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In Re Clinton S., A Person Coming Under the Juvenile Court v. Clinton S

July 20, 2012

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



(Super. Ct. No. JD09619)

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

In re Clinton S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a contested jurisdictional hearing, the juvenile court sustained allegations that the minor, Clinton S., committed a battery with serious bodily injury (Pen. Code, § 243, subd. (d)),*fn1 assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(1)) with a true finding he had personally inflicted great bodily injury (id., § 12022.7, subd. (a)), and battery with injury on a school employee (id., § 243.6) with a true finding he had personally inflicted great bodily injury (id., § 12022.7, subd. (a)). The minor appeals the order of the superior court declaring him to be a ward of the juvenile court under Welfare and Institutions Code section 602 contending: (1) there was insufficient evidence that the minor personally inflicted injury; (2) there was insufficient evidence that the minor used force likely to cause great bodily injury; and (3) the juvenile court failed to declare whether the sustained offenses were felonies or misdemeanors. We find the matter must be remanded to the juvenile court for a declaration of whether the battery with serious bodily injury offense is a felony or a misdemeanor. In all other respects, we shall affirm the judgment.

FACTAUL BACKGROUND AND PROCEDURAL HISTORY

Following a food fight in the cafeteria of a high school, fist fights among the students broke out. The school principal, Dr. Stuart MacKay, the noon duty supervisor, Shelley Jordan, and the campus supervisor, Teresa Blackmer, went outside to break up the fights.

MacKay and Jordan saw the minor and Juan G. fighting. MacKay saw the minor punch Juan G. in the jaw with a closed fist. Jordan and Blackmer also saw the minor fighting and throwing punches. It appeared to MacKay the fight was serious because, "when . . . young teenage men are throwing punches, especially at someone's head, it can result in broken jaws; it can result in concussions, and the young men were really trying to go for each other." MacKay moved between Juan G. and the minor, called for someone to take the minor away and turned to face Juan G. Thinking someone was dealing with the minor, MacKay turned and focused his attention on Juan G. The minor was very upset, sweaty and angry and Jordan tried to calm him down, while MacKay held Juan G. The minor told Jordan she had "better move out of the way." To avoid being hurt, Jordan let the minor go. The minor then punched MacKay on the side of the head with a closed fist. The next thing MacKay could recall was lying on the ground with Juan G.*fn2 Jordan believed MacKay "took down" Juan G. in an attempt to stop the fight from continuing.

Later in the day, MacKay developed an intense headache and dizziness. He also had sustained slight damage to his left knee and was suffering from pain in his neck. He drove himself to the doctor's office and was found to have sustained a possible concussion. For the next several weeks MacKay was not ambulatory, suffered from neck pain, dizziness, migraines, night sweats, intermittent headaches, disturbed sleep patterns and short-term memory failures. He was off work for almost four months. He took painkillers for several months and continued to take muscle relaxants at the time of trial. Upon his return to work, he could only work part time due to fatigue and neck pain. MacKay did not have any pre-existing conditions that would account for these symptoms.

Juan G. did not identify the minor as the person with whom he had been fighting and described MacKay's assailant as significantly taller than the minor. The minor denied fighting any student during the post-food-fight fracas and denied hitting MacKay. Rather, he claimed he had been watching a fight when he was assaulted, and came upon Jordan and MacKay while he was looking for the students who had attacked him.

A petition was filed under Welfare and Institutions Code section 602, alleging that on October 28, 2009, the minor had committed battery with serious bodily injury (Pen. Code, § 243, subd. (d)--count 1), assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(1)--count 2), battery with injury to a school employee (id., § 243.6--count 3) and fighting in a public place (id., § 415, subd. (l)--count 4). It was further alleged as to counts 2 and 3 that the minor had personally inflicted great bodily injury. (Id., § 12022.7, subd. (a).)

Following a contested hearing, the court sustained the petition on counts 1 through 3 and found the enhancements true. Count 4 was dismissed as not true. The minor was declared a ward of the court and placed with his family under supervision by probation.

DISCUSSION

I. Sufficiency of Evidence: Personal ...


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