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In re J.H.

California Court of Appeals, Fourth District, Third Division
Feb 22, 2011
No. G042718 (Cal. Ct. App. Feb. 22, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County, No. DL032022 Ronald P. Kreber, Judge.

Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Emily R. Hanks and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

FYBEL, J.

INTRODUCTION

J.H. was charged with three counts of committing a lewd and lascivious act upon a child under 14 years of age. The juvenile court found the allegations true, and declared J.H. to be a ward of the court. J.H. appeals.

J.H. argues there was insufficient evidence that he understood the wrongfulness of his conduct, and therefore was not capable of committing a crime, and further argues there was insufficient evidence he acted with the requisite intent to arouse himself in committing the charged acts. Having reviewed the entire appellate record, we conclude there was substantial evidence supporting the juvenile court’s findings, and we therefore affirm.

STATEMENT OF FACTS

J.H. was born in 1993. J.H.’s father married L.H. in 2000, and L.’s daughters, H.F. and F.F., became J.H.’s stepsisters. Between October 2000 and October 2001, the family lived in an apartment in Garden Grove. Then the family moved to a house in Buena Park. In June 2005, the family moved to a house in Riverside.

In 2001, L. observed J.H. simulating sex or “dry humping” H. from behind while H. sat at a desk. L. told J.H. to stop, and he did. When L. asked F. and H. whether anything like that had happened before, F. told her J.H. got into her bed. L. called child protective services, which interviewed the children but did not see any danger or threat. J.H.’s father punished him for his conduct by giving him “the belt” and “a firm talking to.” J.H.’s father told J.H. never to touch the girls again, and he was sent to counseling. Sometime later, J.H. told L. a boy had sexually abused him. L. told J.H. that what he had done to his stepsisters was wrong, and believed J.H. understood the difference between good and bad touching.

Count 1

In 2006, when he was 13 years and three months old, J.H. was babysitting his younger brother, his three and a half year-old female stepcousin L.M., and L.M.’s infant brother, in a room at the Disneyland Hotel. While L.M. was lying down on the bed, J.H. placed his hand inside her pullup diaper and touched her genital area. L.M. testified J.H.’s brother was next to him while J.H. was touching her. J.H.’s brother, however, denied seeing any inappropriate touching by J.H., and stated he would have reported it if he had.

Three months later, L.M.’s mother walked into a playroom, where J.H. and L.M. were playing together. L.M.’s mother “got a very strange feeling” and refused to let L.M. be alone with J.H. after that. About one year later, L.M. told her mother that J.H. had seen her private parts, and described the incident at the Disneyland Hotel. Sometime after that, L.M. told her mother that J.H. touched her in a similar manner on other unspecified occasions.

Count 2

While J.H.’s family was living in the Garden Grove apartment, when J.H. was between seven and one-half and eight and one-half years old, H. was alone in her bedroom, lying on her bed, when J.H. told her he was going to massage her. He then touched her vaginal area.

On another occasion, while the family was living in Buena Park, when J.H. was between eight and one half and 12 years old, H. and J.H. were in the family’s car outside a dance school where L. was teaching a class. J.H. touched H.’s vaginal area over and under her clothing. J.H. did not stop, although H. told him to. The touching lasted longer than five minutes.

After the family moved to Riverside, when J.H. was 12 years old, H. would wake up late at night and find J.H. touching her private parts through the covers of her bed, or standing in the doorway of her room. When she woke up, J.H. would run out of the room. One day, while H. was watching television in the living room of the Riverside house, J.H. got on top of her and started touching her. J.H. refused to stop when H. tried to get him off her. When J.H. heard his father approaching, he stopped and ran away.

Count 3

On more than one occasion while living in Garden Grove, when he was between seven and one half and eight and one half years old, J.H. would grind his groin into F.’s groin while she was lying on her bed. Both J.H. and F. were wearing clothing when this occurred. This activity continued in both Buena Park and Riverside.

After the family moved to the house in Buena Park, J.H. touched F.’s private parts over her clothes. F. was in the garage, alone, at the time.

On another day, while F. was in her closet, J.H. touched her over and under her clothing. He grabbed her and was undressing her. Although F. told him to stop, he did not.

After the family moved to Riverside, J.H. continued to grind his groin into F. He would enter F.’s bedroom at night and touch her. When F. woke up to find J.H. sitting on her bed or standing in the doorway, he would leave the room. In 2007, F. caught J.H. watching her take a bath. F. told her parents; J.H. admitted to his father he had watched his stepsister bathe.

PROCEDURAL HISTORY

J.H. was charged with three counts of violating Penal Code section 288, subdivision (a). After a jurisdictional hearing, the juvenile court found the allegations to be true, J.H. came within the provisions of Welfare and Institutions Code section 602, and there was a satisfactory showing under Penal Code section 26. J.H. was declared a ward of the court and placed on probation with conditions, including that he serve 120 days in juvenile hall. J.H. timely appealed.

DISCUSSION

I.

STANDARD OF REVIEW

The same substantial evidence standard of review that is applicable in criminal cases is applicable in juvenile delinquency proceedings. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) “In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088 1089; accord, People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Barnes (1986) 42 Cal.3d 284, 303.)

II.

THERE WAS SUFFICIENT EVIDENCE THAT J.H. UNDERSTOOD THE WRONGFULNESS OF HIS CONDUCT.

“All persons are capable of committing crimes except those belonging to the following classes: [¶]... Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” (Pen. Code, § 26, subd. One.) The People bore the burden of proving J.H. knew the wrongfulness of his conduct by clear and convincing evidence. (In re Manuel L. (1994) 7 Cal.4th 229, 232.) “In determining whether the minor knows of the wrongfulness of his conduct, the court must often rely on circumstantial evidence [citation] including the minor’s age, experience and understanding, as well as the circumstances of the offense including its method of commission and concealment [citation].” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298 (Jerry M.).)

In this case, there was substantial evidence supporting the juvenile court’s finding that J.H. knew the wrongfulness of his conduct. J.H. was 13 years old when the incident with L.M. occurred; between 12 years and seven months and 14 years and seven months old when he was alleged to have committed lewd acts upon H.; and between seven years and nine months and 11 years and eight months old when he committed the acts against F. (In re James B. (2003) 109 Cal.App.4th 862, 872 873 [the closer the minor is to 14 years old, the more likely he or she understands the wrongfulness of the conduct].)

Before any of the charged offenses occurred, J.H. was disciplined for “dry humping” H. while she sat in a chair. J.H. was told then that similar conduct toward his stepsisters was wrong, and J.H. appeared to understand the difference between good and bad touching. (In re Paul C. (1990) 221 Cal.App.3d 43, 53 [the minor had been told touching younger persons in a sexual manner was wrong].) J.H. told L. he had been sexually abused, and that “he didn’t like it, that he was scared, ” from which a reasonable trier of fact could infer J.H. would understand sexual conduct directed at others would be wrong.

The charged acts occurred when the victims were asleep or alone, or at least when there were no adults present. (In re Tony C. (1978) 21 Cal.3d 888, 901 [committing acts in private shows awareness of wrongdoing]; In re Paul C., supra, 221 Cal.App.3d at p. 53 [same].) J.H. ran away when the victims woke up, or when he heard an adult approaching. In several instances, the touching involved J.H. placing his hands under the victims’ clothing. The touching was more than a momentary touching, but rather continued on one occasion for at least five minutes, and, on several occasions, continued despite the victims’ demands that J.H. stop. (Jerry M., supra, 59 Cal.App.4th at p. 299 [ignoring victim’s request to stop lewd conduct evidences knowledge of wrongfulness].)

We consider J.H.’s age, the evidence that J.H. was told similar conduct was not appropriate and had been punished for similar conduct in the past, the evidence of the clandestine way J.H. approached the victims, the number of different victims, the length and manner of the touchings, the evidence that J.H. ran away to avoid being caught, and the span of time over which the incidents occurred. Based on this evidence, we conclude there was substantial evidence supporting the juvenile court’s finding that the People had met their burden under Penal Code section 26.

For the first time in his reply brief on appeal, J.H. argues the rule of lenity applies, and requires that this court presume each of the charged crimes occurred at the earliest date alleged in the petition, and further presume he was too young on each of those dates to have been capable of committing a crime. J.H. has forfeited this argument by failing to raise it earlier in the proceedings. (Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 783.) In any event, the rule of lenity is inapplicable here, for it is a rule of statutory construction that applies when the language of a statute defining a crime or punishment is susceptible of two or more interpretations. (People v. Soria (2010) 48 Cal.4th 58, 65; People v. Story (2009) 45 Cal.4th 1282, 1294; People v. Garcia (1999) 21 Cal.4th 1, 11.) J.H. does not cite us to any cases applying the rule of lenity to a substantial evidence review. And, contrary to J.H.’s argument, there was evidence from which a reasonable trier of fact could find that the acts occurred when J.H. was at the older end of the spectrum, rather than the younger end.

III.

THERE WAS SUFFICIENT EVIDENCE THAT J.H. HAD THE INTENT TO AROUSE HIMSELF.

One of the elements of a violation of Penal Code section 288, subdivision (a) is that the act was committed “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the perpetrator] or the child.”

Intent to arouse can be inferred from circumstantial evidence. (Jerry M., supra, 59 Cal.App.4th at p. 299.) “Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim’s cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings. [Citations.] To this list must be added, in our view, the age of the defendant.” (Ibid.)

At oral argument, J.H.’s counsel argued there was no evidence of arousal. Arousal is not an element of the crime, although it may be offered as evidence of intent to arouse.

In Jerry M., supra, 59 Cal.App.4th at page 300, the appellate court held there was insufficient evidence of intent to support the juvenile court’s true findings under Penal Code section 288, subdivision (a). The juvenile court had found true allegations that the minor had committed four counts of violating section 288, subdivision (a) by (1) squeezing a minor girl’s breasts through her shirt; (2) refusing to return a bicycle to the same minor girl until she showed him her breasts, after which he touched her breasts; (3) touching another minor girl’s breasts through her shirt with his fingertips, as she backed away, telling him “‘no’”; and (4) touching the breasts of a third minor girl with his fingertips under her T shirt and brassiere, after asking her if she was “‘flat.’” (Jerry M., supra, at p. 294.) The appellate court reversed the true findings, concluding the following evidence did not sustain the People’s burden of proof: “Jerry was 11 years old and there is no evidence he had reached puberty. There is no evidence of sexual arousal. [Citation.] Each of the minor victims knew Jerry; his conduct was in public, during daytime in the presence of others; and there was no attempt or opportunity to avoid detection. There was no clandestine activity preceding the touching, no stealthy approach or modus operandi and no admonishment to the victims not to disclose the occurrence. There was no attempt to prolong the touching beyond the initial momentary contact; there was no caressing. The record shows Jerry was a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal. Under these circumstances Jerry was perhaps guilty of battery [citation], but the record does not support a true finding beyond a reasonable doubt of conduct intended sexually to exploit a child-the ‘gist’ of section 288, subdivision (a). [Citation.]” (Id. at p. 300.)

In contrast, in In re Randy S. (1999) 76 Cal.App.4th 400 (Randy S.), the appellate court (over a vigorous dissent) affirmed the juvenile court’s adjudication that the minor committed one act of lewd conduct under Penal Code section 288, subdivision (a). The minor’s stepmother heard him in the shower with his two year old stepsister; the minor was 11 years old at the time. (Randy S., supra, at p. 403.) The bathroom door was locked. The minor came out of the bathroom when the stepmother told him to open the door. (Ibid.) The minor was with his stepsister 10 minutes later, when she emerged from the bathroom, wet and crying. After the minor left for school, the stepmother discovered an area around the stepsister’s vagina was red and swollen. (Ibid.) The stepsister told her mother, “‘[Defendant] hurt my pee-pee, ’ and pointed to her vaginal area.” (Ibid.)

In that case, the minor was 11 years old, and there was no evidence he had reached puberty, nor was there evidence he was sexually aroused during the incident. (Randy S., supra, 76 Cal.App.4th at p. 407.) The appellate court identified four factors that were not present in Jerry M., which caused it to conclude the People had sustained the burden of proof of the minor’s intent: (1) when confronted by his stepmother soon after the incident, the minor responded, “‘I hope you don’t think that I sexually abused [the stepsister], ’” and later admitted putting his fingers inside her; (2) the minor had requested permission to shower with his stepsister on several occasions, despite the fact his stepmother had told him not to take showers with his stepsister, not to be naked in her presence, and not to touch her private parts, all of which the court found showed the minor “had an unnatural interest in showering with” his stepsister; (3) the incident occurred “in a clandestine manner, ” where the minor and his stepsister were alone in the bathroom with the door locked, and the minor returned to the bathroom and molested his stepsister minutes later; and (4) the minor repeatedly changed his story about what had happened. (Id. at pp. 406 407.)

The appellate court rejected the minor’s suggestion that his young age created a presumption that he had not reached puberty, from which the court should conclude he could not have had the intent to sexually arouse himself by touching his stepsister. “Defendant knew he could be in trouble for sexually abusing [his stepsister]. He had gone into the bathroom with [his stepsister] on at least one occasion and locking the door, he placed his fingers in her vagina, and then he attempted to evade the consequences of his actions. Therefore, we are convinced that the circumstances surrounding Defendant’s actions demonstrate that he harbored the requisite intent to arouse his own sexual desires through the use of [his stepsister]. Although he may only have been experimenting sexually, his actions clearly evidenced an intent to sexually stimulate himself. We are mindful of the words of our high court, ‘[T]he circumstances of the touching remain highly relevant to a [Penal Code] section 288 violation. The trier of fact must find a union of act and sexual intent [citation], and such intent must be inferred from all the circumstances beyond a reasonable doubt.’ [Citation.]” (Randy S., supra, 76 Cal.App.4th at pp. 407 408.)

In the present case, substantial evidence supports a finding of J.H.’s intent to arouse himself. (Neither the Attorney General nor J.H. contends the acts were committed with the intent to arouse the victims.) The incidents occurred over an extended period of time with different victims. J.H. had been told specifically that he should not touch his stepsisters inappropriately, and appeared to understand the difference between good and bad touching. The incidents generally occurred when the victims were alone or asleep. The touching or other lewd conduct was not an act of momentary touching, as in Jerry M., but involved reaching under the victims’ clothing, and continued after the victims asked J.H. to stop. Based on the record as a whole, we conclude a reasonable trier of fact could conclude J.H. was acting with the intent to sexually arouse himself.

DISPOSITION

The order is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.


Summaries of

In re J.H.

California Court of Appeals, Fourth District, Third Division
Feb 22, 2011
No. G042718 (Cal. Ct. App. Feb. 22, 2011)
Case details for

In re J.H.

Case Details

Full title:In re J.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 22, 2011

Citations

No. G042718 (Cal. Ct. App. Feb. 22, 2011)