Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. JJ14628 Donna Groman, Judge.
Marta I. Stanton for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
The juvenile court sustained a petition alleging that A.C. (minor) committed a lewd act upon a child in violation of Penal Code section 288, subdivision (a) (count 1) and sexual battery in violation of section 243.4, subdivision (e)(1) (count 2). The juvenile court declared minor a ward under Welfare and Institutions Code section 602 and ordered him home on probation with a maximum confinement time of eight years four months.
All further statutory references are to the Penal Code unless otherwise indicated.
Minor appeals on the ground that the record does not support the juvenile court’s finding that minor committed a violation of section 288, subdivision (a).
FACTS
M.R. was 14 years old on September 28, 2006, and she attended middle school with minor. After minor was placed in the seat next to M.R., he began touching her on her legs and between her legs. He told her that something bad would happen if she told the teacher. M.R. told minor to stop, but he just laughed. Minor asked if she wanted to “do it” with him while he was touching her. After two or three weeks, M.R. told the teacher that minor was touching her.
M.R. acknowledged that, in her statement to police, she did not say that minor told her not to tell the teacher. M.R. indicated for the juvenile court that minor touched her over her clothing on the areas above the right breast, on the inner groin, on the right thigh, and in the vaginal area.
P.M., age 13, also attended middle school with minor. The teacher sat P.M. in between minor and another boy, and minor began touching her. He touched her on the right shoulder and she told him to stop. P.M testified that minor then put his hand on the small of her back. P.M. screamed at minor to stop. Minor stopped, and he did not touch her again. She spoke to police that day and wrote a statement. On the statement she wrote that minor “touched [her] ass,” and she explained in court that he put his hand inside her pants. She showed the court that minor’s hand went down to approximately six inches below her waistline.
DISCUSSION
I. Minor’s Argument
Minor argues that there was insufficient evidence to support a finding that he committed a violation of section 288, subdivision (a) against P.M. because he did not have the specific intent to arouse sexual desires. Minor points out that there were other students and the teacher present, and he did not say anything to P.M. while he touched her. Minor and P.M. were peers, and there were no previous incidents between minor and this girl to demonstrate sexual interest in P.M. No evidence of sexual arousal was presented, and minor’s conduct was more consistent with an intent to annoy and obtain attention than with sexual desire.
II. Relevant Authority
Section 288, subdivision (a), provides: “Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must 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.’” (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Id. at p. 577.) “Substantial evidence” is evidence that 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.) “The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.” (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)
Given this court’s limited role on appeal, appellant bears an enormous burden in arguing insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “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.)
III. Evidence Sufficient
In determining whether a violation of section 288, subdivision (a) occurred, the trier of fact looks to all the circumstances, including the lewd act, to determine whether the touching was performed with the requisite intent. (People v. Martinez (1995) 11 Cal.4th 434, 445 (Martinez); People v. Mullens (2004) 119 Cal.App.4th 648, 662; In re Randy S. (1999) 76 Cal.App.4th 400, 405 (Randy S.).)
“Circumstances relevant to determining whether the touching was sexually motivated include the nature of the charged act, physical evidence of sexual arousal, clandestine meetings, ‘the defendant’s extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim’s cooperation or to avoid detection [citation].’” (Randy S., supra, 76 Cal.App.4th at pp. 405-406, italics omitted.) As stated in Randy S., the court in In re Jerry M. (1997) 59 Cal.App.4th 289, 299 included the age of the defendant as a relevant factor. (Randy S., supra, at p. 406.) The closer the child is to the age of 14, the more likely that “the minor understands the wrongfulness of his acts within the meaning of section 26[,]” and, “the younger the minor the less likely his acts are with the specific intent of sexual arousal.” (In re Jerry M., supra, at p. 300.)
We conclude there was sufficient circumstantial evidence of minor’s intent in this case to support the juvenile court’s finding. The record shows that minor was 14 years old at the time of the touching incidents. As stated in In re Jerry M., the closer a child is to the age of 14, the more likely it is that he understands his actions are wrong. As Jerry M. also impliedly stated, the closer a child is to the age of 14 (Jerry M. was 11), the more likely he is to possess the specific intent of sexual arousal. (In re Jerry M., supra, 59 Cal.App.4th at p. 300.) It is certainly not difficult to believe that a child of minor’s age might touch another child of the opposite sex with the intent to gratify sexual desires. Minor expressed sexual desire to his first victim, M.R., as he touched her by asking her if she wanted “to do it.” The areas of the body that he touched on both girls indicate that he was well aware of the sexual nature of the acts. (See Martinez, supra, 11 Cal.4th at p. 445 [other lewd acts charged in the case are relevant in determining intent]. In the case of P.M., the nature of the charged act—touching the victim beneath her clothing by reaching into her pants—indicates an intent of sexual arousal.
Although there were teachers and other students present, it is clear that this fact made no difference to minor’s ability to carry on his activities. The fact that minor repeated his conduct with P.M. indicates minor believed he could continue to touch girls on their private areas and that he intended to do so. Minor clearly believed he could intimidate girls into not reporting his acts. Minor instilled fear in M.R. by telling her not to tell the teacher, or “something bad” would occur. This further indicates he was aware his actions were more than an annoyance (See Martinez, supra, 11 Cal.4th at p. 445 [coercion used to obtain cooperation or avoid detection is relevant to determining intent].)
Likewise, the fact that minor and P.M. were peers does not obviate a sexual intent on minor’s part. If minor means to suggest that a 14-year-old cannot victimize a 13-year-old classmate in a crime of this nature, we disagree. There is no requirement that the perpetrator be significantly older than the victim. Other factors, such as size, strength, temperament, and appearance, may determine the degree of vulnerability of one child in relation to another.
Considering the totality of the circumstances in this case, we conclude there was sufficient evidence to infer beyond a reasonable doubt that minor acted with the requisite sexual intent, and the juvenile court reasonably found true the allegation in count 1 of the petition.
DISPOSITION
The judgment is affirmed.
We concur:, BOREN P. J., DOI TODD J.