In re A.P. CA1/3 ( 2013 )

Filed 10/24/13 In re A.P. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION 3
In re A.P., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, A137510
Plaintiff and Respondent,
(Alameda County
v. Super. Ct. No. SJ11177842)
A.P.,
Defendant and Appellant.
Appellant A.P. seeks to reverse an order of commitment after a juvenile court
found he committed felony assault by a means of force likely to produce great bodily
injury under Penal Code section 245, subdivision (a)(4). Because substantial evidence
supports the juvenile court’s finding that his punching another person in the face twice
constituted force likely to produce great bodily injury, we affirm.
Background
The Masjidul Waritheen mosque stands at the corner of 47th Avenue and Bond
Street in Oakland, approximately one block away from Fremont High School. Students
from the nearby school frequently loitered, littered and smoked marijuana around the
mosque. Fed up with truant students loitering around the mosque, Imam Faheem Shuaibe
contacted the school. The school’s principal requested Shuaibe somehow identify the
students loitering outside the mosque so the school could notify specific parents.
1
Thereafter, Shuaibe and other mosque attendees began photographing and video-
recording the students they observed loitering outside the mosque during school hours.
Around 8:15 a.m. on November 5, 2012,1 Shuaibe stood in front of the mosque
and observed a group of five high school aged individuals walking from the direction of
the school after Shuaibe heard the school bell ring. Shuaibe believed they were truant
students and hoped to preserve their identities for reporting to the school, so he began
filming the group with his mobile phone. By his side, he kept a three- or four-foot-long
thin wooden stick, which he used to fend off stray neighborhood dogs. As the individuals
came closer, members of the group demanded he stop filming and threatened “we gon’
beat your ass,” but Shuaibe continued recording.
Seventeen-year-old A.P. emerged from the group, walked towards Shuaibe and
uttered “stop taking those pictures, nigga.” They stood eye-level to each other, but
Shuaibe was “much bigger” in weight. Then, with an open palm, A.P. swung at Shuaibe
with his right hand and struck Shuaibe’s fingers, knocking the phone approximately 30
feet into the middle of the street. Shuaibe responded by moving aggressively towards
A.P., holding the wooden stick at shoulder height. A.P. raised his hands and struck
Shuaibe twice in the face with closed fists. The first punch landed on the lower part of
Shuaibe’s chin and second landed above his right eye. Shuaibe lost balance and fell
backwards onto the ground, dropping the stick.
While Shuaibe was on his back on the ground, A.P. climbed on top of him and the
two tussled. Shuaibe was eventually able to use his greater weight to wrestle with A.P.
and pin him down. At some point during the struggle, other members of A.P.’s group hit
Shuaibe on his back and on the back of his head with Shuaibe’s stick. As Shuaibe pinned
A.P. on the ground, two acquaintances of Shuaibe arrived and pulled them apart. Shuaibe
stood up and kicked A.P. in the right side of his face. At that point, all other members of
A.P.’s group had left. Shuaibe’s acquaintances were able to detain A.P. until the police
1
All dates referenced hereafter are in the year 2012.
2
arrived. Shuaibe sustained bruises to his chin, forehead and back, bleeding on his back
and the back of his head, scrapes on his knees and hand, and an injured fingernail.
On November 6, the district attorney filed a wardship petition for A.P. under
Welfare and Institutions Code section 602, subdivision (a), alleging A.P. committed
assault by means of force likely to produce great bodily injury under Penal Code section
245, subdivision (a)(4).2 Shuaibe and his acquaintance who helped break up the fight
testified at the jurisdictional hearing. Shuaibe said A.P. struck him twice in the face with
his bare fists, which caused Shuaibe to lose his balance, fall to the ground, and sustain
bruises and bleeding. The court viewed 53 color photographs taken at the scene of the
incident that captured Shuaibe and A.P.’s injuries On December 5, the juvenile court
found beyond a reasonable doubt that A.P. had committed an assault with force likely to
cause great bodily injury. The court based its finding exclusively on A.P.’s two blows to
Shuaibe’s face. On December 19, the court ordered, inter alia, A.P. released to his
parents and continued his wardship and probation that stemmed from an unrelated 2011
adjudication for second degree burglary. This timely appeal followed.
Discussion
A.P. challenges the court’s finding that he committed a felony assault by means of
force likely to produce great bodily injury based on the sufficiency of the evidence. He
contends that the juvenile court based its finding explicitly on A.P.’s two bare-fist strikes
to Shuaibe’s chin and forehead and that there was not enough evidence about either the
force of the strikes or the likelihood of injury to sustain such a finding. We are
unpersuaded.
The applicable standard of review requires us to examine whether there is
substantial evidence for the trier of fact to have found the elements of the crime beyond a
reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) This same
standard applies to review of a juvenile adjudication. (In re Ryan N. (2001) 92
2
The petition also alleged A.P. committed felony robbery under Penal Code section 211,
for causing Shuaibe to lose his mobile phone, but the court made no findings on the
robbery and it is not contested here.
3
Cal. App. 4th 1359, 1371.) The test is not whether the evidence supports a finding of guilt
beyond a reasonable doubt, but rather whether there is substantial evidence upon which
the trier of fact could have concluded the prosecution sustained its burden of proving the
defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal. 3d 557,
576; In re Ryan N., supra, 92 Cal.App.4th at p. 1373.) Our determination considers the
entire record, viewing all evidence in the record in a light favorable to the judgment, and
presumes support for the juvenile court’s finding. (Id.) Applying this standard, there is
substantial evidence to support the court’s finding that A.P.’s striking Shuaibe with only
his fists was a use of force likely to produce great bodily injury.
Penal Code section 245, subdivision (a)(4) sets forth the punishment for assault
committed upon another person “by any means of force likely to produce great bodily
injury.”3 Assault by a means of force likely to produce great bodily injury can be
commited entirely by bare hands or closed fists. (People v. Tallman (1945) 27 Cal. 2d
209, 212; People v. Hinshaw (1924) 194 Cal. 1, 24-25.) Courts focus on the likelihood
the force used could have produced a significant or substantial injury, regardless of the
resulting injury’s actual severity. (People v. Muir (1966) 244 Cal. App. 2d 598, 604.)
However, the resulting injury may be relevant and highly probative to the amount of
force exerted by an assailant. (Id.) In determining the likelihood of great bodily injury
caused by an assailant’s fists, a trier of fact may consider the force of the fist’s impact,
how the assailant used his fists, “and the circumstances under which the force was
applied.” (People v. McDaniel (2008) 159 Cal. App. 4th 736, 749, citing People v. Kinman
(1955) 134 Cal. App. 2d 419, 422.)
A.P. first argues there was insufficient evidence of the required force by
comparing his case to In re Nirran W. (1989) 207 Cal. App. 3d 1157, which affirmed a
juvenile court’s finding that a defendant’s fist’s single blow to the victim’s head was
force likely to cause great bodily injury. In that case, the substantial evidence in the
3
Penal Code section 245 was amended in 2011 (Stats. 2011, ch. 183, § 1), but only with
technical changes. Therefore, earlier cases interpreting the meaning of “force likely to
produce great bodily injury” under the statute remain good law.
4
record included descriptions of the victim being hit as well as her hospital-treated injuries
resulting from what the opinion characterized as the fist’s “great force,” which also
knocked the victim down. (Id. at p. 1162.) A.P. argues that, unlike In re Nirran W., the
juvenile court failed to consider any evidence about the nature of the force. We are
unpersuaded by A.P.’s attempt to contrast the facts of In re Nirran W. to this case.
Here, the record contains significant detail about the nature of A.P.’s blows.
Shuaibe’s testimony described A.P.’s use of his closed fists, where they struck his face,
and how the force of the strikes caused him to lose his balance and fall. After using his
hands to knock Shuaibe’s mobile phone 30 feet away, the teenage A.P. stood at eye level
with the larger adult Shuaibe and punched him twice in the face. Indeed, from the
description of A.P.’s actions during this violent interaction, the court had ample evidence
to make a determination about the nature of A.P.’s punches. The personal and first-hand
accounts of Shuaibe being twice struck in the face near his eyes and mouth testified to at
trial provide significant indications about the likelihood of great bodily injury.
A.P. draws attention to Shuaibe’s “minor bleeding and some bruising” and
unpersuasively argues the minimal nature of the injuries do not indicate any likelihood to
cause great bodily injury, which would have otherwise been shown by “significant cuts,
swelling, or substantial bleeding.” However, while evidence of injuries may be
considered in assessing the use of force, it is not conclusive because the issue is not
whether serious injury actual occurred. (People v. McDaniel, supra, 159 Cal.App.4th at
p. 748.) Acknowledging that injuries may be probative of amount of force, we decline to
embark on a reassessment of questions of fact better suited to the juvenile court. (People
v. Rupert (1971) 20 Cal. App. 3d 961, 968.) Viewed in a light favorable to the judgment,
the evidence of injury to sensitive areas near Shuaibe’s eyes and mouth supports a
conclusion that the force used by A.P. was likely to produce significant injuries.
The record contains substantial evidence to support the juvenile court’s
determination, beyond a reasonable doubt, that A.P.’s strikes to Shuaibe were with a
force likely to produce great bodily injury under Penal Code section 245, subdivision
(a)(4). Having reached that conclusion, it is unnecessary for us to consider the alternate
5
theories of criminal liability or allegations of lesser included offenses contested by A.P.
and respondent.
Disposition
The juvenile court’s judgment is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Jenkins, J.
6