In re Y.S.

Filed 9/28/06 In re Y.S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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The juvenile court found 13-year-old Y.S. (Appellant) committed a misdemeanor by exhibiting a deadly weapon in a rude, angry, and threatening manner. (Pen. Code,^[1] § 417, subd. (a)(1).) Appellant contends the prosecution failed to establish he understood the wrongfulness of his conduct, possessed a deadly weapon, or was not acting in self-defense. We will affirm the disposition.

BACKGROUND

A group of about 12 teenagers arrived at Appellant’s home around midnight on August 8, 2005. Most of the group members were angry with Appellant’s sister, M.S. and went to confront her. Three or four of the youths were male and the rest were female.

Appellant and his 15-year-old brother, K.S., ran toward the group approaching their home. The brothers asked one of the girls why they were there and told them to leave their sister alone. The brothers both said, “‘We don’t care if you’re girls, we’ll hit you.’” Appellant and K.S. then ran back into the house. Appellant came out with a BB gun in his waistband, which he pulled out and waved around, while K.S. began swinging a sword repeating that he would slash their throats. The group members became scared and ran to their cars.

Appellant told Visalia police that he and his brother were acting in self-defense because the group arrived with bats and threatened to put him “‘six feet under.’” The arresting officer did not find any BB’s in Appellant’s plastic handgun and placed it into evidence as a toy handgun.

Following a consolidated jurisdictional hearing involving both brothers, the juvenile court determined Appellant exhibited a weapon in a rude, angry, and threatening manner and that he possessed the capacity to understand the wrongfulness of his actions. At the dispositional hearing, the juvenile court declared Appellant was subject to a 2-month maximum period of confinement for the current offense plus an additional 3 years 10 months for two prior petitions. The juvenile court placed Appellant under the supervision of the probation department while residing with his parents.

DISCUSSION

I. Wrongfulness of Appellant’s Actions

Appellant contends the juvenile court violated his due process rights by sustaining the wardship petition because the prosecution failed to establish he understood the wrongfulness of his actions.

“Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (Pen. Code, § 26, subd. One.)^[2] To defeat the presumption, the People must show by ‘clear proof’ that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602.^[3] [Citation.] Only those minors over the age of 14, who may be presumed to understand the wrongfulness of their acts, and those under 14 who -- as demonstrated by their age, experience, conduct, and knowledge -- clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system. [Citation.]

. . .

Hence, for a section 602 petition to be sustained, the People must prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed.” (In re Manuel L. (1994) 7 Cal.4th 229, 231-232, fns. renumbered.)

The juvenile court must consider the age, experience, and knowledge of the child before determining whether a child understood the wrongfulness of his conduct. (In re Gladys R. (1970) 1 Cal.3d 855, 867.) “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.” (In re James B. (2003) 109 Cal.App.4th 862, 872-873.) While the juvenile court may not rely solely on the commission of the offense, it may infer knowledge of its wrongfulness from circumstantial evidence and the attendant circumstances. (People v. Lewis (2001) 26 Cal.4th 334, 378; In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) A minor’s past experience with the juvenile court system relating to similar offenses supports the inference the minor knew such conduct was wrong. (In re Harold M. (1978) 78 Cal.App.3d 380, 384-385.) As with other factual determinations, the trial court’s finding of capacity must be upheld on appeal if supported by substantial evidence, and we must draw all legitimate inferences in support of the judgment. (In re Jerry M, supra, 59 Cal.App.4th at pp. 297-298; In re Paul C. (1990) 221 Cal.App.3d 43, 52.)

The juvenile court expressly considered whether Appellant knew the wrongfulness of his actions and concluded he possessed the capacity to commit the offense within the meaning of Penal Code section 26. Appellant’s delinquency record includes two previous juvenile petitions. Under the first petition, Appellant admitted he committed four counts of battery in June 2004. (§§ 242, 243.2.) In the second petition, Appellant admitted unlawfully taking and driving a vehicle in March 2005. (Veh. Code, § 10851, subd. (a).) He was placed on probation following both admissions; the second time, he was placed on an electronic monitor.

Appellant was 13 1/2 years old when he committed the offense in this case. His age and prior experience with the juvenile justice system, particularly the fact that he was on probation when the offense occurred, supports the juvenile court’s determination Appellant he appreciated the wrongfulness of his actions.

II. Substantial Evidence of Exhibiting a Deadly Weapon

Appellant believes insufficient evidence as a matter of law supports the juvenile court’s finding he exhibited a “deadly weapon“ within the meaning of section 417, subdivision (a)(1). That section provides:

“Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.”

In reviewing the sufficiency of the evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; In re Robert V. (1982) 132 Cal.App.3d 815, 821.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813; see Evid. Code, § 600, subd. (b).) “Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ “ (People v. Catlin (2001) 26 Cal.4th 81, 139.) Accordingly, this court will reverse a judgment only if based on evidence so insubstantial that it could not support the conviction upon any hypotheses whatsoever. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Appellant points to factual evidence presented in People v. Lochtefeld (2000) 77 Cal.App.4th 533, 537 interpreting section 245, subdivision (c), which prohibits “an assault with a deadly weapon or instrument, other than a firearm .” The Lochtefeld court found a pellet gun a deadly weapon where a criminalist testified that a shot fired from a specific pellet gun at a measured velocity would go through human skin or an eyeball. Appellant contends that, unlike in Lochtefeld, the prosecution did not present any evidence for the juvenile court to conclude his particular “BB gun was likely to inflict any injury, much less significant injury or great bodily injury.”

Regardless of the particular speed at which Appellant’s BB gun could expel projectiles, the juvenile court reasonably concluded the instrument was a deadly weapon within the meaning of section 417. (See In re Jose A. (1992) 5 Cal.App.4th 697, 701 [air gun is dangerous or deadly weapon].) Appellant admitted retrieving the BB gun from his home for the purpose of defending himself; he therefore must have thought it was capable of at least appearing to inflict great bodily injury so as to ward off the approaching group of youths. A witness testified Appellant was holding what appeared to be a real gun. Another witness described Appellant was waving a gun around and became sufficiently scared that she ran away. Just like the group of youths believed, it was reasonable for the juvenile court to conclude Appellant was exhibiting a deadly weapon.

Appellant also contends his actions were justified as self-defense. “‘The principles of self-defense are founded in the doctrine of necessity.’” (People v. Hardin (2000) 85 Cal.App.4th 625, 629.) Whether self-defense applies therefore turns on whether the force the defender used was necessary to repel the attack. (Id. at p. 629-630.)

The juvenile court reasoned Appellant was not acting in self-defense because Appellant failed to convince the court he felt he had a reasonable belief he was in danger or that his conduct was reasonable under the circumstances. The juvenile court questioned whether there were alternatives available to Appellant other than waving around a BB gun. Moreover, the court expressed its disbelief that anyone in the group actually brought weapons to the home and threatened Appellant or his family. As the trier of fact, the juvenile court was permitted to follow the evidence it found most credible. We will not disturb the juvenile court’s findings.

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^[1] Further statutory references are to the Penal Code, unless otherwise indicated.

^[2] “Penal Code section 26 provides in relevant part as follows: ‘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.’”

^[3] “Welfare and Institutions Code section 602 provides as follows: ‘Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.’”