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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re CHRISTIAN N., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,

v. CHRISTIAN N., Defendant and Appellant. F069722 (Super. Ct. No. JJD067598)



### OPINION

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, Ge rald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey 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.2. On January 22, 2014, the Tulare County District A ttorney’s Office filed a wardship petition under section 602 of the Welfare and Ins titutions 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 feloni es. Following a contested ju risdictional hearing, count 1 was dismissed as unproven, but Christian wa s found to have committed simple battery (§ 242), a misdemeanor, as a le sser included offense of count 2. Christian was placed on six months’ informal probation with variou s 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 argui ng. Although David to ld them to stop, the argument continued, and Chris tian and Jonathan ended up in the hallway, quarreling and grappling with each other. David physically separated the two an d got Jonathan to go into Jonathan’s bedroom, and Christian to return to the kitche n. 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 refe r 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 sec tion 602 petition was al so filed against Jonathan as a result of even ts, and his and Christian’s ca ses were heard jointly.3. but Christian started verbally provoking or challenging him, trying to make him mad. David kept telling Chri stian to knock it off, but when Ch ristian continue d, David came out of his room and they starte d 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 to ld them both to knock it off, then went into Gina’s room and told her she needed to call th e police. She and Jonathan went into the kitchen and saw David hol ding Christian in the corner with his left arm across Christian’s chest. 3 Gina told them both to stop, and sa id if they did not, she would get in the middle of it, and if she got in the middl e, 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 Davi d. 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, “y ou’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 Chris tian was on the floor, struggling to get up as David held him down. Jonath an recalled that David had Ch ristian bent over the kitchen counter.
4 According to Jonathan, after he told Gi na 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 fa ce was red and he was struggling to talk because David was appl ying pressure to his throat. Wh en Jonathan was unable to get David to let go by verbal means, he turned ar ound, grabbed the first thing he could find, and hit David with it to try to break them up. Jonathan st ruck David two or three times, then stopped because he saw David let go of Christian. Jonathan then jumped over4. 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 sa w 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 no t 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 hi m 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 circ ular bottom with a dull edge. The lacerations were consistent with being struck with a can. At the conclusion of the hearing, the tr ial court observed that in order for the People to prove the allegations in this case beyond a reasonable doub t, they had to prove

David, who had fallen to the floor, and ran, b ecause 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 wa s 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 Jonath an, but stopped when he realized his head was bleeding. By the time David got up, Chri stian 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.5. beyond a reasonable doubt that self-defense a nd defense of others were not implicated. The court found Jonathan reasonably believe d there was imminent danger of David causing harm to Christian, a nd used a reasonable amount of force to accomplish the goal of stopping the fight. Accordingly, the co urt dismissed the petiti on 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 J onathan was fearful David was going to come after him, the court determined Jonathan ju mped 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 reasonabl e 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 vi olation of section 242. DISCUSSION Christian contends the evidence was in sufficient 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 impossi ble of belief that [he] did not act in selfdefense.” 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 sett led. The test of sufficiency of the evidence is whether, reviewing the whole reco rd in the light most favorable to the judgment below, substantial ev idence is disclosed such that a reasonable trier of fact could find the essential elements of th e 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 deduce6. 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 witnesse s, or resolve factual conflic ts, 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 rej ect 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 defe ndant’s innocence. [Citations.]” ( People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) Reversal on the ground of insu fficient evidence “is unwarranted unless it appears ‘that upon no h ypothesis whatever is there sufficient substantial evidence to support [t he 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 justif y an act of self-defense for [a battery charge], the defendant must have an honest and reasonable belief th at 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]h e peril must appear to the7. defendant as immediate and present and not pr ospective or even in the near future. An imminent peril is one that, from appe arances, must be instantly dealt with .”’” ( In re Christian S. (1994) 7 Cal.4th 768, 783.) The prosecution has the burden of pr oving, 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 ab sence of self-defense beyond a reasonable doubt, but whether there is subs tantial 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 reasonabl y inferred David was kicked in the head; Jonathan had already fled, so the culprit coul d 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 bei ng hit in the head, David was able to get up and begin to chase after Jonathan. He argue s there is nothing in California law that requires him “to wait for his ol der, 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 sel f-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 [d efendant 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 us e of further force”].)8. DISPOSITION The judgment is affirmed.