Filed 6/2/15 In re E.R. CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re E.R., a Person Coming Under the                                H041176
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. 3-14-JV40452)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

E.R.,

         Defendant and Appellant.



         The Santa Clara County District Attorney filed a petition (Welf. & Inst. Code,
§ 602, subd. (a)), which alleged that E.R., who was then 14 years old, committed a
misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)). Following a contested
jurisdictional hearing, the juvenile court sustained the petition. The juvenile court placed
the minor on probation on condition that, among other things, he serve 60 days on the
electronic monitoring program and participate in wraparound services. The minor filed a
timely notice of appeal. He contends that he received ineffective assistance of counsel.
We affirm the order.
                                    I. Statement of Facts
                                     A. Prosecution Case
       The present case involved an argument between the minor and his mother’s
boyfriend C.L. It ended when the minor threw a pot of beans at C.
       C. had been a family friend for 20 years. About five years before the incident, the
minor’s mother Maria I. divorced his father. Six to eight months after the divorce, Maria
and C. began living together. The minor, his sister Cassandra R., and C.’s niece April M.
also lived in the home.
       At about 4:00 p.m. on January 6, 2014, C. returned home. Maria was in the
kitchen, but the minor was not home. After C. ate dinner, he saw that the lock on his
bedroom door had been broken. Maria said that the lock was not broken when she had
left to pick up Cassandra from school at 3:45 p.m. They assumed that the minor had
broken the lock, because he had done so in the past.
       C. entered the bedroom and discovered that his iPod was missing. After he and
Maria concluded that the minor had taken it, C. called the police. When the officers
arrived, they told him that it was Maria’s responsibility and that C. also had the “right to
correct” the minor since he was the “owner of the home.” After the police left, C. and
Maria left the house at about 8:00 p.m. or 8:20 p.m.
       April was home after C. and Maria left. When the minor arrived home, he
knocked because he had never been given a key to the house. April called C., who gave
her permission to let the minor into the house. April told the minor that she would let
him in if he gave her C.’s iPod. The minor gave it to her.1
       C. and Maria returned at about 9:30 p.m. or 10:00 p.m. The minor was cooking
soup in the kitchen. C. and Maria entered the kitchen and sat at the table. Both C. and
Maria repeatedly asked the minor to sit down and talk with them about the iPod and the


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       April later gave the iPod to Maria, who gave it to C.

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damaged doorknob. The minor did not do so. C. became angry and said, “Sit down or
I’m going to throw away what you’re cooking.” When the minor continued to ignore
him, C. grabbed the pot and threw the soup into the sink. The minor then approached C.,
who pushed him away. After the minor approached C. again, C. pushed him and told him
to sit down. The minor turned around with closed fists, and C. asked, “What are you
going to do?” The minor replied, “Let’s go outside.” C. understood that the minor
wanted to fight, but C. did not want to fight him. C. said, “What you want to go outside?
We could do it in here.” The minor told C. that he was a “nobody, that he didn’t have
anything to say to” him. C. responded that the minor did not have a right to break the
doorknob and take his iPod.
         According to C., as the minor attempted to go to his own bedroom, Maria closed
the bedroom door and would not let him enter. However, Maria denied blocking the
minor’s path and testified that she remained sitting at the table. Maria also testified that
she was afraid that the minor had a weapon in his bedroom. She looked in his bedroom
twice during the incident, but did not find any weapons.
         When C. and Maria asked the minor why he wanted to go to his bedroom, he
responded that it was none of their business. C. then grabbed the minor to try to make
him sit down, but the minor started to pull away. C. grabbed him by the neck. As the
minor struggled to free himself, C. held his neck tighter. When the minor began to drop
to the floor, C. released his hold.
         After the minor stood up, C. pushed him toward C.’s bedroom. They argued in the
bedroom for five to 10 minutes. The minor told C. that he was a nobody and that he was
already dead. C. asked the minor why he was behaving the way that he was and told him
that if he did not like living in the house he should leave. C. pushed the minor several
times.
         C. eventually returned to the kitchen and the minor followed him. The minor
began to prepare a pot of beans on the stove. The pot was about eight inches tall with a

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“radius” of 10 inches. It weighed about seven or eight pounds. C. sat down at the table
and was about six feet away from the minor. At this point, C. had given up arguing with
the minor. The minor threw the pot of beans at C. It hit him on the ankle.
       Maria returned to the kitchen after the minor threw the pot. April was in her
bedroom when she heard pots banging. She went into the kitchen where she saw the
minor at the stove, C. and Maria sitting at the table, and a pot of beans on the floor near
C. Maria told April to call the police. While April was on the phone, she heard the
minor yelling at C. and challenging him to fight. A few minutes later, the minor went
outside and continued to challenge C. to fight. C. remained inside the house. When the
officers arrived about 10 to 15 minutes later, the minor was screaming that C. was a dead
man and that he should come out and fight. The officers told him to calm down. The
entire incident lasted about 40 or 45 minutes.
       C. was about five feet five inches tall and weighed 182 pounds. The minor was
three or four inches taller than C. and weighed 160 to 170 pounds at the time of the
hearing and five to 10 pounds less when the incident occurred. According to C., he hit
the minor in the face about a week or two before the incident.


                                       B. Defense Case
       The minor described previous incidents in which C. had hit him. In 2013, the
minor ran away from home and was staying at his aunt’s house. However, he and his
aunt returned to talk with Maria and C. about the family’s problems. C. dragged the
minor out of the car, pinned him against a tree, and hit his nose. The minor felt mad and
scared. He also felt “betrayed,” because his mother did not intervene.
       The next incident occurred in November or December 2013. The minor and C.
were arguing about whether the minor was going to remove clothing from the dryer. C.
threw a container of hair gel at the minor, who was lying on his bed. C. also hit him in
the stomach and on his upper lip. When the minor stood up, they pushed each other.

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       On January 6, 2014, the minor was making soup in the kitchen when C. entered.
He did not want to talk to C., so he ignored him. C. took the soup and made a motion as
if he was about to throw the soup at the minor. The minor stepped back, and C. threw the
soup into the sink. The minor attempted to walk past C., but C. pushed him. The minor
pushed him back and “then [they] just kept pushing and shoving.” The minor had one
hand in a fist and his other hand wrapped around it. When C. asked him whether he was
going to hit him, the minor said no.
       The minor tried to go to his room, but C. and his mother would not let him. C.
tried to get the minor to sit by putting his arm around the minor’s neck. As the minor
tried to move away, C. pressed with more force. The minor lost consciousness and fell to
the floor. He revived after about a minute and tried to go to his room, but C. pushed him
inside C.’s room. They continued to argue. When the minor tried to leave, C. pushed
him and hit him with a closed fist in the stomach. The minor returned to the kitchen. He
was upset and mad, because his mother did nothing.
       C. returned to the kitchen and yelled at the minor and called him names for five
minutes. The minor felt “bad, upset, and just like mad.” He threw the pot of beans, but
his “intention, like, was never to throw it at him or to hit him.” He threw the pot at a
space to the side of C. He did not know that the pot hit C. until the hearing. The minor
left the house. The minor was upset and yelling that C. was disrespecting him by hitting
him in front of his mother.


                                        II. Discussion
       The minor contends that his counsel rendered ineffective assistance, because he
did not present an accident defense.
       Trial counsel argued that the minor acted in self-defense. He argued that C.
pushed, hit, and choked the minor, and would not allow him to retreat, and that the minor
threw the pot to stop the violence. The minor points out, however, that he never testified

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that he was scared and that C. was sitting in his chair for at least five minutes when the
minor threw the pot. Moreover, the minor testified that he did not intend to hit C. and
that he threw the pot to a space to the side of him. Thus, he claims that he received
ineffective assistance of counsel, because counsel failed to argue the only viable defense.
       The Sixth Amendment to the United States Constitution and article I, section 15 of
the California Constitution guarantee a defendant the right to the effective assistance of
counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “To prevail on a claim of
ineffective assistance of counsel, a defendant must show both that counsel’s performance
was deficient and that the deficient performance prejudiced the defense. [Citations.]
Counsel’s performance was deficient if the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.] Prejudice
exists where there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. [Citation.]” (People v. Benavides (2005) 35
Cal.4th 69, 92-93.)
       “A battery is any willful and unlawful use of force or violence upon the person of
another.” (Pen. Code, § 242.) Battery is a general intent crime. (People v. Colantuono
(1994) 7 Cal.4th 206, 217.) Accident is a defense to a general intent crime. (People v.
Anderson (2011) 51 Cal.4th 989, 998.) This defense is set forth in Penal Code section
26: “All persons are capable of committing crimes except those belonging to the
following classes: [¶] . . . [¶] Five—Persons who committed the act or made the
omission charged through misfortune or by accident, when it appears that there was no
evil design, intention, or culpable negligence.”
       Even assuming that trial counsel’s performance was deficient because he did not
assert the defense of accident, the minor has failed to establish prejudice. Though the
minor acknowledges that it is assumed that the juvenile court correctly applied the law,
he argues that “the accident defense is often misunderstood to not apply to general intent
crimes” and that “[w]hen trial counsel did not argue the accident defense, the court likely

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concluded it was not an issue, assuming the court thought of the accident defense at all on
its own.” We find no merit to this argument.
       “The general rule is that a trial court is presumed to have been aware of and
followed the applicable law. [Citation.]” (People v. Mosley (1997) 53 Cal.App.4th 489,
496; Evid. Code, § 664.) This presumption includes that the trial court knew and applied
the correct statutory and case law (People v. Coddington (2000) 23 Cal.4th 529, 644,
overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069),
correctly instructs itself on the law (In re Julian R. (2009) 47 Cal.4th 487, 498-499), and
correctly applies the proper burden and standard of proof (People v. Castellano (1983)
140 Cal.App.3d 608, 612).
       Here, the juvenile court found that there was “sufficient evidence to show that the
battery was committed, that it was not committed in self-defense, and it was not
committed by accident.” The minor has not pointed to any evidence in the record that
would refute the presumption that the juvenile court correctly applied the law in the
present case. Accordingly, the minor has failed to establish ineffective assistance of
counsel.




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                               III.     Disposition
     The order is affirmed.




                                      _______________________________
                                      Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Márquez, J.




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