Delinquency Case Law

In re Joshua M. (2001) 91 Cal.App.4th 743 [110 Cal.Rptr.2d 662]. Court of Appeal, Fourth District, Division 2.

The juvenile court declared a child a ward of the court for violating Penal Code section 647(i) (unlawful peeking).

The victim had just gotten dressed for school when she found a note on her porch stating that the writer knew that her window blinds were pink, where her dresser was located, and what undergarments she had worn the previous morning. The note also said that she "should watch for Peeping Tom to strike again." The victim took the note to her school security officer, who then gave the note to the deputy sheriff. When the deputy asked the child about the note, the child admitted that he had been on the victim's property and peeked through the blinds. The juvenile court declared the child a ward of the court. The child appealed and argued that finding must be reversed.

The Court of Appeal affirmed the decision of the juvenile court. The child argued that the district attorney had not proved that the child had peeked through the victim's blinds with the intent to commit an offense if the opportunity was discovered. The elements of a section 647(i) offense are: (1) a person loitered, prowled, or wandered upon the private property of another; (2) the person did so without a lawful purpose for being on the property; and (3) the person, while doing so, peeked through the door or window of an inhabited building or structured location. The appellate court found that the People in this case were not required to prove that the child had peeked through the victim's blinds with the intent to commit an offense if the opportunity was discovered.

The child relied on California Jury Instructions, Criminal (CALJIC) 16.447, which requires this element of section 647(i) to be proved by the district attorney. The appellate court held that this CALJIC provision erroneously instructs the trier of fact that the specific intent to commit a crime if the opportunity is discovered is an element of peeking. The appellate court also found that In re Cregler (1961) 56 Cal.2d 308 did not support that added element. The appellate court noted that being on the property and peeking in the window constitute a crime. The peeking itself satisfies the specific intent element. The appellate court also found that the definition of "loiter" found in section 647(h) ("to delay unlawfully on the property and for the purpose of committing a crime if the opportunity is discovered") was limited to subdivision (h).