In re S.S. CA5

Filed 8/13/14 In re S.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

In re S.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, F067990

Plaintiff and Respondent, (Super. Ct. No. 12CEJ600726-1)

v. OPINION S.S.,

Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Timothy A. Kams, Judge. Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Cornell, Acting P.J., Detjen, J. and Franson, J.

-ooOoo-

Following a contested jurisdictional hearing, the juvenile court found true allegations that S.S. committed three misdemeanors: count 1, resisting an executive officer (Pen. Code,1 § 69); count 2, battery upon a peace officer (§ 243, subd. (b)); and count 3, resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)). The juvenile court found the maximum confinement time for resisting an executive officer to be one year, with credit for one day served. It stayed sentencing on the other two counts pursuant to section 654. S.S. was declared a ward of the court and ordered to reside in the home of a parent or guardian and under the supervision of the probation officer. On appeal, S.S. argues that the section 148, subdivision (a)(1), resisting, obstructing or delaying a peace officer violation is a lesser included offense of battery upon a peace officer and, as a result, should be dismissed. We disagree and affirm. STATEMENT OF THE FACTS We view the evidence in a light most favorable to the wardship order. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Osband (1996) 13 Cal.4th 622, 690; see In re Michael M. (2001) 86 Cal.App.4th 718, 726; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials].) On September 7, 2012, at approximately 9:30 p.m., Police Officer Jonathan Long and Detective Angie Isaak were dispatched to an address to investigate a report of mail theft. Once there, while talking to the complaining party, a group of approximately 15 juveniles started arguing and fighting nearby. Long and Isaak ran to the fight and yelled at the juveniles to “knock it off” and “back up.” The majority of the juveniles complied, but one female continued to attack