In Re TRS

1 Cal.App.3d 178 (1969) 81 Cal. Rptr. 574 In re T.R.S., a Person Coming Under the Juvenile Court Law.

MARGARET C. GRIER, as Chief Probation Officer, etc., Plaintiff and Respondent,

v.

T.R.S., Defendant and Appellant.

Docket No. 9576. Court of Appeals of California, Fourth District, Division One.

October 24, 1969. [180] COUNSEL

Cohen & Stokke and Allan H. Stokke for Defendant and Appellant.

Cecil Hicks, District Attorney, and Michael R. Capizzi, Deputy District Attorney, for Plaintiff and Respondent.

OPINION

COUGHLIN, J.

The minor was declared a ward of the juvenile court because he killed a human being in the commission of a lawful act which might produce death, without due caution and circumspection, thereby violating Penal Code section 192, subdivision 2; was placed in the custody of his parents under terms of probation; and appeals. Previously the court denied his motions for a preliminary hearing or, in the alternative, for an order that the case against him first be presented to the grand jury, and for trial by jury. After filing his notice of appeal he moved the court for an order directing the preparation of the transcript on appeal without charge to him, and this motion was denied. On appeal he seeks reversal of the order declaring him a ward upon the grounds: (1) The evidence is insufficient to support the finding he violated Penal Code section 192, subdivision 2; and (2) denial of the aforesaid motions was error.

That version of the evidence most favorable to the order supports the conclusion the minor, an 11-year-old boy in the fifth grade, of average intelligence, shot and killed another boy; his parents had instructed him to stay out of the bedroom of a half-brother in which there was a shotgun and a .45 caliber automatic pistol, to leave these guns alone, not to touch them, and not to play with them; his father told him "a gun is dangerous at all times" and even if "you know they're unloaded, treat them as though they are loaded because they are dangerous"; in spite of these warnings he had played with the guns; on the day of the fatal shooting he came out of the house into the front yard with the shotgun; his brother, S., told him to take the gun back, and he complied; he reappeared in the yard with the .45 caliber pistol; on the way out of the house he pulled back the hammer on the gun which cocked the pistol; when on the outside the victim asked him if the gun was real; thereupon he replied it was a real gun, pointed the gun in the direction of the victim, who was about 4 feet away, and pulled the trigger, firing the gun which was loaded; the bullet struck the victim in the face and killed him; he, the minor, testified he knew if the gun had bullets in it someone could be seriously hurt or killed with a bullet from the gun; he believed the gun was unloaded, but he knew he should handle it "so that if