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Court of Appeal, Sixth District, California.

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

No. H004031.

Decided: November 22, 1988

Michael A. Kresser and Conflict Admin., Santa Clara, and Daryl S. Fried, Burlingame, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., David H. Rose, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Lupe U., age 13, appeals a judgment continuing him as a ward of the juvenile court and specifying that he be removed from parental custody and placed in a suitable foster home or 24–hour private institution.

In a petition filed on November 6, 1987, Lupe was charged with committing a burglary (Pen.Code, § 459) and with a violation of probation (Welf. & Inst.Code, §§ 777, 726).   He admitted the allegations.   A disposition hearing was scheduled for January 5, 1988.   A second petition was filed on December 9, 1987, accusing Lupe of trespassing on school grounds (Pen.Code, § 626.8, subd. (a)(3)), disturbing the peace (Pen.Code, § 415) and a probation violation.   Lupe admitted the trespassing allegation as well as a probation violation;  the second allegation was dismissed.   He was released on home supervision pending his upcoming dispositional hearing.   On December 17, 1987, Lupe was ordered detained for a violation of the home supervision agreement;  a mental health examination was ordered for the scheduled dispositional hearing.   On January 5, 1988, Lupe was continued as a ward of the court as described above.

On appeal, Lupe argues that the court erred by failing to make a finding under Penal Code section 26.1  He also argues that the disposition should have been in front of the same judge who took his last plea.


The underlying facts are not in dispute on appeal.   We adopt the factual summary of the probation officer:

“On October 24, 1987, at approximately 6:50 p.m. security officers at J.C. Pennys [sic ] observed [Lupe] and [C.] looking at leather coats.   The two boys each took a jacket and put it into another area of the Mens' Department.   The boys left to talk with friends, then returned to the area of the jackets.  [Lupe] took empty Penny's shopping bags from under his shirt and handed one to [C.].  Each concealed a jacket inside a bag and left the store with the bags.   Security officers attempted to apprehend the suspects but both ran off.  [Lupe] was apprehended but [C.] got away.  [Lupe] was questioned by the police and stated that [C.] had threatened him if he did not participate in the theft.  [Lupe] later changed his statement and admitted to freely participating in the theft․”

“On 12–2–87 at approximately 3:20 p.m., Salinas Police responded to El Sausal Junior High School and spoke with Vice Principal, Perez.   Perez stated that [Lupe] had been admonished and warned many times not to be on campus as he was a non-student.   However, [Lupe] continually comes on campus.   On this date, [Lupe] had come on campus allegedly to frighten another student.   Campus Supervisor Gonzales confronted [Lupe] and told him to leave the campus immediately.   As Gonzales placed his hand on [Lupe] shoulder's [sic ] [Lupe] brushed his hand away stating ‘don't do that;  I'm going to hit you’.  [Sic.]  [Lupe] also used profanity and caused the general disturbance.”


On December 8, 1987, at the first adjudication hearing, Lupe waived his trial rights and admitted the allegation in the petition.   In response to questions from the judge, he admitted he had stolen a jacket and committed a burglary at Northridge.   However, Judge Leach never asked Lupe whether he knew it was wrong to take property without paying for it, nor did the judge make any finding as to whether Lupe understood the wrongful nature of the act he had committed.

Similarly, at the second adjudication hearing on December 14, 1987, Lupe admitted going into the El Sausal Junior High School grounds and that he was aware he had been told to stay off the grounds.   Judge Wunderlich never asked Lupe whether he knew that what he had done was wrong, nor did the judge make a finding whether Lupe understood the wrongful nature of his acts.

 Penal Code section 26, subdivision (One), establishes a rebuttable presumption that a child under 14 years of age is incapable of entertaining criminal capacity.   A child's legal capacity to commit the crime charged is a fact necessary to a Welfare and Institutions Code section 602 wardship determination.  (In re Francisco N. (1986) 186 Cal.App.3d 175, 179, 230 Cal.Rptr. 475.)

However, Lupe's reliance upon Francisco N. is misplaced.   In that case, after the minor admitted the allegation of the petition, the court made an express finding of criminal capacity “by clear and convincing evidence.”   (Id. at p. 177, 230 Cal.Rptr. 475.)   Relying upon language from In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368), the court determined, we believe erroneously, that legal capacity must be proven by “proof beyond a reasonable doubt.” 2  In any event, it was the express application of what was found to be the wrong standard of proof which required a reversal of judgment.  Francisco N. does not stand for the proposition that the trial court must make such an express finding of criminal capacity upon an admission of the allegations of a petition.

Each petition filed alleged that Lupe “comes within the provisions of Section 602 of the Juvenile Court Law.”   In admitting the allegations in the two petitions, Lupe impliedly admitted that he is a person described by section 602 of the Welfare and Institutions Code, i.e. a person with capacity to commit the crimes charged.

California Rules of Court, rule 1354 delineates precisely what prerequisites are required prior to acceptance of an admission by a minor that the allegations of a petition are true and what findings a trial court must make upon such an admission:

“(c) ․ Before accepting an admission by the minor that the allegations of the petition are true:

“(1) The court shall first satisfy itself, and the minutes shall reflect, that the minor understands each of the trial rights enumerated in subdivision (a), the nature of the allegations and the direct consequences of a finding that the allegations are true, and that by admitting the truth of the allegations in the petition, the minor will be waiving those rights.


“(4) The court shall then satisfy itself that the minor is admitting the truth of the allegations of the petition because the minor did in fact commit the acts alleged, and that the admission by the minor is voluntarily made.”


“(e) ․ Upon admission, the court shall make findings as to each of the following, noted in the minutes of the court:

“(1) That notice has been given as required by law;

“(2) The birthdate and county of residence of the minor;

“(3) That the minor has knowingly and intelligently waived the right to a trial on the issues by the court, the right to remain silent, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the minor's behalf;

“(4) That the minor understands the nature of the conduct alleged in the petition and the possible consequences of an admission;

“(5) That the admission by the minor is freely and voluntarily made;

“(6) That there is a factual basis for the minor's admission;

“(7) That the allegations of the petition as admitted are true as alleged;  and

“(8) That the minor is a person described by section 601 or 602 of the Welfare and Institutions Code.”

The fact that nowhere in the California Rules of Court is there any suggestion that the trial court must make an express finding of capacity upon an admission of allegations by a minor under the age of 14 lends further support to our conclusion that the admission of the truth of the allegations in the petition encompasses an implied admission of criminal capacity pursuant to Penal Code section 26.

 Lupe's second contention, that his sentencing hearing was invalid pursuant to People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220,3 is technically moot.   Nevertheless, because a similar situation easily could recur upon remand, we briefly address the question whether Lupe waived his Arbuckle rights by failing to make an objection below.   In concluding that he did, we adopt in toto the reasoning set forth in People v. Serrato (1988) 201 Cal.App.3d 761, 247 Cal.Rptr. 322:

“In People v. Rosaia (1984) 157 Cal.App.3d 832 [203 Cal.Rptr. 856] ․, the Fifth District created an exception to the requirement of an objection when it held, ‘fairness dictates that before accepting silence or acquiescence in sentencing by a different judge as a waiver, the court must satisfy itself from the record that defendant knew he had the right to be sentenced by the same judge who took his plea.’  (Id, at p. 840 [203 Cal.Rptr. 856].)  Thus, under Rosaia, Arbuckle rights are not waived by a lack of objection unless the record demonstrates the defendant knew of the rights.  (Ibid.)  Because we find such an approach contradicts the logical underpinning of Arbuckle, we decline to follow Rosaia.

“In Arbuckle, the court stated, ‘Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea.’  [Citation.]  Thus, when a defendant enters a bargain, ‘in expectation of and reliance upon sentence being imposed by the same judge’ [citation], the defendant must be aware he is entitled to this part of the bargain as a matter of right once he enters his plea of guilty.   Knowledge by the defendant of his Arbuckle right as a part of the plea bargain is implicit in the reasoning of Arbuckle.   Thus, we conclude, when faced with a different sentencing judge, a defendant must object at that time or waive his Arbuckle rights.”

“To the extent Rosaia concludes differently, we reject its reasoning and will not follow it.”  (People v. Serrato, supra, 201 Cal.App.3d at pp. 764–765, 247 Cal.Rptr. 322, fn. omitted.)

The judgment is affirmed.

I signed the opinion of the court but would like to make an additional point.

Penal Code section 26 may have made sense in 1872 when it was enacted, although I suspect that even then it reflected more wishful thinking than reality.   But today it is ludicrous to assert that 13–year olds are presumptively unaware that assault and theft are wrongful.

The case at bench is typical.   Defendant and his friend first took leather coats and secreted them in another area of the men's department.   Defendant then removed empty Penney's shopping bags from under his shirt(!), placed a leather jacket inside one of those bags, left the store with the bag and ran when confronted by a store security guard.   Defense counsel insults the intelligence of this court when he places his client's scienter in issue.

Statistics compiled by the California Department of Justice for the year 1987 establish that 1828 persons under 14 years of age were arrested for violent felonies (homicide, forcible rape, robbery, assault and kidnapping) and 7682 persons in that age group for felonies involving property (burglary, theft, arson and forgery and check charges).1  Crime has become largely a young person's phenomenon.   40.4 percent of burglaries were committed by people under 20 and 72.2 percent by those under 30;  31.1 percent of robberies by persons under 20 and 76.6 percent by those under 30.2

The Legislature may be well advised to take another look at this outdated statute.


1.   Penal Code section 26 provided in relevant 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.”

2.   We are persuaded that In re Clyde H. (1979) 92 Cal.App.3d 338, 343, 154 Cal.Rptr. 727, which squarely held that criminal capacity of a minor under the age of 14 need not be shown by proof beyond a reasonable doubt, reaches the correct result.

3.   Arbuckle held that “[a]s a general principle, ․ whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge.”  (Id. at pp. 756–757, 150 Cal.Rptr. 778, 587 P.2d 220.)

1.   1987 Criminal Justice Profile, Statewide, Report of the Department of Justice, Bureau of Criminal Statistics, p. 56.

2.   Crime and Delinquency in California (1987) Report of the Department of Justice, Bureau of Criminal Statistics, Table 30, p. 162.

CAPACCIOLI, Associate Justice.

AGLIANO, P.J., and BRAUER, J., concur.

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