Opinion
S265077
12-30-2020
IN RE J.E.
A156839 First Appellate District, Div. 4
Petition for review denied
Liu and Cuéllar, JJ., are of the opinion the petition should be granted.
DISSENTING STATEMENT BY JUSTICE LIU
Under Penal Code section 26, a child under the age of 14 is presumed to be incapable of committing a crime. To overcome this presumption, there must be clear and convincing evidence that the child knew the wrongfulness of the act committed. (In re Manuel (1994) 7 Cal.4th 229, 232.) This heightened standard of proof serves to narrow the gateway into the juvenile justice system, an inauspicious path that “significantly increases [a child's] likelihood of dropping out of school and entering the criminal justice system.” (In re A.N. (2020) 9 Cal.5th 343, 365 (conc. opn. of Liu, J.).) Because the record in this case does not appear to contain substantial evidence that satisfies the “high probability demanded by [the clear and convincing] standard of proof” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005), I would grant review.
On January 27, 2019, A.R. called the police after an altercation with her 13 year old daughter, J.E. The two sheriff's deputies who responded to the call spotted J.E. walking down the street and told J.E. they needed to escort her home to speak with her mother. J.E. refused and attempted to walk away. The deputies grabbed J.E.'s arms, at which point J.E. twisted, turned, flailed her legs, and ultimately kicked a deputy in the stomach.
After placing J.E. in the patrol car, the deputies drove to A.R.'s apartment and allowed her to approach the vehicle to speak with J.E. At some point, J.E. said to the deputies, “I'm done. Can you please have my mom leave.” A.R. then yelled at J.E., “I hope you die. I hope they beat your ass in there. I hope they never let you out.” When the deputies instructed A.R. to move away from the car, she refused and “continued to yell obscenities. At that point, she yelled, ‘F you, B' to Deputy Spangler.” The deputies then drove away.
On January 29, 2020, the Attorney General filed a juvenile wardship petition alleging that J.E. committed misdemeanor battery upon a peace officer and misdemeanor resisting, obstructing, or delaying a peace officer. J.E. moved to dismiss the wardship petition, arguing that the prosecutor failed to establish that J.E. had the requisite capacity to commit the alleged crimes. The court denied the motion and sustained the wardship petition. The Court of Appeal affirmed the juvenile court's finding that J.E. knew her conduct was wrongful, explaining that her behavior was “conduct that, whether it is aimed at a peace officer or anyone else, most 13-year-olds know is wrong.” (In re J.E. (2020) 54 Cal.App.5th 309, 314.) The court also opined that “J.E. was in eighth grade at the time of the incident, and part of going to school is learning to respect other people, including teachers and other authority figures.” (Id. at p. 315.)
In many circumstances, it is reasonable for judges to rely on experience and commonsense assessments like those made by the Court of Appeal. But “common sense” cuts more than one way in this context. (Miller v. Alabama (2012) 567 U.S. 460, 471; see ibid. [children have “diminished culpability” because of their lack of maturity, underdeveloped sense of responsibility, impulsivity, and susceptibility to peer pressure, as “ ‘any parent knows' ”].) Further, it is important to focus on the record evidence in this case before lumping J.E. together with “most 13-year-olds.”
J.E., barely a teenager, had no previous encounters with law enforcement officers and lived with a mother who modeled physically and verbally confrontational behavior when under stress. A.R. taught J.E. to “stand up for herself” and “defend herself.” The only evidence in the record bearing on whether J.E. understood how to conduct herself during encounters with the police was A.R.'s testimony that she never spoke with J.E. about “how to interact with police officers,” “respecting of police officers' commands or authority,” or “stopping when a police officer told her to.”
Moreover, J.E. experienced this interaction with law enforcement as an African American. If we are to take notice of what “most 13-year-olds know,” then we should also take notice of the social reality that interactions between the police and Black youth are often fraught with distrust and risk of violence. As Justice Streeter observed, “If the widespread public tumult of late over police violence in our country has taught anything, it is that many people in minority communities, particularly young people, live in fear of even routine interactions with law enforcement.” (In re J.E., supra, 54 Cal.App.5th at p. 320 (conc. & dis. opn. of Streeter, J.).) When the two deputies grabbed J.E.'s arms, she may well have thought that the deputies were trying to harm her.
The record before the juvenile court appears to contain nothing close to clear and convincing evidence that J.E. understood the wrongfulness of her conduct. To the contrary, the evidence of her troubled relationship with her mother strongly indicates that J.E. did not learn right from wrong at home. (See Miller v. Alabama, supra, 567 U.S. at p. 471 [“children ‘are more vulnerable . . . to negative influences and outside pressures,' including from their family and peers”].) However obvious it may seem to “most 13-year-olds” that kicking a police officer is wrongful conduct, the controlling legal inquiry requires us to step into J.E.'s shoes and “consider the particular circumstances and perspective of the individual child before [us], rather than [relying] on generalizations about what children of a certain age should know.” (In re J.E., supra, 54 Cal.App.5th at pp. 314-315.)
The Court of Appeal emphasized that J.E. “was less than a month from her fourteenth birthday.” (In re J.E., supra, 54 Cal.App.5th at p. 314.) But the Legislature has determined that the “harsh strictures” of a delinquency adjudication may apply “only to those who are over 14 and may be presumed to understand the wrongfulness of their acts and to those under the age of 14 who clearly appreciate the wrongfulness of their conduct.” (In re Gladys R. (1970) 1 Cal.3d 855, 867; see id. at p. 864 [“[Penal Code] section 26 provides the kind of fundamental protection to children charged under [Welfare and Institutions Code] section 602 which this court should not lightly discard.”].) The Legislature, having drawn a line at age 14, has already decided the import of a child's age in the analysis. To give independent weight to the fact that J.E. was almost 14 is in tension with the Legislature's determination.
I am doubtful that the Court of Appeal reached the correct conclusion in this case. That in itself is not typically a reason for granting review. But the court's analysis appears to misapply our recently established standard for reviewing questions of clear and convincing proof. (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.) And the potential consequences to J.E. of entering the juvenile justice system are significant. (See Petrosino et al., Formal System Processing of Juveniles: Effects on Delinquency (2010) p. 36 [reviewing 29 controlled trials and finding that juvenile court intervention increases the severity and frequency of subsequent delinquency, especially compared to diversionary alternatives].) For these reasons, I would grant review.
LIU, J.
I Concur:
CUÉLLAR, J.