Opinion
B225480
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN K. YOUNGER, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA103649)
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary R. Hahn, Judge. Affirmed.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Steven K. Younger ("Younger") appeals his convictions for forcible lewd act upon a child, aggravated sexual assault on a child, and sodomy by use of force in violation of Penal Code sections 288, 269, and 286, respectively following a court trial. Younger contends the court lacked sufficient evidence to find that he used any more force than was required to accomplish the act of sodomy. As we shall explain, the evidence presented at trial was sufficient to sustain his convictions. Accordingly, we affirm the judgment.
FACTUAL AND PRODEDURAL BACKGROUND
Tiffany M. ("Tiffany") is the mother of the victim, Brandon H. ("Brandon"). She is also the paternal aunt of appellant, Steven K. Younger. In November 2008, when Brandon was an infant, he lived with his mother Tiffany, her parents, and her younger brother, Milton Jr. Younger, who was then 16 years old, had been living with the family for approximately a month.
At the time, Tiffany and Younger had a good relationship. Younger would occasionally help take care of Brandon if Tiffany was out of the room, but he never watched Brandon when Tiffany was out of the house and he was never asked to change Brandon's diaper.
On November 12, 2008, Brandon was seven months old. Around 12:00 noon, Tiffany had to get something out of her car parked in the driveway. She asked Younger if he could watch Brandon while she went to her car, and he agreed. At the time, Brandon wore a pajama jumpsuit and a diaper.
Tiffany gave Brandon to Younger in the living room, and she walked outside. About a minute later, she returned to the house. Younger and Brandon were no longer in the living room. Tiffany called to Younger and checked each room in the house. She went into Milton Jr.'s room to ask if he knew the whereabouts of Younger and Brandon. Milton Jr., said he had not seen them.
Tiffany walked around the outside of the house, looking for them, and then came back inside. While Tiffany was outside calling Younger's name, Milton Jr. saw Younger walk by his window from the back yard, carrying Brandon. When Tiffany re-entered the house, Younger was outside Milton's room carrying Brandon. Approximately four or five minutes had elapsed since Tiffany had handed Brandon to Younger.
Brandon's jumpsuit was unzipped all the way down. She asked Younger where he had been and why Brandon's jumpsuit was unzipped. He said that he had been changing Brandon's diaper. Tiffany thought it was odd, because that meant Younger had changed Brandon's diaper outside.
Tiffany took Brandon from Younger and brought him to her room. She opened his diaper, and noticed a blood stain on it larger than a 50 cent piece. There was also blood coming from Brandon's anus and in the crease around the anus.
Tiffany called her mother, father, and sister. She did not discuss the blood with Younger. She took Brandon to the emergency room at Gardena Medical Center. He was later transferred to Harbor-UCLA Medical Center.
Sheri Lovall, ("Lovall") a pediatric nurse practitioner, conducted a sexual abuse exam on Brandon at Harbor-UCLA Medical Center. Lovall's examination concluded that there were no prior injuries on Brandon other than those that prompted Tiffany to bring him to the hospital. Brandon's condition was normal except for the urethral and anal areas. The urethral area showed some redness, which was a nonspecific symptom and could have occurred in the absence of a sexual assault. Brandon's anal area, however, had an "acute, actively bleeding laceration." Lovall's examination did not cause the bleeding, but her manipulation of the area may have allowed it to bleed more freely.
The laceration was an "S" shaped tear around the anus. There was dried blood in the area in addition to bleeding and mucous secretions. This injury was consistent with blunt force trauma resulting from a sexual assault. Lovall did not want to conduct any further investigation of the injury because she was not sure of its severity. She referred Brandon to the emergency department to determine the depth and severity of the laceration. She felt that it appeared large enough that internal injuries, such as perforation of the intestine, were a concern. Lovall concluded sexual abuse was highly suspected.
Dr. Morris Asch ("Asch"), the attending pediatric surgeon at Harbor-UCLA Medical Center, was called on by the attending trauma surgeons to treat Brandon. The trauma team felt that, based upon their examinations, there was a possibility that Brandon had an internal intestinal injury. To determine the extent of the injury for certain, they needed Asch to physically examine Brandon under anesthesia.
With Brandon under anesthesia, Asch was able to conduct a more extensive physical examination. Dr. Asch observed the external anal laceration that Lovall had reported. Then, he inserted a tool, called a nasal speculum, into Brandon's anus to see the internal part more clearly. They were able to discover a "larger, deeper tear inside the anus." It was approximately one centimeter long by one-half centimeters wide, and penetrated through the outermost skin layer (mucosa) and the next layer (submucosa), but did not penetrate into the underlying muscle. The laceration was not severe enough to require corrective surgery, but Asch felt it was "a significant laceration." Brandon was kept at the hospital for three days for observation.
Los Angeles County Sheriff's Department Detective Stephen Reid of the Special Victim's Bureau was assigned to Brandon's case. He conducted an interview, which was recorded, with Younger about the incident. Younger confessed that he sexually assaulted Brandon. He said that he "was feeling horny," took Brandon to the back yard and "tried to rape him." Younger said he put Brandon down on his penis once and did not know how far his penis went inside Brandon's anus.
Younger was charged with committing a forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1)), sodomy of a person under 14 years with 10 years difference in age (Pen. Code, § 286, subd. (c)(1)), aggravated sexual assault of a child-sodomy (Pen. Code, § 269, subd. (a)(3)), and sodomy by use of force (Pen. Code, § 286, subd. (c)(2)). Great bodily injury enhancements were also alleged on all counts. (Pen. Code, §§ 12022.7, subd. (d), 12022.8)
Younger was tried in adult criminal court rather than a juvenile court because a petition in juvenile delinquency court had been previously sustained against him in June 2007 for sexually assaulting a five-year-old girl.
Younger pled not guilty to all counts and waived a jury trial. He did not present any evidence on his behalf. The court found him guilty on all counts and found all special allegations true. In total, Younger's sentence amounted to 21 years to life in prison.
Younger filed this appeal.
DISCUSSION
On appeal Younger argues that sufficient evidence did not support his convictions for committing a forcible lewd act upon a child, aggravated sexual assault of a child, and sodomy by use of force. Younger reasons that there was insufficient evidence he used any more force than what was necessary to complete the act of sodomy.
In an appeal raising a sufficiency of evidence challenge the relevant question is 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. And on appeal, the test is whether there is substantial evidence to support the conclusion of the trier of fact, not whether guilt is established beyond a reasonable doubt. (People v. Liu (1996) 46 Cal.App.4th 1119, 1132.) We therefore review the record "in the light most favorable to the judgment below to determine whether it discloses substantial evidence" supporting each element of the crime, and we must assume in support of those findings the existence of every fact that one could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 562, 576.) "[S]ubstantial evidence" 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." (Id. at p. 578; People v. Abilez (2007) 41 Cal.4th 472, 504.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Majors (2004) 33 Cal.4th 321, 331 [the reviewing court does not resolve evidentiary conflicts, but views the evidence in a light most favorable to the People, and presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].) With these principles in mind, we review the evidence of force presented in the record on appeal.
We conclude substantial evidence indicates that Younger acted with the requisite force to sustain his convictions on counts one, three, and four.
These counts are committing a forcible lewd act upon a child, aggravated sexual assault on a child, and sodomy by use of force, respectively.
Appellant and respondent agree that a showing of force beyond the mere commission of a lewd act is required for convictions under counts one, three, and four.All contested counts use the same definition of force, which is a force "substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (People v. Soto (2011) 51 Cal.4th 229, 242, superseded by statute on another point as stated in People v. Valentine (2001) 93 Cal.App.4th 1241, 1250, fn.10.)
During trial, Younger conceded to count two, sodomy of a person under 14 with 10 years difference. It is not at issue on appeal.
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Alternatively, case law states that inflicting physical harm on a child in the commission of a lewd act also constitutes force. (People v. Cicero (1984) 157 Cal.App.3d 465, 474, disapproved on other grounds in People v. Soto, supra, 51 Cal.4th 229.) Younger's conduct satisfies both standards.
We note that all counts are based upon the same lewd act, namely, sodomy. Penal Code section 286, subdivision (a) defines sodomy as "sexual conduct between the penis of one person and the anus of another person." It further states that "[a]ny sexual penetration, however slight, is sufficient to complete the crime of sodomy." To be determined forcible under the first standard, the sodomy must be more than "slight" penetration. Courts have found non-forcible sodomy where there was no evidence of injury whatsoever (People v. Farnam (2002) 28 Cal.4th 107, 144) and where the victim was wearing underwear the entire time. (People v. Ribera (2005) 133 Cal.App.4th 81, 85.)
Considering the facts, a trier of fact could have reasonably concluded that Younger's lewd act went beyond "slight" anal penetration and therefore satisfied the standard for forcible sodomy. Brandon had a "significant laceration" that extended deep into his anus. Doctors needed anesthesia and special tools to determine the extent of the injury. Brandon had to spend three nights in the hospital. Consequently, the court had substantial evidence to find Younger guilty of using force beyond a reasonable doubt.
For the same reasons discussed above, Younger's use of force satisfies the second standard as well. The victim was seriously injured by the lewd act. The injury necessitated anesthetizing a seven-month-old and a hospital stay of three days. Physical injury is extant in view of the medical evidence.
In reaching this conclusion we also reject Younger's reliance on People v. Raley (1992) 2 Cal.4th 870. Younger cites Raley in support of his contention that he used no more force than was necessary to accomplish the act of sodomy, and that any injury that occurred was simply because of the "disparity in size and age" between Younger and Brandon. We are not convinced. In Raley, the incident involved defendant luring a seven- or eight-year-old girl into his bedroom, undressing her, and moving her hand to touch his penis. (Id. at p. 908.) He was interrupted by his mother arriving home, at which time he pushed the victim out the window and threatened her with violence if she told anyone. (Ibid.)
The court in Raley acknowledged that "[d]efendant may be correct to argue that the evidence was insufficient to support a conviction for a lewd act with force." The present case is very different. Brandon was an infant and unable to move by himself. While the victim in Raley went to the bedroom voluntarily, Brandon had to be carried by Younger. Without Younger holding him, the lewd act could not have been accomplished. Further, the victim in Raley was not physically injured, while Brandon suffered serious injury.
In view of the foregoing, we conclude that sufficient evidence supported Younger's convictions.
DISPOSITION
The judgment is affirmed.
WOODS , J.
We concur:
PERLUSS, P. J.
JACKSON, J.