People v. Gavin T.

Opinion

PETERSON, P. J.

Appellant Gavin T. contends there was insufficient evidence that he committed an assault by means of force likely to cause great bodily injury, or with a deadly weapon. (Pen. Code, § 245, subd. (a)(1) (section 245).) We agree.

The appellant, who was 15 at the time, threw away a partially eaten apple, and the thrown apple unfortunately passed through a gap in a door and accidentally hit a teacher inside his school.

We agree the evidence adduced here was insufficient to sustain the juvenile court’s finding that appellant committed an intentional assault by

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means of force likely to cause great bodily injury or with a deadly weapon; and in fact, the juvenile court found appellant did not intend to hit the victim with the apple. The crime of assault requires an intent to touch, strike, or batter a victim; or a general criminal intent to act in an inherently dangerous manner. In the absence of such intent, we must vacate the juvenile court’s order.

I. Facts and Procedural History

Appellant was 15, and a student at a school. He was eating lunch outside with some friends during the lunch period. Appellant and a friend shared an apple. When the apple was half eaten, appellant threw the remainder of the apple core toward a wall some distance away. The wall was that of a classroom in which no class was scheduled to occur during the lunch period.

Unfortunately, a teacher was, in fact, inside the classroom, holding a special tryout for the school choir. The thrown apple somehow sailed through a slowly closing door, entering through a gap of about 12 inches, and struck the teacher in the head while she was in the classroom. As a very unfortunate and unusual consequence, the teacher was knocked to the floor and lost consciousness for a few minutes.

A petition was filed in the juvenile court, in which it was alleged that appellant committed an assault by means of force likely to cause great bodily injury or with a deadly weapon, in violation of section 245.