Opinion
H044463
11-16-2018
In re J.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.H., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JV41731A)
In October 2015, 15-year-old J.H. (minor) convinced a reluctant H.G. (victim), also 15 years old, to orally copulate him in the hallway outside a bathroom during a church youth group function. A few seconds after she began, victim changed her mind, so she tried to pull her head away and stop, but minor repeatedly pushed her head back down until he ejaculated. The juvenile court sustained the allegation that minor committed forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)), declared him to be a ward of the court and ordered him placed on probation in the custody of his parents.
Unspecified statutory references are to the Penal Code.
On appeal, minor argues that the finding that he committed forcible oral copulation should be reversed because: (1) there was insufficient evidence victim unequivocally communicated the withdrawal of her initial consent to engage in oral copulation; and (2) there was insufficient evidence to show that he used force in committing the offense.
As discussed below, we find no error and shall affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The juvenile wardship petitions
On April 5, 2016, the Santa Clara County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), charging minor with forcible oral copulation (§ 288a, subd. (c)(2)(A); count 1), and oral copulation of a minor (§ 288a, subd. (b)(1); count 2).
On November 23, 2016, the Santa Clara County District Attorney filed a second juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that minor engaged in unlawful sexual intercourse with a minor not more than three years older or younger than himself. (§ 261.5, subd. (b).) On December 5, 2016, minor admitted the allegation that he committed unlawful sexual intercourse with a minor as set forth in that second petition.
The second petition involved a separate underage victim, and the disposition with respect to that victim is not at issue in this appeal.
On December 12, 2016, minor stipulated that he would admit count 2 of the first juvenile wardship petition "in the course of the" trial on count 1.
B. The prosecution's case
Victim first met minor in 2013 at a church youth group they both attended on Sunday nights. On the evening of May 3, 2015, minor texted victim, telling her he had always thought she was pretty. Minor asked if she "wanted to hook up with him, or if [she] wasn't that type of person." Victim testified she wanted to meet up with him, and they texted back and forth before deciding to meet the next day around 7:00 p.m. at a park. She thought that she and minor would probably kiss at the park, though she did not consider their meeting to be a date.
At the park, minor and victim met and kissed. Minor repeatedly tried to put his hand in her pants, but victim kept pulling his hand out. She was confused by his behavior but thought it might be normal as this was the first time she had ever met up with a boy to make out. After about an hour and a half, they said goodbye to each other and victim walked home from the park by herself.
Following this encounter, victim testified she still liked minor, though she "was a little bit more wary of him." She saw minor again a few months later while volunteering at a soup kitchen with her youth group. Minor apologized to victim, not about what took place between them in May, but "because he hooked up with four other girls [victim knew] that week also." Victim said there "was a lot of drama around that in May."
On Sunday evening, October 25, 2015, victim was at the youth group as was minor. There was only one other youth attending that night, with two adults supervising, so the five of them got in a car to get pizza. On the way to the restaurant, minor was sitting next to victim and he brushed his hand on her knee and left it there for a few seconds. On the drive back to the church, minor touched victim's leg and tried to get his hand in the shorts she was wearing under her skirt to "finger" her. She leaned over and whispered, " 'Stop. . . . I'm on my period.' " Victim was uncomfortable because there were other people in the car, and did not know if they could see what minor was doing. It was about 7 or 7:15 p.m. so it was dark outside, and she did not think anyone else in the car noticed. Minor stopped trying to get his hand in her shorts but began groping her breasts under her shirt. Victim did not say anything more to minor as he did so because she was afraid the other people in the car would look and it would embarrass her. She knew it was a short ride back to the church, where she could keep close to the other girl participating in the group that evening.
At the church, everyone got out of the car but before they entered the building, minor called victim over and told her to meet him in the bathroom. Victim thought that minor wanted to kiss her again, like at the park. After they got inside, minor announced that he was going to the bathroom to wash his hands. A few seconds later, victim said, " 'I might as well go do that, too,' " and went to the bathroom.
When victim got to the restroom, minor told her to go in and wash her hands. When she came out, she saw minor standing in the doorway to an anteroom by the hallway. His pants and underwear were pulled down and victim saw that he had an erection. Victim "was in complete shock" because she was not expecting minor to expose himself to her. Minor asked if she had ever "blown a guy before?" When victim said she had not, minor tried to persuade her. Victim said, " 'I don't want to. There are people around. People are going to come. Not right now. I don't want to.' " Victim was uncomfortable, but did not leave because minor was blocking the doorway and was bigger than her. She did not think he would force her, but was concerned about the possibility, since he was not taking "no" for an answer.
Minor continued to try to persuade victim for approximately a minute. Victim eventually decided to give in, since minor was apparently not going to relent and she "figured it can't be that bad." Victim was unsure how to proceed, so she "kind of bent over." Minor stopped her and told her to get on her knees instead.
Victim orally copulated minor briefly, perhaps five seconds, but then changed her mind and tried to pull her head away. Minor pushed her head down and "forced [victim] to keep going, and [she] was choking, and [she] couldn't breathe, but he didn't stop." She tried to lift her head two or three times, and she felt as if she were suffocating. Victim testified she was pulling her head away forcefully enough so that minor had to understand she wanted to stop. It was only after she tried to pull her head back that minor started pushing down "way harder." Victim was unable to speak as minor pushed her "head up and down and . . . said, 'Don't stop. Keep going.' " After 30 to 50 seconds, minor ejaculated and victim was able to move her head away from his penis. Minor did not say anything to victim, who "felt really violated." She "just wanted to get out of there; so [she] got up and left."
Minor followed 15 or 20 seconds later. About 15 minutes later, victim was laying on one of the couches, and minor told her, " 'You can't tell anyone.' " There were other people around, but none of them heard what he said. Victim asked minor if he had oral sex with the other four girls he had "hooked up" with in May. Victim and minor did not engage in any other conversation that evening, and victim did not tell anyone at the youth group what happened.
Victim's mother picked her up around 8:05 p.m. After she got into the car, victim told her mother that she had oral sex with minor. Her mother got quiet, then "freaked out." Victim had to calm her mother down as they drove home, and was unable to tell her how minor had forced her to continue even after she wanted to stop.
Victim did not call the police that night, but told two of her friends about what happened early the following week. She was not certain that what took place was criminal or whether it was "a hookup gone wrong." She blamed herself to some extent and spoke to her therapist to help her process what happened.
On November 18, 2015, she saw her doctor to get tested for STDs and told him what had happened. Her doctor called her the next day to tell her he might have to report the encounter to police since it was not consensual. She eventually called 911 on November 22, 2015. In that 911 call, which was played in court and admitted into evidence, victim told the dispatcher that minor would not let her stop and kept pushing her head down to orally copulate him.
Later that same evening, victim spoke with Palo Alto Police Officer Anjanette Holler about the sexual assault by minor. In her interview with Holler at the police station, victim told Holler that minor had sexually assaulted her on October 25, 2015. Officer Holler understood that victim had withdrawn her consent to performing oral sex on minor during the act and tried to stop multiple times, but minor would not allow it.
The following day, November 23, victim returned to the police station to make a pretext call to minor in Holler's presence. A recording of the pretext call was played in court and admitted into evidence. The beginning of the call was inadvertently not recorded by Holler, but she testified that just before she turned the recorder on, victim told minor he knew it was wrong to have made her give him a "blow job." Victim told minor she changed her mind, but he " 'kept like pushing my head down . . . with . . . force.' " Minor apologized and, when victim asked why he had done it, minor responded, " 'I don't know, and like it's in the moment.' "
On December 1, 2015, Holler interviewed minor at school. A recording of the interview was played in court and admitted into evidence. Holler asked minor about a "situation with [victim]." Minor said, "It's like an awkward topic that I'm like not proud of, and that I apologize[d] for." At the church, minor said they were "makin' out and . . . [¶] I guess I was pressuring, but I didn't like intend for it to be." Holler told minor that what concerned her was that "when she went down on you, she was tryin' to stop, and you pushed her head down harder." In response, minor mumbled, "I guess so." Holler asked why minor would not let victim pull her head back and stop, and he replied, "[F]rom a guy's standpoint, it was like good, so you didn't want it to stop." Holler understood from their conversation that minor knew victim wanted to stop, but "because it felt good," he did not want her to stop.
On January 31, 2016, victim saw minor again at the youth group. Victim said it was "normal the whole time," but then backtracked saying minor "pronounced to the whole group that he was mad at me, but he didn't . . . say why, obviously." As the group watched a movie together, minor told victim he had attended a sex offender class the day before, as required by the court. When she asked how it was, minor said it was a " 'waste of [his] time' " and he " 'learned absolutely nothing.' " Later that evening, minor apologized to victim several times, and then told her he still thought she was attractive. The two kissed again, and victim thought it could be "a way to redo what happened in October."
Victim encountered minor again at the youth group on March 6, 2016. They kissed that evening as well, but this time minor asked her repeatedly to "blow him." Minor pulled his pants down and victim saw he had an erection. When victim refused, minor got irritated that victim would not do more than kiss him, but he stopped asking. As they were kissing, minor "fingered" victim and when she indicated that he was hurting her, he began using only one finger instead of two. Again, victim said she kissed minor because she thought if she could "make it consensual this time" it would "erase the time that I didn't get to say no."
C. The defense case
The defense presented no witnesses or other evidence.
D. Jurisdictional/dispositional order
Following argument, the court sustained the petition on count 1, finding that minor forced victim to orally copulate him and that the offense constituted a felony. The court dismissed count 2 (oral copulation of a minor) in the interests of justice.
At disposition, the court declared minor to be a ward of the court and ordered him placed on probation in the custody of his parents.
Minor timely appealed.
II. DISCUSSION
A. Applicable legal principles and standard of review
" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.' " (In re Cesar V. (2011) 192 Cal.App.4th 989, 994 (Cesar V.).) The People must prove beyond a reasonable doubt that the minor committed the offense alleged in the Welfare and Institutions Code section 602 petition. (People v. Trujeque (2015) 61 Cal.4th 227, 247; Welf. & Instit. Code, § 701.)
On appeal, the test is " ' "whether there is substantial evidence to support the conclusion of the trier of fact." ' " (Cesar V., supra, 192 Cal.App.4th at p. 995.) In undertaking this inquiry, we " ' "view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (Ibid.) "Evidence is sufficient . . . only if it is substantial, that is, if it ' "reasonably inspires confidence" ' [citation], and is 'credible and of solid value.' " (People v. Raley (1992) 2 Cal.4th 870, 891.) " ' "If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." ' " (Cesar V., supra, at p. 995; accord, People v. Lindberg (2008) 45 Cal.4th 1, 27.) "A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (Lindberg, supra, at p. 27.)
B. There was sufficient evidence victim withdrew her consent
Minor argues that there was insufficient evidence presented to establish that victim, after initially consenting to orally copulate him, thereafter withdrew her consent. According to minor, victim's efforts to raise her head did not unequivocally signal her desire to stop, and therefore it was reasonable for him to assume that she was simply continuing the act of oral copulation. Although he acknowledges that victim's ability to speak was impeded, minor suggests she could have expressed her desire to stop in other ways such as "[p]ushing or hitting" him. We disagree.
We reject minor's contention that victim should have resorted to acts of physical violence, such as hitting or pushing minor, in order to unequivocally communicate to minor that she wanted to stop. Doing so might have prompted a violent physical retaliation. (See People v. Griffin (2004) 33 Cal.4th 1015, 1024-1025 (Griffin) [discussing elimination of resistance requirement from rape statute due to concerns that victims who resisted often suffer greater physical injury].) --------
Section 288a, subdivision (c)(2)(A) makes unlawful "an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim." The elements of this crime are set forth in CALCRIM No. 1015, as follows: "1. The defendant committed an act of oral copulation with someone else; [¶] 2. The other person did not consent to the act; AND [¶] 3. The defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. [¶] . . . [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act."
Of course, a victim who initially consents to a sexual act such as oral copulation, can subsequently withdraw that consent; in which case, forcible continuation of the sexual act becomes unlawful. (See In re John Z. (2003) 29 Cal.4th 756, 760 (John Z.) [forcible rape occurs when, after initially consenting to sexual intercourse, the victim withdraws consent, but the defendant forcibly continues the act].) In John Z., the victim initially told the defendant and his friend she did not wish to have sex with them, but they kissed the victim and removed her clothing regardless. (Id. at p. 759.) After the defendant left the bedroom, the defendant's friend raped her until his condom fell off. (Ibid.) When he left the room, the defendant reentered the room as the victim struggled to locate her clothing in the darkened room. (Ibid.) The defendant climbed on top of her, inserting his penis into her vagina. He then rolled over, so the victim was straddling him. She kept pulling up to try to dislodge his penis, but he grabbed her hips and pushed her down. The defendant rolled over again, so the victim was beneath him, and kept asking if she would be his girlfriend. The victim continued to try to pull away, telling the defendant " 'if he really did care about [her], he wouldn't be doing this to [her] and if he did want a relationship, he should wait and respect that [she] [didn't] want to do this.' " (Ibid.) After approximately 10 minutes, the defendant stopped, helped the victim dress and find her keys, after which she drove home. (Ibid.) At trial, the defendant testified that he believed that intercourse was consensual until the victim said she had to leave and he stopped immediately at that point. (Id. at p. 760.)
On appeal, the defendant claimed that there was insufficient evidence to find that he committed a forcible rape. (John Z., supra, 29 Cal.4th at p. 757.) Though the court found it was "hardly conclusive" the victim gave her initial consent to have intercourse with the defendant, the victim objected and tried to stop the defendant from continuing after he penetrated her. (Id. at p. 760.) Because the defendant "forcibly continue[d] despite the objection," he committed forcible rape. (Ibid.)
As in John Z., victim's initial consent in this case could be described as grudging, at best. Victim testified she was in "shock" when she exited the bathroom to find minor standing in front of her with his erect penis exposed. She was uncomfortable and, after he asked her to give him a "blow job," she told him she did not want to. It was only after he continued to cajole her for up to a minute, that she relented, thinking it could not be "that bad."
The record is clear, however, that victim quickly withdrew her consent and tried to pull her head away and stop. Rather than allowing her to do so, minor repeatedly pushed her head back down each time she tried to stop. She testified that she pulled her head away "hard enough that somebody like [minor] would notice [she] [was] trying to stop."
Even if the act of oral copulation does involve some up and down movement of the head, there was substantial evidence that minor reasonably understood that victim was lifting her head because she wanted to stop fellating him. As he pushed her head back down, minor said, " 'Don't stop. Keep going.' " If minor was truly unaware that victim wanted to stop, he would not have told her not to stop. Further, when asked by Holler why he would not allow victim to pull her head away, minor said, "it was . . . good, so you didn't want it to stop." This is sufficient evidence that victim withdrew her initial consent and that minor understood that she had done so.
C. There was sufficient evidence minor used force
Minor, citing this court's decision in People v. Senior (1992) 3 Cal.App.4th 765 (Senior), contends that there was insufficient evidence to support the finding that he used force. Minor argues the force he used was not substantially different from, or greater than the physical force inherently necessary to commit the sexual act itself, and thus, his act could not have constituted forcible oral copulation. We disagree.
In Senior, a panel of this court suggested that lewd acts with a child under age 14 "almost always involve some physical contact other than [the lewd act itself], a modicum of holding and even restraining cannot be regarded as substantially different or excessive 'force' [beyond the force required for the lewd act]." (Senior, supra, 3 Cal.App.4th at p. 774.) There are at least two problems with minor's reliance on Senior.
First, as pointed out by another panel of this court in People v. Bolander (1994) 23 Cal.App.4th 155, 160, the language in Senior regarding force was arguably dicta because the court found sufficient evidence that the defendant committed the charged offenses through duress, not force. Furthermore, the panel in Bolander expressly disagreed with Senior's "interpretation of the 'force' requirement of section 288, subdivision (b)." (Ibid.)
Second, the interpretation of "force" discussed in Senior was effectively overturned by the California Supreme Court's decision in Griffin, supra, 33 Cal.4th 1015. In Griffin, the Supreme Court decided that the word "force" as used in the statute prohibiting forcible rape (§ 261, subd. (a)(2)) was not intended by the Legislature to have any specialized meaning, but rather has a meaning consistent with common usage. (Griffin, supra, at p. 1024.)
Following Griffin, courts found it necessary to reassess decisions, such as Senior, that assigned a specialized meaning to force in sex offense cases, such as forcible oral copulation. (People v. Guido (2005) 125 Cal.App.4th 566, 575.) In Guido, the court examined the question of whether "oral copulation committed by force in violation of section 288a, subdivision (c)(2) requires physical force substantially different from or substantially greater than that amount of force inherent in the act of oral copulation." (Ibid.) The court concluded that the offense of forcible oral copulation was akin to forcible rape as discussed in Griffin, in that the "gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful." (Id. at p. 576.) A "specialized definition of force is not necessary to the crime of forcible oral copulation because a different concept of force is not needed to distinguish between two crimes or to give substance to the Legislature's use of the term 'force.' " (Ibid.) According to Guido, forcible oral copulation is proven when the judge (or jury) "finds beyond a reasonable doubt that defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim's will." (Ibid., italics added.)
In this case, the record is clear that minor used force to overcome victim's will. Victim initially refused to perform oral sex on minor when she came out of the bathroom only to find him standing there with his erect penis exposed. After she acceded to his pleading, she changed her mind after approximately five seconds and tried to pull her head away. Minor knew that victim was attempting to stop but pushed her head down, telling her, " 'Don't stop. Keep going.' " Minor admitted to Holler that he did not allow victim to stop because "it was like good, so you didn't want it to stop." Victim could not speak, and minor pushed her head down "way harder," until he ejaculated after another 30 to 50 seconds.
Accordingly, there was sufficient evidence presented to support the court's finding that, after victim withdrew her consent, minor forced victim to continue orally copulating him.
III. DISPOSITION
The order is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.