Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J223112 Phyllis Shibata and Michael A. Knish, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
On transfer on August 21, 2008, for disposition from the Superior Court of Los Angeles County (case No. KJ32124, Comm. Shibata), it having been established that minor’s legal residence was in San Bernardino County (Comm. Knish). Minor does not appeal from the disposition, but only from orders and true findings made in the Superior Court of Los Angeles County.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Tami Falkenstein Hennick, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
INTRODUCTION
Minor A.E. (A.E. or minor) challenges the juvenile court’s admission of his extrajudicial confession and its finding that he violated Penal Code sections 288a, subdivision (c)(1), and 288, subdivision (a). We will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
On July 22, 2008, the District Attorney of Los Angeles County filed a Welfare and Institutions Code section 602 petition (the 602 petition) against A.E. alleging two felonies: oral copulation of a person under the age of 14 and more than 10 years younger than the perpetrator (Pen. Code, § 288a, subd. (c)(1), count 1), and commission of a lewd act upon a child (Pen. Code, § 288, subd. (a), count 2).
At a contested hearing on August 12, 2008, the victim’s father and mother both testified about the unusual behavior of their two-year-old son. A.E.’s mother also testified. A.E.’s stepfather is the victim’s uncle. A.E. has a stepbrother who is four years younger than he.
The victim’s father recounted an unusual incident that had occurred in March 2008. Shortly after he exited the shower, urinated, and reached to put the victim in the bath, the child opened his mouth and motioned with his tongue toward his father’s exposed penis. The victim was just about to turn two years old and was not yet able to speak; this was the first time his father had ever noticed him doing something like this. To the victim’s father, his son’s action was “very odd, very weird, very,... very unnormal.” When the victim did this, his father placed his hand against the child’s partially opened mouth and kept it there, saying, “no.” The victim began to cry “because he was kind of scared.” In the weeks following the incident, the victim’s father noticed the victim frequently tugging at his own genitalia, and engaging in “odd” licking and rubbing behavior. The victim licked his father’s arm and pant leg, and rubbed his genitalia against his father’s pant leg and against furniture. The victim’s father told the victim, “no, no” every time the behavior occurred, but it continued for several weeks. The victim’s father had been around other children and had never experienced behavior like this.
The victim’s mother testified to similar observations. Beginning in January or February 2008, she noticed that the victim was obsessively licking “everything in sight... your hand, shoe, the table, the chair... anything in the environment.” The child was also rubbing his genitalia on her leg, on other family members’ legs, and on pieces of furniture. The victim’s mother had been around other children, including a nephew who had lived with her until he was about four, and had “never seen this behavior before from any child of any age.” The victim had never been exposed to pornographic material or sexual activity on TV or by any person.
In April 2008, A.E.’s stepfather and mother brought A.E. to the victim’s house. A.E. told the victim’s mother that he had been caught sucking on the penis of a four-year-old neighbor boy during a birthday party on March 30, 2008, but A.E. adamantly denied ever doing anything similar to the victim. On July 18, 2008, A.E.’s mother and stepfather took A.E. to a park near the victim’s house. This time, A.E. told the victim’s mother that he had pulled down the victim’s diaper, taken the child’s penis into his mouth, and put his own penis into the victim’s mouth. Immediately after learning this, the victim’s mother reported the matter to the police.
A.E.’s mother testified that when A.E. was nine years old, she and her husband had sent him to live with his maternal great-grandparents after allegations that he had molested his then three-year-old stepbrother. A.E. had returned to live with her and her husband in May 2007. Sometime in March 2008, she had seen A.E. coming out of her garage with a four-year-old neighbor boy. Something about their behavior did not seem “normal” to her and she was “less than comfortable with the demeanor of things.” A.E.’s mother informed her husband and the neighbor boy’s father of her concerns. On the witness stand, however, A.E.’s mother could not remember telling a detective that she had heard a noise coming from behind some things stacked in a corner of the garage and that when she went to check on the noise she found A.E. and the neighbor boy together. She also could not remember hearing A.E. tell the victim’s mother, either at the victim’s house or at the park, that she had caught him and the neighbor boy orally copulating each other. Although she was physically present on those occasions, her mind had been elsewhere. She did not “catch” her son doing anything to the neighbor boy.
Before and after each parent testified, and again at the close of evidence, defense counsel moved to exclude their testimony as irrelevant and asked the court to dismiss the petition. (Welf. & Inst. Code, § 701.1.) Counsel argued that the petition had failed to establish a “corpus” for the charged crime and postulated that the victim’s behavior may have been the result of “natural curiosity” or something he may have learned from his environment. “He could have seen it in a magazine. He could have seen it on television. He could have seen his parents doing it. He could have seen anybody doing it... or he may have conjured it up in his own mind.... [¶]... There’s not even... a scintilla of criminal agency involved.”
The following day, on August 13, 2008, the Superior Court of Los Angeles County sustained the 602 petition and explained its decision to deny defense counsel’s motion to dismiss the case. It found that the victim’s licking and rubbing behavior was abnormal and demonstrated the harm or injury he had suffered. The court reminded counsel that the standard of required proof was low, prima facie, and could be met by reasonable inferences drawn from circumstantial evidence. “The court would like to have some medical testimony to make this whole thing easier, but, nonetheless, it is what it is.” On the issue of criminal agency as opposed to some other kind of exposure, the court considered the victim’s mother’s statements that she had been around other children and had never seen this kind of behavior, and that the victim had never been exposed to pornography or sexual activity. Counts 1 and 2 of the petition were found true, and the matter was transferred for disposition to the Superior Court of San Bernardino County.
The San Bernardino County Probation Department filed a juvenile probation case plan on September 4, 2008. That same day, the Superior Court of San Bernardino County “follow[ed] the recommendation of the probation department.” A.E. was declared a ward of the court and placed in the custody of the probation department.
Minor appeals the juvenile court’s admission of his extrajudicial confession and its finding that he violated sections 288a, subdivision (c)(1), and 288, subdivision (a).
DISCUSSION
A.E. argues here, as he did below, that the evidence produced at the hearing was insufficient to establish the requirements of a corpus delecti for the alleged crimes: (1) that a harm, loss, or injury had been suffered by the victim; and (2) that the harm was caused by a criminal agency. Without a corpus, he asserts, the court erred when it admitted his confession and found the allegations against him true beyond a reasonable doubt.
Corpus Delecti and the Standard of Review
The corpus delicti or body of an alleged crime consists of (1) the fact of injury, loss or harm, and (2) the existence of a criminal agency as its cause. (People v. Valencia (2008) 43 Cal.4th 268, 296.) It has long been the rule that the corpus delecti must be established independently of any extrajudicial statements or admissions of the defendant. (People v. Crew (2003) 31 Cal.4th 822, 836-837; People v. Mehaffey (1948) 32 Cal.2d 535, 544-545.) However, “the modicum of necessary independent evidence... is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) The corpus delicti rule is satisfied “‘“by the introduction of evidence which creates a reasonable inference that [the harm] could have been caused by a criminal agency... even in the presence of an equally plausible noncriminal explanation of the event.” [Citation.]’” (People v. Ruiz (1988) 44 Cal.3d 589, 611, citing People v. Towler (1982) 31 Cal.3d 105, 117.)
We review with deference a trial court’s determination that the corpus delecti for the crimes alleged in the charging document was established. We draw “‘every legitimate inference in favor of the [petition], and cannot substitute [our] judgment as to the credibility or weight of the evidence for that of the [trier of fact].’” (People v. Jones (1998) 17 Cal.4th 279, 301.)
Like minor, we are unable to find a case whose facts precisely match those here. But we see the issue turning on three closely related questions: whether the highly sexualized behavior of a very young child is “abnormal”; whether the abnormality constitutes a harm; and, if so, whether there is a reasonable probability that the harm was caused by a criminal agency.
On the first point, both parents testified, based on their own observations, that for this child, as well as for children in general, the behavior their son demonstrated was abnormal. The victim’s attempt to lick his father’s penis was “an instant whoa.... very odd, very weird,... very unnormal” to his father. The victim’s father had been around children before and had never seen any of them do this. To the victim’s mother, her son’s constant licking behavior, which began in January or February 2008 and included an attempt to lick his infant sister’s diaper area, was “obsessive.” She testified to the victim’s frequent rubbing of his genitalia against furniture and the legs of various adults. The victim’s mother, too, had had contact with other children and had never seen any of them behave in this way.
As the court said, having medical testimony on this point would have made its task easier. But for questions related to common experience, lay opinion based on the witness’s personal observations is admissible so long as it is helpful to the trier of fact. (Evid. Code, § 800; People v. McAlpin (1991) 53 Cal.3d 1289, 1306.) At the low level of proof necessary to establish that the sudden onset of sexualized behavior in a nonverbal two-year-old child is abnormal, the testimony of the parents was adequate.
On the second question, it is self-evident that when such a young child is obsessively compelled for months to engage in such behavior, despite the consistently negative reactions of all the adults around him, he has been harmed. When his father put a hand over the toddler’s open mouth and said, “no,” the child became scared and began to cry. It can logically be inferred that this scene was repeated many times as his parents tried, apparently with limited success, to correct what had become an “obsessive” compulsion to lick almost every object in his environment and to engage in masturbatory behavior with his mother, father, and the furniture. The potential of extended harm to his baby sister was evident in the victim’s attempt to lick between her legs when her diaper was being changed. A.E.’s own mother considered the possibility of oral copulation on and by a young child a matter of serious concern. When she suspected her teenage son of engaging in this activity with a four-year-old neighbor, she took the precaution of notifying both her husband and the child’s father.
Finally, it is reasonable to infer that the source of this harm was a criminal agency, despite minor’s suggestion of noncriminal alternative possibilities. (People v. Ruiz, supra,44 Cal.3d at p. 611.) At the hearing, minor’s defense counsel postulated that the victim may have been exposed to pornographic material or sexual activity by people in his environment or may have “conjured it up in his own mind.” There was, counsel insisted, “not even a scintilla” of evidence that a criminal agency was involved. Similarly, on appeal, minor argues that the court based its conclusion not on evidence but on mere suspicion and speculation. Minor was, and is, just wrong. With a child as young as this victim—one who cannot communicate with words but only show by his actions what has been done to him—a criminal agency is at least as likely the source of a sudden onset of highly sexualized behavior as that he has been perusing nonexistent pornographic magazines or watching other people engage in oral copulation. The court’s conclusion that a criminal agency was involved was not speculation; it was a reasonable inference based on significantly more than a scintilla of evidence.
In sum, the court was not unreasonable in concluding that the victim had suffered harm by means of a criminal agency. Once it had so concluded, minor’s extrajudicial statements were admissible to strengthen the case and prove, beyond a reasonable doubt, that he was the criminal agent in question.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.