Clyde H., In re

• Decision Date: 24 April 1979
• Docket Number: Cr. 33111
• Citation: Clyde H., In re, 154 Cal.Rptr. 727, 92 Cal.App.3d 338 (Cal. App. 1979)
• Court: California Court of Appeals
• Parties: In re CLYDE H., a person coming under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. CLYDE H., Defendant and Appellant.

Page 727

154 Cal.Rptr. 727

92 Cal.App.3d 338

In re CLYDE H., a person coming under the Juvenile Court LawThe PEOPLE of the State of California, Plaintiff and Respondent, v.CLYDE H., Defendant and Appellant.

Cr. 33111.

Court of Appeal, Second District, Division 5, California.

April 24, 1979.

Hearing Denied July 19, 1979.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, and Adrian K. Panton, Deputy State Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Vincent J. O'Neill, Jr., Deputy Attys.Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

The juvenile court found appellant to be a person described by Welfare and Institutions Code section 602 in that he committed assault (Pen.Code, § 242) by throwing a brick at Maria Lopez.Suitable placement was ordered.

At the time of the offense, March 10, 1978, appellant was 11 years old, and the victim, Maria Lopez, was 4 years old.Maria's mother was in her yard hanging clothes where her children were playing.Maria came running up to Mrs. Lopez crying and with her head bleeding.A piece of brick, which had not been there before, was lying on the ground.Maria said that appellant had thrown the brick at her, and she pointed him out.Mrs. Lopez saw appellant walking down the alley next to the yard.She was familiar with him, having seem him in the area daily for about a year.¹

On numerous occasions, Mrs. Lopez had seen appellant throwing rocks or bottles at her family at the house.When she would come out, he would run away.Just that morning, appellant was chasing her children with a stick outside her house.As he walked away, appellant threw the stick to Mrs. Lopez.

Sam Castagna had been living with appellant and appellant's mother for nine years.He had talked to appellant a number of times about the problems appellant had in the community.From time to time he had told appellant never to hit other children."When a parent would come and complain, said that Clyde had thrown something, I told Clyde it was wrong to be throwing."Appellant sometimes said that the other children hit him first.Mr. Castagna told appellant that two wrongs never make a right and that it is wrong for him to hit back.Mr. Castagna continued to get reports, however, that appellant was hitting other children.The latest incident about which he and appellant had talked occurred shortly before this one, at the end of February.On that occasion, appellant denied that he threw any rock and Mr. Castagna accepted appellant's explanation.

In Mr. Castagna's opinion, appellant only partially understood what Mr. Castagna had told him about hitting other children.Appellant would say, "I'm sorry"; but Mr. Castagna "didn't believe the boy actually understood the seriousness of what he was doing, of how he could injure somebody by throwing something.To him, he was just playing."Appellant was "slow in learning" and did "not completely" know the difference between right and wrong.Appellant behaved himself around the house and around Mr. Castagna, but not when he got outside.

Dr. (Ph.D.) Vasanti Burtle, a psychologist, examined appellant in connection with this case.Appellant told her that he had been told by his parents and at school that it was wrong for him to engage in these acts.Dr. Burtle asked appellant to draw a picture of himself doing something good.He drew a picture of himself throwing a rock.When Dr. Burtle asked him, "Is that a good thing to do?"he"retracted and said no, and he took back the drawing.And he put in a hanging lamp and a carpeting on the floor, and he changed the title to Clyde dancing."When she asked him to draw a picture of himself doing something bad or wrong, he drew a picture of himself holding a rock.Appellant said juvenile hall was a place for bad people who go to court and that people who do bad things go to jail.He said it was fun to throw rocks.

Dr. Burtle was informed that appellant's I.Q. was 67.He did not appear to be retarded organically, but he was far behind developmentally.By this Dr. Burtle meant that defendant lacked the ability to conceptualize or generalize.He could not abstract, but thought in concrete terms like a first grader.²His hyperactivity also made it difficult for him to learn.Appellant"will learn by example and apply to that example, I think.He cannot generalize, so if he hits A with a rock, maybe, and I say maybe, he will learn that he is not supposed to hit A with a rock, but he may hit B with a rock."Dr. Burtle's opinion, appellant"cannot abstractly distinguish between right and wrong, nor can he appreciate the wrongness of an act prospectively that is in the future."However, on questioning by the court, Dr. Burtle stated that appellant"understands (that it is wrong to throw rocks at people) now, I think.It's been repeated so often to him. . . .( P )By now he does, I hope."She further conceded, in connection with the pictures appellant had drawn, that appellant"could have a feeling . . . that even though he knows it's wrong to throw rocks at peoplehe could feel good about throwing rocks at people."

DISCUSSION

Appellant contends the evidence is insufficient to show that he knew the wrongfulness of his act.Penal Code section 26, subdivision 1, provides: "All persons are capable of committing crimes except those belonging to the following classes: ( P ) 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."In re Gladys R., 1 Cal.3d 855, 862, 83 Cal.Rptr. 671, 464 P.2d 127, holds that this standard must be satisfied to sustain a finding that a minor under the age of 14 comes within Welfare and Institutions Code section 602.In sustaining the petition, the trial court found "that the Gladys R. issue has been met."³We hold the evidence is sufficient to sustain the trial court's finding.

Preliminarily, appellant contends that the statutory standard of "clear proof" set forth in Penal Code section 26 must, as a matter of constitutional law, be interpreted to mean "beyond a reasonable doubt," because a child's capacity to commit a crime is "intertwined" with the determination that he did commit a crime (citingIn re Winship, 397 U.S. 358, 363-364, 90 S.Ct. 1068, 25 L.Ed.2d 368).This argument lacks merit.Since the Legislature may constitutionally require an adult criminal defendant to prove insanity by a preponderance of the evidence.(People v. Drew, 22 Cal.3d 333, 348-349, 149 Cal.Rptr. 275, 583 P.2d 1318), it may constitutionally set forth by statute the standard by which a minor of a given age shall be found capable of committing a crime.The trial court properly utilized the statutory standard of "clear proof."(SeeIn re Gladys R., supra, 1 Cal.3d at p. 867, 83 Cal.Rptr. 671, 464 P.2d 127;In re Cindy E., 83 Cal.App.3d 393, 398, 147 Cal.Rptr. 812.)

It is the trier of fact, not the appellate court, which must apply the statutory standard.Our function is simply to determine whether there is substantial evidence to support the conclusion of the trier of fact.(People v. Hillery, 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 401 P.2d 382;In re Roderick P., 7 Cal.3d 801, 808-809, 103 Cal.Rptr. 425, 500 P.2d 1.)The evidence in this case supports the trial court's conclusion that appellant knew the wrongfulness of his act.

The record shows that this was only one of numerous instances of appellant's throwing rocks at other children.He had been told numerous times that this was wrong.Mr. Castagna, appellant's guardian, had talked to appellant about this many times, because it had been a problem in the community, and had emphasized to appellant that it was wrong.The psychologist also, despite her general opinion that appellant had difficulty in applying moral teachings to future conduct, conceded that through numerous experiences and repeated warnings on the subject, appellant could learn that it was wrong to throw rocks at people.She stated that appellant"understands (that it is wrong to throw rocks at people) now, I think.It's been repeated so often to him. . . .(P) By now he does, I hope."Appellant's prior involvement in similar offenses and the repeated warnings to him that such conduct was wrong were compelling circumstances from which the trial court could infer the requisite knowledge.(In re Carl L., 82 Cal.App.3d 423, 424-425, 147 Cal.Rptr. 125;In re Harold M., 78 Cal.App.3d 380, 389, 144 Cal.Rptr. 744.)As sole judge of the credibility of witnesses and the weight of the evidence, the trial judge was not required to accept any inference from conflicting evidence that appellant did not understand these warnings.(SeeIn re Patrick W., 84 Cal.App.3d 520, 527, 148 Cal.Rptr. 735;In re Carl L., supra, 82 Cal.App.3d at p. 425, 147 Cal.Rptr. 125.)

There was additional evidence that appellant knew such conduct was wrong.Mrs Lopez described past similar incidents of rock throwing where appellant ran away after she appeared.This suggests consciousness of guilt.(SeeIn re Harold M., supra, 78 Cal.App.3d at p. 388, 144 Cal.Rptr. 744.)Appellant left the scene on the instant occasion also.Furthermore, in discussing previous incidents with Mr. Castagna, appellant said, "I'm sorry."The evidence supports the trial court's findings.

DISPOSITION

Pursuant to Welfare and Institutions Code section 726the court found that the welfare of the minor requires that his custody be taken from his parent or guardian, and appellant was placed in the custody of the probation officer for suitable placement for a maximum of six months.(SeeWelf & Inst.Code, §§ 726,727,730.)

Appellant contends that under rule 1372(b), subdivision (3), of the California Rules of Courtthe trial court was...