California Court of Appeal Apr 12, 2013 No. D062029Unpublished
Filed 4/12/13 In re Quincy A. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re QUINCY A., a Person Coming Under the Juvenile Court Law. D062029 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J230570)
v.
QUINCY A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Browder
A. Willis III and Richard R. Monroy, Judges. Affirmed in part and remanded with
directions.
The district attorney filed a petition in the juvenile court accusing Quincy A.
(Minor) of two counts of unlawfully entering a residence of another with the intent to
commit theft at a time when the residence was occupied by another (Pen. Code, §§ 460 &
667.5, subd. (c);1 counts 1 & 2). It was further alleged the Minor committed three counts
of petty theft (§ 484; counts 3, 5 & 7) and two counts of entering a building with the
intent to commit theft (§ 459; counts 4 & 6).
Following a contested hearing, the court found the allegations contained in counts
2, 4, 5, 6 and 7 to be true. The Minor was declared a ward of the juvenile court and
placed on probation.
The Minor appeals, contending (1) all counts must be reversed because the
"To establish a valid waiver of an accused person's right to counsel and to remain
silent, the People must show, by a preponderance of the evidence, that the accused
voluntarily, knowingly and intelligently waived such rights. [Citations.]" (In re
Bonnie H. (1997) 56 Cal.App.4th 563, 577.) Whether a juvenile knowingly and
intelligently waived his privilege requires courts to consider the "totality of the
circumstances surrounding the interrogation, to ascertain whether the accused in fact
knowingly and voluntarily decided to forgo his rights to remain silent and to have the
assistance of counsel." (Fare v. Michael C. (1979) 442 U.S. 707, 725.) This approach
mandates inquiry into all the circumstances surrounding the interrogation, including
evaluation of the juvenile's age, experience, education, background and intelligence, and
whether he has the capacity to understand the warnings given him, the nature of his Fifth
Amendment rights and the consequences of waiving those rights. (Id. at pp. 725-726.)
While age is important in determining voluntariness, emphasis on that criteria does not
mean a different standard of proof applies to juveniles than to adults. (Id. at p. 725.)
Here, the Minor was 13 years old at the time he was interviewed by Officers
Kolombatovic and Larson while sitting at a lunch table outside his school regarding the
events surrounding the thefts at the 7-Eleven store. Before initiating the conversation,
Officer Kolombatovic read the Minor his rights under Miranda and asked if the Minor
understood those rights. In response to the second two warnings, the Minor said he was
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unfamiliar with the term "attorney" and Officer Kolombatovic clarified "attorney" means
lawyer. Officer Kolombatovic then asked the Minor if he wished to waive those rights.
The Minor initially responded he wasn't sure, so Officer Larson asked if the Minor would
be willing to answer questions with which he was comfortable, while telling him he did
not have to answer questions about which he was not comfortable. The Minor replied
"Yes" and proceeded to answer some, but not all, of Officer Kolombatovic's questions.
Notably, when Officer Kolombatovic asked the Minor why he had taken cigarettes from
the 7-Eleven store, the Minor replied "No comment."
The totality of the circumstances on the record establishes the Minor understood
his rights under Miranda and he knowingly and voluntarily waived those rights. The
officer's unchallenged trial testimony established the Minor was in a noncoercive
environment while seated outside on the lunch tables at his school being interviewed.
During the Miranda warnings, Officer Kolombatovic clarified any portions of the
advisement the Minor did not understand before asking the Minor if he would answer
questions. Further, the Minor agreed to answer questions he was comfortable with after
receiving his Miranda warning. The totality of the circumstances therefore establishes by
a preponderance of the evidence the Minor knowingly, intelligently and voluntarily
waived his Miranda rights and the court's ruling on the objection was proper.
3. Knowledge of the Wrongfulness of the Acts
Next, the Minor claims the court failed to make a section 26 finding that he
understood the wrongfulness of his conduct. We disagree.
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When a minor contends there is insufficient evidence to support the determination
that he understood the wrongfulness of his conduct, "[w]e review the whole record most
favorably to the judgment to determine whether there is substantial evidence--that is,
evidence that is reasonable, credible, and of solid value--from which a reasonable trier of
fact could have made the requisite finding under the governing standard of proof." (In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.)
A juvenile under the age of 14 is presumed incapable of committing a crime, but
the presumption can be rebutted upon clear and convincing proof the minor appreciated
the wrongfulness of the criminal act alleged. (§ 26; In re Manuel L. (1994) 7 Cal.4th 229,
231-232.) A child's knowledge of the wrongfulness of his conduct is rarely susceptible of
direct proof and generally must be established by circumstantial evidence and the
reasonable inferences from it. (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.)
A court should consider "the minor's age, experience, and understanding, as well as the
circumstances of the offense, including its method of commission and concealment.
[Citations.]" (In re James B. (2003) 109 Cal.App.4th 862, 872, 873.) As a child
approaches the age of 14, the more likely it is for the child to appreciate the wrongfulness
of his acts. (Id. at pp. 872-873.) The conduct and statements of a minor during the
commission of the crime or after its commission may also evidence an awareness of the
wrongfulness of the conduct. (In re Cindy E. (1978) 83 Cal.App.3d 393, 400.)
Here, there was clear and convincing evidence on the record from which the court
could have concluded the Minor understood the wrongfulness of his conduct. The Minor
committed the thefts in late October and November when he was 13 and his 14th birthday
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in February was approaching. At trial, Officer Kolombatovic testified he asked the
Minor several questions to determine whether the Minor knew the difference between
right and wrong and whether the Minor knew stealing cigarettes was wrong. In response,
the Minor provided examples of right and wrong conduct and explicitly stated he knew
stealing cigarettes from the 7-Eleven store was wrong. The court was entitled to rely on
the testimony at trial in making its finding under section 26 and that testimony provided
clear and convincing evidence the Minor knew the wrongfulness of his actions.
Further, the parties stipulated section 26 was established at trial. At the
disposition hearing, the discussion leading to the stipulation was as follows:
"The Court: The parties stipulating -- let's stipulate to -- are the parties willing to stipulate to the fact that [Penal Code section] 26 was in fact established either at a prior court proceeding or by agreement?
"[The Defendant]: We will submit.
"The Court: The parties stipulate that the issue of [Penal Code section] 26 was established at a prior court proceeding."
Therefore, in addition to the clear and convincing evidence provided at trial, the parties
stipulated to the satisfaction of section 26 requirements and no further finding was
necessary.
4. Misdemeanor/Felony Declaration
Finally, the Minor contends the juvenile court's failure to expressly state on the
record whether the true findings were felonies or misdemeanors mandates a remand for
that purpose. We agree.
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Welfare and Institutions Code section 702 provides when a juvenile defendant is
found to have committed a wobbler—i.e., an offense that would in the case of an adult be
punishable alternatively as a felony or a misdemeanor—"the court shall declare the
offense to be a misdemeanor or felony." The purpose of Welfare and Institutions Code
section 702 is to ensure the juvenile court is aware of its discretion to treat the offense as
a misdemeanor and exercises its discretion. (In re Manzy W. (1997) 14 Cal.4th 1199,
1207.) The commercial burglary in counts 4 and 6 are "wobbler" offenses. (§§ 459 &
460.)
The Supreme Court has held Welfare and Institutions Code section 702 requires an
express, formal finding by the juvenile court as to felony or misdemeanor nature of a
wobbler. (In re Manzy W., supra, 14 Cal.4th at p. 1204.) Neither a court's recitation of
the felony charge made in the petition nor a court's commitment of the juvenile offender
for the maximum, felony-length term, nor a minute order reciting that an offense is or
could be a "felony," constitutes full compliance with the statutory mandate. (In re Ricky
H. (1981) 30 Cal.3d 176, 191; see also In re Manzy W., at pp. 1207-1209; In re Dennis C.
(1980) 104 Cal.App.3d 16, 23; In re Jeffery M. (1980) 110 Cal.App.3d 983, 985.)
Here, the court's failure to fully comply with Welfare and Institutions Code section
702 was error requiring remand to the juvenile court for the limited purpose of formally
designating each offense as a misdemeanor or a felony and possible recalculation of the
maximum period of confinement. (See In re Manzy W., supra, 14 Cal.4th at p. 1211.)
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DISPOSITION
The matter is remanded to the juvenile court for compliance with Welfare and
Institutions Code section 702 and possible recalculation of the Minor's maximum period
of confinement. In all other respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.
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Holding. The court affirmed the juvenile court's true findings regarding the minor's conduct but remanded the case for the trial court to expressly declare whether the "wobbler" offenses are felonies or misdemeanors as required by Welfare and Institutions Code section 702.
Issues
Whether the surveillance video evidence was properly authenticated.
Whether the minor knowingly and intelligently waived his Miranda rights.
Whether the court failed to make a finding that the minor understood the wrongfulness of his conduct under Penal Code section 26.
Whether the court failed to exercise its discretion to declare offenses as felonies or misdemeanors.
Disposition. Affirmed in part and remanded.
Quotations verified verbatim against the opinion
“The surveillance videos were not admissible unless they were properly authenticated.”
“The totality of the circumstances therefore establishes by a preponderance of the evidence the Minor knowingly, intelligently and voluntarily waived his Miranda rights”
“The court's failure to fully comply with Welfare and Institutions Code section 702 was error requiring remand”