Filed 3/12/15 In re A.R. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E058924 Plaintiff and Respondent, (Super.Ct.No. J246600) v. OPINION A.R.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Barbara A.
Buchholz, Judge. Affirmed with directions.
Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Sabrina
Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
1 The San Bernardino County District Attorney filed a Welfare and Institutions
Code section 602 petition alleging that defendant and appellant A.R. (minor) resisted a
peace officer (Pen. Code, § 148, subd. (a)(1)1, count 1) and committed battery with injury
on a peace officer (Pen. Code, § 243, subd. (c)(2), count 2). A juvenile court found both
allegations true. Minor was previously declared a ward of the court for another offense
and was placed on probation. Thus, the court continued him as a ward on probation, with
additional terms.
On appeal, minor contends that the trial court erred in denying his motion to
dismiss under Welfare and Institutions Code section 701.1 as to counts 1 and 2. He
specifically argues that: (1) as to count 1, there was insufficient evidence that the officer
was lawfully performing her duties; (2) as to count 1, there was insufficient evidence that
he knew or reasonably should have known that the officer was a peace officer; and
(3) there was insufficient evidence to support the true finding in count 2 because he was
acting in self-defense. Both parties agree that the record should be modified to reflect
that the court’s true finding in count 2 was a violation of Penal Code section 243,
subdivision (b), not subdivision (c)(2). We direct the superior court to amend the minute
order and Juvenile Detention Disposition Report with regard to count 2. Otherwise, we
affirm.
1 All further statutory references will be to the Penal Code, unless otherwise noted.
2 FACTUAL AND PROCEDURAL BACKGROUND
Officer Ernesto Hernandez was a campus security officer for Colony High School.
At the jurisdictional hearing in this matter, he testified that, on March 14, 2013, he
responded to a call for service at the high school nurse’s office in the early afternoon.
When he arrived at the nurse’s office, minor was sitting on a bed. The nurse and assistant
principal were standing in the office with him. Officer Hernandez asked minor if he
wanted to stay in the nurse’s office or go to the assistant principal’s office, where he was
supposed to receive discipline. Minor did not respond, but got up and started to walk out
of the nurse’s office. Officer Hernandez assumed minor was going to the assistant
principal’s office, but minor started walking the opposite direction. Officer Hernandez
called him to come back and go to the assistant principal’s office. Minor ignored him
and kept walking.
Officer Maria Paredes was the school resource officer at Colony High School, and
her role was to protect the safety of the students and faculty. She received a call from the
dean’s office that same day, while she was on her lunch break. There was a male on
campus who was thought to be a non-student from Los Angeles visiting his girlfriend.
Officer Paredes was called because the school had past instances where people had come
onto the campus to fight other students or confront faculty members. She returned to
campus after receiving that call. Officer Paredes was dressed in her police uniform,
which had patches on both arms and a badge on the front identifying her as a police
officer. She walked through the front lobby and headed to the dean’s office. As she was
3 walking toward the office, she saw minor. Officer Hernandez saw Officer Paredes about
15 feet away, flagged her down, and told her to stop minor because he was trying to leave
the school without permission. Officer Hernandez testified that he raised his left hand
and said, “He won’t stop. He’s trying to leave.” Officer Paredes testified that Officer
Hernandez motioned to her and said something to indicate that minor was the person she
was looking for.
Officer Paredes turned around and saw minor going toward the doors in the front
lobby. Minor was on his phone. Officer Paredes was behind him and did not think he
would hear her, so she tugged on his “hoodie” to get his attention. Minor spun around
and began cussing at her. Officer Paredes saw minor’s face after he spun around. Minor
threw his arms up as he spun around, and Officer Paredes thought he was going to hit her.
By that time, Officer Hernandez was behind minor so he immediately grabbed both of
minor’s arms for a few seconds until minor broke loose. Officer Paredes pushed minor
against the door to get him away from her. Minor kept cussing and pushed her to try to
get away. Officer Paredes then pushed him against the wall. Minor asked why she was
touching him, and she told him he was being detained. Minor continued to fight, cuss,
and argue, and he and Officer Paredes fell down to the ground about three times. She
kept telling him to stop, but he would not listen. During the fight, Officer Paredes asked
Officer Hernandez to get her taser gun out of the holster and give it to her. The school
principal was there, so he gave it to her. Officer Paredes then decided to place handcuffs
on minor, so she asked the principal to take the handcuffs out of her utility belt. The
4 principal did so and gave the handcuffs to Officer Hernandez, who placed them on minor.
As Officer Paredes conducted a patdown search for weapons, minor continued to be
combative by cussing, getting in her face, and yelling at her. Even though Officer
Paredes told him to stop, he ignored her request.
On cross-examination, Officer Paredes testified that when the dean’s assistant
called her to come to the school to help with the possible trespasser, the assistant did not
give her a physical description of the trespasser. Officer Paredes also testified that,
before she tugged on minor’s hoodie from behind, she did not make eye contact with
him, and she did not verbally identify herself as a police officer or tell him to stop. She
expected him to stop and turn around to see who had tugged on his hoodie. Instead, he
turned around, yelling and cussing at her to “get [her] f---ing hands off [him].” Minor
asked why she was stopping him, and she just told him he was being detained, but did not
say why.
At the close of the prosecution’s evidence, minor’s counsel moved to dismiss the
allegations in both counts, pursuant to Welfare and Institutions Code section 701.1. The
court heard extensive argument by counsel. The court asked for clarification on whether
the allegation in count 2, under section 243, was for battery with injury on a peace
officer. The court noted there was no evidence of injury to a peace officer presented.
The prosecutor stated that the offense was not titled correctly in the petition and that it
should have alleged that minor committed battery on a peace officer (§ 243, subd. (b)),
5 not battery with injury on a peace officer (§ 243, subd. (c)(2)). The court then denied the
defense motion to dismiss.
Defense counsel called minor to testify. He testified that he was trying to leave
campus on the day of the incident because he felt sick. Minor said he became angry
because the campus security officer came to the nurse’s office. Minor started cussing.
He was told to go to the dean of discipline’s office; however, he did not want to go there.
He just wanted to leave campus.
Minor testified that he was on the phone with his mother when someone grabbed
him by his hoodie. At first he thought it was a friend or somebody he knew grabbing
him. However, he swung around and saw it was a police officer. Minor had his phone to
his cheek, and raised his left hand up, just above his shoulder. He tried to put his phone
in his pocket, and the officer grabbed his hands. Minor said he knew he was under arrest
for something he did not do. Then, the officer pushed him to the wall. Minor denied that
the officer gave him any commands. He also said that Officer Hernandez grabbed his
arm and put it behind his back. Officer Hernandez then put his arm around minor’s neck.
In response, minor ducked out of the hold and moved away. Minor tried to get away
from the officers. Officer Hernandez pushed minor toward Officer Paredes. Minor fell
on top of her, and the three of them fell on the ground.
After hearing the testimony and closing arguments, the court found the allegations
in both counts 1 and 2 true.
6 ANALYSIS
I. The Court Properly Denied the Motion to Dismiss the Allegation in Count 1
Minor argues that the trial court erred in denying the motion to dismiss the
allegation in count 1 for resisting a peace officer (§ 148, subd. (a)(1)) since there was
insufficient evidence to sustain a true finding. Specifically, he contends there was
insufficient evidence that: (1) Officer Paredes was lawfully performing her duties as a
peace officer; and (2) minor knew or reasonably should have known that Officer Paredes
was a peace officer. We disagree.
A. Standard of Review
Welfare and Institutions Code “[s]ection 701.1 provides that a minor’s counsel
may request, at the close of the People’s case, that the court enter a judgment of
dismissal: ‘At the hearing, the court, on motion of the minor or on its own motion, shall
order that the petition be dismissed and that the minor be discharged from any detention
or restriction therefore ordered, after the presentation of evidence on behalf of the
petitioner has been closed, if the court, upon weighing the evidence then before it, finds
that the minor is not a person described by Section 601 or 602.’” (In re Anthony J.
(2004) 117 Cal.App.4th 718, 727; see also § 701.1.)
“Courts have held that [Welfare and Institutions Code] section 701.1 is
substantially similar to Penal Code section 1118 governing motions to acquit in criminal
trials and that therefore the ‘rules and procedures applicable to [Penal Code] section 1118
. . . apply with equal force to juvenile proceedings.’ [Citation.]” (In re Anthony J.,
7 supra, 117 Cal.App.4th at p. 727.) Thus, “the requirement in a criminal case that on a
motion for acquittal the trial court is required ‘to weigh the evidence, evaluate the
credibility of witnesses, and determine that the case against the defendant is “proved
beyond a reasonable doubt before [the defendant] is required to put on a defense”’ applies
equally well to motions to dismiss brought in juvenile proceedings. [Citation.]” (Ibid.)
“Consequently, the standard for review of the juvenile court’s denial of a motion to
dismiss is whether there is substantial evidence to support the offense charged in the
petition. [Citation.] In applying the substantial evidence rule, we must ‘assume in favor
of [the court’s] order the existence of every fact from which the [court] could have
reasonably deduced from the evidence whether the offense charged was committed and if
it was perpetrated by the person or persons accused of the offense. [Citations.]
Accordingly, we may not set aside the trial court’s denial of the motion on the ground of
the insufficiency of the evidence unless it clearly appears that upon no hypothesis
whatsoever is there sufficient substantial evidence to support the conclusion reached by
the court below.’ [Citations.]” (In re Man J. (1983) 149 Cal.App.3d 475, 482.)
B. There Was Sufficient Evidence to Support the Court’s True Finding
Section 148, subdivision (a)(1), provides in pertinent part, that “ ‘[e]very 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.” (In re Muhammed C. (2002)
95 Cal.App.4th 1325, 1329.) The elements of a violation of section 148, subdivision (a),
8 are as follows: “‘(1) the defendant willfully resisted, delayed, or obstructed a peace
officer, (2) when the officer was engaged in the performance of his or her duties, and
(3) the defendant knew or reasonably should have known that the other person was a
peace officer engaged in the performance of his or her duties. [Citations.]’ [Citation.]”
(Ibid.) Implicit in the second element is the requirement that the officer was acting
lawfully at the time the offense against him was committed. (In re Joseph F. (2000) 85
Cal.App.4th 975, 982.) “Section 148 is most often applied to the physical acts of a
defendant. [Citation.] For example, physical resistance, hiding, or running away from a
police officer have been found to violate section 148. [Citations.]” (In re Muhammed C.,
supra, 95 Cal.App.4th at p. 1329.)
1. The Evidence Showed That Officer Paredes Was Lawfully Performing Her
Duties
Minor first argues the evidence did not show that Officer Paredes was lawfully
performing her duties as a peace officer, since the detention was conducted “in an
arbitrary, capricious or harassing manner.” Minor specifically asserts that the detention
was not based on articulable facts, since Officer Paredes was not given a description of
the person who was allegedly trespassing on campus. He further asserts there was no
evidence that he broke a school rule or failed to follow a command by Officer Paredes.
Finally, he states that Officer Paredes initiated the detention through aggressive physical
contact with him “by tugging and grabbing his clothing and taking him from behind by
9 surprise without any verbal warning, command or self-identification.” We conclude that
Officer Paredes acted lawfully.
The evidence showed that Officer Paredes was lawfully engaged in the
performance of her duties when she detained minor. According to her testimony, she was
on her lunch break when she received a call to return to the school to address the problem
of a possible non-student trespassing on campus. When she arrived at the school, the
campus security officer, Officer Hernandez, saw her and flagged her down. Officer
Paredes testified that Officer Hernandez motioned to her and said something to indicate
that minor was the person she was looking for. Given this information, it was reasonable
for Officer Paredes to detain minor to see if he was trespassing. She turned around and
saw minor going toward the front lobby, so she attempted to detain him. Officer Paredes
was fulfilling her responsibility to provide a safe and secure environment for Colony
High School.
Minor argues there were insufficient grounds to support the detention, since
Officer Paredes “had no specific, articulable facts upon which to rely to believe that
minor had or was about to commit a crime.” He further asserts that she had no
description identifying him as the purported trespasser, and she did not observe him
violate any school rules. However, school officials or police officers “have the power to
stop a minor student in order to ask questions or conduct an investigation even in the
absence of reasonable suspicion, so long as such authority is not exercised in an
arbitrary, capricious, or harassing manner.” (In re Randy G. (2001) 26 Cal.4th 556, 559,
10 italics added; see also In re William V. (2003) 111 Cal.App.4th 1464, 1470-1471.) This
is so because, “[u]nlike a citizen on the street, a minor student is ‘subject to the ordering
and direction of teachers and administrators. . . . [¶] [A student is] not free to roam the
halls or to remain in [the] classroom as long as she please[s], even if she behave[s]
herself. She [is] deprived of liberty to some degree from the moment she enter[s] school,
and no one could suggest a constitutional infringement based on that basic deprivation.’
[Citations.]” (In re Randy G., at p. 563.) Furthermore, “police who assist in maintaining
general order on school campuses[] need not articulate a specific crime which appears to
be violated in order to detain an outsider for the limited purpose of determining the
fundamental factors justifying an outsider’s presence on a school campus.” (In re Joseph
F., supra, 85 Cal.App.4th at p. 986.) Thus, Officer Paredes had the authority to stop
minor to investigate whether he was a trespasser.
We note minor’s argument that testimony from Officer Hernandez as to events
occurring before Officer Paredes’s involvement cannot be used to “justify the
‘lawfulness’” of the detention. In support of this argument, minor asserts that the
“collective knowledge” doctrine does not apply here, and that Officer Paredes’s actions
“must be judged based on the knowledge and actions of [her] alone at the time she
conducted the detention.” Minor appears to be arguing that we cannot impute Officer
Hernandez’s knowledge from his interactions with minor in the nurse’s office or the
hallway to support Officer Paredes’s detention of minor. We agree. The evidence does
not show that Officer Paredes knew minor was supposed to go from the nurse’s office to
11 the assistant principal’s office2 to receive discipline and ignored Officer Hernandez’s
command to do so. In any event, Officer Paredes’s detention of minor was not based on
that conduct. Rather, as discussed ante, Officer Paredes was responding to a call from
the school office that there was a possible non-student trespassing on campus. When she
arrived at the school, Officer Hernandez saw her, flagged her down, and indicated that
minor was the person she was looking for. Regardless of what Officer Hernandez’s
intention was in flagging Officer Paredes down, Officer Paredes detained minor to
determine if he was the trespasser that the office had called her to investigate.
Minor further contends that Officer Paredes’s initial contact with him consisted of
“grabbing minor’s clothing from behind with no advanced warning, no request to stop,
and no presentation of the officer about her identity or reason for the detention.” Minor
describes Officer Paredes’s initial contact as “an unannounced and aggressive physical
contact with minor from behind in a surprise move.” He asserts that the contact here
“was a greater initial intrusion than in a case where an officer stopped a student to ask a
question after identifying him/herself to the student and the student and officer [could]
see each other.” In support of his argument, he cites the factual background in In re
Joseph F., supra, 85 Cal.App.4th at p. 980. The officer in that case did identify himself
as a police officer and ask the defendant to stop, in order to determine if he should be
arrested for trespassing on school grounds. However, the In re Joseph F. court did not
2 We note that Officer Hernandez testified that minor was supposed to go to the assistant principal’s office, while minor testified that he was supposed to go to the dean of discipline’s office. These two testimonies are not necessarily inconsistent.
12 hold that a school officer is required to identify himself before requesting a student to
stop. Moreover, we disagree with minor’s characterization of the initial contact. Officer
Paredes testified that minor was on the phone, and she did not think he would hear her;
so, she simply “tugged on his hoodie to get his attention.” This action could hardly be
considered aggressive. In addition, minor immediately spun around and saw Officer
Paredes face-to-face. She was wearing her police uniform, with patches on both arms
and a badge on the front. Since minor could clearly see that she was a police officer,
there was no need for her to identify herself further.
Minor further argues that Officer Paredes was not lawfully performing her duties,
since she allegedly used excessive force against him. He asserts that when he spun
around to see who grabbed him, Officer Paredes immediately grabbed his wrist and
pushed him into the door and wall. “The reasonableness of a particular use of force is
judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision
of hindsight. The inquiry is an objective one: Was the officer’s action objectively
reasonable in light of the facts and circumstances confronting him, without regard to his
underlying intent or motivation? [Citation.] It is a pure question of fact whether a police
officer used reasonable force in detaining a defendant, so reviewing courts determine if
there is sufficient evidence in the record for a reasonable trier of fact to conclude that the
force used in effectuating a detention was reasonable. [Citation.]” (In re Joseph F.,
supra, 85 Cal.App.4th at p. 989.)
13 Here, as discussed ante, Officer Paredes merely tugged on minor’s hoodie to get
his attention. Officer Paredes pushed minor only after minor spun around, cussed at her,
and threw his arms up in such a way that she thought he was going to hit her.
Furthermore, when minor asked why she was touching him, she told him he was being
detained. Nonetheless, he continued fighting, cussing, and arguing. Minor claims that
his aggressive conduct “was an instinctive reaction, and a logical and natural response of
self-defense against Officer Parades’ initial use of unannounced, unexplained, excessive
force.” However, we disagree and do not consider his response reasonable. There was
no reason for minor to fight, struggle, and refuse to comply with the officer. Moreover, it
was reasonable for Officer Paredes to view minor’s hostile conduct as being an indicator
of a lack of legitimate presence on campus, thus justifying an increased effort in effecting
a detention. (See In re Joseph F., supra, 85 Cal.App.4th at p. 985.) Since Officer
Paredes had the right to determine who minor was and why he was on the school
grounds, her escalating efforts at detention were reasonable, given minor’s resistance.
(Ibid.)
2. Minor Knew or Reasonably Should Have Known That Officer Paredes Was a
Peace Officer
Minor also argues that the court erred in denying the motion to dismiss because
there was insufficient evidence that, at the time he reacted to Officer Paredes tugging on
his hoodie, he knew or reasonably should have known that she was a peace officer
attempting to perform her duties. He specifically asserts that Officer Paredes grabbed
14 him from behind without identifying herself, and there was no evidence he could see her
or her uniform.
The offense of resisting an officer (§ 148, subd. (a)) occurs when the defendant
willfully resists a peace officer, when the officer is engaged in the performance of her
duties, and the defendant knows or reasonably should know that the person is an officer
engaged in the performance of her duties. (In re Muhammed C., supra, 95 Cal.App.4th at
p. 1329.) In other words, the offense proscribes the act of willfully resisting the officer
when the defendant knows the person is an officer. (Ibid.) Here, defendant is correct that
when Officer Paredes tugged on his hoodie from behind, he did not know she was an
officer. However, the evidence showed that he reacted to her aggressively and resisted
her while he turned around and after he faced her. Given that Officer Paredes had her
police uniform on, minor knew or reasonably should have known she was an officer.
Nonetheless, even after he turned around and saw her, he continued to resist by cussing at
her and throwing up his arms as if he was going to hit her. We note that “section 148 ‘is
not limited to nonverbal conduct involving flight or forcible interference with an officer’s
activities. No decision has interpreted the statute to apply only to physical acts, and the
statutory language does not suggest such a limitation.’ [Citation.]” (Id. at pp. 1329-
1330.)
Because we find that Officer Paredes could properly detain minor to determine
whether he was permissibly present on campus, there was sufficient evidence to conclude
that she was acting lawfully in the performance of her duties. She did not use excessive
15 force, and minor knew or reasonably should have known that she was an officer. Thus,
the evidence was sufficient to support the juvenile court’s finding that minor violated
Penal Code section 148, subdivision (a). Accordingly, the court properly denied his
motion to dismiss under Welfare and Institutions Code section 701.1.
II. The Court Properly Denied the Motion to Dismiss the Allegation in Count 2
Minor next argues that the trial court erred in denying the motion to dismiss the
allegation in count 2 for battery on a peace officer since there was insufficient evidence
to sustain a true finding. He essentially makes the same arguments he made regarding
count 1, namely that there was insufficient evidence that Officer Paredes was lawfully
performing her duties, or that he knew or reasonably should have known she was a peace
officer. He also argues that he acted in self-defense in response to Officer Paredes’s use
of excessive force. We conclude that the court properly denied the motion to dismiss as
to count 2.
“A battery is any willful and unlawful use of force or violence upon the person of
another.” (§ 242.) A violation of section 243, subdivision (b), occurs when a battery is
committed against a peace officer “engaged in the performance of his or her duties . . .
and the person committing the offense knows or reasonably should know that the victim
is a peace officer . . . .”3
Minor incorporates by reference the arguments made ante that there was
insufficient evidence that Officer Paredes was acting lawfully in the performance of her
3 See § III., post, regarding the battery finding in count 2.
16 duties when she detained him, and that he knew or reasonably should have known she
was a peace officer. (Ante,§ I.) For the reasons discussed ante, we disagree. (Ante, § I.)
Minor additionally argues there was insufficient evidence that he pushed or made
contact with Officer Paredes, other than in self-defense. The record shows otherwise.
“Even if a detention were unlawful, a person may not use force or violence to resist it
unless the police officer effectuated the unlawful detention by excessive, i.e.,
unreasonable, force. [Citations.]” (In re Joseph F., supra, 85 Cal.App.4th at p. 989.)
Here, the detention was lawful, and Officer Paredes did not effectuate it with excessive
force. (Ante, § I.) Nonetheless, the evidence demonstrated that minor used force and
violence to resist her, but not in self-defense. (See People v. Pinholster (1992) 1 Cal.4th
865, 966 [“[A]ny right of self-defense is limited to the use of such force as is reasonable
under the circumstances”], overruled on other grounds, as stated in People v. Williams
(2010) 49 Cal.4th 405, 459.) As discussed ante, Officer Paredes simply tugged on
minor’s hoodie. In response, minor immediately spun around, starting cussing at her, and
threw his arms up as if he was going to hit her. He proceeded to resist and fight her, even
after she told him he was being detained. Furthermore, he failed to respond to her
commands to stop resisting.
We conclude there was sufficient evidence that Officer Paredes was acting
lawfully in the performance of her duties, that minor knew or reasonably should have
known that Officer Paredes was an officer, and that minor willfully used unlawful force
17 or violence against her. Accordingly, the court properly denied minor’s motion to
dismiss under Welfare and Institutions Code section 701.1.
III. The Record Should Be Modified With Regard to Count 2
The record reflects the allegation and the court’s true finding on count 2 as a
violation of section 243, subdivision (c)(2), which is battery with injury to a peace
officer. Both parties agree that the allegation on count 2 was actually for battery on a
peace officer (with no injury), pursuant to section 243, subdivision (b). Thus, the April
30, 2013 minute order and the Juvenile Detention Disposition Report should be amended
to reflect the proper statute.
DISPOSITION
The superior court clerk is directed to amend the April 30, 2013 minute order and
the Juvenile Detention Disposition Report to reflect that the court found true the
allegation in count 2 that minor committed battery on a peace officer, pursuant to section
243, subdivision (b). Otherwise, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
RICHLI J.
CODRINGTON J.