People v. Gregory S.

85 Cal. App. 3d 206, 149 Cal. Rptr. 216, 1978 Cal. App. LEXIS 1962

• Court: California Court of Appeal
• Decided: September 28, 1978
• Docket: Civ. 17466
• Status: Published

Opinions

Opinion

PARAS, J.

The minor, Gregory S., appeals from orders adjudicating him a ward of the court under Welfare and Institutions Code section 602, and committing him to the Youth Authority.

Pending disposition of earlier adjudications in which Gregory was found to have violated Penal Code sections 242 (battery) and 148 (resisting arrest), both misdemeanors, a petition was filed on October 18, 1977, charging him with kidnaping for the purpose of robbery (Pen. Code, § 209), assault with a deadly weapon (Pen. Code, § 245, subd. (a)), robbery (Pen. Code, § 211), and auto theft (Veh. Code, § 10851). On October 21st another petition was filed charging him with robbery (Pen. Code, § 211), burglary of a residence (Pen. Code, § 459), and burglary of a motor vehicle (Pen. Code, § 459). On October 24th and on November 4th, two more petitions were filed charging him with seven more burglaries (Pen. Code, § 459).

Following the jurisdictional hearing on the offenses charged in the October 18th petition, the court found the first three charges of the petition, kidnaping for the purpose of robbery, assault with a deadly weapon, and robbery to be true¹ and that the latter two offenses merged with the kidnaping offense. Thereafter, having properly been advised of his Boykin-Tahl rights with the understanding that all remaining charges and petitions would be dismissed, Gregory admitted two of the three offenses charged in the petition of October 21st (robbery and burglary). The dispositional hearing was held on January 9, 1978.

I

Contrary to Gregory’s contention, there is sufficient evidence to support the conviction of kidnaping for the purpose of robbery. We disagree with his argument that the asportation of the victim was merely for the purpose of committing an assault. The standard of review in criminal cases applies to juvenile proceedings. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809 [103 Cal.Rptr. 425, 500 P.2d 1].) The appellate court must view the evidence in the light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Vann (1974) 12 Cal.3d 220, 225 [115 Cal.Rptr. 352, 524 P.2d 824].) The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact, not whether guilt is established beyond a reasonable doubt to the appellate court’s satisfaction. (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321].) The evidence, and all reasonable inferences therefrom, must be viewed in the light most favorable to the respondent; and all conflicts in the evidence must be resolved in favor of respondent. (People v. Camden (1976) 16 Cal.3d 808, 812 [129 Cal.Rptr. 438, 548 P.2d 1110].)

A violation of Penal Code section 209 occurs where the kidnaping is in furtherance of a robbery. The specific intent to commit robbery must be formed before the asportation is undertaken. (People v. Thornton (1974) 11 Cal.3d 738, 769-770 [114 Cal.Rptr. 467, 523 P.2d 267]; People v. Tribble (1971) 4 Cal.3d 826, 831-832 [94 Cal.Rptr. 613, 484 P.2d 589]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279].)

Robert Huirás testified that on October 18, 1977, at approximately 10:50 p.m., while walking down Bianchi Street, three males approached him. One of them, armed with a .38 caliber revolver, ordered Huirás to walk to and enter a white 1962 or 1963 Chevrolet. The larger of the three then put a headlock on him and forced him into the vehicle. He was there asked if he had money and responded that all he had was 50 cents but could get more. They drove around for approximately 15 to 20 minutes, then Huirás was ordered out of the car and told to take off his clothes; after the three took his clothes, his wallet, and the 50 cents, they struck him with the gun on the head, rendering him unconscious and causing him to fall; they then started kicking him. When Huirás regained consciousness, the three were gone. Huirás identified Gregory as one of the three participants.

Later that night Officer William Thompson clocked a vehicle, a 1964 Chevrolet, at 70 miles per hour. He turned on his red light and followed it off the freeway; it came to a stop, and as Thompson got out of his patrol car, it sped off. Thompson pursued again with red light and siren activated; the Chevrolet slowed to about five miles an hour, and at that speed its three occupants, including Gregory, exited and ran. The area was surrounded, and in due course Gregory was apprehended. Huirás’ wallet and a loaded revolver were found on the front seat of the Chevrolet.

After indicating that he understood and waived his Miranda rights, Gregory told Thompson that Michael McCormick and Derick Hill had been driving around and picked him up; they drove on until they saw Huirás; they made a “U” turn, stopped, and McCormick and Hill forced Huirás into the car. After driving around North Stockton, they stopped and McCormick and Hill forced Huirás out of the car, and beat him. Although Gregory denied to Thompson any participation in the kidnaping, robbery, and beating, when later questioned by police officer, David Duly, he admitted his active involvement.

From the above evidence, it can reasonably be inferred that the intent to commit robbery was formed before the kidnaping.

II

Gregory contends that there is an insufficient showing that at age 13 he appreciated the wrongfulness of his act as required by Penal Code section 26. Section 26 provides in pertinent part that “[a]ll persons are capable of committing crimes except . . . [c]hildren 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 In re Gladys R. (1970) 1 Cal.3d 855, 862-867 [83 Cal.Rptr. 671, 464 P.2d 127], the Supreme Court considered section 26 in relation to Welfare and Institutions Code section 602.² It declared, consistently with the statute, that because of the criminal connotations of a section 602 adjudication, unless the age, experience, knowledge, and conduct of a minor under 14 demonstrate by clear proof that he understands the wrongfulness of his act, he should not be declared a ward. (See In re Michael B. (1975) 44 Cal.App.3d 443, 445-446 [118 Cal.Rptr. 685].)

There is ample evidence here from which it can be concluded that Gregory was fully aware of the wrongfulness of the act. His understanding of the situation is manifested inter alia by his flight from the vehicle following pursuit and by the two different stories he gave to the officers.

III

Gregory also contends that the juvenile court abused its discretion in committing him to the Youth Authority. He relies on the principle enunciated in In re Aline D. (1975) 14 Cal.3d 557, 564 [121 Cal.Rptr. 816, 536 P.2d 65], that the Juvenile Court Law contemplates a progressively restrictive and punitive series of disposition orders with Youth Authority placement as a last resort. (See also In re Arthur N. (1976) 16 Cal.3d 226, 237 [127 Cal.Rptr. 641, 545 P.2d 1345]; In re Michael R. (1977) 73 Cal.App.3d 327, 334-335 [140 Cal.Rptr. 716].) He points out that at the time of the offense he was but 13 years old, had never been adjudged a ward of the court under section 602, and this was his first serious offense.

A commitment to the Youth Authority is within the sound discretion of the juvenile court and its decision will not be reversed unless there is a showing that the court abused its discretion. (In re Michael R., supra, 73 Cal.App.3d at pp. 332-333; In re Clarence B. (1974) 37 Cal.App.3d 676, 682 [112 Cal.Rptr. 474].) The reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court and such findings will not be disturbed on appeal when there is substantial evidence to support them. (Ibid.)

In most instances commitments to the Youth Authority are to be made only in the most serious cases and only after all else has failed. (In re Aline D., supra, 14 Cal.3d at p. 564; In re Michael R., supra, 73 Cal.App.3d at p. 334.) However, the circumstances in a particular case may well suggest the desirability of a Youth Authority commitment despite the availability of alternative dispositions such as placement in a county camp or ranch. (See In re John H. (1978) 21 Cal.3d 18, 27 [145 Cal.Rptr. 357, 577 P.2d 177].) We find this to be such a case.

Both the psychiatrist, Thomas English, and the clinical psychologist, John Hannon, indicated that in light of Gregory’s aggressive behavior, which was becoming progressively more antisocial and dangerous, he needed a structured placement, preferably a locked facility, since he had threatened to run away from any placement he did not like or at which he was retained too long. The observation of Dr. English was that the majority of out-of-home placements did not deal well with the aggressive and antisocial child. Hannon observed that Gregory was “street-wise” and opined that if he did not like his placement, he was veiy likely to run away and probably commit additional crimes.

The court summarized the facts and considerations upon which it based its order. Although only 13 years old, Gregory was very aggressive and violent; pending disposition regarding two violent acts, battery and resisting arrest, he committed other more serious and more violent acts, armed robbery, burglary, and kidnaping for the purpose of robbery with physical assault upon a 15-year-old victim. Even though intelligent, Gregory seldom attended school and made no effort to assist himself. His threats to run away from any type of long-term placement required consideration of the need for a locked facility for his own good. The public was entitled to protection from further criminal acts of Gregory, further necessitating use of a locked facility. Gregory would benefit from the Youth Authority’s educational facilities and a commitment to the Youth Authority was in his own best interests.

It is readily apparent from these comments that the court did not act arbitrarily. The facts and circumstances indicate the propriety of the Youth Authority commitment. (See In re John H., supra; In re Willy L. (1976) 56 Cal.App.3d 256, 265 [128 Cal.Rptr. 592].) This case is readily distinguishable from such cases as In re Aline D., supra, and In re Michael R., supra. Moreover the Legislature in 1977 (effective Jan. 1, 1978) amended Welfare and Institutions Code section 202 to provide that one of the purposes of the Juvenile Court Law is “to protect the public from criminal conduct by minors.” This long overdue objective of juvenile justice was correctly taken into account in deciding upon the commitment.

The orders appealed from are affirmed.

Puglia, P. J., concurred.

1 The court found that the evidence did not sustain the auto theft charge.

2 Section 602 provides in part that “Any person under the age of 18 years who violates any law of this state . . . defining crime .. . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”