Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. Nos. J169234-02, J169234-03.
Richman, J.
Steven E. was the subject on an ongoing dependency proceeding when the prosecuting attorney filed a petition seeking to have him declared a delinquent. The juvenile court sustained the allegations of the delinquency petition, finding that Steven had committed the felony of assault with intent to commit a lewd or lascivious act upon a child (Pen. Code, §§ 220, 288), misdemeanor battery (id., §§ 242, 243, subd. (a)), and misdemeanor false imprisonment (id., §§ 236, 237, subd. (a)). The court then declared Steven to be a ward of the court, ordered out-of-home placement for a period not to exceed six years and six months, and terminated the dependency.
Steven appeals from the dispositional order. He contends that: (1) the juvenile court did not comply with the procedures for terminating the dependency; (2) there is not substantial evidence to support the determination that that he committed the assault; and (3) the juvenile court improperly computed the maximum term of confinement. With respect to the first contention, we conclude that, while there was not strict compliance with the provisions governing termination of a dependency, the issue was not preserved for review because there was no objection to this nonjurisdictional defect. We also conclude that in any event there was substantial compliance with the requirements for ending an ongoing dependency. With respect to Steven’s second and third contentions, we conclude they are without merit. In light of these conclusions, we affirm.
Background
In February 1997, the juvenile court of Alameda County sustained allegations of a dependency petition that Steven came within the provisions of Welfare and Institutions Code section 300, subdivision (b), in that his mother had “inappropriately disciplined” Steven with a belt, and had failed to provide medical services for Steven, who is “developmentally delayed” and who suffers from “a seizure disorder.” The matter was apparently resolved without the necessity of a formal declaration that Steven was a dependent child: according to the record, the dependency was dismissed in July 2007, with Steven remaining in his mother’s custody and the Alameda County Social Services Agency retaining “informal supervision.”
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In April 2004, the trial court sustained allegations that Steven was at risk because his mother was physically abusing his half-brother. The court declared Steven a dependent child, and again left custody with his mother.
The dependency proceeding was still ongoing when, on June 27, 2006, the Alameda County District Attorney filed a petition seeking to have Steven declared a delinquent child pursuant to section 600 et seq. It was alleged in the petition that on June 25, 2006, Steven had committed the following acts which, if he was an adult, would be felonies: (1) he “did then and there . . . assault JANE DOE, with intent to commit rape, sodomy, rape in concert . . . [or] oral copulation”; and (2) he also “did then and there, for the purpose of sexual arousal, gratification and abuse, touch an intimate part of the body of JANE DOE, to wit: sexual organs, anus, groin, buttocks OR breasts, against her will and while she was restrained by another who was an accomplice . . . .”
The following day, June 28, Steven appeared before Commissioner Mark Kliszewski, who ordered him detained because he was “a danger to others.” At that time Steven’s counsel orally offered to “stipulate to a commissioner.” On July 13, Steven and the prosecuting attorney filed a written stipulation authorizing Commissioner Kliszewski “to try the . . . cause, and be empowered to act in such capacity . . . until the final determination thereof.”
The parties’ stipulation is certainly understandable in light of the considerable experience and expertise that Commissioner Kliszewski has amassed as a judicial officer in the Alameda County Juvenile Court. References hereinafter to “the court” or “the juvenile court” are to Judge pro tempore Kliszewski.
The jurisdictional hearing was held on July 20 and 21, 2006. The court heard testimony from the victim, an adult witness, and the case manager from Steven’s dependency, which testimony is summarized in part II, post, in connection with Steven’s challenge to its sufficiency. After hearing extensive argument from counsel, the court ruled on the allegations of the petition as follows: “I agree with [Steven’s counsel] on the [Penal Code section] 243.4 issue, that the element of the statute has not been reached. It certainly is very close, but I don’t think that the evidence shows that there was enough to make it a 243.4 [felony sexual battery]. So as to count 2, I’ll find a misdemeanor [Penal Code section] 242. [¶] As to count 1, I don’t like the way it is, but . . . I don’t see any law that says otherwise, [that] you have to specifically say which of these crimes was intended. So based on the fact that there clearly, in my mind as the finder of fact here, was a [Penal Code section] 288 contemplated by the minor, then this result is enough to create the 288, and therefore, he’s found to have committed the felony [Penal code section] 220 with intent to commit the 288. [¶] And then lastly, as to the [Penal Code section] 236 [count 3, false imprisonment], I’ll find that is true on a misdemeanor level.”
The dispositional hearing was held on August 4, 2006. The court had before it a dispositional report prepared by the probation officer. After consulting with the persons responsible for supervising Steven’s dependency, the probation officer informed the court: “Social Services’ position is, if Dependency is to be maintained (they want to maintain Dependency) there must be an out-of-home placement order. If out-of-home placement is not ordered they will forfeit Dependency. Social services and the Regional Center are presently conjoining to secure a residential setting for the minor. However, to finalize the step for residential commitment the mother’s approval is required. Without that approval, the minor must be adjudicated a ward and come under the jurisdiction of the [c]ourt and [p]robation.”
The probation officer recommended that the court find that: (1) “the welfare of the [minor] requires that [his] custody be taken from [his] parents”; (2) “reasonable efforts have been made to prevent or eliminate the need for removal of [Steven] from home [and] to make it possible for the child to return home”; and (3) “remaining in the home is contrary to the minor’s welfare.”
The court opened the hearing by stating that “The matter is on for disposition with a recommendation for a continued dependency and informal probation . . . .” Steven’s counsel prefaced his remarks by complimenting the probation officer’s report as “very thorough.” The court asked the probation officer about consequences of making Steven a ward:
“Probation Court Officer: If you make him a ward, put a placement order in, then Social Services basically is going to forfeit all of their services.
“The Court: Well, that’s what I’m wondering. If he becomes a ward of the court, does he lose what he has with you guys.
“[Minor’s Dependency Supervisor]: He will not lose his placement at Spectrum Center as long as he resides in a district that we serve.
“The Court: So there’s no down side of making him a ward as far as you know?
“[Minor’s Dependency Supervisor]: Not for us.
“The Court: So what’s the down side?
“[Steven’s Counsel]: The down side, other than the possibility of incarceration . . . .
“The Court: He likes juvenile hall, by the way. I don’t know if you saw that.
“[Steven’s Counsel]: I did read that [in the probation officer’s report] . . . .”
After hearing from all sides, the court ruled: “So what I’m going to do is order placement, order that you do it in Oakland, if possible, which hopefully we can do, and then he can take advantage of these services.” The court then declared Steven a ward, made the findings requested by the probation officer, and dismissed the dependency.
Steven filed a timely notice of appeal from the dispositional order.
Discussion
I
Section 241.1, augmented by rule 5.512 of the California Rules of Court, establishes procedures for how to handle instances where a minor may fit the definitions of both a dependent and a delinquent. In such cases, “the county probation department and the child welfare services department shall, pursuant to a jointly developed written protocol . . ., initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor.” (§ 241.1, subd. (a).) The juvenile court is also to receive a joint assessment from the responsible child welfare and probation departments, and to conduct a hearing on the assessment within 15 days of the child being ordered detained and before the jurisdictional hearing; the hearing is to be conducted only upon at least five-days notice to the parties; and the court’s decision is to be “state[d] . . . on the record or in a written order.” (Cal. Rules of Court, rule 5.512(a)-(g) (rule 5.512).)
Steven advances a number of arguments attempting to show that the record does not establish compliance with these provisions.
He first contends that the juvenile court erred by making the jurisdictional findings and the dispositional order “without first ordering” preparation of an assessment, and by thereafter failing to conform to the procedural requirements of rule 5.512. Steven is mistaken in the manner in which he frames his argument. It is plain from the language of section 241.1 and rule 5.512 that Steven is incorrect in assuming the court has a duty to “order” a recommendation, because it is up to the two departments to initiate the recommendation and assessment, pursuant to an existing protocol. The court is merely the recipient of the recommendation, not its originator.
Steven points out that the purpose of section 241.1 is to produce relevant information “ ‘before the delinquency judge ultimately [decides] whether the minor is to remain a dependent or be declared a ward of the court.’ ” (Quoting Bellinger, “Can We Talk?” Facilitating Communication Between Dependency and Delinquency Courts (2000) 21 J. Juv. L. 1, 2. . . .) Here, it is clear that the “ultimate determination” as to Steven’s status was not made until the dispositional hearing on August 4, 2006. By the time that determination was made, the court had before it the probation officer’s report, a report clearly made after consultation with the appropriate social services agency. Even more importantly, a representative of the social services agency was at the dispositional hearing and participated in the discussions prior to the court making a final decision.
Moreover, that report was far more than just a naked bottom-line recommendation. Attached to it were a number of documents, including: (1) a psychological evaluation of Steven performed by the Oakland Unified School District; (2) a fax cover sheet showing that a copy of the wardship petition was sent to the social services agency within five days of its filing; (3) a copy of the disposition report submitted to the dependency court before it declared him a dependent in 2004; and (4) what appears to be the file of Steven’s progress through the “Individualized Education Program” of the Oakland Unified School District. Collectively, these documents, and the disposition report to which they were attached, essentially amount to the contents of the recommendation and assessment required by section 241.1 and rule 5.512.
“The joint assessment report must contain the joint recommendation of the probation and child welfare departments if they agree on the status that will serve the best interest of the child and the protection of society, or the separate recommendation of each department if they do not agree. The report must also include: [¶] (1) A description of the nature of the referral; [¶] (2) The age of the child; [¶] (3) The history of any physical, sexual, or emotional abuse of the child; [¶] (4) The prior record of the child’s parents for abuse of this or any other child; [¶] (5) The prior record of the child for out-of-control or delinquent behavior; [¶] (6) The parents’ cooperation with the child’s school; [¶] (7) The child’s functioning at school; (8) The nature of the child’s home environment; [¶] (9) The history of involvement of any agencies or professionals with the child and his or her family; [¶] (10) Any services or community agencies that are available to assist the child and his or her family; [¶] (11) A statement by any counsel currently representing the child; and [¶] (12) A statement by any CASA volunteer currently appointed for the child.” (Rule 5.5.12(d).)
In any event, if there were any gaps or omissions, Steven did not object or otherwise bring them to the attention of the juvenile court prior to its decision to terminate the dependency. Steven does not cite any authority that noncompliance with section 241.1 and/or rule 5.512 constitutes a jurisdictional defect to the decision terminating a dependency. And our research disclosed no such authority. On the other hand, numerous courts have found that a minor’s failure to object forfeits review of objections to the adequacy of—indeed, lack of—various assessment reports in juvenile proceedings. (E.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain assessment report required by § 366.26]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request bonding study]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to adequacy of assessment].) We discern no reason why this rule should not apply here.
At several points in his brief, Steven faults the report as containing inaccurate information, and chides the court for relying on that information. This attitude is in marked contrast to Steven’s trial counsel complimenting the report as “very thorough.” And as to the claimed “inaccuracies, if there were such defects—and Steven does not provide specifics—they cannot be reviewed on this appeal because they were not brought to the attention of the court before it acted. (E.g., Evid. Code, § 353, subd. (a); In re Elijah V. (2005) 127 Cal.App.4th 576, 582.)
We further note that two days before Steven was made a ward the dependency court held a review hearing for the situation of Steven and his siblings. At one point in the hearing the court made reference to Steven and “the seriousness of the charges against him.” At another point in the hearing, the dependency court was advised that Steven’s counsel for the delinquency matter “is going to be requesting probation without wardship.” The dependency court replied, “I am not sure that is going to fly.” It is apparent from these excerpts that the dependency court knew about the parallel proceeding in the delinquency court, had an appreciation of Steven’s situation, and correctly anticipated the likely ruling by the delinquency court.
Steven next contends that his “history as a court dependent demonstrates that his best interests and the protection of society would best have been served by continuing him as a dependent with out-of-home placement.” (AOB 33-39) The majority of the arguments devoted to this contention are pointless for our purposes, amounting as they do to no more than reiteration of the arguments made by his counsel at the dispositional hearing as to why a delinquency should have not been preferred to a continuation of the dependency. These arguments do no more than underscore the point made by the probation officer’s report, namely, that the agencies were in favor of treating Steven as a dependent and not as a delinquent. But the situation admitted of legitimate disagreement, and the decision could have gone either way. When a trial court deals with such a situation, the resulting decision cannot be condemned as an abuse of the court’s discretion. (E.g., In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Travis W. (2003) 107 Cal.App.4th 368, 379-380.)
At one point in his brief, Steven appears to challenge the competence of the court to adjudicate the matter. This challenge is contrary to the plain language of section 241.1, which unambiguously states that the recommendations of the probation and social services department “shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor.” (§ 241.1, subd. (a).) In this case the petition was presented to the court on the delinquency side of the juvenile court’s jurisdiction, who, with Steven’s stipulation, thus constituted “the court” with the statutory authority to decide. (See In re Marcus G. (1999) 73 Cal.App.4th 1008, 1013 (Marcus G.) [“it is the juvenile court facing the problem of dual jurisdiction that must determine whether the minor should be treated as a dependent child or a delinquent minor”].)
Steven’s final contention is that Commissioner/Temporary Judge Kliszewski had no authority to dismiss the pending dependency “because: (1) the Commissioner failed to assure compliance with the requirements of both section 241.1 and rule 5.512 and thus did not have jurisdiction to dismiss the dependency; and (2) the Commissioner took this action in the absence of a filed section 388 petition requesting termination of the minor’s dependency.” The claim fails.
The first part of Steven’s contention is simply a repackaging of arguments that we have already considered and rejected in concluding that noncompliance with section 241.1 and rule 5.512 are not jurisdictional.
Steven explains the second part of his contention as follows: “In In re Marcus G., a case involving the section 241.1 joint assessment requirements, the San Francisco Department of Human Services filed a section 388 petition seeking dismissal of the minor’s lengthy dependency when he was also adjudicated a ward of the court. [Citation.] That petition was granted, the dependency was dismissed, and that order the subject of the appeal. [Citation.] [¶] In the instant case, the [social services] Agency never filed a section 388 petition asking that Steven’s dependency be dismissed.”
Steven accurately states the procedural history in Marcus G., supra, 73 Cal.App.4th 1008, but he does so selectively, and he draws an erroneous conclusion from it. A detail omitted from his description is that in Marcus G. there appears to have been no attempt to comply with section 241.1 (See Marcus G., supra, 73 Cal.App.4th 1008, 1013-1014 [“the record does not show that the procedures set forth in section 241.1 were followed”].) As already shown, the situation here was very different. Moreover, simply because the social services agency in Marcus G. chose to file a section 388 petition after wardship was declared does not mean that wardship cannot be declared until such a petition is made and ruled upon. Nothing in Marcus G. suggests the jurisdictional hurdle that Steven claims.
II
Steven’s contention that substantial evidence does not support the juvenile court’s finding that he committed the sexually-motivated assault reviewed according to familiar rules: “The issue of sufficiency of the evidence in dependency cases in governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
Penal Code section 220, subdivision (a) provides in pertinent part: “[A]ny person who assaults another with intent to commit . . . rape, sodomy, oral copulation, or any violation of Section . . . 288 [lewd or lascivious act on minor], or 289 [sexual penetration by foreign object] shall be punished by imprisonment in the state prison for two, four, or six years.” The juvenile court concluded the evidence established that Steven intended to commit a violation of Penal Code section 288 as the mental predicate for his assault on the victim.
Our Supreme Court discussed just what actions can violate Penal Code section 288: “[T]hroughout the statute’s history, the cases have made clear that a ‘touching’ of the victim is required, and that sexual gratification must be presently intended at the time such ‘touching’ occurs. [Citations.] However, the form, manner, or nature of the offending act is not otherwise restricted. Conviction under the statute has never depended upon contact with the bare skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim’s clothing and can involve ‘any part’ of the victim’s body. [Citations.]” (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).)
“[M]odern courts state or imply that any touching of an underage child is ‘lewd or lascivious’ within the meaning of [Penal Code] section 288 where it is committed for the purpose of sexual arousal. [Citations.] [¶] Of course, the manner of touching is not irrelevant under this view. ‘[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.’ [Citations.] Other relevant factors can include the defendant’s extrajudicial statements . . . . ” (Martinez, supra, 11 Cal.4th 434, 444-445.)
“[T]he only way to determine whether a particular touching is permitted or prohibited is by reference to the actor’s intent as inferred from all the circumstances.” (Martinez, supra, 11 Cal.4th at p. 450.) “A touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute. . . . [I]f the trier of fact is persuaded beyond a reasonable doubt, from all the circumstances, that the touching of a child was sexually motivated, nothing in the language, history, or purpose of [Penal Code] section 288 indicates that the touching should escape punishment simply because it might not be considered a means of sexual gratification by members of the mainstream population.” (Id. at p. 452.)
The victim, six-year-old A. D., was obviously under stress when she testified, and reluctant to relive the experience. The other percipient witness was an adult, Ms. Baker. Their testimony, interwoven in the interests of coherence, supports the following recitals:
A. D.’s father was present in court, and her grandmother sat next to her as the statutorily authorized support person while she testified. (See Welf. & Inst. Code, § 676.5; Pen. Code, § 868.5; Cal. Rules of Court, rule 5.530(e)(2)(B).)
On the late afternoon of June 25, 2006, A. D. was playing in an enclosed playground at a public park. A. D. knew Steven, and had played with him before. The play that day became rough. A. D. was crying when Steven held her arms, and told her, “Your Momma’s not going to help you.”
Ms. Baker lives in an apartment building adjacent to the playground. About 7 p.m., she heard a girl screaming. Ms. Baker left her apartment, “and when I got downstairs, I saw two boys” standing beside the girl. Steven was one of the boys; the other was “about the same age as the little girl, between five and six.” The boys were facing the girl and standing very close to her, with their hands on her arms. Ms. Baker asked them what were they doing. The girl said she was screaming because she was afraid of the dog. Ms. Baker told the boys to “Quit teasing her with the dog.” Ms. Baker returned to her apartment.
A. D. did not remember a dog. She recalled that other children were present, but she had no memory of their ages.
Some time later, Ms. Baker heard more screaming. This time the pitch of the screaming was different, i.e., more shrill than before. Ms. Baker also heard a boy shouting, “Come on, now. See how he’s really going to do it.” She looked out her apartment and observed “a little boy telling another little boy, ‘Hurry up, come on. He’s getting ready to show us how to really do it.’ ” Ms. Baker returned to the playground, where she observed Steven “having the little girl’s leg sprawled open with his hands on her hips, shaking her downward.” Ms. Baker described what she saw: “He [Steven] was positioned up with her legs sprawled over his waist,” and “[h]e was shaking her . . . first . . . on her hips, and then he went forward to where her pants buttoned[,] to where her zipper was. [¶] . . .[¶] . . . He actually lifted her and blammed her down on the ground to continue to [un]zip and unbutton.” “At that point I stated, ‘What are you doing?’ and he looked up and he ran.” No other adults were present.
Ms. Baker had earlier observed another boy, also about six years old, in the vicinity when she first went to the playground.
During cross-examination, Ms. Baker described Steven as having lifted the girl off the ground (“she’s dangling in the air”) and was “trying to get into her pants.” He then “slam[med]” her to the ground, sat or crouched next to her, and continued trying to work A. D.’s pants over her hips.
Before Ms. Baker intervened, the girl was “fighting with her hands,” trying to get off the ground. After Steven fled, the girl grabbed Ms. Baker’s hands. The girl was “[s]haken, shocked, crying.” She told Ms. Baker where she lived. Ms. Baker escorted her home. Ms. Baker saw that the girl “had a hole in the back of her jeans.” A. D. testified that Steven made the rip while he had her on the ground.
Steven does not really dispute the state of either the law or the evidence. What he does is focus upon the evidence as to whether it shows he had the requisite mental state. In In re Jerry M. (1997) 59 Cal.App.4th 289, 300, the court stated that “the closer the minor approaches the age of 14 years, the more likely the minor understands the wrongfulness of his acts . . . . Conversely, the more distant the age of the minor below the age of 14 years, the less likely the minor understands the wrongfulness of his acts. Similarly, the younger the minor the less likely his acts are with the specific intent of sexual arousal. At some age younger than 14 years, which we need not determine in this case, the minor cannot as a matter of law have the specific intent of sexual arousal” required by Penal Code section 288.
Steven attempts to bring himself within this reasoning, arguing that even though at the time of the events in question he “was age 15 chronologically, he was not that age in his mental, emotional, or behavioral development. Since the undisputed evidence was that he had the mental capacity of a five or six-year-old boy, it cannot be said beyond a reasonable doubt that he was able to form the necessary intent . . . .” We do not agree.
First, the evidence regarding Steven’s development is hardly “undisputed” as Steven maintains. In his brief, Steven cites the opinion of the probation officer in the latter’s disposition report that “this minor is more than mildly delayed. [Citation.] . . . ‘Severe’ [is] a more appropriate description of the minor’s cognitive delays.” On the other hand, Steven’s case manager at his dependency placement testified at the delinquency jurisdictional hearing that Steven is only “mildly” retarded. As the Attorney General notes, Steven is relying on information that was not brought to the court’s attention prior to the time it sustained the allegation of the delinquency petition that Steven had committed a sexually-motivated assault. The information is therefore not appropriate for considering the validity of the court’s ruling. (E.g., In re Arturo D. (2002) 27 Cal.4th 60, 77-78, fn. 18.)
Second, the only evidence about Steven’s mental state was the case manager’s testimony. Thus, the evidence was undisputed, but only to the extent that Steven was “mildly” retarded. Steven presented no evidence that his being “developmentally delayed” meant he was incapable of forming a specific intent, or that his “seizure disorder” reduced his culpability. Thus, there was no evidence that, as a matter of law, Steven was incapable of forming the intent required by Penal Code section 288.
Third, we note that Steven did raise the issue of his lack of mental capacity to entertain a specific intent, but only to the extent that counsel argued “he’s mildly mentally retarded” and thus incapable of harboring the specific intent for the felony sexual battery allegation. On the other hand, the prosecuting attorney argued that Steven’s case manager “specifically said he was mildly retarded, and as this court knows and defense counsel knows, there are a lot of people in prison who are mildly retarded and who can form intent.” And no one challenged the prosecuting attorney for arguing that retardation is not incompatible with the ability to harbor sexual impulses. (Cf. Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 148 [“severely retarded” woman had history of making “aggressive sexual advances toward men”].) In short, there was no evidence that Steven, as a mildly retarded 15-year-old boy, was exempt from the ordinary hormonal imperatives of male adolescence, or otherwise within the logic of In re Jerry M., supra, 59 Cal.App.4th 289, 300.
As to the sufficiency of the evidence, it is far more than ample—it is abundant.
Steven argues that there is no evidence that he “grabbed a ‘sexual area’ of the alleged victim, although by all accounts he certainly would have had the opportunity to do so if that had been his intent.” This is precisely the approach rejected in Martinez: “Defendant argues that no violation of [Penal Code] section 288 occurs absent a touching of the genitals, buttocks, or female breast. All other sexually motivated contact between a defendant and an underage child is immune from prosecution under this view. [¶] We find no evidence that the Legislature intended to define the crime in such narrow terms. . . . [Penal Code] section 243.4 defines sexual battery as certain sexually motivated, nonconsensual touchings of an ‘intimate part’ of another person’s body, to wit, ‘sexual organ, anus, groin, or buttocks of any person, and the breast of a female.’ [Citation.] If the Legislature had intended to define [Penal Code] section 288 in terms of such specific bodily contact it could easily have done so. The absence of such language in section 288 strongly suggests that such touchings are not restricted in this manner.” (Martinez, supra, 11 Cal.4th 434, 451.)
According to Steven’s appellate counsel, “The worst one can say about [Steven’s] behavior was that he was trying to annoy the girl by pulling down her pants.” Even accepting this most benign construction of Steven’s actions, involuntary disrobing of the victim is enough to make out a violation of Penal Code section 288. (People v. Levesque (1995) 35 Cal.App.4th 530; People v. Bolander (1994) 23 Cal.App.4th 155; People v. Lanham (1934) 137 Cal.App. 737.) Moreover, the exculpatory construction is at odds with the mass of evidence which the juvenile court found more credible.
The evidence was uncontradicted that Steven paid no attention to A. D.’s crying, her screams, or her physical resistance. His telling her, “Your momma’s not going to help you” could be viewed by the juvenile court as intended to stifle that resistance. When the other boy shouted, in a manner almost guaranteed to draw a crowd, that Steven was going to “do it,” he was using a well-known euphemism for a sexual act. (See People v. Craig (1994) 25 Cal.App.4th 1593, 1600.) Steven did or said nothing that conveyed a contrary impression. On the contrary, he continued to maul the victim.
Other of the circumstances surrounding the attack are relevant. Steven was 15 years old, A. D. only six. Having seen both in person, the court may have drawn the obvious inference that A. D. was physically incapable of getting free from Steven. Because that inference would be reasonable, we must draw it in favor of the court’s decision. (In re L. Y. L., supra, 101 Cal.App.4th 942, 947.) The court could further conclude that it was no coincidence that A. D. was assaulted when there were no adults in the vicinity, thus reducing the possibility of intervention. Once Steven commenced the assault, and an adult (i.e., Ms. Baker) appeared, he fled. The principle that flight reflects consciousness of guilt (see Pen. Code, § 1127c) is not confined to adults.
“[I]f the trier of fact is persuaded beyond a reasonable doubt, from all the circumstances, that the touching of a child was sexually motivated, nothing in the language, history, or purpose of [Penal Code] section 288 indicates that the touching should escape punishment simply because it might not be considered a means of sexual gratification by members of the mainstream population.” (Martinez, supra, 11 Cal.4th 434, 452.) Here, the juvenile court was persuaded that Steven’s assault on A. D. was sexually motivated. That conclusion has far more than sufficient substantial evidence to support it. (In re L. Y. L., supra, 101 Cal.App.4th 942, 947.)
III
Every commitment to a juvenile facility must specify the maximum length of time that the juvenile may be confined. The maximum length is computed in the same manner as for an adult who is sentenced to state prison. (§§ 726, subd. (c), 731, subd. (b); Cal. Rules of Court, rule, 4.300.) As previously mentioned, the maximum term for the assault was six years (see part II, ante), and the juvenile court was obliged to use that period. (§ 726, subd. (c) [maximum term “means the longest of the three time periods set forth in . . . the Penal Code”].) The juvenile court added two additional months for the battery misdemeanor, and four months for the false imprisonment, using the one-third formula of Penal Code section 1170.1, subd. (a) applicable to calculating the maximum period of a juvenile offender’s commitment. (§ 726, subd. (c) 3d ¶; see Pen. Code, §§ 237, subd. (a) [maximum imprisonment for false imprisonment is 12 months], 243, subd. (a) [maximum imprisonment for battery is six months].)
Because the juvenile court aggregated the terms for the counts, it was required to comply with Penal Code section 654. (E.g., In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3; In re Asean D. (1993) 14 Cal.App.4th 467, 474.) Steven contends that the court failed to comply with this directive because it imposed separate sentences for the assault and the false imprisonment. Citing People v. Martinez (1980) 109 Cal.App.3d 851, Steven asserts that the false imprisonment and the assault constituted an indivisible transaction, with but a single criminal intent.
The pertinent statutory language is: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision . . . .” (Pen. Code, § 654, subd. (a).)
“It is well settled that [Penal Code] section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same ‘act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.] [¶] It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.] Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Just what were the defendant’s criminal objectives, or how many objectives were harbored by the defendant, are issues of fact given over to the trial court’s determination. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In People v. Martinez, supra, 109 Cal.App.3d 851, the defendant was convicted of felony false imprisonment and assault with intent to commit rape, and sentenced to separate sentences. The entirety of the evidence, and the reasoning of the Court of Appeal opinion is as follows: “Contrary to the argument of the Attorney General, the two offenses charged in counts I and II involved the same criminal event. The defendant assaulted his victim, dragged her under a bridge, and, after he desisted from his attempted rape, held her for a few moments to attempt to convince her not to complain to the police. Under all the cases applying section 654 of the Penal Code, only one sentence can be served for that sequence of events and the sentence on count II [for false imprisonment] must be stayed. [Citations.]” (Id. at p. 858.)
Here, we conclude that the court had a valid basis for determining that Steven entertained more than one criminal objective. The evidence from Ms. Baker was that she initially noticed A. D. being subjected to annoyance of a menacing and physical nature, but not one that had an overtly sexual threat. Steven was not the only tormentor, and a dog was involved. Ms. Baker testified that it was about an hour later when she went down to playground for the second time. This time, the mauling of A. D. had the unmistakable appearance of a sexual urge; there was no dog, and Steven was the only actual assailant. In light of the appreciable passage of time, the court could determine that the false imprisonment was incidental to the subsequent assault. (See People v. Manning (1982) 133 Cal.App.3d 159, 169.) Alternatively, the court could have determined that the offenses were sufficiently divisible in time so that, even if Steven had only a single objective, or even that one offense was committed to facilitate the other, separate punishments would be appropriate. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 [“It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment”], overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 924, fn. 14; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) Because either of these determinations is supported by substantial evidence, the court’s decision must stand. (People v. Osband, supra, 13 Cal.4th 622, 730-731; People v. Harrison, supra, 48 Cal.3d 321, 335.)
Disposition
The dispositional order is affirmed.
We concur: Kline, P.J., Lambden, J.