IN RE: DEMETRIUS H. (1987)

Demetrius H. appeals a judgment declaring him a ward of the juvenile court and specifying that he be committed to county rehabilitation facilities for 120 days.   In two separate petitions Demetrius was charged with malicious damage to property (Pen.Code, § 594, subd. (b)(2)), with carrying a concealed dirk or dagger (Pen.Code, § 12020, subd. (a)), and with committing a battery on school grounds (Pen.Code, § 243.2).   Only the battery count was sustained.   On appeal, Demetrius argues that the record fails to establish that he understood the wrongfulness of his conduct, as is required by Penal Code section 26.   As a predicate argument, he contends that such criminal capacity must be shown by proof beyond a reasonable doubt.

On February 27, 1986, Demetrius, age 13, approached Joshua F. on the grounds of Herman Junior High School in San Jose.   Demetrius asked Joshua if he wanted to fight.   Joshua replied that he would fight after school.   Demetrius then started swinging at Joshua, who fought back for about a minute.   Joshua received a bloody nose.   Within the week prior to this fight, Joshua had been with friends of his when they had made some racially derogatory remarks directed at Demetrius and had indicated a willingness to fight Demetrius.

School vice-principal Gerry Baker testified that when she questioned Demetrius about the fight, he admitted striking the first blow, explaining that “I just gently put, kind of like, my knee on his face.”   According to the vice-principal, Demetrius seemed confused about why she was upset with his having fought someone, saying that he had just wanted to know if Joshua wanted to be his friend.   He explained that he figured that if Joshua wanted to fight him, then he wasn't his friend.   In response to the court's question whether from her contact with Demetrius she could say that he understood right from wrong, the vice-principal responded, “․ I wondered sometimes if Demetrius understood everything about right from wrong, in fact, had asked the psychologist at the school to test Demetrius for that specific thing.  [¶] I wasn't really sure․”

Demetrius's mother testified that she has tried to teach Demetrius the difference between right and wrong and she thinks that he understands.   On cross-examination, she elaborated, “Just that sometimes I know he knows what's right;  sometimes I just don't think he understands what's right and wrong.”

At the conclusion of the adjudication hearing, the court found that “based on the testimony adduced at this hearing, that there's a sufficient basis to find that he's competent to stand trial as a juvenile and that he understands the seriousness and nature of his acts;  that there's clear proof time of committing acts he knew it was wrongful [sic].”

DISCUSSION

Standard of Proof

Demetrius's first contention is that the clear proof standard enunciated in Penal Code section 26 is unconstitutional in light of In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.   We disagree.

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 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” ¹

 Three recent cases have departed from the plain language of section 26 and have reasoned that, in light of the United States Supreme Court decision in Winship, as a matter of constitutional law, a minor under the age of 14 must be presumed incapable of committing a crime unless it is proved beyond a reasonable doubt that he understood the wrongfulness of his criminal acts.   (See In re Francisco N. (1986) 186 Cal.App.3d 175, 178–179, 230 Cal.Rptr. 475;  In re Richard T. (1985) 175 Cal.App.3d 248, 252–253, 220 Cal.Rptr. 573;  Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 618, 198 Cal.Rptr. 749.)   In direct conflict with these three cases is 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.   We are persuaded that Clyde H. reaches the correct result.

The Winship decision held that the reasonable doubt standard was an essential element of due process and thus precluded guilty convictions in criminal cases and findings of delinquency in juvenile cases on the basis of a lesser standard of proof.   The Court in Winship stated that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”  (397 U.S. at p. 364, 90 S.Ct. at p. 1073 (emphasis added).)   The underlined phrase has been interpreted in subsequent United States Supreme Court opinions to mean “all of the elements included in the definition of the offense of which the defendant is charged.”  (Patterson v. New York (1977) 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (emphasis added).)   The United States Supreme Court has taken the position that “in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive․”  (McMillan v. Pennsylvania (1986) 477 U.S. 79, ––––, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67, 75.)

However, “in certain limited circumstances Winship 's reasonable doubt requirement applies to facts not formally identified as elements of the offense charged.”  (Id. 477 U.S. at p. ––––, 106 S.Ct. at p. 2417, 91 L.Ed.2d at p. 76.) ²  In McMillan, the United States Supreme Court refused to create a blanket rule, noting that “we have never attempted to define precisely ․ the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases, and do not do so today, ․”  (Ibid.)

Subdivision One of Penal Code section 26 has remained essentially unchanged since its enactment in 1872.   It was in 1872 that the Legislature also enacted Penal Code section 1096 with its requirement that the guilt of a criminal defendant be proved beyond a reasonable doubt.   In 1874, when the Legislature last amended section 26 so as to bring it to its present form (Stats. 1873–1874 ch. 614, § 26, p. 422), it retained the clear proof standard for criminal capacity of a minor under age 14 despite its recent enactment of section 1096.   We must presume that the Legislature was aware that it was enacting both section 1096 and section 26 in 1872 and in turn that the Legislature was aware of Penal Code section 1096 when it was revising section 26 two years later.   Therefore the Legislature must have intended to treat a finding of criminal capacity of a minor under age 14 as distinct from the elements of the crime with which the minor is charged.

The juvenile court system was established in this state after section 26 was last amended.  Welfare and Institutions Code section 602 was enacted as part of the present California Juvenile Court Law.  Section 602 reads as follows:  “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”  (Emphasis added.)

In In re Gladys R. (1970) 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127, the California Supreme Court held that by its enactment of Section 602 the Legislature did not repeal section 26 by implication.   In so holding, the Court discussed the legislative history of California juvenile law, noting that “the commission that drafted the present law refers to the necessity of ‘respectable proof of the jurisdictional facts' for the institution of proceedings under section 602․”  (Id. at p. 863, 83 Cal.Rptr. 671, 464 P.2d 127, citing Report of the Governor's Special Study Commission on Juvenile Justice, Part I–Recommendations for Changes in California's Juvenile Court Law (1960) p. 21.)   The Court also recognized that a minor under the age of 14 years did not have a constitutional right to the statutory requirement in section 26:  “If the Legislature had intended to repeal section 26 ․ it could have done so expressly.”  (Id. at p. 863, 83 Cal.Rptr. 671, 464 P.2d 127.)

 We conclude that capacity of a minor to commit a crime within the meaning of section 26 is not an element of the crime and that the issue is not within the limited circumstances in which Winship 's reasonable doubt requirement applies to facts not formally identified as elements.³  We therefore hold that the due process clause of the federal Constitution does not require that the historical “clear proof” standard for establishing the criminal capacity of a minor under age 14 be abandoned in favor of a standard of proof beyond a reasonable doubt.

 Demetrius next contends that the 1971 amendment of Welfare and Institutions Code section 701 demonstrates a legislative intent to substitute a reasonable doubt standard for the clear proof standard in Penal Code section 26.   Again, we disagree.

In 1971, Welfare and Institutions Code section 701 was amended to provide that “[p]roof beyond a reasonable doubt ․ must be adduced to support a finding that the minor is a person described by Section 602․”  The courts in California quickly had realized that “[t]he effect of this decision [Winship ] is to declare as unconstitutional the preponderance of evidence standard provided for in Welfare and Institutions Code section 701 and to overrule California cases which have held the statute constitutional.”  In re Steven C. (1970) 9 Cal.App.3d 255, 262, 88 Cal.Rptr. 97.   Prior to 1971, the “preponderance of the evidence” standard in section 701 had applied only to the elements of the crime charged against the juvenile, and not to the finding of criminal capacity of a minor under the age of 14.   Basic rules of statutory construction support our conclusion that the amendment to section 701 similarly was intended to apply only to the degree of proof necessary to establish the elements of the offense.   Where nothing in the language of the statute suggests in its amendment an implicit intent to abrogate the clear proof standard of Penal Code section 26 we are not at liberty to impute such intention.  (Rushing v. Powell (1976) 61 Cal.App.3d 597, 604, 130 Cal.Rptr. 110.)   This is all the more true where abrogation of the clear proof standard could easily have been accomplished by a simple amendment of section 26.   (See Stribling's Nurseries, Inc. v. County of Merced (1965) 232 Cal.App.2d 759, 761, 43 Cal.Rptr. 211.)

Demetrius's contention that the “grave potential consequences” and “lasting stigma” he suffers as a result of being adjudged a ward of the court necessitate the application of the reasonable doubt standard for criminal capacity under section 26 is meritless.   This is the policy argument set forth in In re Winship, supra, 397 U.S. at pp. 363–366, 90 S.Ct. at pp. 1072–1073.   Given that subsequent United States Supreme Court cases have limited Winship 's reasonable doubt requirement to the elements of the crime charged and given our finding that a minor's criminal capacity is not an element of the crime charged, we conclude that these policy arguments provide no independent basis for judicially annulling the clear proof standard set forth by the Legislature in section 26.

Demetrius's contention that the reasonable doubt standard is required independently under Article I, section 15 of the California Constitution is not supported by relevant case law.   We find no precedent in which our state due process protections diverge from federal protections with repect to the burden of establishing criminal capacity.  (See People v. Drew (1978) 22 Cal.3d 333, 349, 149 Cal.Rptr. 275, 583 P.2d 1318;  People v. Boyes (1983) 149 Cal.App.3d 812, 821, 197 Cal.Rptr. 105.)

In conclusion, the plain meaning of Penal Code section 26, subdivision One evinces a legislative intent 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 that threshold issue.  (In re Clyde H., supra, 92 Cal.App.3d at p. 343, 154 Cal.Rptr. 727.)

Application of the Clear Proof Standard to the Facts in This Case

 The lower court applied the statutory standard of Penal Code section 26 and found that there was “clear proof” that Demetrius knew his actions were wrongful at the time of the commission of the offense.   Demetrius contends this finding is not supported by substantial evidence.   We disagree.

The trial court is the finder of fact on the issue of a minor's criminal capacity, the exclusive judge of the credibility of the witnesses and the weight of the evidence.   Our function as the reviewing court 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 reaching its decision on whether the minor understood the wrongfulness of his act, the trial court may consider “the age, experience, knowledge, and conduct of the child.”  (In re Gladys R., supra, 1 Cal.3d at p. 867, 83 Cal.Rptr. 671, 464 P.2d 127.)

Demetrius's mother testified that she had taught him that it is wrong to hit others and stated that he would be punished if he did so in her home.   The vice-principal of Demetrius's school testified that all students receive a handbook which stated that fighting was against the rules and would result in instant suspension.  (See In re Martin L. (1986) 187 Cal.App.3d 534, 232 Cal.Rptr. 43, [written warning on spray paint may be considered in determining whether minor knew it was wrong to inhale toluene].)  Demetrius was less than three months away from his 14th birthday at the time of this offense.   The closer a minor is to the age of 14, the more likely it is that he appreciates the wrongfulness of his acts.  (In re Cindy E. (1978) 83 Cal.App.3d 393, 399, 147 Cal.Rptr. 812.)   The evidence of Demetrius's age and the written and verbal instructions he received amply support the trial court's finding that Demetrius knew it was wrong to fight at the time of the commission of the offense.

Although Demetrius's mother testified that “sometimes I know he knows what's right;  sometimes I just don't think he understands what's right and wrong,” and his vice-principal testified that she “wondered sometimes if Demetrius understood everything about right and wrong”, the trial court was not bound by these statements nor required to accept any inference from conflicting evidence that Demetrius did not understand it was wrong to fight.  (In re Clyde H., supra, 92 Cal.App.3d at p. 344, 154 Cal.Rptr. 727.)

We find there was substantial evidence to support the conclusion of the trier of fact that Demetrius did know the wrongfulness of his conduct.

The judgment is affirmed.

FOOTNOTES

1.   References hereinafter to section 26, without mention of any code, are to this quoted section.

2.   The Supreme Court recognized that a state may go too far and impermissibly define away an essential element and shift the burden to the defendant to disprove its existence.   This is essentially what occurred in Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.   There a Maine murder statute presumed that every murder was committed with malice [defined as lack of provocation] and required the defendant to disprove malice by establishing that he acted in a heat of passion on sudden provocation.   The Court ruled that this burden-shifting was impermissible and that the prosecution was required to prove malice [the absence of provocation] beyond a reasonable doubt.  (Id. at pp. 686, 698–699, 704, 95 S.Ct. at pp. 1883, 1889, 1892.)   The Supreme Court has interpreted Mullaney v. Wilbur narrowly and has explicitly distanced itself from the broad implications of that case.  (See Patterson v. New York, supra, 432 U.S. at pp. 215–216, 97 S.Ct. at pp. 2329– 2330;  McMillan v. Pennsylvania, supra, 477 U.S. –––– at p. ––––, 106 S.Ct. 2411 at p. 2416–2417, 91 L.Ed.2d 67 at p. 76.)

3.   Our conclusion that criminal capacity of a minor is not an element of his offense is bolstered by state decisions regarding other factors which may statutorily negate criminal capacity.   In People v. Boyes (1983) 149 Cal.App.3d 812, 817, 197 Cal.Rptr. 105, in considering whether the rebuttable presumption of consciousness impermissibly lightened the prosecution burden of proving every fact essential to establish guilt, the court concluded that since consciousness was not defined as an element of the crime charged, “the presumption of consciousness, historically recognized under California law, does not contravene due process.”   (Id., at p. 821, 197 Cal.Rptr. 105.)   Similarly, in People v. Drew (1978) 22 Cal.3d 333, 348–349, 149 Cal.Rptr. 275, 583 P.2d 1318 (superseded on other grounds by Penal Code section 25, subdivision (b) as part of Proposition 8 in 1982), the California Supreme Court rejected the contention that the prosecution must prove beyond a reasonable doubt that a defendant is sane.   We agree with the court in Clyde H. (In re Clyde H., supra, 92 Cal.App.3d at p. 343, 154 Cal.Rptr. 727) that the fact that the Legislature can constitutionally require an adult criminal defendant to prove insanity suggests that the Legislature may similarly constitutionally set forth by statute the clear proof standard by which a minor of a given age shall be found capable of committing a crime.

AGLIANO, Presiding Justice.

BRAUER and CAPACCIOLI, JJ., concur.