Opinion
A155148
02-19-2020
In re L.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JW17-6228)
The juvenile court found true the allegations in a Welfare and Institutions Code section 602 petition that defendant L.M. committed forcible rape (Pen. Code, §§ 261, subd. (a)(2)). On appeal, defendant challenges the sufficiency of the evidence to support the findings and claims the court abused its discretion in denying his motion to dismiss for prosecutorial delay. For the reasons expressed below, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated. --------
FACTUAL AND PROCEDURAL BACKGROUND
E.L. was a 12-year-old seventh grader in January 2015 when she was raped by then 13-year-old defendant, L.M. Both students attended the same middle school and had been dating a few weeks, often communicating over text and chat messages. They shared a science class that was held in the school auditorium. Two days before one such class meeting, E.L. and defendant discussed over text messages going up to the balcony for a potential romantic physical encounter.
In discussing the activities she would be willing to engage in, E.L. stated she was comfortable going up to the balcony for "kisses and stuff," but that she wanted to "take it slow." Defendant responded "that's it?" and told E.L. he wanted to see if she would have "no limits." E.L. said she would do anything they had done the "last time." She also said that she would "[d]o blow like I didn't do it last time." During their texting exchange, E.L. sent defendant naked photographs of herself. He asked for additional pictures of just her "bottom part," but E.L. refused, saying, "[D]on't pressure me" and "that's disgusting." She said she did not want to see his parts, but he sent two explicit photos of himself nonetheless.
The next day, they argued and defendant threatened to show E.L.'s photos to others if she did not do what he wanted. E.L. told defendant to "lower your pervy side." She also told him that "we can't do it tomorrow" because her "bottom part was burning" as a result of having shaved. "I just don't want to do it," she told defendant. He said, "I'll do my thing to make you feel good so what are you going to do?" and she responded, "I wanted to take it slow with just kisses and stuff[.] [¶] That's it." When she asked him to change the subject, he replied: "And when I say spread your legs do it, Google told me what to do to make you feel pleasured." The two argued over whether E.L. should wear shorts, and E.L. later agreed to do so if defendant carried her up the stairs.
On the day of the incident, the teacher asked for two volunteers to go upstairs to the balcony and check on the lighting. E.L. and defendant volunteered. They began kissing on the balcony. Defendant then grabbed E.L.'s shoulders, pushed her to the ground, and removed her shorts, which frightened her. He laid on top of her and kissed her. She froze, keeping her legs crossed because she was afraid he might try to rape her. Defendant pried her legs apart, using "a lot" of force to do so, and inserted his penis into her vagina. She did not make any noise or cry out. It hurt and she yelped in pain. Defendant took his penis out and put it in her mouth. She began to cry and told him to stop. E.L. and defendant both noticed blood on her underwear. E.L. did not recall ever telling defendant that she wanted to have sex with him. The bell rang for lunch and defendant pulled up his pants and left the balcony. E.L. put her clothes back on and left the balcony as well. At some point while defendant and E.L. were on the balcony, their teacher called up to ask if they were okay, and E.L. said yes.
Kathryn Waller, the middle school counselor, saw E.L. on the schoolyard during lunchtime. E.L. was upset and crying, and Waller asked if she wanted to talk. They went to the counselor's office but E.L. was too upset to speak. Waller suggested that she write down a statement. E.L. wrote that she had been sexually harassed. After further questioning, E.L. said she was upset about something that had just happened inside the auditorium with another student. E.L. then disclosed that the student had put his penis in her vagina and that she had not wanted that to happen. She stated he had forced her to do it by pushing her down and pushing his penis inside of her. Waller notified the school dean and principal, who contacted the police.
E.L. was taken to the hospital for a medical examination. She reported lower abdominal pain and cramping. There were bloodstains on her underwear. She also had significant bruising in her genital area, indicating blunt force penetrating trauma.
Officer Shawn Imhoff interviewed defendant at the middle school on the day of the incident. Defendant stated that after he went up to the balcony, he began experiencing a severe headache and stomach ache and blacked out. He could not recall what happened on the balcony. He woke up with blood on his hands, shirt and shorts. He did not know how the blood got there. Defendant said he had experienced headaches in the past that required him to go to the hospital.
Inspector Mark Lee viewed a forensic interview that was conducted with E.L. six hours after the incident. E.L. appeared "shut down" and would pause and cry. During the interview, E.L. said that she had been pushed by her shoulders to the ground and was lying on her back when the vaginal intercourse occurred. She reported she had tried to cross her knees but defendant pushed her legs open with his hands.
Inspector Lee met with defendant and his parents in February 2015. Defendant stated that E.L. had given him a strawberry candy that had a funny taste. After he ate it, he had a headache and stomach ache and felt woozy. He said E.L. tried to kiss him and push him down but he passed out. When he woke up he was lying on his back and his shorts were halfway down his thighs. There was blood on his hands and his shirt. He stated that E.L. wanted to have intercourse with him but he was not interested. He said E.L. was not his girlfriend and he suggested that he might have been drugged by the candies she had given him. Defendant also indicated that E.L. was the aggressor and had attacked him. At some point, Lee left the room because he was frustrated that defendant was not telling him the truth. Later, defendant told Lee that he and E.L. did have sex, but that she had forced herself on him.
Lee met with defendant again in July 2016. Defendant admitted that the encounter with E.L. had been prearranged and that they had kissed and touched each other when they went behind the stage. He admitted he put his penis in E.L.'s vagina, and said they were both shocked when they saw blood. Defendant said he had previously lied about what had happened and admitted that E.L. was his girlfriend at the time.
On September 5, 2017, the district attorney filed a wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging two felony counts, forcible rape (§ 261, subd. (a)(2)) (count 1), and forcible oral copulation (§ 288a, subd. (c)(2)(A)) (count 2). Defendant was arrested in October 2017, and released on home detention after three days in custody.
In March 2018, defendant filed a motion to dismiss the action on the grounds of denial of due process and his right to a speedy trial based on almost a three-year delay in serving him with the warrant and the filing of the petition. The motion was denied without prejudice.
On June 22, 2018, defendant filed a renewed motion to dismiss on the ground of prejudicial delay in filing the petition and violation of due process. The court initially reserved ruling on the motion. It denied the motion on June 28, 2018, after the evidence was presented at the jurisdictional hearing.
Following the prosecutor's closing argument, the juvenile court dismissed count 2. The court found count 1 to be true. Defendant was ordered placed in his parents' home on probation with various conditions. This appeal followed.
DISCUSSION
I. Sufficiency of Evidence
Defendant contends there is insufficient evidence to support the trial court's finding of forcible rape. Pointing to E.L.'s testimony that she knew defendant expected her to engage in sexual activity on the balcony and voluntarily joined him there, and that E.L. never said "no" or told defendant to stop at any point during the sex act, defendant claims he harbored a reasonable belief that E.L. had consented to the sexual encounter. He contends the juvenile court focused solely on defendant's actions before and after the incident, including his shifting accounts to the police, to conclude without any evidence that defendant knew the sex act was nonconsensual. We disagree and find that the evidence supports the juvenile court's determination.
A. Standards of Review
When assessing a challenge to the sufficiency of the evidence supporting a conviction, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 319.) "We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence." (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Thus, "[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment." (People v. Maury (2003) 30 Cal.4th 342, 403.) This same standard applies to both adult and juvenile cases. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Evidentiary-related decisions are reviewed for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
B. Sufficiency of the Evidence of Rape
The commission of forcible rape requires "an act of sexual intercourse accomplished . . . [¶] . . . [¶] . . . against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).) If a defendant entertains a reasonable and bona fide belief that the victim consented to the intercourse, the defendant is not guilty of rape because he lacked the required mental state. (People v. Mayberry (1975) 15 Cal.3d 143,155 (Mayberry).)
The Mayberry defense has "two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent." (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted (Williams).)
"In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction." (Williams, supra, 4 Cal.4th at p. 361.)
"The defendant bears the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief of consent." (Williams, supra, 4 Cal.4th at p. 361 [citing Mayberry, supra, 15 Cal.3d at p. 157].) The defendant may do so by testifying as to his state of mind. (People v. Simmons (1989) 213 Cal.App.3d 573, 579.) Even where the defendant does not testify, as was the case here, a defendant may rely on circumstantial evidence concerning his or her state of mind from other witnesses, including the victim's testimony. (Id. at p. 581; see People v. Anderson (1983) 144 Cal.App.3d 55, 62 [testimony by defendant's son furnished sufficient circumstantial evidence of actual consent and reasonable good faith belief to warrant a Mayberry instruction]; People v. Castillo (1987) 193 Cal.App.3d 119, 126 [victim's testimony alone may form substantial evidence of equivocal conduct].)
Viewing the evidence in the light most favorable to the disposition, we conclude the record contains substantial evidence that defendant committed forcible rape. E.L. testified that defendant pushed her down, removed her shorts, and pulled her crossed legs apart, using "a lot" of force to do so. E.L. explained that she had her legs tightly crossed when defendant pulled them apart because she was afraid he might try to rape her. He then put his penis in her vagina without E.L. voicing her consent, and continued the sex act even after she yelped in pain. After defendant put his penis in her mouth, E.L began to cry and told him to stop. In the hours after the encounter, E.L. was visibly upset and crying, and told the school counselor that a student had pushed her down and pushed his penis inside of her without her consent. The medical examination from that day disclosed injuries, including bleeding and significant bruising in the genital area, that were consistent with sexual assault. E.L. also reported to law enforcement that day and consistently since that she had been forced to have sex with defendant.
The juvenile court also took into consideration defendant's conduct before and after the incident as relevant to its determination whether he reasonably believed the sexual encounter with E.L. had been consensual. Text messages before the incident indicate that defendant was pressuring E.L. to exchange naked pictures and to have "no limits" in their sexual activity, and E.L. resisted, responding that she was comfortable with "kisses and stuff" and wanted to "take it slow," and do what they had done the "last time." E.L. refused to send defendant more pictures of just her "bottom part," saying, "[D]on't pressure me" and "that's disgusting." These exchanges even led to an argument where defendant threatened to show E.L.'s photos to others if she did not do what he wanted. One may reasonably infer from this evidence that E.L. did not want to involve her "bottom part," i.e., her vagina, in any sexual encounter, and she made her position clear to defendant. We may also reasonably conclude that defendant's coercive behavior two days before the assault, when he threatened to publish E.L.'s nude photos online and sent her unwanted explicit photos of his own, was indicative of his state of mind when the sex act occurred. Defendant takes issue with the conclusions drawn by the juvenile court, and points to other text messages that he claims are more equivocal, but our task on review is not to reweigh or resolve any conflicts in the evidence. "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, supra, 51 Cal.4th at p. 60.)
Defendant's changing story to law enforcement about the sexual encounter was also probative of his state of mind at the time of the incident. It reflects a consciousness that he had committed an unwanted and wrongful act. Defendant first claimed that he had blacked out due to a headache, then due to tainted candy given to him by E.L., then alleged he had been raped by E.L., and finally stated that the encounter was consensual. The juvenile court expressly found E.L.'s testimony credible and found defendant's shifting statements to police lacked credibility. We credit, in particular, E.L.'s testimony that defendant had pulled apart her tightly crossed legs with some force and against her will. That E.L. did not say "no" or "stop" does not establish an actual belief on defendant's part that he had E.L.'s consent given her physical resistance. E.L. was also visibly upset and reported the incident as a rape shortly after it happened, leaving it unlikely defendant could have honestly understood she had consented moments before.
Finally, even if defendant subjectively believed that E.L. had consented to sexual intercourse, we question whether his mistaken belief was objectively reasonable under the circumstances. (Williams, supra, 4 Cal.4th at p. 361.) Defendant suddenly and forcibly pushed her to the ground by her shoulders and used his hands to remove her clothing and force her legs apart in order to access her genitalia. Defendant did not give E.L. the opportunity to express a preference before he pushed her to the ground. A 12-year-old child should not be expected to react to this type of forceful assault by verbally objecting in the same manner as one might expect from an adult. In any event, our duty is not to reweigh the evidence but to determine if the juvenile court's finding was supported by the evidence. We conclude there is substantial evidence on the record to support the court's finding that defendant did not have a reasonable and good faith belief that E.L. had consented to sexual intercourse.
C. Evidence of E.L.'s "Okay" Response to Teacher
Defendant relatedly asserts that the juvenile court abused its discretion by dismissing "key evidence" as irrelevant based on the court's misapprehension of the facts. Specifically, he claims the court failed to consider the timing of E.L.'s response of "yes" when the teacher called up to ask if they were okay. Defendant contends it is undisputed that E.L. gave the response just before or during sex, and argues there is a reasonable probability that if the response had been properly considered, the court would have credited his mistaken belief defense. We are not persuaded.
The evidence is not as clear-cut as defendant asserts. Defendant told police that the teacher had called out to check on them and E.L responded just after the two started kissing and touching, and before the sex act was initiated. The court chose to credit his version of events, which demonstrated that the victim affirmed she was okay before defendant had penetrated her. While E.L. gave conflicting testimony, stating that the teacher asked if they were okay after she yelped in pain from the sex act, the court exercised its discretion to reconcile differences in the evidence and reach a different conclusion. We find no abuse of discretion. II. Denial of Motion to Dismiss
Defendant contends the juvenile court erred in denying his motion to dismiss due to the almost three-year delay that occurred between the sexual encounter and the time he was charged with forcible rape. We find the motion was properly denied because defendant failed to show he was actually prejudiced by the delay.
As our Supreme Court has explained, "The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).) However, "[p]rejudice . . . from precharging delay is not presumed." (People v. Abel (2012) 53 Cal.4th 891, 908-909.) Rather, the defendant must affirmatively demonstrate he has suffered actual prejudice as a result of the delay. (Id. at p. 909; People v. Alexander (2010) 49 Cal.4th 846, 875.) "If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. [Citation.] But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified." (Abel, at p. 909.)
We review the denial of a motion to dismiss for prosecutorial delay under the abuse of discretion standard. (Cowan, supra, 50 Cal.4th at p. 431.) We defer to the trial court's factual findings if supported by substantial evidence. (Ibid.) Whether the delay is unreasonable and prejudicial is a question of fact. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.)
Inspector Lee testified that he originally presented the case to the district attorney's office in August 2015, but was told they would not go forward without DNA analysis even though both parties admitted sexual contact had occurred. The results of the DNA analysis were received in February 2016. In November 2016, Lee found out he had made a mistake in his DNA analysis request. Lee received supplemental results in April 2017. The case was presented to the district attorney again in May 2017, and defendant was arrested at school on October 13, 2017. While the juvenile court stated "it is terrible the way that this delay occurred," it denied the motion based on defendant's failure to show actual prejudice.
Prejudice may be shown by " 'loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.' " (People v. Catlin (2001) 26 Cal.4th 81, 107.) Defendant asserts that his own memory of the events had "greatly faded by the time of prosecution." However, defendant did not testify at trial and he failed to submit a declaration regarding his fading memory or his efforts to refresh his recollection. The juvenile court "need not accept a conclusory statement that the lack of recall demonstrates prejudice where no effort has been made to ascertain the basis for the charge." (Serna v. Superior Court (1985) 40 Cal.3d 239, 250.) "Lack of recall may establish prejudice, but only on a showing that the memory loss persists after reasonable attempts to refresh recollection. 'The showing of actual prejudice which the law requires must be supported by particular facts and not . . . by bare conclusionary statements.' " (Ibid., quoting Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.)
Defendant also contends that E.L.'s memory of the details of the incident had "unquestionably faded." He points out that E.L. stated, "I don't remember" in response to several questions, including whether she had ever told defendant that she wanted to have sexual activity with him. E.L. was also unable to recall whether the two students walked down from the balcony together. She initially testified that defendant walked down without her, without saying anything to her as she was crying. On cross-examination, she acknowledged that defendant might have kissed her after they both noticed the blood on her underwear and got scared, and they might have walked down from the balcony together. Defendant concedes that "it is not certain that these details would have benefitted [his] defense," but asserts that "prejudice must be found because they might have been favorable," and because he "can't prove what can't be remembered." We disagree. Defendant had ample opportunity to cross-examine E.L. and explore her "faded" memories. And many of the memory lapses he highlights were inconsequential, such as whether defendant said anything to her when he pushed her to the floor. Defendant asks us to speculate that had the witnesses' memories been sharper, the testimony would have been more favorable—rather than more damning—to defendant. We decline to do so.
Because defendant failed to meet his initial burden of showing actual prejudice, the requirement that the People offer a reason for the delay was not triggered. "If defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to 'weigh' such justification against." (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.)
DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P. J. /s/_________
Banke. J.