In re J.M. CA2/5 ( 2013 )

Filed 5/3/13 In re J.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
In re J.M., a Person Coming Under the B241006
Juvenile Court Law. (Los Angeles County
Super. Ct. No. MJ20720)
THE PEOPLE,
Plaintiff and Respondent,
v.
J.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Benny C.
Osorio, Judge. Affirmed.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Chung L. Mar and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
J.M., a minor, appeals from the dispositional order. The juvenile court found that
on January 2, 2012, the minor committed assault by means of force likely to produce
great bodily injury (Pen. Code, § 245, subd. (a)(4)), a felony. The juvenile court
sustained the Welfare and Institutions Code section 602 petition and released the minor
home on probation. We affirm the juvenile court order.
II. THE EVIDENCE
On January 2, 2012, the minor was at home with his mother and several siblings.
An aroma of marijuana was coming from the minor‟s room. A brother, N.C., confronted
the minor. An argument then ensued between the minor and his mother. They were
yelling back and forth. N.C. thought the minor was going to hit their mother. N.C. tried
to restrain the minor. This occurred while the minor was seated on his bed. N.C. stood
over the minor. N.C. put one hand on the minor‟s shoulder. The minor lunged out with
his foot. The minor kicked N.C. in the throat. N.C. hit the minor two or three times in
the face and chest. The fight lasted about a minute. The two combatants were separated
by family members.
The minor was still upset. He was breathing heavily and seemed angry. N.C. left
the room. Seconds later, N.C heard someone say the minor had a knife. N.C. found the
minor in the bathroom with a 9- to 10-inch steak knife. When N.C. entered the bathroom,
another brother, M.M., was holding the minor against the wall. M.M. had both the
minor‟s hands up against the wall. M.M. was 6 feet, 6 inches tall and weighed over 200
pounds. The minor was 5 feet, 6 or 7 inches tall and weighed approximately 130 pounds.
The minor, who had the knife in his hand, was trying to break free. As N.C. entered the
bathroom, M.M. was trying to take the knife from the minor‟s hand. The minor was
struggling. N.C. stood in front of the minor, inches away. The minor said, “I‟m going to
kill you.” The minor jerked the knife in N.C.‟s direction. When testifying, N.C. was
2
asked, “And if he wasn‟t being restrained, would he be within reach of you?” N.C.
testified in response, “Yes.” The juvenile court asked N.C., “When the arms were going
down, who was in the trajectory of getting hit?” N.C. responded, “I was.” N.C. tried to
remove the knife from the minor‟s hand. N.C. was holding onto the minor‟s hand. N.C.
could feel the force in the minor‟s wrist. The minor was moving the knife upward, in
N.C.‟s direction. At that point both N.C. and M.M. were holding onto the minor‟s arm.
They did not lose their grip. As long as they did not lose their grip, the minor could not
stab either one of them with the knife. Family members were yelling at the minor to drop
the knife. They were threatening to call the police. The minor dropped the knife, walked
out of the bathroom and said, “I just proved you guys are a bunch of bitches.” On cross-
examination, N.C. was asked, “[W]ith your brother who was six-four, approximately 230
pounds [and] had a grip on both hands, did it appear to you that if [the minor] wanted to,
he could swing the knife?” N.C. responded, “Oh, no.”
M.M. saw the minor go into the bathroom and close and lock the door. M.M. was
standing outside the bathroom door when the minor emerged. The minor had a steak
knife in his hand. The minor was cussing at N.C. The minor was trying to go after N.C.
again. M.M. grabbed the minor‟s wrists. M.M. tried to take the weapon from the
minor‟s hand. N.C. came up behind M.M. and tried to get the weapon out of the minor‟s
hand. The minor was struggling. The minor turned the knife in N.C.‟s direction. M.M.
always maintained a grip on the minor‟s wrists. But M.M. was unable to “fully control”
the minor‟s actions. The struggle with the knife lasted as long as five or six minutes.
Deputy Jason Schmoker spoke to the minor following the altercation. The minor
was advised of his Miranda rights. Deputy Schmoker testified: “I asked him if he tried
to stab his brother. [¶] . . . He said, yes, after an argument he had lunged forward at him
with a knife. [¶] . . . He said he tried to scare him.”
3
III. DISCUSSION
The minor argues there was insufficient evidence he engaged in willful conduct
which a reasonable person would realize was likely to result in a battery. The minor
reasons that he was pinned against the wall and could not swing the knife at anyone even
if he had wanted to. Further, N.C. was within the trajectory of the knife only because he
deliberately placed himself there. And, the minor cites to his post-arrest statement. As
noted, the minor admitted trying to scare N.C. The minor further argues there was
insufficient evidence to show he had the present ability to commit a battery. He was
restrained and unable to move. Therefore, he was incapable of striking anyone with the
knife. This contention must be rejected given the standard of appellate review. The
standard of review in criminal proceedings involving minors is the same as that involving
adults. (In re V.V. (2011) 51 Cal.4th 1020, 1026; In re Muhammed C. (2002) 95
Cal.App.4th 1325, 1328.) We view the evidence in the light most favorable to the
adjudication and determine whether any rational trier of fact could have sustained the
petition‟s allegations beyond a reasonable doubt. (In re V.V., supra, 51 Cal.4th at p.
1026; People v. Medina (2009) 46 Cal.4th 913, 924-925, fn. 2.)
Penal Code section 245, subdivision (a)(4) makes it a crime to commit an assault
upon the person of another by any means of force likely to produce great bodily injury.
Penal Code section 240 defines an assault, “An assault is an unlawful attempt, coupled
with a present ability, to commit a violent injury on the person of another.” Assault is a
general intent crime. (People v. Chance (2008) 44 Cal.4th 1164, 1167; People v.
Williams (2001) 26 Cal.4th 779, 788.) Our Supreme Court has explained: “The . . .
substantive offense of assault . . . does not require a specific intent to injure a particular
victim . . . . „[A]lthough the defendant must intentionally engage in conduct that will
likely produce injurious consequences, the prosecution need not prove a specific intent to
inflict a particular harm.‟ [Citation.]” (In re Tameka C. (2000) 22 Cal.4th 190, 198;
accord, People v. Williams, supra, 26 Cal.4th at p. 790.) Our Supreme Court has further
held: “[The present ability element] is satisfied when „a defendant has attained the means
4
and location to strike immediately.‟ [Citations.] In this context, however, „immediately‟
does not mean „instantaneously.‟ It simply means that the defendant must have the
ability to inflict injury on the present occasion. Numerous California cases establish that
an assault may be committed even if the defendant is several steps away from actually
inflicting injury, or if the victim is in a protected position so that injury would not be
„immediate,‟ in the strictest sense of that term.” (People v. Chance, supra, 44 Cal.4th at
pp. 1167-1168, fn. omitted; accord, People v. Murray (2008) 167 Cal.App.4th 1133,
1139.) Further, our Supreme Court has explained, “[W]hen a defendant equips and
positions himself to carry out a battery, he has the „present ability‟ required by [Penal
Code] section 240 if he is capable of inflicting injury on the given occasion, . . . even if
the victim or the surrounding circumstances thwart the infliction of injury.” (People v.
Chance, supra, 44 Cal.4th at p. 1172; accord, People v. Valdez (1985) 175 Cal.App.3d
103, 106-107, 112.)
Here, the minor, who was angry, armed himself with a dangerous weapon. The
minor attempted to stab N.C. Although restrained, the minor struggled and aimed the
weapon at N.C. while yelling, “I‟m going to kill you.” N.C. was in close proximity to the
minor during the struggle, which lasted up to six minutes. The minor could have broken
free from his brother‟s grip and inflicted serious harm. When questioned while in
sheriff‟s custody, the minor admitted lunging at N.C. while armed with the knife. This
was substantial evidence the minor committed an assault with force likely to inflict great
bodily injury.
People v. Dodel (1888) 77 Cal. 293, 293-295, on which the minor relies, is
distinguishable. First, the Supreme Court reversed the conviction for instructional error
as to the elements of an assault with a deadly weapon, not for evidentiary insufficiency.
Second, the defendant in Dodel drew a knife from his pocket. And the defendant moved
away from the purported victim. The defendant did not move towards the alleged victim.
The defendant never got close enough to strike the victim with the knife. And he never
made any attempt to use the knife. Here, the minor did not merely display the knife. The
5
minor was struggling to maintain control of the knife and was aiming it in N.C.‟s
direction.
IV. DISPOSITION
The juvenile court order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
O‟NEILL, J.*
*
Judge of the Ventura County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
6