Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. VJ39570. John C. Lawson, II, Judge.
Marta I. Stanton, 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, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General for Plaintiff and Respondent.
KLEIN, P. J.
A.G. appeals an order of wardship under Welfare and Institutions Code section 602 based on the juvenile court’s finding he committed a lewd act with a child. (Pen. Code, § 288, subd. (a)) We reject A.G.’s claim of insufficient evidence to support the juvenile court’s finding and affirm the order of wardship.
FACTS AND PROCEDURAL BACKGROUND
1. The incident.
Viewed in accordance with the usual rules of appellate review (People v. Prince (2007) 40 Cal.4th 1179, 1251; People v. Staten (2000) 24 Cal.4th 434, 460), the evidence established that 16-year-old A.G. and his cousin, 8-year-old J.H., lived with six other people in Downey. On or about April 24, 2010, A.G. touched J.H.’s vagina while she was alone in the living room watching television. On April 25, 2010, J.H. flinched when her mother washed her crotch area, which appeared red and a little swollen at the time. When asked if something had happened to cause the redness, J.H. eventually told her mother A.G. had touched her. J.H.’s mother called the police the following morning and Detective Hill came to the residence that day to investigate.
2. The investigation.
J.H. told Detective Hill A.G. approached from behind while she was watching television in the living room by herself and touched her. J.H. said the touching lasted about 10 seconds before she told A.G. to stop. J.H. also indicated her vagina was slightly sore or hurt a little bit afterwards.
After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], A.G. told Detective Hill nothing had happened between himself and J.H. A.G. then said J.H. grabbed his hand, placed it on her vagina and made him rub it. A.G. claimed he did not want his hand there and, when he removed it, J.H. forced it back. A.G. later admitted he did, in fact, want his hand there. A.G. told Detective Hill he rubbed J.H.’s vagina with his hand inside her shorts and over her underwear for about five minutes. A.G. at first claimed he did not find J.H. attractive but she flirted with him by asking for a lot of hugs. When Detective Hill asked if J.H.’s flirting was a reason for touching her, A.G. responded maybe and admitted he found her flirting a little attractive. A.G. also admitted he had touched J.H. on two previous occasions and, on one of the prior occasions, touched “her vagina skin” for approximately two seconds.
3. The juvenile court’s finding and disposition.
The juvenile court sustained the delinquency petition, found A.G. had committed a lewd act with a child, declared the offense a felony and ordered A.G. suitably placed on various conditions of probation.
CONTENTION
A.G. contends there was insufficient evidence of intent to arouse sexual desires to support the juvenile court’s finding he violated Penal Code section 288, subdivision (a).
DISCUSSION
1. Legal principles.
Penal Code section 288, subdivision (a), provides: “[A]ny person who willfully and lewdly commits any lewd or lascivious act... 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, sexual desires of that person or the child, is guilty of a felony....”
When determining whether the evidence is sufficient to support a criminal conviction, “[w]e ‘ “review the whole record 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.” ’ [Citations.] We presume ‘ “in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Prince, supra, 40 Cal.4th at p. 1251.)
2. The evidence supports the juvenile court’s finding.
A.G. contends the evidence was insufficient to show he acted with the specific intent to arouse sexual desires, noting no evidence of his sexual arousal was presented. A.G. concludes that, because the People failed to establish a necessary element of the charged offense, the true finding on the delinquency petition must be reversed. We disagree.
In order to find a violation of Penal Code section 288, the trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent. (People v. Scott (1994) 9 Cal.4th 331, 344, fn.7.) “Because intent for purposes of Penal Code section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances. [Citation.]” (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 .) “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].’ (People v. Martinez [(1995)] 11 Cal.4th 434, 445, italics [omitted].)” (In re Randy S. (1999) 76 Cal.App.4th 400, 405-406.) In re Jerry M. (1997) 59 Cal.App.4th 289, added age as a relevant factor, noting younger minors are less likely to have acted with the specific intent of sexual arousal. (Id. at p. 299.)
A.G. cites In re Jerry M., supra, 59 Cal.App.4th 289 to support his contention the evidence was insufficient to show he had the required specific intent. Such reliance is misplaced. In Jerry M., an 11-year-old minor touched the breasts of two 12-year-old and one 13-year-old, and coerced another 12-year-old girl to show him her breasts. (Id. at p. 300.) Jerry M. noted that, in addition to the youthful age of the minor, there was no evidence the minor had reached puberty or was sexually aroused during the incidents. (Ibid.) Also, the minor acted in public in full view of others, he did not try to silence his victims or conceal his actions, each of the victims knew the minor, and the contact was momentary and did not involve caressing. (Ibid.) Based on these factors, Jerry M. concluded there was insufficient evidence to show the minor acted with the required specific intent. (Ibid.)
Nearly all of the factors identified in Jerry M. are absent from A.G.’s case. While the minor in Jerry M. was a prepubescent 11-year-old, A.G. was 16 years old at the time of his offense and there was no evidence A.G. had not reached puberty. A.G. did not act in public in full view of others, as did the minor in Jerry M. Rather, A.G. acted in a concealed fashion while he and J.H. were alone in the living room and other members of the residence were not present. Further, unlike the minor in Jerry M. who only touched the victims momentarily and did not caress them, A.G. admitted he rubbed J.H.’s vagina for five minutes before stopping.
Additionally, the evolving nature of A.G.’s statement to Detective Hill evinces a consciousness of guilt that was absent from the facts of Jerry M. Indeed, the minor in Jerry M. made no attempt to hide his actions or avoid detection. A.G., however, changed his story a number of times during the interview with Detective Hill. A.G. first claimed nothing happened, then said J.H. forced his hand onto her vagina before finally admitting he wanted his hand there.
Although there was no evidence of A.G.’s sexual arousal, such a showing is not required. (In re Mariah T., supra, 159 Cal.App.4th at p. 440.) In any event, the evidence permitted the juvenile court to infer A.G. acted with the specific intent of sexually arousing himself. A.G. told the detective he believed his eight-year-old cousin was flirting with him by asking for hugs, he found the flirting at least a little attractive and he had touched J.H. on two previous occasions.
Based on our review of the entire record considered in light of the relevant factors, we conclude the evidence abundantly supports the juvenile court’s finding A.G. touched J.H. with the required specific intent and thereby violated Penal Code section 288, subdivision (a).
DISPOSITION
The order of wardship is affirmed.
We concur: CROSKEY, J., KITCHING, J.