Filed 4/30/15 In re Christian N. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

In re CHRISTIAN N., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,                                                                                F069722

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD067598)

                   v.
                                                                                         OPINION
CHRISTIAN N.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory
Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Kane, Acting P.J., Poochigian, J. and Peña, J.
       On January 22, 2014, the Tulare County District Attorney’s Office filed a
wardship petition under section 602 of the Welfare and Institutions Code, alleging that
Christian N. committed assault by means of force likely to produce great bodily injury
(Pen. Code,1 § 245, subd. (a)(4); count 1) and battery with serious bodily injury (§ 243,
subd. (d); count 2), both felonies. Following a contested jurisdictional hearing, count 1
was dismissed as unproven, but Christian was found to have committed simple battery
(§ 242), a misdemeanor, as a lesser included offense of count 2. Christian was placed on
six months’ informal probation with various terms and conditions, including that he
perform 40 hours of community service. He was also ordered to pay a $100 restitution
fine. He now appeals, claiming insufficient evidence was presented to sustain the finding
he committed battery. We affirm.
                                         FACTS
       As of January 20, 2014, three of Gina S.’s sons — David, Jonathan, and Christian
— were living in her home.2 That afternoon, they all were supposed to go to specific
areas of the home to clean. Christian, who was in the kitchen, and Jonathan, who was
supposed to be in the living room, started arguing. Although David told them to stop, the
argument continued, and Christian and Jonathan ended up in the hallway, quarreling and
grappling with each other.
       David physically separated the two and got Jonathan to go into Jonathan’s
bedroom, and Christian to return to the kitchen. David then returned to his own room,


1      Further statutory references are to the Penal Code unless otherwise stated.
2      Due to the court’s policy of protective nondisclosure, we refer to all members of
the family by their first names. No disrespect is intended.
      All three boys were under age 18. David was the oldest and largest; Christian, the
youngest and smallest.
      A Welfare and Institutions Code section 602 petition was also filed against
Jonathan as a result of events, and his and Christian’s cases were heard jointly.


                                            2.
but Christian started verbally provoking or challenging him, trying to make him mad.
David kept telling Christian to knock it off, but when Christian continued, David came
out of his room and they started arguing face to face. Jonathan tried to pull Christian out
of the kitchen to get him to leave David alone.
       David pushed Christian down. Jonathan told them both to knock it off, then went
into Gina’s room and told her she needed to call the police. She and Jonathan went into
the kitchen and saw David holding Christian in the corner with his left arm across
Christian’s chest.3 Gina told them both to stop, and said if they did not, she would get in
the middle of it, and if she got in the middle, she was going to get hurt. Jonathan was
yelling at David to let go, that he was going to hurt Christian. It did not appear to Gina
that David was hurting Christian, but Christian was trying to push free with his body and
was continuing to verbally antagonize David. As Christian started bucking up, David
placed both hands on him and his hands moved closer to Christian’s neck.
       Jonathan, who was extremely protective of Christian, got scared and told David
something to the effect of, “you’re going to choke him.” Jonathan tried to pull David off,
but could not. Gina then saw Jonathan turn around. The next thing she knew, Jonathan
hit David two to three times on the back of the head with a can of bug spray that had been
on the counter. Everything happened within seconds.4



3       Although Gina recalled that David and Christian were both still standing, David
testified that he was standing up, but Christian was on the floor, struggling to get up as
David held him down. Jonathan recalled that David had Christian bent over the kitchen
counter.
4      According to Jonathan, after he told Gina to call the police, he heard Christian
yell. He then saw David with his forearm pressed against Christian’s neck. Jonathan
thought Christian was going to be hurt; his face was red and he was struggling to talk
because David was applying pressure to his throat. When Jonathan was unable to get
David to let go by verbal means, he turned around, grabbed the first thing he could find,
and hit David with it to try to break them up. Jonathan struck David two or three times,
then stopped because he saw David let go of Christian. Jonathan then jumped over

                                             3.
       David stopped and let go of Christian. David attempted to turn around and go
after Jonathan, but he went down. Gina saw Jonathan attempt to kick David.5 She saw
David grab his head and then saw blood on his fingers. Gina told Jonathan to stop, that
David was hurt and she could see blood.6
       Gina ran to grab a towel, and she yelled at Christian to call an ambulance.
Christian tried, but he could not find her phone. Both of them were panicking. Finally,
David used his own phone to call 911. He was transported to the hospital, where his
wound was closed with staples.
       Officer Yates responded to the home. Gina told him that after David fell to the
ground, Christian got up and started to kick him in the back of the head, but she was not
sure whether he made contact.7 Yates observed two thin lacerations, about two inches
long and similar in appearance, on the back of David’s head. He also observed the can
that was used in the incident. It had a circular bottom with a dull edge. The lacerations
were consistent with being struck with a can.
       At the conclusion of the hearing, the trial court observed that in order for the
People to prove the allegations in this case beyond a reasonable doubt, they had to prove


David, who had fallen to the floor, and ran, because he did not want David to come after
him.
5      Jonathan denied trying to kick David.
6      According to David, he was standing when he was struck twice on the back of his
head. He fell close to Christian. David was kicked twice, but did not know who kicked
him, because his eyes were closed and he could not see. He thought he might have
momentarily lost consciousness. He estimated 30 seconds or less elapsed between when
he was hit and when he was kicked. During that entire time, he was on the floor. He
then got up and started to chase after Jonathan, but stopped when he realized his head
was bleeding. By the time David got up, Christian was in the living room. David did not
see either of his brothers leave the kitchen.
7       Yates wrote in his report that Gina said Christian began to kick David in the back
of the head and also stomped on his head. Gina denied saying that. According to her,
after Jonathan hit David, Christian had no further physical contact with David.


                                             4.
beyond a reasonable doubt that self-defense and defense of others were not implicated.
The court found Jonathan reasonably believed there was imminent danger of David
causing harm to Christian, and used a reasonable amount of force to accomplish the goal
of stopping the fight. Accordingly, the court dismissed the petition as to Jonathan.
       The court found David’s testimony to be the most credible in terms of what
occurred. The court found it proven beyond a reasonable doubt that someone kicked
David in the head. Because Jonathan was fearful David was going to come after him, the
court determined Jonathan jumped over the melee and fled; therefore, it was reasonable
that Christian was the one who did the kicking. As a result, the court found the People
had proved, beyond a reasonable doubt, that Christian was guilty of a battery. Because
the court did not believe any of the kicks actually caused injury, it found Christian
committed simple battery in violation of section 242.
                                      DISCUSSION
       Christian contends the evidence was insufficient to prove beyond a reasonable
doubt he committed battery. He says that when the facts of this case are considered as a
whole, “it is inherently improbable and impossible of belief that [he] did not act in self-
defense.” We disagree.
       The legal principles, which apply equally to adult criminal trials and juvenile
proceedings involving criminal acts (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371; In
re Cheri T. (1999) 70 Cal.App.4th 1400, 1404), are settled. The test of sufficiency of the
evidence is whether, reviewing the whole record in the light most favorable to the
judgment below, substantial evidence is disclosed such that a reasonable trier of fact
could find the essential elements of the crime beyond a reasonable doubt. (People v.
Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307,
319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid
value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in
support of the judgment the existence of every fact the trier could reasonably deduce

                                             5.
from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court
must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise
the credibility of the witnesses, or resolve factual conflicts, as these are functions
reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367).
Furthermore, an appellate court can only reject evidence accepted by the trier of fact
when the evidence is inherently improbable and impossible of belief. (People v. Maxwell
(1979) 94 Cal.App.3d 562, 577.) “Where the circumstances support the trier of fact’s
finding of guilt, an appellate court cannot reverse merely because it believes the evidence
is reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza
(1995) 38 Cal.App.4th 1741, 1747.) Reversal on the ground of insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the finding].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
       “A battery is any willful and unlawful use of force or violence upon the person of
another.” (§ 242.) If done in a rude or angry way, a kick to the head clearly qualifies, as
do hands or a forearm to the neck. (See James v. State of California (2014) 229
Cal.App.4th 130, 137-138; People v. Myers (1998) 61 Cal.App.4th 328, 335.) No intent
to cause injury is required. (See People v. Lara (1996) 44 Cal.App.4th 102, 107.)
       “It follows that an offensive touching, although it inflicts no bodily harm, may
nonetheless constitute a battery, which the victim is privileged to resist .…” (People v.
Myers, supra, 61 Cal.App.4th at p. 335.) “‘To justify an act of self-defense for [a battery
charge], the defendant must have an honest and reasonable belief that bodily injury is
about to be inflicted on him. [Citation.]’ [Citation.]” (People v. Minifie (1996) 13
Cal.4th 1055, 1064, italics omitted.) For a right of self-defense to exist, “the defendant’s
fear must be of imminent harm. [Citation.]” (People v. Lopez (2011) 199 Cal.App.4th
1297, 1305.) “Fear of future harm — no matter how great the fear and no matter how
great the likelihood of the harm — will not suffice.… ‘“[T]he peril must appear to the

                                              6.
defendant as immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt with.”’” (In re
Christian S. (1994) 7 Cal.4th 768, 783.)
       The prosecution has the burden of proving, beyond a reasonable doubt, a
defendant did not act in self-defense. (People v. Saavedra (2007) 156 Cal.App.4th 561,
571.) The juvenile court was well aware of this requirement. The question for us, then,
is not whether the prosecution proved the absence of self-defense beyond a reasonable
doubt, but whether there is substantial evidence to support the trier of fact’s conclusion.
(See People v. Redmond (1969) 71 Cal.2d 745, 755.) We conclude there is. In light of
the evidence as a whole, the court reasonably inferred David was kicked in the head;
Jonathan had already fled, so the culprit could only have been Christian; and Christian
was not acting in lawful self-defense because David was on the floor, injured, and so did
not pose an immediate threat to Christian.
       Christian points out that even after being hit in the head, David was able to get up
and begin to chase after Jonathan. He argues there is nothing in California law that
requires him “to wait for his older, larger, and much more violent brother, to get up and
finish choking him to death.” Hyperbole aside, while California law may not have
required Christian to wait for David to get up and resume choking him, neither did it give
him free rein to kick David in the head when David was on the floor and was not
attempting to get up and resume choking him. (See, e.g., People v. Pinholster (1992) 1
Cal.4th 865, 966 [right of self-defense does not extend beyond time of real or apparent
danger], disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405,
459; People v. Clark (2011) 201 Cal.App.4th 235, 250 [defendant may use force only as
long as danger exists or reasonably appears to exist]; People v. Perez (1970) 12
Cal.App.3d 232, 236 [when danger has passed and attacker has withdrawn, “there can be
no justification for the use of further force”].)



                                               7.
                            DISPOSITION
The judgment is affirmed.




                                8.
