IN RE: TONY C (1977)

In petitions filed by the Acting Probation Officer of Los Angeles County, Tony Lorenzo C., a 13-year old black male, was alleged to be a minor coming within the provisions of Welfare and Institutions Code section 602. In paragraph I and II of Petition ‘A,’ it was alleged that the minor received stolen property in violation of Penal Code section 496. In paragraphs III and IV, it was alleged that the minor committed burglaries in violation of Penal Code section 459.

Petition ‘B’ was dismissed by the court, without prejudice, in the interest of justice.

In paragraph I of Petition ‘C,’ it was alleged that the minor had committed a burglary in violation of Penal Code section 459. In paragraph II, the minor was charged with unlawfully taking temporary custody of a vehicle which he did not own, a violation of Vehicle Code section 10851. In paragraph III, the minor was charged with rape by threat of great bodily harm, in violation of Penal Code section 261.3. In paragraph IV, the minor was charged with robbery in violation of Penal Code section 211.

The minor denied the allegations set forth in the petitions. Pursuant to Evidence Code sections 703, 952 and 1017, a physician was appointed to examine the minor.

At the adjudication hearing on Petition ‘A,’ a motion to suppress evidence was made and denied. The court (a referee) found the allegations of paragraph I to be true and sustained the petition as to that paragraph, but dismissed paragraphs II and III with prejudice, and dismissed paragraph IV in the interest of justice.

At the adjudication hearing on Petition ‘C,’ before a referee, the minor's motion to dismiss pursuant to Penal Code section 1118 was denied; the court found the allegations of paragraphs I and III to be true, and sustained the petition to that extent. The allegations of paragraph II were found not to be true, and paragraph IV was dismissed in the interest of justice.

At the consolidated disposition hearing on Petitions 'A' and ‘C,’ the minor was declared a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and, after the completion of a diagnostic study by the Youth Authority, was ordered committed to the Camp Community Placement Program.

The minor's application for rehearing of both petitions was granted as to paragraph I of Petition ‘C’ only. Paragraph I of Petition ‘C’ was dismissed in the interest of justice on the ground that the corpus delicti of the burglary had not been independently established.

The minor, through his mother, has appealed from the orders of the juvenile court sustaining portions of Petitions ‘A’ and ‘C,’ declaring the minor a ward of the court, and denying in part his application for a rehearing.

Petition ‘A’

On February 10, 1976, Claire Beckstrom of 840 North Orange Blossom in La Puente locked and left his home at 11:30 a. m. When he returned home at 3 p. m., he discovered that the bedrooms in the house had been ransacked, and that egress to the house had apparently been achieved by ripping a window screen on a window in the kitchen.

Beckstrom noted that three watches, a ring, a movie camera and a lighter were missing; he estimated the value of these items at $1,000. He next saw these items several days later at the sheriff's department.

At 1 p. m. on February 10, 1976, California Highway Patrol Officer Joy was patrolling in the Baldwin Park-La Puente area. He saw the minor and another youth, both black, walking eastbound on Rath Street some 150 feet west of the intersection of that street with Mayland. As he observed the two boys, Officer Joy remembered a conversaion he had had the day before with Deputy Sheriff Popoff; Popoff had told him that five burglary calls had been received from the Mayland-Rath area, but no one had been able to apprehend the three black males suspected of committing these crimes. Officer Joy drove northbound on Mayland, made a U-turn and returned to the intersection of Mayland and Rath. At this point he saw only one of the boys, standing on the corner. Officer Joy again drove off, but returned to the area, keeping in mind, according to his testimony, that juveniles are involved in the commission of crimes when not in school as they should be.

When he returned the second time, Officer Joy saw that the two boys were again together, walking southbound on Mayland. He stopped them, and started asking them questions. He asked them where they lived; the minor first said he lived on Millbury, but then stated he lived on Vineland. Neither had any identification on his person. When asked about school, the minor stated he went to junior high school but had not wanted to go that day. Asked where he was going, the minor stated he was just following his friend.

The minor's companion stated that he was on his way to ‘continuation’ school; Officer Joy was certain that school was out for the day.

Asked what they were doing on the corner, the minor pointed to a particular house and stated that he had been visiting a friend named Elmer. Officer Joy asked whether ‘Elmer’ was white or black; the minor said ‘[h]e's Mexican.’ Officer Joy, who was familiar with the area knew that the house indicated by the minor was occupied by a male Caucasian. Officer Joy testified that, in addition, he was suspicious because he had never known a Mexican by the name of Elmer.

Officer Joy's questioning continued. The minor denied walking on Rath where the officer had first seen him. Officer Joy notified his dispatcher to ask that a deputy sheriff who knew about the recent Mayland-Rath ‘crime wave’ come to the scene, which was four or five blocks from Claire Beckstrom's house.

Deputy Sheriff Dineen arrived; the minor told him his name, and Dineen remembered it as belonging to a person wanted on suspicion of burglary. He then arrested the minor and transported him to a sheriff's substation, where the minor was booked. Pursuant to the arrest, the minor was searched and some of the Beckstrom missing property was found on the minor's person. The minor stated that the items found on his person had been given to him by his mother.

The minor's mother testified that she did not know anything about the stolen property introduced into evidence, but knew that she had not given any of it to her son. She also testified that she believed the minor would know it was wrong to enter another person's home without permission.

The minor contends on this appeal that his motion to suppress evidence should have been granted, because there was insufficient cause for Officer Joy to detain him and his companion. Hence, the detention, subsequent arrest and search were unlawful, a violation of the minor's rights under the Fourth Amendment to the United States Constitution and under comparable provisions of the California Constitution as well.

The Attorney General argues that the initial encounter Officer Joy had with the minor was so brief that it does not qualify as a detention, noting that at no time did the minor indicate his desire to leave. Further, if viewed as a detention, it is asserted that it was justified by Officer Joy's reasonable suspicion of criminal activity.

In Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889, the United States Supreme Court held that circumstances short of probable cause to make an arrest might warrant a temporary detention of a citizen by the police for the purpose of investigating possible criminal activity without violating any constitutional guarantees. This principle already had been recognized and accepted in California. In People v. Mickelson (1963) 59 Cal.2d 448, 452, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660, it was said: ‘We do not believe that our rule permitting temporary detention for questioning conflicts with the Fourth Amendment. It strikes a balance between a person's interest in immunity from police interference and the community's interest in law enforcement. It wards of pressure to equate reasonable cause to investigate with reasonable cause to arrest, thus protecting the innocent from the risk of arrest when no more than reasonable investigation is justified.’

The Terry court spoke of an ‘objective standard’ to be applied in judicial review of the conduct of the police, in determining whether a detention to investigate circumstances was justified. This standard was described in People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 292, 396 P.2d 706, 708, as justifying police detention only when ‘the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of those duties.’

Further clarification of this principle was set forth in Irwin v. Superior Court (1969) 1 Cal.3d 423, 426–427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 14, where it was said that the circumstances justifying detention ‘must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. . . . [¶] [A] detention based on ‘mere hunch’ is unlawful [citation], even though the officer may have acted in good faith [citation]. There must be a ‘rational suspicion by the peace officer that some activity out of the ordinary is or has taken place . . . some indication to connect the person under suspicion with the unusual activity. . . . [and] some suggestion that the activity is related to crime.’ [Citation.] Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.' (Emphasis added.) (See also, People v. Moore (1968) 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800; People v. Henze (1967) 253 Cal.App.2d 986, 61 Cal.Rptr. 545; People v. Robles (1972) 28 Cal.App.3d 739, 744, 104 Cal.Rptr. 907; and Barber v. Superior Court (1973) 30 Cal.App.3d 326, 106 Cal.Rptr. 304.)

What constitutes sufficiently suspicious circumstances connected with the detained person is well illustrated in such cases as People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 524 P.2d 353, where the police detained a car and its occupants due to the fact that their description matched that of a vehicle and persons suspected of specific criminal activity, and People v. Harris (1975) 15 Cal.3d 384, 388–389, 124 Cal.Rptr. 536, 540 P.2d 632, where defendant was detained for questioning when he was discovered at night in an area where a homeowner had observed a burglary in progress as he returned to his residence, and thereafter alerted the police.

Some recent Court of Appeal cases have emphasized, as an element justifying detention, that the detention occurred in what the police describe as a ‘high crime area.’ This term has been left undefined; the acceptance of it appears to have resulted in a relaxation of the requirement that there be a rational connection between suspected criminal activity and the detained person. In People v. Moore, supra, 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800, the California Supreme Court rejected the ‘high crime area’ argument as the basis for a detention during daylight hours of a person seen by the narcotics agents to be behaving ‘suspiciously’ in an area known by such agents to be inhabited by narcotics pushers and addicts.

In the case at bench, we deal first with the Attorney General's stated position that the brief and assertedly casual nature of Officer Joy's intitial encounter with the minor rendered it something less than a detention by a police officer, and one requiring no justification at all. We know of no authority which has added another classification to police-citizen contacts which is so nonintrusive that, under any circumstances, the Fourth Amendment does not apply. When a police officer stops a citizen for conversation while the officer is patrolling the public streets, the result is a detention, whether or not the citizen so detained evidences a desire to leave the situation.

Thus, in the instant case, it is necessary to apply the objective standard measuring detention-justification to the facts before us. Officer Joy testified that he had heard from another police officer that some burglaries had been occurring in the Mayland-Rath area, and that it was suspected that the perpertrators were black males—three in number. As we previously have discussed herein, identification of an area as a place where crimes are being committed does not in and of itself justify detention of persons found in the area.

At issue, then, is whether a general description of suspects as three black males justifies detention of every black male found in the area. We think not.

The detention involved in the case before us occurred at midday in a residential neighborhood. The minor and his companion were observed walking together on the public street. At one point during Officer Joy's surveillance of them, they had parted company; later, they were together again. To Officer Joy, this suggested that one person had been acting as a ‘lookout’ for the other, but, objectively speaking, there was nothing about the conduct described that distinguished it from the innocent conduct of any other citizen or citizens that might be on the street—except that these citizens were minors and were black. Officer Joy's speculation about their school attendance adds nothing to the rationality of his suspicions. There is nothing particularly unusual about schoolage children being on the street during the noon hour, nor was Officer Joy a truant officer. Officer Joy testified that he was aware that juveniles often commit crimes when they are supposed to be in school. This suspicious state of mind does not satisfy the objectivestandard basis for detaining juveniles who appear to be doing nothing unlawful.

The Attorney General relies on such cases as People v. Higbee (1974) 37 Cal.App.3d 944, 112 Cal.Rptr. 690 in support of his contention that, while suspicious circumstances were not ‘abundant’ in the case at bench, there was enough to justify detention of this minor. In Higbee, all that the defendant was doing was sitting on his motorcycle in a ‘high crime area.’ The appellate court found this conduct sufficient to justify police detention by an officer who said he did not recognize defendant as someone he knew. We agree that if Higbee is the law, every citizen whose face is unfamiliar to the police officer and who is doing absolutely nothing illegal may be detained if he happens to be present in a neighborhood labeled by the detaining police officer as a high crime area. We reject the Higbee view as untenable and indefensible in light of Terry, Irwin and Moore. We are confident that more is required than the sparse set of circumstances outlined in Higbee. (See, also, People v. Bloom (1969) 270 Cal.App.2d 731, 76 Cal.Rptr. 137 and People v. Courtney (1970) 11 Cal.App.3d 1185, 90 Cal.Rptr. 370.)

On the basis of the record before us, we have concluded, upon what we regard as the prevailing law, that Officer Joy had no justification for detaining the minor involved herein. With respect to Petition ‘A,’ the minor's motion to suppress evidence should have been granted. Since there was insufficient legally obtained evidence to support the juvenile court's finding that paragraph I of Petition ‘A’ was true, we reverse as to the order involving that petition.

Petition ‘C’

At about 8 p. m. on February 26, 1976, Denise Rogers, aged eighteen, was walking near the 800 block on Big Dalton Avenue in Valinda, trying to sell encyclopedias door to door. The area was dark, and one with which she was unfamiliar.

She testified that she was seized from behind by a young black male she identified as the minor.¹ Denise Rogers further testified that the minor placed a ten-inch knife to her throat and propelled her half a block away to a secluded spot where he engaged in forcible sexual relations with her for three to five minutes. After he had reached his climax, he asked Denise if she was going to call the police; Denise told him she would not, and the minor ran off. On cross-examination, Denise related the conversations she had had with the minor during these events; she testified that she asked the minor how old he was, because he looked ‘awful young.’ She told the minor that she was 18; he stated he was 15. The minor also asked her if she had had previous sexual experience, and threatened her anew with the knife until she told him.

After the minor had departed, Denise screamed for help, and encountered a Mr. Barbosa, who lived in the neighborhood. She told him what had occurred, and he directed her to his home, where she called the police. Denise gave a description of her attacker to the police; she told them he was a slender, dark-skinned young male with a short Afro hairstyle, approximately 5′4″ in height and weighing 110 pounds. She admitted at trial that she had previously made the statement that she found it difficult to tell one black person from another.

Denise was subsequently examined at a hospital by a physician. Slides were taken (established at trial by stipulation) and were examined by Criminalist Warren Best, who testified that he had found both seminal fluid and sperm thereon. He estimated that a period of not more than six hours had elapsed between the intercourse and the time the specimens were taken for the slides. The victim testified that she had not had sexual intercourse with anyone for at least sixteen hours before the attack on her by the minor.

Petition ‘C’ was heard after the hearing on Petition ‘A’ had been completed. Nothing in the record indicates that counsel entered into a stipulation that evidence in the first proceeding could be received for the purposes of the second proceeding. Trial counsel for the minor questioned whether there had been sufficient evidence adduced showing that the minor understood the wrongfulness of his acts (Pen.Code, § 26); the prosecution was allowed to reopen for the purpose of offering proof in this regard, and the minor's mother, Ruth McNair, was called to testify. She stated that she did not believe that her thirteen-year old son was capable of having sexual intercourse, forcible or otherwise. She testified that she did not know if her son knew that rape was wrong; she stated that every time she had tried to talk to him about sex he ducked his head and was embarrassed.

The referee then expressed the opinion that there was sufficient information before him to support his determination that the minor did have knowledge of the wrongfulness of his conduct. The referee stated: ‘Between the testimony of the mother this time and the last time . . . I think the burden [of proving the minor's knowledge of wrongfulness] has been met. [¶] Motion is denied.’

The referee ultimately found the allegation of forcible rape to be true, and the minor has appealed from that adjudication.

The minor contends that the recond contains insufficient evidence that he knew the wrongfulness of his act in committing the forcible rape of Denise Rogers. He also argues that it was error for the referee to rely in any respect on evidence which had been adduced at the earlier independent adjudicatory hearing on Petition ‘A.’

The resolution of these issues requires some background discussion, as they are intertwined. Penal Code section 26 provides, in pertinent part that ‘[a]ll 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.’ (Emphasis added.) Penal Code section 262 provides: ‘No conviction for rape can be had against one who was under the age of fourteen years at the time of the act alleged, unless his physical ability to accomplish penetration is proved as an independent fact, and beyond a reasonable doubt.’ (Emphasis added.) Thus, when a minor under the age of fourteen is charged with rape, the prosecution must prove two kinds of capability: the capacity for understanding the wrongfulness of the conduct and the youthful offender's physical capacity to commit the act. The use of the word ‘independent’ suggests that it cannot be proved merely by proving the occurrence of the criminal events, i. e., by the victim's testimony.

The impact of Penal Code section 26 on proceedings in the juvenile court, brought pursuant to Welfare and Institutions Code section 602, was explored by the California Supreme Court in the case of In re Gladys R. (1970) 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127, which involved a twelve-year old girl with a mental age of seven. She had been adjudicated a ward pursuant to section 602; the Supreme Court reversed, saying: ‘As we observed in People v. Lara (1967) 67 Cal.2d 365, 380, 62 Cal.Rptr. 586, 432 P.2d 202, section 26 plays a very definite role in the overall system of protections afforded to minors under the criminal law and under our special juvenile court system.’ (In re Gladys R., supra, 1 Cal.3d 855, at p. 864, 83 Cal.Rptr. 671, at p. 678, 464 P.2d 127, at p. 134; fn. omitted.) The Gladys R. Court also stated. ‘Section 26 stands to protect . . . young people . . . from the harsh strictures of section 602 [which provides for wardship when a minor is found to have violated the law]. Only if the age, experience, knowledge, and conduct of the child demonstrate by clear proof that he has [knowingly] violated a criminal law should he be declared a ward of the court under section 602.’ (Id. at 867, 83 Cal.Rptr. at 680, 464 P.2d at 136.)²

What constitutes the ‘clear proof’ spoken of in Gladys R., insofar as we have been able to discover, has not been clearly defined in the case law since that decision. In In re Michael B. (1975) 44 Cal.App.3d 443, 118 Cal.Rptr. 685, a nine-year old boy admitted that he had broken into an automobile and had taken a package of cigarettes. He stated ‘yes' when he was asked if he knew the difference between right and wrong, and if he knew that it was wrong to steal. No other evidence was adduced on the subject of the boy's knowledge of the wrongfulness of his conduct. The Michael B. court reversed the juvenile court's adjudication of wardship, noting that no clear proof had been presented to meet the Gladys R. requirement, and further observing that there were other sections of the Welfare and Institutions Code³ that were possibly suitable and applicable to the minor's situation; a section 602 wardship adjudication was termed a ‘stigma.’

The term ‘clear proof,’ as used in Penal Code section 26, appears to us to mean an application of the clear-and-convincing-proof burden of proof standard—less than ‘proof beyond a reasonable doubt,’ but more than ‘a preponderance of the evidence.’ (See Evid.Code, § 115.) Implicit in the Gladys R. interpretation of Penal Code section 26 is that the burden of meeting this requirement of ‘clear proof’ is on the prosecution—a burden to overcome the presumption created by that section that a child under the age of fourteen does not appreciate the wrongfulness of his or her conduct.

The type of clear proof that may be adduced to sustain the burden of proof has not been set forth with any degree of specificity by the decisional law. An example of the kinds of evidence that would be most helpful to the juvenile court in this regard may be found in In re Roderick P. (1972) 7 Cal.3d 801, 103 Cal.Rptr. 425, 500 P.2d 1 which involved a retarded youngster of fourteen. In that case, there was testimony adduced from school personnel and a psychiatrist concerning the child's capabilities. Such evidence would have been pertinent and helpful in the case at bench.

Here, however, we have only the testimony of the minor's mother—hardly a disinterested witness—as to what type of guidance, moral or otherwise, she had attempted to give the minor. Even assuming that a mother's testimony would be sufficient, the mother here offered nothing to show that the minor had requisite understanding of sexual misconduct. Neither the custodial parent's testimony, which is likely to be self-serving, nor the minor's statements (In re Michael B.) describing his understanding, are sufficient to establish this important element; more objective proof is required. The Attorney General argues that such a determination may be made by weighing the nature and the circumstances of the crime itself. If the clearproof-of-knowledge requirement may be met merely by proof of commission of the act element of the crime, the requirement becomes meaningless. As in the case of adults operating with diminished capacity, a minor may conduct himself in a criminal manner with a hopelessly confused state of mind, particularly in the area of sexual activity, which has always been a source of particular concern to the emerging adolescent.

We conclude that the record before us contains no evidence that establishes proof of knowledge by the clear-and-convincing-proof burden of proof standard as required by the Gladys R. court. The insufficiency was compounded by the fact that the referee did not rely solely on the evidence adduced at the hearing on Petition ‘C,’ but additionally, considered evidence adduced at an independent previous hearing.

The procedure thereby employed was blatantly erroneous as a general legal procedure and, particularly, in a Gladys R. determination.

Evidence Code section 1200 defines hearsay evidence as evidence ‘of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.’ (Emphasis added.) The section further provides that ‘[e]xcept as provided by law, hearsay evidence is inadmissible.’

The referee, in effect, took judicial notice of the mother's prior testimony, which was hearsay insofar as this hearing with respect to Petition ‘C’ was concerned. As hearsay evidence, it was inadmissible unless satisfying the requirements of some hearsay exception. We know of no exception to the hearsay rule that would cover the mother's prior testimony. Since she was not unavailable as a witness, the former testimony exception provided by Evidence Code section 1291 was not applicable.

The juvenile court's taking judicial notice of inadmissible hearsay evidence is, in and of itself, error. But it takes on a particularly serious aspect when it is employed in making a Gladys R. determination. That holding contemplates that a determination of wrongful knowledge must be made with respect to each and every charge of criminal law violation alleged against a minor under fourteen years of age. Knowing that it is wrong to steal is not the equivalent of knowing it is wrong to commit forcible rape. Each charge of criminal law violation requires the Gladys R. determination, made upon the basis of evidence adduced at the hearing at which the charge is adjudicated.

We note that no evidence—independent of the circumstances of the crime—was introduced regarding the minor's physical capacity to commit rape. This, too, renders the record before us insufficient to support the trial court's adjudication of wardship under section 602.

The orders from which the appeal has been taken are reversed.

FOOTNOTES

1.  Denise Rogers identified the minor in court; there was no exploration of whether in fact she had made a pre-trial identification preceding the filing of the charges against him. She did testify that she thought she had seen him earlier in the evening of February 26, sitting with a group of people in front of a residence where she was walking.

2.  The Gladys R. court pointed out that ‘[i]f 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 [Welf. & Inst.Code] and 26 [Pen.Code], the court might well declare the child a ward under section 600 or 601 [Welf. & Inst.Code]. These latter provisions carry far less severe consequences for the liberty and life of the child.’ (In re Gladys R., supra, 1 Cal.3d 855, at p. 865, 83 Cal.Rptr. 671, at p. 679, 464 P.2d 127, at p. 135, fn. omitted.)

3.  The sections referred to are sections 600 and 601. Section 600 has been repealed, and replaced by section 300 of the Welfare and Institutions Code. (See Stats.1976, c. 1068, p. 4469, § 6.)

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., and DUNN, J., concur.