IN RE: MARIAH S. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

After a contested jurisdictional hearing, the juvenile court found true an allegation that 16–year–old Mariah S. committed misdemeanor battery.   (Pen.Code, § 242.) ¹  The court declared her a ward of the court pursuant to Welfare and Institutions Code section 602, ordered her to reside with her parents, and placed her under the supervision of the probation department and subject to specific terms and conditions.   The court set her maximum period of confinement at six months, less 17 days of custody credit.   On appeal, Mariah contends there is insufficient evidence to support the finding that she committed battery and the court erred in setting a maximum period of confinement.   We agree with Mariah's second contention and will direct the court to strike the specification of the term of confinement.   In all other respects we will affirm.

On September 5, 2010, the police were dispatched to a party at a vacant house where a number of minors, including Mariah, were drinking.   The police called Mariah's parents to pick her up.   Mariah came home very angry.   At home, Mariah answered a phone call and ran outside.   A pickup truck had pulled into the driveway.   Mariah's mother, Martha, followed and told the men in the pickup to leave and told Mariah to go back inside.   Mariah and Martha argued, both yelling at the other to go inside.   Mariah yelled expletives close to her mother's face.   Martha told her to be quiet and slapped Mariah with an open hand.   Mariah came at Martha and grabbed her hands and elbows.   As they struggled with each other, their fingers interlocked and they fell to the ground with Martha on top of Mariah.   Martha could not get up because of an old back injury and because of her weight.   Mariah's friend, who was standing nearby, lifted Mariah to her feet and Mariah left.   Martha suffered a scraped knee from the fall;  Mariah had no visible injuries.

Defense Evidence

Mariah testified she had one beer at the party.   After her mother took her home, she went outside to return a cell phone she had to its owner.   Her mother followed her outside and yelled at the men in a truck.   Mariah was angry with her mother and did not want to go in the house.   She screamed, “fuck that,” “fuck that,” at her mother and her mother slapped her.   Mariah grabbed her mother's hands and arms because she thought her mother was going to slap her again.   They fell to the ground.   Martha, who outweighed her daughter substantially, landed on top of Mariah.   Mariah struggled under her mother's weight and grabbed her face while trying to get out from underneath her.   Mariah's friend helped her to her feet and she left the house when her mother screamed, “Call the cops.”

DISCUSSION

Substantial Evidence of Battery

In evaluating the sufficiency of the evidence in a juvenile proceeding, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (In re Christopher F. (2011) 194 Cal.App.4th 462, 471.)

A battery is any willful and unlawful use of force or violence upon the person of another.  (Pen.Code, § 242.)   Force against the person is enough;  it need not be violent or severe, nor cause bodily harm or pain, or leave a mark.  (People v. Rocha (1971) 3 Cal.3d 893, 899.)   An offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery.   (People v. Myers (1998) 61 Cal.App.4th 328, 335.)

CALCRIM No. 960 instructs that a defendant is guilty of battery if the defendant willfully and unlawfully touched the victim in a harmful or offensive way and the defendant did not act in self-defense.

Mariah contends the evidence is insufficient because her mother initiated the incident and she “merely put her hands up and grabbed her mother's hands to prevent another hit.”   Further, Mariah did not push her mother to the ground.   They fell after Martha pushed Mariah toward the front door.   Finally, Martha fell atop Mariah and could not get up because of her physical limitations.   Mariah struggled under her mother's weight and grabbed her face while attempting to free herself.   As such, Mariah's grabbing of her mother's hands and arms, a “natural and instinctive” act, should not have been deemed harmful or offensive touching that constituted a battery.

The People respond that the evidence showed Mariah forcefully grabbed her mother's hands and arms out of anger.   Mariah admitted she advanced on her mother and grabbed her arms with enough force to hold her mother's arms down at her sides, which contributed to their falling to the ground.

The court found the battery accusation true reasoning, “There's an exchange of words, the mother slaps the child.   In California, parents are responsible for the education, training and discipline of the child.   I don't know whether a slap is appropriate or not, but it's certainly not against the law under the circumstances when a child has been at an alcohol party at her age.   And the child apparently resisted whatever the parent is doing in the way of discipline.   And I do find that the minor did use force and violence against her mother, but the mother also committed an offense or not.   I don't know, that's not before the Court.   I do find the accusation ․ to be true․”

We find the evidence sufficient.   Mariah responded to her mother's attempt to discipline her by forcefully grabbing her mother's hands and arms.   That constituted a willful and unlawful use of force on her mother.   To the extent Mariah is arguing she had a right of self-defense to restrain her mother, as a matter of law, she is mistaken.   A parent has a right to reasonably discipline a child and may administer reasonable punishment without being liable for a battery.   This includes the right to inflict reasonable corporal punishment.   (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.)   It follows, if the parent has a right to use reasonable corporal punishment to discipline the child, the child has no right to physically resist such punishment by battering the parent.

Mariah also asserts the prosecutor's supposed lack of confidence in the case “illustrates” the insufficiency of the evidence.   We disagree.   The prosecutor's reasoned, albeit brief, response to Mariah's motion to dismiss on the ground there was no evidence she “attacked” her mother, does not indicate a concession the evidence was weak.   The prosecutor's vigorous direct examination, cross-examination and closing argument refute this assertion.

In summary, when Mariah grabbed her mother's hands and arms in anger, she committed a battery.   Martha was attempting to exercise parental control by keeping her daughter in the house after retrieving her after midnight from an underage drinking party.   Mariah verbally and physically resisted her mother and, in doing so, engaged in a harmful and offensive touching.   Substantial evidence supports the juvenile court's finding that Mariah committed battery.

Maximum Term of Confinement

Mariah contends, and the People concede, the court erred in setting a maximum term of confinement because Mariah was not removed from the physical custody of her parents.   We agree and will strike the specification of the term of confinement.  (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)

DISPOSITION

The maximum confinement term set by the court is stricken.   In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Further statutory references are to the Penal Code unless otherwise indicated..  FN1. Further statutory references are to the Penal Code unless otherwise indicated.

THE COURT * FN*.  Before Dawson, Acting P.J., Kane, J., and Detjen, J.