Palos Verdes Estates, Client, 16, Throws Food at Bicyclist, Defense Verdict

Some cases just are not meant to be cases.  Our client and a few of her friends were driving from Palos Verdes High School to one of her friend’s homes to study.  It was about 2:00 p.m.
 
As the group was passing Bluff Cove, our client looked into the lunch that her mom had packed for her that day.  She saw a peanut butter and jelly sandwich.  Her mom had prepared it early in the morning, just as she had every day for her since kindergarten eleven years ago.
 
Our client had grown to hate such sandwiches, but did not have the heart to tell her mom.  Our client then decided to throw the sandwich out the car window at a bicyclist ahead.  Our client thought her friends would find this funny.

As the car approached the cyclist, our client threw the sandwich, but it missed the cyclist.  The cyclist, however, saw it pass by him and was alert enough to look up at the car’s license plate number and memorize it.  The cyclist even picked up the sandwich as evidence.

The cyclist pedaled about a mile more to the Palos Verdes Estates (PVE) police station and reported the incident, as well as the license plate number, and presented the police with the peanut butter and jelly sandwich.  The PVE police quickly ran the plate and went to the home of the registered owner.
 
Our client admitted throwing the sandwich immediately, apologizing and crying.

The police arrested our client on assault (Penal Code § 240) and took her back to the police station, where they fingerprinted her, booked her and placed in the women’s cell within the police station.  They then called her parents, who were quite worried and upset.

The police released our client to her parents, with a signed promise to appear in the Inglewood juvenile court.

The parents quickly called Greg Hill & Associates.  Greg listened to the parents explain the situation and then told them that assault had not taken place at all.  
Greg explained that since the cyclist was never placed in apprehension of an imminent battery, the elements of assault were not met.  After all, the cyclist only saw the sandwich when it had already passed in front of him and was still moving away from him.  When he realized what had happened, he was already out of danger.

Greg explained that he had written an article about a recent federal case, wherein California law on assault was applied.  In the federal case, a person threw a large chunk of concrete at a border patrol agent, but missed.  The border patrol agent suddenly saw the concrete crash next to him, but he was never in danger of being hit by it because the thrower’s aim was poor, just as our sixteen year old client’s aim.  Greg then e-mailed the parents a link to the article he had written (http://www.greghillassociates.com/victim-must-know-of-danger-to-have-conviction-for-assault.html).

The parents understood the situation and explained this to their daughter.
About two weeks passed and Greg did not hear from the parents again, or the client.  The parents then called to report that the juvenile probation department in Torrance had contacted them and explained that their daughter’s case would be referred to Teen Court at Palos Verdes High School for resolution.  Teen Court is a program run by local judges and volunteer attorneys.

This was an unusual decision by the probation department.  The parents then talked quite a bit more with Greg, asking Greg to explain what other charges could be added to the complaint against their daughter.  Greg explained that littering (Penal Code § 374.3) could be alleged, as well as disturbing the peace (Penal Code § 415), although this latter charge would most likely really not apply because there was no loud noise made, no fighting in public and no utterances of fighting words.  However, Greg explained that if the police were so unfamiliar with the elements of assault, they may be equally ignorant of the requirements for disturbing the peace.
 
Greg focused most on the elements required for assault and explained that courts struggle with the mental state of the victim, whether any anxiety is required in the intended victim.  In 2001, in People v. Williams (2001) 26 Cal.4th 779, 790 (endnote 5), for example, the California Supreme Court held that “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.  Instead, the court there said, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of force against another.”

Most judges in California, however, are taught about assault in the context of federal law and that since the client only meant to make her passengers laugh, she did not even have the intent to hit the cyclist with the sandwich or even scare the bicyclist.  The parents understood this and then explained that this would have to be her defense position.

At the teen court hearing four weeks later, our client received a not guilty verdict.  The client and her parents were very happy they had spoken to Greg and he had guided the client through this situation – for free.

For more information about the issues in the above case summary, please click on the following links:
  1. Victim Must Know of Danger to Have Conviction for Assault.
  2. What is Assault (Penal Code § 240)? Defenses? Punishment?
  3. What Is Diversion, Delayed Entry of Plea and Deferred Entry of Judgment?
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