In re C.S.

Filed 12/1/08 In re C.S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Courtney Michele Selan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

It was alleged in a juvenile wardship petition filed May 11, 2007, that appellant C.S., a minor, committed a violation of Penal Code section 415.5, subdivision (a) (section 415.5(a)) (disturbing the peace by fighting on school grounds), and following the jurisdiction hearing on August 27, 2007, the court found the allegation true. On November 6, 2007, following the disposition hearing, the court re-adjudged appellant a ward of the court,^[1]continued appellant on probation and declared appellants maximum period of physical confinement to be five years three months, based on the instant offense and offenses adjudicated in previous wardship proceedings.

On appeal, appellant contends (1) her adjudication was not supported by substantial evidence and therefore must be reversed; (2) the court erred in setting a maximum period of physical confinement because appellant was placed on probation and not removed from the custody of her parents; and (3) a probation condition imposed by the court relating to the use of alcoholic beverages and illegal or intoxicating substances was unconstitutionally vague and overbroad. We will reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners Case

On April 17, 2007, Edward McCarthy was standing near a drinking fountain in the outdoor lunch area of the school where he teaches when he heard yelling and screaming.^[2]He turned and saw appellant and S., students at the school, no more than 30 feet away, in the lunch area, in close contact with one another throwing punches. McCarthy did not see who threw the first punch. He started running toward the girls, yelling to get them to separate .

Appellant and S. continued to fight so McCarthy, in an attempt to break up the fight, tried to wedge himself between them. However, the girls kept going at it, and McCarthy couldnt get them apart. As [he] tried to separate them, they both came back on one another. Unable to separate the girls, who were still locked in pretty good, he wrestle[d] them down to the ground . On the ground, McCarthy and the two girls rolled around. Then, [appellant and S.] broke loose and the fight kind of moved to another area in the lunch area . McCarthy had to go after them again to separate them a second time . The court asked, How far away did they break through? McCarthy answered, Well, not far from me. I mean, I was still in contact with them.

When the fight moved to the different area, McCarthy wrestled them both back down to the ground a second time. Once on the ground, McCarthy kind of took control of [appellant] and rolled on top of her and then pinned her arms back so she couldnt be involved anymore in the altercation. With McCarthy holding her firmly, appellant at that point stop[ped] struggling. However, S., who had gotten to her feet, came over and tried to kick [appellant]. McCarthy tried to ward her off with [his] feet. At that point, the school principal came and secured [S.], and McCarthy then escorted [appellant] to the office.

When asked if, after he took the two girls to the ground the first time, they both [got] up and restart[ed] the altercation, McCarthy answered, Well, it just kind of -- it was a continuing altercation so it really never stopped.

Defense Case

At the time of the jurisdiction hearing, appellant was 15 years old. She was at school on the morning of April 17, 2007, when another girl called her [a] slut and a whoe [sic]. Appellant asked the girl why she had called [her] that . At that point, S. approached and admonished appellant not to talk to her home girl like that. She also threatened that she would fuck [appellant] up right now. Appellant tried to walk away but S. got in front of [appellant] and swung, striking appellant in the face. Appellant tried to defend herself by punching S.

Appellant saw McCarthy running toward her but there were a lot of other kids yelling, and she didnt hear anything. McCarthy tried to break up the fight, but appellant continued to fight because, she testified, [S.] was grabbing me by the hair and I was, you know, defending myself, and he was trying to get me off of her so he got me down .

Courts Ruling

After both parties rested, the court ruled as follows: I think what we have is the minors testimony [which] is uncontroverted that she was attacked and that she attempted to defend herself. [] Now, the issue here really becomes whether or not that privilege of self-defense continues throughout -- is there any intervening act that causes that self-defense to cease to exist, and the law says that the right of self-defense exists only as long as the real or apparent threat and danger continues to exist. When the danger ceases to appear to exist the right to use force in self-defense ends. [I]n this case what we have is a situation where I think from the evidence its probably the case that she, you know, by herself, that she had a right of self-defense initially[.] [W]hat we have here though is the teacher attempting to intervene and to stop these two girls from fighting, that despite his efforts to separate these girls, that they continued to fight. Even by the minors own admission, she continued to throw punches after the teacher tried to stop [the fight]. The teacher testified that he was able to get the girls to the ground and that they continued to struggle on the ground, that they got up and continued to reinitiate the fight, and so I think that when you look at the situation like that, that it appears that this minor had an opportunity to stop fighting because she knew and was aware of the fact that the teacher was trying to stop the fight and I think had she stopped, I think that by the state of the evidence one can conclude that she acted in self-defense as long as -- even by her own testimony if you believe everything she says, that she was required to use self-defense initially, but its pretty clear that whether this was a mutual fight that started between these two girls, it certainly became a mutual fight after the teacher attempted to stop [the fight] and they continued to use force and violence against each other, despite the fact that this teacher tried very, very hard to intervene and stop these girls and they continued to fight even after he got them to the ground, they got up and they started anew, the altercation, so I think that when you look at these self-defense instructions its pretty clear that this minor had an opportunity to stop when the teacher was there to intervene and failed to do so, so I think this is clearly a 415 type situation that the minor engaged in so the Court does find a violation of section 415.5(a) has been found true beyond a reasonable doubt.

After further argument from defense counsel that the fight was a continuous event, the court stated: [McCarthys] testimony is that they both got up, even moved to a different location where they were at, they continued to fight and he had to go and continue to try and stop them from fighting even after they had gotten up the first time, [and] the teacher was pretty clear that they went down to the ground, [he] tried to separate them, they got up, continued to fight again. He then was successful in pinning [appellant] to the ground and thats what caused her to stop fighting and later on somebody else was able to intervene and detain [S.], but its pretty clear that from what the teacher says, that this altercation continued to go on with this minor actively engaged in this altercation, and I know [appellant] says she was being grabbed by the hair, but theres a discrepancy in the testimony as to how that occurred.

DISCUSSION

Appellant contends the courts rejection of her claim of self-defense was not supported by substantial evidence, and therefore her adjudication of the instant offense must be reversed.

Applicable Principles

Appellant was adjudicated of violating section 415.5(a), for unlawfully fight[ing] upon the grounds of [a] school . ( 415.5(a).) Self-defense is a defense to an allegation of violating section 415.5(a). (People v. Adrian (1982) 135 Cal.App.3d 335, 340 [Self-defense negates culpability for assaultive crimes].)

To justify an act of self-defense the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.] [Citation.] The threat of bodily injury must be imminent [citation], and any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.] (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, italics omitted.)

A person who meets these requirements is not required to retreat in order to claim self-defense. (People v. Hatchett (1942) 56 Cal.App.2d 20, 22 (Hatchett); CALCRIM No. 3470.) [A] person in the exercise of her right of self defense not only has a right to stand her ground and defend herself when attacked, but she may pursue her adversary until she has secured herself from danger. (Ibid.; accord, see People v. Ross (2007) 155 Cal.App.4th 1033, 1044, fn. 13 ) This rule applies even though the person under assault might more easily have gained safety by flight or by withdrawing from the scene. (People v. Ranson (1953) 119 Cal.App.2d 380, 388; CALCRIM No. 3470.) However, the right to use force continues only as long as the danger reasonably appears to exist. (People v. Martin (1980) 101 Cal.App.3d 1000, 1010; CALCRIM No. 3474.)

As indicated above, self-defense negates an element of section 415.5(a), viz., that appellant unlawfully fought on school grounds. ( 415.5(a), italics added.) Therefore, [a]s a matter of constitutional due process, [the accused] need only raise a reasonable doubt regarding [self-defense] and in this situation the burden of persuasion is on the People to show the nonexistence of the defense beyond a reasonable doubt. Typically, the prosecution has the burden to prove a defendant did not act in self-defense, because self-defense negates an element of the offense. (See People v. Rios (2000) 23 Cal.4th 450, 461-462 [prosecution must disprove self-defense to prove malice for murder]; People v. Adrian, supra, 135 Cal.App.3d at pp. 340-341 [prosecution must disprove self-defense to prove unlawful use of force for assault]; People v. Lee (2005) 131 Cal.App.4th 1413, 1422-1423, & fn. 2 [prosecution must disprove self-defense to prove grossly negligent discharge of firearm].) (People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571.)

In general, in determining whether the evidence is sufficient to support a finding in a juvenile court proceeding, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of adult criminal convictions. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following: In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, [the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If 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. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

Analysis

Based on appellants uncontradicted testimony the court found, and the People do not dispute, that initially appellant acted in self-defense when she struck back at S. However, the court further found, citing the principle that the right to use force continues only as long as the danger reasonably appears to exist, that at the point Mr. McCarthy tried to stop the fight, appellants right to use force ceased, and therefore, at that point she was unlawfully fight[ing] ( 415.5(a)). On appeal, the People, echoing this point, argue that [t]he trier of fact could rationally find that appellant could not reasonably believe that she was in imminent danger of suffering bodily injury or being touched unlawfully after McCarthy intervened and was there to stop further fighting . We disagree.

Although there is no doubt McCarthy attempted to break up the fight, there is no evidence he was successful at any point before the school principal came on the scene and took S. away. The evidence is uncontradicted that despite the teachers best efforts, he was unable to bring about a cease in the violence and, in particular and as most relevant to our analysis, the violence being perpetrated by S., at any time before the fight finally came to an end. Nor was there any evidence there was any break or lull in the fighting such that a situation existed in which appellant reasonably could feel safe. To the contrary, McCarthy testified it was a continuing altercation that really never stopped. The courts indication that there was a discrepancy on this point is unsupported by the record. Thus, there was no evidence from which the juvenile court reasonably could have concluded that appellant, at any point before she struck her last blow in the fight, had secured herself from danger (Hatchett, supra, 56 Cal.App.2d at p. 22) to the point where it would have appeared to a reasonable person in her position that the use of force was no longer necessary to defend herself. We in no way find fault with Mr. McCarthy and, indeed, we commend him for his valiant efforts. However, the uncontradicted evidence establishes that he was simply not successful in keeping S. from attacking appellant during the time he and the two students were physically engaged.

We recognize, as the court found, that the fight moved to a different location within the lunch area. This factor, however, is of no moment. The People introduced no evidence that the fight moved any great distance and, to the contrary, McCarthy indicated that distance was not far . But more fundamentally, the fact that the fight continued and moved from one part of the lunch area to another has no bearing on the critical question of whether appellant ever reached a point at which it could reasonably appear to her that she was safe. Indeed, the evidence shows that even after appellant had ceased fighting, after McCarthy had gained control over her and had her pinned on the ground, S. continued the attack, attempting to kick appellant.

Similarly, it is of no moment, as the court found, that appellant had an opportunity to stop fighting. As indicated above, appellant had no duty to retreat, as long as it reasonably appeared to her that she was in danger.

On this record, we conclude the People did not meet their burden of establishing that any time while appellant was attempting to defend herself, it reasonably appeared that the danger had ceased to exist. Therefore, the People failed to meet their burden of establishing that appellant did not act in self-defense. On this record, appellants adjudication of unlawfully fighting on school grounds cannot stand.^[3]

DISPOSITION

The judgment is reversed.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^*Before Wiseman, Acting P.J., Levy, J., and Kane, J.

^[1] Appellant was initially adjudged a ward of the court in 2005, and re-adjudged a ward the first time in 2007.

^[2] Except as otherwise indicated, the Petitioners Case section of our factual statement is taken from McCarthys testimony.

^[3] Because we reverse appellants adjudication, we need not address her remaining contentions.