In re J.M.





Filed 12/9/11 In re J.M. CA1/5






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re J.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant.	A131318 (Contra Costa County Super. Ct. No. J0201814)

J.M. appeals from orders of detention, jurisdiction, and disposition in a proceeding commenced under Welfare and Institutions Code section 602. He contends the juvenile court erred in finding that he understood the wrongfulness of his conduct when, finding himself unable to telephone his mother from his group home, he threw the phone against a wall and broke a desk in two. We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
A. Prior Proceeding
In a prior proceeding under Welfare and Institutions Code section 602, a juvenile wardship petition filed on April 2, 2010, charged appellant with three offenses as to victim Adam Reeb: criminal threats (Pen. Code, § 422); assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); and battery involving serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)).
As set forth in a probation officer’s report, the underlying incident occurred as follows. “[O]n March 31, 2010 . . . deputies were dispatched to Milhous Form School regarding an assault. Upon arriving, deputies were notified that staff member Adam Reeb was en route to the hospital for treatment and [appellant] was being detained. [¶] Deputies spoke with staff member Richard Tully who reported that [appellant]’s MP3 player was being kept inside a locked cabinet inside the staff office. [Appellant] wanted his MP3 player and did not want to listen to staff members when they told him he could not have it. [Appellant] entered the staff office and attempted to break into the locked cabinet by pulling on the hinges. Tully reported that both he and Adam Reeb attempted to calm [appellant] down but upon doing so, [appellant] picked up a pair of broken pruning loppers and held them up. [Appellant] then began making threats to the staff members saying if they did not move out of his way, he would hit them. [Appellant] then swung the loppers and hit a light fixture on the ceiling causing the fixture to shatter. As pieces of the fixture fell from the ceiling, a piece of glass lacerated Reeb’s face. Tully reported that the cut on Reeb’s face was severe.”
On April 6, 2010, the petition was amended to add a fourth count for misdemeanor battery. (Pen. Code, § 242.) Appellant then admitted count four, and the court dismissed the other counts. Appellant’s case was transferred to Contra Costa County for disposition and further proceedings, pursuant to Welfare and Institutions Code section 241.1.
The disposition hearing was held on May 28, 2010. Sallie Leach, the social worker assigned to appellant, testified: “I feel that [appellant] can – he’s capable of great insight into his behaviors . . ..” Leach had known appellant for four years and knew his case and family well. The Contra Costa County juvenile court placed appellant on six months formal probation pursuant to Welfare and Institutions Code section 725.
B. Current Proceeding
The current proceeding was instituted about four months later on September 29, 2010. A supplemental juvenile wardship petition, filed under Welfare and Institutions Code section 602, subdivision (a), charged appellant with vandalism upon the property of “Browning House” (Pen. Code, § 594, subd. (b)(1)).
A hearing on the supplemental petition was held on November 9, 2010. The juvenile court noted it had been informed of another incident on November 4, in which appellant “got angry when the staff didn’t give him his cell phone right away” and “started banging on the office door, grabbed a chair and smashed a kitchen window, took a dish dryer and threw it across the hallway.” On another occasion, the court noted, appellant “admitted that he and other residents went on a rampage and broke out two windows in front of the facility” and “punched wildly and kicked a staff member.” The juvenile court revoked the nonwardship probation granted in the prior proceeding and ordered appellant into custody on the basis of the supplemental petition.
At the ensuing detention hearing on November 12, 2010, appellant was released to the group home, with a contested jurisdictional hearing set for November 16, 2010.
1. Jurisdictional Order
The contested jurisdictional hearing took place on November 16, 2010. Erika Hawkins, appellant’s counselor at Browning House, testified that the incident underlying the supplemental petition occurred as follows.
On August 3, 2010, appellant had been a resident at Browning House, a residential treatment center, for approximately three months. At 5:30 p.m., another resident called appellant downstairs. Hawkins directed appellant to remain upstairs, but he ignored her direction and went downstairs anyway. He returned a couple of minutes later with a bruise on his arm; he told Hawkins that one of his peers hit him and he wanted to call his mother. Without permission, appellant went to the staff office and attempted to make the call. The phone he tried to use was not working, however, so he threw it against the wall. He then took the battery out of the phone and threw it against the wall as well. Appellant next “flipped over the desk and stomped over the desk,” breaking it in half. Appellant then went to his room.
Hawkins later discussed the incident with appellant, and appellant indicated that he knew what he did was wrong.[1] Appellant was aged 13 years, one month, on the day of the incident.
The juvenile court sustained the petition as to the offense of vandalism with damages under $400 (Pen. Code, § 594, subd. (a)). The court found by clear and convincing evidence that appellant knew what he did was wrong at the time he did it.
2. Disposition Order
The disposition hearing was held on December 14, 2010. The court announced that it had received a probation report indicating that appellant had been involved in yet another incident: on December 7, 2010, when told to complete his chores at the group home, appellant went to his room, banged on the wall, threw items against the door, broke the dresser drawer, came out, broke a chess set by smashing it with his feet, removed Christmas ornaments from a tree, and threw them at another resident.
The juvenile court asked appellant why he kept “doing this stuff.” The following exchange occurred: “[APPELLANT]: Sometimes I don’t know what I’m doing. I know it’s not right, so . . . [¶] THE COURT: But you know it’s not right when you’re doing it, right‌ [¶] [APPELLANT]: At the time I don’t think, but afterwards I do. [¶] THE COURT: Well, would you like to live with 15 other kids who behave like that all the time and broke your stuff‌ [¶] [APPELLANT]: No. [¶] THE COURT: Maybe went into your room and grabbed all your stuff and broke it‌ [¶] [APPELLANT]: No.”
The court continued appellant on formal nonwardship probation for an additional six months, ordered appellant to perform 25 hours of community service at the group home, and imposed a restitution fine. Additionally, the court ordered appellant to participate in individual counseling and write a letter of apology to the group home.
Appellant filed an appeal from the detention order of November 9, 2010, the jurisdictional order of November 16, 2010, and the disposition order of December 14, 2010.
II. DISCUSSION
Although appellant’s notice of appeal refers to the detention order and the disposition order, the sole contention in appellant’s appellate brief pertains to the juvenile court’s finding at the jurisdictional hearing. Specifically, appellant contends the court erred in concluding that he, a juvenile under the age of 14, had the capacity to form criminal intent for purposes of Penal Code section 26.
A. Law
Penal Code section 26 provides in relevant part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . 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.”
Thus, when a child under 14 years old is charged with a criminal offense, he may not be found guilty of the offense unless the prosecution proves that he understood the wrongfulness of his conduct. (In re Manuel L. (1994) 7 Cal.4th 229, 232-239.) The child’s understanding of wrongfulness must be shown by clear and convincing evidence. (In re Jerry M. (1997) 59 Cal.App.4th 289, 297 (Jerry M.).) We affirm a finding that the child understood the wrongfulness of his conduct if the finding is supported by substantial evidence. (Id. at pp. 297-298.)
Factors pertinent to whether the child understood the wrongfulness of his or her conduct include the child’s age, experience, and understanding, as well as the circumstances of the offense. (Jerry M., supra, 59 Cal.App.4th at p. 298.) Generally, the closer the juvenile is to the age of 14, the more likely it is that the child appreciates the wrongfulness of his or her actions. (In re Marven C. (1995) 33 Cal.App.4th 482, 487.)
B. Application
Substantial evidence supports the juvenile court’s finding that the prosecutor established, by clear and convincing evidence, that appellant understood the wrongfulness of his conduct when he violated Penal Code section 594, subdivision (a), by throwing the group home’s phone against the wall and stomping on its desk until the desk broke in two.
Appellant was 13 years old at the time of the offense. He was not so young as to be inherently incapable of understanding that it is wrong to engage in physical violence by throwing a phone at a wall and breaking a desk in half. In addition, counselor Hawkins testified without contradiction that she discussed the incident with appellant, and the record may reasonably be read to infer that appellant expressly admitted to Hawkins that his acts were wrongful and he knew they were wrongful.[2]
Appellant argues that the court’s finding was not supported by substantial evidence because the court relied solely on Hawkins’ testimony, and Hawkins’ testimony shows only that appellant realized after the incident that his behavior was inappropriate, not that he appreciated the wrongfulness of his conduct at the time he was throwing the phone and its battery against the wall, and flipping over and stomping on a desk.
We disagree. From the fact that appellant understood shortly after the incident that his actions were wrong, it may reasonably be inferred that he also understood that his actions were wrong at the time of the incident. There is nothing in the record of the jurisdictional hearing to suggest that appellant, aged 13, did not understand that throwing the home’s phone and battery against the wall and flipping over and breaking the home’s desk were wrongful.
Appellant next argues that statements he made to the juvenile court suggest he did not understand the wrongfulness of his conduct. According to appellant, when the court asked him why he continued to act out and destroy the property of others, he responded “Sometimes I don’t know what I’m doing.” Actually, however, appellant told the court: “Sometimes I don’t know what I’m doing. I know it’s not right.” (Italics added.) Therefore, appellant’s statement to the court confirms his realization that his conduct is “not right” – in other words, wrongful – even though he might not understand at the time why he engages in it.
Similarly, appellant argues that he told the court the following, in response to the court’s inquiry whether he knew his actions were wrong when he did them: “At the time I don’t think, but afterwards I do.” The court, however, was not required to interpret this ambiguous statement to mean that appellant did not know the wrongfulness of his conduct at the time he was perpetrating it, or to accept any such self-serving statement as true. Appellant’s statement could reasonably be construed to mean that he just did not think about the wrongfulness of his acts when he did them, not that he did not understand that the acts were wrongful until informed thereafter. We defer to the juvenile court’s credibility determinations, and there is nothing in the record to indicate that the court erred in this regard.
Moreover, all of these statements to the court were made by appellant at the disposition hearing, not the earlier jurisdictional hearing at which the court made the challenged finding. Appellant does not explain how statements made after a ruling can establish that the ruling was erroneous; nor does he assert that he requested the court to revisit the Penal Code section 26 issue after the statements were made. In short, appellant fails to establish error on this ground.
Appellant further contends the record shows that his medication regimen was “not working” and he was “struggl[ing] with many mental health challenges,” including “issues . . . dealing with control and attention and focus.” However, appellant did not argue at the jurisdictional hearing that the requisites of Penal Code section 26 were unmet on this basis. Indeed, appellant’s quotations come from statements made by his attorney at the disposition hearing, not from any evidence presented at the jurisdictional hearing. In any event, there is no competent evidence that any of his medication, mental health issues, or personal history deprived him of the wherewithal to appreciate the wrongfulness of throwing a phone and breaking a desk when he did not get his way.
Lastly, appellant argues that his outburst was spontaneous. His spontaneity, however, does not preclude a finding that he understood the wrongfulness of his actions. When appellant did not get his way, he destroyed someone else’s property by throwing it against a wall and stomping on it. Based on the record presented at the jurisdictional hearing, a 13-year-old in appellant’s circumstances can appreciate the wrongfulness of such an outburst, whether it was premeditated or spontaneous.
Appellant fails to establish error.
III. DISPOSITION
The orders are affirmed.



NEEDHAM, J.


We concur.



JONES, P. J.



SIMONS, J.

---