Filed 7/28/23 In re E.D. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re E.D., a Person Coming Under B323153
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. PJ54050)
THE PEOPLE,
Plaintiff and Respondent,
v.
E.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Susan Ser, Judge. Reversed in part and
remanded with directions.
Mary Bernstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
E.D. appeals from the juvenile court’s adjudication order
sustaining two counts of a petition pursuant to Welfare and
Institutions Code section 602. The three-count petition filed
against appellant, a 17-year-old minor, alleged one count of first
degree residential burglary (Pen. Code,1 § 459, count 1), and two
counts of assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4), counts 2 and 3). In count 2 it was
alleged that appellant threw a hammer at the victim, and count 3
was based on an alleged attempt by appellant to hit the victim’s
truck with his car while the victim was chasing appellant. After
a contested hearing, the trial court dismissed count 1, but
sustained counts 2 and 3, and found them to be felonies.2 The
trial court declared appellant a ward of the court and placed him
home on probation.
Appellant contends the trial court’s true finding on count 3
for aggravated assault was not supported by substantial evidence
and must be reversed. We agree. We therefore reverse the
adjudication order as to count 3, and remand for a new
adjudication and disposition order sustaining the petition only as
to count 2. Because we have concluded that substantial evidence
does not support the juvenile court’s true finding that appellant
committed the aggravated assault alleged in count 3, our
1 Undesignated statutory references are to the Penal Code.
2 The court denied a defense motion to reduce counts 2 and
3 to misdemeanors.
2
conclusion is the equivalent of an acquittal. Appellant may not
be retried on the allegation. (People v. Eroshevich (2014) 60
Cal.4th 583, 591.)
FACTUAL BACKGROUND
Prosecution Case
On June 15, 2022, around 8:40 a.m., Juan Velasquez was in
his backyard when he saw appellant at the front door of
Velasquez’s house. Appellant appeared to be leaving the house
with some of Velasquez’s son’s clothing in his hands. Velasquez
recognized appellant as one of his son’s friends. As he was
leaving, appellant said to Velasquez, “ ‘[I]f you guys follow me, all
of you are going to die.’ ” Appellant then left in a black Camry,
which had been running and parked in the driveway.
Velasquez got into his truck and began driving around the
neighborhood looking for appellant. After a few minutes,
Velasquez spotted appellant’s car and began following him.
Appellant stopped near a Vons supermarket and picked up a
female passenger. Velasquez continued to chase appellant’s car
and eventually got close enough to take a photograph of the
license plate. Velasquez called 911 and stayed on the line while
maintaining his pursuit.
As Velasquez was chasing appellant on San Fernando
Mission Boulevard, appellant tried to drive his car into
Velasquez’s truck while Velasquez was driving behind him.
Appellant’s car came within a foot of Velasquez’s truck, and
Velasquez swerved to avoid being hit. At another point during
the chase,3 appellant stopped and threw a hammer at Velasquez.
The hammer landed in the bed of Velasquez’s truck, about three
3 The record is not clear as to the order of these two events.
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feet behind the driver’s seat. Velasquez believed that appellant
was attempting to make him stop the chase with these
maneuvers, but Velasquez did not want to break off until the
police arrived.
Velasquez followed appellant into an alley where both
vehicles stopped. Appellant got out of his car and walked toward
Velasquez, carrying a toy gun that Velasquez believed was an
AK-47. Appellant pointed the gun at Velasquez from about 100
feet away, and Velasquez left the alley. Velasquez stopped his
pursuit of appellant once the police arrived.
Officer Joaquin Lopez with the Los Angeles Police
Department was on patrol in the area of San Fernando Mission
Boulevard and Haskell Avenue around 8:45 a.m. when he saw
appellant’s black Camry pull into a parking lot. Officer Lopez
and his partner began following the Camry when it exited the lot,
and Officer Lopez noticed Velasquez’s blue Ford truck pulled over
on the side of the road. Officer Lopez saw the driver of the
Camry throw an object toward the truck. The officers activated
their lights and sirens, pursuing the Camry as it made several
turns. Eventually, the driver exited the vehicle and fled.
Following a brief search of the area, appellant was apprehended
and identified as the driver of the Camry.
Defense Case
Appellant and his mother, Lisa H., both testified.
Appellant stated that he had known Velasquez’s son Salvador for
about five years—since the sixth grade, and he had been to
Salvador’s house “countless time[s]” “just to hang out.” Most
recently, he had been there for a small gathering a week before
the incident. On that occasion, Velasquez had cooked steaks for
everyone.
4
On June 15, appellant did not know that Salvador had been
incarcerated three days earlier, and he could not remember why
he went to Salvador’s house that morning. Appellant knocked on
the front door, and finding it unlocked, opened it and started to
enter the house. But no sooner had he taken one step inside than
the dogs started barking and appellant turned to leave.
Velasquez came to the door and said, “ ‘Get out.’ ” Appellant
immediately went to his car and left, with Velasquez following
right behind him in his truck.
Appellant saw his mother walking from the bank and
stopped to pick her up. As appellant continued driving, his
mother happened to look in the rear view mirror and saw a blue
truck driven by a man “looking really crazy and agitated”
following them. Driving erratically behind appellant’s car,
Velasquez was “going back and forth in different lanes” and
chasing appellant like “a crazy person.” Appellant and his
mother were terrified. After his mother told appellant to “ ‘get
away from that guy. He’s scary,’ ” appellant dropped her off a
couple blocks away from her house and drove away with
Velasquez still in pursuit.
Appellant was driving “all over the place,” and even threw
a hammer from his car window toward Velasquez in an effort to
stop Velasquez from chasing him. Finally, Velasquez chased
appellant into an alley, where appellant got out of the car and
ran toward Velasquez. Velasquez backed his truck out of the
alley. Appellant denied pointing anything at Velasquez.
Appellant explained that he fled when police began chasing
him because he did not know what was happening and he feared
for his life.
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DISCUSSION
Substantial Evidence Does Not Support the Juvenile
Court’s Finding on Count 3 that Appellant Attempted to
Hit the Victim’s Truck With His Car
Appellant contends there was insufficient evidence to
support the juvenile court’s finding that he attempted to hit
Velasquez’s truck with his car. Because the evidence established
that Velasquez was behind appellant during the entire chase and
there was no evidence appellant suddenly applied his brakes to
cause a collision, appellant argues that Velasquez’s testimony
that he tried to hit Velasquez’s truck was inherently improbable
and thus insufficient to support the court’s finding of an
aggravated assault. Appellant further asserts that in the
absence of any evidence to support a finding that appellant
willfully attempted to hit Velasquez’s truck, the evidence was
insufficient to sustain count 3. Appellant contends the juvenile
court’s finding on count 3 must therefore be reversed.
1. Relevant Legal Principles
When the sufficiency of the evidence to support a criminal
charge in a juvenile proceeding is challenged, we apply the same
standard of review as in an adult criminal trial. (In re M.V.
(2014) 225 Cal.App.4th 1495, 1518.) That is, we “examine ‘ “the
entire 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” ’—‘ “from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” ’ [Citation.] Our review ‘ “ ‘presume[s] in
support of the judgment the existence of every fact the [trier of
fact] could reasonably have deduced from the evidence.’ ” ’ ”
(People v. Veamatahau (2020) 9 Cal.5th 16, 35–36.)
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“An inference is a deduction of fact that may logically and
reasonably be drawn from another fact or group of facts found or
otherwise established in the action.” (Evid. Code, § 600,
subd. (b).) In assessing the sufficiency of evidence based upon
inference, we “may consider only those inferences that are
reasonably supported by the record,” and must not “venture
beyond the evidence presented at trial.” (People v. Ware (2022)
14 Cal.5th 151, 167.) A reasonable inference “ ‘must logically
flow from other facts established in the action.’ ” (Id. at p. 168.)
It “ ‘ “may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work. [¶]
. . . A finding of fact must be an inference drawn from evidence
rather than . . . a mere speculation as to probabilities without
evidence.” ’ ” (People v. Davis (2013) 57 Cal.4th 353, 360; People
v. Sanford (2017) 11 Cal.App.5th 84, 91–92.)
Of course, it is the exclusive province of the trier of fact to
resolve conflicts and inconsistencies in the testimony, and
“ ‘unless the testimony is physically impossible or inherently
improbable, [the] testimony of a single witness is sufficient to
support a conviction.’ ” (People v. Ramirez (2022) 13 Cal.5th 997,
1118, quoting People v. Young (2005) 34 Cal.4th 1149, 1181.)
Nevertheless, “[t]estimony is properly discarded on a sufficiency
of evidence analysis when it is inherently improbable or
improbable on its face, that is, when it seeks to show ‘ “that
something has occurred that it does not seem possible could have
occurred under the circumstances disclosed.” ’ ” (San Diego
Unified School Dist. v. Commission on Professional Competence
(2013) 214 Cal.App.4th 1120, 1151.) “The inherently improbable
standard addresses the basic content of the testimony itself—i.e.,
could that have happened?—rather than the apparent credibility
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of the person testifying. Hence, the requirement that the
improbability must be ‘inherent,’ and the falsity apparent
‘without resorting to inferences or deductions.’ [Citation.] In
other words, the challenged evidence must be improbable ‘ “on its
face” ’ [citations], and thus we do not compare it to other evidence
(except, perhaps, certain universally accepted and judicially
noticeable facts). The only question is: Does it seem possible that
what the witness claimed to have happened actually happened?”
(People v. Ennis (2010) 190 Cal.App.4th 721, 729; People v.
Mayberry (1975) 15 Cal.3d 143, 150; People v. Headlee (1941) 18
Cal.2d 266, 267 [“[t]o be improbable on its face the evidence must
assert that something has occurred that it does not seem possible
could have occurred under the circumstances disclosed”].)
Juveniles, like adults, are constitutionally entitled to proof
beyond a reasonable doubt of every fact necessary to constitute
the crime when they are charged with violation of a criminal law.
(In re Winship (1970) 397 U.S. 358, 368.) A juvenile court’s
finding in a delinquency proceeding must therefore be reversed if
one of the essential elements of the offense is not supported by
substantial evidence.
“An assault conviction requires proof the defendant did
(1) ‘an intentional act’ with (2) ‘actual knowledge of those facts
sufficient to establish that the act by its nature will probably and
directly result in the application of physical force against
another.’ ” (People v. Malik (2017) 16 Cal.App.5th 587, 598;
People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) An
assault is aggravated when committed “by any means of force
likely to produce great bodily injury.” (§ 245, subd. (a)(4); People
v. Aguayo (2022) 13 Cal.5th 974, 983.) “ ‘[A]ll aggravated
assaults are ultimately determined based on the force likely to be
8
applied against a person.’ ” (People v. Aguilar (1997) 16 Cal.4th
1023, 1035.) And while the mere possibility of serious injury is
not sufficient to establish an aggravated assault, “the evidence
may show that serious injury was likely, even if it did not come to
pass.” (In re B.M. (2018) 6 Cal.5th 528, 535.)
As a general intent crime, an assault does not require an
intent to cause injury or a subjective awareness of the risk that a
battery might occur. (Williams, supra, 26 Cal.4th at p. 788;
People v. Leonard (2014) 228 Cal.App.4th 465, 486.) However, “a
defendant guilty of assault must be aware of the facts that would
lead a reasonable person to realize that a battery would directly,
naturally and probably result from his conduct. He may not be
convicted based on facts he did not know but should have
known.” (Williams, at p. 788; People v. Brugman (2021) 62
Cal.App.5th 608, 622.) Moreover, “ ‘mere recklessness or
criminal negligence is still not enough’ to satisfy the mental state
for assault.”4 (Brugman, at p. 622, quoting Williams, at p. 788.)
2. The Evidence Was Insufficient to Support the Juvenile
Court’s Finding on Count 3 Because It Was Based on
Velasquez’s Inherently Improbable Testimony that
Appellant Attempted to Hit Velasquez’s Truck With His Car
While Velasquez Was Driving Behind Appellant
The sole evidence in support of count 3 was Velasquez’s
testimony that as he was driving behind appellant, he swerved to
avoid being hit by appellant’s car, which had come within one foot
4 The Supreme Court used the term “ ‘recklessness’ in its
historical sense as a synonym for criminal negligence, rather
than its more modern conception as a subjective appreciation of
the risk of harm to another.” (Williams, supra, 26 Cal.4th at
p. 788, fn. 4.)
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of Velasquez’s truck.5 But in order to support a reasonable
inference that appellant tried to hit Velasquez’s truck with his
car, there had to be some evidence that appellant was in a
position to do so. There was none. Although appellant testified
he was driving “all over the place,” there was no evidence that
appellant’s car and Velasquez’s truck were ever side-by-side;
throughout the chase, Velasquez was driving behind appellant.
Velasquez also did not testify that appellant tried to cause a
collision with the pickup truck behind him by stopping suddenly
or abruptly slowing down. And Velasquez certainly did not claim
that appellant turned his car around and drove toward
Velasquez’s truck. (See People v. Oehmigen (2014) 232
Cal.App.4th 1, 5, 6 [defendant committed aggravated assault by
turning his car around and driving it at a police car that was in
pursuit].)
At most, the evidence raises a suspicion that appellant may
have purposely changed lanes while Velasquez was actually
beside him, but “a suspicion—even a strong suspicion—is not
5 In support of count 3, the evidence consisted of following:
“[Prosecutor]: . . . At some point while you were chasing
the vehicle and before officers were able to help you, did anything
occur during the chase that made you maneuver out of the way?
“[Velasquez]: Yes. I was going in a chase after him on San
Fernando Mission, and he started to use his car to, you know, hit
me with it.”
“[Prosecutor]: When you described him driving on San
Fernando Mission, you’re driving behind him; correct?
“[Velasquez]: Yes.
“[Prosecutor]: And you said you maneuvered out of the way
because he attempted to drive into your truck?
“[Velasquez]: Yes.”
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evidence and cannot support factual inferences.” (In re K.M.
(2022) 75 Cal.App.5th 323, 328.) Indeed, two facts not in the
record would have to be assumed in order to support a reasonable
inference that appellant tried to hit Velasquez’s truck with his
car: First, that the two vehicles were side-by-side at some point,
even though Velasquez testified they were not, and second, that
when the vehicles were next to each other, appellant changed
lanes to swerve into Velasquez.
Under the circumstances described by Velasquez, we
conclude Velasquez’s testimony that appellant tried to hit
Velasquez’s truck while Velasquez was driving behind him to be
improbable on its face, and thus insufficient to support the
aggravated assault alleged in count 3.
3. The Evidence in Support of Count 3 Is Insufficient to
Establish the Element of Willfulness
Velasquez’s vague testimony that while he was driving
behind appellant, appellant tried to use his car to hit Velasquez’s
truck is also insufficient to support the element of willfulness
required to establish aggravated assault on count 3.
Proof of willfulness here requires some evidence that
appellant was aware of facts that would cause a reasonable
person to realize that a battery⎯i.e., a collision with Velasquez’s
truck⎯“would directly, naturally and probably result” from
appellant changing lanes while Velasquez was chasing him. (See
Williams, supra, 26 Cal.4th at p. 788.) Certainly, appellant’s own
testimony was sufficient to support an inference that he was
driving recklessly. But “ ‘[r]eckless conduct alone does not
constitute a sufficient basis for assault or for battery.’ ” (People v.
Colantuono (1994) 7 Cal.4th 206, 219; Williams, at p. 788.) And
the fact of which appellant would have had to be aware to satisfy
11
the mental state for assault⎯that Velasquez was driving beside
appellant’s car, not behind it⎯was itself unsupported by any
evidence in this case.
DISPOSITION
The adjudication order as to count 3 is reversed. The
matter is remanded to the juvenile court for a new adjudication
and disposition order sustaining the petition only as to count 2.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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