C. D. H., In re

• Citation: 86 Cal.Rptr. 565,7 Cal.App.3d 230
• Court: California Court of Appeals
• Decision Date: 05 May 1970
• Parties: In re C.D.H., Jr., A Minor. James D. LESLIE, Deputy Probation Officer, Plaintiff and Respondent, v. C.D.H., Jr., a Minor, Defendant and Appellant. Civ. 27442.

Page 565

86 Cal.Rptr. 565

7 Cal.App.3d 230

In re C.D.H., Jr., A Minor.

James D. LESLIE, Deputy Probation Officer, Plaintiff and Respondent, v. C.D.H., Jr., a Minor, Defendant and Appellant.

Civ. 27442.

Court of Appeal, First District, Division 4, California.

May 5, 1970.

Hearing Denied July 1, 1970.

Mathews, Traverse & McKittrick, Eureka, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

C.D.H., Jr., appeals from an order of the juvenile court adjudging him to be a minor coming under the jurisdiction of the juvenile court, pursuant to Welfare and Institutions Code, section 602, in that appellant violated Penal Code, section 245 (assault with a deadly weapon) by shooting Keith Baldy with a .22 rifle.

On the evening of the shooting appellant, the victim Keith Baldy, and other juveniles were amusing themselves with music, cards, and drink in a trailer house near the village of Hoopa. As the victim was washing his hands, appellant called out his name and then shot him in the back. Appellant had earlier declared his intention of getting a gun and shooting the others. He had been drinking; the victim testified that he therefore did not take this statement as an actual threat. A girl who was present had earlier picked up the rifle, worked the lever, looked into the chamber, and determined that the rifle was then not loaded. Just before the shooting appellant went to a nearby house where the victim's mother was and told her 'that there was some disturbance over there.' She followed appellant back to the trailer and saw the shooting. She testified, 'Well, I don't think it was intentionally, I believe maybe he was bluffing them, as I said; I thought it was a BB gun.'

On appeal it is contended that there was not sufficient evidence to establish that the shooting was other than accidental. We must deal with this contention in the light of the United States Supreme Court's holding (In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368) that proof beyond a reasonable doubt is requisite to due process at the adjudicatory stage of a juvenile court proceeding. Because the present case is before us on direct review, no question of retrospective application is presented; the Winship rule is applicable. (Cf. Linkletter v. Walker (1965) 381 U.S. 618, 625--627, 14 L.Ed.2d 601, 605--607, 85 S.Ct. 1731, 1735--1736.) In reviewing the sufficiency of the evidence to support the jurisdictional finding, we are therefore to apply the test applicable to the same issue if presented in a criminal appeal (i.e., a case in which the beyond-reasonable-doubt standard of proof was to be applied by the trier of fact). The appellate court must determine whether a reasonable trier of fact could have found that, beyond a reasonable doubt, the jurisdictional allegations of the petition were true. (Cf. People v. Redmond (1969) 71 A.C. 775, 79 Cal.Rptr. 529, 457 P.2d 321; People v. Bassett (1968) 69 Cal.2d 122, 70 Cal.Rptr. 193, 443 P.2d 777.) The evidence reviewed above is sufficient to enable a reasonable trier of fact to conclude that beyond a reasonable doubt appellant intentionally shot Keith Baldy. The theory that the shooting was accidental is repelled by the following facts:

(1) Before the shooting appellant declared 'that he was going to get a gun and shoot us.'

(2) Before the shooting another juvenile had determined that the gun was not loaded, thus raising an inference that appellant loaded the weapon in order to shoot the victim.

(3) Before the shooting appellant got the victim's mother out of bed with the statement that there was a disturbance at the trailer house.

(4) Appellant's calling out of the victim's name just before the shooting suggests, in the light of the other circumstances reviewed, that the shooting was intentional.

This evidence is sufficient to support a determination that there was an assault with a deadly weapon. (People v. Wright (1968) 258 Cal.App.2d 762, 767, 66 Cal.Rptr. 95, cert. den. 393 U.S. 896, 89 S.Ct. 154, 21 L.Ed.2d 177.) The evidence suggests that several of the young people present, perhaps including appellant, were intoxicated. But such intoxication would not be a defense where liability was not dependent upon a showing of specific intent. (People v. Hood (1969) 1 Cal.3d 444, 452, 82 Cal.Rptr. 618, 462 P.2d 370.)

The application of the Winship doctrine presents a further problem. Although the evidence was strong, its effect was dependent upon the credibility of the witnesses and upon inferences to be drawn by the judge. The record is silent as to the standard of proof applied by the judge, but because Winship had not yet been decided it is possible that the judge had some reasonable doubt but nevertheless found the allegations of the petition to be true under the preponderance of the evidence test stated in Welfare and Institutions Code, section 701. We learn from Winship that the test given in section 701 is unconstitutional; if that test was applied...