In re Joseph L.

Filed 3/15/07 In re Joseph L. CA1/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

I. INTRODUCTION

Appellant Joseph L. contends his conviction for battery on school property (Pen. Code,  243.2, subd. (a)),[1] a misdemeanor, should be reversed because he was acting in self-defense. We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 15, 2005, the Contra Costa District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging that appellant battered Jarod J. on school property in violation of section 243.2, subdivision (a). Appellant was 15 years old at the time.

A contested jurisdictional hearing was held on September 7 and October 5, 2005, at which the following evidence was adduced:

On January 21, 2005, Jarod J., a freshman at Liberty High School in Brentwood, was standing outside in the schools quad area during the lunch break. Jarod J. testified that appellant walked up to the group while Jarod J. was listening to his friends describe their air soft war game. The group was clustered together, and some horse playing, involving bumping shoulders and laughing, started. Jarod J. had his hands in his pockets because it was a fairly cold day. Appellant was standing to Jarod J.s right when the bumping started.

Jarod J. was bumped once, hard enough that he lost his balance. He stated that his left foot crossed over his right and as he planted his right foot, he took his hands out of his pockets and put them out to brace for a fall. He was moving toward the ground, with his head down at about waist height. His hands were out in front of himself, and one hand and one forearm came into contact with appellants abdominal area. Jarod J. did not intentionally touch appellant, and did not know whom he had fallen into when he made the contact.

Appellant then hit Jarod J. on the left side of his forehead with such force that [Jarod J.] became dazed and disoriented. The left side of his head began to throb. Jarod J. did not see who had hit him. He put his hands up to block any additional blows and regained his balance, at which point he was hit a second time, this time on the right side of his face. Jarod J. looked up and saw appellant standing in front of him with his fist clenched. Jarod J. squared off with appellant and asked appellant if he wanted to throw another punch to make it a fair fight. Jarod J. did not clench his fists. Appellant responded by calling Jarod J. a fucking pussy. Jarod J. testified that he asked appellant to throw another punch because he did not want his friends to think he was a coward; he was trying to save face. His head hurt, his eyes were watery and teary, his vision was blurry, and he was disoriented.

Jarod J. did not want his friends to see him in that condition, so he pulled on the hood from his sweatshirt and walked away from the group with his head down. Appellant did not chase him. Jarod J. did not go to the school office because he felt embarrassed. Instead, he walked off campus to a car wash where his parents would drop him off and pick him up from school. His father picked him up and took him to an urgent care facility across the street from the school.

Jarod J. acknowledged that he and appellant d[id] not really get along. Jarod J. testified that, in the past, he had not initiated a verbal or physical confrontation with Joseph L., but that Joseph L. had previously initiated a verbal confrontation with him.

John R. testified that he was standing with the group in the quad with Jarod J. and appellant when the incident occurred. Some people were horseplaying around, but he did not see appellant or Jarod J. engage in horseplay. He did not see Jarod J. get pushed and did not remember seeing Jarod J. fall. He remembered speaking with Brentwood Police Officer Dianna Gonsalves after the incident, but reviewing the police report did not refresh his recollection of any statements he made.

Drew G., a friend of appellants and Jarod J.s, was also there in the quad at lunchtime on January 21, 2005. He was standing with the group of people, including appellant, Jarod J., and John R., who were in a circle and started horsing around. He did not see Jarod J. or appellant horsing around. He testified that, because his back was turned, he also did not see Jarod J. fall, did not see him make contact with appellant, and did not see appellant hit Jarod J.

Garrett B. was in the group that included appellant, Jarod J., John R. and Drew G. He saw Jarod J. lose his balance and fall into or bump into appellant. Appellant reacted by hitting Jarod J. twice in the face. Garrett B. explained that after the first hit, when [appellant] was going for the second one, [Jarod J.] kind of tried to defend himself. [Jarod J.] put his arm up near his face area. He was trying to block it. Appellant then quickly hit Jarod J. a second time. Jarod J. dropped his backpack and got up in [appellants] face, told [appellant] to hit him again. Appellant did not do anything after that, and Jarod J. turned around and walked away. The entire incident lasted about 10 to 15 seconds.

Michael E. was also in the quad area with the group at lunchtime on the day in question. There was horseplay going on, but he did not remember who was involved in it. Michael E. did not see Jarod J. get pushed or fall, but he did see appellant punch Jarod J. once in the face. Jarod J. then walked away. Michael E. did not remember anyone saying anything.

On January 21, 2005, Officer Gonsalves was the school resource officer for Liberty High School. That afternoon, she received a dispatch call regarding a battery at the school. She spoke with Jarod J. at the urgent care center. He had red marks and several lumps on his face. Jarod J. told her that someone pushed him and he lost his balance. As he was falling, he removed his hands from his pockets to help break his fall or regain his balance. His hands made contact with appellants abdominal area, and appellant hit him several times in the face. Jarod J. said that he and appellant did not like each other. Officer Gonsalves took photos of Jarod J. and gathered information concerning witnesses.

The next day, Officer Gonsalves spoke with John R. He told Officer Gonsalves that a bunch of kids from the football team was in the quad area at lunchtime. They were horsing around by bumping into one another. At one point Jarod was pushed or nudged toward [appellant], and Jarod [ ] lost his balance. As Jarod J. was falling, part of his body or his hands came into contact with appellant. John R. said he saw Jarod J. try to break his fall with his hands, and then he heard appellant say, What are you doing? Appellant then punched Jarod J. in the face. John R. said appellant first punched Jarod J. with his left hand, and then immediately punched him again with his right hand. Jarod J. did not try to defend himself after appellant hit him.

Officer Gonsalves spoke with appellant after advising him of his Miranda rights. Appellant told the officer that a group of his friends from the freshman football team was in the quad area horsing around by bumping into one another. Appellant had noticed Jarod J. standing near him before the incident occurred. A short time later, appellant felt someone push or bump into him, but at first he did not know who it was. At the same time he was bumped, appellant said someone punched him in the stomach. Appellant reacted by punching in the direction from which he felt the push or nudge. Appellant then realized it was Jarod J. who pushed and punched him. Jarod J. then punched appellant an additional three or four times in the stomach. Appellant said he could not block the blows. Appellant then responded by punching Jarod J. in the face again. Appellant remembered that his first punch was with his right fist to the left side of Jarod J.s face. The second punch was his left fist to the right side of Jarod J.s forehead. Officer Gonsalves said appellant did not have an answer when she asked him to explain why he could not block the blows and how Jarod J. was able to punch him three or four times without a reaction from him. Appellant reported that he sustained no injuries. Appellant also reported that after hitting Jarod J. the second time, Jarod J. dropped his backpack to the ground and said, Hit me again. See what happens.

Appellant testified in his own defense. He stated that, several weeks before the incident, some of his friends told him that Jarod J. wanted to fight him. There was a wrestling room near the gymnasium where students would go and fight each other in the dark. Appellants friends told him that Jarod J. was waiting for him in that room.

On the day of the incident, appellant was in the quad talking to Garrett B. when Jarod J. hit him on the left side of his body on the back side of his hip. Initially, he did not know who had hit him. The blow kind of spun appellant around, and he then saw that it was Jarod J. Appellant believed it was Jarod J.s head or shoulder that made contact with appellant. Appellant believed he was being attacked, so he hit Jarod J. twice in the face. Jarod J. stumbled backwards and his face was kind of red. Jarod J. told appellant, Hit me again and see what happens. Appellant did not hit Jarod J. again and did not take any steps forward. He felt that the threat was over.

On cross-examination, appellant testified that he thought Jarod J. was trying to fight him, so he punched Jarod J. in the face two times with his right fist, aiming for his cheekbone area. Although Jarod J. was crouched, appellant saw his face. Appellant stated that when Jarod J. hit him from the back side, Jarod J. also hit him in the stomach with his arm or his fist. Appellant agreed that he told Officer Gonsalves that Jarod J. hit him three or four times, but stated that he did not tell her the blows were to his stomach. According to appellant, the officer was also incorrect when she testified that appellant said he hit Jarod J. with his left fist. Appellant denied calling Jarod J. a fucking pussy.

The parties stipulated that, on a date prior to the incident, Jarod J. was standing in line at a spaghetti dinner when he was shoved out of line by appellant. Jarod J. shoved him back, saying something like, Hey, dont do that to me . . . . Subsequently, and still prior to the incident, Jarod J. was sitting on the bleachers during a school assembly. Appellant sat right behind him and made derogatory comments about him, saying, Look at that fucking faggot in the leather jacket . . . . Jarod J. also said that appellant had been harassing some of his friends. Jarod J. told his friends that he wanted to fight appellant or something to that effect.

On October 5, 2005, at the conclusion of the hearing, the juvenile court sustained the allegations against appellant, finding that the charge had been proven beyond a reasonable doubt. The court also expressly found that appellant was not credible in his testimony and the evidence was clear that he did not act in self-defense. The court adjudged appellant a ward of the court and placed him on home supervision for 30 days. The court also imposed several conditions of probation, including a curfew, counseling, a stay away order, restitution of $25, and completion of 12 work details.

Appellant filed a timely notice of appeal on November 15, 2005.

III. DISCUSSION

Appellant contends there was insufficient evidence to support the juvenile courts finding that he committed battery on school grounds. He argues that, as a matter of law, his conduct was justified because he acted in self-defense.

Our review is governed by the same principles applicable to adult criminal appeals. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Our function is to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding. (Id. at p. 808.) Substantial evidence is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The test is not whether guilt is established beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)   Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it 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 upon which a determination depends.   (People v. Lewis (2001) 26 Cal.4th 334, 361; see also People v. Bolin (1998) 18 Cal.4th 297, 331 [reviewing court may not reverse a conviction for insufficiency of the evidence unless it appears  that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction ].)

Section 243.2 prohibits the commission of battery on school property. Conviction of this offense necessarily requires proof of battery, i.e., any willful and unlawful use of force or violence upon the person of another. ( 242.) A willful use of force upon another is an intentional application of force. [W]illfully refers to the intent with which an act is done and implies a purpose or willingness to commit the act . . . .  (People v. Wright (2002) 100 Cal.App.4th 703, 721, fn. 21, citing 7, subd. (1); see also People v. Colantuono (1994) 7 Cal.4th 206, 214-215 [ [t]he use of the described force is what counts, not the intent with which same is employed ].)

Substantial evidence supports the juvenile courts finding that appellant engaged in conduct that constituted a battery while on school property. Appellant admitted to intentionally punching Jarod J. twice in the face in the quad area of the school. Appellant does not dispute this, but rather contends that he was acting in self-defense.

The doctrine of [s]elf-defense negates culpability for assaultive crimes; a person who is defending himself from an attack is not acting unlawfully. (People v. Adrian (1982) 135 Cal.App.3d 335, 340, 342; People v. Myers (1998) 61 Cal.App.4th 328, 333;  692-694.) To justify an act of self-defense . . ., the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him.  The threat of bodily injury must be imminent [citation], and . . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.  (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) Reasonableness must be determined from the point of view of a reasonable person in the defendants position. (Id. at p. 1065, citing People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.)

Issues arising out of self-defense, including whether the circumstances would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of defense of himself, and whether the force used was excessive, are normally questions of fact for the trier of fact to resolve. (People v. Clark (1982) 130 Cal.App.3d 371, 378, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92.) [W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the [battery] was justified; however, where some of the evidence tends to show a situation in which [the use of force] may not be justified then the issue is a question of fact for the jury to determine. [Citation.] Where the evidence is uncontroverted, but reasonable persons could differ on whether the resort to force was justified or whether the force resorted to was excessive, then the issue is a question of fact for the trier of fact. (People v. Clark, supra, 130 Cal.App.3d at p. 379.)

Appellant contends the record shows, as a matter of law, that he acted in self-defense. We disagree. Although Jarod J. was the first one to make contact and there was evidence that Jarod J. previously had tried to start a fight with appellant, there also was evidence that appellant had harassed Jarod J. in the past. The animosity between the two boys could have motivated appellant to throw a couple of punches while Jarod J. was in a vulnerable position. Appellant hit Jarod J. after the accidental collision, when Jarod J.s head was still down and he was trying to regain his balance. In addition, appellant punched Jarod J. not once, but twice. From the evidence, the juvenile court reasonably could infer that appellant did not act in self-defense, but rather took advantage of an opportunity to hit someone he did not like. Moreover, appellants testimony at the hearing differed markedly from what Officer Gonsalves testified appellant told her after the incident, and the court was entitled to believe the evidence it found most credible. Substantial evidence supports the juvenile courts findings, and we will not disturb them.

For the first time at oral argument, counsel for appellant raised the issue of thetrial courts having bannedappellant from owning, possessing, or using a firearm until the age of 30, the penalty that appellant and his family found the most troubling because appellant and his father liked to go hunting together. At the dispositional hearing, and pursuant to section 12021, subdivision (e),[2] the juvenile court found this prohibition applicable because this was a battery case. Under the reasoning of In re David S. (2005) 133 Cal.App.4th 1160, this penalty was properly imposed.

IV. DISPOSITION

The judgment is affirmed.

In a petition for a writ of habeas corpus (A114684), which this court previously

ordered to be considered with the appeal, appellant contends his trial counsel provided ineffective assistance. We have reviewed the petition and hereby deny it.

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Haerle, J.

We concur:

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Kline, P. J.

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Lambden, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

[2] Section 12021, subdivision (e), provides, in pertinent part: Any person who (1) is alleged to have committed . . . any offense enumerated in paragraph (1) of subdivision (c) . . . , and (2) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed . . . any offense enumerated in paragraph (1) of subdivision (c) . . . , shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years. One of the offenses enumerated in section 12021, subdivision (c)(1), is section 242, generic battery.