Appeal from Superior Court of King County. Docket No: 96-8-01199-3. Date filed: 05/22/96.
PER CURIAM. J.L.L. appeals his conviction in juvenile court of attempted arson in the second degree. The determinative issue on appeal is whether the court erred in determining that J.L.L. had the capacity to commit the charged offense. J.L.L. contends that in making the capacity determination, the court erred in considering his counselors' testimony because he had not waived the counselor-patient privilege. The State responds that J.L.L. cannot challenge the capacity determination because he subsequently pleaded guilty. Because we conclude that the State proved capacity based solely on the testimony of two other witnesses, we affirm.
J.L.L. was charged with attempted arson in the second degree. The information alleged that on January 3, 1996, he knowingly and maliciously attempted to light a fire and damaged his mattress. J.L.L. was 11 1/2 years old at the time of the alleged offense. Prior to trial, the court held a hearing to determine whether J.L.L. had the capacity to commit the charged offense. Four witnesses testified at the capacity hearing: David Legett, Officer Ron Harding, Dr. Larry DeHerrera, and counselor Kristen Mueller.
Dr. DeHerrera and Ms. Mueller had treated J.L.L. during counseling sessions. Defense counsel objected to the testimony of both counselors on the ground that J.L.L.'s communications with them were confidential and that he had not waived his patient-counselor privilege. The trial court admitted the testimony, ruling that the privilege applied, but J.L.L.'s father had properly waived the privilege on J.L.L.'s behalf.
Each of the witnesses testified that J.L.L. knew that starting fires was wrong. Based on their testimony, the trial court ruled that J.L.L. had the capacity to commit the charged offense. Subsequently, J.L.L. pleaded guilty and the court imposed an option B Disposition.
J.L.L. contends that the trial court erred in admitting the testimony of J.L.L.'s counselors because a parent does not have the authority to waive a competent child's counselor-patient privilege. He contends that without the counselors' testimony, the State did not prove capacity. The State responds that by pleading guilty, J.L.L. waived the right to challenge the capacity determination. We need not resolve these issues because we conclude that the State proved capacity based solely on the testimony of the other witnesses.
The capacity statute, RCW 9A.04.050, provides in part:
Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.
J.L.L. was under 12 at the time of the offense. Thus, the State had the burden of rebutting the presumption of incapacity by clear and convincing evidence. State v. Q.D., 102 Wash. 2d 19, 26, 685 P.2d 557 (1984).
Capacity determinations are fact specific inquiries that must be determined on a case-by-case basis. State v. Linares, 75 Wash. App. 404, 415, 880 P.2d 550 (1994). The following factors are relevant in determining whether a child knew the act he or she committed was wrong:
(1) the nature of the crime; (2) whether the child showed a desire for secrecy; (3) the child's age; (4) any consequences that attached to the conduct; and (5) acknowledgment at the time of the offense that the behavior is wrong and could lead to detention. Linares, 75 Wash. App. at 415. Also relevant is testimony from those acquainted with the child and the testimony of experts. See Linares, 75 Wash. App. at 415; State v. K.R.L., 67 Wash. App. 721, 726, 840 P.2d 210 (1992).
Officer David Legett, a public fire educator for Woodinville Fire and Life Safety District, testified that approximately one year prior to the offense, he met J.L.L. and his father at the fire station to discuss a fire which J.L.L. had started at home. J.L.L.'s father contacted the station because he was concerned about J.L.L.'s fire setting behavior. J.L.L. had previously set two fires and had been told not to set any more. Legett testified that J.L.L. seemed remorseful, although he could not explain why he started the fires. Legett's Discussion focused on safety issues; he did not specifically talk to J.L.L. about possible legal consequences to future incidents. After talking to J.L.L., he concluded that J.L.L. knew what he had done was wrong. Legett referred J.L.L. to a counseling program for juveniles who set fires.
Officer Ron Harding investigated the January 4, 1996 fire. J.L.L. told him that with a lighter he lit a ...