Filed 4/5/22 In r A.B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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The 12-year-old minor A.B. was declared a ward of the court under Welfare and Institutions Code section 602 after the juvenile court found true allegations he molested his six-year-old cousin. At the start of the jurisdiction hearing, the juvenile court noted it may have reviewed a report prepared by a psychologist under Penal Code[1] section 288.1. On appeal A.B. makes two contentions: (1) the juvenile court committed prejudicial error by considering the section 288.1 report before the jurisdiction hearing; and (2) he did not understand the wrongfulness of his actions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I

Petition And Section 288.1 Report

On January 21, 2020, A.B. (born April 2007) was charged in a Welfare and Institutions Code section 602 petition with committing a lewd and lascivious act on a six year old for events occurring between June and August of 2019.

On January 22, 2020, the juvenile court ordered a section 288.1 “psychological evaluation to assist the Court in determining an appropriate disposition” for A.B. The report was to address seven questions, including A.B.’s diagnosis, treatment needs, level of risk A.B. posed to other children, and whether A.B. was in need of intensive hospital-based treatment.

Dr. Anna Washington, a psychologist, prepared the report on March 2, 2020. The report detailed the allegations of A.B.’s sexually inappropriate behavior toward the victim, A.B.’s six-year-old cousin, “including anal penetration,” and provided background on A.B.’s life. Dr. Washington concluded A.B. met the criteria for “Major Depressive Disorder (MDD), Single Episode, Moderate, With Anxious Distress,” recommending A.B. participate in mental health treatment services but “it does not appear that a residential adolescent sex offender treatment program is necessary at this time. Rather, concerns can be addressed as part of a weekly outpatient program.” (Bolding omitted.) Overall, Dr. Washington believed A.B. “poses a low to moderate risk to other children.” (Bolding omitted.) Dr. Washington’s findings were also based on the assumption the allegations were “found to be true.”

At a hearing on August 7, 2020, the juvenile court (Judge Judy Hersher) ordered A.B.’s counsel to produce the report “since it’s the court’s report that the court paid for.” Though A.B.’s counsel did not object to turning over the report at this hearing, counsel e‑mailed the juvenile court (Judge Hersher) and the prosecutor on August 11, 2020, stating A.B. “does not need to turn over the report as the report is relevant for dispositional purposes. At this time, the matter is set for trial. [¶] Should defense decide to call the doctor as witness, defense will turn the report over to the district attorney. Defense will also turn the report over during the disposition phase, as that’s when it has relevance. [¶] If [the] Court or [the prosecutor] have research indicating that defense is bound to turn over the report before disposition, please let me know.” Court staff responded, stating the judge was out for the week but they would print the e-mail for the judge to review on return. There is no further correspondence on this issue in the record.

The report was filed with the court on August 31, 2020, and at a trial readiness conference on September 14, 2020, the juvenile court (Judge Hersher) noted it had reviewed the report.

II

Jurisdiction Hearing And Disposition

On December 1, 2020, the juvenile court, with a different judge presiding (Judge Dean Stout), held the contested jurisdiction hearing. At the start of the hearing, the court stated: “As we’ve had some discussions in chambers, I believe, earlier at the trial readiness conference, perhaps I indicated I read and considered the 288.1 report filed August 31, ‘20, I believe, from Dr. Washington, and an intake report filed January 22nd, 2020. I’ve read the probation report, and it’s not appropriate for the Court to read and consider if subsequently sitting on a jurisdictional hearing, as I am now. As I’ve indicated to counsel, I don’t have those reports in front of me. I’m sure they’re in the file, but -- I do believe I reviewed them, but I do feel I can be fair and impartial to both sides in this matter.” The court then asked A.B.’s counsel, “are you willing to enter a waiver at this time in that regard?” A.B.’s counsel responded, “[y]es, your honor.”

Over several days, the victim N.B., his sister H.B., and their mother A.R (A.B.’s aunt) testified. N.B., who was seven years old as of the hearing, said A.B. touched his butt with A.B.’s penis while N.B.’s pants were down but his underwear was up. He also said A.B. told him, “[d]on’t tell anyone.” N.B. said they stopped and he put his clothes back on when H.B. walked in on them.

H.B., who was 10 years old as of the hearing, said she walked into N.B.’s room and saw the boys on N.B.’s bed and A.B.’s penis halfway inside N.B.’s butt. She also said when she walked in they rushed and pulled their pants up.

A.R. testified her family lived with A.B.’s family in her mother’s house during the summer of 2019. She said A.B. was “somewhat” able to follow rules and when asked if she thought he knew the difference between right and wrong, she said he did. She then described finding N.B. and A.B. under the covers one day in July 2019. She just saw them under the covers, fully clothed but “too close” in “a romantic position,” which she thought was inappropriate so she spanked A.B.

Sometime later A.R.’s boyfriend told her N.B. had told his son something “very explicit” happened. When she spoke with N.B., he said A.B. “tried to do some gay stuff to me” and made a gesture putting one finger through a circle made with other fingers. She then spoke to H.B. who told her A.B. had asked her if he could put his “ding-ding” in “her butt and in her coochie,” and A.B. tried to “touch my little brother.” A.R. also testified that before all of these events, A.B. had commented on a teacher’s underwear at school and she told A.B. “it was inappropriate,” which she said he understood.

The prosecutor also played for the court videos of interviews with N.B. and H.B. shortly after the incidents, which largely followed their testimony in court. N.B. said in the interviews A.B. put his penis in N.B.’s butt twice, once when H.B. found them and once when A.R. found them. H.B. also said A.B. asked her to do “the gay stuff” but she “told him no” and “[h]e got mad,” but then her “brother said yes, and then they did it.”

Several witnesses testified at the jurisdiction hearing in A.B.’s defense, contending A.B. was not capable of the alleged behavior and that it never happened.

The juvenile court first found the presumption of A.B.’s incompetency was rebutted by clear and convincing evidence because “[A.B.] did know the wrongfulness of his act or conduct at the time it was committed.” The court stated this was based on A.R.’s testimony that A.B. knew right from wrong and A.B. telling N.B. not to tell anybody. After summarizing the testimony of the witnesses, the court then found the prosecution proved beyond a reasonable doubt the elements of section 288, subdivision (a), and sustained the Welfare and Institutions Code section 602 petition.

On February 1, 2021, the probation officer filed a social study report and recommended A.B. serve probation at home. On February 2, 2021, the juvenile court (Judge Stout) held a disposition hearing and ordered A.B. to serve probation from home.

A.B. timely appealed.

DISCUSSION

I

Section 288.1 Report

A.B. first argues the juvenile court committed prejudicial error in reviewing the section 288.1 psychological report because this was evidence indicating guilt prior to the presentation of the prosecution’s case. The People contend A.B. not only forfeited his argument, but his counsel explicitly waived any issue with the juvenile court reading the psychological report. We agree with the People.

A person convicted of a lewd or lascivious act on a child under 14 years old “shall not have his or her sentence suspended until the court obtains a report . . . , as to the mental condition of that person.” (§ 288.1.) This obligates a sentencing court, if it is considering probation in a child molestation case, “to consider the totality of the defendant’s behavior as it bears on his mental condition, treatability, and suitability for probation.” (People v. Lamb (1999) 76 Cal.App.4th 664, 683.) As the parties’ arguments assume, this is akin to a juvenile social study report. Whenever a minor appears before a juvenile court for disposition, a probation officer must prepare “a social study of the minor, containing such matters as may be relevant to a proper disposition of the case.” (Welf. & Inst. Code, § 280.) A social study report is “relevant only to the problem of disposition of the minor [and] should not come before the court until jurisdiction has been established.” (In re Corey (1968) 266 Cal.App.2d 295, 299.) This is because the juvenile delinquency procedures are designed “ ‘to make certain the jurisdictional order is made before the social study report containing material irrelevant to the issue of guilt is considered.’ ” (In re James B. (2003) 109 Cal.App.4th 862, 874; see also Cal. Rules of Court, rule 5.780(c) [“Except as otherwise provided by law, the court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing”].)

The People do not contend juvenile courts may review such inadmissible opinion evidence prior to the jurisdiction hearing. As the juvenile court here noted, “it’s not appropriate for the Court to read and consider [the section 288.1 report] if subsequently sitting on a jurisdictional hearing, as I am now.” Thus, the contested issue is whether A.B. waived objection to any error. We find he did.

“ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (People v. Saunders (1993) 5 Cal.4th 580, 590.) Waiver is related but distinct from forfeiture. “While forfeiture is the failure to make the timely assertion of a known right, ‘waiver’ is the ‘ “intentional relinquishment or abandonment of a known right.” ’ ” (In re Campbell (2017) 11 Cal.App.5th 742, 755.) “ ‘The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and the conduct of the accused.’ ” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662.)

“ ‘Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo.’ ” (People v. Mitchell (2011) 197 Cal.App.4th 1009, 1015.)

There are a few cases involving waiver and forfeiture in the context of a social study report. Our Supreme Court discussed this issue in In re Gladys R. (1970) 1 Cal.3d 855. There, the juvenile court considered the social study report prior to the jurisdiction hearing and the minor’s counsel failed to object. (Id. at pp. 858-859, 861.) The court found the minor’s counsel’s failure to object did not bar consideration of the issue on appeal because the then-recently decided In re Corey “interpreted statutory provisions whose interpretation had previously remained unsettled. . . . [W]e cannot expect an attorney to anticipate that an appellate court will later interpret the controlling sections in a manner contrary to the apparently prevalent contemporaneous interpretation.” (In re Gladys R., at p. 861.)

A later appellate decision pronounced a broader rule. In In re D.J.B. (1971) 18 Cal.App.3d 782, the court declared: “The review by the juvenile court of a probation report or social study prior to or during the jurisdictional hearing constitutes prejudicial error even though no objection is made at the juvenile court hearing to the court’s premature use of such report or social study.” (Id. at p. 784.)

Finally, in In re Christopher S. (1992) 10 Cal.App.4th 1337, the appellate court disagreed with In re D.J.B.’s finding that a failure to object will never bar consideration of this type of error. It instead found our Supreme Court in In re Gladys R. still addressed the error, despite the failure to object, because “it would have been unfair to require defense counsel to anticipate its holding, which was contrary to the prevailing interpretation of the law.” (In re Christopher, at p. 1345.) Thus, it concluded an objection to a juvenile court considering the social study report “must be raised to the juvenile court or it is waived on appeal; we therefore depart from the conclusion reached in In re D.J.B.” (Ibid., fn. omitted.)

A.B. argues we must follow and apply In re D.J.B; we disagree. We find In re Christopher’s analysis of In re Gladys R. persuasive. The Supreme Court in In re Gladys R. explicitly tied its forfeiture analysis to the then-recent changes in the law, which is a well-established exception to the forfeiture rule. (People v. Perez (2020) 9 Cal.5th 1, 7-8 [“ ‘ “[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence” ’ ”].) This exception is inapplicable here. Consequently, there is nothing in In re Gladys R. justifying a departure from well-established rules of forfeiture and waiver.

Under these rules, A.B.’s counsel waived any issue with the juvenile court possibly reviewing the section 288.1 report prior to the jurisdiction hearing. A.B.’s counsel not only failed to object but made an intelligent and knowing waiver. Counsel had previously sent an e-mail to the prior judge indicating, correctly, that the juvenile court was not permitted to review the report prior to the jurisdiction hearing. This law was reiterated by the new judge who stated it was not proper to review the report. But knowing this, counsel expressly waived any issue after conversations in chambers with the court, seemingly agreeing the court could still be fair and impartial. Under these circumstances, it would be improper to allow A.B. to reopen an issue expressly waived.[2] (People v. Saunders, supra, 5 Cal.4th at p. 590 [“ ‘ “it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial” ’ ”].)

II

Knowledge Of Wrongfulness

A.B. next argues there was insufficient evidence rebutting the presumption of innocence based on his age and inability to understand right from wrong. We disagree.

Under section 26, children under the age of 14 are incapable of committing crimes except when there is “clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” The presumption of a minor’s incapacity to commit crimes may therefore be “ ‘rebutted by clear and convincing evidence’ that the minor defendant knew the act’s wrongfulness.” (People v. Lewis (2001) 26 Cal.4th 334, 378.) This evidence is often derived from “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. [Citations.] 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., supra, 109 Cal.App.4th at pp. 872-873.)

“[W]e review the juvenile court’s ruling under Penal Code section 26 to determine if it is supported by substantial evidence.” (In re J.E. (2020) 54 Cal.App.5th 309, 313.) And because the juvenile court’s finding required clear and convincing evidence, we “must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)

Such evidence is found here. The most clear and convincing evidence is A.B. telling N.B. not to tell anyone. A.B. would have no reason to conceal his acts with N.B. if he did not think they were wrong. This inference is reinforced by H.B.’s statements on video, and reiterated by A.R. at the hearing, that A.B. had first asked H.B. if he could do similar acts to her and H.B. declined. From this, A.B. was on notice these kinds of acts were at a minimum not welcomed by everyone. But A.B. then went to his younger cousin who had a limited understanding of what A.B. was doing to him. There is also evidence A.B. put his penis inside N.B. twice -- once when he was caught by H.B. and once when he was caught by A.R. This indicates A.B. was explicitly told by either H.B. or A.R., that what he was doing with N.B. was wrong and yet did it again.

Other evidence includes A.B. rushing to put his clothes on when H.B. walked in and A.R.’s testimony she thought A.B. understood right from wrong. A.R. was A.B.’s aunt and had lived with A.B. so had intimate knowledge and experience with A.B. and his ability to understand right from wrong.

Based on all of this circumstantial evidence, there is sufficient evidence to support a finding by clear and convincing evidence A.B. understood the wrongfulness of his actions.

DISPOSITION

The judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Duarte,, J.

/s/

Renner, J.

[1] Undesignated section references are to the Penal Code.

[2] A.B. also contends the court improperly considered the “probation officer’s report.” The juvenile could not have prematurely considered the probation officer’s report because it was filed after the jurisdiction hearing. The court’s reference to a “probation report” at the disposition hearing indicates it was referring to an “intake report.” If A.B. intended to challenge consideration of this report, A.B.’s counsel waived any issue with the juvenile court improperly reviewing this report as well because the waiver covered both “reports.”