IN RE: TATIANA B.

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Court of Appeal, Second District, Division 7, California.

IN RE: TATIANA B., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Tatiana B., Defendant and Appellant.

No. B122949.

Decided: February 25, 1999

Gates & Gates and Lorilee M. Gates, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.

Tatiana B. appeals from the order of wardship (Welf. & Inst.Code, § 602) by reason of her possessing a knife on school grounds (Pen.Code, § 626.10, subd. (a)).   She was ordered home on probation.

The minor contends:  (1) the court during the admission of the petition failed to inquire into, and make an express finding as to, whether the minor appreciated the wrongfulness of her act;  and (2) a remand is necessary to make a finding whether the offense was a misdemeanor or a felony.

FACTS

At age 12, the minor admitted the allegation of the Welfare and Institutions Code section 602 petition that she possessed a knife on school grounds.   The facts underlying the offense were stated in the probation report.   The report indicated an unnamed student told Gompers Junior High School officials that the minor had a knife in her backpack.   A campus aide searched the minor's backpack and discovered a stainless steel steak knife.   When the minor was asked why she had the knife, she indicated other female students at her school had threatened to kill her.

The probation report disclosed that the minor had no prior criminal history.   She had not told her mother about threats from other children at her school.   The mother reported she was generally well-behaved at home.   The probation officer stated that the minor's misconduct was a surprise to all.   The conduct apparently arose from threats made to her by other children, and the minor used poor judgment by attempting to address the problem on her own.

On April 23, 1998, the minor appeared in court with counsel and her mother.   The court questioned the minor about whether she was attending school, and she said yes.   The court asked about her grades and the minor stated that she had “A's” and “B's.” The court asked the minor why she had the knife.   The minor said, “Another girl threatened me and some other girls were going to kill me.”   The court inquired:  “What did you think you were going to do with a knife?   You know that's against school rules?   Do you know that?”   The minor replied yes.   The mother said the minor was a “normal kid,” cooperative and well-behaved, but “hard-headed sometimes.”   The court questioned the minor about exactly what the other girl said to her.   The minor replied that the girl was talking with the minor's friend and said, “I am going to kill her over there.”   The minor asked the girl, “ ‘Me?’ ” The girl said, “ ‘Yeah, you.’ ”   The court asked if the minor believed it was a real threat.   The minor replied that she did not know.

Counsel explained that the minor's friends had a fight with the girl who made the threat.   The girl, in return, threatened to kill her assailants, and included the minor in the threat.   The girl said she and her girlfriends would beat up the minor and her assailant.

At the next appearance on May 13, 1998, and with the advice of counsel, the minor admitted the single allegation of weapon possession in the petition.   The court admonished the minor as to her constitutional rights and the minor waived the requisite rights.   The minor admitted that on January 27, 1998, she possessed a knife on a school campus.   The court found the minor intelligently, knowingly and voluntarily admitted the allegation of the petition.

The court declared the minor a ward of the court and placed her home on probation.   The court found the theoretical maximum period of confinement was three years.

I.

WRONGFULNESS OF THE CRIMINAL CONDUCT

On appeal, the minor contends, during her admission, the court failed to make an inquiry of her understanding of the wrongfulness of her criminal conduct.   She claims such an inquiry, and a finding of capacity, is necessary to implement Penal Code section 26.

 “Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime.  (Pen.Code, § 26, subd.  One.) 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․   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.”  (In re Manuel L. (1994) 7 Cal.4th 229, 231-232, 27 Cal.Rptr.2d 2, 865 P.2d 718 (fns. omitted), citing In re Gladys R. (1970) 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127.)

In re Gladys R., supra, 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127 explained:  “If a juvenile court finds a lack of clear proof that a child under 14 years at the time of committing the act possessed knowledge of its wrongfulness under sections 602 and 26, the court might well declare the child a ward under section 600 or 601.   These latter provisions carry far less severe consequences for the liberty and life of the child.   After all, it is the purpose of the Welfare and Institutions Code to ‘insure that the rights or physical, mental or moral welfare of children are not violated or threatened by their present circumstances or environment.’  (Welf. & Inst.Code, § 19.)   Strong policy reasons cast doubt upon the placement of a child who is unable to appreciate the wrongfulness of his conduct with an institution where he will come into contact with many youths who are well versed in criminality ․ To argue that we should trust entirely to the discretion of the juvenile court in this matter does not justify a ruling that section 26 is inapplicable to the definition of crime within section 602.   We cannot condone a decision which would both misinterpret the statute and expose the child to consequences possibly disastrous to himself and society as a whole.”  (Id. at pp. 865-866, 83 Cal.Rptr. 671, 464 P.2d 127, fns. omitted.)

 Clear proof as is used in Penal Code section 26 means clear and convincing evidence.  (In re Manuel L., supra, 7 Cal.4th at p. 239, 27 Cal.Rptr.2d 2, 865 P.2d 718.)

“It would manifestly frustrate the purpose of Penal Code section 26 to infer ․ knowledge [of the wrongfulness of the act] from the bare commission of the act itself․”  (In re Tony C. (1978) 21 Cal.3d 888, 900, 148 Cal.Rptr. 366, 582 P.2d 957.)   No other proof is shown that the minor had an awareness she was violating the criminal law.  (Ibid.)

 The People claim that the minor's statement to the court that she knew carrying the knife was against school rules is adequate proof of capacity.   We disagree, given the minor's age and, particularly, her professed motive of self-defense, and a complete lack of any prior criminal contacts with school authorities or the police.

 In cases involving minors under age 14, juvenile courts must incorporate into their admission procedures an express, on-the-record inquiry into the minor's appreciation at the time of the act of the act's wrongfulness.   This will ensure that minors of a tender age do not unwittingly admit criminal offenses under Welfare and Institutions Code section 602 without proof of capacity.

II

Manzy W.

 The California Supreme Court in In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 60 Cal.Rptr.2d 889, 930 P.2d 1255, settled that under Welfare and Institutions Code section 702 the Juvenile Court must declare at disposition whether any “wobbler” is a felony or a misdemeanor.  In Manzy W., the court reiterated earlier authority indicating the finding has significance in determining the theoretical maximum period of confinement and in later determinations of prior convictions and the finding of a felony is a “serious impediment to the future of [the] minor.”  (Id. at pp. 1208-1209, 60 Cal.Rptr.2d 889, 930 P.2d 1255.)   The declaration is mandatory.   Nothing in this record demonstrates the court exercised its discretion in making that finding.   An entry in the minutes that the offense is a felony or a computation of the theoretical maximum period of confinement, assuming the “wobbler” is a felony, is not an adequate substitute for the Juvenile Court's exercise of discretion during the oral proceedings of disposition.

DISPOSITION

The orders under review are vacated, and the cause is remanded for further proceedings in conformity with the views expressed herein.

LILLIE, P.J.

JOHNSON, J., and NEAL, J., concur.