In re Justin G.

Filed 1/14/10 In re Justin G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Heidi W. Shirley, Juvenile Court Referee. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General,
Kenneth C. Byrne and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court sustained a petition under Welfare and Institutions section 602 alleging that Justin G. (minor) committed assault with a deadly weapon, a knife, upon Henry T. in violation of Penal Code section 245, subdivision (a)(1).[1] The juvenile court placed minor at home on probation.

Minor appeals on the ground that the record does not support the juvenile courts finding that minor committed a violation of section 245, subdivision (a)(1).

FACTS

On the morning of January 31, 2009, Salvador Reyes (Reyes) witnessed a fight between minor, who was 16 at the time of the offense, and Henry T., minors younger stepbrother, who was 13. Reyes was the boyfriend of minors and Henrys mother. Henry was asleep in bed in the garage, and minor was trying to wake him up. Minor hit Henry once on the leg with a stick. Henry told minor to stop, and minor hit him a little harder, about three or four times. Henry got up crying and the boys scuffled, pushing each other. Henry told minor to back off. Henry lay back down. Minor then held a box cutter, which he may have pulled out of his pocket, against Henrys neck. He said to Henry, Dare me not to . . . shank you.

Reyes did not intervene, stating, I left at that point because I thought it was getting out of hand. The two boys were always bullying each other so [he] didnt think nothing of it. He wanted to tell the mother but did not because she was speaking with minors counselor.[2]Reyes was preparing to go out when another incident occurred between minor and one of the girls. Reyes then told the mother about the earlier fight in the garage, and he left the house. When he returned approximately three hours later, police officers were at the house.

Reyes testified that the box cutter was green plastic with a button that is pushed to advance the blade. Reyes could not see the blade. Reyes was at a distance of five or
six feet from the box cutter. He did not know if there was a blade in the box cutter. Reyes said that, at one point, he did fear for Henrys safety. Reyes had no reason to believe the box cutter blade would have been removed by anyone.

Officer Edward Lowinger (Lowinger) was called to minors residence about an hour and a half after the incident. No box cutter was found. No one told him the
box cutter did not have a blade. Henry was apprehensive in making his statement and was evasive. He said his brother had done nothing to him. Reyes spoke to Henry outside of the officers presence, and then told the officer that Henry would tell him the truth.

Henry acknowledged that he lied at first to Lowinger and told him that minor did not put the box cutter to his throat. Henry told Lowinger he was scared his brother would be put in jail. Henry did not want to cooperate because he loves his brother.

Henry remembered minor trying to wake him up by hitting him in the legs with a stick. Then minor began pushing Henry and hitting him again with a stick. After Henry was awakened, minor put a box cutter to Henrys throat. Henry felt it like a little but there was no blade. It was just a box cutter. He later testified he could not tell if there was a blade inside. Henry was scared and was thinking what could happen next. He was scared about what if he could have hurt me.

At first, Henry did not remember what minor said to him. When he was reminded that he told Lowinger after the incident that minor said he was going to shank Henry with the box cutter, Henry remembered minor saying this. Henry was not really fearful when minor said this because Henry did not think minor would actually do it, since they play around like that sometimes. Henry acknowledged telling minors probation officer, who was in their home on the morning of the incident, that his brother placed a knife to his throat and said, What are you going to do, bitch? Henry did not think minor deserved to be locked up because they always mess around like that, and he did not think minor would hurt him with the box cutter.

Henry said he found the box cutter in the garage approximately a week before the hearing. There was no blade in it, and he threw it away. He did not tell the police or minors attorney that he found it and that it had no blade. He acknowledged that Lowinger, other officers, and members of the family tried to find the box cutter on the day of the incident without success.

DISCUSSION

I. Proceedings Below

The trial court found that the People had met their burden of proving that the box cutter was indeed a deadly weapon and that it had been proved beyond a reasonable doubt that the cutter had contained a blade. The court found that Henrys testimony about later finding the box cutter without a blade and throwing it away was not credible.

II. Minors Argument

Minor contends that, because no evidence was presented that the box cutter contained a blade, there was insufficient evidence to establish that the box cutter qualified as a dangerous or deadly weapon. Therefore, the order sustaining the petition must be reversed.

III. Relevant Authority

The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Id. at p. 577.) To be substantial, evidence must be reasonable, credible, and of solid value. (Id. at p. 576.) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of appellate review as articulated in Johnson is applicable when assessing the sufficiency of the evidence in juvenile proceedings. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Given this courts limited role on appeal, minor bears an enormous burden in claiming there was insufficient evidence to sustain the true finding. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Section 245, subdivision (a)(1), prohibits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury. ( 245, subd. (a)(1).) As used in section 245, . . . a deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. [Citation.] (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)

IV. Evidence Sufficient

We conclude the evidence was sufficient for the trier of facts finding. It is true that no one testified that the box cutter contained a blade. Neither Reyes nor Henry knew if the cutter had a blade. Nevertheless, the evidence that was heard by the juvenile court leads to a reasonable inference that the box cutter contained a blade and was therefore a deadly weapon.

Minor analogizes his case to toy-gun cases, such as People v. Vaiza (1966)
244 Cal.App.2d 121, where the court stated that threatening to shoot someone with an imitation gun would not be an assault with a deadly weapon, since the person threatening would not have the ability to cause any injury. (Id. at pp. 124-125.) We believe a better analogy is found in those cases where the defendant urges that he cannot be convicted of assault with a firearm because there was insufficient evidence that his or her gun was loaded, although both types of cases rest on the presence or lack of a present ability to injure.

A long line of California decisions holds that an assault is not committed by a persons merely pointing an (unloaded) gun in a threatening manner at another person. [Citations.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 (Rodriguez).) This is because there is no present ability to inflict violent injury with an unloaded firearm.
(Id. at pp. 10-11) Rodriguez limited its discussion to the degree of circumstantial evidence required to demonstrate present ability to inflict injury and thus to uphold a conviction of assault with a firearm, which equates to the issue in the instant case. (Id. at p. 11, fn. 3) Rodriguez emphasized the standard of review in cases where the prosecution relies mainly on circumstantial evidence: it is the jury, not the appellate court [,] which must be convinced of the defendants guilt beyond a reasonable doubt, and [i]f the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] (Id. at
p. 11.)

The Rodriguez court criticized the appellate court, which had reversed the defendants conviction for assault with a firearm, for focusing on what it found lacking in the prosecution case and rejecting logical inferences the jury might have drawn. (Rodriguez, supra, 20 Cal.4th at pp. 12-14.) Citing several examples, the Supreme Court stated that California courts have often held that a defendants statements and behavior while making an armed threat against a victim may warrant a jurys finding the weapon was loaded. (Rodriguez, supra, 20 Cal.4th at p. 12.) The basic principle derived from the cases is that a defendants own words and conduct in the course of an offense may support a rational fact finders determination that he used a loaded weapon. (Id. at
p. 13.)

In this case, minor pulled out a box cutter after having hit Henry several times with a stick and engaged in a pushing match with him. When Henry attempted to go back to sleep, minor held the box cutter to Henrys neck and said, Dare me . . . not to shank you. Minor also said, What are you going to do, bitch? Minors words and conduct lead to the inference that the box cutter contained a blade. Clearly, no one was capable of giving direct evidence that the box cutter did or did not contain a blade except minor, and any statement he may have made to the police was not revealed at the hearing. If minor or even Henry had stated on the day of the incident that the box cutter had no blade, it is reasonable to infer that Lowinger and other officers would not have searched for the box cutter and would not have arrested minor on that day. Henry testified that he told Lowinger the truth. This is a strong indication that the lack of a blade was a defense that occurred as an afterthought.

As in Rodriguez, we cannot say the juvenile court could not reasonably make the determination that minor used a loaded box cutter. (Rodriguez, supra, 20 Cal.4th at
p. 13.) Minors act of holding the cutter to Henrys throat and asking him to dare minor not to shank him is conduct that reasonably leads to the inference that there was a blade in the cutter. Therefore, there was sufficient evidence to find minor guilty of assault with a deadly weapon.

DISPOSITION

The order sustaining the petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

___________________________, P. J.

BOREN

___________________________, J.

ASHMANN-GERST

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[1] All further references to statutes are to the Penal Code unless stated otherwise.

[2] Minors probation officer was at the home. Minor had suffered a sustained allegation on a prior petition.