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In Re W.B., A Person Coming Under the Juvenile Court Law. v. W.B

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE


December 22, 2010

IN RE W.B., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
W.B., DEFENDANT AND APPELLANT.

(Solano County Super. Ct. No. J38966)

The opinion of the court was delivered by: McGuiness, P.J.

In re W.B. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

W.B. (appellant), born in 1994, appeals from a dispositional order in which the juvenile court: (1) found he violated Penal Code, sections 246.3*fn1 (willful discharge of a firearm in a grossly negligent manner) and 243, subdivision (d) (battery causing serious bodily injury); and (2) entered judgment on a marijuana sales count (Health & Saf. Code, § 11359) that appellant previously admitted and for which he had received deferred entry of judgment. Appellant contends the court erred in: (1) finding he violated section 246.3 because the court did not find, and there was no substantial evidence that, he willfully discharged the gun; (2) finding he committed battery because there was no substantial evidence that he intentionally discharged the gun; and (3) entering judgment on the marijuana sales count. We agree and therefore reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

On November 10, 2008, a juvenile wardship petition was filed alleging appellant possessed marijuana for sale (Health & Saf. Code, § 11359, count 1). On January 13, 2009, appellant admitted the allegation in exchange for deferred entry of judgment and was returned to his mother's custody.

On September 14, 2009, an amended petition was filed adding allegations that appellant discharged a firearm in a grossly negligent manner (§ 246.3, count 2) and committed battery causing serious bodily injury (§ 243, subd. (d), count 3). The petition was further amended on October 1, 2009, to add an allegation that appellant committed assault with a firearm (§ 245, subd. (a)(2), count 4).

At a contested jurisdictional hearing on November 5, 2009, 19 year old C.S. testified that he and appellant were friends and saw each other regularly. On September 13, 2009, C.S. went to appellant's house to pick up some money from another friend, R.A. When C.S. arrived, he socialized with appellant's mother's friend for two minutes, then went downstairs to the garage where he met with appellant and R.A. When C.S. got to the garage, appellant told him his dirt bike was missing and asked whether he knew where it was or had taken it. C.S. mentioned his dogs were also missing.

R.A., who was standing towards the front of or to the side of a Mustang that was parked in the garage, asked C.S. to come over to where R.A. was standing. When C.S. walked over, R.A. showed him a shotgun he had taken off of a shelf or counter in the garage. R.A. look at and played with the gun for a minute and pointed it at C.S., "[p]robably like for a few seconds playing around." After pointing the gun at C.S., R.A. held the barrel or muzzle of the gun toward the ceiling. R.A. was joking and laughing as he did this, and C.S. did not feel threatened. Appellant then asked for the gun and took the gun from R.A., and R.A. left the garage. Appellant looked at the gun and briefly pointed it at C.S. When asked by the prosecutor where exactly appellant pointed the gun, C.S. responded, "It was like--it was just in the direction where I was standing. [¶] . . . [¶] Like part towards my middle of my body or something. Like my chest or something." Appellant then pointed the gun lower, still in C.S.'s direction.

"Probably the first time," C.S. said to appellant, "Don't point that thing at me," or something to that effect. He also told him, "Watch out." When asked by defense counsel whether there was any "hostility of any kind" between C.S. and appellant when appellant was given the gun, C.S. responded, "Just him asking me where his dirt bike was." C.S. acknowledged telling the defense investigator that appellant "kept asking about the dirt bike" while pointing the gun at him and that appellant was leaning against the Mustang as he asked about the dirt bike. C.S. testified he did not feel that appellant was threatening him with the gun.

About "a minute and a couple of seconds" or "[p]robably just a minute" after appellant had taken the gun from R.A., the gun "went off." C.S. testified, "He took the gun from [R.A.], and then he was pointing it at me for a few seconds, and then like he had set it down on the Mustang like leaning against it, and then like--and then like he had pointed it down, like down in a different direction, and then it went off." C.S. explained, "[The gun] was like on the Mustang, and it was pointed towards my direction, and he was leaning against the Mustang with it, and then as he took it down off the Mustang, it went into a different direction, and I guess that's when it hit my leg or something." Immediately after the gun discharged and C.S. was struck, appellant said something to the effect of, " '[R.A.], I didn't know it was loaded.' " Appellant then ran up to his house to tell his mother what had happened. The police and an ambulance arrived and C.S. was taken to the hospital, where he underwent surgery. He stayed at the hospital "[p]robably a week and later returned to the hospital for a second surgery because a piece of the shotgun shell had gone into his leg. At the time of the hearing, C.S. was walking with a walker and had a lot of swelling in his knee.

Vallejo police officer Kyle Wylie testified he was on duty at approximately 3:30 p.m. on September 13, 2009, when he was dispatched to the location of the incident. Two other officers were giving aid to C.S., who had been shot in the upper right leg and was on the ground around "a whole lot of blood." Wylie interviewed appellant after appellant was advised of and waived his Miranda*fn2 rights. Appellant, who cried "off and on" during the interview, told Wylie that he and R.A. were in the garage working on the Mustang for a couple of hours. Appellant and C.S. greeted each other when C.S. arrived, and as they were standing there talking, appellant looked over, saw the barrel of a shotgun mixed in with other items, and grabbed the gun by the barrel. Appellant looked at the gun and the "stock portion, which is the portion that goes against your shoulder if you are going to fire the weapon correctly." Appellant told Wylie that the "stock portion" was "either cut off or broken off." Appellant said that as he went to give the gun to C.S., the barrel was pointed at C.S. and appellant's hand "somehow must have came across the trigger, and the gun went off shooting [C.S.] in the leg." Appellant told Wylie that R.A. never touched the gun and that it was the first time any of them had seen the gun. Later, appellant told Wylie that "they had a party at the house the night before" and that a person he knows as "Cheese" or "Roach" came over, took out the gun and placed it next to a suitcase inside the garage. During the interview with Wylie, appellant did not mention a lost dirt bike or C.S.'s missing dogs. He told Wylie that after the gun went off, "he saw that his friend was shot in the leg and that he began to give him help, but then he got scared, dropped the shotgun and ran into his granny's bedroom inside the house, told her what happened, and then he went into another bedroom in the house and began to cry." When Wylie asked appellant if he had loaded the gun or knew it was loaded when he handled it, appellant responded that he did not know the gun was loaded and did not load it himself.

Vallejo police officer Barbara Anne Greene testified she was the first to arrive at the scene of the incident. C.S. was sitting next to the garage bleeding heavily from his right side and she called for paramedics to come in. C.S. was conscious and responsive to her questions but not cooperative in telling her who shot him. He said he was shot and "just kept asking for an ambulance." When Green asked C.S. where he was, he was also unresponsive to that question. C.S. was in extreme discomfort, which made having a conversation with him somewhat difficult.

Defense investigator David McGraw testified he had been a police officer for over 28 years before becoming a private investigator. He testified he examined the shotgun that was used during the incident and that without manipulating the pump action of the gun, there was no way to know it was loaded just by looking at it. He also testified the gun did not seem to operate properly, as he racked the gun twice but was unable to get it to fire, even after using considerable force on the trigger. He testified that he then handed the gun to the evidence clerk, who tried to pull the trigger but was also unable to do so. The gun did go off when the evidence clerk racked it and pulled the trigger. The evidence clerk handed the gun back to McGraw, who racked it again but was unable to pull the trigger. After racking it one more time, McGraw was able to pull the trigger several times.

Appellant testified that at the time of the incident, he was 15 years old and living in a duplex unit with his mother, other family members and his friend R.A. His grandmother lived next door in the other unit of the duplex. On the day of the incident, appellant and R.A. were in the garage working on appellant's grandmother's Mustang. Appellant had known C.S. for about five or six years at that point and they were "[c]lose friends," "[l]ike family." They visited each other often. When C.S. arrived, he said his dogs were missing. C.S. asked appellant, "You got my dogs?" but it was "[j]ust a question" and C.S. did not seem angry or threatening. Appellant testified that he thought C.S.'s friend had taken appellant's dirt bike, as well as the dogs. Appellant described their meeting as "friendly," and said the conversation regarding the missing dogs and dirt bike was not in any way an angry conversation.

Appellant further testified that at some point, "the gun was pulled out," and R.A. "was playing with [C.S.] with the gun." Appellant had not seen the gun before that day and did not know where R.A. had gotten it. He had no reason to believe the gun was loaded and did not think the gun was loaded because of how R.A. and C.S. were smiling and playing with it. He was interested in the gun and wanted to see it, and asked R.A. for it. R.A. gave appellant the gun, and appellant "grabbed it by the barrel, but it was pointing upwards." Appellant did not recall whether R.A.'s hand was ever near the trigger. He was aware at the time that there was a "pump action" to the gun but did not see R.A. manipulate or move that part of the gun.

When appellant got the gun, "all [his] attention went to the gun" and he "flipped it on the side to look under it" because he "thought the gun was supposed to have some sort of clip thing." When he looked at the gun and did not see a clip, he thought the gun was not loaded. As he was turning the gun "back right up," the gun "went off" and fell out of his hands. He was "shocked" and said, "I didn't know that this was loaded." When appellant was holding the gun, he was doing so with both hands. He stated, "My hand was like--my finger was over the trigger part, but I was holding it" by the grip area of the gun. Appellant testified he was not paying attention to where the gun was being pointed and was not looking at R.A. or C.S. when he turned or rotated the gun. He testified that C.S. started yelling and coming towards him, so he backed up in order to allow C.S. to get out of the garage. C.S. walked over to the grass area, and appellant ran to him to help him. When appellant heard "the sirens," he ran into the house and told his grandmother, "[C.S.] got shot," then went into a room and started to cry. On cross-examination, appellant testified that he had shot a different type of gun at a gun range and knew that the clip loads a bullet into the chamber "[w]hen you cock it back," and that "if you take the clip out without firing that gun, . . . that bullet is still in the chamber."

Appellant testified that the police took him away from his home and wanted to question him. He testified he did not tell the officer the truth because he did not want to get R.A. in trouble for having a gun. He also thought he had to say something because if he did not, "they [were] going to bring [him] to juvenile hall, and [he] was just trying to get home to try to check upon on [C.S.] and stuff." Appellant testified that he told the officer that he did not do this intentionally and that it was an accident. Appellant testified he made up a story about a person named Roach bringing the gun to the house because the police told him he was "going to be going away for a long time" and it appeared they "just wanted a name like where the gun came from and stuff."

The court sustained the petition as to counts 1, 2 and 3 and dismissed count 4 after granting appellant's motion for a directed verdict as to that count. The court adjudged appellant a ward of the court placed him on probation with various conditions.

DISCUSSION

I. MOTION FOR A DIRECTED VERDICT

At the close of the prosecution's case, appellant moved for a directed verdict as to counts 3 (battery causing serious bodily injury) and 4 (assault with a deadly weapon) on the ground that there was insufficient evidence to support the charges. The court reserved determination as to count 4 and found there was sufficient evidence to proceed as to counts 2 (willful discharge of a firearm in a grossly negligent manner) and 3. After closing arguments, the court granted the motion as to count 4, stating that People v. Wolcott (1983) 34 Cal.3d 92, 99, had "reject[ed] the notion that an assault with a deadly weapon can occur in the absence of knowledge that the weapon is loaded." The court stated, "[T]he only evidence before the Court was that the minor did not know whether the gun was loaded, and the Court cannot apply a negligence standard to [this] charge. Therefore, . . . [the] motion is granted as to Count 4 . . . ."

The court denied the motion as to count 3, stating, "The argument could perhaps be made that negligence or accident would be a defense . . . but the Court rejects that in this particular case. [¶] . . . [T]he irony and the reality is that [C.S.] was the only person in the garage to whom two persons pointed the weapon. [¶] . . . [R.A.] pointed the weapon at [C.S.] . . . And . . . [appellant] . . . held it and pointed at [C.S.] for a few seconds. And then as he was lowering the gun, it discharged and struck [C.S.] in the leg causing him what was obviously great bodily injury." The court stated, "[A]lthough reckless conduct alone does not constitute a sufficient basis for assault or for battery even if the assault results in an injury to another, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed. [¶] The conduct of [R.A. and appellant] does in the Court's opinion transcend recklessness and places persons in grave risk of their li[ves] and safety in a conscious disregard for that . . . . [¶] When the gun discharged, [appellant] immediately stated, . . . 'I didn't know the gun was loaded.' If one doesn't know that a gun is loaded, one doesn't point it at another human being at a distance of approximately three to four feet and manipulate in a distance of three to four feet in a closed garage with no opportunity to retreat or move away and not suffer the natural consequences of that discharge of the weapon and a clear injury."

The court also denied the motion as to count 2, stating, "[I]nterestingly enough, . . . a violation of [section 246.3] . . . cannot occur if the person who discharged the weapon believed that the firearm he or she discharged was unloaded . . . [¶] In this instance, the testimony was that the minor did not know that the weapon was loaded, but there is no evidence that he knew or believed that it was loaded or not loaded. But that he did not know that it was loaded creates an interesting question regarding the issue of negligence. Because under [section 246.3], the negligence standard is defined as 'gross negligence involves more than ordinary . . . carelessness and attention nor mistake in judgment. A person acts with gross negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury. And a reasonable person would have known that acting in that way would create such a risk.' " [¶] Inherent in those definitions is the same type of conduct applicable in Count 2. And although the minor said that he did not think that the gun was loaded, he had no basis upon which to draw that inference from and . . . did not know whether it was loaded or not." The court stated that "[p]art of [its] findings" was based "on the fact that [appellant's] after-the-fact testimony regarding how this all occurs is suspect given that he has now given three different versions of this particular event. And the only consistent version in this that the Court finds to be true, notwithstanding the victim's reluctance that we should find in this particular event, is that the gun was, in fact, pointed and discharged directly at him during the course and scope of discussions, involving a potential theft or loss."

II. WILLFUL DISCHARGE OF A FIREARM

Elements

Section 246.3 provides, "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison." The section "was enacted primarily to deter the dangerous practice that exists in some communities of discharging firearms into the air in celebration of festive occasions." (People v. Robertson (2004) 34 Cal.4th 156, 167, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201; People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540 [defendant was guilty of violating section 246.3 by shooting a firearm into the air at 2 a.m. in a parking lot near stores that were open at the time].)

Willful discharge and gross negligence are discrete elements of the offense. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1439, 1440 (In re Jerry R.); People v. Alonzo, supra, 13 Cal.App.4th at p. 538. "Willfully" means the firearm must have been intentionally discharged. (In re Jerry R., supra, 29 Cal.App.4th at pp. 1438-1439.) Thus, a "defendant who believed that the firearm he or she discharged was unloaded, for example, would not be guilty of a violation of section 246.3." (People v. Robertson, supra, 34 Cal.4th at p. 167.) "[G]rossly negligent" means conduct that is " ' " 'such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . .' " ' " (Id. at p. 168.)

In In re Jerry R., the minor pointed a loaded pistol at a friend from a distance of approximately five or six feet. (29 Cal.App.4th at p. 1435.) The gun went off and the victim was shot in the chest and left partially paralyzed. (Ibid.) The minor testified he believed the gun was empty because he had removed the clip, and that he was playing and waving the gun at the victim with his finger at the trigger when the victim "bumped him" and the gun went off. (Id. at p. 1436.) In finding the minor had violated section 246.3, the juvenile court stated, " 'As far as I am concerned, whether or not he knew the gun was loaded is immaterial. Your argument [that [the minor] did not intend to fire the gun because he believed it was unloaded] seems to me to overlook the words grossly negligent.' The court added, 'I want to say that the minor's credibility and the credibility of many of the other witnesses leaves a lot to be desired. [¶] I certainly don't feel that the discharge of the gun was an involuntary accidental act. I believe that he pulled the trigger. There is no doubt in my mind about that. [¶] I don't know what was in his mind when he pulled the trigger but I have no doubt in my mind that he pulled the trigger.' " (In re Jerry R., 29 Cal.App.4th at pp. 1436-1437.)

On appeal, the minor argued "that because the statute prohibits 'willfully' discharging a firearm, proof of an intent to fire the weapon was required." (In re Jerry R., supra, 29 Cal.App.4th at p. 1437.) The Court of Appeal agreed, stating, "The Legislature's use of the term 'willfully' means that the prohibited conduct must be performed purposefully or intentionally. The prohibited conduct, the discharge of a firearm, is commonly understood to mean the firing or shooting of a weapon by expelling the charge or bullet. Thus, the statute's plain language requires proof that a defendant purposefully, willingly, or intentionally fired the weapon, with the added requirement that the firing occurred in a grossly negligent manner which could result in injury or death." (Id. at pp. 1438-1439.) The Court rejected the Attorney General's argument that the minor's "intentional pulling of the trigger evidenced his willingness to fire the weapon, even if he believed the gun was empty," explaining that when a statute prohibits the willful commission of one act, i.e., the discharge of a firearm, the intentional act requirement cannot be satisfied by the willful commission of a different act, i.e., the pulling of the trigger of a gun believed to be unloaded. (Id. at p. 1441.)

No Express Finding of Willfulness

Here, appellant contends the court erred in finding he violated section 246.3 because the court did not make the requisite finding that he willfully discharged the gun. We agree. The record shows the juvenile court, in finding a violation of section 246.3, was focused solely on the issue of gross negligence. For example, when setting forth what the issue was with respect to the firearm charge, the court left out the willfulness element, stating, "And the question is whether or not it was a discharge of a firearm with gross negligence." The court also stated that the fact that appellant "did not know that the [gun] was loaded create[d] an interesting question regarding the issue of negligence." (Italics added.) The court further stated, "I think it's the type of conduct that is an act in a reckless way that creates a high risk of death or great bodily injury, and a reasonable person would not do that. A reasonable person would not take a gun not knowing whether it is loaded or not, point it at another individual and manipulate it in the presence of that individual and not expect one of the consequences of it to go off and cause injury."

The Attorney General (respondent) concedes the court did not make an express finding on the willfulness element but argues the court essentially found appellant acted willfully when it stated with respect to the battery charge that intent is presumed "when an act inherently dangerous to others is committed with a conscious disregard of human life and safety." Respondent asserts this was a correct statement of the law, citing People v. Colantuono (1994) 7 Cal.4th 206, 220 (Colantuono), for the proposition that when an "act 'inherently dangerous to others' " is committed " 'with conscious disregard of human life and safety,' the perpetrator must be aware of the nature of the conduct and choose to ignore its potential for injury, i.e., act willfully." Section 246.3, however, requires both that the defendant willfully discharge a firearm and that he do so in a grossly negligent manner. If we were to accept the argument that a grossly negligent act that "transcends recklessness" is in and of itself sufficient to establish the element of willfulness, we would be eliminating willfulness as an element of the offense, i.e., in every case in which a defendant acts in a grossly negligent manner in discharging a firearm, willfulness would be presumed, and the willfulness element would be mere surplusage. As In re Jerry R. stated, "The Legislature could have prohibited simply the grossly negligent discharge of a firearm, with no willfulness requirement. Had it done so, appellant's belief that the gun was empty would have been of limited significance. . . . But we must give effect to the statute as written, not as it might have or should have been written." (29 Cal.App.4th at p. 1439.) The court erred in failing to make a finding that appellant willfully discharged the firearm.

Sufficiency of the Evidence

We further conclude the evidence was insufficient to support a finding that appellant willfully discharged the gun because there was no substantial evidence he knew the gun was loaded. When assessing "a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact." (People v. Martin (1973) 9 Cal.3d 687, 695.)

C.S. testified that immediately after the gun discharged and C.S. was struck, appellant said something to the effect of, " '[R.A.], I didn't know it was loaded,' " and ran up to his house to tell his mother what had happened. C.S. also testified he and appellant were friends and saw each other regularly, and although it appears there was some tension at the time regarding a missing dirt bike and dogs, C.S. said he did not feel threatened by appellant. The court mentioned C.S.'s "reluctance that we should find in this particular event" but did not find he lacked credibility or was being untruthful when he testified regarding appellant's statement and conduct immediately following the shooting. The court acknowledged that at the time appellant moved for a directed verdict, the "only evidence that is before the Court" as to whether appellant knew the gun was loaded was the "spontaneous statement" to which C.S. testified, and that that evidence was insufficient to find, as to the assault charge, that appellant knew the gun was loaded.

Appellant also testified he thought the gun was unloaded because R.A. and C.S. were smiling and playing with it and because he did not see a "clip thing." He also testified he was "shocked" when the gun went off and that he ran upstairs and started to cry. Although the court stated that appellant's "after-the-fact testimony regarding how this all occur[red] [wa]s suspect" because he had given different stories to the police and at trial, the court did not state it discredited his testimony generally, or specifically his testimony that he thought the gun was unloaded. In fact, the court's statements suggest it believed appellant did not know the gun was loaded. The court pointed to testimony that appellant "did not know that the weapon was loaded" and stated a reasonable person would not point a gun at or handle a gun in close proximity to another person "not knowing whether it [was] loaded or not."*fn3 The court also stated, "there is no evidence that he knew or believed that it was loaded or not loaded" and that the fact that "he did not know that it was loaded create[d] an interesting question regarding the issue of negligence." Thus, the court essentially found, after all of the evidence was in, that the evidence was insufficient to support a finding that appellant knew the gun was loaded. In conducting a substantial evidence review, "[w]e do not reweigh the evidence or reevaluate the credibility of witnesses." (People v. Clark (1996) 45 Cal.App.4th 1147, 1156.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.) The prosecution had the burden of proving every element beyond a reasonable doubt. Based on the evidence before us and the court's statements indicating it did not discredit C.S.'s and appellant's testimony that appellant thought the gun was unloaded or did not know it was loaded, we conclude the prosecution did not meet its burden of proving that appellant willfully discharged the firearm. The true finding as to count 2, willful discharge of a firearm in a grossly negligent manner, is reversed.

III. BATTERY CAUSING SERIOUS BODILY INJURY

Elements

"[B]attery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) Section 243, subdivision (d), which the court found appellant violated, provides that when a battery "is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years." "An assault is an incipient or inchoate battery; a battery is a consummated assault. 'An assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.' [Citation.]" (Colantuono, supra, 7 Cal.4th at pp. 216-217.) As respondent points out, Colantuono held that the requisite intent to commit an assault or a battery is established where " 'an act inherently dangerous to others is committed with a conscious disregard of human life and safety . . . .' " (Id. at p. 219, citing People v. Lathus (1973) 35 Cal.App.3d 466.) Colantuono also held that "the question of intent for assault is determined by the character of the defendant's willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed." (Id. at p. 217.)

Seven years later, the Supreme Court in People v. Williams (2001) 26 Cal.4th 779, 784, 787 (Williams) "clarif[ied] the mental state for assault," noting that Colantuono's description of the mens rea for assault "arguably implies an objective mental state consistent with a negligence standard" and "may have been confusing." Williams reiterated that assault is a general intent crime and a specific intent to injure is not required, but held that a defendant cannot have the requisite intent unless he is "aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (Id. at pp. 787-788.) Williams stated that a jury instruction requiring the jury to find the defendant "willfully and unlawfully committed an act that by its nature would probably and directly result in physical force being applied to the person of another" was "potentially ambiguous" because it could improperly "permit a conviction premised on facts the defendant should have known but did not actually know." (Id. at p. 790.) Although Williams concluded that the giving of the instruction in the case was harmless beyond a reasonable doubt because there was ample evidence the defendant had actual knowledge of "facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct,"*fn4 the Court made clear that a defendant "may not be convicted based on facts he did not know but should have known." (Id. at p. 788, 790.)

Sufficiency of the Evidence

Appellant contends the juvenile court erred in finding he committed battery because there was no substantial evidence that he intentionally discharged the gun. We agree.

As noted, appellant moved for a directed verdict.*fn5 Like a section 1118 motion,*fn6 a motion for a directed verdict in juvenile court requires the judge 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.' [Citation.]" (In re Andre G. (1989) 210 Cal.App.3d 62, 66.) We review the court's decision under the substantial evidence standard (ibid., citing In re Man J. (1983) 149 Cal.App.3d 475, 482), and "[w]here the . . . motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point." (People v. Trevino (1985) 39 Cal.3d 667, 695, disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1219-1221.)

We conclude the evidence at the close of the prosecution's case-in-chief was insufficient to support the juvenile court's finding that the battery charge had been proven beyond a reasonable doubt. After weighing the evidence and evaluating the credibility of witnesses, the court found appellant did knot know whether the gun was loaded. In other words, there was insufficient evidence to show he knew the gun was loaded or even that he should have known it was loaded. Further, the court found "[the gun] discharged and struck [C.S.] in the leg causing him what was obviously great bodily injury," not that appellant pulled the trigger or intentionally fired the gun. While a reasonable person who does not know whether a gun is loaded might not point a gun at another person for fear of the consequences that might result, it cannot be said that the person has "actual knowledge" of facts that would lead the person to "realize that a battery would directly, naturally and probably result." (Williams, supra, 26 Cal.4th at p. 788.) The true finding as to count 3, battery causing serious bodily injury, is reversed.

IV. DEFERRED ENTRY OF JUDGMENT ON COUNT ONE

Welfare and Institutions Code section 793, subdivision (a), provides, in part: "If after accepting deferred entry of judgment and during the period in which deferred entry of judgment was granted, the minor is convicted of, or declared to be a person described in Section 602 for the commission of, any felony offense . . ., the judge shall enter judgment and schedule a dispositional hearing." The California Rules of Court*fn7 set forth various procedures that must be followed for the court to lift the deferred entry of judgment.*fn8 Rule 5.800(h) provides: "If the child is found to have committed a felony offense . . ., the court must schedule a disposition hearing within 10 court days." Certain procedures must be followed when such a disposition hearing is set, including the preparation of a social study containing all matters relevant to disposition and a recommendation for disposition and an opportunity for the parties and the minor's parent or guardian to present evidence at the hearing. (Rules 5.785, 5.790, 5.795, 5.800(h).)

Appellant contends the true finding as to count 1 (marijuana sales) must be reversed because "[i]f the court's findings on the battery and the gross negligent discharge charges are reversed, . . . the juvenile court's apparent rationale for terminating [appellant] from DEJ no longer applies." We agree. When appellant was found to have committed two felonies (the firearm and battery offenses), the court had the authority to enter judgment and schedule a disposition hearing. (Welf. & Inst. Code, § 793, subd. (a) [if "the minor is convicted of, or declared to be a person described in Section 602 for the commission of, any felony offense . . . the judge shall enter judgment and schedule a dispositional hearing]; rule 5.800(h)(2) ["if the child is found to have committed a felony offense . . . the court must schedule a hearing within 10 court days"].) However, in light of our reversal of the firearm and battery charges, the court's entry of judgment was proper only if "it appear[ed] to the prosecution attorney, the court, or the probation department that the minor is not performing satisfactorily in the assigned program or is not complying with the terms of the minor's probation, or that the minor is not benefiting from education, treatment, or rehabilitation . . . ." (Welf. & Inst. Code, § 793, subd. (a).) Because there is nothing in the record indicating there were reasons other than the true findings on the firearm and battery charges that served as the bases for the court's decision to enter judgment on the marijuana sales count, and the parties were not given the opportunity to present evidence establishing compliance or non-compliance with the terms and conditions of the DEJ program, we must reverse.

Respondent asserts there was no error because the "jurisdictional hearing was the functional and due process equivalent of a progress report hearing [at which] . . . [a]ppellant had the opportunity to establish compliance with the terms and conditions of the [Deferred Entry of Judgment (DEJ) program]." However, whether appellant was in general compliance with the terms and conditions of--or was benefiting from--the DEJ program, was not at issue at the jurisdictional hearing that took place in this case. Although there is a probation report in the record that discusses appellant's "performance" generally, no social study or progress report was prepared specifically addressing the issue of whether DEJ should be lifted. Thus, we presume the court--which did not state the reasons for entering judgment on the marijuana sales count--did so based on its true findings as to the firearm and battery charges. In concluding the entry of judgment as to count 1 was error, we express no opinion as to whether appellant's performance in the DEJ program was satisfactory, or more specifically, whether the conduct in which appellant engaged, though not sufficient to support the true findings, was sufficient to support the lifting of his DEJ. At the twelve month review hearing, or "[b]efore the date of the progress hearing, on the court's own motion, or if the court receives a declaration from the probation department or the prosecuting attorney alleging that the child has not complied with the conditions imposed or that the conditions are not benefiting the child, . . . " (Cal. Rules of Court, rule 5.800(h)(2)), the court may lift the DEJ and enter judgment on the marijuana sales count if, based on all evidence presented, including a mandatory progress report or social study, it finds it is appropriate to do so.

DISPOSITION

The dispositional order is reversed.

We concur:

Siggins, J.

Jenkins, J.


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