	

Filed 3/19/14 In re Max R. CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re MAX R., a Person Coming Under the                              B247719
Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. VJ42618)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

MAX R.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Philip K.
Mautino, Judge. Affirmed.
         Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
                                            _____________________




	
	


             The juvenile court sustained a petition pursuant to Welfare and Institutions Code
section 6021 alleging Max R. had committed battery on school property, declared him a
ward of the court and ordered him home on probation. On appeal Max contends the
evidence was insufficient to support the battery finding and the provisions in the Welfare
and Institutions Code authorizing the deferred entry of judgment when an eligible minor
has committed a felony offense, but not a misdemeanor, violate equal protection. We
affirm.
                                  FACTUAL AND PROCEDURAL BACKGROUND
             Jose G., a high school classmate of Max’s, testified that he and Max had started
running to the locker room at the end of their physical education class when he turned
and saw Max swing at him with his fist. Max’s friends started laughing as Jose ran
around the corner of the building. About 15 seconds later Max pushed Jose against the
building. Jose’s face hit the wall, and he fell to the ground. Max apologized to Jose, but
he and his friends were laughing. After Jose was treated at a hospital, he was required to
wear a neck brace and experienced blurry vision and difficulty walking.
             At the close of the People’s evidence, the juvenile court denied Max’s motion to
dismiss the petition for insufficient evidence (§ 701.1) without comment.
             James Alonzo, a teacher at the high school, testified as a defense witness that Jose
had said he and Max were racing to the lockers when Max grabbed him, shoved his head
into a wall and repeatedly struck him until other students arrived. The parties stipulated
Jose had told Los Angeles County Deputy Sheriff Hoarsely that he had been running next
to the wall when the right side of his face suddenly hit the wall. Jose did not know if
Max had hit him. The parties further stipulated that Hoarsely observed no swelling,
scratches or redness on Jose’s face and that Jose never told the deputy he had been struck
several times by Max after hitting the wall.
             Max testified in his own defense and denied attempting to strike Jose or
intentionally pushing him against the wall. According to Max, he was running to the
																																																																																																																																																																																			
1
  	           Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.

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locker room because he was late. Jose believed Max, who was beside him at the time,
thought the two of them were racing. Because Jose wanted to win, he jumped in front of
Max, causing Max to lose his balance and trip. Max collided with Jose, and both of them
hit the wall. Max offered to help Jose stand up, but Jose did not want his assistance.
Max had trouble standing up, which prompted him to laugh.
                                                                         DISCUSSION
             1. Substantial Evidence Supports the Finding Max Willfully Used Force or
                Violence Against Jose
             A battery is any willful and unlawful use of force or violence upon the person of
    another. (Pen. Code, § 242.) “‘Any harmful or offensive touching constitutes an
    unlawful use of force or violence.’” (People v. Shockley (2013) 58 Cal.4th 400, 404.)
    Battery on school property includes the additional element the offense occurred on
    school property as defined in Penal Code section 243.2, subdivision (b)(3).
             Jose testified, after Max threw a punch at him, Max pushed him, slamming his
face against the wall—plainly a battery. Max’s challenge to the sufficiency of this
evidence is only that Jose’s version of the event repeatedly changed.2 The juvenile court,

																																																																																																																																																																																			
2
        The same standard governs our review of the sufficiency of evidence in juvenile
cases as in adult criminal cases: “[W]e review the whole record to determine whether
any rational trier of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
‘Conflicts and even testimony [that] 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. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Manibusan (2013) 58 Cal.4th 40,
87; see In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)

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the sole finder of fact, saw and heard Jose’s testimony as well as the testimony of defense
witnesses and found Jose credible. It is not our function to reweigh that evidence.
(People v. Albillar (2010) 51 Cal.4th 47, 60 [reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility].)
       To be sure, if a witness’s testimony is physically impossible or patently false on its
face, we are not obligated to accept it. (See People v. Thompson (2010) 49 Cal.4th 79,
124; People v. Elliott (2012) 53 Cal.4th 535, 585.) Jose’s account of the attack was
neither. Substantial evidence supports the juvenile court’s finding Max committed
battery as alleged.
       2. The Provisions for Deferred Entry of Judgment Are Not Unconstitutional
       The Welfare and Institutions Code provisions for deferred entry of judgment
(DEJ) ‘“[were] enacted as part of Proposition 21, The Gang Violence and Juvenile Crime
Prevention Act of 1998, in March 2000. The [sections provide] that in lieu of
jurisdictional and dispositional hearings, a minor may admit the allegations contained in a
section 602 petition and waive time for the pronouncement of judgment. Entry of
judgment is deferred. After the successful completion of a term of probation, on the
motion of the prosecution and with a positive recommendation from the probation
department, the juvenile court is required to dismiss the charges. The arrest upon which
judgment was deferred is deemed never to have occurred, and any records of the
[juvenile] court proceeding are sealed.”’ (In re Spencer S. (2009) 176 Cal.App.4th 1315,
1324 (Spencer S.); see §§ 791, subd. (a)(3), 793, subd. (c).)
       To come within the purview of the DEJ statutes, a minor must not previously have
been declared a ward of the court for commission of a felony offense and must be
charged with a crime not listed in section 707, subdivision (b) (serious or violent offenses
creating presumption of unfitness for juvenile jurisdiction), or Penal Code section
1203.06 (crimes rendering offender ineligible for probation). (§ 790, subd. (a).) An
eligible minor must also be found suitable for rehabilitation by the juvenile court, a
decision that is committed to the court’s discretion. (In re Sergio R. (2003) 106
Cal.App.4th 597, 606-607; see §	790, subd. (b); Cal. Rules of Court, rule 5.800(b)(2)

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[“[i]f the court determines that the child is eligible and suitable for deferred entry of
judgment, and would derive benefit from education, treatment, and rehabilitation efforts,
the court may grant deferred entry of judgment”].) The procedures for considering DEJ
reflect a “‘strong preference for rehabilitation of first-time nonviolent juvenile
offenders’” and limit the court’s power to deny DEJ in those cases in which the juvenile
court has found that “‘the minor would not benefit from education, treatment and
rehabilitation.’” (In re A.I. (2009) 176 Cal.App.4th 1426, 1434.)
             Max asserts, although he otherwise met the qualifying criteria, his exclusion from
eligibility for DEJ merely because the offense alleged was a misdemeanor, not a felony,
violated his right to equal protection.3
             The limitation of DEJ to juveniles who are subject to section 602 petitions alleging
felony offenses was thoroughly addressed in Spenser S., supra, 176 Cal.App.4th 1315.
There, as here, the minor was alleged to have committed misdemeanor offenses only. On
appeal he argued limiting the availability of DEJ to juveniles alleged to have committed
felony offenses violated his right to equal protection. (Id. at pp. 1320-1321.) The Court
of Appeal rejected this contention, explaining the voters’ stated purposes in adopting the
DEJ provisions included focusing greater resources on first-time nonviolent offenders
charged with felony offenses with the potential for rehabilitation, who would be required
to “‘appear in court, admit guilt for their offenses, and be held accountable, but also be
given a non-custodial opportunity to demonstrate through good conduct and compliance
with a court-monitored treatment and supervision program that the record of the
juvenile’s offense should justly be expunged.’ (Voter Information Guide, Primary Elec.
(Mar. 7, 2000) text of Prop. 21, § 2, subd. (j), p. 119.)” (Spencer S., supra,
176 Cal.App.4th at p. 1327.)


																																																																																																																																																																																			
3
       The People claim Max has forfeited this issue by failing to raise it in juvenile
court. However, this court has discretion to consider issues of constitutional significance
involving pure questions of law, presented for the first time on appeal. (In re Sheena K.
(2007) 40 Cal.4th 875, 887-888 & fn. 7; Spencer S., supra, 176 Cal.App.4th at p. 1323.)

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       The Spencer S. court also explained Proposition 21 had established more severe
penalties for juveniles whose offenses qualified as felonies. “[I]n the aftermath of
Proposition 21, informal probation pursuant to programs of supervision is generally
unauthorized for juvenile felons aged 14 and older. (§ 654.3, subd. (h).) A juvenile
felon’s complete criminal history is reported to the Department of Justice . . . . (§ 602.5.)
And, subject to age restrictions, a juvenile charged with a felony, who has already
suffered two prior felony findings, is presumed unfit for juvenile court jurisdiction, a
presumption that may only be overcome with evidence.” (Spencer S., supra,
176 Cal.App.4th at p. 1328.) The Spencer S. court concluded, “[T]he DEJ law’s
exclusion of juvenile misdemeanants from its benefits” was justified because of the
“severe consequences otherwise applicable” to juveniles alleged to have committed
felony offenses as well as the facts that juveniles who had committed misdemeanors were
less likely to clog the courts and were eligible for records sealing under several other
statutes. (Id. at pp. 1328-1329.) In sum, having assumed for purposes of analysis that
juvenile offenders who were alleged to have committed felony and misdemeanor offenses
are similarly situated with respect to the challenged provisions (id. at p. 1325), the
Spencer S. court held DEJ did not violate equal protection. We see no reason in this case
to depart from the analysis and conclusion of Spencer S. As explained in
Proposition 21’s uncodified findings and declarations, the DEJ law was intended to “form
part of a comprehensive juvenile justice reform package” that incorporated, among other
elements, “expanded informal juvenile court alternatives for low-level offenders . . .
which emphasize rehabilitative protocols over incarceration.” (Voter Information Guide,
Primary Elec. (Mar. 7, 2000), supra, at p. 119.) By ordering Max home on probation
after sustaining the allegation he had committed only a misdemeanor offense, the juvenile
court provided him the benefit of one of those alternatives. The constitutional guarantee
of equal protection requires nothing more.




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                                                                               DISPOSITION
             The juvenile court’s order is affirmed.




                                                                                               PERLUSS, P. J.
             We concur:



                                         ZELON, J.



                                         SEGAL, J.*




																																																																																																																																																																																			
*
  		          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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