Opinion
A130076
08-03-2011
In re A.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. J10-00473)
A.F. (the minor) appeals from an order sustaining the allegations of a juvenile wardship petition and placing her on probation for six months. She argues that the court's finding that she brandished a knife in violation of Penal Code section 417, subdivision (a)(1) is not supported by substantial evidence and that the statute is unconstitutionally vague because it fails to provide fair notice that brandishing a knife in a private home is unlawful. She also argues that she received ineffective assistance of counsel. We shall affirm.
Factual and Procedural Background
On April 29, 2010, a petition was filed under Welfare and Institutions Code section 602, subdivision (a) alleging that the minor had brandished a knife in violation of Penal Code section 417, subdivision (a)(1). The following evidence was admitted at the jurisdictional hearing:
All statutory references are to the Penal Code unless otherwise noted.
The then 16-year-old minor has a history of severe depression and had been hospitalized several times for suicidal activity and "cutting behaviors." The 36-year-old victim, Heather Jeffery, had been friends with the minor and her parents for about eight years. She had a close relationship with the minor and had informally counseled the minor in connection with her depression. A few months before the incident, however, the parents had asked Jeffery to no longer have any contact with their daughter. According to Jeffery, the minor's parents had "accused [her] of some very ugly things."
The minor's mother explained that she and Jeffery disagreed about the way they were raising their daughter. Jeffery "made it clear that children should not be censored from what's going on in adults' lives, that [the minor] doesn't have to follow her parents' rules, [and that] she is old enough to make her own decisions. And she would utilize [the minor] to do her house cleaning, her babysitting her dogs and promise to pay her and never pay her. And Ms. Jeffery was having relationship problems that she was speaking to a minor about. All of those things started coming to light."She also felt Jeffery was not taking the minor's mental health issues seriously and was not relaying important information to the parents.
On the afternoon of February 2, 2010, the minor went to Jeffery's house. Jeffery told her that she could no longer be a part of her life and asked her to leave. The minor was very upset. When the minor did not leave, Jeffery decided she would leave. As she picked up her keys and began walking towards the garage, the minor pulled a knife from under the leg of her pants and said in a "very deep and very dark" voice, "you are not going anywhere." The minor pointed the knife at Jeffery, coming within six to 18 inches of her. Jeffery was scared and began to cry. She asked the minor "What are you going to do? Are you going to hurt you? Are you going to hurt me?" The minor dropped the knife and immediately called her mother. As the minor talked on the phone, Jeffery put the knife in a drawer and called a friend. The friend said that she would call the minor's mother to explain what had happened.
When the minor's mother arrived, Jeffery and the minor went outside to meet her. They did not discuss the incident, but mother reiterated that she did not want Jeffery communicating with the minor. The mother left a few minutes later, allowing the minor to walk home with her dog. Once the minor left, Jeffery called the police and gave the responding officers the knife. About 30 minutes later, the police contacted the minor's mother to report that the minor had been found on the side of the road attempting suicide.
The minor testified in her own defense. She claimed that she was "extremely depressed" that afternoon and had taken the knife to the park because she felt the urge to cut herself. She changed her mind, however, and decided to visit Jeffery. She explained, "I was hoping that I could go to her and she could help me out because I had been able to talk with her about this kind of stuff before." She also testified, "When I was in the hospital, I heard a lot of negative things about her . . . spreading my mental health issues and not agreeing with my parents . . . So I wanted to go and hear her side of the story." When she arrived at Jeffery's house, Jeffery told her she was not supposed to be there. The minor admitted that she pulled the knife out of her boot and showed it to Jeffery to get her attention. She explained, "I didn't want to interrupt her bluntly, but, you know, I had gone to her for help . . . . [W]hen [Jeffery] saw it, she gasped. And one of the first things she said is, are you going to hurt me? And she started crying." The minor described Jeffery's reaction to the knife as "a crying hysteria." The minor told Jeffery that she was not going to hurt her, she wanted to hurt herself. Because Jeffery "obviously had taken [her] action in the wrong way," the minor dropped the knife, kicked it away and called her mother. She denied ever telling Jeffery, "You are not going anywhere."
The court sustained the allegations of the petition and placed the minor on probation for six months in her parents' custody without declaring her a ward of the court. The minor filed a timely notice of appeal.
Discussion
1. Substantial evidence supports the jurisdictional finding.
Section 417, subdivision (a)(1) provides in relevant part, "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner . . . is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days." Section 417 "does not require, as a matter of the crime's definition, an intent to harm, or a likelihood of harming, any person. Instead, it is a general intent crime that does not require an intent beyond that to do the proscribed act." (People v. Hall (2000) 83 Cal.App.4th 1084, 1091-1092.) The court found that the minor "pulled the knife on her friend because she was upset" and in light of "the back and forth between the two parties and a relationship that was close and somewhat complicated" that the knife was "exhibited in a rude and threatening manner."
Initially, the minor contends that there is insufficient evidence that the knife was a deadly weapon. "[A] 'deadly weapon' is any 'object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Jeffery described the knife as "between five and seven inches long with a sharp edge." It was silver and had a sharp blade not "like a butter knife." Jeffery's description is sufficient to support the court's finding.
In re Brandon T. (2011) 191 Cal.App.4th 1491, cited by the minor, is distinguishable. In that case, the court found that the "butter knife" used by the minor, which had a blade that was "about three and a quarter inches long, with a rounded end and slight serrations on one side," was not "capable of producing death or great bodily injury." (Id. at pp. 1496-1497.) The knife used in this case was larger and sharper and, based on the minor's own testimony, was selected for its ability to cut skin.
The minor also argues that there is insufficient evidence she displayed the knife in a rude, angry, or threatening manner. Jeffery's testimony, however, that the minor pointed the knife at her and told her she wasn't going anywhere is sufficient to support the court's finding.
Moreover, even without the disputed threat, there is ample evidence to support the court's finding. As set forth above, the minor acknowledges that after being asked to leave Jeffery's house, she removed the knife from her boot to show Jeffery. The minor also acknowledged that she was standing between Jeffery and the front door when she displayed the knife and that Jeffery had previously indicated that she needed to leave for a dinner. She could not recall if Jeffery had picked up her keys yet. Jeffery and the minor were clearly involved in an emotional situation. The minor described herself at the time as "extremely depressed" and "not feeling very well" and Jeffery was "in a panic" because she was not supposed to be in contact with the minor. Although the minor claims she did not want to interrupt Jeffery "bluntly," she clearly intended to display the knife to Jeffery to get her attention. Jeffery was clearly frightened by the manner in which the knife was displayed, evidenced by her gasping, crying, and questions. While the minor might not have intended to threaten Jeffery with the knife, a reasonable person in the same situation would likely feel threatened by the manner in which the knife was displayed.
2. Section 417, subdivision (a)(1) is not unconstitutionally vague.
The minor contends that she was denied fair notice that her conduct was unlawful under section 417. She argues that she was not given notice that subdivision (a)(1) prohibits the brandishing of a weapon in a private residence, rather than in a public place. The plain language of section 417 refutes her claim. As quoted above, section 417, subdivision (a)(1) contains no limitation as to where the brandishing must occur to constitute a misdemeanor. In contrast, a violation of section 417, subdivision (a)(2), which prohibits the brandishing of a firearm, turns in part on where the crime occurs: "If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment." (§ 417, subd. (a)(2)(A).) In all other cases, the offense of brandishing a firearm is "a misdemeanor, punishable by imprisonment in a county jail for not less than three months." (§ 417, subd. (a)(2)(B).)
Despite the lack of ambiguity in the language of the statute, the minor argues that the statute failed to provide adequate notice because "section 417 has generally been understood to proscribe public brandishing of weapons." The fact that the statute is more often applied in circumstances in which the weapon is brandished in public does not mean that the statute is not applicable in other circumstances that clearly fall within the statutory language. In People v. Hall, supra, 83 Cal.App.4th at page 1092, the court noted that " 'the chief evil to be avoided by criminalizing exhibition of weapons is the potential for further violence.' " The potential for violence is increased by brandishing a weapon in either a public or private location.
The minor's reliance on People v. McKinzie (1986) 179 Cal.App.3d 789, 794 is misplaced. In that case, the court rejected the defendant's argument that section 417, subdivision (a)(2) required that the victim be aware of the brandishing. The court explained, "For purposes of the conduct which the statute is meant to deter, it is enough that the brandishing be in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or brandisher need help, or might think a brawl is in the making which he might join. The thrust of the offense is to deter the public exhibition of weapons in a context of potentially volatile confrontations. The victim's unawareness of the weapon does little to mitigate the danger inherent in such situations." Nothing in the opinion suggests that the statute does not also apply to situations such as this, where the weapon is brandished in a private residence and the victim is aware of the weapon.
3. The minor received effective assistance of counsel.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.)"To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.) 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland, supra, 466 U.S. at p. 694.)" (In re Wilson (1992) 3 Cal.4th 945, 950.) An appellate court, however, "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.) These standards apply in juvenile wardship proceedings. (Johnny S. v. Superior Court (1979) 90 Cal.App.3d 826, 828; In re Julius B. (1977) 68 Cal.App.3d 395, 401.)
The minor contends that her attorney rendered ineffective assistance by failing to "fully impeach [Jeffery] with evidence of her prior inconsistent statements to law enforcement and other evidence of her dishonesty and bias." She argues that Jeffery should have been impeached with a statement she made to the police at the time of the incident that the minor held the knife at a 45-degree angle and did not reach out with the knife or strike her with it. The minor also relies on allegations made by the minor's mother that Jeffery attempted to impersonate her to gain access to the minor in the hospital and on a separate occasion allowed the unlicensed minor to drive her car. Finally, she contends that her attorney should have introduced expert testimony that the minor uses "self-cutting behaviors as a way of heading off her suicidal thoughts" to explain why the minor removed the knife from her boot when she became upset. She argues, "This was critical evidence as demonstrated by the court's disinclination to credit [the minor's] testimony she intended to use the knife to harm herself, and not to threaten [Jeffery]."
None of the additional matters to which the minor refers, if presented, can reasonably be expected to have resulted in a more favorable outcome. Although she frames the case as involving a credibility contest between her and Jeffery, the victim's testimony is in large part consistent with Jeffery's and, as set forth above, the minor's testimony alone supports the court's finding. There was no dispute that the minor had significant mental health concerns and that the relationship between Jeffery, the minor, and her parents was complicated and contentious. Any potentially conflicting statements regarding the positioning of the knife is not likely to have impacted the court's decision. Nor would expert testimony regarding the minor's cutting behavior have been necessary or helpful. Finally, cross-examination of Jeffery regarding the mother's unsubstantiated additional allegations would not have resulted in findings different in any relevant respect.
The minor's attempt to bolster her showing of prejudice based on the temporary presence at the hearing of a supervisor for the minor's attorney from the public defender's office is not persuasive. Near the start of the proceedings, the attorney's supervisor attempted to enter the courtroom to "watch [the minor's attorney] as she does her work" but was asked to leave the closed courtroom by the judge. Prior to excluding the supervisor, the court confirmed that minor was being represented by an attorney, not a certified law student. Although the supervisor noted her "objection and concern for the record," it is unclear from the record what concerns she may have had. There is no basis on this record to presume the supervising attorney had any specific concern with counsel's representation in this specific case rather than a broader interest in supervising a new attorney.
Disposition
The order is affirmed.
Pollak, J. We concur: McGuiness, P. J. Jenkins, J.