I concur with the majority opinion except the portion which holds that in order for a minor under 14 to be within the jurisdiction of the juvenile court under Welfare and Institutions Code section 602 there must be “clear proof” that the minor at the time of committing the crime knew of its wrongfulness (Pen. Code, § 26, subd. One).1 With respect to that portion I dissent.
Proceedings in the juvenile court are conducted for the protection and benefit of minors and not to prosecute them as law violators (Welf. & Inst. Code, § 502; In re Dennis M., 70 Cal.2d 444, 456 [75 Cal.Rptr. 1, 450 P.2d 296]). 2 It is unreasonable to believe that the Legislature intended Penal Code section 26, subdivision One, to apply in a proceeding instituted for the minor’s benefit and which seeks to determine whether the minor comes within the terms of section 602.3 Application of that subdivision in such juvenile court proceedings could result in excluding some minors who are in dire need of the care and guidance afforded by the Juvenile Court Law from receiving those benefits. It appears likely that the very minors so excluded would be those in greater need of receiving such care than others more sophisticated who. plainly knew that their acts were wrongful.
The majority state, “If a juvenile court finds a lack of clear proof that a child under 14 years at the time of committing the act possessed knowl*871edge of its wrongfulness under sections 602 and 26, the court might well declare the child a ward under [Welfare and Institutions Code] sections 600 or 601.”4 The quoted statement, however, fails to give adequate consideration to the fact that many children who violate a law defining a crime may not be found to come within either section 600 or 601. Under the majority position such children will be deprived of the attention they need in order to become law-abiding citizens. For example, a 12-year-old boy on one occasion exhibits a loaded gun in a threatening manner in the presence of another (Pen. Code, § 417), and the evidence does not show his conduct was the result of “a mental or physical deficiency, disorder, or abnormality” (see Welf. & Inst. Code, § 600, subd. (c)). A 13-year-old girl has possession of marijuana (Health & Saf. Code, § 11530). A 13-year-old boy on one occasion commits statutory rape (Pen. Code, § 261, subd. 1), with a willing 13-year-old girl in a private place, or goes joyriding (Pen. Code, § 499b) or commits petty theft (Pen. Code, § 488). In none of the foregoing instances is there “clear proof” that the minor at the time of committing the crime had knowledge of its wrongfulness. In the foregoing instances some juvenile courts might conclude that the minor did not come within either section 600 or 601, and additional proof to bring the minor within section 600 or 601 might not be available.
It is implicit in the above quoted statement of the majority that knowledge of the wrongfulness of the act is not required for an adjudication that a minor under 14 is a person described by section 601. A minor may be adjudicated to come within section 601 where he has persistently refused *872to obey the reasonable and proper orders of school authorities. It would have been anomalous had the Legislature required knowledge of the wrongfulness of his act by a minor under 14 who committed a serious crime in order for the court to have jurisdiction under one section and not to have required it for a relatively lesser transgression under another. The welfare of the child and the best- interests of society manifestly would make jurisdiction of the former child more imperative than jurisdiction over the latter child. Although one difference exists with respect to the disposition that may be made of a minor found to come within section 601 and a minor found to come within section 6025 otherwise the same dispositions are authorized for both such minors and both may be ordered confined, for example, in a juvenile home. (Welf. & Inst. Code, §§ 725, 730, 731, 733, and 734.)
The common law rebuttable presumption of lack of criminal capacity of a child between 7 and 14 has been regarded as inapplicable in juvenile court proceedings. (Borders v. United States (5th Cir. 1958) 256 F.2d 458, 459; sec Juvenile Court v. State (1918) 139 Tenn. 549 [201 S.W. 771, 773]; 31 Am.Jur. (1958 ed.) Juvenile Courts, etc., § 39, p. 317; Rubin, Crime and Juvenile Delinquency (1961) p. 56.) The cited cases reasoned that juvenile court proceedings are not criminal in nature and are not instituted to punish the child for any offense but rather have the purpose of providing for the child’s welfare. In this state the Legislature has specifically provided that a juvenile court proceeding shall not be deemed a criminal proceeding. (Welf. & Inst. Code, § 503.) In the light of In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428], which held that certain procedural protections required by due process are applicable in juvenile court proceedings, such proceedings may not be regarded in all cases for every purpose as civil rather than criminal. However, as we pointed out in In re Dennis M., supra, 70 Cal.2d 444, 456, “even after Gault . . . juvenile proceedings retain a sui generis character; although certain basic rules of due process must be observed, the proceedings are nevertheless conducted for the protection and benefit of the youth in question.” Thus the conclusion reached in Borders and Juvenile Court remains valid.
In support of its position that subdivision One of section 26 applies in a juvenile court proceeding under section 602, the majority state that “the juvenile courts exercise exclusive jurisdiction over all minors under the age of 16” and that “we cannot presume the repeal of [subdivision One of] *873section 26 by implication; the decisions clearly establish the contrary presumption.” Even if it be assumed that the former quoted statement is correct, it does not follow that subdivision One of section 26 is repealed by implication by a determination of the inapplicability of that subdivision in a juvenile court proceeding under section 602. As the majority recognize, that subdivision is applicable where an adult defendant charged with a sex crime against a child contends that the latter is an accomplice whose testimony requires corroboration (Pen. Code, § 1111). (E.g. People v. Terry, 180 Cal.App.2d 48, 59 [4 Cal.Rptr. 597]; People v. Williams, 12 Cal.App.2d 207, 208 et seq. [55 P.2d 223]; People v. Becker, 140 Cal.App. 162, 164 [35 P.2d 196]; see 1 Witkin, Cal. Crimes (1963), p. 122.)
The majority also note that “Section 602 is clearly distinguishable from sections 600 and 601 with respect to the consequences of their operation upon the child: upon the application of section 602, commitment of the youth to the custody of the California Youth Authority becomes far more likely.” However, the Welfare and Institutions Code places restrictions on such a commitment (§ § 733 and 734),6 and where such a commitment is authorized it is only one of several possible alternatives.7 Under the circumstances the fact that Youth Authority commitment may be an alternative available for a minor found to be a person described by section 602 should not preclude holding subdivision One of section 26 is inapplicable in a juvenile court proceeding under section 602.
The majority rely upon statements quoted from People v. Lara, 67 Cal.2d 365, 380-381 [62 Cal.Rptr. 586, 432 P.2d 202]. Those statements, however, were made in connection with our rejection of the claim that defendants, aged 17 and 18 at the time of the crime, had not knowingly waived their rights to counsel and to remain silent, and Lara did not involve or *874decide the question of the applicability of subdivision One of section 26 in a proceeding to determine whether a minor is a person described by section 602.
In re T.R.S., 1 Cal.App.3d 178, 181 [81 Cal.Rptr. 574], also cited by the majority, appears to have merely assumed without deciding that subdivision One of section 26 applies in a preceding to determine whether a minor less than 14 is a person described by section 602.8
Subdivision Three of Penal Code section 26 (insanity) has been held applicable in a juvenile court proceeding to determine whether a minor is a person described by section 602 (In re M.G.S., 267 Cal.App.2d 329, 337 [72 Cal.Rptr. 808]), but it does not follow that subdivision One of section 26 is likewise applicable in such a proceeding. Permitting the defense of insanity in such a proceeding does not deprive the minor of needed care (see, e.g., Welf. & Inst. Code, § 705), whereas holding subdivision One of section 26 applicable in such a proceeding can, as we have seen, deprive minors of needed care.
For the reasons above stated I would uphold the position of the Attorney General that subdivision One of section 26 is inapplicable in a juvenile court proceeding to determine whether a minor comes within section 602.
McComb, J., concurred.
Welfare and Institutions Code section 602 provides: “Any person under the age of 21 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.”
Penal Code section 26 provides: “All persons are capable of committing crimes except those belonging to the following classes: One. Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them, they knew of its wrongfulness.”
References hereinafter to sections 602 and 26, subdivision One, without mention of any code, are to the quoted sections.
Section 502 reads: “The purpose of this chapter [the Arnold Kennick Juvenile Court Law] is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the State; to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety and protection of the public cannot be adequately safeguarded without removal; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that' which should have been given by his parents. This chapter shall be liberally construed to carry out these purposes.”
Penal Code section 26 was enacted in 1872 and last amended in 1873-1874, long before the juvenile court system was established in this state (see Cal. Juvenile Court Practice (1968) p. 14).
Welfare and Institutions Code section 600 reads: “Any person under the age of 21 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court:
“(a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.
“(b) Who is destitute, or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode, or whose home is an unfit place for him by reason of neglect, cruelty, or depravity of either of his parents, or of his guardian or other person in whose custody or care he is.
“(c) Who is physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality.”
Welfare and Institutions Code section 601 reads: “Any person under the age of 21 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his parents, guardian, custodian or school authorities, or who is beyond the control of such person, or any person who is a habitual truant from school within the meaning of any law of this State, or who from any cause is in danger of leading an idle, dissolute, lewd, or immoral life, is within the jurisdiction of the juvenile court which may adjudge such person to be a ward of the court.”
References hereinafter to sections 600 and 601, without mention of any code, are to the quoted sections. ■
The circumstances under which a section 601 ward and a section 602 ward may be committed to the Youth Authority are not identical. (See Welf. & Inst. Code, §§ 602, 730, 731, 733, and 734.)
Section 733 prohibits commitment to the Youth Authority of specified persons including, among others, a ward under 8 years of age, and section 734 prohibits such a commitment “unless the judge ... is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.”
Where the court has found the minor to be a person described by section 602, it may, without adjudging the minor a ward of the court, place the minor on probation under the supervision of the probation officer, or the court may adjudge the minor to be a ward of the court. (Welf. & Inst. Code, § 725.) “. . . no ward . . . shall be taken from the physical custody of a parent . . . unless upon the hearing the court first finds” one of several enumerated facts (e.g. the minor has been tried on probation and has failed to reform). (Welf. & Inst. Code, § 726.) Where the court has found such a fact exists, it may order for a section 602 ward any of fhe types of treatment authorized for a section 600 or 601 ward (e.g. commit minor to care of probation officer to be placed in suitable family home or suitable private institution, commit minor to juvenile home) or may commit the minor to the Youth Authority (Welf. & Inst. Code, § 731), subject to the restrictions heretofore mentioned.
With respect to that question In re T.R.S., supra, 1 Cal.App.3d 178, 181, stated only, “There is no merit to the contention the evidence, by ‘clear proof’ as required by Penal Code, section 26, does not establish the minor knew the wrongfulness of his conduct.”