IN RE: MANUEL L.

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Court of Appeal, Sixth District, California.

IN RE: MANUEL L., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. MANUEL L., Defendant and Appellant.

No. H009544.

Decided: December 03, 1992

Karen Kelly, Modesto, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., for plaintiff and respondent.

The minor Manuel L. appeals from the juvenile court's order adjudging him a ward of the court.  (Welf. & Inst.Code, § 602.)   At the time of the offenses the minor was eleven years old.   The minor asserts that the trial court's finding he appreciated the wrongfulness of his conduct is not supported by sufficient evidence.  (Pen.Code,1 § 26.)   We affirm for the reasons stated below.

Facts 2

The District Attorney of Santa Clara County filed a petition alleging that Manuel had committed two felonies:  possession of stolen property and assault by means likely to produce great bodily injury (§§ 496, 245, subd. (a)(1)).

1. Possession of Stolen Property

On June 19, 1991 Linda Burrow discovered that her $400 bicycle was missing from her back yard.   A neighbor girl told Burrow that she had seen Manuel riding the missing bicycle.   When Burrow confronted Manuel he denied taking the bicycle, but admitted he had some parts of the bicycle and that he knew they were stolen.   After waiving his Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights, the minor told a police officer that another minor had given him the parts.   Manuel also said he bought the bicycle from minor Deon Watts, but Watts, who was present, said that was not true.   After this offense Manuel was placed on informal supervision.

2. Assault with Intent to Commit Great Bodily Injury

On October 29, 1991, minor Robert Gaines and two of his friends were waiting at a school bus stop.   Manuel approached Gaines and shot sharp pieces of glass at him with a rubber band or sling shot.   One of the pieces of glass almost struck Gaines in the face.   Manuel denied shooting or throwing glass at Gaines.

After this offense, Manuel's informal supervision was terminated.   The parties agreed to submit the matter to the court based on the probation report and the juvenile contact reports, and stipulated the offenses should be reduced to misdemeanors.   The trial court ordered a psychological evaluation of the minor, and asked the psychiatrist to determine whether Manuel understood the wrongfulness of his conduct.   The psychiatrist reported that Manuel knew it was wrong to have stolen bicycle parts, and that he was also aware that it was unacceptable to throw broken glass at people.

The court found the allegations of the petition true, and adjudged the minor a ward of the court.   Although the court did not think it was necessary to make a finding beyond a reasonable doubt, the court did make a specific finding that Manuel understood the wrongfulness of his conduct, based on the psychiatrist's report.

The court ordered the minor returned home on probation on condition that he be committed to Juvenile Hall for 40 days, with 30 of the 40 days stayed pending successful completion of probation.   The court ordered Manuel to do community service and to pay restitution to the theft victim.

Contentions on Appeal

The minor asserts that there was insufficient evidence to support the trial court's finding that he knew the wrongfulness of his conduct.   The minor also argues that “clear proof” in section 26 means proof beyond a reasonable doubt.   The People contend the proper standard is clear and convincing evidence.   The People also contend that the evidence Manuel knew his conduct was wrong was so overwhelming that even if the court applied the wrong standard, the error was harmless.

Discussion

Penal Code, section 26 provides in part:  “All persons are capable of committing crimes except those belonging to the following classes:  [¶] One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.”   The issue is whether the standard is proof beyond a reasonable doubt, or clear and convincing evidence.   We find it is clear and convincing evidence.

 The minor argues that proof beyond a reasonable doubt is constitutionally required.   In In re Winship (1970) 397 U.S. 358, 367, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368, the United States Supreme Court held New York's statute, allowing proof of commission of an offense by a minor between 7 and 16 by a preponderance, violated due process.   The finding that a juvenile is a delinquent because he committed a theft is as serious as the felony prosecution of an adult, so that proof of the offense must be beyond a reasonable doubt.  (Id. at pp. 365–366, 90 S.Ct. at pp. 1073–1074.)   We conclude, however, that Winship's requirement of proof beyond a reasonable doubt applies to the elements of the offense, and not to the separate issue of capacity.

 Capacity, like sanity or competence to stand trial, is a prerequisite to criminal liability.   A state may constitutionally endorse a presumption that defendant is competent and place the burden of proving incompetence by a preponderance of the evidence on the defendant.  (Medina v. California (1992) 505 U.S. 437, ––––, 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353, 363.)   Such an allocation of the burden of proof does not offend “ ‘some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’  (Citation.)”  (Ibid.)   Deference is to be accorded state legislatures in matters of criminal procedure.  (Ibid.)

 The analysis of the burden and quantum of proof of a child's capacity to commit an offense is subject to the same analysis.   We find the reasoning of In re Clyde H. (1979) 92 Cal.App.3d 338, 154 Cal.Rptr. 727, persuasive.  (Contra is In re Michael B. (1983) 149 Cal.App.3d 1073, 1087, fn. 6, 197 Cal.Rptr. 379 and In re Richard T. (1985) 175 Cal.App.3d 248, 252–253, 220 Cal.Rptr. 573.)  “Since the Legislature may constitutionally require an adult criminal defendant to prove insanity by a preponderance of the evidence (citation), it may constitutionally set forth by statute the standard by which a minor of a given age shall be found capable of committing a crime.”  (In re Clyde H., supra, 92 Cal.App.3d at p. 343, 154 Cal.Rptr. 727.)   The plain meaning of subdivision One of section 26 is that the ability of a minor to understand the wrongfulness of his criminal acts must be shown by clear proof.   Because nothing in the state or federal constitutions compels a higher standard, we find that a juvenile court may properly use the statutory standard of clear proof in determining this threshold issue.

 The minor challenges the sufficiency of the evidence of capacity under either standard.   The trial court is the finder of fact on the issue of the minor's criminal capacity, and as the reviewing court our function is simply to determine whether there is substantial evidence to support the conclusion of the trier of fact.  (In re Clyde H., supra, 92 Cal.App.3d at pp. 343–344, 154 Cal.Rptr. 727.)   In this case the trial court ordered a psychological evaluation of the minor and specifically requested a finding on capacity.   The psychiatrist reported to the court that Manuel denied he knew the bicycle parts were stolen;  “He says that if he had known the parts were stolen, he would have refused to accept them, recognizing that it would be wrong to do so.”   The psychiatrist continued:  “Similarly, he is aware that it is unacceptable to throw broken glass (or any other harmful object) at people.”

This substantial evidence supports the trial court's finding that Manuel appreciated the wrongfulness of his conduct.   In our view it would also meet the higher standard of proof beyond a reasonable doubt.   The trial court correctly applied the clear proof standard.   The evidence was sufficient to support the trial court's finding of the minor's capacity.   The trial court did not err.

Disposition

The judgment is affirmed.

FOOTNOTES

FN1. Further statutory references are to the Penal Code..  FN1. Further statutory references are to the Penal Code.

2.   The facts are drawn from the probation report and the juvenile contact (police) reports.

CAPACCIOLI, Acting Presiding Justice.

PREMO and ELIA, JJ., concur.