Opinion
F074255
02-08-2018
In re JACOB K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JACOB K., Defendant and Appellant.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kevin M. Cornwall, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MJL018444-A)
OPINION
THE COURT APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
The court adjudged appellant, Jacob K., a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations in a wardship petition charging him with deterring an executive officer through force or violence (Pen. Code, § 69). On appeal, appellant contends the evidence is insufficient to sustain the court's true finding that he committed this offense. We affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
The prosecution evidence established that on July 1, 2016, at around 8:30 a.m., Madera County Sheriff's Deputy Travis Chetwood interviewed Elaine Gertrude and her mother, Leora Beihn, at Gertrude's nail salon in North Fork, California, regarding a burglary at Beihn's rental house. Painting supplies, ladders, compressors and cans of paint were taken from the house, which was under construction. During the interview, the women stated that Bradley Carmen told them he and appellant's brother, Joshua Ghziouna, were involved in the burglary and that Ghziouna tried to sell the stolen property for $200. Gertrude also told the officer appellant was on probation.
Chetwood responded to appellant's house, which was located next to Gertrude's salon, and spoke with appellant and Ghziouna. However, Chetwood soon felt he was not getting anywhere with them and he returned to the salon and spoke with Gertrude again. He also called appellant's probation officer, Victor Bugarin, and confirmed appellant was on probation and subject to a search condition. Bugarin told Chetwood he could be there in 20 to 25 minutes.
After Bugarin arrived at the nail salon, he and Chetwood went to appellant's house. However, Chetwood was again unsuccessful in getting appellant and his brother to talk to him. The officers then searched the house but did not find stolen property. The officers left and eventually located Carmen. Carmen told them Ghziouna offered to sell him all the property that was stolen from Beihn's house for $200 and that the property was at appellant's house, in the backyard, under a tarp.
The officers returned to appellant's house. Chetwood disclosed that he knew the stolen property was under a tarp and he attempted to talk to appellant and his brother in the living room. Appellant's mother pleaded with appellant and his brother to tell the truth and eventually Ghziouna acknowledged that the stolen property was under a tarp in the backyard.
Chetwood handcuffed Ghziouna and began walking him out of the room. Ghziouna reacted by telling his mother, "See mom, this is what happens when you talk to the pigs." As Chetwood was at the threshold of the door, appellant quickly got up and walked toward him. When he was four to six feet away from Chetwood, appellant stated in a loud voice, "I'm going to kick your ass, you f***ing pig." Chetwood believed the threats were credible because of appellant's aggressive behavior in getting up and walking towards him and his tone of voice, and he told Bugarin to arrest appellant. Bugarin approached appellant and told him to place his hands behind his back. Initially, appellant did as instructed, but he then said "F*** that" and he pulled and jerked his arms away. Bugarin grabbed his right arm and appellant swung his arms up and stepped away from Bugarin. Bugarin then pursued appellant as he walked around the room away from him. Every time Bugarin tried to grab appellant's arms or wrists, appellant would pull away despite Bugarin telling him to stop.
Chetwood then drew his Taser, placed it against appellant's ribcage, and told appellant two or three times to stop as appellant's dog barked, his mother screamed, and appellant yelled and cursed. Chetwood discharged the Taser and appellant fell and landed on his stomach, allowing Bugarin to get on top of him. Appellant kicked with his legs and yelled at Chetwood, "I'm going to kick your f***ing ass and find out where you live." Despite the commotion that now included Ghziouna yelling at the officers, Bugarin was able to handcuff appellant. Afterwards, Chetwood searched the backyard and located the stolen items under a blue tarp.
Chetwood estimated appellant was approximately six feet one inch tall and weighed 190 to 200 pounds. Chetwood was five feet five inches tall and weighed approximately 174 pounds.
During the defense case, appellant's mother testified that twice prior to the arrest of Ghziouna, Chetwood told her no charges would be filed against her son as long as the property was returned by 6:00 p.m. that day.
Appellant testified he became upset when the officers arrested his brother because they had told his mother charges would not be filed and nobody would be arrested if the stolen property was returned to Beihn. He denied threatening Bugarin. He also claimed he only called Chetwood a "f***ing pig" and a "f***ing liar," and that was why Chetwood told Bugarin to arrest him. In appellant's version of events, he did not resist being arrested.
Chetwood testified in rebuttal that although he initially told appellant's mother that Gertrude did not want to file charges, he arrested Ghziouna because Gertrude changed her mind after appellant's mother called her a name.
Sheriff's Deputy Jose Iniguez testified that he spoke with appellant at the hospital where appellant was taken. When he asked appellant why he was there, appellant stated he was arguing with a deputy and that he got into an altercation when an officer tried to arrest him and he resisted.
After hearing argument from counsel, the court found true the deterring an executive officer charge.
On August 23, 2016, at appellant's disposition hearing, appellant admitted a shoplifting offense (§ 459.5) from an unrelated petition. The court then committed appellant to juvenile hall for 25 days with credit for 25 days served and placed him on probation. The court also aggregated time from the unrelated petition and set appellant's maximum term of confinement at three years two months, three years for the deterring an executive officer offense and two months for the shoplifting adjudication.
DISCUSSION
The mens rea for the commission of criminal offenses in California is based on a reasonable person standard. Appellant contends his mens rea in determining whether he violated section 69 should have been evaluated under a "reasonable child" standard. According to appellant, under this standard there was absolutely no evidence that appellant used any force or made any threat in an effort to deter the officers from performing their duties. Instead, at most it showed that because appellant felt the officers reneged on a promise not to arrest his brother, he may have used some offensive language, made some emotional outbursts and resisted arrest without threats or violence. Thus, according to appellant, since the evidence showed only that he acted like a child, emotionally and out of frustration, it was insufficient to sustain a finding that he violated section 69 because it failed to show he had the specific intent to interfere with the officers in the performance of their duties. We reject these contentions.
See, for example, section 273ab, which provides: "Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life." (Italics added.)
In determining the sufficiency of the evidence, " '[w]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] 'The test is not whether guilt is established beyond a reasonable doubt. [Citations.]' [Citation.] 'We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]' [Citation.] '[W]e do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]' [Citation.] 'The conviction shall stand "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " [Citation.]' " (People v. Orloff (2016) 2 Cal.App.5th 947, 952.)
Section 69 provides:
"Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."
"The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.] ... [¶] A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. [Citation.] To avoid the risk of punishing protected First Amendment speech, however, the term 'threat' has been limited to mean a threat of unlawful violence used in an attempt to deter the officer. [Citations.] The central requirement of the first type of offense under section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made." (In re Manuel G. (1997) 16 Cal.4th 805, 814-815.) "The [first type of offense] 'requires a specific intent to interfere with the executive officer's performance of his duties [citation].' " (People v. Orloff, supra, 2 Cal.App.5th at p. 952.) The second type of offense, i.e., forceful resistance of an officer, is a general intent crime (People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1420) and "by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer." (People v. Bernal (2013) 222 Cal.App.4th 512, 520.)
As Chetwood was taking appellant's brother out of the room after arresting him, appellant quickly got up and walked toward Chetwood and threatened him by stating, "I'm going to kick your ass, you f***ing pig." After Chetwood told Bugarin to arrest appellant, appellant pulled and jerked his hands away. When Bugarin followed appellant and tried to grab his arms, appellant would pull away despite being told to stop. When appellant was on the ground, he continued to resist being taken into custody by kicking his legs and he again threatened Chetwood. The court reasonably could have found from these circumstances that appellant had the specific intent to deter and prevent the officers from performing their duties each time he threatened Chetwood. It could also reasonably have found that appellant forcibly resisted by force or violence Bugarin in the performance of his duties each time appellant physically resisted Bugarin's attempts to handcuff him. Thus, the record supports a finding that appellant committed the deterring an executive officer by force offense in both manners discussed above.
Appellant did not argue in the trial court that the court should have applied a reasonable child standard in determining whether he violated section 69. Thus, he forfeited this issue on appeal by his failure to do so. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 332.) However, even if this issue were properly before us, we would reject it.
In support of his assertion that his behavior should be evaluated under a reasonable child standard, appellant cites Carroll, Brain Science and the Theory of Juvenile Mens Rea (2016) 94 N.C.L. Rev. 539. This article argues that "[f]or the mens rea element [of a criminal offense] to serve its designated role in the criminal justice process as the measure of guilt, it must reflect the mental state, with all its comparative cognitive deficiencies, of the adolescent it considers [i.e., it must be based on a 'reasonable child' standard]." (Id. pp. 590-591). However, a law review article is not persuasive authority and is not binding on this court. (People v. Wilcox (2013) 217 Cal.App.4th 618, 625-626 [law review articles are not a primary or secondary authority and do not compel a particular result].)
Appellant also cites Miller v. Alabama (2012) 132 S.Ct. 2455, J.D.B. v. North Carolina (2011) 564 U.S. 261, Graham v. Florida (2010) 560 U.S. 48, Roper v. Simmons (2005) 543 U.S. 551, 569-570, and Weeden v. Johnson (9th Cir. 2017) 854 F.3d 1063. None of these cases, however, held that a juvenile court should apply a reasonable child standard in determining whether a minor violated a criminal statute. Accordingly, we reject appellant's contention that the juvenile court should have applied a "reasonable child" standard in evaluating his conduct. Nevertheless, we note that even if a reasonable child standard would have exonerated appellant with respect to the first manner in which section 69 can be violated, it would not have exonerated him with respect to the second manner in which that section can be violated. Thus, we conclude that the evidence is sufficient to sustain appellant's adjudication for deterring an executive officer.
In Miller v. Alabama, supra, 132 S.Ct. 2455, the Supreme Court held that the Eighth Amendment prohibits a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenses. (Id. at pp. 2463-2475.) In J.D.B. v. North Carolina, supra, 564 U.S. 261, the court held that "the age of a child subjected to police questioning is relevant" to determining whether a defendant has been taken into custody for purposes of Miranda v. Arizona (1966) 384 U.S. 436. In Graham v. Florida, supra, 560 U.S. 48, the court held that the "[United States] Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Id. at p. 82.) In Roper v. Simmons, supra, 543 U.S. 551, the court held that the Eighth Amendment bars capital punishment for children. (Id. at pp. 569-571.) In Weeden v. Johnson, supra, 854 F.3d 1063, the Ninth Circuit Court of Appeals found that defense counsel provided ineffective representation when he failed to investigate psychological evidence in defending the 14-year-old defendant. (Id. at p. 1070.)
In his reply brief, appellant contends that it would be a violation of due process under the Fourteenth Amendment to evaluate his mental state in this case in the same light as an adult. This issue is not cognizable because in addition to not raising it in the trial court, appellant did not raise it in his opening brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [issue waived by failure to raise in opening brief].)
Nevertheless, we note that Evidence Code section 210 provides that evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Under Evidence Code section 351, all relevant evidence is admissible unless specifically excluded by statute. If defense counsel believed that anything related to appellant's age affected his ability to form the intent to deter or prevent the officers in the performance of their duties, he could have sought to introduce evidence of this pursuant to these Evidence Code sections. Thus, appellant had not made a prima facie showing that he was denied his right to due process by the juvenile court's failure to use a reasonable child standard in evaluating his conduct.
DISPOSITION
The findings and orders of the juvenile court are affirmed.