Opinion
F078764
04-14-2020
In re JOSEPH F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSEPH F., Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Edrina Nazaradeh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CEJ600015-1)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Timothy A. Kams, Judge. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Edrina Nazaradeh, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Meehan, J. and Snauffer, J.
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INTRODUCTION
Appellant Joseph F. contends the juvenile court's finding that he understood the wrongfulness of his actions is not supported by substantial evidence. He also contends the probation condition prohibiting possession of non-prescribed medicine is unconstitutionally vague. We affirm the wrongfulness finding but remand for clarification of the probation condition.
FACTUAL AND PROCEDURAL SUMMARY
We focus the recitation of facts and procedure on those matters relevant to the issues raised in this appeal. On January 25, 2018, a Welfare and Institutions Code section 602 petition was filed alleging that Joseph committed assault with a deadly weapon against a peace officer. It also was alleged that Joseph personally inflicted great bodily injury in the commission of the offense, causing the offense to be a serious and violent felony.
References to code sections are to the Welfare and Institutions Code unless otherwise specified. --------
Joseph denied the allegation. The juvenile court ordered that Joseph be detained. On March 16, 2018, supervised home detention was revoked because Joseph possessed a knife at school and threatened his father with a metal pipe.
A contested jurisdiction hearing was held on May 8 and 9, 2018. Testimony at the jurisdiction hearing established that on January 16, 2018, four days prior to Joseph's 14th birthday, Joseph was hanging from a fence behind the school gym. The school therapist, Chong Yang, and other staff members found Joseph with other students attempting to assist him. They lowered Joseph to the ground.
Joseph was agitated and Yang encouraged him to come to his office. Joseph started pushing away from Yang and the other staff members forcefully, and they fell to the ground. Joseph stood up and began walking toward the fence. Yang and the others tried talking to Joseph, but he jumped over the fence. Yang and Vice Principal Daniel Rivera followed him. Rivera called for law enforcement assistance.
Joseph picked up a metal stake that was about one and one-half to two feet long. Yang and Rivera told him to drop the metal stake. When told law enforcement was on its way, Joseph stated he would fight them. Joseph began swinging the metal stake and stated he would hit anyone approaching him. Yang told him not to harm any officers.
Deputy Braithan Stoltenberg of the Fresno County Sheriff's Office arrived on the scene. Stoltenberg asked Joseph several times to drop his weapon. Joseph began screaming and hitting the chain link fence. Joseph began walking toward Stoltenberg, who was telling him to drop the weapon. Stoltenberg ran toward Joseph and tried to force him to the ground. As they were struggling, Joseph hit Stoltenberg in the head with the metal stake. The blow to Stoltenberg's head caused a laceration, localized swelling, and required two staples.
The juvenile court found that Joseph understood the wrongfulness of his conduct, found the allegation of commission of an assault with a deadly weapon against a peace officer true, but found the enhancement not true.
While in juvenile hall pending the jurisdiction hearing and disposition, Joseph displayed poor attitude, refused to take prescribed medication, and engaged in continuous assaultive behavior against other students in the hall. Joseph was described as having an attraction to gangs and homicidal ideation. Between October 2015 and March 2018, Joseph had been suspended from his school nine times for conduct including inflicting physical injury on other students, possessing a knife, and selling drug paraphernalia. Joseph had admitted to using alcohol, marijuana, and cocaine in the past and to being a Bulldog gang member.
The juvenile court noted at disposition that while at the Juvenile Justice campus, Joseph accumulated nine pages of "negative points," threatened staff and other students, and "barks." At disposition, Joseph was placed in a residential facility and various terms and conditions of probation were imposed.
Joseph filed a timely notice of appeal on January 29, 2019.
DISCUSSION
Joseph raises two issues in this appeal, contending: (1) substantial evidence does not support the finding he understood the wrongfulness of his conduct; and (2) the probation condition prohibiting possession of non-prescribed medication is vague.
I. Wrongfulness Finding Supported by Substantial Evidence
Section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (Pen. Code, § 26, subd. (1).) To defeat the presumption, the People must show by clear proof that at the time the minor committed the charged act he understood the wrongfulness of the act. Only those minors under the age of 14 years who, as demonstrated by their age, experience, conduct, and knowledge, clearly appreciate the wrongfulness of their acts may be adjudicated wards under section 602. (In re Manuel L. (1994) 7 Cal.4th 229, 231-232.) Clear proof equates to "clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed." (Id. at p. 232.)
On appeal, we determine whether substantial evidence supports the conclusion of the trier of fact. (In re Joseph H. (2015) 237 Cal.App.4th 517, 538.) The whole record is viewed in the light most favorable to the wrongfulness finding to determine whether evidence that is reasonable, credible, and of solid value supports the wrongfulness finding. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) We do not reweigh the evidence and resolve all conflicts in favor of the juvenile court's finding. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Joseph contends there is not clear and convincing evidence he understood the wrongfulness of his conduct. He is mistaken.
First, Joseph was four days shy of his 14th birthday when he engaged in the conduct that is the subject of the section 602 petition. Generally, the older a child is and the closer he is to his 14th birthday, the more likely it is that he appreciates the wrongfulness of his conduct. (In re Paul C. (1990) 221 Cal.App.3d 43, 53.) Juveniles considerably younger than Joseph have been held old enough to appreciate the wrongfulness of their conduct. (See, e.g., In re Manuel L., supra, 7 Cal.4th at p. 233; In re Jerry M., supra, 59 Cal.App.4th at p. 298 [11 year old]; In re Tony C. (1978) 21 Cal.3d 888, 900 [eight weeks short of 14th birthday].)
Second, Joseph's grandmother, who was his legal guardian, testified she taught him right from wrong. She also testified she taught him to respect teachers and authority; to listen to the adults on campus; and not to use violence to resolve conflicts. Joseph knew right from wrong and the act of attacking Stoltenberg with a metal stake was not an impulsive act.
Finally, the circumstances surrounding Joseph's conduct support a finding of knowledge of wrongfulness. Joseph was told multiple times to put down the metal stake; Stoltenberg ordered Joseph to do so approximately six times. Yang and Rivera also told Joseph to drop the metal stake. Despite the directive from three, older authority figures, Joseph continued to threaten them with the metal stake and ultimately struck Stoltenberg.
The combination of Joseph's age, his background and the teachings of his grandmother, and the circumstances surrounding his actions, constitute substantial evidence supporting the wrongfulness finding.
Joseph argues that his intellectual disability, autism spectrum disorder and cognitive impairments, including ADHD, preclude him from understanding the wrongfulness of his conduct. However, Joseph's insight and judgment were also described as "fair." That there is other, contrary evidence, or that the evidence could be weighted differently, does not warrant a reversal. We do not reweigh evidence and all conflicts are resolved in favor of upholding the juvenile court's finding. (In re Jasmine C., supra, 70 Cal.App.4th at p. 75.)
II. Condition of Probation
Joseph contends that the probation condition prohibiting him from possessing or using non-prescribed medication is unconstitutionally vague and requires modification. The People concur that the provision is vague and should be modified.
At the January 24, 2019 disposition hearing, the juvenile court imposed conditions of probation, including that Joseph not "use or possess illegal narcotics, drugs, controlled substances, non-prescribed medications, related paraphernalia or poisons, this includes [m]arijuana." Joseph understood and did not object to the condition.
A probation condition is unconstitutionally vague when its terms require someone of "common intelligence" to guess at its meaning. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The "underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Ibid.) If a probation condition is found to be unconstitutionally vague, the proper remedy is to modify it to be more narrowly tailored. (Id. at p. 892.) A "probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500.)
As the People concede, the condition is vague because it is capable of more than one interpretation. It can be read as a prohibition on possession of prescription drugs without a prescription, or alternatively, it can be viewed as a prohibition on possession of some or all over-the-counter medications. Thus, because individuals of common intelligence must guess at its meaning the condition is unconstitutionally vague. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
To the extent Joseph wants to assert the condition also is overbroad, he has forfeited that challenge because he asserts it in a footnote without supporting argument. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.)
The matter will be remanded for the limited purpose of clarifying the terms of the challenged probation condition. (In re D.H. (2016) 4 Cal.App.5th 722, 728-729.)
DISPOSITION
The matter is remanded for the limited purpose of providing the juvenile court an opportunity to clarify the probation condition prohibiting use or possession of non-prescribed medication. In all other respects, the wrongfulness finding and orders are affirmed.