People v. Alysia R. (In re Alysia R.)

BIGELOW

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from orders of the Los Angeles County Superior Court. Fumiko Hachiya Wasserman, Judge. Affirmed as modified.

Jennifer Gerard, under appointment by the Court of Appeal, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court found that Alysia R. committed a misdemeanor battery, and placed Alysia home on probation. We modify the court's orders to delete a provision specifying a maximum period of confinement, and, as modified, affirm.

In April 2011, then 14-year-old Alysia and her then 12-year-old brother, L.R., lived with their grandmother, R.P. On April 24, 2011, Alysia and L.R. got into a verbal argument in a bedroom, and R.P. intervened and told Alysia to leave. Alysia and R.P. then began exchanging words, and, in a series of quickly unfolding events, R.P. used a folded belt to hit Alysia on her bottom (she was wearing pants). Alysia and R.P. then started "slapping" each other. Eventually, R.P. was able to sit on Alysia, holding one of her arms. When R.P. asked Alysia, "Are you ready to stop?" Alysia answered, "Yeah, I'm ready to stop now." As R.P. stood up and released Alysia, Alysia kicked R.P. in the stomach. When R.P. said she was "fixing to call the police," Alysia ran out the family home.

Alysia contends the evidence is insufficient to support the juvenile court's finding that she committed a misdemeanor battery. We disagree.

As always on a challenge to the sufficiency of the evidence to support a trier of fact's finding, we examine the evidence in the light most favorable to the finding, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Hatch (2000) 22 Cal.4th 260, 272; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371 [the same standard applies to findings by the juvenile court].) We are bound by the trier of fact's evaluation of the witnesses' credibility, and we may not substitute our judgment of the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

"A battery is any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242.) The amount of force used need not be severe, nor leave a mark, nor cause any bodily injury or pain. (People v. Rocha (1971) 3 Cal.3d 893, 899.) In short, a battery is essentially any willful and offensive physical "touching" of another person. (People v. Myers (1998) 61 Cal.App.4th 328, 335.)

Under the rules outlined immediately above, kicking a person in the stomach when they are not expecting to be kicked is a battery.

To avoid this result, Alysia argues the finding that she committed a battery must be reversed because the juvenile court "inappropriately" limited her self-defense defense when it applied the "doctrine of mutual combat." It is not altogether clear to us whether Alysia is arguing that the court should have found she did not commit a battery because her self-defense defense applied as a matter of law, or whether she is arguing that she is entitled to a renewed evaluation of the evidence under appropriately applied rules of self-defense. Under either analysis, we are not persuaded that we must reverse the juvenile court's substantive finding.

We presume the juvenile court understood and correctly applied the law of self-defense, and we see no affirmative marker in the record to support Alysia's assertion that the court improperly limited her self-defense defense. The issue of self-defense was the main issue in contention at the adjudication. The People took the position that R.P. had a right to discipline Alysia without Alysia striking back. Further, that even if R.P. went too far initially, and that Alysia had been entitled to defend herself when R.P. slapped her on her bottom with a folded belt, Alysia's right to self-defense did not include the right to kick R.P. in the stomach after R.P. had stopped restraining Alysia. For her part, Alysia argued she used no more force than was needed to defend herself, and to flee to a place of safety. In the end, whether Alysia committed an offense in kicking R.P. came down to a judgment call, and the juvenile court decided there had been a battery. Because the court's finding is not devoid of evidentiary support, we will not reverse its finding. The court was not required, as a matter of law, to find that Alysia acted in self-defense when she kicked her grandmother.

Alysia contends, the People agree, and we find that the juvenile court should not have specified a maximum period of confinement because the court placed her home on probation. Welfare & Institutions Code section 726, subdivision (c), requires the court to specify a maximum period of confinement when a minor is removed from the physical custody of his or her parent or guardian. The section does not apply when a minor is not removed from the physical custody of his or her parents or guardian. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) We strike the maximum confinement provision from the juvenile court's orders.

The juvenile court's orders dated May 12, 2011, are modified by striking the provision specifying a maximum period of confinement. As modified, the court's orders are affirmed.

BIGELOW, P. J.

We concur:

FLIER, J.

GRIMES, J.