In Re Preston B.

273 Cal.App.2d 607 (1969) In re PRESTON JUNIOR B., a Person Coming Under the Juvenile Court Law. FRANK L. BAILEY, as Probation Officer, etc., Plaintiff and Respondent,

v.

PRESTON JUNIOR B., Defendant and Appellant.

Civ. No. 1033. California Court of Appeals. Fifth Dist.

June 2, 1969. Annette La Rue for Defendant and Appellant.

Thomas C. Lynch, Attorney General, Daniel J. Kremer and James T. McNally, Deputy Attorneys General, for Plaintiff and Respondent.

CONLEY, P. J.

The minor, aged 15 years at the time of his hearing in the juvenile court, appeals from the judgment finding him to be a ward of that court by reason of his breach of the law in making lewd telephone calls to one of his teachers. The petition filed February 7, 1968, states that he comes within the provisions of section 602 of the Juvenile Court Law in that "said minor, Preston Junior [B.] on or about the 23rd day of January, 1968, with intent to annoy did make a lewd telephone call to Mrs. Eileen Risley, thereby violating section 653m of the Penal Code of California." The petition names the parents of the minor. He was represented at all stages of the hearing by Fresno attorney, Annette La Rue, who also acts for him on the appeal.

There is no question but that some minor made the lewd telephone calls to Mrs. Eileen Risley, a teacher at the Washington Union High School. The essential subject of conflict between the affirmative findings of the court and the negative testimony of Preston Junior B. is the identity of the telephone caller. The experienced trial judge, who heard the testimony in detail, was of the opinion that Preston Junior B. was [609] the male adolescent who made the lewd calls to his teacher. On the contrary, Preston Junior B. maintains stoutly that he did not telephone to her. [1] We have in mind the rule enunciated by the Supreme Court of California that the trial judge in matters of this kind is required to decide a factual question in accordance with a preponderance of the evidence, rather than to a moral certainty and beyond all reasonable doubt. (In re Dennis M., 70 Cal.2d 444 [75 Cal.Rptr. 1, 450 P.2d 296].) [2] A review of the record of evidence and a consideration of the arguments of counsel, both orally in this court and in their briefs, has convinced us that the trial judge had before him substantial evidence of the guilt of the minor defendant, and that his conclusion that Preston Junior B. was a fit and proper subject for further proceedings as a ward of the juvenile court was correct.