IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 16, 2010
IN RE T.R., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
T.R., DEFENDANT AND APPELLANT.
(San Francisco City & County Super. Ct. No. JW106118)
The opinion of the court was delivered by: Richman, J.
In re T.R.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant T.R. appeals from a dispositional order of the juvenile court following a sustained finding that she committed battery on a bus driver. She challenges the court's finding, contending it was unsupported by substantial evidence. We disagree and affirm.
On September 24, 2009, the District Attorney for the County of Sacramento filed an original Welfare and Institutions Code*fn1 section 602 petition alleging that T.R. committed one count of misdemeanor battery on a transportation worker (Pen. Code, § 243.3) and one count of felony burglary (Pen. Code, § 459). The battery charge stemmed from a July 1, 2009 incident in which, as will be seen in greater detail below, T.R. and four other minors participated in an assault on Jasmin Begovich, a Sacramento County Regional Transit bus driver.*fn2 We note that while this was the first section 602 petition filed against T.R., she had a very unstable childhood that included frequent involvement by child protective services. Between April 1994 and August 2009, the agency received at least 20 referrals concerning T.R. and her family, four of which were substantiated. The concerns included physical and sexual abuse, general neglect, and caretaker absence. T.R., who was 15-years-old at the time of the battery in question, was declared a section 300 dependent in September 2002. At the time the section 602 petition was filed, the whereabouts of both of her parents were unknown,*fn3 and T.R., who had been in nine different foster placements, was living with her then foster parent in San Francisco. Between the filing of the petition and disposition, T.R. failed at that placement as well as another, and was living in a group home.
A contested jurisdictional hearing was held on February 10, 2010. At the outset of the hearing, on the district attorney's motion, the court dismissed the burglary charge for lack of evidence. Evidence was then taken on the battery charge, and at the conclusion of the hearing, the court sustained the charge. It ordered that T.R. remain a dependent and transferred the matter to San Francisco County--T.R.'s county of residence--for disposition.
At an April 20, 2010 dispositional hearing, T.R. was placed on six months probation.
This timely appeal followed.
EVIDENCE AT THE JURSDICTIONAL HEARING
Video Recording of the Incident
The incident in question occurred aboard a bus at the intersection of Greenback Lane and Sunrise Boulevard in Citrus Heights. Mr. Begovich was driving the bus and had stopped at the intersection to load passengers. Security cameras aboard the bus recorded the assault, and the video recording was played during the jurisdictional hearing. One camera, which was located above and slightly behind the driver's area, was directed at the front door of the bus. That camera showed a group of five young females board the bus, which females, with the exception of T.R., will be referred to as No. 1 through No. 4 according to the order in which they boarded the bus. T.R. was the fifth of the group to board.
No. 1 showed Mr. Begovich a pass and proceeded to the rear of the bus. No. 2 showed him a pass, but as she walked past, he said, "This ain't no good." No. 2 responded, "Yes it is," telling him to "Turn it over and read the back." As Mr. Begovich continued to insist that the pass was invalid, No. 1 returned to the front of the bus. No. 3 boarded and moved into the middle of the bus. Meanwhile, Nos. 1, 2, and 4 (who had since boarded) argued with Mr. Begovich, attempting to convince him No. 2's pass was valid. T.R., whom Mr. Begovich identified when he viewed the recording at the jurisdictional hearing, had boarded the bus and was standing behind the other four girls as they argued with him over the validity of No. 2's pass. He advised the group, "I don't want to argue about it. She needs to pay." T.R. and No. 4 then showed him their passes, and the entire group moved toward the rear of the bus, as he continued to insist, "Girlfriend needs to pay."
More passengers boarded, and the bus remained stationary. After nearly a minute passed, No. 2 returned to the front of the bus, where she showed Mr. Begovich a pass and asked, "You want this one, too?" He responded, "I just want your girlfriend to pay. That's all I want," evidently not realizing that No. 2 was the individual who boarded with the invalid pass. No. 2 responded, "We did. I don't have to pay. It's already paid for," and rejoined her friends at the rear of the bus. After more words were exchanged about No. 2 not paying, No. 4 and T.R. returned to the driver's area, where No. 4 again showed Mr. Begovich No. 2's pass. While T.R. stood by, he explained why the pass was expired, and this time No. 4 realized he was correct. After yelling back to her friends in the rear of the bus, No. 4 told Mr. Begovich that No. 2 had the correct pass at home. All of the girls then moved to the front of the bus, where they argued with him to just let them ride down the street. T.R., who was leaning on the bar that separated the driver's compartment from the passengers, said to someone in her group, "Give her a dollar ten." At that point, No. 1 reached over the bar and grabbed at a book of tickets on a clipboard near the dashboard. Mr. Begovich can be seen swatting or pushing her hand away. A scuffle ensued, with the girls screaming at Mr. Begovich to "get your hands off her." T.R. intervened by pulling Mr. Begovich's hand off of No. 1's arm and putting herself between the two of them. No. 3 and T.R. were closest to Mr. Begovich, with the other three behind them in the doorway. No. 1 then pushed her way in front of No. 3 and T.R. and struck Mr. Begovich. T.R., and Nos. 1, 2, and 4 got off the bus, while No. 3 remained behind, repeatedly striking Mr. Begovich. No. 1 then boarded the bus again and again struck Mr. Begovich, as did No. 3. T.R. attempted to restrain No. 1, holding her around her waist to keep her from approaching Mr. Begovich, and dragging her back towards the door. Mr. Begovich then picked up the telephone to call for help, while T.R. continued to restrain No. 1. All the while, the girls were screaming profanities at Mr. Begovich. While No. 4 remained outside the bus, the other girls got back on. T.R. had released her hold on No. 1, who again reached out towards Mr. Begovich. As he put his hand up to fend off her strike, T.R. reached over No. 1's shoulder, struck him twice, and called him a "bitch," while No. 2 kicked him and No. 3 hit him. Mr. Begovich stayed on the phone requesting help, while the girls screamed profanities at him as well as at other passengers. T.R. then disembarked and stood outside the bus door talking on her cell phone.
At one point, while her friends were still screaming at Mr. Begovich and occasionally striking him, T.R. reboarded the bus and can be seen kicking towards Mr. Begovich with her left foot. It cannot be seen from the video whether her foot made contact with him. The melee continued much the same, with all of the girls screaming at Mr. Begovich and other passengers, and Nos. 1, 2, and 3 periodically striking Mr. Begovich. T.R. got off the bus to talk on her phone, and No. 1 continued to strike Mr. Begovich, who stayed on the phone while swatting her hands away. T.R. reboarded the bus and appeared to be advising her friends to get off the bus. No. 1 again struck Mr. Begovich as T.R. attempted to restrain her. When Mr. Begovich attempted to defend himself by swatting her arm away, T.R. screamed at him. No. 1 then took a garbage can off the dashboard and threw it at Mr. Begovich. The girls then stood in front of Mr. Begovich, taunting him--with T.R. a very eager participant--and yelling at other passengers for nearly four minutes until the police arrived and told them to get off the bus. No. 2 got off the bus first, and Mr. Begovich can be heard telling the police he wanted to press charges against "that young lady right there," pointing to No. 2. He then said he wanted to press charges against "this one right here"--pointing to No. 3--and "that one right there." It is not evident from the recording to whom "that one right there" referred. Although barely audible, Mr. Begovich can also be heard telling the police officer that "all five of them hit me."
Mr. Begovich's Testimony
Mr. Begovich viewed the security tape while he was testifying and confirmed that the incident escalated when one of the young women grabbed a daily pass off a clip board. He tried to move her hand away, which he demonstrated during the hearing by swatting his hand as if he was swatting the hand of the person reaching for the daily passes (although later in his testimony stating that he "maintained a hold" on her arm). Mr. Begovich confirmed that T.R., whom he identified as the young woman with the ponytail off to one side, was not the one who attempted to grab the day pass, nor was she the one who attempted to board the bus with an invalid bus ticket.
Mr. Begovich testified that after reviewing the DVD, he specifically recalled T.R. hitting or punching him. He did not recall giving a police statement at the time of the incident in which he told the officer he was not sure which of the young women had hit or kicked him except for one that he had pointed out (who was not T.R.). Instead, he recalled telling the officer that all of the girls struck him. Mr. Begovich, while reviewing the video, identified two or three times that T.R. struck him. He agreed with defense counsel that these slaps occurred just after one of the young women reached for the daily passes and he swatted her hand away. He recalled no other instances of T.R. striking him.
Testimony of Officer Rogers
Citrus Heights Police Officer Ted Rogers responded to a call of an assault on a regional transit bus at the intersection of Greenback Lane and Sunrise Boulevard, where he found five suspects. Officer Rogers testified that Mr. Begovich told him that he was not sure which young women had struck him, although he was certain that one in particular--who was not T.R.--had struck him. He did not specifically tell Officer Rogers that T.R. had struck him.
T.R.'s counsel argued that when T.R. came into contact with Mr. Begovich, it was when he was swatting No. 1's hand away from the daily passes. It was, he argued, self-defense as she was using "a reasonable amount of force . . . to prevent any further battery against one of her friends."
The prosecutor countered that there were multiple batteries committed by T.R., not just the motion of protecting her friend from Mr. Begovich's swats.
The Court's Ruling
At the conclusion of the hearing, the court found that the battery allegation was true beyond a reasonable doubt. It first explained that it could not conclude a battery occurred when T.R. pulled Mr. Begovich's hand off of No. 1's arm as she grabbed the daily pass: "[T]he videotape that was shown and was admitted as an exhibit establishes in the first altercation that the minor was acting reasonably to trying and defend one of her friends. It's unclear to me in the People's--the Petitioner didn't really present any law on this so I had to look it up. It's unclear whether the bus driver in the case was entitled to use force to protect property. But the immediate and apparent grabbing or swatting of the arm, I think it might have been a little bit of both, swatting and grabbing of the other minor's arm, was enough for the minor to try and alleviate that situation by pulling away the victim's arm. Theoretically, if he was entitled to do what he did, she would not have a defense of others' defense. That's not the battery I'm concerned about, and I think that there's a dispute on that that prevents me from finding there was a battery just based only on that incident."
The court went on to explain, however, that T.R. committed a battery later on in the incident: "It's another altercation that happened. Clearly her friend, this minor, was the aggressor. She was using every ounce of her energy to hold her back. That is certainly an admirable quality of sorts in the minor. But then--but this other minor who she was trying to hold back kept lunging and kept hitting the bus driver and was clearly the aggressor. The bus driver is entitled to defend himself in that situation. And in one of the sequences we saw how this other minor attacked the bus driver, and then this minor came in and started making contact with the bus driver. That was not self-defense or defense of another. That was joining in the melee. For that reason, and on that evidence, I find that the allegations in the petition are true and have been proved beyond a reasonable doubt. The fact that the witness can only remember, one, he did say that's all I can remember, he did not wish to look through the whole videotape again, that doesn't mean that there wasn't more than one battery. There's clearly, and the evidence is undisputed, that this second altercation that I'm talking about occurred. I can't ignore it if it's been proved beyond a reasonable doubt."
T.R. presents one issue on appeal: that there was insufficient evidence to support the juvenile court's finding that she committed a battery on Mr. Begovich. "In ruling on a substantial evidence challenge, we 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (In re P.I. (1989) 207 Cal.App.3d 316, 319. Accord, In re Randy S. (1999) 76 Cal.App.4th 400, 404; In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Battery is defined as "any willful and unlawful use of force or violence upon the person of another." (Pen Code, § 242.) Penal Code section 243.3 provides a greater punishment when the battery is committed against "the person of an operator, driver, or passenger on a bus . . . used for the transportation of persons for hire, . . . and the person who commits the offense knows or reasonably should know that the victim, in the case of an operator, driver, or agent, is engaged in the performance of his or her duties." The offense of battery requires a touching, although " 'it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.' " (People v. Mansfield (1988) 200 Cal.App.3d 82, 88.) "Only a slight unprivileged touching is needed to satisfy the force requirement of a criminal battery." (People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2.) We conclude there was substantial evidence that T.R. committed a battery on Mr. Begovich.
As can be seen in the video recording of the incident, T.R. first made contact with Mr. Begovich directly after No. 1 grabbed at the daily passes on the clipboard and he swatted or pushed her arm away. According to the defense, T.R. was acting in defense of No. 1 when she pulled Mr. Begovich's hand off of No. 1's arm, which was a justified use of force. The court concluded that that contact could not be the basis for a battery finding because there was a question as to whether Mr. Begovich could use force to protect the daily passes from No. 1. This was not, however, the only occasion on which T.R. made contact with Mr. Begovich. Instead, the court based its finding on a second altercation that occurred later in the melee: No. 1 swung her hand toward Mr. Begovich, he put his hands up to keep her hand away from him, and T.R. reached over No. 1's shoulder and struck him twice. This readily constitutes substantial evidence to support the juvenile court's battery finding.
T.R. argues that there was no evidence of unprivileged touching of Mr. Begovich because she was acting in defense of her companions: "[E]ach time the minor was involved, she was attempting to block the bus driver from hitting the other girl, or she was attempting to restrain the girl. She never independently struck the bus driver." But this second instance of contact with Mr. Begovich was not in defense of another. It was, in the apt words of the juvenile court, T.R. "joining in the melee."
T.R. also argues that the court's conclusion that she actually touched the driver was "speculation" and that "[i]t cannot be determined from the video whether T.R. touched the victim during the subsequent melees when she was trying to restrain and protect the other girl." But the juvenile court heard the testimony of Mr. Begovich and viewed the video, and from this evidence concluded that T.R. had in fact "touched" Mr. Begovich. A review of the security recording supports this conclusion.
We also reject T.R.'s contention that "[t]he court's finding was not consistent with the testimony of the victim that he was struck only once by T.R., when T.R. slapped him after the other girl took the day pass ticket." While Mr. Begovich may not have recalled the second incident of T.R. striking him--he declined to watch the video a second time during the hearing--it is clearly visible on the security tape. We are not, as T.R. suggests, "disregard[ing] the victim's testimony in favor of speculation as to what occurred on the tape." No speculation is necessary--T.R. can clearly be seen striking Mr. Begovich a second time.
The jurisdictional and dispositional orders are affirmed.
We concur: Haerle, Acting P.J. Lambden, J.