Filed 11/27/18 In re A.C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re A.C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. A.C., Defendant and Appellant.	A153247 (Contra Costa County Super. Ct. No. J16-00903)

After a contested jurisdictional hearing, the juvenile court found true allegations in a juvenile wardship petition that defendant A.C. committed two counts of assault by force likely to produce great bodily injury, and one count of simple battery. Defendant asserts the prosecution failed to meet its burden of disproving her affirmative defense—defense of another—beyond a reasonable doubt. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. Procedural History

On March 20, 2017, the District Attorney of Contra Costa County filed an amended juvenile wardship petition (Welf. & Inst. Code, § 602) against defendant A.C. Counts one through four alleged assault by force likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(4)). Count five alleged simple battery (§§ 242, 243, subd. (a)). Count six alleged petty theft (§ 490.2). Count seven alleged attempted second degree robbery (§§ 211, 212.5, subd. (c), 664).

On September 21, 2017, the prosecutor amended the petition to add count eight, which alleged battery inflicting serious bodily injury (§§ 242, 243, subd. (d)).

On November 2, 2017, the prosecutor amended the petition to add count nine, which alleged attempted grand theft from the person of another. (§§ 487, subd. (c), 664).

2. The Prosecution’s Case

At about 4:45 a.m. on September 25, 2016, Alejandro Solis was working as a cashier at WinCo Foods when he saw a group of about four or five girls exiting the store. Two of the girls were holding snack food items from the store that they had not paid for. He told the assistant manager, Steven Lagos, that he had seen the girls leave with some merchandise. The store did not have a loss prevention officer working at that time of the morning.

Solis and Lagos followed the girls into the parking lot and told them to give them back the items. The girls had put some of the merchandise on the ground and some in a shopping cart. Solis began grabbing the merchandise that was in the cart. One of the girls, N.W., confronted him, whereupon Solis tried to pull the cart away from her. He let go of the cart and backed away after Lagos came to try to take the cart away from the girl. At that point, N.W. got aggressive and tried to hit Lagos. Lagos “put her on the ground.” Lagos asked Solis to go back inside the store to call the police and get more employees to assist.

When Solis came back out, N.W. was still on the ground and Lagos was on top of her with his knee on her back. The other girls were asking Lagos to get off of their friend. The girls seemed upset. At some point, one of the other girls—later identified as defendant A.C.—got into a vehicle and started driving it towards Lagos. It looked like the car was going to hit Lagos, so Solis moved a shopping cart in front of him. The car was going five to ten miles per hour. Solis could not recall if the vehicle ever got close to hitting him or any other employees. Solis was not worried about himself, but he was concerned that the car could hit Lagos. The car accelerated and approached them twice. Subsequently, the police came and detained N.W. and the vehicle.

Lagos testified that on the morning of the incident, he was at the front of the store when he saw a few young females walk out with some merchandise. N.W. was holding the items. Defendant was not holding any of the items. Defendant left the store first, with N.W. behind her. Solis told Lagos that the girls had not paid for the merchandise. They followed the girls outside and saw them walking towards a car. Lagos decided to get the car’s license plate. The girls put the products down on the ground next to the car and started walking off.

Solis went over to retrieve the items, but N.W. came back and placed the items in a shopping cart before he got there. N.W. then tried to forcefully push the cart into Solis. Lagos stepped in front of the cart. N.W. pushed the cart at him and he pushed it back towards her, causing her to fall. At that point, Lagos told the girls that they just needed to leave. Instead, N.W. started cursing, told him to “square up,” and started throwing punches at him. He threw her on the ground “a few times” and she ripped his shirt. The other girls got into the vehicle and backed out of the parking stall. They were able to guide N.W. into the car and then they drove off, toward the front of the store. It appeared they were leaving the scene. However, N.W. got out of the car and threw a punch at another employee named Robert DeWitt when DeWitt told her to leave. Lagos stepped in front of DeWitt and N.W. started throwing punches at him instead. After she hit him in the face, he threw her to the ground and held her down. Lagos told N.W., “I’ll let you go, just get out of here. [¶] . . . I loosened my grip and then she started throwing punches from the ground up in my face.” Some of the other girls ran up and kicked him to try to get him off of her.

Defendant swung a phone charger cord at Lagos and kicked him. She then got in the car and put it in reverse, causing some people who were gathered around to disperse. She exited the car and again tried to kick him off of N.W. She returned to the car and accelerated towards him twice, and both times he thought that she might have been trying to hit him or bump him off of N.W. with the car. At least one time he heard the tires screech when she stopped. Other people could have potentially been hit by the car during her approaches. DeWitt testified that during the first approach, her car came within two feet of his (DeWitt’s) body. Lagos testified that he relaxed when he realized that defendant would not hit him because he had her friend on the ground; he did not think she would run over her friend. Before the police arrived, defendant got out of the car again, grabbed the shopping cart that Solis had used to block her car, and rammed Lagos with it as he was holding N.W. down. He was injured when he put his hand out to block the cart.

III. Defendant’s Case

Defendant’s cousin E.M. testified. E.M. is also N.W’s cousin. She testified that she did not see what happened during the first incident between N.W. and Lagos because she was in the bathroom at that time. When the girls got in the car, N.W. was “emotional.” After N.W. exited the car to go back towards Lagos, E.M. saw Lagos slam her to the ground. He had his knee on her back and her hand behind her back pushing her arm towards her neck. He was a big man. N.W. was yelling for help. The man was on top of her and she was screaming, saying she could not breathe. E.M. was scared and was focused on N.W. She did not see defendant driving the car close to N.W. and the man. On cross-examination, E.M. admitted that she saw defendant drive towards the man, but stated that the car did not get close to him.

Defendant testified that she drove to the WinCo on the morning of the incident with N.W., E.M., and I.A.-D. They had gone there to use the restroom. After they left the store, N.W. put items into a shopping cart and pushed the cart away from herself, but not towards Lagos. Lagos then grabbed N.W. and was trying to throw her onto the ground, and eventually she did fall. N.W. got back up and all the girls entered the car. As they were leaving, N.W. opened the door and went back towards the store employees. Lagos grabbed N.W. and threw her down on the ground. N.W. did not hit him or touch him in any way before he threw her down. Defendant saw blood on N.W.’s face and on the parking lot asphalt. Lagos was sitting on her with his knee into her back and he was grabbing her arms behind her back. N.W. was screaming and telling defendant to get him off of her.

Defendant asked Lagos to get off of N.W. and she also asked the other employees if they could help. They said they could not help her. Lagos said he could not get off of N.W. until the police arrived. Defendant tried to push the shopping cart close to them to help get Lagos off, but the other employees stopped her. She then got into her car and went around the parking lot. Eventually, she approached N.W. and Lagos while she was driving the car. She testified that her thought was to try to help her cousin. She was scared and thought her cousin was in pain because she was crying, kicking her feet, and asking for help. She got the car to within four feet of the pair. She was not going fast, but she did not remember exactly how fast the car was traveling as she approached them. Once she stopped, she realized this strategy was not helping. She parked the car and got out of it, after which the police arrived.

Defendant testified that she did not know N.W. had stolen any items from the store. When they left the store, N.W. was behind her so defendant did not see if N.W. had any items in her hand.

4. Disposition

On September 28, 2017, the juvenile court sustained counts one and two, which pertained to defendant’s driving the car towards Lagos. The court dismissed counts three and four, which pertained to her having driven the car at DeWitt. The court found count eight, for inflicting serious bodily injury to Lagos, had not been proved but that count five (battery) was true.

On November 2, 2017, defendant entered a no contest plea to count nine, which was based on a different incident. Count seven was dismissed.

On November 30, 2017, the juvenile court sustained the violations as felonies. The court adjudicated her as an indefinite ward of the court and placed her on 90 days of home supervision.

DISCUSSION

1. Standard of Review

Whether defendant’s conduct constituted an act of defense of another, or an unlawful use of force, is a factual question. Therefore, the appropriate standard of review is sufficiency of the evidence. (People v. Colbert (1970) 6 Cal.App.3d 79, 85 (Colbert).) When assessing the sufficiency of the evidence, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hawkins (1995) 10 Cal.4th 920, 955.) This same standard applies in reviewing juvenile cases. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) The reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 759, 771–772 (Tran).) We do not reweigh evidence or determine if other inferences more favorable to the defendant could have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

2. The Sustained Offenses

1. Section 245, subdivision (a)(4) provides: “Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” “An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery.” (People v. Rocha (1971) 3 Cal.3d 893, 899.) Assault by means of force likely to produce great bodily injury does not require a specific intent to produce great bodily injury: “The only intent required is that required in case of any assault, . . . to attempt a battery or to intend an act the natural consequence of which is the application of force on the person of another.” (People v. Covino (1980) 100 Cal.App.3d 660, 666–667.)
2. “A battery is any willful and unlawful use of force or violence upon the person of another.” (§ 242.) “The word ‘violence’ has no real significance. ‘It has long been established, both in tort and criminal law, that “the least touching” may constitute 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 any mark.’ ” (People v. Mansfield (1988) 200 Cal.App.3d 82, 88–89.)

On appeal, defendant asserts the juvenile court erred in sustaining the charges where the prosecution failed to prove beyond a reasonable doubt that she was not acting in lawful defense of another — here, her cousin N.W.

3. Affirmative Defense of Defense of Others

The law of defense of others is correlated to the law of self-defense. (See, e.g., People v. Roe (1922) 189 Cal. 548, 562.) If a defendant shows sufficient evidence as to this defense, the People must prove the absence of this justification beyond a reasonable doubt. (People v. Lee (2005) 131 Cal.App.4th 1413, 1429.) To establish defense of another, three elements are required: (1) the defendant reasonably believed that someone else was in imminent danger of suffering bodily injury;[2] (2) the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and (3) the defendant used no more force than was reasonably necessary to defend against that danger. (See People v. McKee (1968) 265 Cal.App.2d 53, 61; CALCRIM No. 3470.) The defendant’s beliefs are viewed under a reasonable person standard. (People v. Romero (1999) 69 Cal.App.4th 846, 853.) “ ‘The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules . . . . First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury . . . .’ ” (People v. Hardin (2000) 85 Cal.App.4th 625, 629–630, italics added.)

Although defense of others is a defense to assault and battery, the circumstances and manner of conduct legitimately used to defend another will vary from case to case. The trier of fact must weigh the relevant facts in order to determine whether the defendant’s conduct was objectively reasonable. (People v. Johnson (1980) 26 Cal.3d 557, 578.) That determination must be supported by substantial evidence. (People v. Colbert, supra, 6 Cal.App.3d at p. 85.)

Defendant contends the People failed to disprove her defense. She also asserts the juvenile court failed to consider her defense in either its findings or its decision. Even if the court did not explicitly articulate the elements of her defense, this factor is not dispositive. Rather, we must presume the existence of every fact the trier reasonably could deduce from the evidence, including reasonable inferences based on the evidence. (Tran, supra, 47 Cal.App.4th at pp. 771–772.)

We initially observe that, while the parties did not argue this point below, Lagos’s actions towards N.W. were not without justification.[3] A private person has the authority to arrest someone for “a public offense committed or attempted in his presence.” (§ 837.) “An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and detention.” (§ 835.) A private person is entitled to use reasonable force to effect an arrest, and the person being arrested has “no right to ‘defend’ against a valid arrest.” (People v. Fosselman (1983) 33 Cal.3d 572, 579.) In any event, substantial evidence supports the juvenile court’s finding that defendant’s conduct in defense of N.W. went beyond what was reasonably necessary.

Here, substantial evidence supports the juvenile court’s implied finding that defendant unreasonably believed N.W. was facing imminent danger. While Lagos was using physical force against N.W., substantial evidence supports the conclusion that the force was not excessive under the circumstances. As the court observed, rather than being a victim, N.W. was the aggressor. The court noted that before there was any altercation, Lagos told the girls they just “needed to leave” The court also considered the unreasonableness of A.C.’s actions, especially after N.W. had exited from her place of safety in the car and returned to renew the altercation with Lagos. It is undisputed that N.W. was very belligerent in that she initiated the physical altercation and then returned to hit Lagos in the face after she had initially retreated to the vehicle. Although he was a large adult male, Lagos was not armed with a weapon and was not using more force than required to prevent N.W. from further attacking him. While the juvenile court judge remarked that Lagos was “very aggressive,” she found his use of force was not “excessive.” The evidence showed that when Lagos loosened his grip, N.W. again started throwing punches. And, the court observed N.W. was “out of control.”

Even assuming defendant had a reasonable belief as to the need to defend N.W. from imminent harm, the overwhelming evidence established, beyond a reasonable doubt, that defendant’s attempted use of force on Lagos was unreasonable and excessive under the circumstances.

Indeed, there was no evidence to support the belief that N.W. was facing death or serious bodily injury, and defendant does not argue to that effect on appeal. Yet, defendant twice aimed her car and accelerated towards Lagos, coming within a few feet of his body. As the juvenile court observed at the disposition hearing, even if she was bluffing and did not actually intend to hit him with the car, she came “alarmingly close” and placed both Lagos and N.W. in grave danger: “Cars are deadly weapons if used in a threatening way, and your thought to use this car to come within feet of someone, the brakes could not have worked, anything could have happened that you could have mowed people down in this car. That’s the gravity of what occurred.” In this case, the court’s oral statement of decision suggests it determined beyond a reasonable doubt that there was not an objective justification for defendant’s use of a moving car against Lagos.

So too with regard to the battery charge. The juvenile court found defendant “clearly committed a battery, there is no question. . . . [She] kicked him and struck [Lagos]. There is no question that a battery occurred.” The court went on to state at disposition: “This conduct that occurred that day escalated to a point that, honestly, I could not understand it. [¶] . . . [N.W.’s] behavior that day was horrible, as well as [A.C.’s].” Substantial evidence and the court’s implied finding supports the conclusion that defendant’s kicking and striking of Lagos was unreasonable and disproportionate under the circumstances.[4]

We also observe that the juvenile court’s comments suggest it did not improperly shift the burden of proof to defendant to prove she acted in defense of another. As discussed in the authorities above, even if some force or threat of force is justified under the particular circumstances of a case, a finder of fact is still required to determine whether the force used by the defendant was reasonable or excessive. The juvenile court judge impliedly acknowledged this defense when she stated, “[I]n your reasoning I think you genuinely thought you were trying to help your cousin out, but you did something that was so inherently dangerous, it was hard to believe.” Thus, the court fulfilled its role as fact finder when it concluded defendant was not justified in the level of force she brought to bear.

In arguing substantial evidence cannot support the juvenile court’s rejection of a defense-of-others theory, defendant essentially urges us to reweigh the evidence and draw our own inferences contrary to those made by the juvenile court. This we will not do. (People v. Alexander (2010) 49 Cal.4th 846, 917; People v. Klvana (1992) 11 Cal.App.4th 1679, 1703 [“it is inappropriate to ask an appellate court to reweigh the evidence and draw inferences which were rejected by the [finder of fact]”].)

In sum, substantial evidence supports the juvenile court’s conclusion that the force defendant summoned in defense of her cousin was clearly disproportionate and unreasonable.

DISPOSITION

The judgment is affirmed.