Opinion
A147109
08-30-2017
In re RICHARD D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RICHARD D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ15024673)
Appellant Richard D. appeals after he admitted an allegation in a juvenile wardship petition (Welf. & Inst. Code, § 602) that he had committed a lewd and lascivious act upon a child under age 14, and the juvenile court adjudged him a ward and placed him on probation. On appeal, he contends the evidence was insufficient to support the court's finding that he understood the wrongfulness of his conduct. We shall affirm the juvenile court's orders.
PROCEDURAL BACKGROUND
On May 21, 2015, a juvenile wardship petition was filed in San Joaquin County Superior Court, pursuant to Welfare and Institutions Code section 602, alleging that in August 2012, appellant had committed a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). On September 16, appellant admitted the allegation.
On September 17, 2015, the juvenile court ordered the matter transferred from San Joaquin County to Alameda County for disposition. On October 14, the Alameda County Superior Court accepted the matter for transfer.
On November 20, 2015, the juvenile court in Alameda County adjudged appellant a ward and placed him on probation with various terms and conditions. Also on November 20, the court dismissed a wardship petition filed in Alameda County Superior Court on April 10, 2015, alleging a subsequent violation of Penal Code section 288, subdivision (a).
On December 22, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
In her dispositional report, the probation officer set forth the following summary of the San Joaquin County offense, based on a March 2, 2015 Manteca Police Department report:
"[O]n March 2, 2015, officers were dispatched to investigate a sexual assault. The officer met with the reporting party, Priscilla H[.] and victim, Jane Doe ([age] 8). Jane Doe is the daughter of Ms. H[.]
"Ms. H[.] reported she was contacted by the Alameda County Sheriff's Officer who was investigating a sexual assault. The suspect in their case was [appellant], who is Ms. H[.]'s 16 year old nephew. The deputy informed Ms. H[.] that Jane Doe may have been a victim.
"Ms. H[.] was aware of an event that occurred around August 2012 where she had several of her nieces and nephews over for a sleep over. [Appellant] was there and Doe told her mother that [appellant] had touched her vagina. At this time, Doe only told [Ms. H.] that she had been touched once and that it may have been accidental. [Ms. H.] spoke with [appellant] and counseled him about what happened.
"While speaking with officers, Ms. H[.] stated Doe [subsequently] told her on the night of this event, [appellant] had used his fingers to penetrate her vagina several times. [Appellant] asked Doe questions, including 'does this hurt?' Ms. H[.] felt this new information needed to be investigated as a crime.
"On March 25, 2015 Doe participated in a forensic interview at the Child Advocacy Center. Doe said the event was during the summertime, when she was 8 years old. While in the playroom of the house, [appellant] was holding her tight and was touching her in her 'inappropriate spot,' down there as she pointed to her vagina and referred to [it] as her 'private spot.' Doe reported [appellant] used his hands to touch her in her 'private spot.' Doe asked [appellant] to stop but he did not and she went and told her mother the next morning.
"Doe said that [appellant] had pulled her underwear aside and 'kept putting his finger in' (vagina) as she would ask him to stop but he would not. Doe said it made her feel angry and sad at the same time. Doe said [appellant] was asking her 'Does this hurt? Does this hurt?' as he would go deeper and deeper each time. Doe said she said, 'stop, stop,' but he did not stop. Doe report[ed] [appellant] did not have her touch him.
"On April 2, 2015, the officer spoke with [appellant] at [his high school]. The officer introduced himself and informed the reason [for] his interview. [Appellant] said he did not remember much, but he did remember he did do 'it' to her. [Appellant] clarified and said he touched Doe inappropriately, meaning he touched her vagina. [Appellant] did not recall the details of the incident but reported it occurred at his aunt's house in Manteca."
DISCUSSION
Appellant contends the evidence was insufficient to support the juvenile court's finding that he understood the wrongfulness of his conduct.
I. Trial Court Background
The September 16, 2015 jurisdictional hearing took place some three years after the offense occurred. At the hearing, after appellant confirmed that he wanted to admit the allegation of committing a lewd and lascivious act upon a child under the age of 14, the prosecutor reminded the court that because appellant was under the age of 14 when the offense took place, the court was required to determine, under Penal Code section 26, whether appellant knew the wrongfulness of his conduct when he committed the offense. The court then questioned appellant as follows:
"THE COURT: Then I've got to find out, at the time this occurred, back on August 20th, 2012, did you know what you were doing or what you did to [Jane Doe] was wrong?
"THE MINOR: Yes.
"THE COURT: Okay. And how did you know that was wrong?
"THE MINOR: Because it was a family member and she was under 18.
"THE COURT: And what did you do to the girl that you felt was wrong?
"THE MINOR: I touched her inappropriately.
"THE COURT: And how did you know that was inappropriate? You said that she was a member of the family. Was she a young girl?
"THE MINOR: Yes.
"THE COURT: Did you know it was improper to touch a young girl, nine-year-old inappropriately back in the—back in August of 2012?
"THE MINOR: Yes.
"THE COURT: Had you been taught by your parents or anybody that touching a young girl is inappropriate or was inappropriate back in August of 2012?
"THE MINOR: Yes.
"THE COURT: So who told you that was improper?
"THE MINOR: My Aunt Priscilla, Uncle Brent, and my mom."
Appellant subsequently stated he did not think the fact that the victim was only nine years old "was much of a problem, because I had seen other people together that were a big age difference," but he knew it was a problem that she was a family member. Appellant's mother, who was present in court, then stated that in addition to telling appellant what he did was wrong after he committed the offense, she also had talked to him "before when he was younger, I had explained to him why it was wrong." The following exchange between the court and appellant's mother then took place:
"THE COURT: You told him before that incident back in August 2012?
"MINOR'S MOTHER: In general, you don't touch girls. Boys are boys and girls are girls. Don't touch each other, stuff like that.
"THE COURT: Don't touch their private parts?
"MINOR'S MOTHER: Yes.
"THE COURT: You had told him, and you were satisfied that he knew what you were talking about before August of 2012?
MINOR'S MOTHER: Yeah. To an extent. I mean, I can't say that he fully knew. . . ."
The court responded that "[t]he point is you had told him before this. . . ." The court then found appellant "knew the wrongfulness of his conduct by clear and convincing evidence."
II. Legal Analysis
As a preliminary matter, respondent argues appellant's contention is not cognizable on appeal because, "[b]y admitting responsibility, appellant admitted that he committed the acts with the requisite mental state to justify the juvenile court's finding. Consequently, he may not claim on appeal that there was insufficient evidence that he knew the wrongfulness of his acts." According to respondent, any lack of evidence in the record resulted from appellant's decision to admit that he committed the offense and, moreover, his admission was the equivalent of a guilty plea, which precludes appellate consideration of issues related to guilt or innocence. (See, e.g., People v. Palmer (2013) 58 Cal.4th 110, 114.)
We need not definitively decide whether respondent is correct that appellant has forfeited the issue because, as we shall explain, we conclude his claim fails on the merits.
Pursuant to Penal Code section 26, "a minor under the age of 14 is presumed to be incapable of committing a crime. Thus, a finding of capacity is a prerequisite to an adjudication of wardship for a minor under 14. [Citations.] The presumption of incapacity may be rebutted by the production of ' "clear proof" ' that the minor appreciated the wrongfulness of the conduct when it was committed. [Citation.] ' "[C]lear proof" ' means clear and convincing evidence. [Citation.]" (In re Joseph H. (2015) 237 Cal.App.4th 517, 538 (Joseph H.), citing, inter alia, In re Gladys R. (1970) 1 Cal.3d 855, 867 & In re Manuel L. (1994) 7 Cal.4th 229, 232.)
On appeal, we review the entire record in the light most favorable to the judgment and affirm the juvenile court's finding that appellant understood the wrongfulness of his conduct if that finding is supported by substantial evidence. (Joseph H., supra, 237 Cal.App.4th at p. 538.)
"In determining whether the minor knows of the wrongfulness of his conduct, the court must often rely on circumstantial evidence such as the minor's age, experience, and understanding, as well as the circumstances of the offense, including its method of commission and concealment. [Citations.] Generally, the older a child gets and the closer he approaches the age of 14, the more likely it is that he appreciates the wrongfulness of his acts." (In re James B. (2003) 109 Cal.App.4th 862, 872-873; accord, Joseph H., supra, 237 Cal.App.4th at p. 539.)
In the present case, substantial evidence supports the court's finding that appellant appreciated the wrongfulness of his conduct. First, appellant stated that he knew at the time of the offense that it was improper to touch Jane Doe both because she was a family member and was under age 18. Although he later stated that he believed his conduct was improper primarily because she was a family member, the juvenile court was entitled to rely on his earlier affirmation of his awareness, in August 2012, of the impropriety of touching a young girl inappropriately, as well as his acknowledgement that he knew at the time that what he did was wrong. (See Joseph H., supra, 237 Cal.App.4th at p. 538 [reviewing court must review entire record in light most favorable to judgment and affirm juvenile court's finding if it is supported by substantial evidence].)
In addition, appellant's mother informed the court that she had told appellant before the incident that he should not touch a girl's private parts, which provides circumstantial evidence that appellant understood the wrongfulness of his conduct. (See In re James B., supra, 109 Cal.App.4th at p. 872 [court must often rely on circumstantial evidence, including minor's "understanding"].) Finally, appellant was approximately 13 and one-half years old at the time of the touching, which further supports the courts finding that he understood at that time that touching Jane Doe's vagina was wrong. (See id. at pp. 872-873 [closer child is to age of 14, likelier it is that he appreciates wrongfulness of his acts].)
Appellant argues that he did not try to conceal or deny the conduct and that this shows he did not understand that it was wrong. In making this argument, appellant cites to the probation department's dispositional report, which was not prepared until November 18, 2015, approximately two months after the jurisdictional hearing. Were we to consider the evidence in that report, there is a great deal of evidence—including Jane Doe's statements that appellant held her tight as he repeatedly asked her if he was hurting her while pushing his fingers deeper and deeper into her vagina, even as she told him to stop—supporting the court's finding. However, because it is not apparent that this information was before the juvenile court when it ruled on appellant's knowledge of the wrongfulness of his act, it is not appropriate to use the information in the dispositional report in making our substantial evidence determination. --------
In conclusion, substantial evidence supports the court's finding, by clear and convincing evidence, that appellant understood the wrongfulness of his conduct when he committed the present offense. (See Joseph H., supra, 237 Cal.App.4th at p. 538; Pen. Code, § 26.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.