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Filed 9/8/20 (review denied 12/30/20; reposted to include Supreme Court statement upon denial of 

review)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re J.E., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.E.,

Defendant and Appellant.

 A156839

 (Contra Costa County

 Super. Ct. No. J1900105)

J.E. appeals from an order of the juvenile court declaring her a ward 

and placing her on probation. (Welf. & Inst. Code, § 602.) The court found 

J.E. committed two misdemeanor violations of the Penal Code, battery on a 

peace officer (§ 242/243, subd. (b)), and resisting, obstructing or delaying a 

peace officer (§ 148, subd. (a)(1)). J.E. argues there is insufficient evidence in 

the record to establish she appreciated the wrongfulness of her conduct, as 

required for minors under the age of 14. (Pen. Code, § 26.) We affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2019, at approximately 12:45 p.m., two sheriff deputies 

responded to a domestic violence report at a home where J.E. lived with her 

mother, A.R. A.R. was crying and had a small amount of blood under her 

nose. She told the deputies she and J.E. had an argument about cleaning the 
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house. During the argument, A.R. “shoved” J.E., and J.E. hit A.R. “a couple 

times” in the face. J.E. then left the house and A.R. did not know where she 

was. A.R. signed a citizen’s arrest form for battery and provided a physical 

description of J.E. While interviewing A.R., the deputies saw J.E. down the 

street and left by car to speak with her. 

J.E. was walking on the sidewalk with a friend. The deputies exited 

their marked patrol car, called to J.E. by name, and identified themselves. 

The deputies told J.E. they needed to escort her back home to talk with her 

mother and “figure out” how to handle the situation. The deputies told J.E. 

she was not under arrest, but she needed to come with them. 

J.E. refused to go with the deputies, stating, “F you. I’m not going to go 

with you guys,” and began walking away. The deputies followed J.E. and told 

her “five or six” times to stop walking. J.E. ignored the commands. One of 

the deputies then grabbed one of J.E.’s arms and the other deputy grabbed 

her other arm, with one deputy stating, “We’re going to escort you home.” 

J.E. began “twisting and turning” and “flailing her legs” as the deputies 

attempted to bring her to the patrol car. The deputies then handcuffed her. 

As the deputies were bringing J.E. back to the patrol car, J.E. spit at the 

deputies and kicked a different vehicle, causing a dent. The deputies then 

placed J.E. in the back of the patrol car. Once there, J.E. kicked one of the 

deputies in the stomach. The deputy “was able to pull back, so it . . . didn’t 

impact [her] stomach forcefully.” 

The deputies drove to J.E.’s house, where A.R. was waiting out front. 

The officers allowed A.R. to come up to the vehicle to speak with J.E. After 

speaking with A.R. briefly, J.E. told 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.” A deputy then asked 
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A.R. to step away from the patrol car, and A.R. replied, “F you, B.” The 

deputies asked a bystander to remove A.R. from the area and took J.E. to 

juvenile hall. 

On January 29, 2019, the Contra Costa County District Attorney’s 

Office filed a juvenile wardship petition alleging J.E. committed 

misdemeanor battery upon a peace officer and misdemeanor resisting, 

obstructing, or delaying a peace officer. 

A detention hearing was held on January 30, 2019. At the hearing, the 

Probation Department submitted an initial case assessment. A.R. had 

reported that there were prior incidents when J.E. hit her with a hanger and 

threatened to kill her. According to A.R., J.E rarely followed her commands 

and consistently skipped school. A.R. quit her job because J.E.’s behavior had 

“become out of control.” A review of J.E.’s school records showed J.E. was 

suspended twice for being physically aggressive and making threats towards 

staff, and was disciplined on several occasions for unexcused absences, 

disrupting class, using profanity, and being under the influence of marijuana. 

At the detention hearing, J.E.’s counsel requested that she be released 

to A.R., who had agreed to have her daughter come home with an ankle 

monitor. The probation officer and the People opposed this request and 

recommended that J.E. be detained, based on evidence that she had been 

disrespectful to her mother, school staff and police officers, and that she had 

punched A.R. during the most recent incident. The court followed the 

probation officer’s recommendation, citing concerns about J.E. and A.R.’s 

volatile relationship and A.R.’s safety if J.E. were allowed back home. 

A contested jurisdictional hearing was held on February 26, 2019. The 

People elicited testimony about the incident from A.R. and one of the 

arresting deputies. A.R. also testified about her relationship with her 
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daughter. J.E. was 11 when she began living with A.R., before which she 

lived with her grandmother. A.R. stated she never taught J.E. the difference 

between right and wrong. She also denied teaching J.E. that it was wrong to 

hit somebody, testifying that she “told her to stand up for herself.” A.R. 

testified further that she never taught J.E. how to interact with police officers 

or to respect the commands of police officers. 

After the witnesses completed their testimony, J.E. moved to dismiss 

the wardship petition, arguing the prosecution failed to establish that she 

had the requisite capacity to commit the alleged crimes. The court denied the 

motion, finding J.E. understood the wrongfulness of her conduct. The court 

also sustained the wardship petition, finding J.E. committed the alleged 

offenses. 

At a dispositional hearing on March 19, 2019, J.E. was declared a ward 

of the court and was placed on probation. 

DISCUSSION

J.E. contends there is insufficient evidence to support the juvenile 

court’s jurisdictional findings. J.E. does not dispute that she resisted an 

officer and committed battery on an officer, but she argues that this conduct 

was not unlawful because she did not understand that it was wrong. 

Penal Code section 26, which applies in juvenile wardship proceedings, 

creates a presumption that a child under the age of 14 is incapable of 

committing a crime. (In re Gladys R. (1970) 1 Cal.3d 855, 863 (Gladys R.).) 

To overcome this presumption, the prosecution must show by clear and 

convincing evidence that the child understood the wrongfulness of the 

charged act at the time of its commission. (Pen. Code, § 26; In re Manuel L.

(1994) 7 Cal.4th 229, 232; People v. Cottone (2013) 57 Cal.4th 269, 280.) 

Penal Code section 26 “embodies a venerable truth . . . that a young child 
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cannot be held to the same standard of criminal responsibility as his [or her] 

more experienced elders.” (Gladys R., supra, 1 Cal.3d at p. 864.)

On appeal, we review the juvenile court’s ruling under Penal Code 

section 26 to determine if it is supported by substantial evidence. (In re 

Marven C. (1995) 33 Cal.App.4th 482, 486 (Marven C.).) Substantial evidence 

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.) 

Under this standard “we review the record in the light most favorable to the 

court’s determinations and draw all reasonable inferences from the evidence 

to support the findings and orders.” (Kevin R. v. Superior Court (2010) 191 

Cal.App.4th 676, 688–689.) “We do not reweigh the evidence or exercise 

independent judgment, but merely determine if there are sufficient facts to 

support the findings of the trial court.” (In re Matthew S. (1988) 201 

Cal.App.3d 315, 321.) “[T]he trial court’s ruling must be upheld if there is 

any basis in the record to sustain it.” (People v. Marquez (1992) 1 Cal.4th 

553, 578.)

Courts consider the age, experience, knowledge and conduct of a minor 

to determine whether she understood the wrongfulness of her conduct. 

(Gladys R., supra, 1 Cal.3d at p. 867.) Knowledge of wrongfulness cannot be 

inferred from the offense itself, but the court may consider “the attendant 

circumstances of the crime, such as its preparation, the particular method of 

its commission, and its concealment.” (In re Tony C. (1978) 21 Cal.3d 888, 

900 (Tony C.).) The closer a child is to the age of 14, the more likely she is to 

appreciate the wrongfulness of her conduct. (In re Paul C. (1990) 221 Cal. 

App.3d 43, 53 (Paul C.); Marven C., supra, 33 Cal.App.4th at p. 487.)
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Applying these standards, we conclude that substantial evidence 

supports the trial court’s finding that J.E. knew her conduct was wrongful. 

J.E. was less than a month from her fourteenth birthday at the time of the 

incident. When a child is so close to 14, it is more likely she understood the 

wrongfulness of her conduct. (See Paul C., supra, 221 Cal. App. 3d at p. 52; 

Marven C., supra, 33 Cal.App.4th at p. 487.) And we find no evidence of any 

impairment that might indicate J.E. has a diminished social or mental 

capacity for her age. (Compare Gladys R., supra, 1 Cal.3d at p. 867 [12-yearold girl had “the social and mental age of a 7-year-old.”].)

The circumstances surrounding J.E.’s current offenses also provide 

some evidence that J.E. understood her conduct was wrong. The deputies 

were in uniform, in a marked patrol car, and identified themselves as 

deputies when they first contacted J.E. and told her she needed to accompany 

them. J.E. told the deputies she was “not going to go with you guys,” and 

ignored them telling her to stop walking away. Her words show J.E. 

understood what was being asked of her and made a conscious choice to resist 

the deputies, and her resistance was not fleeting or equivocal, but grew as the 

encounter continued. Even after J.E. was forcibly detained, she continued to 

resist by kicking at the officers, spitting at them and, ultimately, kicking one 

officer in the stomach. This is conduct that, whether it is aimed at a peace 

officer or anyone else, most 13-year-olds know is wrong.

But the capacity determination requires a trial court to consider the 

particular circumstances and perspective of the individual child before it, 

rather than to rely on generalizations about what children of a certain age 

should know. The evidence in this case is that the only parent who may have 

been a fixture in J.E.’s life did not teach her to respect authority figures or to 

expect fair treatment from them. Witness, for example, the way J.E.’s 
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mother lashed out when J.E. told the police she was finished speaking with 

her mother from the back of the police car. This evidence does not defeat the 

trial court’s capacity determination because J.E.’s mother was not her only 

moral guide. J.E. lived with her grandmother until the age of 11, and likely 

there learned right from wrong, as A.R. testified that J.E. was basically a 

good kid. Also, the probation department’s initial case assessment contains 

evidence that J.E. had been taught—by her school if not at home—that it is 

wrong to disobey and physically assault authority figures. The assessment 

reveals that J.E. had a substantial history of disrespecting and being 

physically aggressive toward authority figures and of being disciplined for 

this conduct. Combining this evidence specific to J.E.’s circumstances with 

evidence from the incident itself, we conclude there is substantial evidence 

supporting the trial court’s determination that J.E. understood at least some 

of her conduct to be wrongful.

J.E. argues she did not understand she was required to obey the 

deputies because they told her she was not under arrest. But if J.E. 

understood the concept of being arrested she necessarily understood the 

officers’ authority over her. As the juvenile court explained at the contested 

jurisdiction hearing, the officers clearly communicated to J.E. that she was 

required to accompany them back to her home so that they could resolve her 

mother’s complaint against her. And even if J.E.’s initial failure to 

accompany the deputies could be excused on the basis she did not understand 

this obligation, her later acts of kicking and spitting at the deputies were also 

acts obstructing a peace officer in the performance of his or her duty, and 

these later, more aggressive acts provided a sufficient basis for both of the 

charges against J.E. Any confusion as to whether she needed to accompany 
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the deputies would not have excused the violent behavior after she was 

detained.

J.E. contends that A.R.’s testimony compels the conclusion that J.E. did 

not know her conduct was wrong. We disagree. A.R. did not testify that J.E. 

does not understand that it is wrong to disrespect, disobey, or strike out 

physically against a police officer, but only that A.R. did not teach her 

daughter these lessons. But J.E. lived with her grandmother until she was 

11, and nothing in the record indicates that J.E.’s grandmother failed to 

teach her right from wrong. Moreover, 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. Evidence that J.E. was 

disciplined at school for her disrespectful and violent conduct shows that she 

was taught she should respect the commands of authority figures, even if her 

mother never imparted these lessons. 

J.E. argues her kicking was a “self-preservation impulse” because she 

was confused why the deputies were arresting her and fearful of returning 

home to a “volatile situation.” Evidence that J.E. may have been afraid of her 

mother does not further her argument that she did not know her actions 

against the officers were wrongful. We find no evidence that J.E. expressed a 

fear of the officers, and the circumstances surrounding the encounter give us 

no reason to believe J.E. was made to feel afraid. Nor do we find any 

indication in the evidence or testimony that J.E.’s spitting and kicking at the 

officers was an involuntary impulse or an act of self-defense. 

J.E. contends that the circumstances surrounding her offenses do not 

support an inference that she knew her conduct was wrongful because she 

did not plan to commit a crime or attempt to cover up criminal conduct, but 

simply acted out of “instinct and fear.” As support for this argument, J.E. 
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relies on a line of cases in which the minor’s knowledge of wrongfulness was 

established with evidence of the minor’s significant preparation for and/or 

concealment of criminal conduct. (In re Joseph H. (2015) 237 Cal.App.4th 

517, 540 [minor understood wrongfulness of shooting his father because he 

had secretly taken the gun and then hid it after the shooting]; Tony C., supra, 

21 Cal.3d at pp. 900–901 [minor repeatedly threatened woman with deadly 

force and took her to secluded location before he raped her]; People v. Lewis

(2001) 26 Cal.4th 334, 379 [minor knew arson was wrongful because he fled 

crime scene and gave conflicting statements to detectives about the 

incident].) 

J.E.’s authority is inapposite; the fact that J.E.’s offenses did not 

involve preparation, or a cover-up, does not mean she failed to comprehend 

what she did was wrong. Nor do the circumstances surrounding J.E.’s 

interaction with the deputies compel the conclusion that she acted out of 

instinct and fear or, even if those were her motivations, that she did not 

understand her conduct was wrong. J.E. was almost 14 years old when two 

deputies clearly communicated to her that she needed to accompany them 

because of the physical altercation that she had just had with her mother. 

Without expressing fear or confusion, J.E. responded to the officers with 

verbal profanity, physical resistance and, ultimately, physical violence. 

These circumstances support the trial court’s finding that J.E. understood the 

wrongfulness of her actions. 

We understand that the deputies intervened at a moment when J.E. 

was angry, upset, and in no mood to cooperate, and that because she is still a 

child her ability to regulate her emotions remains underdeveloped. But none 

of that gives her the right to resist lawful authority or to kick a peace officer 

who was lawfully doing her job. We conclude there is substantial evidence to 
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support the trial court’s finding that J.E. knew it was wrong to strike out in 

this manner. 

DISPOSITION

The judgment is affirmed.
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_________________________

TUCHER, J.

I CONCUR:

_________________________

POLLAK, P. J.

People v. J.E. (A156839)
1

STREETER, J., Concurring and Dissenting. 

While I concur in one narrow aspect of my colleagues’ reasoning, I must 

respectfully dissent from most of their opinion and from their disposition.

I. Background

The majority opinion sketches out the events preceding J.E.’s arrest 

accurately, but omits some of the details surrounding the domestic violence 

report from A.R. that brought Sheriff’s Deputies Slater and Spangler to the 

scene. Perhaps most importantly, A.R., in her testimony at the contested 

jurisdictional hearing, made it clear that she started the physical fight with 

J.E. And when asked why she “call[ed] the police” after the altercation with 

J.E., A.R. replied “to scare her.”

“Scare her,” she did. The two deputies, upon spotting J.E. a few blocks 

from A.R.’s apartment, tried to question her. J.E., who had no previous 

experience in any encounter with law enforcement officers, tried to walk 

away, but the deputies insisted she come along with them. J.E. protested, 

and tried to twist away as she was being led by the arm to a patrol car, 

kicking and screaming.

The deputies handcuffed J.E., and dragging her by the arms, forced her 

into the back of their patrol car. While they were “scooting” J.E. into the 

backseat, positioned with her legs across the bench, she thrust a foot at 

Deputy Slater, touching her in the midriff as the deputy backed away. 

According to Deputy Slater’s testimony at the jurisdictional hearing, J.E.’s 

foot “didn’t impact my stomach forcefully because I was a far enough distance 

away.”

The final chapter in the events on the day of J.E.’s detention, touched 

upon by the majority—properly so, because it is relevant to J.E.’s state of 

mind that day—occurred after Deputies Slater and Spangler drove J.E. back 
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to A.R.’s apartment, where A.R. expressed surprise that rather than simply 

bringing J.E. home, the deputies were taking her to jail or to juvenile hall. A 

few additional details are worthy of note here too.

While J.E. was still seated in the patrol car, the deputies allowed A.R. 

to speak to J.E. through the car window. At some point, J.E. said to the 

deputies, “I’m done. Can you please have mom leave.” When the deputies 

instructed A.R. to back away from the car, she began yelling at J.E. During 

her tirade, according to Deputy Slater, she yelled, “I hope you die. I hope 

they beat your ass in there. I hope they never let you out.” Upon being 

instructed again to move away, A.R. refused and “continued to yell 

obscenities. At that point, she yelled, ‘F you, B’ to Deputy Spangler.”

The deputies then drove away, but before taking J.E. to the station for 

booking, they parked and spoke to her. According to Deputy Slater’s 

testimony, “[J.E.] was very upset. She went from being angry at the situation 

to after all of the comments and things that happened with her mom, she 

started crying and was visibly upset. . . . We . . . spoke with [J.E.] and 

essentially told her that was awful what your mother just said to you. It was 

uncalled for. It shouldn’t have happened.”

Following J.E.’s detention, these wardship proceedings on a first 

petition under Welfare & Institutions Code section 602, subdivision (a), 

ensued.1

1 The Probation Department’s Hearing Information Sheet/Initial Case 

Assessment, filed prior to the detention hearing, indicated, among other 

things, that J.E. is a “Runaway Risk” based on A.R.’s report that “she has left 

home without permission once previously and her whereabouts [were] 

unknown for approximately three days” and based on J.E.’s admission that 

she left “home without permission and while away from home she was under 

the influence of alcohol.” The Hearing Information Sheet/Initial Case 
3

II. Analysis

A. The Charged Offenses

J.E.’s conduct upon being approached by Deputies Slater and Spangler, 

which included a profanity-laced refusal to cooperate and an attempt to spit 

at them, was nasty, rude, and disrespectful, but was it criminal?

Because “ ‘[o]nly a slight unprivileged touching is needed to satisfy the 

force requirement of a criminal battery’ ” (People v. Dealba (2015) 

242 Cal.App.4th 1142, 1149), J.E.’s “kick” to Deputy Slater would 

unquestionably be sufficient to uphold a Penal Code section 243, 

subdivision (b) conviction if J.E. were an adult. The same would be true for 

the Penal Code section 148, subdivision (a)(1) charge, since J.E.’s conduct in 

walking away from and then resisting these two deputies impeded them from 

carrying out their duties. (In re Chase C. (2015) 243 Cal.App.4th 107, 113.) 

Criminal battery and resisting a peace officer are general intent crimes, 

requiring only “ ‘an intent to perform an act of such a nature that the law 

declares its commission punishable as a criminal offense.’ ” (People v. Rocha

(1971) 3 Cal.3d 893, 899.)

But we are not dealing with an adult. We have a 13-year-old here, and 

Penal Code section 26 presumes her to be incapable of committing a criminal 

offense unless the state establishes by clear and convincing proof that she 

knew the wrongfulness of her acts. For children under age 14, the issue of 

criminal capacity cuts below mens rea and is of more fundamental 

significance. Taking the clear and convincing burden into account, as we 

Assessment also indicated that, for the then-current academic year at J.E.’s

middle school, she had been “suspended for 4 days . . . and ha[d] accumulated 

34 all-day unexcused absences.”
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must (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005–1012), I do not 

think the People met their Penal Code section 26 burden on this record.

B. Penal Code Section 26

“ ‘California . . . rebuttably presumes all minors under the age of 14 

incapable of committing a crime, but does not totally exclude any child from 

criminal responsibility.’ [Citations.] ‘Section 26 stands to protect . . . young 

people . . . from the harsh strictures of [Welfare and Institutions Code] 

section 602.’ ” (In re Paul C. (1990) 221 Cal.App.3d 43, 50; see In re

Gladys R. (1970) 1 Cal.3d 855, 867 (Gladys R.); People v. Cottone (2013) 

57 Cal.4th 269, 281 [“presumption of incapacity operates to exempt the minor 

from legal responsibility”]; see generally Walkover, The Infancy Defense in 

the New Juvenile Court (1984) 31 UCLA L.Rev. 503.)

In evaluating whether the People rebutted the presumption of 

incapacity on this record, the juvenile court was entitled to infer appreciation 

of the wrongfulness of the charged conduct from J.E.’s “age, experience, and 

understanding” (Gladys R., supra, 1 Cal.3d at p. 864); from any warnings or 

instructions given to her about the offending conduct on prior occasions (In re

Jerry M. (1997) 59 Cal.App.4th 289, 298); and, since reliance on 

circumstantial proof is “inevitable” when “the issue is a state of mind” (In re

Tony C. (1978) 21 Cal.3d 888, 900), from the “attendant circumstances of the 

crime.” (Ibid.)

Because “it is only reasonable to expect that generally the older a child 

gets and the closer she approaches the age of 14, [and] the more likely it is 

that she appreciates the wrongfulness of her acts,” a “child’s age is a basic

and important consideration.” (In re Cindy E. (1978) 83 Cal.App.3d 393, 

399.) Most of the cases invoking this precept, to be sure, involve very serious 

crimes. Of course, a child nearing age 14 can be expected to understand it is 
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wrong to commit murder (In re Marven C. (1995) 33 Cal.App.4th 482), rape 

(In re Tony C., supra, 21 Cal.3d 888), forced oral copulation (In re Paul C.,

supra, 221 Cal.App.3d 43), or conspiracy to burglarize cars (In re Harold M.

(1978) 78 Cal.App.3d 380). That makes sense, since brutality and advance 

planning are circumstances that have obvious bearing on knowledge of 

wrongfulness.

But age alone cannot decide the question. Applying the Penal Code 

section 26 presumption is not like horseshoes, where close is good enough. If 

it sufficed to rebut the presumption that a minor is about to turn 14, the 

legislatively determined cut-off of age 14 would be meaningless. In my 

view—and as I read the majority’s opinion, my colleagues do not disagree—

some other factor must be present in addition to the child’s age. (See, e.g., 

In re Clyde H. (1979) 92 Cal.App.3d 338, 344 [“past similar incidents of rock 

throwing where appellant ran away” at the appearance of his mother 

“suggest[ed] consciousness of guilt”]; In re Jerry M., supra, 59 Cal.App.4th at 

p. 298 [minor “was told and knew of the wrongfulness of his acts: his mother 

had told him it was wrong to touch girls in certain places, and he appeared to 

understand it was wrong to touch girls’ breasts or attack other children”].)2

No such factor is present in this case.

C. J.E.’s Lack of Experience with Law Enforcement Officers

At issue in this case is a 13-year-old African-American child’s first 

encounter with law enforcement. 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 

2 See also, e.g., In re Cindy E., supra, 83 Cal.App.3d at page 400 

(fabrication of innocent motive, shifting blame on others, minimization of role 

in the offense); In re Clyde H., supra, 92 Cal.App.3d at page 344 (apology for 

commission of offense).
6

interactions with law enforcement. I point to this issue not because I think 

the deputies involved here did anything wrong—quite to the contrary, their 

treatment of J.E., especially when they realized she was the victim of abuse 

at the hands of A.R., was commendably sensitive—but because the only 

evidence in the record bearing on whether J.E. understood how to conduct 

herself in these circumstances was A.R.’s testimony that she never spoke to 

her about it.3

Rather than deal with this issue directly, the majority speaks generally 

of other sources of moral instruction, pointing out that J.E. was taught it was 

“wrong to disobey and physically assault authority figures” because she had 

been disciplined at school for being disrespectful and physically aggressive 

toward teachers. And surely, the majority says, J.E.’s grandmother, with 

whom she lived for a number of years, taught her to discern “right from 

wrong.” But we are not talking about an encounter with “authority figures” 

in the generic sense. Nor are platitudes about knowing “right from wrong” 

helpful here.4

3 The Report and Recommendation of the Probation Department, filed 

after the charges against J.E. were sustained, and before the disposition 

hearing, summarizes an interview of J.E. in which she stated that her mother 

had, in fact, spoken to her about what to do in the event she was approached 

by police. According to J.E., “she was told [by A.R.] not to answer questions 

asked by police . . . as she is a minor and it was within her rights.”

4 The apparent reason the majority finds it necessary to resort to 

generalizations about “authority figures” and discipline at school, and to 

speculate about things J.E.’s grandmother must have taught her, is the 

following testimony from A.R. on direct examination by the prosecutor: 

“Q: While she was living with you, and while you were raising her, did you 

ever talk to her about the difference between right and wrong? A: I can’t say 

I really did. Q: Did you ever talk to her or teach her about hitting other 

people? A: Yes, I told her to defend herself. Q: And what about hitting others 

as the aggressor? . . . [¶] Q: Did you talk to her about that? A: I just told her 
7

We must not look away from what actually happened here. There are 

no classes in school that offer guidance on how to handle encounters with law 

enforcement. These things are typically passed down by a parental figure 

who is wise enough to provide counsel on the subject. Many parents of 

children of color, at some point in the course of child-rearing, find it necessary 

to provide their children self-protective advice to guide them in any future 

encounters with law enforcement. One version of this advice, commonly 

known as “The Talk,” emphasizes the importance of showing utmost courtesy 

and cooperation, willingness to comply with any directions given by an 

officer, and attentiveness to things that may not be obvious (certainly not to a 

child), like keeping his or her hands empty and in full view.5 There was no 

evidence before the juvenile court that J.E. had any guidance about this 

uniquely difficult set of issues.

Left to fend for herself, J.E. tried to walk away. Her reaction in doing 

so was not entirely wrong, since in some circumstances any citizen (not just a 

minor) may simply “go on his way” when approached by the police (People v.

Souza (1994) 9 Cal.4th 224, 234), but it was certainly wrong in the particular 

to stand up for herself. That’s it. Q: Did you ever tell her that it was wrong 

to initially hit somebody, not in defense but initially? A: No. . . . [¶] Q: . . . 

[W]hen you were raising [J.E.] . . . did you ever talk to her about what good 

behavior is? A: No. Q: And did you ever talk to her about what bad behavior 

was? A: No. Q: Never? A: No. She’s—she’s been a good kid . . . . Q: And 

when you say she was a good kid, did you teach her what those good 

behaviors were? A: No. She just did it herself.”

This line of questioning, quite plainly designed to lay a foundation for 

Penal Code section 26 “knowledge of wrongfulness,” obviously backfired, 

leaving a gap in the record on the issue.

5 Young, Deaths Shape How Black Parents Navigate the ‘Talk’ (June 8, 

2020) WebMD Health News <https://www.webmd.com/mentalhealth/news/20200608/deaths-shape-how-black-parents-navigate-the-talk>

(as of September 3, 2020).
8

setting we have here. Unquestionably, these deputies were empowered to 

take J.E. into custody based on the information they had from A.R. and the 

citizen’s arrest warrant she signed. The majority finds significance in J.E.’s 

understanding of what the deputies told her when they initially said she was 

not under “arrest,” but we can hardly expect J.E. to have appreciated the 

Fourth Amendment nuances of her situation once the deputies changed their 

minds and handcuffed her.

In the absence of proof that A.R. was prepared for how to handle 

encounters with law enforcement, we are left to surmise about how a young 

person of J.E.’s age, of J.E.’s race, in J.E.’s community, may be expected to 

react when faced with a sudden show of law enforcement authority. There 

are some unstated assumptions behind the juvenile court’s finding that J.E. 

knew it was wrongful to attempt to walk away from Deputies Slater and 

Spangler. The majority adopts those assumptions, declining to look behind 

them in the name of substantial evidence review. I see things differently. I 

would respectfully suggest that, from the perspective of someone in J.E.’s 

shoes (not the perspective of “most 13-year-old[]”), an effort to withdraw or 

flee is just as likely to be an act of panicked self-preservation as it is of 

knowing disobedience.

The nastiness that followed J.E.’s attempt to walk away from the 

deputies is hardly something to be condoned, but it is far from clear to me 

that any of it was criminal in the sense that must be shown for a child of this 

age. The only thing that does seem clear on this record is that, when all of 

the circumstances are taken into account, this 13-year-old, having made the 

decision to withdraw out of fear, had an emotional meltdown when she 

suddenly found herself in handcuffs, being frog-marched to a squad car.
9

D. J.E.’s Reaction to Being Taken into Custody

Looking at the initial interaction between J.E. and Deputies Slater and 

Spangler, the juvenile court observed that, once the deputies reassured J.E. 

they did not intend to arrest her and that all they wanted to do was talk to 

her about the altercation with her mother and take her home, it should have 

been evident to J.E. they were there to try to help her. Under the 

circumstances, the court concluded, J.E. must have understood it was wrong 

to “fight” with them. The majority concludes, similarly, that J.E. must have 

understood she was expected to obey and not defy these deputies, for, after 

all, they were in full uniform and they drove up in a marked patrol car.

But to prepare her for this specific situation, J.E.’s only teacher was her 

mother, who modelled physically and verbally confrontational conduct when 

under stress. When J.E.’s attempt to walk away did not work, she expressed 

her displeasure with all the extravagant drama of a scared 13-year-old, 

attempting to look “tough.” While the sustained obnoxiousness that followed 

would strike anyone of ordinary sensibilities as offensive, I question my 

colleagues’ use of the talismanic word “violent” to describe it, with all of the 

freight that word brings. The specific assaultive conduct we are addressing—

and the conduct found to have violated Penal Code section 243, 

subdivision (b)—is J.E.’s “kick” to Deputy Slater’s midriff area, which the 

deputy described as little more than a touch as she was backing away.

In my view, J.E. deserves a pass for this under Penal Code section 26. 

Most parents will recall what it is like to encounter a flailing foot, elbow or 

knee while subduing an emotionally distraught child whose actions are being 

governed by the manic sense of grievance we commonly call a tantrum. But 

few, I suspect, would describe the child’s mental state in delivering such a 

blow—if the child was even aware it was a blow—as a deliberate effort to 
10

commit a “violent” assault. I see no reason to treat this situation any 

differently. The only basis for concluding that J.E.’s “kick” to Deputy Slater 

was criminal, in my view, appears to be a determination to punish J.E. for 

crudely disrespecting these two deputies while in the throes of an emotional 

collapse.

We might say, I suppose, that “most 13-year-old[]” would know it was 

wrong to behave this way rather than submit quietly when dealing with law 

enforcement officers, but as the majority rightly acknowledges, a juvenile 

court must “consider the particular circumstances and perspective of the 

individual child before it, rather than to rely on generalizations about what 

children of a certain age should know.” J.E. was still a child in the eyes of 

the law, and there is no evidence on this record she was streetwise or mature 

beyond her years. (In re Harold M., supra, 78 Cal.App.3d at p. 385 [“evidence 

support[ed] an inference that [13-year-old] minor knew [auto burglary] . . . 

was condemned by law enforcement and court officers; that knowledge of the 

wrongfulness of the conduct was brought directly to his attention through 

police detention and court appearances; and that, far more effective than 

moral instruction by parent or teacher, such firsthand experiences had left 

their imprint on the minor’s conscience”].)

III. Conclusion

I concur in the majority’s view that, when applying Penal Code section 

26, juvenile courts must consider the individualized circumstances of the 

child before it, rather than rely on assumptions about the knowledge of 

wrongfulness a “normal” child her age would have. That principle, I think, 

takes a small step toward the elimination of unconscious bias in the juvenile 

justice system, since it prevents judges from calling upon their own 

presuppositions about expected behavior in children, whose cognitive ability 
11

to self-regulate and make moral judgments, modern brain science now 

teaches us, develops at vastly different rates well into their teenage years.6

But in applying the criteria set out in the case law under Penal Code 

section 26, the majority opinion fails to apply the principle it enunciates. 

J.E.’s lack of experience in dealing with law enforcement and the absence of 

any evidence of conscious wrongdoing ought to be dispositive here. There is 

no evidence—none—that J.E. understood she could not walk away and refuse 

to cooperate when approached by Deputies Slater and Spangler, thereby 

violating Penal Code section 148, subdivision (a)(1). And given the objective 

evidence of her frenzied mental state at the time she was taken into custody, 

there is insufficient proof to support a Penal Code section 243, subdivision (b) 

violation.

In borderline cases, we should be guarded about over-criminalizing the 

juvenile justice system, particularly when presented with first petitions. I 

recognize we generally defer to a juvenile court’s fact-finding, but I think the 

majority’s application of the substantial evidence test on this record is 

insufficiently rigorous in light of the heightened standard of proof. 

(Conservatorship of O.B., supra, 9 Cal.5th at pp. 1005–1012.) Under the 

circumstances presented, I fail to see how it can be said that the People met 

their burden of establishing by clear and convincing proof that J.E. should be 

stripped of her presumptive exemption “from the harsh strictures of [Welfare 

and Institutions Code] section 602.” (In re Paul C., supra, 221 Cal.App.3d at 

p. 50.)

6 See Henning, Criminalizing Normal Adolescent Behavior in

Communities of Color: The Role of Prosecutors in Juvenile Justice Reform

(2013) 98 Cornell L.Rev. 383, 397–401, 419–424.
12

Stepping back and considering this case from a broader perspective, we 

would do well to remember a key distinction drawn fifty years ago in 

Gladys R., which remains the lodestar opinion construing Penal Code section 

26. If a juvenile court must intervene in a child’s life, a wardship may be 

declared under Welfare and Institutions Code section 601, for status offenses, 

as well as under section 602, for criminal offenses. (See Welf. & Inst. Code,

§ 601, subd. (a) [persistent or habitual refusal to obey directions of parent, 

guardian or custodian], id., subd. (b) [truancy or persistent or habitual 

refusal to obey directions of school authorities]; § 602 [commission of acts 

which, if committed by an adult, would be crimes].) “Strictly speaking, ‘[a]n 

adjudication under section 601 neither requires nor implies a finding of 

‘delinquency.’ ” (In re W.B. (2012) 55 Cal.4th 30, 42.)

Central to the Gladys R. holding is a recognition that the line drawn by 

Penal Code section 26 does “not lie at the periphery of the statutory scheme” 

governing juvenile justice in California. (Gladys R., supra, 1 Cal.3d at 

p. 863.) Justice Tobriner’s opinion for the Gladys R. court is very clear that, 

to protect children from the grave consequences of wardship under Welfare 

and Institutions Code section 602, with all of the stigma and potentially 

negative consequences for a child’s life that it brings, Penal Code section 26 

stands as a bulwark between sections 601 and 602 of the Welfare and 

Institutions Code. (Gladys R., supra, at pp. 864–867.) Indeed, he points out 

it is “practically the only special provision for children in the entire legal 

system.” (Id. at p. 863.) Cases like this one, I am sorry to say, dilute it into 

nonexistence.

_________________________

STREETER, J.
13

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. John C. Cope

Counsel for Appellant: Law Office of Erin Keefe, Erin W. Keefe, by 

Appointment of the Court of Appeal under the 

First District Appellate Project Assisted Case 

System

Counsel for Respondents: Xavier Becerra, Attorney General; Lance E. 

Winters, Chief Assistant Attorney General; 

Jeffrey M. Laurence, Senior Assistant Attorney 

General; Masha Dabiza, Deputy Attorney 

General

People v. J.E. (A156839)
Filed 12/30/20

Court of Appeal, First Appellate District, Division Four - No. A156839

S265077

IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

In re J.E., a Person Coming Under the Juvenile Court Law.

________________________________________

THE PEOPLE, Plaintiff and Respondent,

v.

J.E., Defendant and Appellant.

________________________________________________________________________

The petition for review is denied.

Liu and Cuéllar, JJ., are of the opinion the petition should be granted.

_______________/s/_______________

 Chief Justice
IN RE J.E.

Liu, J., dissenting

1

IN RE J.E.

S265077

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 
IN RE J.E.

Liu, J., dissenting

2

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 
IN RE J.E.

Liu, J., dissenting

3

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 
IN RE J.E.

Liu, J., dissenting

4

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 
IN RE J.E.

Liu, J., dissenting

5

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.