Filed 8/31/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


In re B.L., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
        Plaintiff and Respondent,                A144366
v.
B.L.,                                            (Contra Costa County
                                                 Super. Ct. No. J1400597)
        Defendant and Appellant.


        This is an appeal from the juvenile court of Contra Costa County in which B.L.
(appellant or minor) had wardship declared after the court sustained two counts of
violations of Penal Code sections 242 and 243.6. We have reviewed the proceedings and
sustain each finding by the trial court.
                              STATEMENT OF THE CASE
        On June 10, 2014, the district attorney of Contra Costa County filed an original
wardship petition alleging appellant, age 15, committed two counts of misdemeanor
battery on school employees (Pen. Code, §§ 242, 243.6). On January 27, 2015, following
a contested hearing in the juvenile court, the allegations were each sustained.
        On February 10, 2015, appellant was deemed a ward of the court and placed on
probation at the home of her mother, with 60 days of home supervision that could be
terminated after 30 days, depending on appellant’s conduct.
        On February 11, 2015, appellant filed a timely appeal.
                                  STATEMENT OF FACTS
1.     Prosecution Case
       Harry Campbell was a physical education instructor at John F. Kennedy High
School in Richmond. On May 8, 2014, he was teaching at the school. During the eighth
period, appellant, who was a student at the school, was in the physical education class of
Wendolyn Eaglin.
       The two classes of Campbell and Eaglin were in session on the blacktop of the
school. At one point, appellant advised both Campbell and Eaglin her mother was
waiting for her outside the school property, wanting to take her home. Appellant needed
one of the teachers to unlock the school gates. Campbell advised appellant no instructor
could give her early release, since the administration had not told them to do so.
Appellant made a cell phone call and then told the teachers her brother was outside
waiting for her and that they should open the gate. Campbell noticed appellant was
becoming agitated and raising her voice. Campbell pointed out appellant’s inconsistent
remarks about who was picking her up, to which the minor replied: “Open the goddamn
gate. I’m tired of you bald-headed, black-ass nigger or bitch, either one.” Campbell
disliked the remark, and said, “Your mother. Sorry, mom.” With this response, appellant
stated, “Oh really? Oh really? I’ll beat your ass, bitch.” Appellant had a Frisbee in her
hand and struck Campbell with the object. As Campbell raised his arm to deflect the
Frisbee, appellant punched Campbell in the face with her fist. She then kicked Campbell
in the groin. Another male student tackled Campbell and forced him into the fence.
       Eaglin approached the scene with her walkie-talkie operational; she wanted the
staff to hear the commotion created by appellant in the yard. She hoped this would
generate assistance. Appellant then slapped the device from Eaglin’s hand, causing it to
fall out of the teacher’s hand.
       Teacher Michael Fish observed this incident in the yard. He worked with
emotionally challenged students at Kennedy. He saw Eaglin approach with the walkie-

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talkie in her hand. Appellant called Eaglin a “black bitch” and slapped the radio out of
the teacher’s hand. Eaglin had said nothing provocative to appellant before this.
2.     Defense Case
       Christopher V., age 16, was a student at Kennedy High School. He had known
appellant since the seventh grade. He was with her in the yard when the incident
happened. He recalled appellant became very upset when the teachers would not open
the gate to allow her to leave the school property. Appellant used racial slurs and
threatened the teachers. He recalled that Campbell came forward and made a remark
about appellant’s mother, which intensified the incident. Christopher believed Campbell
struck appellant first, and that she then slapped him. Christopher recalled Campbell
holding on to appellant and another student attempting to separate the two.
       Christopher recalled Eaglin walking up to appellant with her walkie-talkie four to
five inches from the minor’s face. He saw appellant knock the device from Eaglin’s
hand, and it fell to the ground. Christopher did not believe witness Fish was on the
campus the day of the incident.
       Appellant testified she received a call from her brother advising her he was in the
area of the school and was willing to pick her up. Otherwise, appellant would have had
her mother come after school ended.
       Appellant became upset when Campbell pointed out the inconsistencies in her
remarks about who was picking her up. Her details regarding the Campbell matter are
not really at issue in the appeal. Suffice it to say, the appellant’s version is different from
that of Campbell.
       Regarding the conduct of Eaglin, appellant recalled the teacher was holding the
walkie-talkie very close to appellant’s face, close to her lips. Appellant “smacked it out
of [Eaglin’s] hand.” Appellant believed she did not touch the person of Eaglin, only the
device held by the teacher.



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3.     Jurisdictional Findings
       At the end of testimony, the prosecutor claimed a battery was committed against
Eaglin when the walkie-talkie was knocked out of the teacher’s hand. It was “connected”
to her person at the time. He also pointed out appellant admitted knocking the device
held by the teacher. Defense counsel argued there was no touching of Eaglin’s person,
only the walkie-talkie. Hence there was no battery of the person. The trial court found
the appellant’s testimony lacked credibility. On the Eaglin battery charge, the court
stated: “And I find the battery involving Ms. Eaglin was simply a response of the minor
being out of control and slapping the walkie-talkie out of the hand of Ms. Eaglin. [¶] I
disagree with [defense] counsel’s rendition of the law. The minor either struck the hand
and the walkie-talkie or struck the walkie-talkie with such force applied to the walkie-
talkie that force was applied to the hand of the victim.”
                                        DISCUSSION
       Appropriately, there is no dispute regarding the battery by appellant on Campbell.
He was punched in the face and kicked in the groin while on duty as a physical education
teacher at Kennedy High School. The sufficiency of the evidence is not challenged on
this charge here.
       Regarding the battery on Eaglin, we find no dispute that the teacher was on duty at
the time of the yard incident. Indeed, she was the instructor in appellant’s physical
education class on the day of the offense. Following sound principles regarding the law
of gravity, we also know Eaglin was holding a walkie-talkie at the time appellant
“knocked” it to the ground. Without some degree of force, the item would not have
fallen to the ground. At the time, it was being used by Eaglin to alert yard supervisors of
a disturbance in the class. It fell, as the trial court found, after the agitated appellant
struck the device held by Eaglin. Without the delivery of such physical force by
appellant, under these facts, the walkie-talkie would not have been released by the



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teacher. This was not simply an incident of an attempt to touch the person of Ms. Eaglin.
Instead appellant actually knocked, i.e., touched, an object held by the teacher.
       Our review of California case law on the touching necessary for criminal battery
discloses this is a matter of first impression. No case has held that contact by a defendant
with an object held by another is a touching of the person herself. Nevertheless, we
conclude the trial court correctly sustained the charges arising from appellant’s contact
with Ms. Eaglin. We agree with the court that the minor was seriously out of control,
having already punched and kicked Mr. Campbell, factual behavior not challenged in this
appeal. Ms. Eaglin happened to be within the circle of appellant’s rage.
       Battery is a general intent offense. (People v. Lara (1996) 44 Cal.App.4th 102,
107.) “A battery is any willful and unlawful use of force or violence upon the person of
another.” (Pen. Code, § 242.) The slightest degree of touching is sufficient. (People v.
Myers (1998) 61 Cal.App.4th 328, 335.) “ ‘Any harmful or offensive touching
constitutes an unlawful use of force or violence’ under this statute. [Citations.] ‘It has
long been established 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 a mark.’ ” (People v. Shockley (2013)
58 Cal.4th 400, 404.)
       In this instance, appellant admitted she knocked the transmitter out of the
instructor’s hand. In commenting on the intentional tort of battery, Prosser observes,
“[I]f all other requisites of a battery against the plaintiff are satisfied, contact with the
plaintiff’s clothing, or with a cane, a paper, or any other object held in the plaintiff’s
hand, will be sufficient . . . . The interest in the integrity of the person includes all those
things which are in contact or connected with the person.” (Prosser & Keeton, Torts
(5th Ed. 1984) § 9, pp. 39–40, italics added, fns. omitted.) There is no requirement of
direct unlawful contact with the person of the victim in a tort context.



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       This assessment of the common law reported by Professor Prosser has been
applied to the criminal offense of battery by other commentators. (See 2 Wharton
(15th Ed. 2014 supp.) Criminal Law, §195, pp. 357–363; LaFave (2d ed. 2003)
Substantive Criminal Law, §16.2, pp. 552–564.) Case law from other jurisdictions
likewise supports the view the elements of civil and criminal battery are essentially
identical. “[T]he willful use of force or the intentional striking of another person which is
made criminal by the [Idaho] statute . . . need not be committed directly against the
victim; it may be committed against anything intimately connected with the person of the
victim.” (State v. Townsend (1993) 124 Idaho 881, 885 [865 P.2d 972, 996].) Citing
numerous cases from the tort law of battery, the court in State v. Ortega (1992) 113 N.M.
437, 440 [827 P.2d 152, 155], determined grabbing a flashlight from a police officer’s
hand was adequate proof of battery on a police officer. “Criminal law commentators also
suggest that physical contact between the defendant and the victim is not required. . . . In
addition, case law from other jurisdictions supports the proposition that there need not be
direct touching of the victim’s person in order for a battery to occur. Touching
something intimately connected with the victim’s body is sufficient.” (Ibid. & see cases
discussed.)
       Similar reasoning was used in Malczewski v. State (Fla.App. 1984) 444 So.2d
1096, 1099, where the Florida Court of Appeal upheld a conviction for aggravated
battery. The defendant stabbed a bag held by the victim, but made no contact with his
person. This was deemed within the scope of the Florida battery statute since the bag
was held by the victim. (Ibid.; see Stokes v. State (Ind. 1953) 115 N.E.2d 442, 443; State
v. Rembert (Me. 1995) 658 A.2d 656, 657–658.) In our view, based on the foregoing
persuasive authorities and the language of Penal Code section 242 as interpreted by our
Supreme Court, knocking a walkie-talkie transmitter out of the hand of the person
holding it is similarly within the proscriptive purview of the California statute.



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      Implicit in the trial court’s ruling is that all the elements of the offense were
established beyond a reasonable doubt. We therefore uphold the juvenile court’s finding
the minor committed a battery on a school worker within the meaning of Penal Code
sections 242 and 243.6.
                                     DISPOSITION
      The judgment is affirmed.




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                                _________________________
                                DONDERO, J.


We concur:


_________________________
MARGULIES, Acting P. J.


_________________________
BANKE, J.




A144366


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Trial Court:                               Contra Costa County Superior Court

Trial Judge:                               Hon. Thomas M. Maddock

Counsel for Defendant and Appellant        Kelly, Hockel & Klein, P.C.,
                                            Eileen M. Rice

Counsel for Plaintiff and Respondent       Kamala D. Harris, Attorney General,
                                           Gerald A. Engler, Chief Assistant Attorney
                                             General,
                                           Jeffrey M. Laurence, Acting Senior
                                             Assistant Attorney General,
                                           Laurence K. Sullivan and Donna M.
                                             Provenzano, Deputy Attorneys General.




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