Opinion
F086494
08-08-2024
In re T.G., a Person Coming Under the Juvenile Court Law. v. T.G., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Christopher Stansell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. JJD073890. Juliet L. Boccone, Judge.
Christopher Stansell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
The juvenile court sustained a juvenile wardship petition alleging that minor T.G. forcibly raped, forcibly sodomized, forcibly sexually penetrated, and committed forcible lewd acts upon his sister, a child under the age of 14. On appeal, minor argues substantial evidence does not support the rape and sodomy allegations, and the juvenile court prejudiced him by admitting improper lay witness testimony. We disagree.
PROCEDURAL BACKGROUND
On March 1, 2022, the Tulare County District Attorney filed a first amended juvenile wardship petition. (Welf. &Inst. Code, § 602, subd. (a).) The petition alleged 16 counts: forcible rape of his sister, A.G. (Pen. Code, § 261, subd. (a)(2); count 1), sodomy by use of force against A.G., a child under the age of 14 (§ 286, subd. (c)(2)(B); counts 2-4), committing forcible lewd acts on A.G., a child under the age of 14 (§ 288, subd. (b)(1); counts 5-13), and sexual penetration by force on A.G., a child under the age of 14. (§ 289, subd. (a)(1)(B); counts 14-16.)
All further undesignated statutory references are to the Penal Code.
On March 2, 2022, minor denied the allegations contained in the petition. On April 27, 2023, after a contested jurisdictional hearing, the juvenile court found the allegations set forth in the first amended petition to be true.
At an uncontested dispositional hearing on June 15, 2023, the juvenile court declared minor a ward of the court and imposed other conditions not at issue on appeal.
On June 26, 2023, minor filed a notice of appeal.
FACTUAL BACKGROUND
Prior Sexual Misconduct
On December 29, 2019, minor's cousin, D.B., was in the bathroom with her younger, five-year-old sister, A.Q. A.Q. was unusually quiet and nervous, not her normal "very loud and bubbly" self. D.B. asked her what was wrong, but A.Q. was scared and remained quiet. D.B. noticed blood droplets in the underwear on the floor that A.Q. wore that day. D.B. informed her mother.
On January 11, 2019, a child abuse response team (CART) forensic interviewer spoke to A.Q. She explained that minor "catched" her when playing in the backyard and took her to a wooden shed in the backyard. He laid her down, pulled down her pants, touched her "private part" with his finger, and, for a "long time," he "stuffed all his finger all the way up there and it hurt." When minor finished, he told her to tell no one. Later that day, he again touched her "private part" in the front yard.
Police spoke to minor, who was then 10 years old, about why his conduct was wrong.
Though the police detective testified that minor was 10 years old at the time, minor appears to have been 11 years old at the time given his date of birth.
April 3, 2021
Prior to April 3, 2021, minor's mother conversed with all her children, including minor, about appropriate and inappropriate touching. Minor's mother caught minor watching pornography at a young age and told him that pornography and sexual contact was only for adults. Minor's mother also had several conversations with minor about not touching people inappropriately.
On April 3, 2021, minor, who was 12 years old, was with his eight-year-old sister, A.G., in their shared bedroom with the door closed. Minor's mother and her boyfriend, Jose, watched a movie together in their nearby bedroom. Jose went to check on the siblings because they were unusually quiet. Though he told them to always keep their door open, he found it closed, and it refused to open. After pushing it open, he found minor sitting a few feet across from A.G. with his back against the door. Minor and A.G.'s legs were spread apart with their feet touching when Jose saw minor's hand extended between A.G.'s legs underneath her disheveled nightgown. Minor was fully clothed. When Jose opened the door, minor pulled his hand back, and A.G., appearing surprised, jumped back and closed her legs.
Minor attempted to run, but Jose grabbed him and "pinned him against the wall." Afterward, when minor's mother arrived at the children's room, she found minor on his bed and A.G. in her corner of the room. Minor said," 'Nothing's going on. Nothing's going on.'" Minor's mother observed that A.G. was scared. When she asked A.G. if minor did anything to her and assured A.G. that she would not be in trouble, A.G. affirmed that minor was "touching her."
Since the incident, A.G. would cling to her mother more than before, preferred to focus on schoolwork in isolation, and primarily remained in her room at home.
A.G.'s Interview
On April 20, 2021, A.G. explained to a CART forensic interviewer that minor began touching her genitals when she was eight. Though she tried to make him stop, he hit her. Two months prior to April 3, 2021, minor sexually assaulted her.
When minor first assaulted A.G., he forced her to kiss him on the mouth while he touched her genitals over her clothes with his hands. She was scared that "he was gonna do more than that." The abuse continued for weeks. Minor touched her vagina beneath her clothes more than five times and the inside of her vagina more than 10 times. Minor touched her rear outside her clothes twice a day for two weeks. He also touched and rubbed her thighs on "[t]wo or more" occasions and touched her chest, both over and under her clothes, upwards of a dozen times.
A.G. further stated that minor placed his "middle part" on the exterior portion of her vagina "[a]nd then he start[ed] going forward and it really hurt [her.]" She confirmed in response to a clarifying question that minor tried to put his penis in her vagina, causing her pain. A.G. also stated that minor attempted to penetrate her anus with his penis, causing her great pain.
A.G. explained that she did not tell her mother about minor's conduct prior to the April 3 incident because she was afraid and thought her mother would not believe her.
A.G.'s Trial Testimony
At trial, the prosecution utilized two exhibits: one depicting the anterior, the other the posterior, female anatomy. A.G. indicated minor touched her mouth, vagina, and rear with his hands by drawing on the relevant parts of the exhibits. In the same fashion, she indicated that minor's penis touched her mouth and vagina. The record is unclear whether, during A.G.'s trial testimony, she identified that minor's penis contacted her rear.
DISCUSSION
I. Substantial Evidence Supports the Juvenile Court's Findings
Minor contends that the rape and sodomy true findings were not supported by sufficient evidence. The People disagree, as do we.
A. Standard of Review
Where an appeal challenges the evidence's sufficiency," 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value- from which a reasonable trier of fact could find the [petition true] beyond a reasonable doubt.'" (People v. Cravens (2012) 53 Cal.4th 500, 507; accord, In re George T. (2024) 33 Cal.4th 620, 630-631.)
" 'In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the [juvenile court] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the [juvenile court's findings].'" (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
Thus, "[t]he power of this court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the findings, and when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the [juvenile] court[.]" (Tedder v. Johnson (1951) 105 Cal.App.2d 734, 738.) As such, the plausible reconciliation of the evidence with an alternative theory does not warrant reversal. (People v. Zamudio (2008) 43 Cal.4th 327, 358.) Consequently, minor "has a heavy burden in demonstrating that the evidence does not support the juvenile court findings." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.)
B. Sodomy 1. Additional Background
During her CART interview, eight-year-old A.G. explained that minor "tried to put [his penis] in [her] butt, like my bottom and he tried to ... put it in me, but I got scared and I tried [to] crawl[] away, but he kept on pinching me . . . right here and right here." Minor attempted to put his penis in her rear five times. Each time, "[i]t felt like it was pinching" A.G., but "a little bit harder," and "it felt like it hurt[] a lot." "I don't know how to explain it, but it really hurt." Asked whether minor's penis penetrated a line on the interviewer's diagram, she replied, "He tried to do it, but he couldn't ...."
2. Analysis
"Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a).)
California courts have struggled to precisely define sodomy due to the medical field's inability to agree on anatomical labels for the area between the anus and the buttocks. (People v. Paz (2017) 10 Cal.App.5th 1023, 1035.) After a thorough analysis of relevant legal and medical authorities, the Paz court concluded that "mere penetration of the buttocks is not sufficient to establish penetration of the anal opening" but "penetration past the buttocks and into the perianal area [but not] penetration beyond the perianal folds or anal margin" is sufficient to establish sodomy. (Id. at p.1038.) Despite the apparent anatomical specificity of Paz's holding, it relied on the principle that "[t]he 'essential guilt' of both rape and forcible sodomy 'consists in the outrage to the person and feelings of the victim.'" (Id. at p. 1037.) Thus, "courts are inclined to take a broad view of genital boundaries." (Ibid.)
Consistent with Paz's underlying rationale, this court held sufficient to prove sodomy evidence that a defendant" 'poked' his penis 'really hard' into [a minor victim's] 'behind,'" thus causing pain, despite the victim having been clothed. (People v. Ribera (2005) 133 Cal.App.4th 81, 84, 85-86 (Ribera).) "We conclude[d] that there was substantial evidence that [the] defendant committed sodomy upon [the victim] based on her testimony that she saw [the] defendant's penis and felt it poke her covered behind. There [was] little question that penetration occurred as the child suffered pain the next day." (Id. at p. 86.)
Ribera shows that evidence of penetration "into" the rear resulting in pain provides a sufficient reasonable inference for the trier of fact to conclude that the penetration requisite for sodomy occurred.
This stands in contrast to State v. Pullman (Utah Ct. App. 2013) 306 P.3d 827 (Pullman), on which minor relies. We find Pullman unpersuasive. The Pullman court found the victim's testimony too inconclusive to provide sufficient evidence of sodomy where the victim testified that, though the minor attempted to" 'stick his dick into [her] butt,'" before it could go" 'inside ... [her] bum,'" she" 'pushed him away before it did,'" but she could feel it" 'there'" and" '[i]t hurt.'" (Id. at p. 834.)
The Utah appellate court interpreted this testimony as indicating contact only with the "buttocks," not the "anus," and held an inference to contact with the anus too inconclusive to support the conviction. (Pullman, supra, 306 P.3d at pp. 833-834.) Concluding that the victim was "an articulate fourteen-year-old capable of drawing the relevant distinction if questioned about it," the court found that her testimony was inconclusive such that reasonable minds" 'must have entertained a reasonable doubt.'" (Id. at p. 834.)
We do not find Pullman's analysis persuasive under California's substantial evidence standard of review. Not only was the Pullman court's decision based on, under California law, an improper credibility determination about the victim's testimonial capacity, but it substituted, in our view, one reasonable conclusion available to the trier of fact for another. That other reasonable inference, consistent with our holding in Ribera, was that the defendant accomplished penetration past the buttocks, causing pain, but failed in penetrating" 'inside .. . [her] bum,'" i.e., into the victim's anus. (Pullman, supra, 306 P.3d at p. 834.)
Similarly, here, A.G. clearly stated that (1) minor attempted to put his penis in A.G.'s "butt," (2) this act caused her to "hurt[] a lot," and (3) minor tried, but could not, go past a "line" on the interviewer's diagram. Given the juvenile court could account for A.G.'s age in evaluating her testimony (§ 1127f), thus a plausible lack of anatomical vocabulary, the court could reasonably understand A.G.'s testimony as describing minor's penetration of her buttocks into the perianal area, causing pain, but failing to penetrate her anus. The evidence is consistent with, and sufficient for, a finding of sodomy.
The appellate record lacks the diagram used during the CART interview. Even if the diagram is identical to the one used at trial, the record does not indicate that A.G. was told, nor did any witness at trial explain, what anatomical feature the "line" referred to. Therefore, we are unable to determine the exact anatomical feature to which the line refers.
"In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury, as follows: [¶] In evaluating the testimony of a child you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child." (§ 1127f.)
As a result, we disagree with minor's suggestion that other plausible theories- that the pain resulted from minor merely "pinching" her, friction between his genitals and her rear, or "a preparatory but non-penetrative step"-demonstrate a lack of substantial evidence. These arguments are inconsistent with our standard of review. Simply because the evidence supports another, contrary finding does not require reversal. (People v. Zamudio, supra, 43 Cal.4th at p. 358.)
Similarly, minor's arguments relying on an absence of evidence-injuries to the anal region, testimony that minor's body moved in and out of, or back and forth in, A.G.'s body, or the presence of "sperm fragments, DNA, or other physical evidence corroborating that penetration occurred"-ignore our standard of review. That this hypothetical evidence would have bolstered a sodomy finding does not equate to an insufficiency in the evidence before us. A.G.'s testimony was sufficient alone to establish sodomy. (See CALCRIM No. 301 [a single witness's testimony can prove any fact].) Nor is any of this hypothetical evidence legally required to establish sodomy. (See, e.g., CALCRIM No. 1030 [e]aculation not required for sodomy].)
We conclude that A.G.'s testimony was sufficient to support a finding that minor sodomized A.G.
C. Rape 1. Additional Background
At the CART interview, A.G., when asked if any other part of minor's body touched her, answered, "Like his male part, he would ... try to ... when he like, pulled down [her] pants. [¶] ... [¶] And [his] thing came out [of his] pants and then he tried to put it in [her]. [¶] . . . [¶] And he tried to . . . put it here[,] where the line is. [¶] . . . [¶] And then he start[ed] going forward and it really hurt [her], and then, he started to do way more . . . his hand to right here on [her] clothes . . .." A.G. affirmed the interviewer's understanding of her comments that "he tried to put his middle part in that line." A.G. indicated that she "couldn't feel it," but it was also "uncomfortable," "sent [a] chill to [her] spine," and "made [her] have goosebumps ...."
In making its findings on the petition, the juvenile court stated, "What the law says is that with regard to penetration, it doesn't have to be penetration into the vagina, just penetration past the line, which is what she was talking about. And it says penetration, however slight. So, that's not an attempt. That's an actual finding of rape. It's just a penetration of that area. And as charged, and as the testimony revealed, it clearly happened after [minor] was 12 years old, so jurisdiction is established." (Italics added.)
2. Analysis
The juvenile court's comments make clear it believed A.G.'s testimony showed that minor penetrated the external genital organs around A.G.'s vagina, i.e., the "line." (People v. Karsai (1982) 131 Cal.App.3d 224, 232, overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 609 ["[p]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina"]; CALCRIM No. 1000 ["any penetration, no matter how slight, of the vagina or genitalia" is sufficient to establish rape].) Substantial evidence supports the court's conclusion. A.G. clearly testified in her CART interview that minor put his penis where the line was and "start[ed] going forward and it really hurt [her] _." The juvenile court could reasonably have concluded that the forward movement starting at the line showed penetration of the external sexual organs.
We reject minor's attempts to undermine A.G.'s credibility on appeal. A.G.'s testimony was unprompted and clear, not prompted or substituted by the CART interviewer's clarifying comments and questions. Though A.G. testified that minor "tried" to vaginally penetrate her but failed to do so, her testimony that minor pushed past the "line," resulting in discomfort and other sensations, constituted evidence of requisite penetration of the external sexual organs. Thus, her testimony is reasonably consistent with penetration sufficient for rape.
We again reject minor's arguments relying on an absence of evidence such as physical indicia of penetration. A.G.'s testimony alone was sufficient to establish the fact of rape. (See CALCRIM No. 301.) Further, this argument disregards that the rape occurred sometime in the months prior to the incident on April 3, 2021. California courts regularly uphold convictions for prior sex crimes absent physical evidence because the crime occurred months, even years, prior. (See, e.g., People v. Mejia (2007) 155 Cal.App.4th 86.)
Finally, as minor's appellate counsel knows, we cannot indulge minor's argument that A.G.'s testimony about the forcible rape was not credible due to an alleged lack of "an emotional reaction" during the part of the CART interview related to the forcible rape allegations.
Not only is this argument improper under the substantial evidence standard of review, but it is also belied by the record: the interviewer offered A.G. a tissue during this portion of the interview.
We conclude that A.G.'s testimony was sufficient to support a finding that minor raped A.G.
III. Evidentiary Objections
Minor contends the juvenile court improperly admitted testimony by Tulare County Sheriff's Sergeant Yvonne Jaramillo, in connection with both the sodomy and rape allegations, that the "pinching" A.G. described suggested that she felt pain consistent with the penetration required for rape and sodomy. We disagree.
A. Additional Background
The prosecution elicited, and the juvenile court admitted over objection, testimony from Jaramillo that, based on her training and experience, A.G.'s description of "pinching" because of minor's attempts to penetrate her vagina and anus implied pain consistent with attempted sexual penetration.
B. Analysis
Reversal for improper admission of evidence under California law is governed by the Watson harmless error test: reversal is warranted only if, absent the error, there exists a reasonable probability of a more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.)
"[W]here ... independent and competent evidence to substantially the same effect from other witnesses is placed before the [trier of fact,] the erroneous admission of such cumulative evidence is ordinarily not prejudicial." (Kalfus v. Fraze (1955) 136 Cal.App.2d 415, 423; see People v. Houston (2005) 130 Cal.App.4th 279, 300 [no prejudice where objectionable testimony cumulative of other evidence unchallenged by appellant]; People v. Smithey (1999) 20 Cal.4th 936, 972-973 [admission of testimony over defendant's objection harmless where such testimony cumulative of other testimony already in record].)
We conclude Jaramillo's testimony was cumulative. Minor agrees: "[t]he [juvenile] court had access to the same CART interview on which Jaramillo based her opinion and inferences-so her opinion was gratuitous." Thus, the juvenile court could reach its outcome absent Jaramillo's testimony and no reasonable probability exists that minor would have received a more favorable outcome absent Jaramillo's testimony.
Given we conclude it is unlikely minor would have received a better result absent Jaramillo's testimony, we need not address minor's arguments that (1) the testimony itself was legally improper or (2) any deficiency in defense counsel's objections to Jaramillo's testimony constituted ineffective assistance of counsel. A valid ineffective assistance of counsel claim requires prejudice, i.e., that a reasonable probability exists that minor would have received a more favorable result absent the challenged commission or omission. (People v. Avena (1996) 13 Cal.4th 394, 418.) There is no reasonable likelihood that minor would have received a more favorable result absent Jaramillo's testimony.
DISPOSITION
The order is affirmed.
[*] Before Poochigian, Acting P. J., Smith, J. and Meehan, J.