoke with V.B. at his home later the same day. He located a BB gun replica of a SIG Sauer 1911 handgun in a backpack inside the trunk of V.B.’s car.
Eight months later, on December 21, 2016, the Contra Costa County District Attorney filed a juvenile wardship petition alleging that V.B., then age 17, had possessed a BB gun on school grounds, a felony; and had brandished an imitation firearm and failed to stop after an accident causing property damage, both misdemeanors. (Pen. Code, §§ 626.10, subd. (a), 417.4; Veh. Code, § 20002, subd. (a).) Following a contested jurisdictional hearing on April 26, 2017, the juvenile court sustained the petition in its entirety. At the disposition hearing on May 31, 2017, the court adjudged V.B., now age 18, a ward of the court with no termination date, placed him on probation, and ordered him to serve four weekends in juvenile hall. V.B. timely appeals, challenging the court’s findings on the two misdemeanor counts only.
DISCUSSION
V.B. argues the evidence is insufficient to sustain the juvenile court’s findings that he violated Vehicle Code section 20002, subdivision (a) or Penal Code section 417.4. The due process clause of the Fourteenth Amendment to the federal constitution guarantees that no person shall be convicted of a criminal offense except upon proof sufficient to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. (Jackson v. Virginia (1979) 443 U.S. 307, 316.) In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia, at pp. 318–319.) We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Johnson, at p. 576.) Evidence is substantial if it “ ‘ “reasonably inspires confidence” ’ ” (People v. Marshall (1977) 15 Cal.4th 1, 34) and is “credible, and of solid value” (id. at p. 31). As an appellate court, we “must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) This standard applies to juvenile delinquency adjudications. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
The Evidence Is Insufficient to Support the Penal Code section 417.4 Finding.
V.B. argues the evidence supporting the section 417.4 finding is insufficient because the prosecution did not prove S.C. subjectively or objectively experienced fear or apprehension of bodily harm upon seeing the imitation gun flashed at her by V.B. The Attorney General concedes that “[S.C.] testified that she was not afraid and did not expect any violence.” Indeed, S.C. was asked three times, once by a police officer and twice in court, whether she experienced fear and she would not say she did. In fact, her testimony suggests that upon glimpsing what looked like a gun “for . . . a quick second,” she felt a moment of adrenaline and wondered if it was a real gun, before going back to texting her friend. However, the Attorney General maintains subjective fear or apprehension of bodily harm is not an element of the offense because the statute requires only that a hypothetical reasonable person experience fear or apprehension.
Section 417.4 provides in relevant part: “Every person who, except in self-defense, draws or exhibits an imitation firearm . . . in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a misdemeanor punishable by imprisonment in a county jail for a term of not less than 30 days.” Only one published case, In re Michael D. (2002) 100 Cal.App.4th 115 (Michael D.), has construed the phrase “draws or exhibits an imitation firearm in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm.” (Italics added.) In Michael D., a school employee observed through a window in her office one of three teenagers on the playground pointing what appeared to be a handgun at a smaller boy; the boy cowered as if he were pleading not to be shot. (Michael D., at p. 119.) The employee “dropped to the ground, exclaimed ‘they have a gun,’ moved away from the window, and immediately took steps to alert the teachers, the principal, and the police of the ‘unsafe situation.’ ” She and others in charge then initiated a school lockdown. (Ibid.)
The Michael D. court found the phrase italicized above ambiguous with respect to who must experience fear or apprehension, because “[u]nder one interpretation, the statute could apply to those situations where the perpetrator draws or exhibits an imitation firearm against another person in a threatening manner and this display causes the person against whom the imitation firearm is drawn or exhibited to experience reasonable apprehension or fear of bodily harm. Alternatively, the phrase could apply to situations in which the perpetrator displays or exhibits an imitation firearm against another with the result that any reasonable person witnessing the event, even a reasonable bystander, experiences apprehension or fear of bodily harm.” (Michael D., supra, 100 Cal.App.4th at pp. 120–121; italics added.) But the Michael D. court had no doubt the statute required that somebody must reasonably experience fear or apprehension of bodily harm. The court held that, in contrast to section 417, subdivision (a)(2), which proscribes publicly brandishing an actual firearm in the presence of another even if that person had no knowledge of the perpetrator’s action (Michael D., at p. 124), section 417.4 “proscribes drawing or exhibiting an imitation firearm ‘against another,’ with the additional requirement that it cause a reasonable person to experience fear or apprehension of bodily harm.” (Michael D., at p. 124.) Section 417.4 requires “that a person not only know about the perpetrator’s actions but also that the person have a specific reaction.” (Michael D., at p. 124.) Thus, someone must be placed in reasonable fear as a result of the defendant’s conduct, although it need not be the person against whom the imitation firearm was drawn or exhibited. (Id. at pp. 120–123.) As interpreted in Michael D., the term “reasonable person,” as used in section 417.4 “refers to anyone who witnesses the actions of the perpetrator, not just to the person against whom the device is drawn or exhibited.” (Michael D., at p. 123.) The court concluded that the term “reasonable person” included the school employee who witnessed the brandishing incident from afar. (Id. at p. 126.)
It is clear from the Michael D. court’s factual summary that the school employee who witnessed the incident subjectively felt apprehension or fear of bodily harm, or she would not have responded the way she did. Thus, the Michael D. court did not have to decide whether the phrase “reasonable person” denotes a purely objective standard, or a mixed objective and subjective standard. Nevertheless, as the Attorney General correctly recognizes, the underlying premise of the court’s analysis is that the elements of section 417.4 include “some person’s knowledge of, and a reaction to, the perpetrator’s action.” (Michael D., supra, 100 Cal.App.4th at p. 124, italics added.)
The Attorney General characterizes this premise as “dicta” and urges us to reject it. Reviewing the language and history of section 417, subdivision (a)(2), he argues, much as the minor did in Michael D., that we should interpret section 417.4 “in pari materia” with section 417, subdivision (a)(2) and find that merely brandishing an imitation firearm in the presence of another is enough to impose criminal liability; the actual person at whom the fake gun is brandished need not even be aware of it. (People v. McKinzie (1986) 179 Cal.App.3d 789, 794; People v. Sanders (1995) 11 Cal.4th 475, 542.) We decline to do so. The Michael D. court reviewed the statutory language and the legislative history of section 417.4 and of related section 417, subdivision (a)(2). (Michael D., supra, 100 Cal.App.4th at pp. 120–124.) We find Michael D.’s analysis of the two statutes the more persuasive.
The Attorney General also argues analogies to section 422, proscribing criminal threats, and the objective standard for justifiable homicide, to further his argument that when the term “reasonable person” is used, it means a purely objective standard applies. However, in our view, those analogies support the view that section 417.4 prescribes use of a mixed subjective and objective standard. Section 422 proscribes the willful making of a criminal threat which is specifically intended “to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat . . . [that] causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” The statute has been interpreted to encompass both a subjective element—that the threat actually caused the person threatened to experience fear—and an objective element—that the threatened fear was reasonable under the circumstances. (In re George T. (2004) 33 Cal.4th 620, 630.) Similarly, for self-defense to exonerate a person completely, the defendant must actually believe in the need to defend, and the belief must also be objectively reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082–1083.) We also note both subjectively felt heat of passion and objectively reasonable provocation are needed to negate malice and reduce a murder to manslaughter. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.) We are persuaded the Michael D. court correctly concluded the Legislature intended that for a violation of section 417.4 to occur, the defendant’s conduct must cause some witness to subjectively experience an objectively reasonable fear or apprehension of bodily harm.
In the case before us, the element of subjectively experienced fear or apprehension was not established because S.C. could not or would not testify that she was afraid or apprehensive of bodily harm at the time. The record also fails to establish that a reasonable person in S.C.’s position would have experienced fear of bodily harm under the circumstances here presented. She was in her school’s parking lot, surrounded by other schoolmates in their cars, when V.B., a fellow student she knew of through her friends, obnoxiously bumped her car while trying to maneuver his car in front of hers to get out of the parking lot and, when she told him to back off, fleetingly brandished at her something she was not sure was a real gun, before backing off. He almost immediately removed the fake gun from view, but S.C. did not see where he put it, because she had gone back to texting her friend. No other bystander or observer testified to the incident. Thus, no evidence was presented from which the trier of fact could draw an inference of reasonable fear or apprehension of bodily harm. “The reasonable person standard . . . does not permit the trier of fact to substitute his or her own subjective view for the objective, reasonable person.” (Center for Biological Diversity v. Fish & Game Com. (2008) 166 Cal.App.4th 597, 610, fn. 13.) Substantial evidence does not support the court’s finding of a violation of section 417.4.
The Evidence Is Insufficient to Support the Vehicle Code Section 20002 Finding.
V.B. contends the evidence supporting the hit-and-run finding is insufficient because the prosecution failed to prove he willfully failed to stop his car “at the nearest location that [would] not impede traffic or otherwise jeopardize the safety of other motorists.” (Veh. Code, § 20002, subd. (a).) There is merit to this contention.
It is often stated that “[t]he essential elements of a violation of [Vehicle Code] section 20002, subdivision (a) are that the defendant: (1) knew he or she was involved in an accident; (2) knew damage resulted from the accident; and (3) knowingly and willfully left the scene of the accident (4) without giving the required information to the other driver(s).” (People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10, citing People v. Crouch (1980) 108 Cal.App.3d Supp. 14, 21.) This was certainly true when Crouch and Carbajal were decided. Then, Vehicle Code section 20002, subdivision (a) simply commanded the driver of any vehicle involved in an accident to “immediately stop the vehicle at the scene of the accident.” (See, e.g., Crouch, at p. 16, fn. 1; Stats. 1992, ch. 621, § 3, p. 2756 (Assem. Bill No. 2517 (1991-1992 Reg. Sess.).) However, in 1999, Vehicle Code section 20002, subdivision (a) was amended to read: “The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, may move the vehicle, if possible, off the main lanes of the highway to a safe location within the immediate vicinity of the accident unless that action would create a traffic hazard or cause an injury to any person.” (Stats. 1999, ch. 421, § 1, p. 2790 (Sen. Bill No. 681 (1999-2000 Reg. Sess.).) According to the Legislative Counsel’s Digest, “Existing law require[d] the driver of any vehicle involved in an accident resulting in damage to any property, including vehicles, to immediately stop the vehicle at the scene of the accident. [¶] This bill would recast that provision to instead allow a driver involved in an accident resulting only in damage to any property to move the vehicle, if possible, off the main lanes of the highway to a safe location within the immediate vicinity of the accident unless that action would create a traffic hazard or cause injury to any person.”
In 2001, the statute was amended to read: “The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists.” (Stats. 2001, ch. 825, § 16, p. 6754 (Sen. Bill No. 290 (2001-2002 Reg. Sess.).) According to the Legislative Counsel’s Digest, “[u]nder existing law, the driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, is allowed to move the vehicle, if possible, off the main lanes of the highway to a safe location within the immediate vicinity of the accident unless that action would create a traffic hazard or cause an injury to any person. Existing law requires that driver to undertake certain notification actions. [¶] This bill would recast this provision to require the driver involved in the described accident to, instead, immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. The bill would also require the driver to immediately undertake the notification requirements.” (Italics added.) The current version of Vehicle Code section 20002, subdivision (a), which V.B. was found to have violated, retains the same language as the 2001 version of the statute. In our view, an essential element of the current statutory violation is not the failure to immediately stop the vehicle at the scene of the accident; it is the failure to immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. In other words, if immediately stopping at the scene of an accident would impede traffic or otherwise jeopardize the safety of other motorists, the driver is not required to immediately stop at the exact spot where the accident occurred. Furthermore, any dereliction of duty must be knowing and willful. (Carbajal, supra, 10 Cal.4th at p. 1123, fn. 10.)
The Attorney General does not argue otherwise. Instead he contends the evidence shows V.B. willfully failed to stop in the nearest safe, traffic-free location, because the accident occurred in a parking lot that “was emptying and likely had available spaces.” He further asserts V.B. drove “unimpeded to the front of the line of cars waiting to exit through an area that was available ‘if people want[ed] to park on the side’ ” and “[p]resumably, it would have been easy for [V.B.] to have reversed his car into that area and parked.” The record does not support the Attorney General’s assertions about the parking lot’s configuration, or his speculative presumption about ease of parking. The testimony was that, at the time, the parking lot probably had 50 cars in it, and that V.B.’s car was located in a lane intended for cars entering the parking lot. In fact, S.C. testified that V.B. had to back up to get out of the way of a car coming towards him. On this record, no reasonable trier of fact could conclude that V.B. could get out of his car at the scene of the accident or some nearby place in the parking lot to exchange information without impeding traffic. The prosecution’s evidence did not prove that essential element, or “aspect of an element,” of a violation of Vehicle Code section 20002, subdivision (a). (People v. Cummings (1993) 4 Cal.4th 1233, 1315, overruled on another point in People v. Merritt (2017) 2 Cal.5th 819, 831.) Therefore, the finding V.B. violated Vehicle Code section 20002, subdivision (a), is not supported by substantial evidence.
DISPOSITION
The judgment is reversed in part. The jurisdictional order, with respect to counts 2 and 3 only, and the dispositional order, are vacated. The matter is remanded with instructions to dismiss counts 2 and 3 and hold a new disposition hearing with respect to count 1.

_________________________
Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.