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Court of Appeal, Second District, Division 2, California.

IN RE: RAMON M., JR., A Person Coming Under the Juvenile Court Law. Kenneth F. FARE, As Acting Chief Probation Officer, etc., Plaintiff and Respondent, v. RAMON M., JR., Defendant and Appellant.

Cr. 29304.

Decided: March 03, 1977

Paul N. Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for petitioner and respondent.

Appellant Ramon M., Jr., 14 years old at the time of the offense, was found to have violated Penal Code section 415 (willful and unlawful assault in a public place) and declared a ward of the juvenile court under Welfare and Institutions Code section 602. The juvenile court ordered a suitable placement. Appellant contends that as a matter of law he lacked mental capacity to commit the offense charged; and that the juvenile court erred in not suspending juvenile proceedings to hold a hearing on appellant's competency to stand trial under Penal Code section 1368(a).

The facts surrounding the underlying offense are undisputed. Appellant in the company of two other young persons attacked the prosecution witness with belts in a public street about 1:45 a.m. near First and Boyle Street, in Los Angeles. A towtruck driver permitted the witness to jump into his truck and called police. The driver also chased and apprehended appellant when he attempted to flee the scene.

The evidence relating to appellant's mental capacity follows: His social worker, to whom he had been assigned during his prior placement on a Welfare and Institutions Code section 600 status, testified that she had interviewed appellant for about 45 minutes. Although she had a little difficulty understanding him, she attributed this difficulty to a speech impediment, and did not think appellant had any difficulty formulating the ideas he was trying to express. She discussed the dangers of his existence as a runaway and his association with gangs of trouble makers, and he appeared to understand that such conduct was dangerous and might get him into trouble. The social worker also believed he understood the wrongfulness of assaulting another person. She asked appellant whether he would appreciate it if someone stole from him, and he said that he would not like it. She explained to him his choices among placement in a foster home, an institution, or with a relative, and he chose to go to his mother's home. The social worker further testified that appellant responded promptly to her questions and gave her fairly detailed descriptions of his conduct during his two months on the streets as a runaway.

The police officer who took appellant into custody and booked him observed appellant over a two to three-hour period and testified that during the process of obtaining identification appellant understood the officer's questions, responded correctly to them, appeared to be aware he was under arrest, evidenced familiarity with the booking process, and remembered the procedures. He provided his own name and that of his parents.

Appellant called as his witness Dr. Michael P. Maloney, a court-appointed clinical psychologist, who examined appellant and administered various psychological tests. Dr. Maloney testified that appellant had a very low I.Q., about 40, at the bottom of the testing scale, and little ability to reason abstractly. His concept of time was minimal. His mental capability was on a level with that of a four to five-year-old child. Because of his low intelligence, moderate mental retardation, and inability to visualize future possibilities and plan ahead, he was susceptible to the influence of others. Much of his concept of wrongfulness would be derived from the actions and opinions of his respected peers. Appellant had about the same capacity to distinguish right from wrong as a four to five-year-old child, and, like such a child, he could grasp the essential wrongfulness of an unprovoked assault with a belt on a third person. He could, likewise, appreciate the wrongfulness of breaking into a person's home or a closed building and stealing property therefrom.

Appellant took the stand and testified on his own behalf.

The trial court, summing up the foregoing evidence, stated that a low I.Q. did not in itself make appellant an idiot, that the evidence of capacity contrary to Dr. Maloney's conclusion was abundant and persuasive, and that ‘even the doctor hedged his bet a little bit.’ The court concluded: ‘I am satisfied that he is of sound mind and is not an idiot.’

The gist of appellant's defense of lack of mental capacity to commit a crime or stand trial is that he has an I.Q. at the bottom of the testing scale, is illiterate, and has a mental age comparable to that of a four to five-year-old child. Appellant argues that regardless of other evidence tending to show appellant can distinguish right from wrong and can appreciate the nature and quality of his acts, his degree of retardation is such as to establish his idiocy. Penal Code section 26, provides in relevant part:

‘All persons are capable of committing crimes except those belonging to the following classes:

‘One—Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.


‘Three—Lunatice and insane persons. . . .’

Appellant argues the court erred in applying the traditional California-M'Naughton test of capacity to a defense of idiocy under Penal Code section 26. He claims the statute distinguishes ‘idiots' from ‘lunatics and insane persons' and that the traditional test whether the accused can distinguish right from wrong and appreciate the nature and quality of his acts should not be used to determine whether a person is an idiot within the meaning of the statute.

While it is true, as appellant claims, that ‘soundness of mind’ and ‘legal sanity’ are not the same (People v. Baker (1954) 42 Cal.2d 550, 568–569, 268 P.2d 705, and that the condition of idiocy or imbecility is medically different from insanity, yet a defendant's legal capacity to commit crime is determined by his capability to comprehend the nature and quality of his act and appreciate its wrongfulness. (People v. Wolff (1964), 61 Cal.2d 795, 800–801, 40 Cal.Rptr. 271, 394 P.2d 959) California courts have applied the foregoing California-M'Naughton test to ascertain whether as a result of feeble-mindedness or idiocy a defendant lacks legal capacity to commit a crime. (See, e.g., People v. Oxnam (1915) 170 Cal. 211, 149 P. 165; People v. Keyes (1918) 178 Cal. 794, 175 P. 6.) It has been said that imbecility is not a defense to crime unless it deprives the individual of the power to tell right from wrong. (People v. Fisher (1975)49 Cal.App.3d 174, 178, 122 Cal.Rptr. 366.) Appellant relies heavily on People v. Baker (1954) 42 Cal.2d 550, 268 P.2d 705, in which the court reversed the first-degree murder conviction of a so-called moron with an estimated I.Q. of 70. Baker, however, involved a long history of state hospital commitments for seizures and recurrent fits of incoherency; defendant's original trial had to be suspended because defendant was incompetent to stand trial; the record disclosed overwhelming evidence of long-standing, severe mental disease. No such history of mental disease is present here.

Relying on the psychologist's testimony that appellant has a mental maturity of about four to five years, appellant seeks to come within the presumption of Penal Code section 26 that children under the age of 14 are presumed incapable of criminal intent in the absence of clear proof of knowledge of the wrongfulness of their acts. (See, e. g., In re Michael B. (1975), 44 Cal.App.3d 443, 118 Cal.Rptr. 685.) The statute, however, has never been interpreted to refer to other than defendant's chronological age. Persons 14 years and over have the burden of demonstrating their lack of capacity to form a wrongful intent. Where, as here, there was evidence of mental capacity, and where the trial court had the opportunity to observe and examine appellant and hear the witnesses, the finding in favor of mental capacity will not be upset.

Appellant argues that Dr. Maloney's testimony supports an inference that appellant was acting under the influence of his two companions when he committed the assault and that their influence deprived him of the capacity to form a wrongful intent. However, the record does not substantiate such an inference. Appellant denied all participation in the assault. There was no testimony about the identity of the other persons involved, their relationship to appellant, or the likelihood that they confused and misled him into joining the assault. Since the burden rests on appellant to show lack of capacity to form wrongful intent, speculative inferences will not overcome the trial court's direct finding of capacity.

With respect to appellant's contention that the trial court should have conducted a hearing on his competency to stand trial, the record shows no request for a sanity hearing, and no strong evidence of appellant's incapacity to participate in the trial and assist in his own defense. On the contrary the record shows that appellant took the stand and responded coherently to questions asked of him.

The order is affirmed.

I concur under compulsion of People v. Keyes, 178 Cal. 794, 802, 175 P. 6, People v. Fisher 49 Cal.App.3d 174, 122 Cal.Rptr. 366.

I dissent. Both the trial court and the majority in this court erroneously equate the provisions of Penal Code section 26 which provides that an ‘idiot’ is incapable of committing crime with the so-called ‘right and wrong’ test applicable to the defense of insanity. This is an equation which has, but in my opinion incorrectly, crept into other appellate decisions. (See People v. Oxnam, 170 Cal. 211, 149 P. 165; People v. Keyes, 178 Cal. 794, 175 P. 6; People v. Fisher, 49 Cal.App.3d 174, 122 Cal.Rptr. 366.)

Penal Code section 21 provides that all persons are of sound mind who are neither idiots nor lunatics nor affected with insanity and as noted the term ‘idiot’ is carried forward into section 26. I find in those sections a clear legislative intent to distinguish the two defenses. (See People v. Baker, 42 Cal.2d 554, 268 P.2d 705.)

While the term ‘idiot’ probably finds no greater acceptance in the medical profession today than does the present legal definition of insanity, I simply cannot ignore the fact that the Legislature appears to have in mind two different concepts when it speaks of ‘idiots' on the one hand and ‘insane persons' on the other. This conclusion is bolstered by the fact that both the insanity defense and the idiot defense are part of a list of some eight specific situations in which the Legislature has seen fit to declare the existence of a lack of capacity to commit crime.

In my opinion the distinction between the two concepts is that the test of idiocy is quantitative, i.e., the congenital and physiological capacity for reasoning while insanity deals with the functional or qualitative nature of the reasoning.

Thus a person may, to the extent required by the so-called ‘McNaughten Test,’ be able to distinguish right from wrong, and still defend against a criminal charge on the basis that he was by definition an ‘idiot.’ If it intended otherwise the Legislature could have easily added modifying language to Penal Code section 26, subdivision (2) as it did to subdivision (1) in creating a rebuttable presumption of incapacity for children under the chronological age of 14.

In view of the fact that there was strong uncontroverted medical testimony that Ramon met the definition of an idiot and the fact that the trial court appears to have based its decision on the so-called ‘right and wrong’ test, I would reverse the order and remand the case to the Juvenile Court for further consideration of the defense of idiocy.

FLEMING, Associate Justice.