In re J.R.
Filed 4/25/13 In re J.R. CA1/3
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opinion has not been certified for publication or ordered published for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
THREE
In re J.R.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.R.,
Defendant and Appellant.
A133353
(San Francisco
County
Super. Ct.
No. JW116235)
This
is an appeal from the juvenile court’s jurisdictional findings of July 7, 2011 and dispositional order
of September 2, 2011. Pursuant to these orders, the juvenile court
found minor J.R. committed one felony count of
resulting in great bodily injury, continued him as a ward, and placed him on
probation under home supervision subject to serving 180 days in Juvenile Hall
with 120 days of credit for time served.
The juvenile court thereafter granted minor’s request for an order
regarding eligibility for special immigrant juvenile status. This order, among other things, included
findings that it was contrary to minor’s best interests to return to El
Salvador and was in his best interests to
remain in the United States. Following entry of this order and during
pendency of this appeal, minor, who had reached the age of majority, consented
through counsel to voluntary departure from this country in lieu of
deportation. For reasons set forth
below, we affirm the juvenile court’s decisions.
FACTUAL AND
PROCEDURAL BACKGROUND
On
May 10, 2011, a juvenile wardship petition was filed pursuant to Welfare
and Institutions Code section 602, alleging that minor committed attempted
murder (count one) (Pen. Code, §187/664), and assault with a deadly weapon
(count two) (Pen. Code, §245, subd. (a)(1)).
The petition further alleged with respect to count one that minor personally
used a deadly weapon (§12022, subd. (b)), and with respect to both counts that
he inflicted great bodily harm (§12022.7, subd. (a)). A contested
following evidence was presented.
Prosecution’s Case.
On
May 6, 2011, a group of
friends that included minor, P.R. (victim), Brian, Omar, Oscar and Aaron, were
hanging out at the Aquatic Park
“beach†which is not far from the Embarcadero in San
Francisco. On
this day, the group was drinking alcohol and smoking marijuana, which the boys
and young men typically did when together.
The victim consumed about 10 beers over about a six-hour period, and
appeared to get along fine with minor.
Sometimes the victim and minor did not get along. Although they had been hanging out together
since about March 2011, minor had become annoyed with the victim because he
often smoked minor’s marijuana without paying for it and sometimes made
disparaging remarks to minor, calling him names like “stupid†or “idiot.†Minor sometimes made similar remarks, but the
two boys generally did not threaten or physically abuse one another prior to
the day in question.
name="_ftnref2" title="">[2] The victim often used profanity and picked
fights with his friends, particularly when drinking or smoking marijuana. The others, however, would usually just
ignore him.
In
the late afternoon of May 6, 2011,
the group left Aquatic Park
and took the public bus to City College
in the Mission District. Once there,
they smoked more of minor’s marijuana before walking to a nearby café. Minor told the victim to refrain from smoking
so much of his marijuana and, about five minutes later, hit him on the back of
the shoulder with his skateboard with significant force. The victim called minor an “idiot†and asked
why he hit him, but minor did not respond.
According to Omar, minor appeared “kind of panicked.â€
Fifteen
minutes later, the group returned to City
College. Several of them, including minor, continued
to smoke marijuana. They laughed because
minor had hit the victim, who did nothing.
About 20 minutes later, the victim, who afterwards described his
intoxication level as being an “eight out of ten,†threw his skateboard at
minor in a fit of anger when minor was not looking. The skateboard hit minor in the head with
considerable force (“6†out of “10â€).
Minor staggered and almost fell but did not scream or cry in pain. Rather, he approached the victim and took a
fighting stance. The victim tried to hit
minor again with the skateboard, but missed.
He then put up his fists to defend himself, but minor was able to punch
him three times. The victim swung a
punch toward minor one time, before stepping back to defend himself against
minor’s blows. When doing so, the victim
tripped and fell backwards with his back toward minor. Regaining a standing position, minor then
kicked the victim in the buttocks from behind.
At
this point, minor struck the victim in the back about six more times before
finally walking away. The victim could
not breathe. He touched his back and
realized he was bleeding. A short while
later, the police arrived.
Around
7:20 p.m., San Francisco Police
Officer Jose Mora arrived at City College
and contacted the victim. Seconds later,
someone identified minor, who was being escorted in his direction by several
people, as “the guy who stabbed him.â€
Minor had blood on his hands and clothes and a Swiss army knife in his
pocket. Mora examined minor’s body and
found no sign of injury other than a cut on the palm of his left hand. San Francisco Police Officer Josey Russell
also examined minor and confirmed his only apparent injury was a cut on his
left hand.
Meanwhile,
an ambulance arrived, and the victim was taken to the hospital, where he
remained for four days. The victim was
treated for six “deep†stab wounds to the back and chest, one of which was of
such great force that it fractured his thoracic vertebrae. Any of the stab wounds could have been lethal
had it lacerated the lung lining. A tube
was implanted into the victim’s chest to evacuate blood. The victim’s blood/alcohol level was 0.19.
Investigator
Sylvia Johnson from the District Attorney’s Office interviewed Oscar regarding
the May 6 stabbing not long after it occurred.
Oscar told her that, during “a pause†in fighting between minor and the
victim, minor took a knife from his pocket and showed it to Oscar and his
brother in his cupped hand. Oscar
responded by warning minor to “[t]hink about what you are going to do.â€
Defense Case.
Defense
counsel presented a theory of self defense.
In doing so, counsel relied on, among other things, certain eyewitness
testimony from minor and his friends, including Oscar, Omar and Aaron.
Minor
testified that, as a child in El Salvador,
he saw his father shot. Although his
father survived, he changed after the incident, becoming easily angered
(particularly when drinking) and having difficulty speaking. Later, his father was killed in another
shooting that occurred during a robbery of his father’s store.
When
minor was 11 years old, he contracted meningitis, spending months in the
hospital, during much of which he was in a coma. Once released, minor had to relearn to walk,
talk and move one side of his body.
Minor continued to suffer from short term memory loss.
Later,
minor was pressured to join a gang in El
Salvador.
One gang member even put a gun to his head, threatening to kill him
unless he joined. Minor also witnessed a
friend beaten by gang members. He and
his mother fled to the United States
to avoid gang violence, but he was separated from her during their trip across
the border and she has not been seen since.
Minor continued on to San Francisco,
where he was reunited with his adult sister, with whom he lived for about 10
months until she made him leave due to his marijuana habit. Minor then moved into a youth shelter, during
which time he met the group involved in the May 6 incident, including the
victim. These boys and young men became
his only friends.
At
first, minor and the victim were friendly.
However, after about three months, the victim began to threaten to hurt
or kill minor, especially when he was drinking.
Minor took these ten or more death threats from the victim personally
and seriously even though the victim also made them to others.
In
particular, on May 6, 2011,
while drinking and smoking marijuana at Aquatic
Park, the victim wanted to fight
everyone, calming down only when his friends said they were going to tie him to
a post. Later, after the group went to a
café near City College,
the victim blew smoke in minor’s face when minor told him to give minor the
marijuana cigarette. Minor put his hand on the victim’s face and pushed
him. He did not hit the victim with a
skateboard. When the victim yelled at
him, minor dropped his skateboard and ran back to City
College.
Once
there, the victim hit minor in the back of the head with his skateboard when
minor was not looking, almost knocking him down. The victim fell down and minor kicked him.
The victim, still holding the skateboard, told minor: “Come over, come over, son of a bitch. Let’s fight.â€
The victim chased minor around a car, threatening to kill him, threw his
skateboard at him, missing, before coming at him with clenched fists. Minor ran away and told the victim to calm
down, but the victim kept threatening him, approaching him rapidly from behind
a car. The victim then tried to hit minor with his skateboard, but fell down,
turning his back to minor. At that point, minor took out his knife and
immediately stabbed the victim because he feared the victim was going to kill
him.
because the victim was still trying to hit him with the skateboard. He had not warned the victim he had a knife.
Minor’s
friends told him to discard the knife, but he refused because he still feared
the victim would retaliate. Eventually,
minor ran to the bathroom to wash his hands, as he had cut himself during the
incident. When he did this, the knife
fell into the sink, rinsing off the blood.
Minor’s friends, one of whom called 911, escorted him to a police
officer who had just arrived. At this
point, Oscar told him: “You should have thought about what you did first.â€
Oscar
testified that, after minor and the victim initially exchanged blows and minor
kicked the victim from behind, minor retreated as the victim chased him around
a car. They continued to exchange blows,
with the victim “kind of covering himself and turning his back to
[minor].†Oscar saw minor hitting the
victim in the back, but could not see anything in his hand. He denied telling Investigator Johnson that
he saw minor with a knife during the May 6 incident. Once the fighting stopped, Oscar saw the
victim was bleeding. Oscar recalled that
minor and the victim had threatened each other in the past. A few days before the stabbing, minor showed
Oscar a knife.
Omar
confirmed that, after the victim had struck minor with the skateboard, fallen,
and was kicked by minor, the victim began chasing minor around a car,
threatening him, and trying unsuccessfully to hit him with his skateboard. Omar described the victim as very angry, and
minor tried repeatedly to stop the fight and calm him down. The victim,
however, continued to come at minor.
Then, the victim swung the skateboard at minor, missed, and fell down,
at which point minor began hitting him in the back. The victim released the skateboard and tried
to protect himself. Eventually, minor
took off running.
On
cross-examination, Omar denied telling an investigator that minor threatened to
“stick†the victim with a knife if he was attacked. Omar explained he heard from his companions
that minor had made this threat. Minor
and the victim both appeared upset and “serious†while fighting. Omar was not afraid of the victim even though
the victim was often aggressive towards him and his companions.
Aaron
confirmed the victim was often aggressive, particularly when drinking. Aaron simply ignored him, but minor, who was
the youngest of the group and was often the subject of the victim’s aggressive
“joking,†was particularly bothered by it.
Aaron had never seen the two in a physical alteration before the May 6
incident.
With
respect to the May 6 incident, Aaron testified that minor is much bigger than
the victim and “was pretty much winning the fight.†At one point, minor was “on top†of the
victim, who “wasn’t doing anything†as he was being hit. Minor then backed up, as if thinking the
fight was over, but the victim followed him, still holding the skateboard as if
he was going to strike minor again.
Minor walked away, but the victim chased him around the car, saying
“[l]et’s fight.†Aaron then looked away
and, when he turned back around, minor was hitting the victim in the back as
the victim was crouched down. When minor
stopped and walked away, the victim continued to follow him “like [he was]
crazy.†Aaron then noticed the victim
was bleeding.
Another
of minor’s acquaintances, Jennifer, testified that she heard the victim
challenge minor to a fight on May 6, but the minor declined, responding: “No, because I was scared and you have more
street [knowledge] than what I have.â€
The victim then “puffed up his chest†and laughed.
Finally,
minor’s adult sister testified and confirmed much of the information regarding
minor’s childhood in El Salvador
and immigration to this country. She
added that minor seemed depressed when he arrived in San
Francisco and had been traumatized by the events of
his childhood. Consistent with her
testimony, Psychiatrist Laura Davies testified that her evaluation of minor
confirmed he suffered from post traumatic stress disorder (PTSD) due to events
surrounding his father’s death and mother’s disappearance. This disorder, as well as his cannabis abuse,
caused minor to have nightmares and sleeping difficulties. Minor also tended to be highly irritable,
impulsive and hypervigilant, and likely to startle easily and act out
violently.
Francisco Police Office Sanchez testified in rebuttal that Omar, when
interviewed shortly after the incident, denied knowledge of what or who
provoked the fight, claiming to have randomly come across the fight when riding
his skateboard in the area. Officer
Sanchez also testified that minor told him the victim approached him with the
skateboard and threatened to “give it to [him] hard.†The victim then tried to
hit minor, but the skateboard made contact with the wall first and only grazed
his shoulder. The blow was not hard and
did not hurt. Minor repeated this
statement about being hit by the skateboard three times, and Officer Sanchez
was fairly certain minor never stated that he believed he was going to be
killed.
Juvenile Court’s Jurisdictional Findings and Disposition.
On
July 7, 2011, following the contested jurisdictional hearing, the juvenile
court sustained the allegation that minor committed assault with a deadly
weapon and found true the enhancements that he personally used a deadly weapon
and inflicted great bodily harm. The
court found not true the allegation that minor committed
At
the dispositional hearing on September 2, 2011, the juvenile court
adjudged minor a ward of the court and placed him on probation in his sister’s
custody subject to the condition that he serve 180 days in juvenile hall with
credit for 120 days served. This timely appeal
followed.
DISCUSSION
Minor
raises the following issues for our review.
First, minor contends the juvenile court erred in sustaining the assault
count with enhancements for use of a deadly weapon and infliction of great
bodily injury because the prosecution failed to prove beyond a reasonable doubt
that he did not act in justifiable
self defense. Second, minor contends in
the alternative that, because the juvenile court’s jurisdictional findings had
as a possible consequence incarceration and deportation, he was entitled to a
trial by jury. We address each
contention in turn.
title="">[6]
evidence establish justifiable self defense as a matter of law?
Minor
contends the juvenile court order sustaining the delinquency petition must be
vacated because there is no substantial
evidence supporting its finding that the prosecution negated beyond a
reasonable doubt his theory of justifiable self defense. Minor reasons the juvenile court relied on “a
scintilla of hearsay evidence†negating his defense, while ignoring the wealth
of evidence supporting it. Specifically,
according to minor, this “scintilla of hearsay evidence†relied upon by the
court was Investigator Johnson’s testimony that Oscar told her when interviewed
that, after minor pulled out his knife, Oscar urged him to think about what he
was about to do. Moreover, minor argues,
the weight of evidence supported his defense.
This evidence included minor’s testimony that he believed the victim was
going to kill him based on prior threats and on his heightened susceptibility
to head injuries stemming from his history of meningitis; as well as eyewitness
testimony from his friends that, shortly before the fight, the victim
threatened “he was going to get [minor] when he wasn’t looking,†that the
victim “slammed him over the head with a skateboard†with enough force that it
“nearly caused [minor] to lose consciousness,†and that minor attempted to
withdraw from the victim after being hit with the skateboard, yet the victim
“nonetheless pursued him.â€
name="_ftnref7" title="">[7]
Where,
as here, an appellant raises a claim of insufficient evidence, the reviewing
court must determine “whether ‘ “after viewing the evidence in the light
most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.†’ [Citation.]â€
(People v. Maury (2003) 30 Cal.4th 342, 403.) The evidence upon
which the judgment relies must be “reasonable, credible, and of solid
value.†(People v. Jones (1990) 51 Cal.3d 294, 314.) Further, the reviewing court may not reweigh
evidence or evaluate the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “We may not reverse a conviction for
insufficiency of the evidence unless it appears that upon no hypothesis
whatever is there sufficient substantial evidence to support the
conviction.†(People v. Tripp (2007) 151 Cal.App.4th 951, 955.) This rule likewise applies in juvenile
criminal matters. (E.g.,
862, 872.)
The
prosecution bears the burden of proving beyond a reasonable doubt that the
defendant did not act in self defense. (
1413, 1429; People v. Adrian
(1982) 135 Cal.App.3d 335, 341.)
Where,
as here, the appellant contends his justifiable self defense theory was
established as a matter of law, the evidence must show all of the
following: (1) the defendant’s
honest and good faith belief that (2) great bodily injury is
(3) about to be inflicted on him. (People
v. Minifie (1996) 13 Cal.4th 1055, 1064.)
The victim’s prior acts of violence and reputation for violence, among
other things, are relevant in meeting this standard. (People v. Minifie, supra, 13 Cal.4th
at pp. 1064-1065, see also People v. Pena (1984) 151 Cal.App.3d 462, 476.) However, “any right of self defense is
limited to the use of such force as is reasonable under the circumstances.
[Citation.] The right of self defense did not provide defendant with any
justification or excuse for using deadly force to repel a nonlethal attack.†(People
v. Pinholster (1992) 1 Cal.4th 865, 966, overruled in part on other grounds
by People v. Williams (2010) 49
Cal.4th 405, 459, 462.)
On
the other hand, if there is evidence of any “circumstance which may be
reasonably regarded as incompatible with the theory that the [crime] was
justifiable, the trier of fact, from a consideration of all the evidence, is
warranted in finding that the act amounted to an unlawful [act].†(People v. Collins (1961) 189 Cal.App.2d 575, 591.) In this case, we conclude there is
substantial evidence which supports the juvenile court’s finding that minor’s
assault on the victim was unlawful.
Specifically,
we conclude that, construing the evidence in a light most favorable to
affirming the juvenile court’s findings, as the law requires, the evidence was
sufficient to permit the trier of fact to reject minor’s theory of justifiable
self defense based upon the following.
First, the prosecution’s evidence proved beyond a reasonable doubt that
minor stabbed the victim six times in the back after getting the better of him in a fight during which two males
with a contentious history inflicted considerable blows to each other while
under the influence of significant amounts of marijuana and alcohol. For example, the evidence proved minor was
larger and stronger than the victim, and had gotten the upper hand in the
altercation after, among other things, his friends took away the victim’s
skateboard and the victim was crouched down with his back to minor. Indeed, several eyewitnesses testified that,
at the time minor inflicted the six stab wounds, the victim had fallen to his
knees with his back to minor and no longer possessed a skateboard or other
protective instrument, much less a deadly weapon. Second, there was testimony from Investigator
Johnson that, before trial, Oscar told her that during a “pause†in the
altercation minor showed him the knife, to which he responded by warning minor:
“Think about what you are about to do.â€
medical records demonstrating that minor’s blows with the knife were unusually
forceful and that each was potentially lethal.
Thus,
as this evidence collectively demonstrates, while minor may have had the right
to defend himself against the victim’s initial attack, which included the
victim chasing minor and swinging a skateboard at him, minor’s resort to deadly
force with the knife was not, and did not appear to be at the time, necessary
for minor’s defense. While there may
have been contrary evidence, it is not the role of this court to “interject
ourselves into the fact finding role.†(People
v. Clark (1982) 130 Cal.App.3d 371, 381; see also People v. Scott (1978) 21 Cal.3d 284, 296 [“uncorroborated
testimony of a single witness is sufficient to sustain a conviction, unless the
testimony is physically impossible or inherently improbableâ€].) Rather, we must presume in support of the
judgment the existence of every fact the fact finder could reasonably deduce
from the evidence. (People v. Clark, supra, 130 Cal.App.3d at p. 381; see also
576.) “It is only when, in light of the
record so viewed, it appears that no reasonable trier of fact could have found
the essential elements of the crime beyond a reasonable doubt that a reversal
of the judgment is proper.†(
at p. 381.) As such, the juvenile
court’s finding that minor committed the assault with a deadly weapon must stand.
II. Was minor deprived of due process?
Minor’s
final contention is that reversal is required because he was denied his
constitutionally-guaranteed right to a jury trial of the criminal charges
against him. Minor reasons that,
although there is generally no right to a jury trial in juvenile court (
Cal.4th 1212, 1225), a sustained petition in his case carried the possibility
of deportation, a punitive rather than rehabilitative consequence requiring an
exception to this general rule. We
disagree.
As the record reflects, following the juvenile court’s
disposition, minor, who had reached the age of majority, was temporarily
confined in a county jail after being transferred to federal immigration
officials for deportation to El Salvador.
30, 2012, during the pendency of this appeal, minor consented through counsel to
voluntary departure from this county in lieu of deportation. For reasons we shall explain, minor’s
voluntary consent to departure renders his constitutional challenge
invalid.
In so concluding, we draw guidance from
Cal.App.3d 48. There, our colleagues in
the Fourth Appellate District, Division One, were asked to consider the
disposition of a juvenile matter involving an illegal alien minor found
to have violated terms of probation.
Similar to our case, the minor in Manuel P.
was released to
federal immigration officials and then delivered to Mexican officials after waiving
a formal deportation hearing.
name="_ftnref10" title="">[10] (In re
Manuel P., supra, 215
Cal.App.3d at pp. 53-55 (cert. denied, Manuel S.P. v. California (1990) 498 U.S.
832.) The appellate court thereafter rejected the minor’s
contention that several of his due process rights, including his right to
appeal the juvenile disposition, were violated because he was, as a
consequence of the juvenile court order, confined in a youth facility in Mexico
“outside the protection of the Constitution.â€
The appellate court did so on the ground that the minor “waived all procedures
by which he could have sought to remain in this country,†including his right
to request a formal deportation hearing or to pursue state processes designed
to stay his return to his home country pending review by the appellate court. (In re Manuel P., supra, 215 Cal.App.3d at pp. 72-73, 74, citing, e.g., § 800; Code Civ. Proc., § 918,
subds. (a), (c); Code Civ. Proc., § 923.) Thus, while the Manuel P. court “agree[d] with Manuel that he, and other
minors ordered returned to juvenile authorities in [their home countries], must
have available procedural avenues which effectively preserve their full
appellate rights,†in that case, “[t]he problem . . . is that Manuel
at no time sought to avail himself of any of them. [¶] Since Manuel was
represented by able trial counsel who was ordered to remain on this case until
statutory time for application of appeal had passed, and the appeal here was
filed prior to his leaving this country, we can only assume Manuel, with the
assistance of counsel, concluded it was in his best interest to return home
regardless of his pending appeal. Under
the circumstances presented here Manuel has not been deprived of
supra, 215 Cal.App.3d at
p. 53.)
We
conclude this reasoning applies squarely to the facts at hand, convincing us
that minor, like Manuel, has not been deprived of due process during these
juvenile proceedings. Like Manuel, minor
was represented by able counsel who we presume was aware of the
available procedural avenues for minor to challenge his return to El
Salvador, the most obvious of which was the
opportunity he had to participate in formal deportation proceedings in federal
court. Nonetheless, minor, through
counsel, voluntarily returned home rather than challenging deportation, despite
the pendency of this appeal. Under such circumstances, we
conclude based on minor’s voluntary decision to waive all procedures by
which he could have sought to remain in this country that he has received all
the due process to which he was entitled.
DISPOSITION
The
juvenile court’s judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
name="_ftn1" title="">[1] Unless otherwise stated herein, all
statutory citations are to the Penal Code.
Omar testified minor and the
victim had once before engaged in a physical alteration.
