Opinion
F040701.
7-18-2003
In re J. F., A Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J. F., Defendant and Appellant.
Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Lloyd G. Carter and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On February 27, 2002, a petition was filed in the Juvenile Court of Kings County alleging appellant J.F. committed a lewd and lascivous act upon the body of P.V., a child under the age of fourteen years (Pen. Code, § 288, subd. (a)). On February 28, 2002, the detention hearing was held and appellant denied the allegation.
On April 2, 2002, the jurisdictional hearing was held and the court found the allegation true. On May 6, 2002, the court adjudged appellant a ward of the juvenile court, placed him on probation pursuant to various terms and conditions, and placed him in the custody of his parents.
On May 29, 2002, appellant filed a timely notice of appeal.
FACTS
On February 24, 2002, nine-year-old P.V. was riding his roller blades from his home in Corcoran to a friends house when he was approached by appellant J.F. Appellant, who was 13-years-old, was riding a scooter by a church when P.V. saw him. P.V. did not know appellant and had never seen him before.
P.V. turned into an alley to get to his friends house and was surprised to see appellant in the alley. P.V. testified that appellant said he was going to show him something. P.V. tried to continue through the alley but appellant approached him from behind and pushed him to the ground. P.V. got up but appellant again pushed him down. P.V. said he had to go but appellant said "no I aint going." P.V. testified that appellant pulled down P.V.s pants and P.V. pulled them back up. Appellant again pulled down P.V.s pants, then appellant pulled down his own pants. P.V. testified appellant "put his dick in my butt." When P.V. told appellant that it hurt, appellant placed his hand over P.V.s mouth. P.V. testified the incident occurred near an abandoned house.
P.V. testified he told appellant that now he was going to show him something, and appellant let him get up. P.V. immediately left on his roller blades and headed home, and appellant briefly followed him. When P.V. got home, he immediately told his mother about the incident and she called the police.
Corcoran Police Officer Pedro Castro responded to P.V.s house and spoke with P.V. and his mother. P.V. said another boy had poked him in the butt, and he knew where that boy lived. Officer Castro transported P.V. and his mother to the area where the incident occurred, and he observed appellant riding a scooter in front of a residence. P.V. said, "There he is. Thats him."
Detective David Pence contacted appellant at his residence the next day, and asked his mother to bring him to the police station for questioning. Appellant arrived later that day, and Pence advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Appellant indicated he understood his rights and agreed to answer questions. Pence questioned appellant in his mothers presence and tape-recorded the interview. Pence asked appellant about the incident with P.V., and appellant said nothing happened and denied pulling down P.V.s pants or touching him. Appellant stated he met P.V. as he was skating through the neighborhood and "they started talking about gay stuff." P.V. was holding some gum or candy, and appellant took it from him and threw it down. Appellant said P.V. fell down trying to pick it up. Appellant stated they were in the front yard of an abandoned house, which was just off the alley and behind appellants house.
Appellant further stated that P.V. asked if he was gay. Appellant said he wasnt, but retorted that he knew P.V. was gay. Appellant stated they talked about this subject for a while, and he eventually ended up pushing P.V. onto his stomach. Appellant said he held down P.V. but denied pulling down his pants.
Detective Pence testified he asked appellant if he had anything further to say. Appellant said no, and Pence turned off the tape recorder. Appellant then asked Pence, "Did they find any semen on him?" Pence arrested appellant for committing a lewd and lascivious act on a minor, and he was taken into custody at juvenile hall. (RT 30, 48-49)
At the jurisdictional hearing, P.V. testified he told the police officer what happened that afternoon, and he was with the police officer when he saw appellant riding the scooter near the church. P.V. testified he immediately told the officer that appellant was the boy who pushed and touched him. Also at the jurisdictional hearing, P.V. pointed to appellant and identified him as the boy who pushed him and pulled down his pants.
At the hearing, appellant testified he had never met P.V. before, but he saw him that afternoon as he was riding his scooter. Appellant denied touching P.V.s private parts. Appellant testified he talked with P.V. for a while and, "out of nowhere," P.V. called appellant gay. They went back and forth "on the gay thing," and appellant said that P.V. was gay. They were sitting on the ground and appellant took gum from P.V. Appellant threw the gum away and P.V. fell down as he tried to grab it. Appellant testified that at some point, P.V. got up and appellant ended up "on top of him" because he was "just messing with him." Appellant testified he touched P.V.s legs, and also touched his hands and mouth. Appellant admitted that he thought P.V. was kind of young to talk about being gay.
Appellant admitted that when he spoke with Detective Pence, he asked whether any semen was found on P.V. Appellant testified that an officer said they were going to take P.V. to the doctor to get checked and they wouldnt pursue the case if they didnt find anything. Appellant asked Pence about the semen because he thought P.V. had been examined and they would let him go if nothing was on him. Appellant insisted he never pulled down P.V.s pants and never touched him.
According to the probation report, P.V. was examined at Corcoran Hospital and the results of the examination were consistent with P.V.s description of the incident.
At the jurisdictional hearing, the prosecutor asked the court to find the allegation true because P.V.s testimony indicated he comprehended what happened, he described the incident in pretty good order, he immediately reported the incident to his mother, and there was no motive for P.V. to fabricate the allegation. The prosecutor argued appellants testimony included "rather bizarre statements" regarding P.V.s alleged accusations that appellant was gay, "which is just something that I find incredulous, that this nine-year-old child was talking about" these things. Defense counsel argued the prosecution failed to meet the burden that appellant touched P.V. to appeal to or gratify the lust, passions, or sexual desires of the perpetrator or the victim. The prosecutor replied this element was established by appellants repeated discussion of gay behavior, which indicated his sexual interest, and the overtly sexual nature of the act appellant committed against P.V.
The court found the allegation true beyond a reasonable doubt. Defense counsel requested appellant be released to his parents custody, and noted appellant and P.V. did not go to the same school and their homes were about three-quarters of a mile apart. The court authorized appellants release to his parents and return to school, and ordered him to remain at home, in his parents custody, when he wasnt at school.
At the dispositional hearing, the court noted the positive comments about appellant in the probation report. Appellant was a good student and had no prior disciplinary incidents. However, the court was concerned that appellant and his mother were still denying the incident occurred, and appellant had changed his version of events at least two or three times. Appellants pastor was at the hearing, and the court urged appellant to talk to his pastor in confidence about the incident and for the pastor to help appellant deal with any problems. The court adjudged appellant a ward of the juvenile court, declared the offense to be a felony, and found his welfare required him to remain at home with his parents. The court placed appellant on probation under the supervision of the probation officer under specific terms and conditions, including to attend school every day; return home after school and not leave at any time unless accompanied by his parent; abstain from the use, possession, or consumption of alcohol or drugs; submit to alcohol and drug testing upon the request of the probation officer; not to associate with anyone not approved of by his parents or the probation officer; not to associate with children under the age of 14 years unless supervised by a responsible adult; and to attend the mental health clinic with a parent and cooperate in the program as directed. The court prohibited visitation between appellant and P.V. until P.V. was 18 years old, pursuant to Penal Code section 1202.75.
On appeal, appellant contends the courts true finding must be reversed because he was 13 years old at the time of the offense and the court never found he had the criminal capacity to commit the act. Appellant also challenges the conditions of probation for alcohol and drug testing, and not to associate with anyone not approved of by his parents or the probation officer, and argues these conditions are not supported by the evidence and must be stricken. Respondent contends appellants failure to object at the disposition hearing waived any objections to the probation conditions.
DISCUSSION
I. Evidence of Appellants Capacity.
Appellant contends the court failed to make any findings, express or implied, that he had the criminal capacity to commit the offense herein. Appellant notes he was 13 years old at the time of the incident, and contends the courts failure to make any finding as to his capacity requires reversal of the true finding in the juvenile adjudication.
Penal Code section 26, which applies to proceedings under Welfare and Institutions Code section 602, articulates a presumption that a minor under the age of 14 is incapable of committing a crime. To defeat this presumption, the prosecution must prove by clear and convincing evidence that at the time the minor committed the charged act he or she knew of its wrongfulness. (Pen. Code, § 26; In re Manuel L. (1994) 7 Cal.4th 229, 232, 865 P.2d 718; People v. Lewis (2001) 26 Cal.4th 334, 378; In re Jerry M. (1997) 59 Cal.App.4th 289, 297-298.) "Only if the age, experience, knowledge, and conduct of the child demonstrate by clear proof that he has violated a criminal law should he be declared a ward of the court under [Welfare and Institutions Code] section 602." (In re Gladys R. (1970) 1 Cal.3d 855, 867; People v. Lewis, supra, 26 Cal.4th 334, 378.)
In determining whether the minor knows of the wrongfulness of his conduct, the court must often rely on circumstantial evidence such as the minors age, experience, and understanding, as well as the circumstances of the offense including its method of commission and concealment. (In re Tony C. (1978) 21 Cal.3d 888, 900; In re Marven C. (1995) 33 Cal.App.4th 482, 487; In re Jerry M., supra, 59 Cal.App.4th 289, 298.) 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 Marven C., supra, 33 Cal.App.4th 482, 487; In re Paul C. (1990) 221 Cal. App. 3d 43, 52, 270 Cal. Rptr. 369.)
On appeal, our function is to determine whether substantial evidence supports the conclusion that the minor understood the wrongfulness of his conduct. (People v. Lewis, supra, 26 Cal.4th 334, 379.) In making that determination, we must review the record in the light most favorable to respondent and presume the existence of every fact the trier of fact could deduce in support of that conclusion. (Ibid.) If the juvenile court fails to make an express, on-the-record inquiry regarding the minors knowledge of wrongfulness, any error is harmless if there is substantial supporting an implied finding that the minor knew the wrongfulness of his conduct at the time of the offense. (Id. at pp. 378-379.)
In the instant case, the evidence amply demonstrated that 13-year-old appellant J.F. knew the wrongfulness of his conduct. There is no suggestion in this record that appellant lacked maturity, had any special learning disabilities, or lacked normal intelligence. Indeed, the court noted the numerous letters in the probation report that appellant was a good student and had no prior disciplinary problems. In the course of committing the offense, appellant had seen P.V. in the street but waited to confront him until P.V. was isolated in the alley. He forced P.V. to the ground and repeatedly stopped him from trying to leave. Appellant covered P.V.s mouth when the boy said appellant was hurting him. During the investigation, appellant was advised of the Miranda warnings, indicated he understood his rights, and chose to waive them. He gave Detective Pence a complete narrative of his version of the incident, admitted he sat on top of P.V., and denied that he pulled down his pants or touched him. He asked if semen had been found on P.V., and later explained that he thought the criminal investigation would not be pursued in the absence of physical evidence. At the jurisdictional hearing, appellant again gave a clear and coherent narrative of the incident, admitted he pushed P.V. down to "mess" with him, and that he touched P.V.s mouth and hands, but again denied pulling down his pants or touching him. Appellants answers to Detective Pences questions, his testimony at the jurisdictional hearing, and his letters to the court in the probation report indicate he was generally aware of the difference between right and wrong as he repeatedly denied committing the charged offense against P.V. The circumstantial evidence thus supports the courts implied finding that appellant understood the wrongfulness of his conduct.
Moreover, at the time of the offense, appellant was 13 years 9 months old, which makes it more likely that he understood the wrongfulness of his act. (People v. Lewis, supra, 26 Cal.4th 334, 379 ["We would find it difficult to conclude that a 13 year old would not know" that certain criminal conduct was wrong].) In view of the more stringent reasonable doubt standard the trial court used, we do not find persuasive appellants contention that the court did not consider appellants capacity. (Ibid.) The evidence at the adjudication provides "clear proof" and "clear and convincing evidence" that the minor appreciated the wrongfulness of his misconduct. (See In re Jerry M., supra, 59 Cal.App.4th 298-299.)
II. Probation Conditions.
Appellant contends the court improperly imposed conditions of probation requiring him to submit to alcohol and drug testing, and not to associate with anyone not approved of by his parent or the probation officer. Appellant asserts there is no evidence to support these conditions and they must be stricken.
Respondent asserts appellant waived any challenges to these conditions because he didnt object at the disposition hearing. (See In re Abidiraham S. (1997) 58 Cal.App.4th 963, 970-971.) However, we will consider the merits of appellants contentions since the issues present pure questions of law. (See In re Kacy S. (1998) 68 Cal.App.4th 704, 712-713; In re Justin S. (2001) 93 Cal.App.4th 811, 815.)
The juvenile "court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (Wel. & Inst. Code, § 730, subd. (b).) "A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of manifest abuse. [Citation.]" (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)
However, "... a condition of probation which has no relationship to the crime of which the offender was convicted, relates to conduct which is not itself criminal, and requires or forbids conduct which is not reasonably related to future criminality, does not serve the statutory ends of probation and is invalid. [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. [Citation.]" (In re Josh W., supra, 55 Cal.App.4th at pp. 5-6, quoting People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal. Rptr. 905, 541 P.2d 545.) "A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." (In re Todd L. (1980) 113 Cal. App. 3d 14, 19, 169 Cal. Rptr. 625.) "Broadly the purpose of the juvenile court law is to provide for the protection and safety of the public as well as of the minor. [Citation.]" (In re Binh L. (1992) 5 Cal.App.4th 194, 204; Wel & Inst. Code, § 202, subds. (a), (b) & (d).)
We first consider the probation condition for drug and alcohol testing. The authority to require urine testing as a condition of probation is conferred by Welfare and Institutions Code section 729.3, which provides: "If a minor is found to be a person described in Section 601 or 602 and the court does not remove the minor from the physical custody of his or her parent or guardian, the court, as a condition of probation, may require the minor to submit to urine testing upon the request of a peace officer or probation officer for the purpose of determining the presence of alcohol or drugs." By providing that the court "may" require urine testing, section 729.3 commits the decision to order testing in a particular case to the juvenile courts discretion. (In re Kacy S. (1998) 68 Cal.App.4th 704, 708.) Kacy S. held that a juvenile court does not abuse its discretion when it imposes a testing condition in the absence of evidence of the minors use of drugs or alcohol:
"The urine testing condition is designed to detect the presence of substances whose use by minors is unlawful. (Cal. Const., art. XX, § 22 [alcohol]; Health & Saf. Code, § 11000 et seq. [drugs].) Thus, the testing "relates to conduct which is ... in itself criminal." (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal. Rptr. 905, 541 P.2d 545.) Moreover, in enacting section 729.3, the Legislature has found that alcohol and drug abuse are precursors of serious criminality .... (Stats. 1989, ch. 1117, § 1, subd. (a)(2), p. 4113; fn. 2 . . .) Thus, the testing is also "reasonably related to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) Because the testing condition relates to criminal conduct and is reasonably related to future criminality, its imposition is within the juvenile courts discretion even as measured by the Lent formulation. (Ibid.; In re Laylah K. (1991) 229 Cal. App. 3d 1496, 281 Cal. Rptr. 6,] 1500.)" (In re Kacy S., supra, 68 Cal.App.4th at p. 710.)
Kacy S. further held that a testing condition does not violate due process, equal protection, or a minors right to privacy:
"The testing condition is a reasonable intrusion upon a probationers expectations of privacy. [Citation.] The governmental interest in testing is strong. The juvenile courts goals are to protect the public and rehabilitate the minor. [Citations.] Section 729.3 serves both goals. It protects the public by establishing procedures to deter or prevent use of alcohol and unlawful drugs by minors. It advances the rehabilitation of young offenders by seeking to detect alcohol or drug use as a precursor of criminal activity in order to facilitate intervention at the earliest time. [Citation.] Although urine testing constitutes an intrusion on privacy, the effect of the intrusion is outweighed by the governments legitimate interest in closely monitoring the rehabilitation of minors who are granted probation and returned to the custody of their parents. [Citation.]" (In re Kacy S., supra, 68 Cal.App.4th at p. 711.)
We thus conclude the juvenile court properly imposed drug and alcohol testing as a condition of appellants probation.
We next consider appellants challenge to the non-association condition. As discussed above, juvenile probation conditions may be broader than those pertaining to adult offenders. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) Juveniles are deemed to be more in need of guidance and supervision than adults. (Ibid.) The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents, and a parent may curtail a childs exercise of constitutional rights. (Ibid.) The juvenile court cannot reasonably be expected to define with precision all classes of persons which might influence a minor to commit further bad acts. (In re Frank V. (1991) 233 Cal. App. 3d 1232, 1243, 285 Cal. Rptr. 16.) Instead, the courts rely on the discretion of the probation department to promote and nurture a minors rehabilitation. (Ibid. )
In re Kacy S., supra, 68 Cal.App.4th 704 held a non-association condition similar to the one imposed in this case was overbroad because it "literally requires the probation officer to approve [the minors] association with persons such as grocery clerks, mailcarriers and health care providers," and the record did not "justify such a sweeping limitation on [the minors] liberty." (In re Kacy S., supra, 68 Cal.App.4th at p. 713.) In People v. Lopez (1998) 66 Cal.App.4th 615, this court found a minors probation condition which prohibited him from associating with gang members was constitutionally defective and overbroad because it prohibited defendant from associating with persons not known to him to be gang members. This court modified the probation condition to include the element of knowledge, i.e., that the probationer must have been given notice of persons with whom he may not associate with. (Id . at pp. 628-629.) The condition was thus modified to prohibit the probationer from being "involved in or associate with any person known to defendant to be a gang member." (Id . at p. 638, italics added; see also In re Justin S., supra, 93 Cal.App.4th 811, 816.) In People v. Robinson (1988) 199 Cal. App. 3d 816, 818, 245 Cal. Rptr. 50, the court found a probation condition which prohibited defendant from associating with persons with known criminal records was not constitutionally infirm.
In the instant case, the juvenile court broadly prohibited appellant from associating with anyone not approved of by his parents or the probation officer. Having the probation officer restrict a minors contact with individuals who will improperly influence him is reasonably related to a minors future criminality and will further the minors reformation and rehabilitation. (In re Antonio R., supra, 78 Cal.App.4th 937, 940; In re Frank V., supra, 233 Cal. App. 3d 1232, 1241-1243.) The condition imposed herein, however, is overbroad and must be modified to include the element of knowledge. Prohibiting association with people who are not approved of by a minors parents and the probation officer, without restricting it to people the minor knows are disapproved of, is unconstitutionally overbroad. (Cf. In re Justin S., supra, 93 Cal.App.4th at p. 816; People v. Garcia (1993) 19 Cal.App.4th 97, 102.) As in Kacy S., the condition imposed herein could leave a juvenile guessing as to whether any particular person he meets on the street may or may not have the approval of his parents and/or his probation officer. The non-association condition must thus be modified to include the element of knowledge, i.e., for the parents and/or probation officer to commit the affirmative act of disapproving an association, which necessarily means communicating to appellant that he is to stay away from particular persons.
DISPOSITION
The non-association condition of probation is modified to provide that appellant "is not to associate with any person known by him to be disapproved of by his parents or his probation officer disapprove or with anyone he knows is on probation or parole." In all other respects, the juvenile courts adjudication 23 and dispositional orders are affirmed.