Opinion
B164506.
11-25-2003
In re ROSALVA P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROSALVA P., Defendant and Appellant.
Lynda J. Vitale, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Rosalva P. (Rosalva) appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following a finding, as alleged in the petition, that she brandished a knife in a rude, angry, or threatening manner in violation of Penal Code section 417, subdivision (a)(1). She contends that the prosecution did not meet its burden of demonstrating that she had the capacity to commit the charged offense and that she was denied her right to present a defense.
BACKGROUND
Rosalva was born in June 1989. On October 29, 2002, when Rosalva was 13 years old, her parents, Maria Alas (Maria) and Salvador P. (Salvador), questioned Rosalva about a substantial amount of money that was missing from the familys Pomona residence. Maria told Rosalva to kneel down at the entranceway of the house because Rosalva had threatened to leave. Rosalva appeared angry and confused. She went to the kitchen, retrieved a knife, and told her parents not to come near her. During this time Rosalva pointed the knife at her parents and at herself. Rosalva then went out of the house and climbed onto the roof. Maria called the police.
Maria acknowledged in her testimony that she sometimes makes her children kneel down (she is wheelchair bound) because she cannot hit them. Salvador sometimes hits the children with a belt. In his testimony, Salvador acknowledged that he does so.
Pomona Police Officer Jorge Aleman responded to the call. By the time he got to the residence, Rosalva was no longer on the roof and the knife was back in the kitchen. Aleman approached Rosalva, who was in the kitchen, and she fled. Aleman chased Rosalva through the house and stopped her in the living room. Rosalva was arrested and transported to the police station. There, she waived her rights under Miranda v. Arizona (1966) 384 U.S. 436. She also acknowledged that she understood the wrongfulness of her conduct pursuant to a Gladys R. (In re Gladys R. (1970) 1 Cal.3d 855) questionnaire but declined to answer any questions about the incident.
In defense, a neighbor testified that Rosalva once stayed at the neighbors house because Rosalva was afraid that Salvador was going to hit her. Six or seven years earlier, Maria punished Rosalvas brother by placing chains on his feet. The neighbor called the Department of Childrens Services to report the incident.
DISCUSSION
1. Capacity to Commit Charged Offense
"Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. [Citation.] To defeat the presumption, the People must show by `clear proof `that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602. (In re Gladys R., supra, 1 Cal.3d at p. 867.) Only those minors over the age of 14, who may be presumed to understand the wrongfulness of their acts, and those under 14 who—as demonstrated by their age, experience, conduct, and knowledge—clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system. [Citation.]" (In re Manuel L. (1994) 7 Cal.4th 229, 231—232, fns. omitted.)
"Moreover, a minors `age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [she] approaches the age of 14, the more likely it is that [she] appreciates the wrongfulness of [her] acts. [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 378.)
While at the police station, Officer Aleman read Rosalva her Miranda rights utilizing a card issued by the police department. Aleman then asked Rosalva: "`Having these rights in mind, do you wish to talk to me now?" Rosalvas response was "`Yes." With respect to Gladys R., the following colloquy ensued on Rosalvas cross-examination of Aleman:
"[The prosecutor:] Q. Isnt it correct, Officer, that after you read the Miranda rights to this girl, she refused to answer any questions relating to the incident?
"[Officer Aleman:] A. Yes, maam.
"Q. All right. But you continued to question her, did not, and eventually got Gladys R. answers?
"A. No, maam. I read her her Miranda rights. Then I proceeded to read her her Gladys R. questioning form. Afterwards, I asked her if she would talk to me [in] reference [to] the incident, and she denied, maam.
"Q. And isnt it correct, Officer, that you put in your report that even though [Rosalva] answered the Gladys R. questions, she was very hesitant in doing so?
"A. Thats correct.
"Q. Okay. And so — and she wouldnt even answer any questions relating to the incident?
"A. Correct.
"Q. And so when you were asking her the Gladys R. questions, you were telling her that you werent asking her about whether she did it or not, that you just wanted to find out if she understood some things; isnt that right?
"A. Correct."
a. Miranda
Rosalva moved to exclude her responses to the Gladys R. questions based on her reluctance to answer the questions and Alemans statement to Rosalva that the questions did not go to whether or not her responses were true. The court found that "questioning regarding the Gladys R. was — and Rosalvas responses were, in fact, voluntary and noncoercive, and, in fact, the evidence is such that when Rosalva was later asked about the incident, she denied, which indicates that this was, clearly, not a coercive environment, that she was exercising her free will and was very capable of doing so by virtue of the fact that she invoked at that point."
Rosalva contends her responses to the Gladys R. questionnaire should have been suppressed because they came "[a]fter her refusal to speak of the incident, [when] Officer Aleman assured [her] that he was not going to question her about it but only wanted to ask her questions to determine if she understood some things." The chronology of events expressed in Rosalvas argument is not supported by the record. Although Alemans testimony did not specify when Rosalva expressed her unwillingness to answer questions relating to the incident, that expression followed completion of the Gladys R. questionnaire. (Immediately following the Miranda admonitions, Rosalva told Aleman that she would speak with him.) Indeed, in rejecting the Miranda argument, the trial court characterized the chronology as Rosalva being "later asked about the incident." And once Rosalva had agreed to speak with Aleman, we conclude, contrary to Rosalvas argument, that there was no intimidation, coercion or deception in Aleman telling Rosalva that the purpose of the Gladys R. questionnaire was not to find out "whether she did it or not" but rather "to find out if she understood some things." In short, we find no reason to question the trial courts conclusion that "questioning regarding the Gladys R. was — and Rosalvas responses were, in fact, voluntary and noncoercive . . . ." (See People v. Whitson (1998) 17 Cal.4th 229, 248—249.)
b. Showing that Rosalva knew of wrongfulness of acts
In the Gladys R. questionnaire, Rosalva was asked (1) if she knew the difference between right and wrong (she answered "yes"), (2) to give an example of something right to do (she said "listening to teachers"), (3) to give an example of something wrong to do (she said "doing graffiti"), and (4) whether she could get in trouble for doing something wrong (she answered "yes"). In the fifth question, Rosalva was asked whether she knew it was "wrong to 422 P.C. criminal threats" before October 29, 2002. (The underlined portion was written by Officer Aleman in a blank that called for "specific crime." The record is silent as to whether Aleman actually said these words or told Rosalva what crime is defined by Penal Code section 422.) The fifth question continues by asking whether it is wrong to help someone else do the crime. Rosalva again answered "yes."
Rosalva contends that the Gladys R. questionnaire did not satisfy Penal Code section 26 because she "may have been arrested for a violation of Penal Code section 422, but she is charged with a violation of Penal Code section 417(a)(1). The prosecution failed to demonstrate by clear and convincing evidence, that [Rosalva] knew, under the circumstances of this case, that her conduct was wrong."
Given that making criminal threats is serious and similar to the offense of brandishing a knife in a rude, angry, or threatening manner, we conclude that a 13-year-olds acknowledgment of the wrongfulness of the former would establish that she knew it was wrong to do the latter. (See In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161 [13-year-olds knowledge of wrongfulness of previous misdemeanor battery permitted inference that he also knew of wrongfulness of charged assault].) Accordingly, Rosalvas contention must be rejected.
2. Presentation of Defense
Rosalva requested permission to testify in her defense out of the presence of her parents, who remained in attendance at the juvenile court proceedings after they had testified. Counsel urged that Rosalva "does not talk about anything" in the presence of her parents but is different if they are not there. The trial court denied the request, commenting that "[i]f [Rosalva] is going to make statements and allegations, in terms of credibility — it is very easy to do if the parents arent here. That is the problem because I have to evaluate the credibility of a witness. . . . [If] the parents arent in the courtroom, then it sort of changes the tenor in terms of my ability to evaluate [credibility]."
We reject Rosalvas contention that this ruling constituted a "den[ial of] her constitutional right to testify and present an affirmative defense." Although there is precedent for a child to testify outside the presence of a caretaker criminally charged with sexual abuse (see Maryland v. Craig (1990) 497 U.S. 836 ), Rosalva has offered no authority for the parents to be excluded when their child has been charged in a juvenile delinquency proceeding. In any event, the court determined that in order for it to assess Rosalvas credibility, it was important that her parents be present. As the United States Supreme Court has said, "`It is always more difficult to tell a lie about a person "to his face" than "behind his back."" (Id. at p. 846.) The juvenile court did not abuse its discretion in denying Rosalvas request to testify outside the presence of her parents.
DISPOSITION
The order under review is affirmed.
We concur: SPENCER, P. J. & VOGEL (MIRIAM A.), J. --------------- Notes: Penal Code section 422 is a "wobbler" offense that requires, among other things, a willful threat to commit a crime that will result in death or injury which causes the person threatened to reasonably be fearful for his or her own safety. (See People v. Toledo (2001) 26 Cal.4th 221, 227—228.) Penal Code section 417, subdivision (a)(1), is a misdemeanor offense which is committed when a person exhibits a deadly weapon in rude, angry, or threatening manner in the presence of others. (See People v. Pruett (1997) 57 Cal.App.4th 77, 87.)