Filed 3/12/15 In re A.R. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re A.R., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E058924
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. J246600)
v.
                                                                         OPINION
A.R.,

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Barbara A.

Buchholz, Judge. Affirmed with directions.

         Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Sabrina

Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.


                                                             1
          The San Bernardino County District Attorney filed a Welfare and Institutions

Code section 602 petition alleging that defendant and appellant A.R. (minor) resisted a

peace officer (Pen. Code, § 148, subd. (a)(1)1, count 1) and committed battery with injury

on a peace officer (Pen. Code, § 243, subd. (c)(2), count 2). A juvenile court found both

allegations true. Minor was previously declared a ward of the court for another offense

and was placed on probation. Thus, the court continued him as a ward on probation, with

additional terms.

          On appeal, minor contends that the trial court erred in denying his motion to

dismiss under Welfare and Institutions Code section 701.1 as to counts 1 and 2. He

specifically argues that: (1) as to count 1, there was insufficient evidence that the officer

was lawfully performing her duties; (2) as to count 1, there was insufficient evidence that

he knew or reasonably should have known that the officer was a peace officer; and

(3) there was insufficient evidence to support the true finding in count 2 because he was

acting in self-defense. Both parties agree that the record should be modified to reflect

that the court’s true finding in count 2 was a violation of Penal Code section 243,

subdivision (b), not subdivision (c)(2). We direct the superior court to amend the minute

order and Juvenile Detention Disposition Report with regard to count 2. Otherwise, we

affirm.




          1   All further statutory references will be to the Penal Code, unless otherwise
noted.


                                                 2
                    FACTUAL AND PROCEDURAL BACKGROUND

       Officer Ernesto Hernandez was a campus security officer for Colony High School.

At the jurisdictional hearing in this matter, he testified that, on March 14, 2013, he

responded to a call for service at the high school nurse’s office in the early afternoon.

When he arrived at the nurse’s office, minor was sitting on a bed. The nurse and assistant

principal were standing in the office with him. Officer Hernandez asked minor if he

wanted to stay in the nurse’s office or go to the assistant principal’s office, where he was

supposed to receive discipline. Minor did not respond, but got up and started to walk out

of the nurse’s office. Officer Hernandez assumed minor was going to the assistant

principal’s office, but minor started walking the opposite direction. Officer Hernandez

called him to come back and go to the assistant principal’s office. Minor ignored him

and kept walking.

       Officer Maria Paredes was the school resource officer at Colony High School, and

her role was to protect the safety of the students and faculty. She received a call from the

dean’s office that same day, while she was on her lunch break. There was a male on

campus who was thought to be a non-student from Los Angeles visiting his girlfriend.

Officer Paredes was called because the school had past instances where people had come

onto the campus to fight other students or confront faculty members. She returned to

campus after receiving that call. Officer Paredes was dressed in her police uniform,

which had patches on both arms and a badge on the front identifying her as a police

officer. She walked through the front lobby and headed to the dean’s office. As she was



                                              3
walking toward the office, she saw minor. Officer Hernandez saw Officer Paredes about

15 feet away, flagged her down, and told her to stop minor because he was trying to leave

the school without permission. Officer Hernandez testified that he raised his left hand

and said, “He won’t stop. He’s trying to leave.” Officer Paredes testified that Officer

Hernandez motioned to her and said something to indicate that minor was the person she

was looking for.

       Officer Paredes turned around and saw minor going toward the doors in the front

lobby. Minor was on his phone. Officer Paredes was behind him and did not think he

would hear her, so she tugged on his “hoodie” to get his attention. Minor spun around

and began cussing at her. Officer Paredes saw minor’s face after he spun around. Minor

threw his arms up as he spun around, and Officer Paredes thought he was going to hit her.

By that time, Officer Hernandez was behind minor so he immediately grabbed both of

minor’s arms for a few seconds until minor broke loose. Officer Paredes pushed minor

against the door to get him away from her. Minor kept cussing and pushed her to try to

get away. Officer Paredes then pushed him against the wall. Minor asked why she was

touching him, and she told him he was being detained. Minor continued to fight, cuss,

and argue, and he and Officer Paredes fell down to the ground about three times. She

kept telling him to stop, but he would not listen. During the fight, Officer Paredes asked

Officer Hernandez to get her taser gun out of the holster and give it to her. The school

principal was there, so he gave it to her. Officer Paredes then decided to place handcuffs

on minor, so she asked the principal to take the handcuffs out of her utility belt. The



                                             4
principal did so and gave the handcuffs to Officer Hernandez, who placed them on minor.

As Officer Paredes conducted a patdown search for weapons, minor continued to be

combative by cussing, getting in her face, and yelling at her. Even though Officer

Paredes told him to stop, he ignored her request.

       On cross-examination, Officer Paredes testified that when the dean’s assistant

called her to come to the school to help with the possible trespasser, the assistant did not

give her a physical description of the trespasser. Officer Paredes also testified that,

before she tugged on minor’s hoodie from behind, she did not make eye contact with

him, and she did not verbally identify herself as a police officer or tell him to stop. She

expected him to stop and turn around to see who had tugged on his hoodie. Instead, he

turned around, yelling and cussing at her to “get [her] f---ing hands off [him].” Minor

asked why she was stopping him, and she just told him he was being detained, but did not

say why.

       At the close of the prosecution’s evidence, minor’s counsel moved to dismiss the

allegations in both counts, pursuant to Welfare and Institutions Code section 701.1. The

court heard extensive argument by counsel. The court asked for clarification on whether

the allegation in count 2, under section 243, was for battery with injury on a peace

officer. The court noted there was no evidence of injury to a peace officer presented.

The prosecutor stated that the offense was not titled correctly in the petition and that it

should have alleged that minor committed battery on a peace officer (§ 243, subd. (b)),




                                              5
not battery with injury on a peace officer (§ 243, subd. (c)(2)). The court then denied the

defense motion to dismiss.

       Defense counsel called minor to testify. He testified that he was trying to leave

campus on the day of the incident because he felt sick. Minor said he became angry

because the campus security officer came to the nurse’s office. Minor started cussing.

He was told to go to the dean of discipline’s office; however, he did not want to go there.

He just wanted to leave campus.

       Minor testified that he was on the phone with his mother when someone grabbed

him by his hoodie. At first he thought it was a friend or somebody he knew grabbing

him. However, he swung around and saw it was a police officer. Minor had his phone to

his cheek, and raised his left hand up, just above his shoulder. He tried to put his phone

in his pocket, and the officer grabbed his hands. Minor said he knew he was under arrest

for something he did not do. Then, the officer pushed him to the wall. Minor denied that

the officer gave him any commands. He also said that Officer Hernandez grabbed his

arm and put it behind his back. Officer Hernandez then put his arm around minor’s neck.

In response, minor ducked out of the hold and moved away. Minor tried to get away

from the officers. Officer Hernandez pushed minor toward Officer Paredes. Minor fell

on top of her, and the three of them fell on the ground.

       After hearing the testimony and closing arguments, the court found the allegations

in both counts 1 and 2 true.




                                             6
                                        ANALYSIS

     I. The Court Properly Denied the Motion to Dismiss the Allegation in Count 1

       Minor argues that the trial court erred in denying the motion to dismiss the

allegation in count 1 for resisting a peace officer (§ 148, subd. (a)(1)) since there was

insufficient evidence to sustain a true finding. Specifically, he contends there was

insufficient evidence that: (1) Officer Paredes was lawfully performing her duties as a

peace officer; and (2) minor knew or reasonably should have known that Officer Paredes

was a peace officer. We disagree.

       A. Standard of Review

       Welfare and Institutions Code “[s]ection 701.1 provides that a minor’s counsel

may request, at the close of the People’s case, that the court enter a judgment of

dismissal: ‘At the hearing, the court, on motion of the minor or on its own motion, shall

order that the petition be dismissed and that the minor be discharged from any detention

or restriction therefore ordered, after the presentation of evidence on behalf of the

petitioner has been closed, if the court, upon weighing the evidence then before it, finds

that the minor is not a person described by Section 601 or 602.’” (In re Anthony J.

(2004) 117 Cal.App.4th 718, 727; see also § 701.1.)

       “Courts have held that [Welfare and Institutions Code] section 701.1 is

substantially similar to Penal Code section 1118 governing motions to acquit in criminal

trials and that therefore the ‘rules and procedures applicable to [Penal Code] section 1118

. . . apply with equal force to juvenile proceedings.’ [Citation.]” (In re Anthony J.,



                                              7
supra, 117 Cal.App.4th at p. 727.) Thus, “the requirement in a criminal case that on a

motion for acquittal the trial court is required ‘to weigh the evidence, evaluate the

credibility of witnesses, and determine that the case against the defendant is “proved

beyond a reasonable doubt before [the defendant] is required to put on a defense”’ applies

equally well to motions to dismiss brought in juvenile proceedings. [Citation.]” (Ibid.)

“Consequently, the standard for review of the juvenile court’s denial of a motion to

dismiss is whether there is substantial evidence to support the offense charged in the

petition. [Citation.] In applying the substantial evidence rule, we must ‘assume in favor

of [the court’s] order the existence of every fact from which the [court] could have

reasonably deduced from the evidence whether the offense charged was committed and if

it was perpetrated by the person or persons accused of the offense. [Citations.]

Accordingly, we may not set aside the trial court’s denial of the motion on the ground of

the insufficiency of the evidence unless it clearly appears that upon no hypothesis

whatsoever is there sufficient substantial evidence to support the conclusion reached by

the court below.’ [Citations.]” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)

       B. There Was Sufficient Evidence to Support the Court’s True Finding

       Section 148, subdivision (a)(1), provides in pertinent part, that “ ‘[e]very person

who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or

attempt to discharge any duty of his or her office or employment, when no other

punishment is prescribed . . .’ is guilty of a misdemeanor.” (In re Muhammed C. (2002)

95 Cal.App.4th 1325, 1329.) The elements of a violation of section 148, subdivision (a),



                                                8
are as follows: “‘(1) the defendant willfully resisted, delayed, or obstructed a peace

officer, (2) when the officer was engaged in the performance of his or her duties, and

(3) the defendant knew or reasonably should have known that the other person was a

peace officer engaged in the performance of his or her duties. [Citations.]’ [Citation.]”

(Ibid.) Implicit in the second element is the requirement that the officer was acting

lawfully at the time the offense against him was committed. (In re Joseph F. (2000) 85

Cal.App.4th 975, 982.) “Section 148 is most often applied to the physical acts of a

defendant. [Citation.] For example, physical resistance, hiding, or running away from a

police officer have been found to violate section 148. [Citations.]” (In re Muhammed C.,

supra, 95 Cal.App.4th at p. 1329.)

         1. The Evidence Showed That Officer Paredes Was Lawfully Performing Her

Duties

         Minor first argues the evidence did not show that Officer Paredes was lawfully

performing her duties as a peace officer, since the detention was conducted “in an

arbitrary, capricious or harassing manner.” Minor specifically asserts that the detention

was not based on articulable facts, since Officer Paredes was not given a description of

the person who was allegedly trespassing on campus. He further asserts there was no

evidence that he broke a school rule or failed to follow a command by Officer Paredes.

Finally, he states that Officer Paredes initiated the detention through aggressive physical

contact with him “by tugging and grabbing his clothing and taking him from behind by




                                              9
surprise without any verbal warning, command or self-identification.” We conclude that

Officer Paredes acted lawfully.

       The evidence showed that Officer Paredes was lawfully engaged in the

performance of her duties when she detained minor. According to her testimony, she was

on her lunch break when she received a call to return to the school to address the problem

of a possible non-student trespassing on campus. When she arrived at the school, the

campus security officer, Officer Hernandez, saw her and flagged her down. Officer

Paredes testified that Officer Hernandez motioned to her and said something to indicate

that minor was the person she was looking for. Given this information, it was reasonable

for Officer Paredes to detain minor to see if he was trespassing. She turned around and

saw minor going toward the front lobby, so she attempted to detain him. Officer Paredes

was fulfilling her responsibility to provide a safe and secure environment for Colony

High School.

       Minor argues there were insufficient grounds to support the detention, since

Officer Paredes “had no specific, articulable facts upon which to rely to believe that

minor had or was about to commit a crime.” He further asserts that she had no

description identifying him as the purported trespasser, and she did not observe him

violate any school rules. However, school officials or police officers “have the power to

stop a minor student in order to ask questions or conduct an investigation even in the

absence of reasonable suspicion, so long as such authority is not exercised in an

arbitrary, capricious, or harassing manner.” (In re Randy G. (2001) 26 Cal.4th 556, 559,



                                            10
italics added; see also In re William V. (2003) 111 Cal.App.4th 1464, 1470-1471.) This

is so because, “[u]nlike a citizen on the street, a minor student is ‘subject to the ordering

and direction of teachers and administrators. . . . [¶] [A student is] not free to roam the

halls or to remain in [the] classroom as long as she please[s], even if she behave[s]

herself. She [is] deprived of liberty to some degree from the moment she enter[s] school,

and no one could suggest a constitutional infringement based on that basic deprivation.’

[Citations.]” (In re Randy G., at p. 563.) Furthermore, “police who assist in maintaining

general order on school campuses[] need not articulate a specific crime which appears to

be violated in order to detain an outsider for the limited purpose of determining the

fundamental factors justifying an outsider’s presence on a school campus.” (In re Joseph

F., supra, 85 Cal.App.4th at p. 986.) Thus, Officer Paredes had the authority to stop

minor to investigate whether he was a trespasser.

       We note minor’s argument that testimony from Officer Hernandez as to events

occurring before Officer Paredes’s involvement cannot be used to “justify the

‘lawfulness’” of the detention. In support of this argument, minor asserts that the

“collective knowledge” doctrine does not apply here, and that Officer Paredes’s actions

“must be judged based on the knowledge and actions of [her] alone at the time she

conducted the detention.” Minor appears to be arguing that we cannot impute Officer

Hernandez’s knowledge from his interactions with minor in the nurse’s office or the

hallway to support Officer Paredes’s detention of minor. We agree. The evidence does

not show that Officer Paredes knew minor was supposed to go from the nurse’s office to



                                              11
the assistant principal’s office2 to receive discipline and ignored Officer Hernandez’s

command to do so. In any event, Officer Paredes’s detention of minor was not based on

that conduct. Rather, as discussed ante, Officer Paredes was responding to a call from

the school office that there was a possible non-student trespassing on campus. When she

arrived at the school, Officer Hernandez saw her, flagged her down, and indicated that

minor was the person she was looking for. Regardless of what Officer Hernandez’s

intention was in flagging Officer Paredes down, Officer Paredes detained minor to

determine if he was the trespasser that the office had called her to investigate.

       Minor further contends that Officer Paredes’s initial contact with him consisted of

“grabbing minor’s clothing from behind with no advanced warning, no request to stop,

and no presentation of the officer about her identity or reason for the detention.” Minor

describes Officer Paredes’s initial contact as “an unannounced and aggressive physical

contact with minor from behind in a surprise move.” He asserts that the contact here

“was a greater initial intrusion than in a case where an officer stopped a student to ask a

question after identifying him/herself to the student and the student and officer [could]

see each other.” In support of his argument, he cites the factual background in In re

Joseph F., supra, 85 Cal.App.4th at p. 980. The officer in that case did identify himself

as a police officer and ask the defendant to stop, in order to determine if he should be

arrested for trespassing on school grounds. However, the In re Joseph F. court did not

       2  We note that Officer Hernandez testified that minor was supposed to go to the
assistant principal’s office, while minor testified that he was supposed to go to the dean
of discipline’s office. These two testimonies are not necessarily inconsistent.


                                             12
hold that a school officer is required to identify himself before requesting a student to

stop. Moreover, we disagree with minor’s characterization of the initial contact. Officer

Paredes testified that minor was on the phone, and she did not think he would hear her;

so, she simply “tugged on his hoodie to get his attention.” This action could hardly be

considered aggressive. In addition, minor immediately spun around and saw Officer

Paredes face-to-face. She was wearing her police uniform, with patches on both arms

and a badge on the front. Since minor could clearly see that she was a police officer,

there was no need for her to identify herself further.

       Minor further argues that Officer Paredes was not lawfully performing her duties,

since she allegedly used excessive force against him. He asserts that when he spun

around to see who grabbed him, Officer Paredes immediately grabbed his wrist and

pushed him into the door and wall. “The reasonableness of a particular use of force is

judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision

of hindsight. The inquiry is an objective one: Was the officer’s action objectively

reasonable in light of the facts and circumstances confronting him, without regard to his

underlying intent or motivation? [Citation.] It is a pure question of fact whether a police

officer used reasonable force in detaining a defendant, so reviewing courts determine if

there is sufficient evidence in the record for a reasonable trier of fact to conclude that the

force used in effectuating a detention was reasonable. [Citation.]” (In re Joseph F.,

supra, 85 Cal.App.4th at p. 989.)




                                              13
          Here, as discussed ante, Officer Paredes merely tugged on minor’s hoodie to get

his attention. Officer Paredes pushed minor only after minor spun around, cussed at her,

and threw his arms up in such a way that she thought he was going to hit her.

Furthermore, when minor asked why she was touching him, she told him he was being

detained. Nonetheless, he continued fighting, cussing, and arguing. Minor claims that

his aggressive conduct “was an instinctive reaction, and a logical and natural response of

self-defense against Officer Parades’ initial use of unannounced, unexplained, excessive

force.” However, we disagree and do not consider his response reasonable. There was

no reason for minor to fight, struggle, and refuse to comply with the officer. Moreover, it

was reasonable for Officer Paredes to view minor’s hostile conduct as being an indicator

of a lack of legitimate presence on campus, thus justifying an increased effort in effecting

a detention. (See In re Joseph F., supra, 85 Cal.App.4th at p. 985.) Since Officer

Paredes had the right to determine who minor was and why he was on the school

grounds, her escalating efforts at detention were reasonable, given minor’s resistance.

(Ibid.)

          2. Minor Knew or Reasonably Should Have Known That Officer Paredes Was a

Peace Officer

          Minor also argues that the court erred in denying the motion to dismiss because

there was insufficient evidence that, at the time he reacted to Officer Paredes tugging on

his hoodie, he knew or reasonably should have known that she was a peace officer

attempting to perform her duties. He specifically asserts that Officer Paredes grabbed



                                              14
him from behind without identifying herself, and there was no evidence he could see her

or her uniform.

         The offense of resisting an officer (§ 148, subd. (a)) occurs when the defendant

willfully resists a peace officer, when the officer is engaged in the performance of her

duties, and the defendant knows or reasonably should know that the person is an officer

engaged in the performance of her duties. (In re Muhammed C., supra, 95 Cal.App.4th at

p. 1329.) In other words, the offense proscribes the act of willfully resisting the officer

when the defendant knows the person is an officer. (Ibid.) Here, defendant is correct that

when Officer Paredes tugged on his hoodie from behind, he did not know she was an

officer. However, the evidence showed that he reacted to her aggressively and resisted

her while he turned around and after he faced her. Given that Officer Paredes had her

police uniform on, minor knew or reasonably should have known she was an officer.

Nonetheless, even after he turned around and saw her, he continued to resist by cussing at

her and throwing up his arms as if he was going to hit her. We note that “section 148 ‘is

not limited to nonverbal conduct involving flight or forcible interference with an officer’s

activities. No decision has interpreted the statute to apply only to physical acts, and the

statutory language does not suggest such a limitation.’ [Citation.]” (Id. at pp. 1329-

1330.)

         Because we find that Officer Paredes could properly detain minor to determine

whether he was permissibly present on campus, there was sufficient evidence to conclude

that she was acting lawfully in the performance of her duties. She did not use excessive



                                              15
force, and minor knew or reasonably should have known that she was an officer. Thus,

the evidence was sufficient to support the juvenile court’s finding that minor violated

Penal Code section 148, subdivision (a). Accordingly, the court properly denied his

motion to dismiss under Welfare and Institutions Code section 701.1.

     II. The Court Properly Denied the Motion to Dismiss the Allegation in Count 2

        Minor next argues that the trial court erred in denying the motion to dismiss the

allegation in count 2 for battery on a peace officer since there was insufficient evidence

to sustain a true finding. He essentially makes the same arguments he made regarding

count 1, namely that there was insufficient evidence that Officer Paredes was lawfully

performing her duties, or that he knew or reasonably should have known she was a peace

officer. He also argues that he acted in self-defense in response to Officer Paredes’s use

of excessive force. We conclude that the court properly denied the motion to dismiss as

to count 2.

        “A battery is any willful and unlawful use of force or violence upon the person of

another.” (§ 242.) A violation of section 243, subdivision (b), occurs when a battery is

committed against a peace officer “engaged in the performance of his or her duties . . .

and the person committing the offense knows or reasonably should know that the victim

is a peace officer . . . .”3

        Minor incorporates by reference the arguments made ante that there was

insufficient evidence that Officer Paredes was acting lawfully in the performance of her

        3   See § III., post, regarding the battery finding in count 2.


                                                16
duties when she detained him, and that he knew or reasonably should have known she

was a peace officer. (Ante,§ I.) For the reasons discussed ante, we disagree. (Ante, § I.)

       Minor additionally argues there was insufficient evidence that he pushed or made

contact with Officer Paredes, other than in self-defense. The record shows otherwise.

“Even if a detention were unlawful, a person may not use force or violence to resist it

unless the police officer effectuated the unlawful detention by excessive, i.e.,

unreasonable, force. [Citations.]” (In re Joseph F., supra, 85 Cal.App.4th at p. 989.)

Here, the detention was lawful, and Officer Paredes did not effectuate it with excessive

force. (Ante, § I.) Nonetheless, the evidence demonstrated that minor used force and

violence to resist her, but not in self-defense. (See People v. Pinholster (1992) 1 Cal.4th

865, 966 [“[A]ny right of self-defense is limited to the use of such force as is reasonable

under the circumstances”], overruled on other grounds, as stated in People v. Williams

(2010) 49 Cal.4th 405, 459.) As discussed ante, Officer Paredes simply tugged on

minor’s hoodie. In response, minor immediately spun around, starting cussing at her, and

threw his arms up as if he was going to hit her. He proceeded to resist and fight her, even

after she told him he was being detained. Furthermore, he failed to respond to her

commands to stop resisting.

       We conclude there was sufficient evidence that Officer Paredes was acting

lawfully in the performance of her duties, that minor knew or reasonably should have

known that Officer Paredes was an officer, and that minor willfully used unlawful force




                                             17
or violence against her. Accordingly, the court properly denied minor’s motion to

dismiss under Welfare and Institutions Code section 701.1.

               III. The Record Should Be Modified With Regard to Count 2

       The record reflects the allegation and the court’s true finding on count 2 as a

violation of section 243, subdivision (c)(2), which is battery with injury to a peace

officer. Both parties agree that the allegation on count 2 was actually for battery on a

peace officer (with no injury), pursuant to section 243, subdivision (b). Thus, the April

30, 2013 minute order and the Juvenile Detention Disposition Report should be amended

to reflect the proper statute.

                                      DISPOSITION

       The superior court clerk is directed to amend the April 30, 2013 minute order and

the Juvenile Detention Disposition Report to reflect that the court found true the

allegation in count 2 that minor committed battery on a peace officer, pursuant to section

243, subdivision (b). Otherwise, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                          Acting P. J.
We concur:

RICHLI
                            J.

CODRINGTON
                            J.




                                             18
