In re T.K. CA2/1

Filed 9/27/21 In re T.K. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 ONE
In re T.K., B309054
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. NJ30152)
THE PEOPLE,
Plaintiff and Respondent,
v.
T.K.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, John C. Lawson II, Judge. Affirmed.
Elana Goldstein, 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, Assistant
Attorney General, Paul M. Roadarmel, Jr. and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Juvenile T.K.1 appeals from the juvenile court’s order
sustaining a Welfare and Institutions Code section 6022 petition
finding he committed assault by means of force likely to produce
great bodily injury in violation of Penal Code section 245,
subdivision (a)(4).
T.K. argues the juvenile court’s questioning of witnesses
during the bench trial was prejudicial misconduct. We disagree.
The juvenile court’s questioning was measured and designed to
clarify events portrayed on a grainy cellular phone video, which
shows multiple minors punching or kicking the victim while
hurling derogatory insults.
T.K. also contends there was insufficient evidence to
support the judgment and that his self-defense or defense-of-
others claim was improperly rejected. T.K.’s assertion that he
needed to defend himself or his friends is contradicted by the
victim, his own testimony, and the video. The juvenile court is
exclusively entrusted with assessing witness credibility and was
well within its province to reject T.K.’s assertions.
Accordingly, we affirm.
1We refer to the minor by his initials to protect personal
privacy. (See Cal. Rules of Court, rules 8.90(b)(4), 8.401(a)(2).)
2Subsequent undesignated statutory references are to the
Welfare and Institutions Code unless otherwise specified.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Assault
On February 10, 2020, Jared L.,3 a student at California
State University, Long Beach, was riding his bicycle home from
school when he encountered T.K. and a large group of other
minors who were also riding on a narrow bike path. As Jared L.
struggled to get past the group, he was harassed and eventually
slapped by one of them.
Jared L. turned around, rode up to the minor who slapped
him, and bumped his own bicycle into that person’s bicycle,
saying, “You don’t hit people.” When Jared L. thereafter tried to
continue his journey home, a member of the group rammed into
his bicycle from behind, knocking him to the ground.
Once on the ground, a group of approximately eight minors
surrounded Jared L. One of them said, “Why are you messing
around with my homie?” Jared L. replied, “Your homie just hit
me.” Another member of the group then punched Jared L.
As more of the group began attacking him, Jared L. began
flailing his arms in defense. T.K. then grabbed Jared L. by the
backpack and threw him to the ground.
The minors then beat and kicked Jared L. At some point,
they asked where his wallet was. The minors then threw Jared
L.’s bicycle into the adjacent riverbed. During the attack,
someone struck Jared L.’s head with a glass bottle, leaving glass
in his hair and cut wounds.
3 We refer to the victim by his first name and last initial to
protect personal privacy. (See Cal. Rules of Court, rule
8.90(b)(4).)
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City of Seal Beach Police Department Officer Benjamin
Jaispream responded that day. He spoke with Jared L. and took
photographs of injuries to his face, left arm, and left leg. Nearby,
Officer Jaispream found a broken beer bottle on the rocks next to
the riverbed.
T.K. testified on his own behalf. After the assault began,
T.K. said he took out his phone to record since he wanted to post
the fight to social media. “[T]his is going to be a cool clip for my
edit or whatever,” he testified.
Once he saw Jared L. pushed to the ground, T.K. testified
he began to back away, but Jared L. pulled on T.K.’s arm with
one hand, and on T.K.’s shirt collar with the other. Jared L. then
punched T.K. on the left side of his body. The punch caused T.K.
to fall down the embankment.
T.K. then ascended the embankment and observed Jared L.
being attacked by the other minors, “[his] friends.” T.K. walked
up to Jared L. and “push[ed]” him one more time because he was
punching his friends. T.K. then walked away from the fight and
rode away.
In stark contrast with T.K., Jared L. denied punching T.K.
at any time during the assault or throwing him down the
embankment.
B. The Section 602 Petition and Trial
The People filed a two-count section 602 petition, alleging
T.K. committed second degree robbery in violation of Penal Code
section 211, and assault by means of force likely to produce great
bodily injury, in violation of Penal Code section 245, subdivision
(a)(4).
Following a bench trial, the juvenile court declined to make
a true finding on count 1, but sustained the petition as to count 2
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(declaring that count to be a felony), and placed T.K. on home
probation.
T.K. timely appealed.
DISCUSSION
A. The Court’s Questioning Was Proper
1. Standard of Review and Applicable Law
We review a judicial misconduct challenge on a case-by-
case basis. (People v. Sanders (1995) 11 Cal.4th 475, 531-532.)
We first “ ‘ “determine whether the judge’s behavior was so
prejudicial that it denied [the defendant] a fair, as opposed to a
perfect, trial” ’ ” and then “make that determination on a case-by-
case basis, examining the context of the court’s comments and the
circumstances under which they occurred.” (People v. Abel (2012)
53 Cal.4th 891, 914.)
On the other hand, it must be said that a trial court can
control the examination of witnesses to ensure the efficient
“ascertainment of the truth,” and may examine witnesses on its
own motion. (Evid. Code, § 765, subd. (a); Pen. Code, § 1044.)
“ ‘[I]t is not merely the right but the duty of a trial judge to see
that the evidence is fully developed before the trier of fact and to
assure that ambiguities and conflicts in the evidence are resolved
insofar as possible.’ [Citations.]” (People v. Mayfield (1997) 14
Cal.4th 668, 739.) The “court has both the discretion and the
duty to ask questions of witnesses, provided this is done in an
effort to elicit material facts or to clarify confusing or unclear
testimony.” (People v. Cook (2006) 39 Cal.4th 566, 597.)
In undertaking an examination, the trial court should be
careful not to take on the role of either the prosecutor or the
defense. “The court’s questioning must be ‘ “temperate,
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nonargumentative, and scrupulously fair.” ’ ” (People v. Cook,
supra, 39 Cal.4th at p. 597; see also People v. Brown (1993) 6
Cal.4th 322, 333 [a defendant has a due process right to an
impartial judge]; accord, Arizona v. Fulminante (1991) 499 U.S.
279, 309 [111 S.Ct. 1242, 113 L.Ed.2d 302].)
2. The Juvenile Court’s Questioning
T.K. argues the court committed misconduct by asking
numerous and detailed questions of the witnesses. In doing so,
the argument goes, the court improperly aligned itself with the
prosecution in a way that made the court no longer impartial but
rather taking on the role and function of the prosecutor. T.K.
insists the court’s questioning were “not simply clarifying.”
Instead, the court was evidently unsatisfied with the prosecutor’s
own examination, and so “stepped into the role of a second
prosecutor.”
The first challenged testimony occurred after Jared L. had
completed his direct and cross-examination. The juvenile court
asked the prosecutor to play the video from the beginning. T.K.
specifically complains that the court asked the prosecutor to play
the video in “few-second increments at a time,” while asking
Jared L. a series of questions, including who was hitting him,
why he stood up, and what was happening with Jared L.’s
backpack. T.K. highlights the following exchanges:
“The Court: And at this point – what are you trying to do
at this point?
“[Jared L.]: Defend myself.
“The Court: And at this time approximately how many
strikes or blows are you feeling?
“[Jared L.]: Right around, like, five or so. Five or six.
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“The Court: And can you tell from what direction they’re
coming from?
“[Jared L.]: At the time it felt like every direction.”
“The Court: What did you say to this person when you
bumped their wheel?
“[Jared L.]: I said, ‘You don’t fucking hit people.’
“The Court: Did you – did the person respond to you?
“[Jared L.]: No.
“The Court: When you rode back to that group, did you
ever punch anybody?
“[Jared L.]: No.
“The Court: You ever slap somebody back?
“[Jared L.]: No.”
The second examination highlighted by T.K. is his own
testimony that followed the completion of direct and cross-
examination. T.K. complains that the juvenile court examined
T.K. for “six pages” worth of the reporter’s transcript.
“The Court: . . . So I do see the witness grabs you by the
arm at that time. You’re indicating that’s you?
“[T.K.]: Yes.
“The Court: Why are you so close to him when all this
started?
“[T.K.]: I was trying to get a clear video for my social
media.
“The Court: And which hand is your camera – your phone
in?
“[T.K.]: I’m right-handed, so I was using my right hand.
“The Court: All right. Counsel, could you play it again
another 10 seconds[?] [Video plays.] . . . So you see where the
witness turns around and you’re now out of the screen?
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“[T.K.]: Yes.
“The Court: Where are you at this point?
“[T.K.]: I’m falling down the embankment.
“The Court: You’re falling down the embankment?
“[T.K.]: Yes.
“The Court: And did you actually – did you ultimately end
up on the ground or just stumble?
“[T.K.]: I – I was rolling on my head and my hip to the
bottom.”
“The Court: So that’s you coming back into the screen at
approximately 13 seconds?
“[T.K.]: Yes.
“The Court: 14 seconds? And that’s you pushing him?
“[T.K.]: Yes.
“The Court: And so you came from up the embankment.
You got up, came up the embankment, and then went over and
pushed him; is that correct?
“[T.K.]: Yes.”
3. Analysis
We have reviewed the video of the assault, as well as the
reporter’s transcript on appeal. The jerky, low-resolution video is
41 seconds long, and portrays multiple minors punching or
kicking Jared L., while being cheered on with shouts of “Get his
ass!” clearly audible.
The juvenile court’s questioning did not result in an
improper alignment with the prosecution or deny T.K. a fair trial.
To the contrary, the juvenile court’s questioning was measured,
clarifying the order of events portrayed by the video, and
improving the record on appeal. (See People v. Hawkins (1995)
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10 Cal.4th 920, 947-948 [trial judge may question witnesses to
clarify the evidence or fill in evidentiary gaps].)
It also must be plainly stated that no jury was involved;
this was a court trial where the juvenile judge was the finder of
fact. Prejudice in the sense of improperly influencing the jury
has no bearing, and T.K.’s counsel identifies not a single case
involving prejudicial witness examinations in a bench trial
setting.4
B. The Evidence Was Sufficient and Does Not Support a
Claim of Self-defense or Defense of Others
1. Sufficiency of the Evidence
In a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable
4 The three jury trial cases cited in T.K.’s briefing are
therefore inapposite. In People v. Santana (2000) 80 Cal.App.4th
1194, the trial court used the prosecutor’s terminology in
questioning police officers, dwelled on evidence from defense
witnesses that was adverse to the defendant, and limited defense
counsel’s cross-examination of witnesses. (Id. at pp. 1207-1209.)
In People v. Robinson (1960) 179 Cal.App.2d 624, the trial court
was described as having engaged in “constant and extensive
interruptions and activity” such as to create “in the minds of the
jurors the impression that the court favored the case of the
People.” (Id. at p. 631.) In People v. Williams (2021) 60
Cal.App.5th 191, the trial court “interrupted the defense’s cross-
examination at least a dozen times with its own questions and
sua sponte objections,” “[asked] follow up questions that appeared
to minimize potential reliability problems with” the prosecution
expert’s position, and “did not allow relevant and appropriate
cross-examination on the scientific reports and studies.” (Id. at
p. 205.)
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to supporting the judgment to determine whether substantial
evidence supports the finding of guilt beyond a reasonable doubt.
(People v. Johnson (1980) 26 Cal.3d 557, 562, 578.) Reversal is
appropriate only where it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
judgment].” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
As discussed, T.K. testified Jared L. was the initial
aggressor in the assault because Jared L.’s left hand made
contact with his arm. T.K. claimed he was defending himself
because Jared L. pulled on his arm with one hand and pulled on
his shirt collar with the other. He then punched T.K. on the left
side of his body causing him to fall down the embankment.
Afterwards, T.K. allegedly scrambled up the embankment,
“walked up to Jared L. and pushed him one time in order to
defend himself and his friends.” T.K. says he then “pedal[led]
away to get away from the whole situation.”
The juvenile court evidently rejected this testimony, and
T.K.’s version of events is not supported by the video. (See People
v. Ochoa (1993) 6 Cal.4th 1199, 1206 [it is the exclusive province
of the trier of fact to assess the credibility of witnesses and the
court will not substitute its own evaluation of witness credibility
for that of the fact finder].)
2. Self-defense/Defense of Others
Someone who reasonably fears infliction of imminent bodily
injury is allowed to use all force reasonably necessary to prevent
the harm. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065;
see Pen. Code, §§ 692, 693.) The reasonableness of the apparent
danger is evaluated from the viewpoint of a reasonable person in
the defendant’s position and “[t]he [factfinder] must consider all
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the facts and circumstances it might ‘ “expect[ ] to operate on [the
defendant’s] mind.” ’ ” (Minifie, supra, at p. 1065.)
“ ‘[W]here the evidence is uncontroverted and establishes
all of the elements for a finding of self-defense it may be held as a
matter of law that the [use of force] was justified; however, where
some of the evidence tends to show a situation in which a [use of
force] may not be justified then the issue is a question of fact for
the [factfinder] to determine. . . .’ [Citation.]” (People v. Levitt
(1984) 156 Cal.App.3d 500, 509, disapproved on another ground
in People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6.)
On the other hand, “[w]here the evidence is uncontroverted,
but reasonable persons could differ on whether the resort to force
was justified or whether the force resorted to was excessive, then
the issue is a question of fact for the trier of fact.” (People v.
Clark (1982) 130 Cal.App.3d 371, 378-379.) In such cases, “ ‘[t]he
[factfinder is] not required to accept [the] defendant’s version of
the [incident].’ [Citation.]” (People v. Bates (1967) 256
Cal.App.2d 935, 939.)
T.K.’s claim of self-defense or defense of others is
specifically contradicted by his own testimony that he pushed
Jared L., not to defend himself or others, but to stop the group of
bicyclists from hitting Jared L. further. At that point, however,
Jared L. was fighting at least four other individuals. A
reasonable person under such circumstances would not have
subjectively entertained a belief that there was a need to defend
the group of bicyclists from Jared L. (See People v. Minifie,
supra, 13 Cal.4th at p. 1065.)
T.K. also cannot claim self-defense as a matter of law
because a member of the group struck the first blow. It is well-
settled law that someone who initiates a fight cannot thereafter
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claim self-defense unless he made efforts to stop the fighting and
communicated such efforts. (See, e.g., People v. Hecker (1895)
109 Cal. 451, 463-464; CALCRIM No. 3471 [“A person who
(engages in mutual combat/[or who] starts a fight) has a right to
self-defense only if: [¶] 1. (He/She) actually and in good faith tried
to stop fighting; [¶] [AND] [¶] 2. (He/She) indicated . . . that
(he/she) wanted to stop fighting and that (he/she) had stopped
fighting. . .”].)
At the time T.K. pushed Jared L., T.K. had no need to
defend himself, as he had allegedly just climbed out of the
embankment and could have walked away. This he did not do.
Instead, T.K. even mocked Jared L. after pushing him onto the
rocks.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J. BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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