Opinion
A131247
12-07-2011
In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J1001430)
Appellant, a minor, appeals from his conviction of battery against a school employee in violation of Penal Code section 243.6 and from the order adjudging him a ward of the court. Appellant asserts that the prosecution did not prove he was competent pursuant to section 26. His court-appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues and asking this court to conduct an independent review of the record.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Appellant is a 13-year-old student at the Seneca Center, a facility affiliated with Riverview Middle School for students needing behavioral modification in order to succeed in a classroom environment.
A petition was filed with the Contra Costa County Superior Court alleging that appellant committed battery against a school employee, a misdemeanor violation of section 243.6. The petition alleged that on October 5, 2010, appellant resisted taking a "time out" after cursing at another student during a classroom activity. A teacher directed appellant to the Crisis, Observation and Re-Entry classroom (CORE). Sean Holcombe, the victim, attempted to provide support by accompanying appellant to CORE.
Appellant told police that the instruction to go to CORE made him feel frustrated and angry; and so he wandered off. Holcombe intervened, telling appellant to stop. Appellant requested a "swap-out," which would replace Holcombe with a different therapist, a measure intended to change adult supervision to accommodate a student's behavioral needs. Holcombe testified that appellant told him, "I will stick you, " and that Holcombe should "back the fuck up." Appellant then tried to push Holcombe away.
When Holcombe tried to physically restrain appellant, he hit Holcombe several times in the torso. It is unclear whether appellant punched Holcombe or whether he hit Holcombe with an open hand. Appellant later told police that he felt he was defending himself, expressed remorse, and acknowledged that his behavior was inappropriate.
Another staff member and Holcombe physically escorted appellant to CORE together. Holcombe testified that during the course of these events, he remained silent in an effort to focus appellant on the initial direction to CORE and to prevent the situation from escalating further.
Appellant's mother testified that she raised appellant, and that appellant witnessed his biological father physically abusing her. Appellant's stepfather later assumed a paternal role in the family, but was murdered in 2007. Appellant suffers from Attention Deficit Hyperactivity Disorder and anxiety. He sees a therapist weekly and a psychiatrist monthly to manage his diagnoses. Appellant takes medication for these disorders, but had not taken his medication at the time of the incident at the Seneca Center.
Nevertheless, mother asserted that appellant's ADHD and anxiety do not impede his ability to understand daily lessons about right and wrong. Mother further testified that she has taught appellant that hitting is wrong, and that she has previously intervened when appellant has had physical fights with his brothers.
After hearing testimony, the trial court found the prosecution had proven appellant guilty beyond a reasonable doubt of battery against a school employee.
At a sentencing hearing, the court sentenced appellant to probation and continued the curfew. The court also required that appellant take his medication as prescribed, and ordered counseling for appellant and his family. The court also ordered appellant to submit to searches and seizures by police, not to be on any school campus unless enrolled, to complete two hours of community service, to pay a $25.00 restitution fine, to send Holcombe a letter of apology, to have only peaceful contact with Holcombe, and to report any police contact to probation within one day.
On February 9, 2011, appellant filed a timely notice of appeal. Appellant's trial counsel advised him that he had the right to file a supplemental brief in this matter, but appellant did not do so.
DISCUSSION
Appellant suggests that the prosecution did not prove competence pursuant to section 26. Section 26 sets forth a rebuttable presumption that children under the age of 14 are not responsible for criminal activity, " 'in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.' " In deciding whether to reverse, this court must determine whether there was substantial evidence to support the conclusions of the trier of fact. (In re Clyde H. (1979) 92 Cal.App.3d 338, 343-344.) Here, the juvenile court found clear and convincing evidence that appellant understood the wrongfulness of his actions, and we affirm.
The presumption that minors under the age of 14 are incapable of committing a crime, set forth in section 26, is rebuttable, and does not provide blanket protection from conviction. (In re Gladys R. (1970) 1 Cal.3d 855, 864.) The standard of proof under section 26 for demonstrating that a juvenile younger than 14 had the capacity to understand the wrongfulness of his conduct is clear and convincing evidence, not proof beyond a reasonable doubt. (In re Manuel L. (1994) 7 Cal.4th 229, 231.) In enacting section 26, the California Legislature deliberately adopted a less rigorous standard than proof beyond a reasonable doubt. (Manuel L., at p. 231.)
Furthermore, in determining whether a juvenile is capable of committing criminal acts, courts must consider a child's "age, experience, and understanding." (In re Gladys R., supra, 1 Cal.3d at p. 864.) In fact, the closer a child is to age 14, the more likely he is to appreciate the wrongfulness of his acts. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161.)
This court must affirm the judgment below if there is substantial evidence to support the juvenile court's finding. (In re Clyde H., supra, 92 Cal.App.3d at pp. 343-344.) Indeed, the juvenile court found clear and convincing evidence that appellant appreciated the wrongfulness of hitting a school employee. The court acknowledged that until mother testified, there was "a dearth of evidence" to indicate whether appellant understood that it was wrong to hit Holcombe. However, the juvenile court rightly weighed appellant's "experience and understanding" by considering his mother's testimony. (In re Gladys R., supra, 1 Cal.3d at p. 864.) Thus, the court considered mother's testimony to be "clear proof of competence pursuant to section 26." This proof, combined with the fact that appellant was almost 14 at the time of the incident, satisfies the substantial evidence requirement. (See In re Nirran W., supra, 207 Cal.App.3d at p. 1161.)
DISPOSITION
An independent review of the record reveals no arguable issues requiring further briefing. The judgment is affirmed.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.