In re Jonathan H.

Filed 7/30/07 In re Jonathan H. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard E. Behn, Judge. Affirmed.

Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Cheryl Sueing-Jones, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

The juvenile court found Jonathan H. committed battery and declared him a ward of the court pursuant to Welfare and Institutions Code section 602. Minor argues the court erred because the prosecution did not prove that he knew the wrongfulness of his acts. For the reasons expressed below, we affirm.

I

Facts and Procedural Background

On March 9, 2006, 10-year-old Kyle R. was walking home from school when he was pushed to the ground from behind. Minor leaped on Kyles back, pulled out scissors and said, Suck my dick, bitch, suck my dick. Kyles friend, Wayne, told minor to get off Kyles back and that [it was] not cool. When a school official called out Kyles name, minor ran away. At the time of the incident, minor was 12 years and six months old.

Minor testified he and several of his friends were walking home when two of his cohorts tackled Kyle. He ran to Kyles aid because he thought Kyle had been injured. Minor admitted he carried scissors, but claimed they were for making paper airplanes. He grabbed Kyle by the shoulders with the scissors in his hand and attempted to help him up, but Kyle pushed him away.

Following a hearing in July 2006, the juvenile court found there was circumstantial evidence [minor] knew that what he was doing was wrong once Wayne told him to get off and that wasnt cool. The court placed minor on probation on various terms and conditions, and this appeal followed.

II

Discussion

Minor challenges the sufficiency of the evidence to support a finding that he knew the wrongfulness of his conduct, as required by Penal Code section 26. Section 26 provides 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.

The juvenile courts finding will be affirmed if supported by substantial evidence. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) In applying the substantial evidence test, it is not this courts task to reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Rather, our duty is solely to ascertain whether there is reasonable, credible evidence of solid value to support the conclusion of the juvenile court. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) All conflicts are resolved in favor of the judgment and the issues of fact and credibility are questions for the court below. (Ibid.) The trier of fact, not the appellate court, must be convinced of the minors guilt; hence, if the circumstances and reasonable inferences justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal. (Jerry M., at p. 298.)

Case law has established that the closer the child is to the age of 14, the more likely he is able to appreciate the wrongfulness of his acts. (People v. Lewis (2001) 26 Cal.4th 334, 379.) According to the common law, a child under the age of seven has no criminal capacity; one who has reached the age of fourteen has the same criminal capacity as an adult . . . ; while between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity and conviction of crime is permitted only upon clear proof of such precocity as to establish a real appreciation of the wrong done. This presumption is extremely strong at the age of seven and diminishes gradually until it disappears entirely at the age of fourteen . . . . (Perkins, Criminal Law (2d ed. 1969) p. 837, fns. omitted.)

The childs knowledge of the wrongfulness of an act may be inferred from circumstantial evidence. (In re Tony C. (1978) 21 Cal.3d 888, 900; In re Paul C. (1990) 221 Cal.App.3d 43, 52.) A trier of fact making a [Penal Code] section 26 determination does not attempt to read the mind of the minor, but considers the objective attendant circumstances of the crime such as its preparation, the method of its commission, and its concealment to determine whether the minor understood the wrongfulness of his or her conduct. (People v. Lewis (2001) 26 Cal.4th334, 379.)

Here, the evidence showed minor aborted his attack and fled the scene when a school supervisor intervened. This fact alone provides substantial evidence minor knew his conduct was wrong. (In re Clyde H. (1979) 92 Cal.App.3d 338, 344 [flight shows consciousness of wrongdoing].) The trial court also could reasonably conclude minor falsely testified to conceal his role in the assault because he understood the wrongfulness of his conduct. Shifting blame to others and minimizing the defendants own involvement suggests minor knew his conduct was wrong. (In re Cindy E. (1978) 83 Cal.App.3d 393, 400.)

The primary case cited by minor is distinguishable. In In re Michael B. (1975) 44 Cal.App.3d 443, the appellate court found that a nine-year-olds admission he knew it was wrong to break into cars and steal failed to demonstrate he appreciated the wrongfulness of his acts: The only evidence on that issue was the brief statement of the police officer that Michael said yes when asked if he knew the difference between right and wrong. Penal Code section 26 requires more substantial evidence than that to clearly prove that a nine-year-old boy, no more than a third-grade pupil, harbored the necessary capacity to commit a serious criminal offense. No such substantial evidence was presented here, nor do the nature and circumstances of the crime itself furnish that clear proof of knowledge of the wrongfulness of the conduct that is required by the statute. (Id. at p. 446.) Here, minor was 12 years and six months old at the time of the incident. Minors flight demonstrated he understood what most youths do in his age group it is wrong to assault another child with a weapon. In sum, substantial evidence supports the trial courts finding that minor knew his conduct was wrong.

III

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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