In re E.D. CA2/2 ( 2023 )


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  • Filed 7/28/23 In re E.D. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
    In re E.D., a Person Coming Under                                      B323153
    the Juvenile Court Law.
    (Los Angeles County
    Super. Ct. No. PJ54050)
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    E.D.,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County. Susan Ser, Judge. Reversed in part and
    remanded with directions.
    Mary Bernstein, 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, Wyatt E. Bloomfield and Seth P.
    McCutcheon, Deputy Attorneys General, for Plaintiff and
    Respondent.
    _________________________________
    E.D. appeals from the juvenile court’s adjudication order
    sustaining two counts of a petition pursuant to Welfare and
    Institutions Code section 602. The three-count petition filed
    against appellant, a 17-year-old minor, alleged one count of first
    degree residential burglary (Pen. Code,1 § 459, count 1), and two
    counts of assault by means of force likely to produce great bodily
    injury (§ 245, subd. (a)(4), counts 2 and 3). In count 2 it was
    alleged that appellant threw a hammer at the victim, and count 3
    was based on an alleged attempt by appellant to hit the victim’s
    truck with his car while the victim was chasing appellant. After
    a contested hearing, the trial court dismissed count 1, but
    sustained counts 2 and 3, and found them to be felonies.2 The
    trial court declared appellant a ward of the court and placed him
    home on probation.
    Appellant contends the trial court’s true finding on count 3
    for aggravated assault was not supported by substantial evidence
    and must be reversed. We agree. We therefore reverse the
    adjudication order as to count 3, and remand for a new
    adjudication and disposition order sustaining the petition only as
    to count 2. Because we have concluded that substantial evidence
    does not support the juvenile court’s true finding that appellant
    committed the aggravated assault alleged in count 3, our
    1 Undesignated statutory references are to the Penal Code.
    2 The court denied a defense motion to reduce counts 2 and
    3 to misdemeanors.
    2
    conclusion is the equivalent of an acquittal. Appellant may not
    be retried on the allegation. (People v. Eroshevich (2014) 
    60 Cal.4th 583
    , 591.)
    FACTUAL BACKGROUND
    Prosecution Case
    On June 15, 2022, around 8:40 a.m., Juan Velasquez was in
    his backyard when he saw appellant at the front door of
    Velasquez’s house. Appellant appeared to be leaving the house
    with some of Velasquez’s son’s clothing in his hands. Velasquez
    recognized appellant as one of his son’s friends. As he was
    leaving, appellant said to Velasquez, “ ‘[I]f you guys follow me, all
    of you are going to die.’ ” Appellant then left in a black Camry,
    which had been running and parked in the driveway.
    Velasquez got into his truck and began driving around the
    neighborhood looking for appellant. After a few minutes,
    Velasquez spotted appellant’s car and began following him.
    Appellant stopped near a Vons supermarket and picked up a
    female passenger. Velasquez continued to chase appellant’s car
    and eventually got close enough to take a photograph of the
    license plate. Velasquez called 911 and stayed on the line while
    maintaining his pursuit.
    As Velasquez was chasing appellant on San Fernando
    Mission Boulevard, appellant tried to drive his car into
    Velasquez’s truck while Velasquez was driving behind him.
    Appellant’s car came within a foot of Velasquez’s truck, and
    Velasquez swerved to avoid being hit. At another point during
    the chase,3 appellant stopped and threw a hammer at Velasquez.
    The hammer landed in the bed of Velasquez’s truck, about three
    3 The record is not clear as to the order of these two events.
    3
    feet behind the driver’s seat. Velasquez believed that appellant
    was attempting to make him stop the chase with these
    maneuvers, but Velasquez did not want to break off until the
    police arrived.
    Velasquez followed appellant into an alley where both
    vehicles stopped. Appellant got out of his car and walked toward
    Velasquez, carrying a toy gun that Velasquez believed was an
    AK-47. Appellant pointed the gun at Velasquez from about 100
    feet away, and Velasquez left the alley. Velasquez stopped his
    pursuit of appellant once the police arrived.
    Officer Joaquin Lopez with the Los Angeles Police
    Department was on patrol in the area of San Fernando Mission
    Boulevard and Haskell Avenue around 8:45 a.m. when he saw
    appellant’s black Camry pull into a parking lot. Officer Lopez
    and his partner began following the Camry when it exited the lot,
    and Officer Lopez noticed Velasquez’s blue Ford truck pulled over
    on the side of the road. Officer Lopez saw the driver of the
    Camry throw an object toward the truck. The officers activated
    their lights and sirens, pursuing the Camry as it made several
    turns. Eventually, the driver exited the vehicle and fled.
    Following a brief search of the area, appellant was apprehended
    and identified as the driver of the Camry.
    Defense Case
    Appellant and his mother, Lisa H., both testified.
    Appellant stated that he had known Velasquez’s son Salvador for
    about five years—since the sixth grade, and he had been to
    Salvador’s house “countless time[s]” “just to hang out.” Most
    recently, he had been there for a small gathering a week before
    the incident. On that occasion, Velasquez had cooked steaks for
    everyone.
    4
    On June 15, appellant did not know that Salvador had been
    incarcerated three days earlier, and he could not remember why
    he went to Salvador’s house that morning. Appellant knocked on
    the front door, and finding it unlocked, opened it and started to
    enter the house. But no sooner had he taken one step inside than
    the dogs started barking and appellant turned to leave.
    Velasquez came to the door and said, “ ‘Get out.’ ” Appellant
    immediately went to his car and left, with Velasquez following
    right behind him in his truck.
    Appellant saw his mother walking from the bank and
    stopped to pick her up. As appellant continued driving, his
    mother happened to look in the rear view mirror and saw a blue
    truck driven by a man “looking really crazy and agitated”
    following them. Driving erratically behind appellant’s car,
    Velasquez was “going back and forth in different lanes” and
    chasing appellant like “a crazy person.” Appellant and his
    mother were terrified. After his mother told appellant to “ ‘get
    away from that guy. He’s scary,’ ” appellant dropped her off a
    couple blocks away from her house and drove away with
    Velasquez still in pursuit.
    Appellant was driving “all over the place,” and even threw
    a hammer from his car window toward Velasquez in an effort to
    stop Velasquez from chasing him. Finally, Velasquez chased
    appellant into an alley, where appellant got out of the car and
    ran toward Velasquez. Velasquez backed his truck out of the
    alley. Appellant denied pointing anything at Velasquez.
    Appellant explained that he fled when police began chasing
    him because he did not know what was happening and he feared
    for his life.
    5
    DISCUSSION
    Substantial Evidence Does Not Support the Juvenile
    Court’s Finding on Count 3 that Appellant Attempted to
    Hit the Victim’s Truck With His Car
    Appellant contends there was insufficient evidence to
    support the juvenile court’s finding that he attempted to hit
    Velasquez’s truck with his car. Because the evidence established
    that Velasquez was behind appellant during the entire chase and
    there was no evidence appellant suddenly applied his brakes to
    cause a collision, appellant argues that Velasquez’s testimony
    that he tried to hit Velasquez’s truck was inherently improbable
    and thus insufficient to support the court’s finding of an
    aggravated assault. Appellant further asserts that in the
    absence of any evidence to support a finding that appellant
    willfully attempted to hit Velasquez’s truck, the evidence was
    insufficient to sustain count 3. Appellant contends the juvenile
    court’s finding on count 3 must therefore be reversed.
    1. Relevant Legal Principles
    When the sufficiency of the evidence to support a criminal
    charge in a juvenile proceeding is challenged, we apply the same
    standard of review as in an adult criminal trial. (In re M.V.
    (2014) 
    225 Cal.App.4th 1495
    , 1518.) That is, we “examine ‘ “the
    entire record in the light most favorable to the judgment” ’ to
    determine whether it discloses substantial evidence—‘ “evidence
    that is reasonable, credible, and of solid value” ’—‘ “from which a
    reasonable trier of fact could find the defendant guilty beyond a
    reasonable doubt.” ’ [Citation.] Our review ‘ “ ‘presume[s] in
    support of the judgment the existence of every fact the [trier of
    fact] could reasonably have deduced from the evidence.’ ” ’ ”
    (People v. Veamatahau (2020) 
    9 Cal.5th 16
    , 35–36.)
    6
    “An inference is a deduction of fact that may logically and
    reasonably be drawn from another fact or group of facts found or
    otherwise established in the action.” (Evid. Code, § 600,
    subd. (b).) In assessing the sufficiency of evidence based upon
    inference, we “may consider only those inferences that are
    reasonably supported by the record,” and must not “venture
    beyond the evidence presented at trial.” (People v. Ware (2022)
    
    14 Cal.5th 151
    , 167.) A reasonable inference “ ‘must logically
    flow from other facts established in the action.’ ” (Id. at p. 168.)
    It “ ‘ “may not be based on suspicion alone, or on imagination,
    speculation, supposition, surmise, conjecture, or guess work. [¶]
    . . . A finding of fact must be an inference drawn from evidence
    rather than . . . a mere speculation as to probabilities without
    evidence.” ’ ” (People v. Davis (2013) 
    57 Cal.4th 353
    , 360; People
    v. Sanford (2017) 
    11 Cal.App.5th 84
    , 91–92.)
    Of course, it is the exclusive province of the trier of fact to
    resolve conflicts and inconsistencies in the testimony, and
    “ ‘unless the testimony is physically impossible or inherently
    improbable, [the] testimony of a single witness is sufficient to
    support a conviction.’ ” (People v. Ramirez (2022) 
    13 Cal.5th 997
    ,
    1118, quoting People v. Young (2005) 
    34 Cal.4th 1149
    , 1181.)
    Nevertheless, “[t]estimony is properly discarded on a sufficiency
    of evidence analysis when it is inherently improbable or
    improbable on its face, that is, when it seeks to show ‘ “that
    something has occurred that it does not seem possible could have
    occurred under the circumstances disclosed.” ’ ” (San Diego
    Unified School Dist. v. Commission on Professional Competence
    (2013) 
    214 Cal.App.4th 1120
    , 1151.) “The inherently improbable
    standard addresses the basic content of the testimony itself—i.e.,
    could that have happened?—rather than the apparent credibility
    7
    of the person testifying. Hence, the requirement that the
    improbability must be ‘inherent,’ and the falsity apparent
    ‘without resorting to inferences or deductions.’ [Citation.] In
    other words, the challenged evidence must be improbable ‘ “on its
    face” ’ [citations], and thus we do not compare it to other evidence
    (except, perhaps, certain universally accepted and judicially
    noticeable facts). The only question is: Does it seem possible that
    what the witness claimed to have happened actually happened?”
    (People v. Ennis (2010) 
    190 Cal.App.4th 721
    , 729; People v.
    Mayberry (1975) 
    15 Cal.3d 143
    , 150; People v. Headlee (1941) 
    18 Cal.2d 266
    , 267 [“[t]o be improbable on its face the evidence must
    assert that something has occurred that it does not seem possible
    could have occurred under the circumstances disclosed”].)
    Juveniles, like adults, are constitutionally entitled to proof
    beyond a reasonable doubt of every fact necessary to constitute
    the crime when they are charged with violation of a criminal law.
    (In re Winship (1970) 
    397 U.S. 358
    , 368.) A juvenile court’s
    finding in a delinquency proceeding must therefore be reversed if
    one of the essential elements of the offense is not supported by
    substantial evidence.
    “An assault conviction requires proof the defendant did
    (1) ‘an intentional act’ with (2) ‘actual knowledge of those facts
    sufficient to establish that the act by its nature will probably and
    directly result in the application of physical force against
    another.’ ” (People v. Malik (2017) 
    16 Cal.App.5th 587
    , 598;
    People v. Williams (2001) 
    26 Cal.4th 779
    , 790 (Williams).) An
    assault is aggravated when committed “by any means of force
    likely to produce great bodily injury.” (§ 245, subd. (a)(4); People
    v. Aguayo (2022) 
    13 Cal.5th 974
    , 983.) “ ‘[A]ll aggravated
    assaults are ultimately determined based on the force likely to be
    8
    applied against a person.’ ” (People v. Aguilar (1997) 
    16 Cal.4th 1023
    , 1035.) And while the mere possibility of serious injury is
    not sufficient to establish an aggravated assault, “the evidence
    may show that serious injury was likely, even if it did not come to
    pass.” (In re B.M. (2018) 
    6 Cal.5th 528
    , 535.)
    As a general intent crime, an assault does not require an
    intent to cause injury or a subjective awareness of the risk that a
    battery might occur. (Williams, 
    supra,
     26 Cal.4th at p. 788;
    People v. Leonard (2014) 
    228 Cal.App.4th 465
    , 486.) However, “a
    defendant guilty of assault must be aware of the facts that would
    lead a reasonable person to realize that a battery would directly,
    naturally and probably result from his conduct. He may not be
    convicted based on facts he did not know but should have
    known.” (Williams, at p. 788; People v. Brugman (2021) 
    62 Cal.App.5th 608
    , 622.) Moreover, “ ‘mere recklessness or
    criminal negligence is still not enough’ to satisfy the mental state
    for assault.”4 (Brugman, at p. 622, quoting Williams, at p. 788.)
    2. The Evidence Was Insufficient to Support the Juvenile
    Court’s Finding on Count 3 Because It Was Based on
    Velasquez’s Inherently Improbable Testimony that
    Appellant Attempted to Hit Velasquez’s Truck With His Car
    While Velasquez Was Driving Behind Appellant
    The sole evidence in support of count 3 was Velasquez’s
    testimony that as he was driving behind appellant, he swerved to
    avoid being hit by appellant’s car, which had come within one foot
    4 The Supreme Court used the term “ ‘recklessness’ in its
    historical sense as a synonym for criminal negligence, rather
    than its more modern conception as a subjective appreciation of
    the risk of harm to another.” (Williams, supra, 26 Cal.4th at
    p. 788, fn. 4.)
    9
    of Velasquez’s truck.5 But in order to support a reasonable
    inference that appellant tried to hit Velasquez’s truck with his
    car, there had to be some evidence that appellant was in a
    position to do so. There was none. Although appellant testified
    he was driving “all over the place,” there was no evidence that
    appellant’s car and Velasquez’s truck were ever side-by-side;
    throughout the chase, Velasquez was driving behind appellant.
    Velasquez also did not testify that appellant tried to cause a
    collision with the pickup truck behind him by stopping suddenly
    or abruptly slowing down. And Velasquez certainly did not claim
    that appellant turned his car around and drove toward
    Velasquez’s truck. (See People v. Oehmigen (2014) 
    232 Cal.App.4th 1
    , 5, 6 [defendant committed aggravated assault by
    turning his car around and driving it at a police car that was in
    pursuit].)
    At most, the evidence raises a suspicion that appellant may
    have purposely changed lanes while Velasquez was actually
    beside him, but “a suspicion—even a strong suspicion—is not
    5 In support of count 3, the evidence consisted of following:
    “[Prosecutor]: . . . At some point while you were chasing
    the vehicle and before officers were able to help you, did anything
    occur during the chase that made you maneuver out of the way?
    “[Velasquez]: Yes. I was going in a chase after him on San
    Fernando Mission, and he started to use his car to, you know, hit
    me with it.”
    “[Prosecutor]: When you described him driving on San
    Fernando Mission, you’re driving behind him; correct?
    “[Velasquez]: Yes.
    “[Prosecutor]: And you said you maneuvered out of the way
    because he attempted to drive into your truck?
    “[Velasquez]: Yes.”
    10
    evidence and cannot support factual inferences.” (In re K.M.
    (2022) 
    75 Cal.App.5th 323
    , 328.) Indeed, two facts not in the
    record would have to be assumed in order to support a reasonable
    inference that appellant tried to hit Velasquez’s truck with his
    car: First, that the two vehicles were side-by-side at some point,
    even though Velasquez testified they were not, and second, that
    when the vehicles were next to each other, appellant changed
    lanes to swerve into Velasquez.
    Under the circumstances described by Velasquez, we
    conclude Velasquez’s testimony that appellant tried to hit
    Velasquez’s truck while Velasquez was driving behind him to be
    improbable on its face, and thus insufficient to support the
    aggravated assault alleged in count 3.
    3. The Evidence in Support of Count 3 Is Insufficient to
    Establish the Element of Willfulness
    Velasquez’s vague testimony that while he was driving
    behind appellant, appellant tried to use his car to hit Velasquez’s
    truck is also insufficient to support the element of willfulness
    required to establish aggravated assault on count 3.
    Proof of willfulness here requires some evidence that
    appellant was aware of facts that would cause a reasonable
    person to realize that a battery⎯i.e., a collision with Velasquez’s
    truck⎯“would directly, naturally and probably result” from
    appellant changing lanes while Velasquez was chasing him. (See
    Williams, 
    supra,
     26 Cal.4th at p. 788.) Certainly, appellant’s own
    testimony was sufficient to support an inference that he was
    driving recklessly. But “ ‘[r]eckless conduct alone does not
    constitute a sufficient basis for assault or for battery.’ ” (People v.
    Colantuono (1994) 
    7 Cal.4th 206
    , 219; Williams, at p. 788.) And
    the fact of which appellant would have had to be aware to satisfy
    11
    the mental state for assault⎯that Velasquez was driving beside
    appellant’s car, not behind it⎯was itself unsupported by any
    evidence in this case.
    DISPOSITION
    The adjudication order as to count 3 is reversed. The
    matter is remanded to the juvenile court for a new adjudication
    and disposition order sustaining the petition only as to count 2.
    NOT TO BE PUBLISHED.
    LUI, P. J.
    We concur:
    ASHMANN-GERST, J.
    CHAVEZ, J.
    12