The opinion
Filed 4/28/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re D.W., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A141217
v.
(Contra Costa County
D.W., Super. Ct. No. J1000763)
Defendant and Appellant.
I.
INTRODUCTION
D.W. appeals from an order continuing him as a ward of the court. (Welf. & Inst.
Code, § 602.) He contends that the juvenile court violated his constitutional right to due
process by permitting an amendment to the wardship petition during a contested
jurisdiction hearing which added a charge that D.W. committed a battery with injury on a
peace officer while he was detained at juvenile hall. (Pen. Code, §§ 242,
243, subd. (c)(2).)1 D.W. also contends there is insufficient evidence to support the
court‘s finding that he committed that offense.
As we will explain, the amendment to the wardship petition did not violate D.W.‘s
due process rights, but the record does not contain substantial evidence that the battery
D.W. committed caused an injury as that term is defined by the pertinent statute.
1
All statutory references are to the Penal Code unless otherwise stated.
1
(§ 243, subd. (f)(5).) Therefore, we will modify the appealed order to reflect that D.W.
committed a battery against a peace officer. (§ 243, subd. (b).)
II.
STATEMENT OF FACTS
A. Background
In May 2010, the Contra Costa County District Attorney filed an original wardship
petition charging 13-year-old D.W. with misdemeanor battery on a school employee and
two counts of making criminal threats. That November, D.W. was adjudged a ward of
the court after he admitted the battery in exchange for dismissal of the threat charges.
The court ordered probation and placed D.W. in a group home. In 2011 and 2012, D.W.
committed several probation violations necessitating new placements and was also the
subject of a Stanislaus County wardship petition charging him with vehicle theft and
driving without a license.
In January 2013, the juvenile court ordered that D.W. be screened for the Youth
Offender Treatment Program (YOTP). In April, the court filed a disposition order
placing D.W. in YOTP for a period not to exceed two years 244 days, or until age 21,
whichever occurred first. This court affirmed the YOTP placement order in an
unpublished decision filed on September 30, 2013. (In re D.W. (Sept. 30, 2013,
A138467) [nonpub.opn.].)
B. The Second Supplemental Petition
Meanwhile, in May 2013, the Contra Costa County District Attorney filed an
amended second supplemental petition against D.W. Count one of the petition alleged
that D.W.‘s adoptive parents were unable to accept responsibility for housing and raising
him, a fact D.W. had previously admitted. However, the District Attorney added two
new charges arising out of an incident that occurred on February 12, 2013, while D.W.
was detained at juvenile hall. Count two of the amended second supplemental petition
charged D.W. with felony battery by gassing on the person of Robert Dutra, an employee
2
of the juvenile hall detention facility, in violation of section 243.9.2 Count three charged
D.W. with felony possession of a dirk or dagger in violation of section 21310.3
A contested jurisdiction hearing on the amended second supplemental petition was
set for September 23, 2013. At the beginning of that hearing, the juvenile court took
judicial notice of a February 2013 order detaining D.W. at juvenile hall pending
disposition of the first supplemental petition (which resulted in the YOTP placement).
The People then requested that the court take judicial notice that juvenile hall is a ―local
detention facility‖ within the meaning of section 243.9. However, D.W. objected to that
request, arguing that the nature of the facility was an element of the offense of battery by
gassing, which the People had to prove. After lengthy discussion, the court denied the
request for judicial notice and advised the parties that its ―inclination‖ was to dismiss the
section 243.9 charge because the People would not be able to prove that juvenile hall is a
local detention facility ―based on the definition in the Penal Code.‖ Instead though, the
court continued the hearing so the parties could brief the issue. The contested jurisdiction
hearing was continued to October 21, 2013.
On October 3, 2013, the People filed a motion for permission to file a second
amended second supplemental petition which added another charge arising out of the
2
Section 243.9 states in relevant part: ―(a) Every person confined in any local
detention facility who commits a battery by gassing upon the person of any peace
officer. . . or employee of the local detention facility is guilty of aggravated battery and
shall be punished by imprisonment in a county jail or by imprisonment in the state prison
for two, three, or four years. [¶] (b) For purposes of this section, ‗gassing‘ means
intentionally placing or throwing, or causing to be placed or thrown, upon the person of
another, any human excrement or other bodily fluids or bodily substances or any mixture
containing human excrement or other bodily fluids or bodily substances that results in
actual contact with the person's skin or membranes.‖
3
Section 21310 states in relevant part that ―any person in this state who carries
concealed upon the person any dirk or dagger is punishable by imprisonment in a county
jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.‖
3
February 12 incident. The additional charge was for committing a felony battery with
injury on a peace officer in violation of section 243, subdivision (c).4
At the October 21 continued hearing, the People conceded that section 243.9
―defines local detention facility as only an adult facility‖ and moved to dismiss the count
charging D.W. with committing a battery by gassing. The juvenile court granted the
motion to dismiss and then turned its attention to the motion to amend the second
supplemental petition to charge D.W. with committing a battery with injury against a
peace officer. The defense objected on two grounds. First, it argued the amendment
would violate double jeopardy because the trial had already commenced. Second, D.W.
argued that the amendment would violate his right to procedural due process because he
had no prior notice of an injury occurring during the February 12 incident.
The court overruled both defense objections and granted the motion to amend the
second supplemental petition. With respect to the due process objection, the court found
that D.W. had notice of the proposed amendment and ―as long as there‘s no surprise,
there‘s no basic due process violation . . . .‖ To make a clear record, the court confirmed
that the defense received notice of the motion to amend on October 3, and also stated that
the defense would be granted additional time to prepare for the new charge. However,
when D.W.‘s trial counsel continued to object, the court agreed to reconsider its ruling if
the defense wanted to brief the matter. In the meantime, the contested hearing was
continued until November 18.
On November 6, 2013, D.W. filed a motion to dismiss the battery with injury
count on the grounds that (1) D.W.‘s liberty had once been in jeopardy for that same
offense; and (2) section 654 barred multiple prosecutions for the same offense. At the
November 18 hearing, the court denied the motion to dismiss and continued the
4
Section 243, subdivision (c) states that a battery is punishable by a $10,000 fine
and up to three years in state prison when it is committed against a peace officer engaged
in the performance of his/her duties and an injury is inflicted on that victim. (§ 243,
subd. (c)(2).) ―Injury‖ is defined as ―any physical injury which requires professional
medical treatment.‖ (§ 243, subd. (f)(5).)
4
jurisdiction hearing to December 17, 2013. On December 17, the hearing was continued
again.
C. The Evidentiary Hearing
The evidence portion of the contested jurisdiction hearing was conducted on
December 23, 2013. Three Contra Costa County Juvenile Hall employees testified about
an incident involving D.W. which occurred at the facility earlier that year.
Probation counselor James Slay testified that, on the morning of February 12,
2013, D.W. was agitated because he thought there was glass in his arm and he could not
be convinced otherwise by Slay or a nurse who tried to assist him. Finally, Slay called ―a
code‖ because D.W. was hurting himself trying to get inside of his skin. During that
code, Slay and other officers recovered a ―shank‖ that D.W. had in his room. A short
time later, at approximately 12:02 p.m., Slay was conducting a ―15 minute security room
check‖ when D.W. showed him another shank. Slay asked for the object but D.W.
refused to give it to him, so Slay had to call another code to the unit. Approximately 10
staff members responded to the call, including Cameron Marshall and R.J. Dutra.
Officer Marshall testified that when he responded to the second code call from
Slay, he asked D.W. for the shank but D.W. denied having one. Staff members spent
approximately 20 minutes trying to convince D.W. to surrender the shank before they
obtained permission to use force. The officers sprayed ―OC pepper spray‖ into the room
and directed D.W. to lie on his stomach and crawl out. D.W. refused to comply with that
directive, so the door was closed and the officers waited for the pepper spray to take
effect. When D.W. finally crawled out of the room, he resisted handcuffs. Eventually,
D.W. was placed in a wrap restraint. After talking to a mental health professional for
about an hour, D.W. agreed to a strip search. While Marshall was conducting that search,
a shank fell out of D.W.‘s pants. Marshall described the shank as a thick object made out
of a comb wrapped with twine which had a hook on one end and a sharp blade on the
other.
Officer Dutra testified that before he responded to the second code call from Slay,
he had already helped remove two shanks from D.W.‘s room. Dutra also confirmed that
5
the officers had to use force because D.W. was resistant and noncompliant. Ultimately,
Dutra assisted with putting D.W. in a full-body ―wrap‖ restraint. While Dutra was
securing the bottom half of the restraint, he heard D.W. make distinctive noises which
Dutra immediately recognized as collecting spit in his throat. Dutra told D.W. not to spit.
D.W. responded ―I‘m not going to spit on you, that would be disrespectful. I swallowed
that shit.‖ Dutra requested a ―spit hood,‖ but when one could not be found he proceeded
to apply the top half of the restraint to D.W.‘s body. As Dutra leaned in to secure the
restraint, D.W. looked him in the eyes and ―purposely spit‖ in his left eye. When
questioned at the hearing about whether he experienced pain when D.W. spat in his eye,
Dutra gave this response: ―I wouldn‘t say pain, but it was irritated. It was irritated
throughout the evening. It was red—but yeah, I wouldn‘t say painful.‖
Following the incident, Dutra was sent to the occupational hospital. He testified
that hospital staff suspected a scratched cornea because ―of all the irritation and redness,‖
but a fluorescent fluid test established it was ―just irritation.‖ Dutra was also tested for
STD‘s, and had to do follow up blood tests for several weeks because D.W‘s bodily fluid
penetrated his eye. Dutra, who normally has perfect 20/20 vision, was also given a vision
test which showed his vision was 20/25 and that his perception was blurry. Dutra
testified that he was not directly exposed to the pepper spray that was released into
D.W.‘s room, but he believed that D.W. had pepper spray in his spittle which caused the
irritation and burning sensation that he experienced in only his left eye. Dutra also
testified that follow up testing for STD‘s is standard protocol for a detention officer who
has direct exposure to bodily fluids.
Medical records pertaining to treatment Dutra received following the incident
were admitted into evidence. According to a ―Doctor‘s First Report of Injury,‖ the
examining doctor‘s ―Impression‖ was that Dutra had suffered ―Bodily fluid exposure to
the left eye,‖ and his treatment ―Recommendation‖ was a baseline blood draw to test for
communicable disease. According to the report, Dutra denied ―any pain or discomfort,‖
but complained of ―mild tingling in his left eye because the suspect had a small amount
of pepper spray in his mouth.‖ Dutra‘s vision in each eye was 20/25 and his vision in
6
both eyes was 20/20 without glasses. The report also stated: ―Evaluation of [Dutra‘s]
left eye shows no erythema, edema, ecchymosis, or any deformity. Fluorescin stain was
negative for foreign body and corneal abrasion. Conjunctiva is clear. There is no
papilleredema.‖
Progress reports were prepared when Dutra returned to the hospital for follow-up
blood work on March 25, May 13, and August 12, 2013. The lab results from Dutra‘s
blood work were all negative for communicable diseases. On March 25, Dutra denied
changes in his vision, or blurry or double vision, and the results of his vision exam were
unchanged since February. On May 13, Dutra again denied any change in vision, blurry
or double vision. By that time, his vision in each eye was 20/20. On August 12, Dutra‘s
doctor completed a ―Primary Treating Physician‘s Discharge Summary‖ which stated:
―The patient is stable . . . He is in his pre-injury state with no impairment. No future
medical treatment is needed.‖
D. Jurisdiction and Disposition Orders
On December 23, 2013, the court sustained the count three charge that D.W.
possessed a dirk or dagger. However, the court requested additional briefing with respect
to the count four charge for battery with injury and continued the hearing until
January 14.
On January 14, 2014, the juvenile court sustained the charge that D.W. committed
a battery with injury on a peace officer. The court reasoned that if follow-up tests or
visits had not been required, Dutra would probably not have suffered an ―injury‖ within
the meaning of the statute. However, the treatment plan that was adopted on February 12
included the baseline blood test, which supported a reasonable inference that medical
treatment was actually necessary. Furthermore, the court found that language in the
discharge summary stating that Dutra was in his ―pre-injury‖ state and that no further
treatment was required ―clearly implie[d] that prior to that point medical treatment was
needed or required.‖
The juvenile court also made disposition findings on January 14, 2014. By that
time, D.W. had already been placed in YOTP pursuant to the petition that was pending
7
when the February 12 incident occurred. The juvenile court continued the wardship and
the YOTP placement, ordered D.W. to pay restitution, and imposed other conditions
including a requirement that D.W. write a letter of apology to Dutra. The court found
that the maximum period of confinement was three years eight months and ordered D.W.
to pay a $200 restitution fine within six months of his release from YOTP.
III.
DISCUSSION
A. The Petition Amendment
D.W. contends the juvenile court erred by permitting the People to amend the
wardship petition to allege the battery with injury charge. We review the order
authorizing the amendment for an abuse of discretion. (See In re Johnny R. (1995)
33 Cal.App.4th 1579, 1584–1585 (Johnny R.); In re Man J. (1983) 149 Cal.App.3d 475,
481.) Here, D.W. argues the court abused that discretion by depriving him of his due
process right to adequate notice of the charges against him.
― ‗[Due] process requires that a minor, like an adult, have adequate notice of the
charge so that he may intelligently prepare his defense. [Citation.]‘ [Citation.]
Compliance with this requirement has been held by the Supreme Court to mandate that
the minor ‗be notified, in writing, of the specific charge or factual allegations to be
considered at the hearing, and that such written notice be given at the earliest practicable
time, and in any event sufficiently in advance of the hearing to permit preparation.‘
[Citation.]‖ (In re Robert G. (1982) 31 Cal.3d 437, 442 (Robert G.).)
Robert G., supra, 31 Cal.3d 437 involved a wardship petition which charged a 14-
year-old minor with assault with a deadly weapon. At the contested hearing, the People
presented evidence that the minor threw two rocks while he was in a junior high school
parking lot, one of which hit a school custodian in the back. (Id. at p. 439.) After the
People completed their case, the minor moved for acquittal on the ground that the rock
was not a deadly weapon. The juvenile court denied the motion, although it agreed that
the rock was not a deadly weapon. (Ibid.) After the minor rested without presenting
evidence, the People argued that the petition should be sustained because the evidence
8
established that the minor committed a battery. Over a defense objection, the juvenile
court amended the petition to charge a battery and then sustained the petition pursuant to
that new charge. (Id. at p. 440.) The Robert G. court reversed the judgment, holding that
―a wardship petition under section 602 may not be sustained upon findings that the minor
has committed an offense or offenses other than one specifically alleged in the petition or
necessarily included within an alleged offense, unless the minor consents to a finding on
the substituted charge.‖ (Id. at p. 445.)
Contrary to D.W.‘s arguments on appeal, the amendment that occurred in this case
did not violate the due process principles elucidated in Robert G., supra, 31 Cal.3d 437.
Both offenses that D.W. was found to have committed were specifically alleged in
writing in the second amended second supplemental petition that was served on D.W. on
October 3, 2013. Before the juvenile court accepted that version of the petition, it
expressly confirmed that D.W. had received the October 3 notice of the proposed
amendment. And, after the amendment was made, D.W. was provided additional time to
prepare to defend the new charge. Indeed, the evidentiary hearing did not proceed until
more than two months after the amendment was made. Furthermore, the battery with
injury charge was based on exactly the same conduct by D.W. which gave rise to the
criminal charges in prior versions of the petition. Under these circumstances, D.W. has
failed to establish that his right to procedural due process was violated.
D.W. also mistakenly relies on Johnny R., supra, 33 Cal.App.4th 1579. In that
case, a wardship petition charged the 12-year-old minor with assault with a deadly
weapon. (Id. at p. 1581.) After the prosecutor completed a direct examination of the
People‘s main witness, the court called counsel into chambers, advised the parties that an
acquittal was likely because of the weak evidence, and suggested a plea bargain which
would result in a finding that the minor committed the offense of possession of a dirk or
dagger. However the parties failed to reach a plea agreement. (Id. at p. 1582.) After the
conference, the People sought leave to amend the petition to add a second charge for the
weapon violation that the court had suggested in chambers and, over a defense objection,
the court permitted that amendment. (Id. at pp. 1582-1583.) At the conclusion of the
9
trial, the court dismissed the assault charge, made a true finding with respect to the
weapon possession charge, and sustained the petition on that ground. (Id. at p. 1583.)
The Johnny R. court found that the juvenile court violated the mandate of
Robert G., supra, 31 Cal.3d 437, by permitting the prosecutor to amend the petition after
the direct examination of its principal witness. (Johnny R., supra, 33 Cal.App.4th at
pp. 1584–1585.) The fact that the amendment occurred slightly earlier in the proceeding
than the Robert G. amendment was not a meaningful distinction, the court reasoned,
because the trial had ―commenced and the minor had never been put on notice of a need
to defend against the weapons charge.‖ (Id. at p. 1584.) Furthermore, the appellate court
concluded that the juvenile court abused its discretion by permitting a mid-trial
amendment, after the court itself had pointed out the weakness of the People‘s case and
supplied the idea for an alternative charge. (Id. at pp. 1584–1585.) In this regard, the
Johnny R. court stated that ―[p]rosecutorial inattention is not a sound basis for the court‘s
exercise of discretion mid-trial to require the accused to face new charges not included
within those previously filed.‖ (Id. at p. 1585.)
Johnny R., supra, 33 Cal.App.4th 1579, is distinguishable from the present case in
material respects. The amendment in this case was not authorized in the middle of a trial
or in order to salvage a weak case. Here, before any witness testified, the parties briefed
and argued an issue of law which led the prosecutor to conclude that an amendment was
necessary in order to properly address the conduct which gave rise to the supplemental
petition. Furthermore, D.W. received written notice of that amendment two months
before the People presented evidence against him and nothing in the record suggests that
D.W. needed more time to prepare his defense. Thus, in contrast to Johnny R., the
juvenile court in this case did not violate the mandate of Robert G., supra, 31 Cal.3d 437,
or otherwise abuse its discretion by permitting the amendment adding the battery with
injury charge.
10
B. Injury
D.W. contends the true finding that he committed battery with injury on a peace
officer must be reversed because there is insufficient evidence to establish the injury
element of that offense.
There are four statutory crimes of battery which are set forth and distinguished in
sections 242 and 243. Section 242 defines simple battery as ―any willful and unlawful
use of force or violence upon the person of another.‖ In determining whether a simple
battery was committed, the word ―violence‖ is superfluous because it ― ‗ ―has long been
established‖ ‘ ‖ that ― ‗ ― ‗the least touching‘ may constitute a battery.‖ ‘ ‖ (People v.
Longoria (1995) 34 Cal.App.4th 12, 16 (Longoria).) The second category of battery is
felony battery which occurs when ―the batterer not only uses unlawful force upon the
victim‖ (id. at p. 16), but causes ―serious bodily injury.‖ (§ 243, subd. (d).)5
―The other two categories of battery involve a special class of victims: peace
officers and other specified persons. (§ 243, subds. (b) and (c).) If what would otherwise
be a simple battery (any unlawful touching, even without causing pain or injury) is
committed against, e.g., a peace officer engaged in the performance of his/her duties, then
the offense is punishable by one year in county jail and a $2,000 fine.‖ (Longoria, supra,
34 Cal.App.4th at p. 16, italics omitted; see § 243, subd. (b).)
―Similarly, a distinction is made when it is a peace officer who is injured by a
batterer. Unlike the ordinary victim, for enhanced punishment to be imposed, ‗serious
bodily injury‘ is not required.‖ (Longoria, supra, 34 Cal.App.4th at p. 16.) Section 243,
subdivision (c), provides that a battery is punishable by a $10,000 fine and up to three
years in state prison when the battery is committed against a peace officer engaged in the
performance of his or her duties (§ 243, subd. (c)(2)) and an ―injury is inflicted on that
5
Serious bodily injury is defined as ―a serious impairment of physical condition,
including, but not limited to, the following: loss of consciousness; concussion; bone
fracture; protracted loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.‖ (§ 243, subd. (f)(4).)
11
victim.‖ (§ 243, subd. (c)(1).) ―Injury‖ is defined as ―any physical injury which requires
professional medical treatment.‖ (§ 243, subd. (f)(5).)
In this case, D.W. was charged with the fourth type of battery outlined above,
violating section 243, subdivision (c) by committing a battery with injury on Officer
Dutra. ―What the statute prescribes as a qualifying injury is an injury which ‗requires
professional medical treatment.‘ It is the nature, extent, and seriousness of the injury—
not the inclination or disinclination of the victim to seek medical treatment—which is
determinative. A peace officer who obtains ‗medical treatment‘ when none is required,
has not sustained an ‗injury‘ within the meaning of section 243, subdivision (c). And a
peace officer who does not obtain ‗medical treatment‘ when such treatment is required,
has sustained an ‗injury‘ within the meaning of section 243, subdivision (c). The test is
objective and factual.‖ (Longoria, supra, 34 Cal.App.4th at p. 17, italics omitted.)
Here, the juvenile court found that the medical record evidence supports an
inference that Officer Dutra required professional medical treatment. However, the
court‘s analysis was incomplete because the question is not just whether the victim
required medical treatment, but whether he or she required medical treatment for a
physical injury inflicted during the battery. (§ 243, subds. (c), (f)(5).) As discussed
above, the inquiry requires an objective assessment of the facts regarding the ―nature,
extent, and seriousness‖ of that physical injury. (Longoria, supra, 34 Cal.App.4th at
p. 17.)
As the juvenile court found, there is evidence that Dutra underwent a series of
tests over a period of months to ensure that D.W. had not infected him with a
communicable disease. Assuming those measures can be characterized as treatment, and
that this treatment was required, it was not treatment for an actual physical injury. In
other words, at most, there may be substantial evidence that Dutra required prophylactic
professional treatment to determine if D.W.‘s spittle had infected Dutra with a
communicable disease. However, that treatment was independent from, and not causally
related to, any actual injury Dutra received. Thus, the medical monitoring that Dutra
received was not for an actual physical injury.
12
The People contend that Officer Dutra‘s testimony about the sensations he
experienced after D.W. spat in his eye is more than sufficient to establish that he suffered
an injury within the meaning of section 243, subdivision (c). Dutra testified that his eye
was red and irritated but that he did not experience any pain as a result of D.W. spitting in
his eye. The medical records reinforce Dutra‘s admission that he did not experience pain.
Furthermore, there was no testimony or documentation in the medical records that a
medical professional did anything to treat the redness or irritation in the officer‘s eye.
There is evidence that, before the altercation with D.W., Dutra had 20/20 vision
and afterward his vision in each eye was 20/25 for a few months. However, this evidence
of a temporary physical impairment is inconsistent with the juvenile court‘s finding that
D.W. committed a battery with injury on a peace officer because it establishes that Dutra
experienced decreased vision in both eyes, not just the eye D.W. spat in, and thus
suggests that the symptoms that Dutra described were caused by his exposure to the
pepper spray rather than by the spit in his eye.
The People mistakenly rely on Longoria, supra, 34 Cal.App.4th 12. In that case,
appellant kicked an officer in the groin, fell on top of him, and pinned the officer‘s hand
between his handcuffs and the floor. (Id. at p. 15.) After the altercation, the officer saw a
doctor who directed him to have his hand x-rayed. At the hospital, another doctor
―advised‖ the officer what to do about his groin and ordered an x-ray of his hand. There
were no broken bones in the hand, but the officer sustained cuts to his fingers and the
bottom of his hand which prevented him from holding his gun and, as a result of his
injuries, he was placed on restrictive duty for three to five days. (Id. at pp. 15–16.)
Based on this evidence, the Longoria court affirmed a jury finding that appellant violated
section 243, subdivision (c). (Id. at p. 18.)
The People construe Longoria, supra, 34 Cal.App.4th at pages 17–18, as
establishing a broad definition of ―injury‖ which can be satisfied solely by the victim‘s
testimony without scrutiny of the type of medical treatment that was actually rendered.
We agree, but as discussed above, Officer Dutra‘s testimony in this case is insufficient to
establish that he suffered the type of physical injury that requires professional medical
13
treatment. In this regard, the People simply mischaracterize the testimony by arguing
that ―Dutra‘s eye was flushed but that did not relieve the symptom of burning pain.‖
Dutra testified that he did not experience any pain and he told the doctor the same thing.
In Longoria, the injury finding was supported by evidence that the officer ―was
kicked in the groin and knocked to his knees; the fingers and bottom side of his right
hand were cut, and his hand was crushed; he could not hold his firearm and had difficulty
unwrapping his holster; he was placed on restrictive phone-answering duty for three to
five days.‖ (Longoria, supra, 34 Cal.App.4th at p. 18.) No comparable evidence
supports the injury finding in this case. Officer Dutra experienced redness and irritation
without pain; he sought medical attention but tests showed that he suffered no injury to
his eye; there was no evidence that he missed work or was placed on restricted duty.
Dutra did experience a temporary reduction in vision but, as discussed above, that
symptom could not have resulted from the battery because it affected both of the officer‘s
eyes.
Although our analysis is necessarily fact specific, our conclusions are reinforced
by In re Michael P. (1996) 50 Cal.App.4th 1525 (Michael P.). In that case, a probation
department officer was attacked while he was driving appellant and several other wards
to a youth center in a county van. (Id. at p. 1527.) Though handcuffed, appellant
unbuckled his seatbelt, got up, leaned over and kicked the steering wheel of the van and
the officer several times, causing the van to swerve back and forth. (Id. at pp. 1527–
1528.) The officer slammed his brakes and came to a stop on the shoulder of the road,
causing appellant to fly forward and hit the dashboard. (Id. at p. 1528.) Appellant, who
was agitated, was eventually subdued and restrained. The officer who had been kicked
several times in the chest and the chin later testified that he was sore after the incident,
but he was not bruised and nobody took any photographs of the injuries. The officer did
not file an incident report or seek medical treatment. (Ibid.)
The Michael P. court found that the officer‘s testimony that he suffered soreness
but no bruising, without providing any information about how hard he was kicked, was
insufficient to support a finding of battery with injury. (Michael P., supra,
14
50 Cal.App.4th at p. 1529.) The court distinguished Longoria, supra, 34 Cal.App.4th 12,
explaining that, although the injuries in that case may not have been so serious as to
require medical attention, the officer ―testified in detail about the seriousness of the
injury,‖ and the evidence established that the injuries required that he be placed on
restricted duty for three to five days. (Michael P., supra, at p. 1530.) These distinctions
apply equally in this case, where Dutra‘s testimony established that he did not suffer any
pain and where there is no evidence that he missed work or was placed on restricted duty
because D.W. spat in his eye.
The Michael P. court acknowledged that ―the threat of death and serious injury‖
that appellant created by almost causing a head-on car accident on the highway made his
conduct ―most reprehensible.‖ (Michael P., supra, 50 Cal.App.4th at p. 1529.) But, the
court recognized, the ―battery statute in question measures culpability by the seriousness
of the inflicted injury,‖ not by the reprehensibility of the batterer‘s conduct. (Ibid.) By
the same token, the threat of infecting Officer Dutra with a communicable disease made
D.W.‘s conduct reprehensible. However, that threat is not relevant to our assessment of
whether there was a qualifying injury. Dutra‘s testimony about the irritation in his eye is
insufficient by itself to establish that he suffered a qualifying injury under section 243,
subdivision (c).
The fact that section 243, subdivision (c), measures culpability by the seriousness
of an inflicted injury rather than the reprehensibility of the batterer‘s conduct is, in our
view, the reason that this statute was not properly used to hold D.W. accountable for his
conduct during the February 12 incident. Indeed, it appears that the proper charge should
have been that D.W. committed a battery by gassing upon a peace officer in violation of
section 243.9; a crime that does not require a causal link between ―injury‖ and
―treatment‖ for that injury. (Ante, fn. 2.) As discussed in our factual summary, the
juvenile court dismissed that count from the second amended petition after the People
conceded that juvenile hall is not a ―local detention facility‖ within the meaning of
section 243.9. Six months after that dismissal, the Court of Appeal held in a case of first
15
impression that ―the phrase ‗any local detention facility‘ as used in section 243.9 includes
juvenile halls.‖ (In re A.M. (2014) 225 Cal.App.4th 1075, 1085.)
The parties agree that if the true finding on the section 243, subdivision (c) charge
is not supported by the evidence, the proper remedy is to modify the disposition order to
state that D.W. committed a violation of section 243, subdivision (b), simple battery on a
peace officer. (See Michael P., supra, 50 Cal.App.4th at p. 1530.) However, neither
party addresses whether or how to recalculate D.W.‘s maximum period of confinement.
Therefore, we will remand this case to the trial court to address that issue.
IV.
DISPOSITION
The disposition order finding that D.W. committed a violation of section 243,
subdivision (c) is modified to state that D.W. committed a violation of section 243,
subdivision (b). This case is remanded for a determination whether the juvenile court‘s
finding regarding D.W.‘s maximum period of confinement requires adjustment.
16
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
17
A141217, In re D.W.
18
Trial court: Contra Costa County Superior Court
Trial judge: Hon. George V. Spanos
Counsel for Appellant: Veneruso & Moncharsh, Leila H. Moncharsh, by appointment of
the Court of Appeal under the First Appellate Project assisted-case system
Counsel for Respondent: Office of the Attorney General, Kamala D. Harris, Attorney
General, Gerald A. Engler, Chief Assistant Attorney General, and Eric D. Share,
Supervising Deputy Attorney General
A141217, In re D.W.
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