In re Anthony S.
Filed 1/24/13 In re Anthony S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 FOUR
In re Anthony S., a Person
Coming Under the Juvenile Court Law.
___________________________________
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY
S.,
Defendant and Appellant.
B235812
(Los Angeles County
Super. Ct. No. FJ47647)
APPEAL
from an order of the Superior Court of
County, Robin Miller Sloan, Judge. Affirmed.
Laini
Millar Melnick, 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, Steven D. Matthews, and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Minor Anthony S. appeals from an
order declaring him a ward of the juvenile court under Welfare and Institutions
Code section 602. He argues the trial
court erred in finding he was competent and knew the wrongfulness of his
conduct. We affirm.
On May
26, 2010,
minor pointed a pocket knife at another boy, Thomas J., in a school
bathroom. Minor was 11 years old at the
time. Minor and Thomas were friends and
attended fourth grade.
During the bathroom incident, minor
pushed Thomas against the wall, and held the pocket knife with the blade
showing about eight inches away from Thomas’s face. Minor seemed angry and did not appear to be
playing. Thomas believed minor was
trying to scare him but did not know why.
Thomas was afraid that someone would push minor, or minor would stab him
on purpose, and he would get cut. He
told minor to “take it easy.†When minor
turned to leave, Thomas pushed him because he did not like having a knife
pointed at him. Minor then pointed the
knife at Thomas again.
The next day, minor’s teacher
investigated after learning that minor had brought a knife to school. Minor was questioned by an
administrator. When the teacher asked
him to empty his pockets, he took out the folded pocket knife. He was crying.
A petition was filed alleging minor
committed assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)).
Minor’s counsel declared a doubt about minor’s competency, and the
proceedings were suspended. Experts for
minor and the People testified at the competency hearing. The court found minor competent and set the
matter for adjudication. After hearing
testimony from Thomas and minor’s teacher, the court denied minor’s motion to
dismiss, found minor was aware of the wrongfulness of his conduct, and found
the petition true as a misdemeanor.
Minor was declared a ward of the court and placed home on
probation. This appeal followed.
I
Minor argues the court erred in finding him competent
to proceed. A mentally incompetent adult
defendant cannot be tried, and a child subject to a
due process right to a competency hearing.
(In re Christopher F. (2011)
194 Cal.App.4th 462, 468.) The question
at such a hearing is whether the individual has “sufficient present ability to
consult with his or her lawyer with a reasonable degree of rational
understanding and a rational, as well as a factual understanding of the
proceedings.†(Ibid., citing Dusky v. United
States (1960) 362 U.S. 402 (Dusky).)
Under Welfare and Institutions Code
section 709, proceedings must be suspended if the court finds that substantial
evidence raises a doubt about the minor’s competency. (
shall order that the question of the minor’s competence be determined at a
hearing. The court shall appoint an
expert to evaluate whether the minor suffers from a mental disorder,
developmental disability, developmental immaturity, or other condition and, if
so, whether the condition or conditions impair the minor’s competency. The expert shall have expertise in child and
adolescent development, and training in the forensic evaluation of juveniles,
and shall be familiar with competency standards and accepted criteria used in
evaluating competence.†(
Minor argues that the People’s expert,
Dr. Ronald Markman, was not qualified under Welfare and Institutions Code
section 709, subdivision (b). This
argument is problematic for several reasons.
First, there was no objection to the admission of Dr. Markman’s
report in the juvenile court, and the failure to object forfeits the issue of
the expert’s qualifications on appeal. (
1, 20–21.) Second, the trial court’s
determination that a witness was a qualified expert is reviewed under the
deferential abuse of discretion standard and reversal is warranted only when
the witness clearly lacked qualifications as an expert. (People
v. Wallace (2008) 44 Cal.4th 1032, 1062–1063.) On appeal, minor argues that Dr. Markman’s
testimony and report should be disregarded under the substantial evidence test,
not that the juvenile court abused its discretion in admitting Dr. Markman’s
report into evidence. This is yet
another ground for finding the issue of the expert’s qualifications forfeited
on appeal. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12
[declining to address issue not properly raised in appellant’s opening brief].)
Even were we to consider the issue of
Dr. Markman’s qualifications, we would not agree with minor’s contention that
they do not meet the requirements of Welfare and Institutions Code section 709,
subdivision (b). Dr. Markman testified
that he was a medical doctor with a specialty in forensic psychiatry. He had done thousands of competency
evaluations, of which an estimated ten percent were in juvenile cases. The statute does not require that an expert
focus on juvenile cases or have recent training in juvenile competency. Therefore, Dr. Markman’s testimony that he
did not focus on child evaluations and had not recently undergone competency
training does not defeat his qualifications.
Minor emphasizes Dr. Markman’s
testimony that he was not a neurologist and had not recently reviewed the
significance of frontal lobe development in adolescents with regard to
competency. He contends Dr. Markman was
unaware of recent research on the correlation between age and competency, cited
in Timothy J. v. Superior Court
(2007) 150 Cal.App.4th 847, 860 (Timothy
J.). The court in
held that a minor need not have a mental disorder or developmental disability
to be found incompetent. (
that it did not hold “that age alone may be the basis for a finding of
incompetency,†because competence is affected by many factors. (Ibid.) Similarly, Dr. Markman acknowledged that an
adolescent brain is “still maturing and growing,†but he explained that age is
not the sole determinative factor. Thus,
whether Dr. Markman was up to date on the most recent research in adolescent
brain development is not necessarily fatal to his competency evaluation.
Minor frames the issue on appeal as a
challenge to the sufficiency of the evidence supporting the court’s finding of
competency. He acknowledges that we
review such a finding for substantial evidence.
Under this standard of review, we do not weigh the strength of the
evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Rather, we examine the record in the light
most favorable to the judgment and determine whether a rational trier of fact
could have found minor competent to stand trial. (In re
Christopher F., supra, 194
Cal.App.4th at p. 471, fn. 6.)
Once an expert is found qualified to
testify on an issue, his “degree of knowledge goes more to the weight of the
evidence than its admissibility.†(
38.) Minor, in essence, argues that Dr.
Markman was less qualified than his own expert, Dr. Catherine Scarf, whose
primary focus was the evaluation of children and who attended competency trainings
on a regular basis. But under the
substantial evidence standard of review, we cannot reweigh the evidence based
on the experts’ relative qualifications.
Minor urges us to hold the People
have the burden of proving a child’s competence. The issue was presented in
the court suggested that in the absence of a statute or court rule applicable
to juvenile proceedings, “it is not immediately obvious the burden of proving a
child’s competence . . . should not rest with the People, rather than requiring
the child, like an adult defendant, to prove incompetence.†(Id.
at p. 472.) The court declined to
resolve the issue because substantial evidence supported the juvenile court’s
finding even if the People bore the burden of proof. (Ibid.) The same is true here.
Dr. Markman testified that he
conducted a face-to-face interview with minor to determine his competence under
the standard set out in Dusky,
“sufficient present ability to consult with his or her lawyer with a reasonable
degree of rational understanding and a rational, as well as a factual
understanding of the proceedings[.]†(
p. 468.) He testified that minor
was cooperative and was able to answer questions about the alleged incident in
the school bathroom, which indicated that he would be able to provide that
information to his counsel.
Dr. Markman had no problem communicating with minor during the
interview and did not notice any language disorder. He pointed out that, while minor was not
familiar with legal terminology, he was able to understand legal concepts when
they were rephrased in simpler terms, and he understood he could be held
responsible for his actions as a result of the proceeding.
In contrast, Dr. Scarf testified she
was under the impression minor would not understand legal terms if she
rephrased them, and she did not try to do that, concluding he was incompetent
because he did not know what a plea, a public defender, or a district attorney
was. But ‘“the test for competency in a
juvenile court proceeding does not require a minor to understand the juvenile
delinquency process sufficiently to pass a civics class.â€â€™ (In re
Alejandro G. (2012) 205 Cal.App.4th 472, 479.) The minor’s knowledge of the juvenile
delinquency process is not a factor in determining competency. (Ibid.)
The experts agreed that minor was of
average or below average intelligence, and Dr. Scarf testified he had no mental
retardation. But Dr. Scarf concluded
that minor had a language disorder, as well as comprehension and memory
problems. She also found minor to be
“immature because he was very afraid,†noting in addition that he often
responded to her questions with “I don’t know,†and seemed to have problems
understanding what she said.
The experts appear to have taken
different approaches to testing minor’s competency and to have received
different emotional responses, levels of cooperativeness, and test
results. But Dr. Markman’s testing
conformed to the accepted Dusky standard
of competency, and his conclusion is substantial evidence for the juvenile
court’s finding that minor was competent to stand trial.
II
Minor also contends no substantial
evidence supports the finding that he knew his conduct was wrong. A minor under the age of 14 is presumed
incapable of committing a crime. (Pen.
Code, § 26, subd. One.) This presumption
applies to proceedings under Welfare and Institutions Code section 602. (In re
Gladys R. (1970) 1 Cal.3d 855, 862–867.)
To overcome the presumption, the People must show by clear and
convincing evidence that “the minor appreciated the wrongfulness of the charged
conduct at the time it was committed.†(
232.) The court’s determination may be
based on circumstantial evidence, such as “the minor’s age, experience and
understanding, as well as the circumstances of the offense including its method
of commission and concealment.
[Citation.]†(
289, 298.) We review the record in the
light most favorable to the judgment and affirm the trial court’s finding if
supported by substantial evidence. (
862, 872.)
Minor argues that the only evidence the
People presented on this issue was the testimony of minor’s teacher. The teacher testified she had taught minor
“the difference between right and wrong, . . . what is correct, what shouldn’t
be happening. If you’re feeling
aggravated, what you should and shouldn’t be doing.†Since minor had “gone through L.A. Unified
School District,†and he and his mother had signed the school’s handbook, which
stated a student may be expelled for bringing a weapon to school, the teacher
believed minor knew he could be expelled for his conduct and knew it was wrong
to assault someone with a weapon. The
teacher stated minor had “gotten in trouble . . . before and has known the
consequences.†She also stated there had
been incidents with other students at the school. She was not asked to elaborate on these
statements.
Minor argues the teacher’s testimony
does not establish that minor understood the teacher’s lessons or the school
rules, or that he had prior experience with conduct similar to the alleged
incident. We disagree. Minor considers each piece of evidence in
isolation and draws inferences in his own favor. But the teacher’s testimony, in combination
with other evidence in the record, when properly viewed in the light most
favorable to the judgment, amounts to substantial evidence that minor was aware
his conduct was wrong.
Initially, the claim that his age
places minor “at the younger end of the spectrum†is incorrect since at 11
years of age he was closer to the cut-off age of 14 than most younger children. (Cf., e.g., Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1317
[a three-year-old pulling a trigger]; see also In re Michael B. (1983) 149 Cal.App.3d 1073, 1089–1090 (noting the
significance of the two-year difference between minors charged with homicide
offenses committed at ages nine and 11.)
Minor notes he was enrolled in special education classes with an
Individual Education Plan. But the
record indicates minor’s school performance was satisfactory, and as we already
discussed, he did not suffer from mental retardation. Thus, it is reasonable to infer that he was
aware of the lessons his teacher taught him.
In addition, Dr. Markman testified
minor demonstrated an understanding of right and wrong in relation to the
alleged incident in the school bathroom.
Minor argues that any evidence postdating that incident does not
indicate that he understood his conduct was wrong when it happened. For instance, he claims he cried when he
emptied his pockets on the day after the incident because at that point he
realized he was in trouble, but it would be speculative to infer he was already
aware that his conduct was wrong. The
fact that he cried, coupled with the teacher’s testimony, supports a reasonable
inference that minor’s realization was not instantaneous.
Minor argues that his pointing the
pocket knife at a friend in a bathroom in front of some of his classmates
indicates he did not understand his conduct was wrong. Minor minimizes the testimony that he seemed
angry when he pointed the pocket knife at Thomas and argues that anger does not
indicate awareness of wrongfulness. But
Thomas testified he believed minor was trying to scare him. The sequence of events, particularly his
second pointing of the pocket knife at Thomas after Thomas pushed him, supports
a reasonable inference that minor used the knife purposefully and vindictively,
rather than playfully.
The evidence supports the juvenile
court’s finding that minor was aware of the wrongfulness of his conduct when it
happened.
The order is
affirmed.
EPSTEIN,
P. J.
We
concur:
WILLHITE, J.
SUZUKAWA, J.
