Dissenting from the denial of review in In re J.E. and filing a separate statement detailing his reasons, Justice Goodwin Liu (joined by Justice Mariano-Florentino Cuéllar) today said he is “doubtful that the Court of Appeal reached the correct conclusion” when, in a 2-1 published opinion, it upheld an order declaring a 13-year-old girl to be a ward of the court. The order was based on charges against her of battery on, and resisting, obstructing or delaying, a peace officer.
Penal Code section 26 considers children under 14 to be incapable of committing a crime unless there is “clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” Justice Liu believes the evidence doesn’t measure up to the statutory requirement, especially under the Supreme Court’s recently clarified standard of appellate review in “clear and convincing evidence” cases. (See here.)
Of relevance to Justice Liu is that J.E. is African-American and that she kicked and spit at officers after they grabbed and handcuffed her. As part of the analysis, Liu writes, “we should . . . take notice of the social reality that interactions between the police and Black youth are often fraught with distrust and risk of violence.” He also quotes the appellate court’s dissenter — ” ‘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.’ ” J.E. “may well have thought that the deputies were trying to harm her,” Liu says.
In 2015, Justice Liu revived a long-dormant practice of issuing separate statements upon the court’s denial of review, and he has done so on several occasions since then. (See recently here and here.)