In re Patrick N.

Filed 9/29/06 In re Patrick N. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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The Sacramento County Juvenile Court found that minor Patrick N. was a juvenile who came within the provisions of Welfare and Institutions Code section 602 in that he possessed an alcoholic beverage in a public place. (Bus. & Prof. Code, § 25662, subd. (a).) He was placed on six months of informal probation, ordered to complete 30 days of home supervision, and committed to the custody of his mother.

On appeal, the minor contends (1) the juvenile court erred by failing to comply with Welfare and Institutions Code section 241.1, (2) there was insufficient evidence that he knew the wrongfulness of his actions, and (3) the state did not satisfy the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the judgment.

Facts and Proceedings

On June 7, 2005, the 13-year-old minor, his 15-year-old brother, his mother and his mother’s boyfriend were camping at Beale’s Point campground at Folsom Lake. While patrolling the campground on foot at about 11:36 p.m., State Park Ranger Scott Baynee smelled marijuana smoke coming from the campsite. Baynee went to the campsite and found the minor, his brother and his mother’s boyfriend sitting around the campfire area.

Baynee asked the three to give him the marijuana. The boyfriend handed the marijuana he was holding in his hand to Baynee. The minor’s brother lifted his foot, picked up a marijuana cigarette he was hiding under his foot and handed it to Baynee. The minor took a full and unopened bottle of Mike’s Hard Lemonade, an alcoholic beverage made from malt liquor, from the front pocket of his pullover sweatshirt and gave that to Baynee. The boyfriend had an alcoholic beverage on the cooler beside him and there were numerous alcoholic beverages inside the cooler. The minor’s mother was sleeping in a tent at the time of the encounter with the park rangers.

Discussion

I

Welfare and Institutions Code Section 241.1

The minor argues the juvenile court erred during his 602 hearing by failing to comply with Welfare and Institutions Code section 241.1. (Unspecified section references that follow are to the Welfare and Institutions Code.) The Attorney General says the minor has forfeited this contention by failing to assert it in the juvenile court. In turn, the minor says that, if the claim is forfeited, then his trial counsel rendered ineffective assistance. We find no error.

In August 2002, a section 602 petition was filed alleging that the minor burglarized his school, damaged windows and defaced the school’s property. The minor was arraigned and was ordered to cooperate with probation in the preparation of a section 241.1 report. That report noted that the mother had two prior referrals to Child Protective Services, both of which were inconclusive. The report also noted that the mother did not qualify for any services because the children were not neglected or abused.

In December 2002, the minor admitted the burglary charge and the vandalism charge was dismissed. He was placed on informal probation and ordered to perform community service, serve 30 days on home supervision, and pay restitution to the school. The petition was dismissed upon the minor’s successful completion of all terms and conditions of his probation.

In October 2005, the present section 602 petition was filed. The probation report noted that the minor was living with his sister, his mother, the mother’s boyfriend and members of the boyfriend’s family. The mother reported that the minor’s behavior has improved since he was cited for the present incident. According to the probation report, the minor’s family had 16 referrals to Child Protective Services between October 1996 and June 2005, five of which were substantiated. The most recent substantiated referral was dated June 8, 2005, and was closed on July 26, 2005. The minor was listed as a victim of general neglect, and the alleged perpetrator was his mother. The family was undergoing voluntary Family Maintenance services, including counseling for the minor and drug testing, parenting classes and AOD (alcohol and other drug) treatment for the mother. Substantiated referrals for general neglect of the minor were also made in June 2003 and February 1999. A substantiated referral for “at risk sibling abuse“ was made in February 1999.

The probation report in the present matter recommended that the minor be adjudged a ward of the court and committed to the care and custody of his mother, that he be placed on home supervision, that he complete a work project program, and that he participate in drug/alcohol and family counseling. Finding that wardship was not necessary, the court placed the minor on informal probation.

At no point in the present proceedings was there any discussion of dependency jurisdiction or section 241.1. Nor is there any indication that the minor had previously been adjudged a dependent of the court.

Section 241.1, subdivision (a), provides in relevant part: “Whenever a minor appears to come within the description of both Section 300 and Section 601 or 602, the county probation department and the child welfare services department shall, pursuant to a jointly developed written protocol described in subdivision (b), initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor.”

The minor claims that the evidence at the jurisdiction hearing gave the “appear[ance]” that he was within the provisions of section 300. He relies in part on the ranger’s testimony that the mother was asleep in her tent at 11:30 p.m., while the teenage minor was awake in the presence of the mother’s adult boyfriend. But the fact the mother was asleep shortly before midnight while the minor was awake and under adult supervision does not, by itself, raise any basis for dependency jurisdiction.

The minor thus relies on the boyfriend’s statements to the ranger, that the boys had been smoking and drinking “behind his back,” and that “it was better they smoke and drink with him.” These statements show irresponsibility on the part of the boyfriend, but there is no proof he, or they, acted with the mother’s “knowledge or approval.” Absent evidence that the mother had knowledge or a reason to distrust her boyfriend, she cannot be faulted as “not sufficiently vigilant,” simply because she was asleep at a normal hour.

Perhaps realizing this dearth of evidence, the minor relies on the probation report’s notation that Child Protective Services “substantiated” a referral of general neglect that it received on June 8, 2005, the day after the present incident. However, the appellate record does not reveal the source of, or the factual basis for, the referral. We can only speculate whether it involved the camping trip or some other incident.

Thus, contrary to the minor’s argument, it did not appear from the evidence at the jurisdiction hearing that he was within the provisions of section 300. It is not necessary to consider the Attorney General’s argument that section 241.1 imposes a mandatory duty on the trial court only where, unlike here, the court is confronted with both a delinquency petition and a dependency petition.

Given the lack of evidence suggesting dependency jurisdiction, the court did not err by failing to invoke the provisions of section 241.1, as it had done on the 2002 petition. The minor’s trial counsel was not ineffective for having failed to raise a meritless issue. (People v. Stratton (1988) 205 Cal.App.3d 87, 97.)

II

Knowledge of Wrongfulness

The minor contends there was insufficient evidence that he knew the wrongfulness of his actions. (Pen. Code, § 26.) We disagree.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence that is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the judgment and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Penal Code section 26 provides in relevant part: “All 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.”

However, “the presumption of a minor’s incapacity [may] be rebutted by clear and convincing evidence” that the minor knew the act’s wrongfulness. (In re Manuel L. (1994) 7 Cal.4th 229, 238.) “Although a minor’s knowledge of wrongfulness may not be inferred from the commission of the act itself, ‘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.]” (People v. Lewis (2001) 26 Cal.4th 334, 378.)

In this case, the minor was 13 years seven months old when he violated the law by possessing an alcoholic beverage in a public place. Because he was only five months shy of turning 14 years old, it was substantially likely that he appreciated the wrongfulness of his acts. (People v. Lewis, supra, 26 Cal.4th at p. 378.)

Moreover, the evidence showed that the minor had both his hand and a bottle of Mike’s Hard Lemonade in the front pocket of his pullover sweatshirt. Contrary to the minor’s argument, the juvenile court could deduce that the minor used his hand to “actively” conceal the bottle, either by physically covering it or by providing an alternate explanation for why the pocket might appear to contain an object.

The juvenile court expressly found that the minor “had [the bottle] hidden when the officer approached,” and that the “fact that it was hidden shows it was wrong.” No evidence at the hearing suggested any innocent reason for the minor to possess an alcoholic beverage. The juvenile court’s finding that Penal Code section 26 was satisfied is supported by substantial evidence. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

The minor nevertheless complains that the juvenile court misconstrued the evidence. The court stated: “I think the officer said [the minor] pulled [the bottle] out from under his sweatshirt or something. . . .

The Court can take notice that it’s not normal to have a bottle of Mike’s Hard Lemonade under your sweatshirt.” (Italics added.)

The minor construes “under” his sweatshirt to mean “next to his skin.” However, the ambiguous term could also mean “under” the fabric forming the outer portion of the pocket. The juvenile court acknowledged that it did not precisely recollect the officer’s testimony. Nothing in its remarks suggests that it was relying on the bottle being under the entire shirt and against the skin, as opposed to under the outer portion of the pocket. In either event, the minor was actively concealing the bottle from view. No more was required.

III

The Indian Child Welfare Act

The minor contends the juvenile court erred by failing to ensure that the Cherokee tribes were notified of these proceedings pursuant to ICWA. The claim has no merit.

Under the heading, “Indian Child Welfare Act,” the probation report states: “The mother reports the minor does have Native American heritage and is affiliated with the Cherokee Tribe. Therefore, the Indian Child Welfare Act does not apply.” The parties agree that the second sentence does not follow logically from the first.

Nothing in the record suggests that notice was sent to any tribe.

ICWA applies generally to “child custody” proceedings, which include “foster care placement,” “termination of parental rights,” “preadoptive placement,” and “adoptive placement.” (25 U.S.C. § 1903(1)(i)-(iv).)

The Attorney General relies on a series of cases holding that “ICWA does not apply to out-of-home placements that arise from delinquency proceedings.” (In re Enrique O. (2006) 137 Cal.App.4th 728, 733; see In re Jennifer A. (2002) 103 Cal.App.4th 692, 701; Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 408; see also Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 711.) These cases are all based on ICWA section 1903(1)’s exclusion of proceedings “based upon an act which, if committed by an adult, would be deemed a crime.” (25 U.S.C. § 1903(1); see In re Enrique O., supra, at pp. 732-733.)

By its terms, this statutory exclusion does not apply to the minor’s offense, “which, if committed by an adult” (age 21 or over), would be no crime at all. (25 U.S.C. § 1903(1).) Thus, the question remains whether this is a “child custody” proceeding involving “foster care placement.” (Ibid.) We conclude it is not.

As In re Enrique O. presciently notes: “It may be possible for section 602 proceedings to be initiated based on, for example, underage drinking. Because the ‘minor in possession’ statutes provide their own punishments and the only permissible punishments under the governing statutes are fines and community service, a minor who for whatever reason ran the risk of foster care after being in possession of substances deemed suitable only for adults may be entitled to tribal participation in their placement. (See, e.g., Bus. & Prof. Code, § 25662 [possession of alcohol by a minor proscribing [sic] fines and community service].)” (In re Enrique O., supra, 137 Cal.App.4th at p. 734, fn. 3, italics added; see Cal. Rules of Court, rule 1439(b) [rule implementing ICWA applies “to all proceedings under . . . section 602 et seq. in which the child is at risk of entering foster care or is in foster care”].)

In this case, there was no suggestion that the minor was “at risk of entering foster care” after being in possession of a bottle of hard lemonade. (Cal. Rules of Court, rule 1439(b); cf. In re Enrique O., supra, 137 Cal.App.4th at p. 734, fn. 3.) Thus, when this case was before the juvenile court, it was not a “child custody” proceeding as defined by ICWA, and no notices were required.

The minor argues “there is always a danger that a change in circumstance will require a swift removal of the child from the parent’s home.” Should such a change of circumstances occur, ICWA notice may well be required. However, that issue is not presently before us.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

DAVIS , Acting P.J.

CANTIL-SAKAUYE , J.

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