Filed 12/21/17 In re D.H. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re D.H., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.H.,
Defendant and Appellant.
A150699

(Napa County
Super. Ct. No. JV18404)


I.
INTRODUCTION
D.H. appeals from an order declaring him a ward of the court. (Welf. & Inst. Code, § 602.) D.H. was charged with misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)) for lightly pushing his father in an attempt to close a car door. He contends there was insufficient evidence of a harmful and offensive touching to constitute battery. We agree. D.H. touched his father, but the touch was neither harmful nor offensive. D.H.’s attempt to move his father to close the car door was not a criminal battery warranting the prosecution of this 15-year-old boy.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
On November 7, 2016, the Napa County District Attorney filed a wardship petition charging then 15-year-old D.H. with misdemeanor battery. The court held a contested jurisdictional hearing on January 20, 2017, and found the battery allegation to be true. The court declared D.H. a ward of the court and placed him on probation.
B. Factual Background
At the time of the incident at issue here, D.H. was a high school student at Vintage High School in Napa. His parents were divorced, and he lived in both homes. D.H. had missed a significant amount of time from school due to migraine headaches and he struggled with both alcohol and substance abuse. D.H. had no criminal record. On the day of the incident, D.H. and both his parents attended a Student Attendance Review Board (SARB) meeting.
1. Jurisdictional Hearing
D.H.’s father, Gilberto, testified that after the SARB meeting, D.H. did not want to return to school. D.H. was in Gilberto’s truck, but Gilberto wanted D.H. to get out of his truck and return to school, so Gilberto was talking to him and trying to convince him to open the car door. When he tried to open the door, D.H. tried to close it again. Gilberto told D.H. the school would attempt to help him, and he could stay in the office until his headache improved. D.H. responded that the school did not pay attention to him, and they were not going to help him.
D.H. then pushed Gilberto once in attempt to close the car door. Gilberto stated the push was not forceful; he “didn’t feel anything.” It did not hurt him. He was not offended or in fear when D.H. pushed him. D.H. did not appear angry but he seemed frustrated. Gilberto testified that he thought D.H. was trying to push him out of the way of the closing car door.
The assistant principal of Vintage High School testified that she was in the parking lot on the day of the incident and heard someone yelling and cursing. She approached the car to see if she could help and D.H. was yelling at his mom to leave him alone. Gilberto told the assistant principal that they were having trouble getting D.H. out of the car. She offered to have them come to her office to talk.
The assistant principal then went and stood with D.H.’s mom near a wall about 25 feet from the car. She was not watching the entire time but saw D.H. “hit his dad in the chest. And I think it was like, get out of here, get away kind of thing.”
The assistant principal contacted the police because she felt they needed to take steps to put pressure on D.H. to change his behavior. She gave herself “the credit” for encouraging Gilberto to press charges.
Napa Police Officer Eric Thompson testified he received a text from the assistant principal that there had been an assault in the parking lot. Gilberto told him he was trying to get D.H. to go to school, but he would not get out of the truck. Gilberto said there was a tug-of-war over the car door. He was trying to open the car door and D.H. was trying to close it. D.H. reached out and tried to push his father’s arm or chest away to create space to close the door. Gilberto was trying to convince D.H. to go to school, and D.H. was “trying to push dad away and get dad’s arm or hands off of the door so he could close it and go back into his protective environment.”
Officer Thompson spoke to the assistant principal and determined that given the angles and the distance she saw either a punch or a push.
Officer Thompson approached D.H. who sat in the truck and hid his face. He asked D.H. what happened and he responded: “It doesn’t matter.” Thompson explained his rights to D.H. and stated D.H. did not have to say anything to him. Officer Thompson told D.H. there was an allegation he punched his dad and he could tell his version of the events, but D.H. did not respond. Officer Thompson arrested D.H.
Officer Thompson explained to Gilberto that when the truancy program does not work, the next level is probation which can impose consequences.
The court framed the issue: “the question is, was the touching rude, angry, harmful or offensive?” The court found that there was no evidence the touching was “harmful,” but D.H.’s reaction was “rude and angry and was in response to the parent’s endeavor to physically control the child, which is permitted by law.” The minor pushed his dad away when the dad was endeavoring to get him out of the car.
III.
DISCUSSION
A. Standard of Review
In assessing the sufficiency of the evidence, “[o]ur review is governed by the same principles applicable to adult criminal appeals. [Citation.] Our function is ‘to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding.’ ” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)
“ ‘Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact . . . .’ ” (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
B. D.H. Did Not Touch His Father in a Harmful or Offensive Manner
A battery is “any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) “ ‘Any harmful or offensive touching constitutes an unlawful use of force or violence’ under this statute. [Citation.] ‘It has long been established that “the least touching” may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404 (Shockley).)
“A person need not have an intent to injure to commit a battery. He only needs to intend to commit the act.” (People v. Mansfield (1988) 200 Cal.App.3d 82, 88.) “Any harmful or offensive touching constitutes an unlawful use of force or violence” for purposes of Penal Code section 242. (People v. Martinez (1970) 3 Cal.App.3d 886, 889.)
“Even a slight touching may constitute a battery, ‘if it is done in a rude or angry way.’ ” (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006, quoting CALCRIM No. 960.)
Battery is a general intent crime. (People v. Sargent (1999) 19 Cal.4th 1206, 1220; In re B.L. (2015) 239 Cal.App.4th 1491, 1495.) “As with all general intent crimes, ‘the required mental state entails only an intent to do the act that causes the harm . . . .’ ” (People v. Lara (1996) 44 Cal.App.4th 102, 107, quoting People v. Davis (1995) 10 Cal.4th 463, 519, fn. 15.) “ ‘This necessarily excludes criminal liability when the force or violence is accomplished with a “lesser” state of mind, i.e., “criminal negligence.” As with all general intent crimes, “the required mental state entails only an intent to do the act that causes the harm . . . .” [Citation.] Thus, the crime of battery requires that the defendant actually intend to commit a “willful and unlawful use of force or violence upon the person of another.” [Citations.]’ ” (James v. State of California (2014) 229 Cal.App.4th 130, 142.)
The crime of battery has two elements: “(1) a use of force or violence that is (2) willful and unlawful. The first element is satisfied by any touching. [Citation.] The second element of battery, willfulness and unlawfulness, is satisfied by any touching that is harmful or offensive.” (Shockley, supra, 58 Cal.4th at p. 408.)
There is no dispute that D.H. touched his father’s arm or shoulder in trying to move him to close the car door. The dispute centers around whether that touching was “harmful or offensive.” The trial court found there was no evidence the touching was harmful. But, the court found the touching was offensive because it was done in a rude and angry manner.
Appellant argues that the touch was not offensive because it has to be offensive to the person touched. While appellant admits there is not California case law to support this proposition, he argues the law should be construed to require this element. Respondent contends the court must apply an objective standard for what is offensive. We need not resolve this issue because under existing law, we conclude there was no evidence that the touch was offensive or done in a rude or angry way.
The primary evidence of the touching came from Gilberto. Gilberto testified that the touching by D.H. was not forceful and he “didn’t feel anything.” He stated the push was not offensive or disrespectful. The assistant principal did not contradict this testimony. She testified that she heard yelling and cursing between D.H. and his mother, but she did not hear raised voices between D.H. and his father. She was 25 feet away and not watching their interaction consistently. She testified that D.H. either punched or hit Gilberto, but stated she did not know “if things got a little heated,” or if D.H. “had just kind of lost it.” She stated: “I think it was like, get out of here, get away kind of thing.” But she admitted she could not hear what D.H. and his father said to each other.
On this record, there is simply not sufficient evidence that D.H acted in anger. Neither the assistant principal nor Officer Thompson heard D.H.’s conversation with his father, or could see why he pushed his father away. Gilberto, who was next to the car, testified D.H. did not appear angry. He thought D.H. pushed him to get him out of the way of the closing door. Gilberto was trying to open the car door and D.H. was trying to close it. Gilberto testified that D.H. appeared frustrated, but there was no evidence that when he pushed his father away, it was meant to be harmful or offensive.
At most, the touch was reckless and this is not sufficient for a conviction for battery. “[T]he crime of battery requires that the defendant actually intend to commit a ‘willful and unlawful use of force or violence upon the person of another.’ [Citations.] In this context, the term ‘willful’ means ‘simply a purpose or willingness to commit the act . . . .’ [Citation.] [¶] ‘Reckless conduct alone does not constitute a sufficient basis for . . . battery. . . .’ [Citation.] However, if an act ‘ “inherently dangerous to others” . . . [is] done “with conscious disregard of human life and safety,” the perpetrator must be aware of the nature of the conduct and choose to ignore its potential for injury, i.e., act willfully.’ ” (People v. Lara, supra, 44 Cal.App.4th at pp. 107–108, italics added.)
There was simply no evidence that D.H. was attempting to harm or injure his father. He was trying to close the car door and lightly pushed his father to move him out of the way. D.H. behaved like a frustrated teenager, and this behavior did not warrant criminal prosecution. Based on the testimony before the trial court, we cannot find there was sufficient evidence of an offensive touching to constitute criminal battery.
IV.
DISPOSITION
The disposition order is reversed.









_________________________
RUVOLO, P. J.


We concur:


_________________________
STREETER, J.


_________________________
KENNEDY, J.*



















*Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A150699, In re D.H.