Common Law. At common law, a child under age 7 was protected by a conclusive presumption of incapacity. As to children between ages 7 and 14, the presumption was rebuttable and could be overcome by a showing of ability to understand the wrongfulness of the act.
(Children Under Age 14. P.C. 26(One) eliminates the common law conclusive presumption. It excepts from the general rule of capacity children under age 14, “in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” Hence, P.C. 26(One) creates a rebuttable presumption that a child under age 14 is incapable of committing a crime.
The “clear proof” required to rebut the presumption of incapacity is proof by clear and convincing evidence, not proof beyond a reasonable doubt The child’s age, experience, and understanding may be considered, and the closer a child is to age 14, the more likely the child is to appreciate the wrongfulness of the acts that the child has committed.
California criminal courts rarely confront the defense of infancy, because children under age 14 are almost invariably subjected to the correctional processes of the juvenile court.
However, the issue of capacity may arise where an adult defendant, charged with a sex crime against a child, claims that the child is an accomplice whose testimony requires corroboration under P.C. 1111. These claims generally have been rejected, either because the child lacked criminal capacity under the statutory test and thus could not be deemed an accomplice, or because a child who is the victim under a statute designed to protect minors is not considered an accomplice.
Children Age 14 or Over. Minors age 14 or over come within the general presumption of capacity contained in P.C. 26. This presumption of capacity is not affected by the fact that minors are usually processed in the juvenile court and are subject to criminal prosecution only in limited circumstances