In re J.M.





















Filed 2/4/13 In re J.M. CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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In re J.M., a Person Coming Under the Juvenile Court Law.	B241717
THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant.	(Los Angeles County Super. Ct. No. MJ20687)

APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Robert J.
Totten, Commissioner. Affirmed.



Esther R. Sorkin, under appointment
by the Court of Appeal, for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and Respondent.



__________________________

J.M.
(minor), appeals from a March 8, 2012
order declaring him a ward of the juvenile court pursuant to Welfare and
Institutions Code section 602 based on a finding that he committed an
attempted first degree residential burglary (Pen. Code §§ 664, 459). He contends there was href="http://www.mcmillanlaw.com/">insufficient evidence to support the
finding that he appreciated the wrongfulness of the charged conduct as required
by Penal Code section 26 for persons under the age of 14. At the time of the charged conduct, minor was
13 years 3 months old. We affirm.



FACTUAL AND
PROCEDURAL BACKGROUND



A Welfare and Institutions Code section 602 petition
alleged that on June 10, 2011, minor attempted to break
into Christopher Arterberry’s home.href="#_ftn1" name="_ftnref1" title="">>[1] Viewed in accordance with the usual
rules of appeal (In re Brandon G. (2008)
160 Cal.App.4th 1076, 1079-1080), the evidence established that on June
10, 2011, Arterberry’s primary residence was a house on West 39th Street. A few days before June 10, Arterberry locked
the doors and activated the alarm before leaving his home. He did not return until the morning of June
10, in response to a police request.
Arterberry did not know minor and had not given anyone permission to go
into the house.

Ruth Powell lived next door to
Arterberry. A little before 10:00 a.m. on June 10, Ruth looked
out her window and saw minor and two companions standing in Arterberry’s
driveway, near the fence to his backyard.
None of the three young men was familiar to Ruth and she assumed they were
someone’s grandchildren. A few minutes
later, the sound of pounding and then glass shattering in Arterberry’s backyard
caused Ruth to look out a different window.
This time, she saw minor and his two companions in Arterberry’s
backyard. Minor was at the fence looking
towards the street, but Ruth could not see what his companions were doing. Ruth called 911. Within seconds, a helicopter was hovering
over the house and police officers were there within a minute. Later that morning, police escorted Ruth to a
nearby location where they showed her three people, including minor. She identified minor and one other person as
being in Arterberry’s backyard, but she could not positively identify the third
person.

Responding to the call, police
officer Sunny Sasajima was walking down the driveway toward the tarp-covered
chain link fence separating the driveway from the backyard when he saw minor,
on the backyard side of the fence, pop his head up over the fence, then run
towards the back of the house. As
Sasajima ran towards the fence, he heard someone warn that the police had
arrived. When Sasajima got to the fence,
he saw minor and two companions running towards a fence, at the southwest
corner of the property. As they climbed
over that fence, minor and one of his companions looked back, giving Sasajima
the opportunity to see their faces.
Sasajima radioed his observations to the police helicopter. Sasajima entered the backyard and noticed shattered
glass on the ground beneath a broken window.
Hearing that police officers on the next street had spotted the
suspects, Sasajima ran to that location.
There, Sasajima saw minor and his two companions taken into
custody.

Later that day, police officer Dean
Thompson interviewed minor at the police station. After waiving his Miranda rights,href="#_ftn2"
name="_ftnref2" title="">>[2]
minor told Thompson that he had been skateboarding with friends when “Flores”
said he needed to give some money to minor.
Flores came up with the idea of breaking into the
house.

On March 8, 2012, the court sustained the section 602 petition
and declared minor a ward of the court.
It placed minor home on probation with his mother upon specified
terms. Minor timely appealed.



DISCUSSION



Minor’s
sole contention on appeal is that the
trial court’s finding that he understood the wrongfulness of his conduct, as
required by Penal Code section 26 and In re Gladys R. (1970) 1 Cal.3d 855 (>Gladys R.), was not supported by
substantial evidence.href="#_ftn3"
name="_ftnref3" title="">>[3] He argues that his mother’s testimony to the
effect that she taught him right from wrong and evidence that he ran from the
police were legally insufficient. We
disagree.

Penal Code section 26 excepts
from the general rule that all persons are capable of committing crimes: “[c]hildren 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.” In >Gladys R., supra, our
Supreme Court held, Welfare and Institutions Code “[s]ection 602 should
apply only . . . to those under the age of 14 who clearly
appreciate the wrongfulness of their conduct.”
(Gladys R., supra, 1 Cal.3d
at p. 867.)

Penal Code section 26 creates a presumption that
children under the age of 14 are not capable of appreciating the wrongfulness
of their conduct, a presumption that may be rebutted by clear and convincing
evidence to the contrary. (>People v. Lewis (2001) 26 Cal.4th
334, 378 (Lewis).) Knowledge cannot be inferred from the act
itself, but “ ‘the attendant circumstances of the crime, such as its
preparation, the particular method of its commission, and its concealment’ may
be considered. [Citation.] Moreover, a minor’s ‘age is a basic and
important consideration [citation], and, as recognized by the common law, it is
only reasonable to expect that generally the older a child gets and the closer
[he] approaches the age of 14, the more likely it is that [he] appreciates the
wrongfulness of [his] acts.’
[Citation.]” (>Ibid.)

During the penalty phase of his capital trial, the
defendant in Lewis challenged the
admissibility of evidence that many years earlier he had been declared a ward
of the court when, at the age of 13 years 9 months, he committed a murder by
pouring gasoline and throwing a lighted match into a car in which the victim
was sleeping. Evidence that the
defendant had fled from the scene and then gave conflicting statements to
detectives “constitut[ed] clear proof that defendant knew the wrongfulness of
his act. [Citation.] Moreover, at the
time of the murder defendant was nearly 14 years old, which makes it more
likely that he understood the wrongfulness of his act.” (Lewis,
supra, 26 Cal.4th at p. 379.)

A juvenile court finding that a
minor knew the wrongfulness of his conduct at the time he committed the charged
act is reviewed for substantial evidence.
Under that standard, the appellate court views the evidence in the light
most favorable to the respondent and presumes the existence of every fact the
trier of fact may have deduced from the evidence. (Lewis,
supra, 26 Cal.4th at p. 379.)

Here, minor’s mother testified that she believed that
as of June 10, 2011, the date of the incident, minor knew it was wrong to
break into somebody else’s house because it was common knowledge and was
something that she would have taught him.
Asked how she taught minor right from wrong, she testified, “I mean,
just self-explanatory. . . . [I]f he does something wrong that
he is not supposed to do I am going to correct him. I am going to let him know not to do it no
more and what to do to prevent that.” For
example, after minor was found to have committed misdemeanor vandalism of
school property in April 2011, mother “told him it was wrong. I mean ‑‑ I mean, I am tired of
going to court. Basically, I don’t want
to be involved in this type of stuff.
This is not how I raised my kids and basically what happened was an
accident. So I just told him, you know,
this is what happens. If you get into
trouble, it’s hard to get out of trouble.
You got to be careful what you are doing, the things that you do can lead
you to get in trouble.” This colloquy
followed: “[THE PROSECUTOR]: . . . And with regard to being on somebody
else’s property without permission?
[¶] [MOTHER]: Well, of course, that is automatically
wrong. [¶] [THE PROSECUTOR]: Let me finish, I’ll let you answer. Have you ever taught him it was wrong to do
that? [¶] [MOTHER]:
I never had a problem with that.
I never ‑‑ that never even came up into my head. I don’t deal with people that do things like
that so, no, I never said -- we [did not ever] have a discussion before about
going onto someone else’s property without permission, that he don’t know. [¶]
[THE PROSECUTOR]: What about
taking things from people without permission?
[¶] . . . [¶]
[MOTHER]: If he takes something from somebody, yes. [¶]
[THE PROSECUTOR]: Well, did you
ever tell him it was wrong to steal? [¶] . . .
[¶] [MOTHER]: Of Course.
[¶] . . . [¶]
. . . I would tell him it was wrong to steal.”

The juvenile court concluded that mother’s testimony
about teaching minor right from wrong was by itself sufficient to satisfy >Gladys R. The court also found minor’s understanding of
the wrongfulness of his behavior could be inferred from the fact that he ran
away from the police.

Minor argues on appeal that the mother’s
testimony was conclusory and in some instances she actually denied that she and
minor had discussed the specific subjects asked by the prosecutor. He also argues that children and adults often
have different understanding of what is common sense. We agree with this last point, as that is the
foundation of Penal Code section 26. We
reject the notion mother’s testimony was too vague or otherwise insufficient. Mother taught her son the difference between
right and wrong, that it was wrong to steal, and it was wrong to damage school
property. This evidence, coupled with
minor’s age (13 yrs. 3 mos.) and the evidence of flight, was more than enough
for the juvenile court to find minor appreciated the wrongfulness of his
conduct.href="#_ftn4" name="_ftnref4"
title="">[4]



DISPOSITION



The March
8, 2012 order declaring minor a ward of the court is affirmed.







RUBIN,
J.

WE CONCUR:





BIGELOW,
P. J. GRIMES,
J.