Filed 9/27/ 21 In re T.K. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re T

. K

.,
a Person Coming Under the Juvenile Court Law. B 309054

(Los Angeles County Super. Ct. No. NJ30152 )

THE PEOPLE,

Plaintiff and Respondent,

v.

T

. K.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John C. Lawson II , Judge. Affirmed

. Elana Goldstein , under appointment by the Court of Appeal, for Defendant and Appellant.2 Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and John Yang, Deputy Attorney s General, for Plaintiff and Respondent.

____________________

J uvenile T

. K. 1 a ppeals from t he juvenile court ’s order
sustain ing a Welfare and Institutions Code section 602 2 petition finding he committed assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(4).
T.K. argues the juvenile court’s questioning of witnesses during the bench trial was prejudicial misconduct. We disagree.
T he juvenile court’s questioning was measured and designed to clarify events portrayed on a grainy cellular phone video

, which
shows mult iple minors punching or kicking the victim while hurling derogatory insults.
T.K. also contends there was insufficient evidence to support the judgment and that his self

- defense or defense

- of

others claim was improperly rejected

. T.K.’s assertion that he
needed to defend himself or his friends is contradicted by the victim, his own testimony

, and the video. T he juvenile court is exclusively entrusted with assessing witness credibility and was
well within its province to reject T.K.’s assertions

. According ly , we affirm.

1 We refer to the minor by his initial s to protect personal privacy. (See Cal. Rules of Court, rules 8.90(b)(4), 8.401(a)(2).)

2 Subsequent undesignated statutory references are to the Welfare and Institutions Code unless otherwise specified.3 FACTUAL AND PROCEDURAL BACKGROUND

A. The Assault On February 10, 2020, Jared L.

, 3 a student at California State University, Long Beach, was riding his bicycle home from
school when he encountered T.K. and a large group of other
minors who were also riding on a narrow bike path. As Jared L. struggled to get past the group, he was harassed and eventually slapped by one of them.
Jared L. turned around, ro de up to the minor who slapped
him

, and bumped his own bicycle into that person’s bicycle

, saying, “You don’t hit people.” When Jared L. thereafter tried to continue his journey home, a member of the group rammed into
his bicycle from behind, knocking him to the ground. Once on the ground, a group of approximately eight minors
surrounded Jared L

. One of them said, “Why are you messing around with my homie?” Jared L. replied , “Your homie just hit
me.” Another member of the group then punched Jared L

. As more of the group began attack ing him

, Jared L. began flailing his arms in defense

. T.K. then grabbed Jared L. by the backpack and threw him to the ground

. The minors then beat and kicked Jared L

. At some point, they asked where his wallet was. The minors then threw Jared
L. ’s bicycle into the adjacent riverbed. During the attack,
someone struck Jared L. ’s head with a glass bottle, leaving glass
in his hair and cut wounds.

3 We refer to the victim by his first name and last initial to protect personal privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)4 City of Seal Beach Police Department Officer Benjamin Jaispream responded that day. He spoke with Jared L. and took photographs of injuries to his face, left arm, and left leg. Nearby, Officer Jaispream found a broken beer bottle on the rocks next to
the riverbed.
T.K. testified on his own behalf. A fter the assault began,
T.K. said he took out his phone to record since he wanted to post the fight to social media. “ [ T ] his is going to be a cool clip for my edit or whatever,” he testified.
O nce he saw Jared L. pushed to the ground

, T.K. testified he began to back away, but Jared L. pulled on T.K.’s arm with one hand, and on T.K.’s shirt collar with the other. Jared L. then punched T.K. on the left side of his body. The punch caused T.K.
to fall down the embankment.
T.K. then asce nded the embankment and observed Jared L. being attacked by the other minors , “[his] friends

. ” T.K. walked up to Jared L. and “push [ ed ] ” him one more time because he was punching his friends. T.K. then walked away from the fight and rode away.
In stark c ontrast with T.K.

, Jared L. denied punching T.K. at any time during the assault or throwing him down the
embankment.

B. The Section 602 Petition and Trial The People filed a two

- count section 602 petition, alleging
T.K. committed second degree robbery in violation of Penal Code section 211, and assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivisio n (a)(4). Following a bench trial, t he juvenile court declined to make a true finding on c ount 1
, but sustained the petition as to count 25

(declaring that count to be a felony ), and placed T.K. on home probation

. T.K. timely appealed.

DISCUSSION

A. The Court ’s Questioning Was Proper

1. Standard of Review and Applicable Law We review a judicial misconduct challenge on a case

- by

case basis. ( People v. Sanders (1995) 11 Cal.4th 475, 531

- 532.)
We first “ ‘ “ determine whether the judge ’ s behavior w as so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial ” ’ ” and then “make that determination on a case

- by

case basis, examining the context of the court ’ s comments and the circumstances under which they occurre d.” ( People v. Abel (2012) 53 Cal.4th 891, 914.) On the other hand, it must be said that a trial court can control the examination of witnesses to ensure the efficient “ascertainment of the truth,” and may examine witnesses on its
own motion. ( Evid. Code, § 765, subd. (a) ; Pen. Code, § 1044.)

“ ‘ [I]t is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved
insofa r as possible. ’ [Citations.] ” ( People v. Mayfield (1997) 14 Cal.4th 668, 739.) T he “court has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony.” ( People v. Cook (2006) 39 Cal.4th 566, 597.)
In undertaking an examination

, t he trial court should be
careful not to take on the role of either the prosecutor or the
defense. “The court’s questioning must be ‘ “temperate,6

nonargumentative, an d scrupulously fair

. ” ’ ” ( People v. Cook

, supra , 39 Cal.4th at p. 597 ; see also People v. Brown (1993) 6 Cal.4th 322, 333 [a defendant has a due process right to an impartial judge ] ; accord, Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1242, 113 L.Ed.2d 302]

. )

2. The Juvenile Court’s Questioning

T.K. argues t he court committed misconduct by ask ing numerous and detailed questions of the witnesses

. In doing so, the argument goes, the court improperly a ligned itself with the prosecution in a way that made the court no longer impartial but rather taking on the role and function of the prosecutor. T.K. insists the court’s questioning were “not simply clarifying.”
Instead , the court was evidently unsatisfied with the prosecutor’s own examination, and so “stepped into the role of a second prosecutor.”
The first challenged testimony occurred after Jared L. had completed his direct and cross

- examination

. T he juvenile court asked the prosecutor to pla y the video from the beginning. T.K. specifically complains that the court asked the prosecutor to play
the video in “few

- second increments at a time,” while asking
Jared L. a series of questions, including who was hitting him, why he stood up, and what w as happening with Jared L. ’s backpack. T.K. highlights the following exchange s :

“ The C ourt: And at this point

– what are you trying to do at this point? “[ Jared L. ] : Defend myself.

“ The C ourt: And at this time approximately how many
strikes or blows ar e you feeling? “[ Jared L. ] : Right around, like, five or so. Five or six.7 “ The C ourt: And can you tell from what direction they’re coming from? “[ Jared L. ] : At the time it felt like every direction. ”

“ The C ourt: What did you say to this person when you bumped their wheel? “[ Jared L. ] : I said, ‘ You don’t fucking hit people. ’

“ The C ourt: Did you

– did the person respond to you? “[ Jared L. ] : No.

“ The C ourt: When you rode back to that group, did you ever punch anybody? “[ Jared L. ] : No.

“ The C ourt: You ever slap somebody back? “[ Jared L. ] : No. ”
The second examination highlighted by T.K. is his own testimony that followed the completion of direct and cross

examination

. T.K. complains that t he juvenile court examined
T.K. for “six pages” worth of the reporter’s transcript.

“ The C ourt:

. . . So I do see the witness grabs you by the
arm at that time. You’re indicating that’s you? “[T.K.] : Yes.

“ The C ourt: Why are you so close to him when all this
started? “[T.K.] : I was trying to get a clear video for my social
media.

“ The C ourt: And which hand is your camera

– your phone
in? “[T.K.] : I’m right

- handed, so I was using my right hand.

“ The C ourt: All right. Counsel, could you play it again
another 10 seconds [?] [ V ideo plays

. ]

. . . So you see where the witness turns around and you’re now out of the screen?8 “[T.K.] : Yes.

“ The C ourt: Where are you at this point? “[T.K.] : I’m falling down the embankment.

“ The C ourt: You’re falling down the embankment? “[T.K.] : Yes.

“ The C ourt: And did you actually

– did you ultimately end up on the ground or just stumble? “[T.K.] : I

– I was rolling on my head and my hip to the
bottom. ”

“ The C ourt: So that’s you coming back into the screen at approximately 13 seconds? “[T.K.] : Yes.

“ The C ourt: 14 seconds? And that’s you pushing him? “[T.K.] : Yes.

“ The C ourt: And so you came from up the embankment. You got up, came up the embankment, and then went over and pushed him; is that correct? “[T.K.] : Yes. ”

3

. Analysis

We have reviewed the video of the assault, as well as the reporter’s transcript on appeal . The jerky, low

- resolution video is

41 seconds long

, and portrays multiple minors punching or kicking Jared L. , while being cheered on with shouts of “Get his ass!” clearly audible.
The juvenile court ’s questioning did not result in an improper alignment with the prosecution or deny T.K. a fair trial. To the contrary, t he juvenile court’s questioning was measured, clarifying the order of events portrayed by th e video

, and improving the r ecord on appeal. (See People v. Hawkins (1995)9

10 Cal.4th 920, 947

- 948 [trial judge may question witnesses to clarify the evidence or fill in evidentiary gaps].)
I t also must be plainly stated that no jury was involved;
this was a court trial where the juvenile judge was the finder of
fact. Prejudice in the sense of improperly influencing the jury has no bearing , and T.K.’s c ounsel identifies not a single case involving prejudicial witness exa minations in a bench trial setting. 4

B. The Evidence Was Sufficient and Does Not Support a Claim of Self

- d efense or Defense of Others

1. Sufficiency of the Evidence In a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable

4 The three jury trial cases cited in T.K. ’s briefing are therefore inapposite. In People v. Santana (2000) 80 Cal.App.4th 1194, the trial court used the prosecutor’s termi nology in questioning police officers, dwelled on evidence from defense witnesses that was adverse to the defendant, and limited defense counsel ’ s cross

- examination of witnesses. ( Id . at pp. 1207

- 1209.) In People v. Robinson (1960) 179 Cal.App.2d 624, th e trial court was described as having engaged in “constant and extensive interruptions and activity” such as to create “in the minds of the jurors the impression that the court favored the case of the People.” ( Id . at p. 631.) In People v. Williams (2021 ) 60 Cal.App.5th 191

, the trial court “ interrupted the defense’s cross

examination at least a dozen times with its own questions and sua sponte objections,” “[asked] follow up questions that appeared to minimize potential reliability problems with” the pro secution expert’s position, and “did not allow relevant and appropriate

cross

- examination on the scientific reports and studies.” ( Id . at

p. 205.)10

to supporting the judgment to determine whether substantial evidence supports the finding of guilt beyond a reasonable doubt. ( People v. Johnson (1980) 26 Cal.3d 557, 562, 578.) Reversal is appropriate only where it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].” ( People v. Redmond (1969) 71 Cal.2d 745, 755.)
As d iscussed, T.K. testified Jared L. was the initial aggressor in the assault because Jared L. ’s left hand made
contact with his arm. T.K. claimed he was defending himself
because Jared L. pulled on his arm with one hand and pulled on
his shirt collar with t he other. He then punched T.K. on the left side of his body causing him to fall down the embankment. Afterwards, T.K. allegedly scrambled up the embankment, “walked up to Jared L. and pushed him one time in order to
defend himself and his friends.” T.K. says he then “pedal[led]

away to get away from the whole situation

. ” The juvenile court evidently rejected this testimony, and
T.K.’s version of events is not supported by the video. ( See People
v. Ochoa (1993) 6 Cal.4th 1199, 1206 [ i t is the exclusive province of the trier of fact to assess the credibility of witnesses and the court will not substitute its own evaluation of witness credibility for that of the fact finder].)
2. Self

- d efense/Defense of Oth ers Someone who reasonably fears infliction of imminent bodily injury is allowed to use all force reasonably necessary to prevent
the harm. ( People v. Minifie (1996) 13 Cal.4th 1055, 1064

- 1065;

see Pen. Code

, §§ 692, 693.) The reasonableness of the appar ent danger is evaluated from the viewpoint of a reasonable person in
the defendant’s position and “[t]he [factfinder] must consider all11

the facts and circumstances it might ‘ “ expect [ ] to operate on [ the
defendant ’ s] mind. ” ’ ” ( Minifie

, supra , at p. 1065.)

“ ‘ [W]here the evidence is uncontroverted and establishes
all of the elements for a finding of self

- defense it may be held as a matter of law that the [use of force] was justified; however, where
some of the evidence tends to show a situation in whi ch a [use of force] may not be justified then the issue is a question of fact for the [factfinder] to determine.

. . .’ [Citation.] ” ( People v. Levitt (1984) 156 Cal.App.3d 500, 509 , disapproved on another ground
in People v. Johnson (2016) 62 Cal.4th 60 0, 649, fn. 6 .) On the other hand, “ [w] here the evidence is uncontroverted,
but reasonable persons could differ on whether the resort to force

was justified or whether the force resorted to was excessive, then
the issue is a question of fact for the trier of fact.” ( People v.
Clark (1982) 130 Cal.App.3d 371, 378

- 379.) In such cases, “ ‘ [t]he [factfinder is] not required to accept [ the ] defendant’s version of
the [ incident ]

. ’ [Citation.]” ( People v. Bates (1967) 256 Cal.App.2d 935, 939.)
T.K.’s claim of self

- defense or defense of others is specifically contradicted by his own testimony that he pushed
Jared L. , not to defend himself or others, but to stop the group of bicyclists from hitting Jared L. further. At that point, however,
Jared L. was fighting at least four other individuals. A
reasonable person under such circumstances would not have subjectively entertained a belief that there was a need to defend the group of bicyclists from Jared L

. ( See People v. Minifie

, supra , 13 Cal.4th at p. 1065 .)
T.K. also can not claim self

- defense as a matter of law
because a member of the group struck the first blow. It is well

settled law that s omeone who initiate s a fight cannot thereafter12

claim self

- defense unless he made efforts to s top the fighting and
communicated such efforts. (See, e.g., People v. Hecker (1895) 109 Cal. 451, 463

- 464 ; CALCRIM No. 3471 [“A person who (engages in mutual combat/[or who] starts a fight) has a right to
self

- defense only if: [¶] 1. (He/ S he) actually and in good faith tried to stop fighting; [¶] [AND] [¶] 2. (He/ S he) indicated

. . . that (he/she) wanted to stop fighting and that (he/she) had stopped fighting

. . . ” ] .)
A t the time T.K. pushed Jared L.

, T.K. had no need to defend himself, as he had allegedly just climbed out of the
embankment and could have walked away. This he did not do.
Instead

, T.K. even mocked Jared L. after pushing him onto the
rocks.

DISPOSITION
The judgment is affirmed.
NOT TO BE P UBLISHED

CRANDALL , J. *

We concur:

CHANEY, J. BENDIX

, Acting P. J.

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.