IN RE: S.M. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

S.M. appeals from an order of wardship (Welf. & Inst.Code, § 602) following a finding that she committed the crime of assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)).   Appellant contends the juvenile court erred in denying her motion to dismiss under Welfare and Institutions Code section 701.1 because there was no evidence that she did not act in self-defense, and there was insufficient evidence of force likely to produce great bodily injury.   Appellant also contends the evidence is insufficient to show that she committed an assault in violation of Penal Code section 245.   Appellant's third contention is that the juvenile court abused its discretion in declaring the assault a felony rather than a misdemeanor.   Finding no error, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

On March 22, 2010, Los Angeles Police Officer William Manlove and his partner were conducting a traffic stop near Hyde Park Boulevard and Bryan Hurst Avenue in the City of Los Angeles.   Officer Manlove was giving a warning to a motorist for not having a front license plate.   The traffic stop took about five minutes, and as Officer Manlove finished the stop, he noticed a group of 10 to 15 girls or young women fighting, approximately 150 feet away from him.   He approached and tried to stop the fight and get the crowd to disperse.   The fighting did not stop, so Officer Manlove's partner used pepper spray on the crowd.

As Officer Manlove approached the group, he saw a girl lying face down on the ground.   There was another girl on top of her with her knee in her back and pulling her hair.   He saw appellant walk up to the girl lying on the ground and kick her in the face about three times.   Appellant “raised her knee up to her mid-section and used a pretty good amount of force” when she kicked her.   Officer Manlove grabbed appellant and pushed her against a fence.   The girl who was being kicked ran away and was not found.

A petition was filed under Welfare and Institutions Code section 602, charging appellant with assault by means likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1).   Officer Manlove testified at the adjudication hearing, and appellant presented no witnesses.

Following the presentation of evidence, appellant moved to dismiss under Welfare and Institutions Code section 701.1 for insufficiency of the evidence.   Defense counsel argued that the person being kicked might have been the aggressor in the fight or that she might have agreed to the fight as part of a fight club.   The court rejected the argument, stating that the victim “was no longer the aggressor if she was on the ground with somebody on top of her or another person kicked her in the head three times with a foot with her shoe on.”   Defense counsel also argued that it was not clear what type of shoe appellant was wearing at the time, but the court stated that the type of shoe did not matter.   The court denied the motion.

The court sustained the petition and denied the request to reduce the charge to a misdemeanor.   The court placed appellant in the care, custody and control of the probation officer, committed appellant to a short term camp community placement program, with a maximum confinement period of 4 years 4 months, and gave appellant 30 days of predisposition credit.   Appellant filed a timely notice of appeal.

DISCUSSION

I. Motion to Dismiss

Appellant contends the juvenile court erred in denying her motion to dismiss.   In delinquency proceedings, if the People fail to introduce legally sufficient evidence at the close of their case, the petition is to be dismissed.   (Welf. & Inst.Code, § 701.1;  In re Anthony J. (2004) 117 Cal.App.4th 718, 727.)  Welfare and Institutions Code section 701.1 “is substantially similar to Penal Code section 1118 governing motions to acquit in criminal trials․  [¶] Thus, the requirement in a criminal case that on a motion for acquittal the trial court is required ‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is “proved beyond a reasonable doubt before [the defendant] is required to put on a defense” ’ applies equally well to motions to dismiss brought in juvenile proceedings.  [Citation.]”  (In re Anthony J., supra, 117 Cal.App.4th at p. 727, fn. omitted.)

“[T]he standard for review of the juvenile court's denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition.  [Citation.]  In applying the substantial evidence rule, we must ‘assume in favor of [the court's] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense.  [Citations.]  Accordingly, we may not set aside the trial court's denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’  [Citations.]”  (In re Man J. (1983) 149 Cal.App.3d 475, 482.)

The juvenile court's denial of appellant's motion to dismiss is supported by substantial evidence.   The evidence presented at the adjudication hearing established that the victim was lying face down on the ground with someone on top of her, pulling her hair.   Appellant contends there is no evidence that she did not act in self-defense or defense of another.   As the juvenile court reasoned, even had the victim been the initial aggressor, she posed no threat at the time appellant approached, as she was pinned to the ground.   The right of self-defense ceases to exist when there is no longer any apparent danger of further violence on the part of an assailant.' ”  (People v. Crandell (1988) 46 Cal.3d 833, 873, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364–365.)

Contrary to appellant's argument that the prosecution has the burden of establishing beyond a reasonable doubt that she did not act in self-defense,an instruction regarding self-defense is required only if there is substantial evidence supporting the defense.  (People v. Salas (2006) 37 Cal.4th 967, 982.)   That is, the prosecution must prove the defendant did not act in self-defense only when the defendant properly raises the defense by raising a reasonable doubt whether her actions were justified.  (People v. Humphrey (1996) 13 Cal.4th 1073, 1103.)   Substantial evidence that she acted in self-defense is “ ‘evidence that a reasonable jury could find persuasive.’   [Citation.]”  (People v. Ross (2007) 155 Cal.App.4th 1033, 1050.)

There was no evidence that appellant acted in self-defense.   Self-defense requires the defendant to actually and reasonably be in fear of imminent harm.  (People v. Humphrey, supra, 13 Cal.4th at p. 1082.)   There is no indication that appellant could have actually and reasonably believed she was in danger of any harm where the victim was lying face down on the ground with another person on her back.

Appellant also contends there was insufficient evidence of force likely to produce great bodily injury to survive her motion to dismiss.   She relies in particular on the lack of evidence of any physical injury suffered by the person who was kicked, citing the following language:  “ ‘It would seem, however, that an assault or battery which does not result in any physical injury, and does not come within the scope of any of the other felonious assaults, is hardly likely to support anything more than a simple misdemeanor conviction [citation].’ ”  (People v. Duke (1985) 174 Cal.App.3d 296, 302.)   Although the nature and extent of the injuries inflicted can be used to determine whether the offense was committed, this is not the only measure.

Assault by means likely to produce great bodily injury under Penal Code section 245 “ ‘ “may be committed without the infliction of any physical injury, and even though no blow is actually struck.  [Citation.]  The issue, therefore, is not whether serious injury was caused, but whether the force used was such that it would be likely to cause it.” ’  [Citation.]  The focus is on the force actually exerted by the defendant, not the amount of force that could have been used.  [Citation.]  The force likely to produce bodily injury can be found where the attack is made by use of hands or fists.  [Citation.]  Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied.  [Citation.]”  (People v. McDaniel (2008) 159 Cal.App.4th 736, 748–749.)

Even though there was no evidence of an injury suffered by the victim of the kicking, the evidence in the record supports the conclusion that the force used by appellant was likely to cause physical injury.   Appellant “raised her knee up to her mid-section and used a pretty good amount of force” when she kicked the victim three times in the face.   The juvenile court did not err in denying her motion to dismiss.

II. Sufficiency of the Evidence

Appellant's second contention is that there was insufficient evidence to sustain the petition's charge under Penal Code section 245, subdivision (a)(1).   Appellant relies on the same arguments made to support her challenge to the trial court's denial of her motion to dismiss, viz., the alleged insufficiency of the evidence of force likely to produce great bodily injury.   For the reasons we have stated in rejecting that challenge, we reject her challenge to the sufficiency of the evidence as well.

III. Felony or Misdemeanor

Appellant's third contention is that the juvenile court abused its discretion in declaring the assault a felony rather than a misdemeanor.  Welfare and Institutions Code section 702 provides that, in a juvenile proceeding, “ ‘[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.’ ”  (In re Manzy W. (1997) 14 Cal.4th 1199, 1203–1204.)   The decision whether to declare the offense a misdemeanor is within the court's discretion.  (Pen.Code, § 17, subd. (b);  People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez ).)   We will find that the court abused its discretion only if appellant shows that the decision was irrational or arbitrary.  (Alvarez, supra, 14 Cal.4th at p. 977.)

We find no abuse of discretion in the court's decision to declare the assault a felony.   The evidence below demonstrated unequivocally that appellant assaulted the victim while the latter was prone, pinned to the ground, and being assaulted by another person.   Oblivious to a uniformed officer's command to stop, appellant kicked the defenseless victim three times in the head, stopping only when the officer physically restrained her.   On this record, we find no abuse of discretion in the trial court's denial of appellant's request to declare the charge a misdemeanor.

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

WILLHITE, Acting P. J. SUZUKAWA, J.