Jose R., In re

Citation137 Cal.App.3d 269,186 Cal.Rptr. 898
Decision Date08 November 1982
Docket NumberCr. 41536
PartiesIn re JOSE D.R., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOSE D.R., a Minor, Defendant and Appellant.
CourtCalifornia Court of Appeals
Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Linda C. Johnson, Deputy Attys. Gen., for plaintiff and respondent.

FEINERMAN, Presiding Justice.

Jose D.R. appeals from an order of the juvenile court declaring him a ward of the court, pursuant to section 602 of the Welfare and Institutions Code, placing him in the Joan Green Group Home and imposing certain conditions of probation to be in effect during the minor's placement and upon return to the home of his parents. The trial court's order was based upon a finding that the appellant had mingled a harmful substance with food, with the intent that it should be taken by a human being to his injury (Pen.Code, § 347) and had committed three assaults with a deadly weapon and by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)). The "deadly weapon" which was the subject of these three counts was an apple with a pin embedded therein.

Appellant contends that there was a lack of substantial evidence to support the trial court's finding that appellant's conduct violated the provisions of Penal Code section 245, subdivision (a), that the prosecution did not establish by "clear proof" that the appellant knew the "wrongfulness" of his conduct, that the trial court improperly imposed certain conditions of probation, and that the trial court erred in failing to expressly declare the assault offenses misdemeanors or felonies. We affirm with a remand to the superior court for a declaration by the court as to whether the violations of Penal Code section 245, subdivision (a) are misdemeanors or felonies.

STATEMENT OF FACTS

On November 13, 1980, Jose D.R. was one of 11 students enrolled in a special class for children with emotional problems in the Drifill School in Oxnard. Jose was 11 years of age and a sixth grader. Most of the students in the class, including Jose, were there because of behavior problems. However, there also were some students who had learning disabilities enrolled in the class. Lee L., Randy S., and John H. were students in Jose's class.

Dorothy Chambers and Eileen Cole were teachers' aides assigned to work with the children in the emotionally handicapped class. On November 13, 1980, the class went to the school cafeteria for lunch. When Mrs. Chambers told the appellant and Lee L. that they were being too noisy, appellant told her that it "wasn't any of her business." As a result, she decided to seek the assistance of the school principal, Clark Hermansen. When Mrs. Chambers returned to the cafeteria, appellant, Lee L. and some of the other boys were gone.

Randy S., age 12, testified that he joined the appellant, Lee L. and a boy named Leon outside the cafeteria after lunch. Red apples had been served for dessert and appellant had some red apples. The four boys huddled together and appellant took out an apple, made a "little C-shape" with his nail and inserted a "needle" 1 in the apple and covered it over with the skin and then said, "Let's give it to the teacher." Appellant was giggling when he made that statement. Randy did not remember telling a police officer about two apples and two pins. However, Officer Mulville testified that Randy told him that he saw appellant put two pins in two apples.

Mrs. Chambers returned to the cafeteria before dismissal time and shortly thereafter appellant and Lee L. also returned to the cafeteria. Each of the boys offered her an apple and she declined their offers. Appellant then gave Mrs. Chambers an apple, which she held in her hand. Randy S. came in and said "Mrs. Chambers, please don't eat that apple. There's a pin in it." Randy took the apple from Mrs. Chambers, removed a pin that was inserted in the apple and threw the pin in the trash. Mrs. Cole testified that she too was offered an apple by both the appellant and Lee L. She took an apple from the appellant and put it on the table in front of her. Randy also told her that there was a pin in her apple. He pulled the pin out and threw it away.

Principal Clark Hermansen examined an apple that Mrs. Chambers brought to him. He stated that it contained an embedded straight pin with the point of the pin sticking out at the surface of the apple. At about 1:20 p.m., on November 13, 1980, Officer James Struck picked up appellant for truancy and brought him to the principal's office at Drifill School. The officer and Hermansen were discussing appellant's truancy problems and the subject of the apple was brought up. Appellant overheard the conversation, started crying, and blurted out "that he didn't put the pin in the apple, that Lee did, that he just had given it to the teacher and she didn't want it, so he gave it back to Lee."

John H., age ten, was eating his lunch in the school cafeteria when he was offered a red apple by Lee. It was one of the apples that had been offered to Mrs. Chambers and Mrs. Cole by appellant and Lee. Just before John bit into the apple, Randy warned him that there was a pin in the apple and removed the pin from the apple and threw it in the trash. John then bit into a green apple that he had brought from home. It also had a pin in it which "poked" the side of his mouth. He went to see the school nurse, Linda Butcher, who examined him and saw a slight reddening on the side of his gum. On November 25, 1980, she examined John again and found some generalized puffiness of the jaw and gums. 2

DISCUSSION
I.

Was there a lack of substantial evidence to support the trial court's finding that appellant's conduct violated the provisions of Penal Code section 245, subdivision (a)?

The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. (In re Winship (1970) 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368.) Thus, the standard of appellate review as delineated in People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738, is applicable in considering the sufficiency of the evidence in a juvenile proceeding. This court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649) and we must make all reasonable inferences that support the finding of the juvenile court. (In re Charles G. (1979) 95 Cal.App.3d 62, 67, 156 Cal.Rptr. 832.)

To prove a violation of Penal Code section 245, subdivision (a), the prosecution must establish that a person was assaulted and that the assault was committed by the use of a deadly weapon or instrument or by means of force likely to produce great bodily injury. Assault with a deadly weapon is a general criminal intent crime (People v. Parks (1971) 4 Cal.3d 955, 959, 95 Cal.Rptr. 193, 485 P.2d 257) and requires proof only of an attempt to commit a violent injury upon the person of another. It does not require proof that an injury occurred. (People v. Herrera (1970) 6 Cal.App.3d 846, 851, 86 Cal.Rptr. 165.) The requisite intent for the commission of an assault with a deadly weapon is the intent to commit a battery. (People v. Parks, supra, 4 Cal.3d at p. 959, 95 Cal.Rptr. 193, 485 P.2d 257.) Moreover, when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the intent to commit a battery is presumed. (People v. Lathus (1973) 35 Cal.App.3d 466, 470, 110 Cal.Rptr. 921.)

A "deadly weapon" within the meaning of Penal Code section 245, subdivision (a) is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. In determining whether an object not inherently deadly or dangerous acquires this characteristic, the trier of fact may look to the nature of the weapon, the manner of its use, and all other factors that are relevant to this issue. (People v. White (1963) 212 Cal.App.2d 464, 465, 28 Cal.Rptr. 67; People v. Russell (1943) 59 Cal.App.2d 660, 665, 139 P.2d 661.) 3

In the case at bench we find that the appellant's conduct in knowingly offering to a potential victim an apple with a straight pin embedded in the apple constitutes a violation of Penal Code section 245, subdivision (a). There is ample evidence indicating that pins were purposely concealed in the apples by the appellant and offered by appellant and Lee L. to Mrs. Chambers, Mrs. Cole and John H. with the intent that they be ingested. Linda Butcher, a registered nurse with approximately 20 years of experience, was qualified as an expert witness and testified that an ingested pin was medically dangerous to a human being and potentially life-threatening. She stated that a pin could perforate the esophagus or any part of the intestinal canal, including the stomach. If the esophagus was perforated, a pin could enter the chest cavity and expose the cavity to infection. She further testified that if a pin "got from the stomach or small intestine during peristalsis, moving the pin down and perforated the stomach or small intestine, the integrity of the abdominal cavity would make it open to peritonitis or other infections."

Relying upon People v. Covino (1980) 100 Cal.App.3d 660, 161 Cal.Rptr. 155, appellant argues that in this case there...

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