In re A.J. CA2/6 ( 2021 )

Filed 12/20/21 In re A.J. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
IN RE A.J., a Person Coming 2d Juv. No. B311288
Under the Juvenile Court Law. (Super. Ct. No. FJ57240)
(Los Angeles County)
_____________________________
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant.
A.J. appeals the juvenile court’s order sustaining a
wardship petition charging him with assault by means of force
likely to produce great bodily injury (Pen. Code, § 245, subd.
(a)(4); Welf. & Inst. Code, § 602). The court declared the offense a
misdemeanor and placed appellant on six months of probation.
Appellant contends the court committed reversible error in
declining to admit evidence of two videos purporting to show the
assault victim engaging in prior fights. We affirm.
STATEMENT OF FACTS
On March 2, 2020, appellant and A.M. were students at
Fairfax High School. Appellant and several other boys
approached A.M. and asked him where he was from. Appellant
replied that his parents were from Mexico and denied any gang
affiliation. Appellant and his companions searched A.M. and his
backpack, then left after a security guard saw them.
The next day, A.M. was walking to class with a friend when
they were approached by I.S., who had recently mocked and
ridiculed appellant’s hairstyle. I.S. said a friend had told him
that appellant wanted to fight him, and appellant denied that he
wanted to do so. A.M. started to turn around and felt a hard
punch to the back of his head. His vision went blurry but he was
able to see that appellant was his assailant. Appellant, who is
taller and bigger than A.M., repeatedly punched A.M. in the face,
arms, and hands and “kneed” his lower body.
A five-second cellphone video depicting part of the assault
was played during the adjudication hearing. A.M., who
presented the video to the court, that testified he never hit
appellant back and “did not get up until I saw his friends pull
him off of me.” A.M. also denied that he had or displayed a knife
or other weapon during the altercation. He admitted that he had
previously started two fights in school. While in middle school,
he intervened to protect a female friend who was being
inappropriately touched by a male classmate. In high school, he
got into a fight after he was “cornered” and “asked to fight” by a
group of students who “follow[ed him] every single day.”
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I.S. testified that prior to the incident A.M. had given I.S.
and appellant “an intimidating look” and pointed a knife at
appellant. I.S. testified, however, that he never told the police or
anyone else that A.M. had a knife. According to I.S., someone
told him that A.M. wanted to fight him. I.S., accompanied by
appellant, saw A.M. and told him “I want no problems.” A.M.
“kneed” appellant. Following a brief conversation, appellant hit
A.M. in the arm, A.M. hit appellant in the collarbone and the
fight ensued. I.S. acknowledged telling the police that appellant
had “sucker punched” A.M. from behind and that A.M. was
unable to defend himself, but claimed that this was untrue and
that his statement to the police had been coerced by school
officials.
Appellant testified in his own defense. Appellant asserted
that prior to the incident A.M. had walked toward him and I.S.,
lifted his shirt, and displayed a knife. A.M. then came close to
appellant and kneed him in the thigh. Appellant responded by
repeatedly punching A.M. because A.M. “could have hurt [him]
with the knife.” Appellant offered that he did not tell the police
that A.M. had a knife because they never asked, but claimed he
told the dean at his high school.
Los Angeles County School Police Officer Enrique Ochoa
testified on rebuttal. When appellant was interviewed after the
incident, he acknowledged that he started the altercation by
approaching A.M. and pushing him. Appellant said he did so
because he “heard rumors that [A.M.] had brought a knife to
school . . . and wanted to use it against him.” Neither appellant
nor I.S. claimed that they actually saw A.M. in possession of a
knife.
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DISCUSSION
Appellant contends the juvenile court erred in excluding
cellphone videos of victim A.M. purportedly engaging in two prior
fights at school. A.M. testified that the first fight occurred in
middle school, when he intervened to protect a female friend who
was being inappropriately touched. The second fight occurred in
high school after A.M. was “cornered” and “asked to fight” by a
group of students who “follow[ed him] every single day.”
Appellant asserts that the videos, which are not included in the
record on appeal, were admissible under Evidence Code sections
1103 and 352 and that their erroneous exclusion cannot be
deemed harmless.
We agree with the People that appellant’s contention is
forfeited. “‘Before an appellate court can knowledgeably rule
upon an evidentiary issue presented, it must have an adequate
record before it to determine if an error was made.’” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1176.) Because appellant did
not move the court to mark the videos as exhibits for
identification or otherwise ensure that the videos were included
in the record on appeal, he cannot establish that the court
prejudicially erred in excluding the videos. (Ibid.; accord, People
v. Chubbuck (2019) 43 Cal.App.5th 1, 12.)
In any event, appellant’s claim lacks merit. Appellant
offered the subject videos under Evidence Code section 1103 to
prove A.M.’s bad character.1 The juvenile court correctly found
1 Evidence Code section 1103 states in pertinent part:
“(a) In a criminal action, evidence of the character or trait of
character (in the form of an opinion, evidence of reputation,
evidence of specific instances of conduct) of the victim of the
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that appellant’s trial counsel had failed to establish the relevance
of the proffered videos. In his offer of proof, defense counsel did
not claim that either video showed how the prior fights had
started. The People aptly note that if the videos “merely showed
[A.M.] in the midst of fights . . . without demonstrating who
started the fights, then the videos would have no probative value.
It would have been irrelevant that [A.M.] reasonably defended
himself in prior fights after bullies attacked him, and it would
have been irrelevant if [A.M.] reasonably defended another
person from sexual assault.” Accordingly, the court did not abuse
its discretion in deeming the evidence irrelevant and thus
inadmissible under Evidence Code section 1103.
The court also acted well within its discretion in excluding
the videos under Evidence Code section 352, which provides that
otherwise relevant evidence may be excluded when its probative
value is substantially outweighed by concerns of undue prejudice,
confusion, or consumption of time. A court abuses its discretion
in this regard only when its ruling falls outside the bounds of
reason and thus results in a miscarriage of justice. (People v.
Fuiava (2012) 53 Cal.4th 622, 663.) Appellant makes no such
showing here. To the extent he complains the juvenile court did
not actually view the videos, “the court was entitled to rely on
counsel’s description of the [videos] and was not required to
personally view the [videos] before ruling.” (People v. Edwards
(2013) 57 Cal.4th 658, 744.) Appellant’s claim that the ruling
crime for which the defendant is being prosecuted is not made
inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by
the defendant to prove conduct of the victim in conformity with
the character or trait of character.”
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amounts to a violation of his right to present a defense was not
raised below is forfeited and in any event lacks merit.
It is also clear that any error in excluding the videos was
harmless. Appellant was charged with committing an assault by
means of force likely to produce great bodily injury in violation of
Penal Code section 245, subdivision (a)(4). Appellant asserts that
the excluded videos supported his claim that he acted in self-
defense and thus did not commit an assault. But the doctrine of
self-defense does not apply in this context to an individual, like
appellant, who initiates a physical fight or engages in mutual
combat. (People v. Jackson (2014) 58 Cal.4th 724, 760-761; see
CALCRIM No. 3471.) Appellant admitted to the police that he
initiated the physical altercation by pushing A.M., and his
subsequent efforts to recant that admission were not credible.
Any error in excluding the proffered videos of A.M. engaging in
prior fights was thus harmless regardless of the standard of
review.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
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William A. Crowfoot, Judge
Superior Court County of Los Angeles
______________________________
Lynette Gladd Moore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Michael Katz, Deputy Attorney
General, for Plaintiff and Respondent.