Opinion
A150416
01-18-2018
In re M.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J16-00884)
Minor M.T. appeals from the juvenile court's orders declaring her a ward of the court and placing her on formal probation following her no contest plea to a misdemeanor violation of Penal Code section 22810, subdivision (d), possession of tear gas by a minor. M.T. was 13 years old at the time. She argues the wardship finding and probation order must be set aside because the district attorney did not prove, the court did not find, and the record does not support an implied finding that she knew the wrongfulness of her conduct at the time of its commission. We agree. We therefore reverse and remand for further proceedings.
Unless otherwise indicated, all further statutory references are to the Penal Code.
COMBINED STATEMENT OF CASE AND FACTS
Our summary of the historical facts is drawn from the probation report dated January 12, 2017.
On October 2, 2015, 13-year-old M.T. was walking home from middle school with her cousins and a friend when she was verbally harassed by minor T.W.E., who was walking behind her with his friends. According to M.T., T.W.E. disparaged her clothes and shoes and taunted her, saying, "At least I don't suck dick" and "[y]our mom is dead." M.T. and T.W.E. have known each other since preschool, and he knew M.T.'s mother died when M.T. was very young. When T.W.E. commented on her mother's death, M.T. pepper-sprayed him in the back of the head and in the face.
T.W.E.'s mother flagged down a police officer in the parking lot of the El Cerrito Police Department. The mother reported that M.T. and T.W.E. were classmates at Summit K2 Middle School in El Cerrito and the two minors were "teasing each other constantly throughout the day." They continued to tease each other as they walked home, with M.T. calling T.W.E. a "broke nigga" and T.W.E. responding, "Well at least I don't suck dick." This is when M.T. pulled a can of pepper spray from her bag and sprayed T.W.E. M.T. reportedly expressed remorse for spraying T.W.E. and said she should not have sprayed him. After the pepper spray incident, M.T. was suspended from school.
M.T. was six years old when she lost her mother to a drug overdose, and she has been grieving her mother's loss ever since. M.T. has not had contact with her father since she was nine years old, although she thinks he lives in Concord. Since birth, M.T. has been under the care and custody of her maternal grandfather, who retired from the federal civil service in 2007 after 31 years and suffers from chronic pain. Grandfather transferred M.T. to a school in Hercules because she was "jumped" in the middle of the previous school year by suspects who attended local schools. Grandfather stated the sole purpose of the minor having pepper spray was to protect herself, but he now understood that "allowing the minor to have pepper spray is not appropriate and could lead to serious harm if used improperly." He added that M.T. does not carry pepper spray anymore, since the incident with T.W.E.
In March 2016, the pepper spray incident was referred to the Victim Offender Reconciliation Program (VORP) but "after meeting with the minor and her grandfather, VORP staff closed the case in May of 2016 primarily because they were unable to obtain cooperation from the grandfather." (Italics added.) On July 11, 2016 the minor was placed on informal probation for three months but the probation department also closed the case "before the end of the three month period due to a lack of cooperation from the grandfather." (Italics added.)
On September 27, 2016, the Contra Costa County District Attorney's Office filed a juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), charging M.T. with two counts of misdemeanor possession of tear gas. (Pen. Code, § 22810, subd. (d).)
On December 30, 2016, M.T. was interviewed at the Richmond probation office by deputy probation officer Francisco Martinez. At that time, "the minor said she is remorseful for what she did and that she should have handled the situation differently, but when the victim made the comment about her mother was when the minor let the situation get the best of her and that resulted in her pepper spraying [T.W.E.]."
On January 12, 2017, the juvenile court, Judge Thomas Maddock presiding, denied the minor's request for informal probation and accepted M.T.'s no contest plea to a single misdemeanor count of minor in possession of tear gas, after advising her and securing her waiver of her constitutional trial rights. The second count was dismissed. No questions were asked about M.T.'s knowledge of the wrongfulness of her act at the time of its commission. The court placed M.T. on indefinite wardship under probation supervision in her grandfather's home. A review hearing was scheduled for January 11, 2018.
DISCUSSION
M.T. contends the wardship finding and probation order cannot stand because the prosecutor did not prove, the court did not find, and the record does not support an implied finding that she understood the wrongfulness of her conduct at the time of its commission. We agree.
Section 26, paragraph one establishes a rebuttable presumption applicable in juvenile court that "minors under the age of 14 [are] incapable of committing a crime." (In re Gladys R. (1970) 1 Cal.3d 855, 864 (Gladys R.); see §26, par. one).) To overcome the presumption, the prosecution must prove by clear and convincing evidence that at the time of committing the act, the minor knew its wrongfulness. (In re Manuel L. (1994) 7 Cal.4th 229, 231-232 (Manuel L.); § 26, par. one ["clear proof"].) Knowledge of wrongfulness may not be inferred from the act alone, although the court may consider " ' "the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment." ' " (People v. Cottone (2013) 57 Cal.4th 269, 280-281 (Cottone); see Manuel L., at p. 232.) "We have long held that a finding of capacity is a prerequisite to an adjudication of wardship for a minor under 14." (Cottone, at p. 280.) " 'Moreover, a minor's "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 [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts." ' " (Id. at p. 281.)
Here, there was no explicit finding by the court that M.T. knew the wrongfulness of her act at the time she committed it. The Attorney General points to the court's finding that in entering her plea, M.T. understood the nature and consequences of the allegations in the petition. However, that finding does not logically or legally lead to the conclusion that over a year earlier, before M.T. was suspended from school, arrested, and brought before the probation department and juvenile court, M.T. appreciated the wrongfulness of possessing tear gas as a minor. We agree with Attorney General that this court can sustain a wardship order if the record provides substantial evidence to support an implied finding that M.T. appreciated the wrongfulness of her conduct. But we can find no such evidence here.
M.T. pleaded no contest to being a minor in possession of tear gas, in violation of section 22810. That statute provides: "Notwithstanding any other provision of law, any person may purchase, possess, or use tear gas or any tear gas weapon for the projection or release of tear gas if the tear gas or tear gas weapon is used solely for self-defense purposes, subject to the following requirements: [¶] . . . [¶] (d) No minor shall purchase, possess, or use tear gas or any tear gas weapon." (§ 22810, subd. (d); italics added.) Significantly, tear gas is perfectly legal when possessed or deployed for self-defense purposes, if the person possessing or deploying the tear gas is not a minor. Unlike murder, or theft, or burglary, the conduct to which M.T. pleaded no contest—possession of tear gas—is not obviously wrongful. Indeed, but for her minority, it would not have been wrongful, based on the information in the record before us. While it may be "immaterial whether the thing forbidden is malum in se, or merely malum prohibitum" for many purposes (Smith v. Bach (1920) 183 Cal. 259, 262), we think the distinction is important for the purpose of discerning from a cold record whether a child of barely 13 knew the wrongfulness of her conduct at the time she committed it. This is especially so when the record all but states the minor's grandfather gave her the pepper spray to carry with her for self-protection, after she had been assaulted by schoolmates the previous year.
It is true that in December 2016, over a year after the incident, her suspension from school, and arrest, M.T. admitted to a probation officer she regretted reacting impulsively to protect herself from the verbal attack of a bully who knew just how to hurt her, and she now knew she should have handled the situation differently. But it is a stretch to hold that M.T.'s post-punishment remorse demonstrates clear and convincing evidence she understood the wrongfulness of her conduct on October 2, 2015.
We are aware that the probation report summarized a police report, based on a statement by T.W.E.'s mother, which claimed that M.T. expressed "remorse for spraying the victim." However, the probation report is murky about when and to whom the statement was made. We find that statement too slim a reed to support the weight of an implied finding that M.T. appreciated the wrongfulness of her possession of pepper spray on October 2, 2015. We therefore reverse the judgment and remand the case to the juvenile court for further proceedings consistent with this opinion. (Gladys R., supra, 1 Cal.3d at p. 869; Cottone, supra, 57 Cal.4th at p. 295.)
The remand hearing will present a perfect opportunity for the court's consideration of dismissal and sealing pursuant to Welfare and Institutions Code section 786 in this case. (Cf. In re A.V. (2017) 11 Cal.App.5th 697.) --------
M.T. also argues the juvenile court abused its discretion when it declined to place her on nonwardship probation for six months pursuant to Welfare and Institutions Code section 725. We need not and do not reach that issue in light of our conclusion the wardship cannot stand.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings consistent with the views expressed in this opinion.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.