Opinion
A129165
09-30-2011
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. SJ07007614)
This is an appeal from the juvenile court's jurisdictional order of April 23, 2010 and dispositional order of May 24, 2010. Pursuant to these orders, the juvenile court found minor committed one felony count of sexual battery, continued him as a ward and placed him on probation under home supervision for 120 days. For reasons set forth below, we affirm the challenged orders.
FACTUAL AND PROCEDURAL BACKGROUND
On January 8, 2010, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that minor committed three counts of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)), and one count of false imprisonment (Pen. Code, § 236). A contested jurisdictional hearing began January 26, 2010, at which the following evidence was presented.
Unless otherwise stated herein, all statutory citations are to the Penal Code.
I. The Prosecution's Case.
On May 1, 2009, minor, the victim, and J.Y., all sophomores at Mission San Jose High School in Fremont, met in a shopping center parking lot across from the victim's house, where they consumed a bottle of vodka that minor had provided. According to the victim's testimony, this meeting occurred just after school. She had known minor for at least a year and the two had become friends when she began dating her former boyfriend, L.P., who was also minor's best friend. On the day in question, the victim, who claimed to have never before consumed alcohol, became quite intoxicated, throwing up, blacking out several times and barely able to walk. Minor and J.Y., on the other hand, remained relatively unaffected by the alcohol. The victim asked J.Y., who lived nearby, to take her home. In response, J.Y. walked to his house and returned a short while later with his parents' van.
Instead of taking her home, however, J.Y. helped minor carry the victim to the van and then drove to minor's home several miles away. J.Y. then helped minor carry the victim to minor's front door before driving home.
After J.Y. drove away, minor carried the victim upstairs to his bedroom. Minor's grandmother, with whom he lived, was at work outside the home. According to the victim's testimony, minor then forced her upstairs, kicking her when she fell down and calling her vulgar names while she cried and asked to be taken home. Once upstairs, minor pushed the victim on his bed, hit her in the face, removed her pants and underpants, pulled her legs apart, and touched and digitally penetrated her vagina several times despite her verbal and physical efforts to stop him. At some points, the victim claimed to have blacked out. When she regained consciousness, however, she recalled minor standing over her, cussing at her, while she cried and asked repeatedly to go home. Minor then hit her again in the face and chased her downstairs before finally allowing her to dress and walking her home.
A week later, minor wrote an apology letter to the victim, the contents of which was neither read nor admitted into evidence. Around the same time, the victim told a school official about the incident, disclosing that she had been drinking with minor and another student, and that she and minor had "crossed the friendship line." The victim did not elaborate further, but was visibly upset by what had occurred. School officials thereafter brought the victim and minor together for a supervised meeting to discuss what had occurred, during which time minor offered another apology to her.
Several months later, in September 2009, the victim's mother confronted her daughter about the incident with minor after learning about it from reading from her daughter's page on Facebook, Inc. (Facebook), a popular social networking website. According to the victim's mother, the victim explained to her that minor had digitally penetrated her vagina and then raped her. Her mother initially declined to report the incident to police, but then did so in early December 2009 after the victim ran away from home following an argument with her stepfather.
When the victim was later questioned by a school official regarding her mother's report, the victim stated that minor held her down and digitally penetrated her vagina at least three times, and then "may" have forcibly penetrated her with his penis.
An investigation ensued, during which the victim's mother made three pretext phone calls to minor at the request of police, which were later transcribed and admitted into evidence. During these phone conversations, minor repeatedly denied having sexual intercourse with the victim, but acknowledged she had become very drunk after consuming vodka he provided, and that he had then taken her to his bedroom, thinking she wanted to have sex with him, where he proceeded to take advantage of her. Specifically, minor's disclosures to the victim's mother included the following: "I tried to grab her and like put her on the bed"; "I do remember her telling me to stop"; "I was trying to grab her and stuff; "she was like, screaming stop"; and "I remember getting to my house and like once we got upstairs I was trying to feel on her" and was "touching her chest." When asked whether he was grabbing the victim's vagina, minor responded "I guess," and explained that he was "[t]rying to like get in her pants and grab her . . . when we were upstairs," but "she wouldn't let me [touch her vagina]." "[S]he was telling me no and . . . I was doing some - some really stupid things"; "I just remember calling her dumb . . .and trying to push her on the bed." Minor then added: "I was trying to feel on her and she was saying no"; "Like trying to feel on her and she was saying stop. And rub on her and get inside her clothes and even yelling at her." When asked whether he digitally penetrated her vagina, minor responded: "If she says she sore [in her vagina] then honestly I think I did . . . . I guess I did finger her." Overall, minor was very apologetic for his actions.
Subsequently, on January 7, 2010, minor went to police accompanied by his grandmother, where he waived his Miranda rights and agreed to a police interview. During this interview, minor adamantly denied raping the victim but admitted, among other things, touching and then briefly digitally penetrating her vagina while she kicked and hit him, repeatedly told him to stop, and squeezed her legs together to try to prevent his advances. Her actions and unwillingness to engage in sexual intercourse angered minor, who called her a "stupid bitch" and "stupid fucking bitch" before letting her get off the bed and put her clothes on. Afterward, minor walked the victim home. A few days later, feeling bad about what happened, minor wrote an apology letter to the victim, which he asked a friend to give to her. He also acknowledged to police that school officials subsequently monitored a meeting between the victim and him to discuss the incident after she reported it to one of her teachers.
Minor further told police that, a few days after the monitored school meeting, minor and the victim met again at a nearby park to discuss the incident. After some discussion, the victim sat in minor's lap, kissed him, and then put her hand in his pants and fondled his penis. Minor then reached under the victim's skirt and put his finger inside her vagina. This account was consistent with what minor told the victim's mother during one of the pretext phone calls. However, at trial, the victim denied meeting him at the park, claiming she was scared of minor after the incident and avoided him.
II. The Defense Case.
L.P., the victim's former boyfriend and minor's closest friend, testified that, the day after the incident, the victim described what happened as follows: "She snuck out of her house to go drink with [minor] . . . and [J.Y.] They - all three of them got really messed up, so [minor] tried to take her back to his house, and . . . got on top of her and tried to finger her, and then [the victim] told him to get off. [Minor] got off, and then [the victim] slapped him in the face, and then [minor] pushed her just to get her off of him, and then [minor] just kicked - didn't kick her but told her to get out of the house, and she left."
L.P. further testified that he was angry with the victim about the incident, and blamed her for "putting herself in that situation." L.P. described the victim as a "drama queen" who had been drunk many times before, including at school. He believed she may have lied about the incident to get attention, and that the minor was a good, caring person who would not have crossed the line with her.
J.Y. testified, contrary to the victim's testimony, that the three students met late at night, not after school, to drink vodka in the hours preceding the incident. J.Y. described the victim as quite drunk, to the point of vomiting. He acknowledged driving minor and the victim to minor's house in his parents' van, and then helping minor carry her into the house before leaving. He denied that the victim asked him to take her home, or that she seemed scared of minor. The next day, J.Y. texted minor, asking "How was it last night?" He also asked the victim what happened between her and minor. The victim claimed not to remember, and said nothing of having been sexually assaulted or raped.
III. The Facebook Records, the Parties' Stipulations, and Closing Arguments.
On the last day of the jurisdictional hearing, the juvenile court admitted into evidence the victim's records from her Facebook account, which included several electronic messages. In one of those messages, written the day after the incident, the victim described her encounter with minor to a friend, L.M., as follows: "I just got fuckin wasted nd [sic] I don't remember hella shit . . . ." She did not state in the message that minor had touched or digitally penetrated her vagina. She did state, however, contrary to her testimony at the hearing, that the incident occurred late at night after she sneaked out of her house to meet minor and J.Y.
The juvenile court sanctioned Facebook in the amount of $100,000 for failing to comply with various of its orders relating to the release of these records. The validity of this sanction order is the subject of a separate appeal before this court filed by Facebook on June 28, 2010 (consolidated case nos. A128898, A129157).
The victim's Facebook records also included a message to another friend in which she stated that, on the night in question, she drank a lot and "did stuff that little girls like me shouldn't doo [sic]." Other messages written to or by the victim revealed that she drank alcohol on a regular basis, and that at least two friends were concerned about her drinking habit.
At the close of evidence, the parties stipulated to several agreements, including to the admission into evidence of various school records of minor and the victim, the transcripts of witness statements to the investigating officers, and the transcripts of the pretext phone conversations between the victim's mother and minor.
In closing arguments, defense counsel, among other things, identified several instances in which the victim's statements in Facebook records were inconsistent with her testimony. The prosecutor, in turn, prepared a written closing argument read by a colleague which focused primarily on minor's own prior statements as evidence that he committed the charged offenses.
IV. The Juvenile Court's Jurisdictional Findings and Disposition.
Following closing arguments, the juvenile court ordered minor released from custody and made no finding against him on the charged offenses. Instead, the juvenile court found minor committed the uncharged offense of sexual battery (§ 243.4), which it found to be a "lesser and reasonably related offense" to the charged offense of forcible sexual penetration (§ 289, subd. (a)(1)). The court left open the issue of whether the sexual battery offense qualified as a felony or misdemeanor.
At the dispositional hearing on May 24, 2010, the juvenile court heard argument from counsel before concluding minor committed felony sexual battery. The juvenile court then continued minor as a ward of the court and placed him on probation under home supervision for 120 days, with a maximum term of confinement of 4 years, 10 months. This timely appeal followed.
DISCUSSION
Minor raises the following issues for our review. First, minor contends the juvenile court erred by finding that he committed sexual battery because the offense was neither charged nor a lesser included offense of any of the charged offenses. Second, minor contends that, even if the juvenile court properly found that sexual battery was a lesser included offense of the charged offense of forcible sexual penetration, the evidence in this case was insufficient to establish that he committed sexual battery. Finally, minor contends in the alternative that the evidence was insufficient to establish that he committed felony sexual battery rather than misdemeanor sexual battery. We address each of these contentions in turn.
I. Did the juvenile court err in finding minor guilty of sexual battery as a lesser included offense of forcible sexual penetration?
Minor first contends he was denied procedural due process when the juvenile court found he committed sexual battery (§ 243.4, subd. (a)), which the court identified as a "lesser and reasonably related offense" to forcible sexual penetration (§ 289, subd. (a)(1)). Minor reasons that he received no notice the wardship petition could be sustained on the basis of sexual battery because the offense was neither specifically charged in the accusatory pleading nor necessarily included within the charged offenses of forcible sexual penetration. The legal principles relevant to his contention are as follows.
Sexual battery is defined in the Penal Code as follows: "(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery." (§ 243.4, subd. (a).)
Forcible sexual penetration is defined by the Penal Code as "an act of sexual penetration . . . accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 289, subd. (a).)
" 'Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' " (In re Robert G. (1982) 31 Cal.3d 437, 440.) "The foregoing concerns are no less relevant to juvenile court proceedings. '[Due] process requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense. (In re Gault (1967) 387 U.S. 1, 33 . . . .)" (In re Arthur N. (1976) 16 Cal.3d 226, 233 [127 Cal.Rptr. 641, 545 P.2d 1345].) Compliance with this requirement has been held by the Supreme Court to mandate that the minor 'be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.' (In re Gault, supra, 387 U.S. at p. 33 [18 L.Ed.2d 527, at p. 549, 87 S.Ct. 1428].)" (In re Robert G., supra , 31 Cal.3d at p. 442.)
Relevant here, "the notice required by due process is given, with respect to lesser offenses, either 'when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense' [citations], or when 'the lesser offense is "necessarily included" within the statutory definition of the charged offense . . . .' ([citation]; see Pen. Code, § 1159.)" (In re Robert G., supr a, 31 Cal.3d at pp. 440-441.)
In this case, minor contends his due process rights were violated because the specific language of the accusatory pleading did not adequately warn him the prosecution intended to seek to prove the elements of the lesser offense of sexual battery, and because the lesser offense is not "necessarily included" within the statutory definition of the charged offense of forcible sexual penetration. (In re Robert G., supra , 31 Cal.3d at pp. 440-441.) The prosecution, in turn, concedes sexual battery is not "necessarily included" within the statutory definition of forcible sexual penetration, but nonetheless insists minor had adequate warning of a sexual battery charge based on the specific allegations in the wardship petition such that he was fully able to defend himself. We accept the prosecutor's concession that sexual battery is not necessarily included within the statutory definition of forcible sexual penetration, and continue to the issue of whether the petition's allegations sufficed to put minor on notice of a sexual battery charge.
In accepting the prosecutor's concession on this issue, we note that, with certain exceptions not relevant here, "a crime which requires specific intent cannot be a lesser included offense of a general intent crime." (In re Alberto S. (1991) 226 Cal.App.3d 1459, 1464.) Relevant here, forcible sexual penetration does not require a specific intent or purpose; sexual battery does (to wit, the specific intent to cause sexual arousal, gratification or abuse). (CALCRIM Nos. 935, 1045; see also People v. Dixon (1999) 75 Cal.App.4th 935, 943; People v. Dillon (2009) 174 Cal.App.4th 1367, 1380.) Additionally, the definition of sexual battery, unlike the definition of forcible sexual penetration, includes the element of unlawful restraint, which occurs when the victim's liberty is "controlled by words, acts or authority of another and the restraint is against his or her will." (CALCRIM No. 935; see also People v. Elam (2001) 91 Cal.App.4th 298, 309.)
Before turning to the relevant allegations, we first must take a closer look at the substantive offense. As set forth in section 243.4, sexual battery requires proof of each of the following elements: (1) the defendant touched an intimate part of the victim, (2) while the defendant or an accomplice unlawfully restrained the victim, (3) the touching was against the victim's will, and (4) was for the purpose of the defendant's sexual arousal, sexual gratification, or sexual abuse. (§ 243.4, subd. (a).) "As used in [section 243.4], the word 'touches' means 'physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.' [Citation].)" (In re Shannon T. (2006) 144 Cal.App.4th 618, 621; see also § 243.4, subd. (e)(2).) Further, an "intimate part" includes "the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (§ 243.4, subd. (g)(1).)
Turning now to minor's wardship petition, the relevant allegations against him are as follows. Counts one through three, in identical language, accuse minor of violating section 289, subdivision (a)(1) "in that said minor for the purpose of sexual arousal, gratification and abuse, did then and there by force, violence, duress, menace, and fear of immediate and unlawful bodily injury on the said JANE DOE and by threatening retaliation in the future against the said JANE DOE such retaliation appearing reasonably possible of execution, cause penetration of the genital opening of JANE DOE by foreign object, substance, instrument and device against her will."
According to minor, these allegations were insufficient to provide notice to him of the need to prepare a defense against a sexual battery charge because they do not include allegations that he unlawfully restrained the victim or touched her "in the manner required to prove sexual battery." Contrary to minor's reading of the wardship petition, however, we conclude the facts alleged therein, if proven true, were sufficient to establish each of the required elements of the offense of sexual battery. Specifically, consistent with the statutory definition of sexual battery, the petition alleged that minor: (1) touched an intimate part of the victim (to wit, her genital opening), (2) against her will, (3) while unlawfully restraining her through use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury, and by threatening retaliation in the future that appeared reasonably possible to execute, (4) for the purpose of minor's sexual arousal, sexual gratification, or sexual abuse. (§ 243.4, subd. (a).) Nothing more was required.
In so concluding, we reject minor's attempt to distinguish section 243.4's unlawful restraint requirement from the allegation in the petition that he used force, violence, duress, menace, fear of immediate and unlawful bodily injury, and threats of future retaliation against the victim. "[A] person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will . . . . The 'unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.' [Citation.]" (People v. Arnold (1992) 6 Cal.App.4th 18, 28.) In this case, according to the allegations in the wardship petition, the victim's liberty was being controlled by both minor's words (to wit, his threats of future retaliation) and his acts (to wit, his use of, among other things, violence, duress, menace and fear of immediate and unlawful bodily injury). These allegations were adequate for purposes of section 243.4's unlawful restraint requirement.
We likewise reject minor's argument that the wardship petition failed to include an allegation that he touched the victim "in the manner required to prove sexual battery." True, the petition went beyond mere touching of an intimate part by alleging that minor "cause[d] penetration of the genital opening of JANE DOE by foreign object, substance, instrument and device against her will." However, there can be no doubt that the act of causing such penetration can, and in this case, did include minor's touching of the victim's genital opening. As set forth above, for purposes of the sexual battery statute, "intimate part" includes "the sexual organ . . . ." (§ 243.4, subd. (g)(1).) A female's genitals are a sexual organ. (http://www.merriam-webster.com/dictionary/ genital.) Accordingly, we conclude the allegation in the wardship petition adequately described the "touching" element required to prove minor committed sexual battery.
Minor also argues that because "[he] was not charged with the crime of sexual battery, [he] did not contest that he had sexual contact with [the victim] during the incident in dispute. Rather, his entire defense was focused on proving that he did not put his fingers inside of [the victim], or otherwise penetrate her, during the night in question." Given this defense strategy, minor contends, "defense counsel had no reason to, and did not in fact, question any of the witnesses about the details regarding the sexual contact by [minor]." Moreover, minor continues, defense counsel stipulated to the admission of several of his prior statements, including his statements to the victim's mother during the pretext phone conversation in which he admitted touching the victim's vagina but repeatedly denied raping or digitally penetrating her. According to minor, he would not have stipulated to these admissions had he known they would be used against him to prove sexual battery.
We reject minor's argument. The nature and extent of minor's touching of the victim's genital area during the alleged incident of sexual abuse was a much disputed issue at the hearing. For example, the prosecutor offered detailed testimony from the victim that minor undressed her and then touched and digitally penetrated her vagina several times. To accomplish these acts, the victim testified that minor violently pushed and grabbed her, forced her legs open against her will, and insulted and yelled at her. Consistent with this alleged sexual and physical abuse, the undisputed evidence established that minor repeatedly apologized to the victim in the wake of the incident, both in writing and in statements made to the victim and her mother. To undermine the victim's testimony, minor in turn offered evidence of his repeated denials of sexually penetrating the victim to the victim's mother and to police, as well as evidence of the victim's failure to mention either touching or penetration of her vagina when telling others about the incident. In addition, minor relied on the victim's Facebook records, which contained several statements inconsistent with her testimony, to impeach her entire account of what occurred between them. As this evidence reflects, minor was able to and did mount a defense against all claims of sexual abuse arising from the incident in question.
As discussed further below, while the victim was impeached by the admission of certain of her own statements, particularly those made in her Facebook account, much of her testimony regarding minor's abuse remained uncontradicted.
Finally, with respect to the pretext phone calls from the victim's mother, we add that minor disregards that he not only stipulated to admissions that he tried to "get in [the victim's] pants," "to feel on her" and to "rub on her," he also stipulated to his admission that "if she said she's sore . . . [¶] I guess I did finger her." Given that his admissions were thus relevant to charges of both sexual battery and forcible sexual penetration, his claim that he would not have stipulated to admission of the transcribed phone calls had he known both charges would be brought is questionable.
Thus, even putting aside the parties' stipulated admissions, minor was confronted with, and given ample opportunity to rebut, a plethora of evidence relating to his contact with the victim during the incident. Under such circumstances, we have no trouble concluding based on the record as a whole that "[a]t all times the minor was on notice as to the charges and allegations against which he would have to defend." (See In re Man J. (1983) 149 Cal.App.3d 475, 479-480.)
II. Does substantial evidence support the juvenile court's finding that minor committed a sexual battery?
Minor next contends there is no substantial evidence in the record proving that he committed the offense of sexual battery. In so contending, minor argues the victim's testimony with respect to this offense lacked evidentiary value because her belatedly-discovered Facebook records flatly contradicted it.
Where an appellant raises a claim of insufficient evidence, the reviewing court must determine "whether ' "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) The evidence upon which the judgment relies must be "reasonable, credible, and of solid value." (People v. Jones (1990) 51 Cal.3d 294, 314.) Further, the reviewing court may not reweigh evidence or evaluate the credibility of the witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
As we have already discussed at length, the elements of a sexual battery offense are: (1) the defendant's touching of an intimate part of the victim, (2) against the victim's will, (3) while unlawfully restraining the victim, (4) for the purpose of sexual arousal, sexual gratification, or sexual abuse. (§ 243.4, subd. (a).) Here, minor challenges the sufficiency of the evidence with respect to just one of these elements - his alleged unlawful restraint of the victim.
As stated above, "a person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will; a restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose, as long as the restraint continues to be for a lawful purpose. The 'unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.' [Citation.]" (People v. Arnold, supra, 6 Cal.App.4th at p. 28.)
Here, construing the evidence in a light most favorable to the juvenile court's finding, as the law requires, we conclude this standard was met. In particular, there was evidence that minor, for his own sexual gratification, repeatedly touched the victim "intimately [and] against her will," despite the victim's repeated acts of physical and verbal resistance. (See People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.) For example, as set forth above, the victim testified that minor forced her upstairs, pushed her on his bed, hit her in the face, and removed her pants and underpants. Minor then pulled her legs apart as she tried to keep them together, and touched and digitally penetrated her vagina several times despite her screaming and crying and repeated requests to go home.
In addition, minor admitted "[t]rying to like get in her pants and grab her . . . when we were upstairs," even though "she was telling me no . . . ." He also admitted "doing some - some really stupid things," such as "calling her dumb . . . and trying to push her on the bed," trying "to feel on her and she was saying no," and trying to "rub on her and get inside her clothes and even yelling at her."
As this evidence reflects, at a minimum, minor not only forced the victim to remain on the bed while continuing his advances, he also, by his own admissions, verbally abused her and tried to push and grab her before finally walking her home, all while she was telling him "no." This evidence was indeed sufficient to prove unlawful restraint for purposes of section 243.4.
In reaching this conclusion, we address minor's statement in briefing that, in closing arguments, "defense counsel detailed numerous . . . instances of perjury by [the victim] that were revealed by the Facebook records." First, we note that, while defense counsel indeed had ample opportunity to highlight the extent to which the victim's statements were inconsistent, the juvenile court expressly declined to find that she perjured herself. Moreover, while there were inconsistencies between her statements on Facebook and at the hearing, other evidence corroborated many aspects of her story, including statements she made to her mother and school officials shortly after the incident, and statements minor himself made to the victim's mother and to police. It was thus within the juvenile court's discretion to accept the victim's testimony that, to at least a certain degree, she was sexually abused by minor. This court has no authority on appeal to override a juvenile court's credibility findings. (See People v. Scott (1978) 21 Cal.3d 284, 296 ["uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable"].) Accordingly, we affirm the juvenile court's finding that the offense of sexual battery was established on this record.
We reject minor's assertion that the prosecution had a duty, which it failed, "to take immediate steps to correct the false testimony it presented by [the victim]." There is no evidence the prosecution knowingly relied upon false testimony in pursuing this case against minor. (See People v. Morrison (2004) 34 Cal.4th 698, 717-718.) As we explained above, the victim clearly provided certain details regarding the incident in question at trial that differed from those she had provided earlier in Facebook messages to her friends, including details regarding the time of the incident and whether she had previously experimented with alcohol. However, her testimony was not, at least on this record, "demonstrably false" or "physically impossible"; rather, it was simply inconsistent. The juvenile court specifically made such finding when correcting defense counsel's claim that it had already found the victim lied: "Well, let's be clear here. I didn't make any finding that she lied. I made certain findings that certain things weren't proved, okay. So let's make sure we understand one another." Accordingly, on this record, the issue was clearly one of credibility reserved for the juvenile court. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1253.)
III. Did the juvenile court abuse its discretion in finding minor guilty of a felony?
Finally, minor contends the juvenile court abused its discretion in finding that he committed a felony sexual battery offense rather than a misdemeanor offense. Minor reasons that the evidence was insufficient to establish a felony offense because it failed to establish the victim was unlawfully restrained, an element of the felony offense but not the misdemeanor offense. (See § 243.4, subd. (e)(1); CALCRIM No. 938.) In so reasoning, minor refers us back to his sufficiency-of-the-evidence challenge that we have just rejected.
As the record reflects, at the conclusion of the jurisdictional hearing, the juvenile court reserved judgment as to whether minor committed a felony or misdemeanor sexual battery. At the dispositional hearing on May 24, 2010, the juvenile court heard argument on this issue before ultimately deciding minor committed the felony offense.
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However, because we have already concluded the evidence in this case was sufficient to prove minor unlawfully restrained the victim within the meaning of section 243.4, subdivision (a), we easily find no abuse of discretion by the juvenile court in finding that he committed a felony rather than a misdemeanor offense.
DISPOSITION
The juvenile court's jurisdictional order of April 23, 2010 and dispositional order of May 24, 2010 are affirmed.
Jenkins, J. We concur: McGuiness, P. J. Pollak, J.