Opinion
B228503
10-27-2011
In re B.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. B.V., Defendant and Appellant.
Zoe Rawson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. FJ46305
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Scarlett, Judge. Affirmed.
Zoe Rawson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
Minor and appellant, B.V. (minor) appeals from a judgment of the juvenile court, ordering camp placement after the court sustained a petition filed pursuant to Welfare and Institutions Code section 602 (section 602). We reject minor's sole contention that the adjudication was not supported by substantial evidence, and we affirm the judgment.
BACKGROUND
The People filed a section 602 petition to declare minor a ward of the juvenile court. The petition alleged in count 1 that minor committed misdemeanor vandalism in violation of Penal Code section 594, subdivision (a), and in count 2, that he resisted, obstructed, or delayed a peace officer in violation of section 148, subdivision (a)(1). A previous petition had been sustained in 2009 after minor admitted a robbery charge. Minor was still under the jurisdiction of the juvenile court when the current petition was filed.
All further statutory references are to the Penal Code, unless otherwise indicated.
Los Angeles Police Officer Kevin Shaw testified at the contested adjudication hearing that he detained minor after seeing minor ride his bicycle against the flow of traffic. Minor was arrested after Officer Shaw discovered that minor had an outstanding no bail warrant. At the station Officer Shaw placed minor in a holding cell and told minor that he needed to take minor's property. Officer Shaw instructed minor to remove his shoelaces. Minor replied, "Fuck you" and "You do it."
Intending to place minor into handcuffs, Officer Shaw ordered minor to turn around, but minor merely turned sideways. Officer Shaw grabbed minor's arm and attempted to place minor's hands behind his back, but minor tightened his body and arm muscles in an apparent attempt to resist the officer's action. Then, while continuously ordering minor to give him his arm, Officer Shaw pushed minor toward the wall for better control, and was able to pull minor's hands behind him one at a time. Though it took some strength to overcome minor's resistance Officer Shaw was ultimately able to handcuff minor. Officer Shaw then left minor alone for a few minutes. Upon his return, Officer Shaw saw that though minor was still in handcuffs, his hands were in front of his body. Later, Officer Shaw discovered that his watch had been broken during the incident.
Officer Daniel Weatherholt testified that he went to the holding cell to transport minor. When the officer looked through the window of the holding cell, he saw that minor had "slipped his cuffs," meaning that minor had managed to place his hands in front of his body by either lifting his arms over his head or sliding his arms under his legs. Officer Weatherholt testified that police practice was to handcuff prisoners behind rather than in front. Officer Weatherholt observed minor sitting on a metal bench, carving something into it with his handcuffs. Officer Weatherholt could see the damage to the bench where minor had scraped into the metal.
Officer Weatherholt testified that he banged on the door asking, "Do you think it's funny to vandalize police property?" Minor's response was stricken pursuant to a defense motion alleging a violation of Miranda v. Arizona (1966) 384 U.S. 436.
Minor testified at the hearing and denied having attempted to resist or disobey Officer Shaw. He claimed he was trying to comply with the officer's order to take off his shoelaces, and became offended when the officer told him to hurry. Minor said, "Just do it then if you want me to move quicker." According to minor one of the laces had a knot, so Officer Shaw cut it with his pocket knife, which made minor angry. Minor testified that although he complied with Officer Shaw's direction to stand and put his arms behind his back, the officer pulled minor's hands with a lot of strength, causing minor to react by tensing up. When Officer Shaw pulled his right hand up to the top of his back, minor reacted by pulling it back down.
Minor admitted saying, "Fuck you. You do it," but claimed that he said it when the officer pulled his hand up behind him. Minor claimed that he slid the cuffs down because they hurt. He denied scratching the bench or causing any damage, claiming that graffiti had been etched into it before he arrived. Minor denied that Officer Weatherholt asked whether it was funny to vandalize the property.
The juvenile court found the allegations true as to both counts and sustained the petition. On October 25, 2010, the court ordered that minor remain a ward of the court pursuant to section 602, terminated the previous suitable placement order, and ordered minor to camp for a term of six months with a possible early release after four months. Minor filed a timely notice of appeal from the judgment.
DISCUSSION
I. Standard of review
Minor contends that the true findings as to both counts were unsupported by substantial evidence. A challenge to the sufficiency of the evidence to support a juvenile court judgment sustaining criminal allegations is reviewed under the same standard of review applicable to any criminal appeal. (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Thus, we review the whole record in the light most favorable to the prosecution to determine whether it discloses 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." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372.)
We do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Nor do we evaluate the credibility of witnesses or determine the truth or falsity of the facts found by the juvenile court. (In re Ryan N., supra, 92 Cal.App.4th at p. 1372.) '"[W]e must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]"' (In re V.V., supra, 51 Cal.4th at p. 1026.)
"Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]" (People v. Redmond (1969) 71 Cal.2d 745, 755; see also In re Ryan N., supra, 92 Cal.App.4th at p. 1372.) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
II. Substantial evidence supports vandalism finding
Vandalism consists of maliciously defacing another's property with graffiti or other inscribed material, causing damage. (§ 594, subd. (a).) Minor contends that the prosecution failed to prove he acted maliciously or that he caused damage to the bench.
Minor claims that without evidence that he harbored a particular state of mind, such as anger or hostility, the prosecution failed to prove he acted maliciously. Evidence of anger and hostility are not required to establish malice; although malice in fact consists of actual ill will or intent to injure, malice in law is defined as '"an intent to do a wrongful act."' (In re V.V., supra, 51 Cal.4th at p. 1028.) When used in a penal statute, the word "maliciously" is ordinarily an expression of general criminal intent. (People v. Atkins (2001) 25 Cal.4th 76, 85-86 (Atkins).)
Minor acknowledges that the statutory definition of malice includes not only a "wish to vex, annoy, or injure another person," but also "an intent to do a wrongful act." (§ 7, subd. (4).) However, he quotes the statement in People v. McCree (1954) 128 Cal.App.2d 196, 202 that "maliciously" as used in the arson statute does not mean "intentionally." Minor has taken McCree' s statement out of context; the court referred to the word "intentionally" as used by some to mean "knowingly." (Ibid.) McCree "cannot be followed in its statement that 'maliciously' does not mean 'intentionally'. . . . [Citations.]" (People v. Bohmer (1975) 46 Cal.App.3d 185, 191.)
Substantial evidence established that minor damaged the bench. Officer Weatherholt testified that he saw minor carving into the bench and that he could see the damage. Minor contends that the evidence was insufficient to establish that he intentionally scratched the bench. Drawing an analogy to the malice requirement of arson, minor points out that the California Supreme Court made clear that an accidental or unintentional ignition was not "malicious." (Atkins, supra, 25 Cal.4th at p. 88; § 451; see also In re V.V., supra, 51 Cal.4th at p. 1029.) To support his argument that the scratching was accidental, minor cites his own testimony: "I was trying -- he had put the cuffs so tight around my elbow, my wrist bone, that it was really hurting, so I decided to slide it down, and when the officers came and peeked through the window, he seen it, he thought I was scratching on the bench." Minor concludes that Officer Weatherholt misinterpreted his actions and that the bench had been scratched with graffiti before he was placed in the cell.
The juvenile court was not required to believe minor's testimony. (People v. Thomas (1951) 103 Cal.App.2d 669, 672.) The court obviously believed that Officer Weatherholt observed minor marking the bench and that he saw the resulting scratches. We are bound by the court's credibility findings. (In re Ryan N., supra, 92 Cal.App.4th at p. 1372.)
Further, other substantial evidence supports a reasonable inference that minor's actions were intentional, not an accident that occurred while minor was slipping his handcuffs. As respondent points out, Officer Weatherholt did not see minor slipping his handcuffs, which minor contends was the accidental cause of the scrape. Minor had already accomplished that feat when Officer Weatherholt observed him using a handcuff to carve into the bench. Also, minor's behavior just before Officer Weatherholt observed him suggests that minor intentionally defaced the bench. Minor had been acting defiantly by refusing to remove his shoelaces, cursing at Officer Shaw, refusing to turn around, tightening his muscles, and pulling his arm down to make it harder to handcuff him. Minor was angered by the confrontation, and the handcuffs hurt him. The juvenile court could reasonably deduce from this evidence that defacing jail property was an expression of minor's anger and pain and a continuation of his defiant behavior.
Minor points out that there were no photographs of the bench or other physical evidence, and no testimony that the bench was free of marks prior to his arrival. The testimony of a single witness is sufficient to support a finding, so long as the testimony is not physically impossible or inherently improbable. (People v. Young, supra, 34 Cal.4th at p. 1181.) Nothing in the testimony suggests that Officer Weatherholt could not see what he claimed to have observed.
Finally, minor suggests that we hold, as a matter of law that the scratches were not shown to have been significant enough to establish a violation of section 594, subdivision (a). He relies on In re Leanna W. (2004) 120 Cal.App.4th 735. There, the appellate court refused "[t]o allow a finding of burglary to stand on incidental utility use, without evidence that the individual actually used the utilities." (Id. at p. 742.) In that case, as minor acknowledges, no one observed the minor use the utilities. (Id. at p. 741.) Here, on the other hand, minor was observed in the act of vandalism, and we reject minor's contention that eyewitness observation is insufficient.
III. Substantial evidence supports findings of resisting and delaying
Minor contends that his conduct in the holding cell did not rise "to the level of delaying, resisting or obstructing an officer lawfully engaged in official duty."
"Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed" is guilty of a misdemeanor. (§ 148, subd. (a).) Section 148 encompasses a wide range of conduct, including merely walking or running away, going limp upon arrest, physically resisting arrest, struggling after arrest, and brandishing a weapon. (See People v. Quiroga (1993) 16 Cal.App.4th 961, 967 (Quiroga), and cases cited there.) A refusal to cooperate for a few moments may be a violation of section 148, even without a physical struggle. (See In re Bacon (1966) 240 Cal.App.2d 34, 52, disapproved on another point in In re Brown (1973) 9 Cal.3d 612, 623-624.)
Minor argues that it was not enough that the officer was engaged in official duty. Relying on Quiroga, and In re Gregory S. (1980) 112 Cal.App.3d 764 (Gregory S.), he contends that the evidence should also have established that his official duty was "indispensable," as well as "reasonable" in its "nature and timing." These terms, which minor has plucked out of context from the two cited cases, were conclusions drawn from the particular evidence, limited to the circumstances and not intended to hold that a police officer must routinely justify his performance of any lawful duty.
In Quiroga, the appellate court considered "whether, in the narrow context of a booking interview, appellant's refusal to disclose his name violated Penal Code section 148." (Quiroga, supra, 16 Cal.App.4th at p. 969.) The court concluded that "[t]he routine booking interview is an indispensable procedure in the efficient administration of justice. [Citations.]" (Id. at p. 971.) In Gregory S., the minor asserted that his detention had been unlawful. (Gregory S., supra, 112 Cal.App.3d at pp. 772-776.) The appellate court disagreed, and thus found that the officer's restraining him by holding his arm "was reasonable both in nature and timing." (Id. at p. 778.)
Here, minor did not refuse to identify himself as in Quiroga, and does not contend that his detention or arrest was unlawful, as asserted in Gregory S. The quoted terms have no application to the instant case.
Minor also bases his argument on two other words, "compelling reason," also taken out of context from Quiroga, supra, 16 Cal.App.4th at page 966. Adding his own language, minor contends that the prosecution was required to show that the officer had a "compelling reason" to discharge the particular duty. Pointing to his own "uncontradicted" testimony that Officer Shaw cut off his shoelaces before attempting to handcuff him, minor then argues that the handcuffing was unnecessary. In Quiroga, the court used the quoted words to observe that where an officer has no "compelling reason" to ask questions regarding identity prior to booking, a refusal to respond could implicate the Fifth Amendment. (See Quiroga, supra, at pp. 966-967.) Here, minor makes no Fifth Amendment argument, and he was not charged with refusing to answer questions. Again, the isolated terms have no application to the issues in this case.
Minor's testimony was not uncontradicted. When Officer Shaw asked minor for his shoelaces, minor replied, "Fuck you" and "You do it." Officer Shaw testified, "At that time I ordered [minor] to turn around again to place him back into the handcuffs." (Italics added.) Thus, Officer Shaw acted the moment minor told him to take the shoelaces himself. Minor does not argue that it was unnecessary to remove his shoelaces before he was left alone in a holding cell, and his suggestion that it was unnecessary to restrain a cursing, defiant adolescent before doing so is without merit, as it would require the officer to risk his own safety. Regardless, we must accept the juvenile court's resolution of this conflict by rejecting minor's testimony. (See People v. Young, supra, 34 Cal.4th at p. 1181; In re Ryan N., supra, 92 Cal.App.4th at p. 1372.)
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Next, minor contends that, other than engaging in protected speech by cursing, he did no more than move too slowly and briefly tense his arm. Minor grossly understates the evidence in an apparent effort to compare the facts with those in Quiroga where prior to arrest, the defendant told officers to leave his apartment, insisted that they had no legal right to be there, and complied very slowly with their orders. (Quiroga, supra, 16 Cal.App.4th at pp. 964-965.) The court commented: "[I]t surely cannot be supposed that Penal Code section 148 criminalizes a person's failure to respond with alacrity to police orders. Moreover, appellant possessed the right under the First Amendment to dispute [the officer's] actions." (Quiroga, at p. 966.)
Unlike the conduct at issue in Quiroga, minor's conduct was not a simple delay in responding to a directive from a police officer while engaging in protected speech. Viewed in the light most favorable to the judgment, minor did a great deal more than curse, move slowly, and tense his arm. Minor disobeyed Officer Shaw's request to remove his shoelaces by challenging the officer to do it himself. When ordered to turn around, minor disobeyed by merely turning sideways. Minor disobeyed Officer Shaw's order to give him minor's arm, and then tightened both his body and arm muscles, making the officer's effort more difficult. Minor admitted that he pulled his arm down after the officer had pulled it up in back. Officer Shaw testified that he had to use the cell wall to control minor, and that it took strength to overcome his resistance. Indeed his watch was broken during the encounter. In short, minor is mistaken in asserting that there was no evidence of a struggle or an attempt to remove himself from the officer's restraint.
The juvenile court found that minor "was angry, he was not cooperating, he was making it difficult to let the officer do what he was supposed to be doing. He was delaying him, [the officer was] wasting time with him and his antics instead of going on to do something else. That's delaying." We conclude that substantial evidence supports the court's findings.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________ , J.
CHAVEZ
We concur:
_______________ , Acting P. J.
DOI TODD
_______________ , J.
ASHMANN-GERST