In re Robert S.

Filed 2/28/07 In re Robert S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Following a contested jurisdictional hearing, the juvenile court sustained a charge of lewd and lascivious conduct with a child under 14 years of age against Robert S., a minor.^[1] He was declared a ward of the court and ordered into suitable placement.^[2]

On appeal, the minor contends: (1) the evidence is insufficient to sustain the juvenile courts finding the minor knew the wrongfulness of his act; (2) the court abused its discretion when it found the victim competent to testify; (3) he was denied his right to confront the witnesses against him when the court, over his objection, admitted a multi-disciplinary interview center (MDIC) interview videotape and transcript of the interview; (4) imposition of an unlimited search and seizure condition was unconstitutional; and (5) if contention No. 4 is forfeited by counsels failure to object to the search and seizure condition, he received ineffective assistance of counsel.

FACTS

During the evening of January 14, 2005, the minors parents, Robert and Edith, took the 13-year-old minor with them to the home of Wayne and Jennifer to celebrate the minors mothers birthday. The adults drank alcohol and some consumed marijuana while the minor and his four-year-old female cousin, J., played video games in a back bedroom.

At one point, J. came into the kitchen coughing, choking, kind of like gagging. Jennifer heard J. say, Bobby made [me] kiss his butt whereas Edith thought J. said, Bobby kicked [her] butt or Kiss my butt. The women questioned J. for 5 to 10 minutes regarding what she had said.

On January 20, 2005, J.s parents reported the incident to Sacramento Sheriffs Deputy Todd Raymond. That same day, Raymond interviewed J. and determined that when she used the term butt she was referring to the male genital area, not the buttocks.

On February 4, 2005, Detective Richard Bankie of the Sacramento County Sheriffs Department aided in conducting a videotaped interview of J. at the MDIC. The videotape was played for the court. Bankie testified that when the interviewer showed J. a picture of a naked boy, she identified his penis as a butt, and when she saw a picture of a naked girl, she identified the buttocks of the girl as a butt.

Detective Bankie tried to interview the minor, but the minor refused to waive his Miranda^[3]rights. However, without prompting from Bankie, the minor, who was angry and crying, denied doing anything to J.

J., who was five years old at the time of trial, repeatedly testified that Bobby either made her or let her put his butt in her mouth, that his butt is on his backside, and that when he put his butt in her mouth he pushed her head in an up and down motion. J. also testified that Bobby has a tail on his butt and that Bobby made her kiss his butt.

The minor testified, denying ever having inappropriately touched or having been touched by J.

DISCUSSION

I

Sufficiency Of The Evidence

The minor contends the evidence is insufficient to support the courts finding that, pursuant to Penal Code section 26, he knew the wrongfulness of his conduct. We disagree.

Penal Code section 26 provides: 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.

Clear proof means clear and convincing evidence. (In re Manuel L. (1994) 7 Cal.4th 229, 233-234, 239.) On appeal, we must review the whole record in the light most favorable to the judgment and affirm the trial courts findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re James B. (2003) 109 Cal.App.4th 862, 872.)

In determining whether the minor knows of the wrongfulness of his conduct, the court must often rely on circumstantial evidence such as the minors age, experience, and understanding, as well as the circumstances of the offense, including its method of commission and concealment. (In re James B., supra, 109 Cal.App.4th at p. 872.)

In sustaining the petition the juvenile court stated that it was convinced beyond a reasonable doubt that the molestation had occurred by the minor either making J. touch him or putting her mouth on his penis. With respect to the minors knowing the wrongfulness of his act the court stated: As far as PC 26 is concerned, the crime itself implies that the minor knew the wrongfulness of his act, that, combined with the fact that his mother testified that she, herself, is a molest victim. Shes talked to Bobby about that. [] That he clearly knows and should have known right from wrong is proof sufficient to prove that the minor knew the wrongfulness of [his] act at the time it occurred.

The minor argues the above quoted two paragraphs show the court had an erroneous understanding of the law. We agree that the courts statements do not accurately reflect the law regarding a determination of the minors knowledge of the wrongfulness of his act under Penal Code section 26. Nevertheless, we find the error harmless.

It would manifestly frustrate the intent of Penal Code section 26 to infer [the minors knowledge of the wrongfulness of his conduct] from the bare commission of the act itself. (In re Tony C. (1978) 21 Cal.3d 888, 900, superseded by constitutional amendment on an unrelated point as noted in In re Devon C. (2000) 79 Cal.App.4th 929, 931, fn. 2.) Additionally, and contrary to the juvenile courts statement, it is not sufficient to prove a minors knowledge of the wrongfulness of his or her conduct simply by proof that the minor generally knows right from wrong. The required knowledge of wrongfulness must be proven with respect to the specific offense or offenses charged. (In re Tony C.,at p. 900.) Consequently, the court erred.

Nevertheless, the courts error was not prejudicial as demonstrated by the facts of In re Tony C., supra,21 Cal.3d 888, a case similar to the instant case.

In Tony C., the juvenile court had sustained petitions against Tony, a minor less than 14 years of age, charging receiving stolen property (petition A) and forcible rape (petition C). (In re Tony C., supra,21 Cal.3d at pp. 888-889, 891-892.) At the hearing on petition A, the minors mother testified to his knowledge that it was wrongful to take other peoples property. (Id. at p. 899.) Several weeks later, the same court referee conducted the hearing on petition C and the minors mother testified he knew that it was wrong to have forcible sexual intercourse. (Ibid.) At the conclusion of the hearing, the referee said, Between the testimony of the mother at this time and the latter time on the Gladys R. issue, I think the burden has been met.^[4] (In re Tony C., at pp. 899-900.)

On review before the Supreme Court, the minor contended as to petition C that the juvenile court had improperly relied on the minors mothers hearsay testimony in petition A regarding the Gladys R. issue. (In re Tony C., supra,21 Cal.3d at p. 900.) The court agreed, but concluded that the error was not prejudicial because the hearsay evidence was essentially irrelevant to the Gladys R. issue in petition C and because evidence properly admitted at the hearing on [petition C] amply demonstrated that at the time of committing the rape Tony had full knowledge of its wrongfulness. (In re Tony C.,at p. 900.)

The properly admitted evidence was that Tony had seized the victim from behind as she walked on the sidewalk, he had placed a knife to her throat and forced her to climb a fence into a yard and lie down, had forcibly pulled down her pants and underclothing, had entered her with his penis and continued sexual intercourse for several minutes until he climaxed, when he had withdrawn he asked her if she was going to call the police, and, finally, he had taken money from her and then fled. (In re Tony C., supra,21 Cal.3dat pp. 900-901.)

The court concluded that this uncontradicted evidence established that the minor knew he needed to use threat of deadly force to get the victim to submit to intercourse; that his taking her to a secluded spot demonstrated that he was aware that seclusion was required to minimize the risk of his being detected and punished; and that his asking the victim if she intended to call the police coupled with his flight from the scene manifested both knowledge of the illegality and consciousness of guilt. (In re Tony C., supra,21 Cal.3d at p. 901.)

Although the evidence in the present case was not uncontradicted, the juvenile court made clear that it believed the victims testimony, that it believed the minor committed the act, and that it did not believe the minors testimony denying having committed the act. Thus, the evidence accepted by the court showed the minor was just two weeks short of being 14 years of age when he committed the molestation, making it more likely that he knew his act was wrong. His mother had counseled him regarding her having been molested as a child and told him of its detrimental effect on her, thus he knew child molestation was harmful. And his attempt to conceal the crime by denying its commission to Officer Bankie and again at the jurisdictional hearing clearly evinced a consciousness of guilt.

As was the case with Tony C., these facts constitute clear proof that the minor knew the wrongfulness of his conduct, and therefore, the trial courts error was harmless.

The minor also attempts to analogize the circumstances of his case to those of In re Michael B. (1983) 149 Cal.App.3d 1073, wherein, for lack of proof of knowledge of wrongfulness of his act, the appellate court reversed the juvenile court sustaining a charge of involuntary manslaughter against a nine year old who had fatally shot a boy five years older than himself who had refused to leave the younger boys home. (Id. at pp. 1086-1089.) Michael B. is factually distinguishable from the present case. Michael B. was nine years old, not almost 14 as in the present case. Additionally, there was expert testimony that Michael B. did not understand the concept of the permanence of death and the consequences of threatening the victim with a gun, factors which the reviewing court found essential to a finding of involuntary manslaughter. (Id. at pp. 1088-1089.)

II

Competency Of The Victim Witness

The minor contends the juvenile court prejudicially erred when it found J. understood the duty to tell the truth and, therefore, found her competent to be a witness. We conclude there was no error.

Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter. (Evid. Code, 700.) However, A person is disqualified to be a witness if he or she is: [] (2) Incapable of understanding the duty of a witness to tell the truth. (Evid. Code, 701, subd. (a)(2).) The party challenging the competency of a witness bears the burden of proof, and the trial courts finding is reviewed on appeal for abuse of discretion. (People v. Dennis (1998) 17 Cal.4th 468, 525.)

In support of his claim, the minor cites the following voir dire testimony of J.:

MS. PAISLEY [minors counsel]: J[.], if I told you that was a blue pen, would I get in trouble for that?

J[.]: Trouble in telling you that?

MS. PAISLEY: Would I get in trouble for telling you that?

J[.]: That? Because what?

MS. PAISLEY: J[.], if I said that was a blue pen, would that be -

J[.]: True or a lie?

MS. PAISLEY: You tell me?

J[.]: Okay. Its a lie.

MS. PAISLEY: Okay. Would I get in trouble for that?

J[.]: Yep.

MS. PAISLEY: You think I would get m [sic] trouble for saying that a yellow pen was blue?

J[.]: A yellow pen, because it is yellow, its wrong over there because from the other markers, was because it was when you picked them up (sic).

THE COURT: Okay. Ask your next question.

MS. PAISLEY: J[.], if I used the pen, and I marked on the wall, would I get in trouble for that?

J[.]: Yeah.

MS. PAISLEY: If I used the pen and marked on the wall, and lied about doing it, would I get in trouble for that?

J[.]: Yeah.

MS. PAISLEY: If nobody saw me do that, and they still asked me, and I said I didnt do it, would I still get in trouble?

J[.]: No.

THE COURT: Any other questions?

MS. PAISLEY: J[.], if you marked on the wall, and someone saw you, would you get in trouble?

J[.]: No.

MS. PAISLEY: Would you get in trouble for marking on the wall?

J[.]: Hmm-hmm

MS. PAISLEY: If I said this pen was blue - [objection overruled] . . . would that he [sic] a lie?

J[.]: A lie.

MS. PAISLEY: Okay. J[.], if you said the pen was blue, would you get in trouble for that?

J[.]: No, no, I dont like to get in trouble because of mom.

MS. PAISLEY: And youve been in trouble before, right?

J[.]: Hmm-hmm, because I was scared.

[] . . . []

MS. PAISLEY: What kind of stuffed animal is this, J[.]?

J[.]: Purple.

MS. PAISLEY: Thats the color?

J[.]: Thats the color I like.

MS. PAISLEY: Hmm-hmm. If I said it was black, would that be the truth or a lie?

J[.]: A lie.

MS. PAISLEY: And would I get in trouble for saying that?

J[.]: Who wrote on that calendar?

THE COURT: J[.], J[.], look at me. You have to try and answer her questions, okay?

J[.]: Okay.

THE COURT: Go ahead.

MS. PAISLEY: Would I get in trouble for saying that stuffed animal was black?

J[.]: Yeah.

MS. PAISLEY: J[.], if you said the stuffed animal was black -

J[.]: It would be a lie.

MS. PAISLEY: Would you get in trouble for that?

J[.]: No.

The minor argues the record plainly shows that [w]hile J. understood the difference between telling the truth and telling a lie, she consistently indicated that the obligation to tell the truth might apply to others like defense counsel, but did not apply to her. The argument is not persuasive.

As previously noted, the burden is upon the party challenging the competency of a witness to show that the witness is [i]ncapable of understanding the duty of a witness to tell the truth. Instead of asking five-year-old J. whether she understood that she was supposed to tell the truth or whether she would tell the truth, counsel sought inferentially to establish that J. did not have such understanding by eliciting from her that while she believed counsel would get into trouble for telling a lie, J. also believed that she (J.) would not get into trouble if she told a lie. Whether J. believed an adult would get into trouble for lying but a child would not, fails to establish that J. does not understand that she is not supposed to lie.

Since the minor has failed to carry his burden of demonstrating that J. did not understand that she was supposed to tell the truth, the court did abuse its discretion by not finding her incompetent to testify.

The minor also argues that if the juvenile court erred by finding J. to be a competent witness, thus requiring the striking of her testimony and making her unavailable as a witness, then pursuant to Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], the court also denied him his Sixth Amendment right to confrontation by admitting the MDIC videotape. Since we have concluded that the court did not so err in finding J. competent, the argument fails.

III

Search And Seizure Condition

At the dispositional hearing, without objection from the minor, the court ordered the following probation condition: Submit to search and seizure of his person, property, automobile, and any object under your control by any law enforcement officer or Probation Officer, in or out of your presence, at any time of the day or night, with or without consent, and with or without a Warrant.

Citing In re Antonio C. (2000) 83 Cal.App.4th 1029, 1034, the minor contends the search and seizure condition is constitutionally overbroad because it was not carefully tailored and reasonably related to his reformation and rehabilitation, and that no objection was needed to preserve review because the conditions constitutionality presents a pure question of law. We conclude the issue does not present a pure question of law; that the minors failure to object waives the issue for review; and even if not waived, the condition was properly imposed.

Generally, a failure to object to a condition of probation when it is imposed waives appellate review for any defect in the condition. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152.) However, a probationary condition is not waived by failure to object if it presents a pure question of law. (People v. Welch (1993) 5 Cal.4th 228, 235; In re Justin S. (2001) 93 Cal.App.4th 811, 814-815.) Pure questions of law are those that can be resolved without reference to the particular sentencing record developed in the trial court. (People v. Welch, at p. 235.)

Here, without referencing the specific facts of the minors case history, it is not possible to tell whether the search and seizure condition imposed needs tailoring as the minor claims. (See In re Tyrell J. (1994) 8 Cal.4th 68, 81 [juvenile court must consider circumstances of crime and minors entire social history in deciding what probationary condition to impose].) Consequently, the constitutionality of the challenged condition does not present a pure question of law and is waived.

Even if not waived, we would uphold the imposition of the search and seizure condition on the record before us. The minor was first declared a ward of the juvenile court on September 16, 2004, based upon his admission to theft at an elementary school. In an interview with Dr. Shawn Johnston, a psychologist, the minor admitted smoking marijuana a couple of times a month. And at the disposition hearing, the minors mother admitted that the minor had smoked marijuana. Therefore, given the minors admission to being a thief and a user of a controlled substance, the search and seizure condition was properly imposed to assist his rehabilitation and to curb any future criminality.^[5]

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

RAYE , Acting P.J.

MORRISON , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] The minor is referred to in several statements as Bobby.

^[2] At the dispositional hearing the court dismissed a previous petition charging the minor with one count of possession of marijuana on school grounds.

^[3]Miranda v.Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694]

^[4] Referring to In re Gladys R. (1970) 1 Cal.3d 855, which held that Penal Code section 26, subdivision One was applicable to proceedings under Welfare and Institutions Code section 602. (Id. at pp. 862-867.)

^[5] In light of our conclusion that the search and seizure condition was justified, we need not address the minors contention that his counsels failure to object to this condition resulted in ineffective assistance of counsel.