Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J36655
JONES, P.J.
The juvenile court sustained an allegation that the defendant committed misdemeanor sexual battery. The defendant challenges the ruling on the ground of insufficient evidence. We affirm.
Background
On October 5, 2006, a Welfare and Institutions Code section 602 juvenile delinquency petition was amended to add an allegation that on or about September 22, 2006, Defendant J.P. (born in April 1992) committed misdemeanor sexual battery by willfully touching an intimate part of S.P. against her will for the specific purpose of sexual arousal, sexual gratification or sexual abuse (Pen. Code, § 243.4, subd. (e)(1); count 8).
All statutory references are to the Penal Code unless otherwise indicated.
Defendant admitted six other allegations in the petition: felony grand theft in February 2006 (§ 487, subd. (a); count 1); misdemeanor battery in March 2006 (§ 242; count 3); misdemeanor petty theft in March 2006 (§ 484, subd. (a); count 4); felony petty theft in March 2006 (§ 487, subd. (c); count 5); and felony assault by means likely to produce great bodily injury in August 2006 (§ 245, subd. (a)(1); count 6). The court dismissed allegations of felony second degree robbery in March 2006 (§ 211; count 2) and misdemeanor battery in August 2006 (§ 242; count 7), but left the battery allegation open for restitution. In January 2007, the petition was again amended to allege that defendant committed felony second degree commercial burglary (§ 459; count 9) and misdemeanor petty theft (§ 484, subd. (a); count 10) in December 2006. Defendant admitted count 9 and count 10 was dismissed.
In February 2007, following a contested jurisdictional hearing, the court sustained the sexual battery allegation (count 8). At the disposition hearing, the court adjudged Defendant a ward of the court, placed him on probation in his mother’s custody, ordered him to receive counseling to address sexual behavior and victimization, and determined that his maximum term of confinement was six years two months.
Evidence of Sexual Battery
In this appeal, Defendant’s only claim is that there was insufficient evidence to sustain the misdemeanor sexual battery allegation. We review the evidence that was presented at the jurisdictional hearing on the charge.
Testimony of G.A.
G.A. was 14 years old at the time of the jurisdictional hearing. He attended middle school with Defendant and S.P. (the alleged victim) and all three rode on the same school bus. G.A. knew Defendant because they used to be in the same classroom and he knew S.P. to the extent that they sometimes talked.
On September 22, 2006, S.P. was seated near the front of the bus and Defendant was seated in the rear. The bus had bench seats, seating two students on each side of an aisle. Defendant called S.P. to the back and she sat next to him on the aisle end of his bench seat. Another student, Justin P. (Justin), was sitting directly across from them and G.A. was sitting one row behind Justin. G.A. and Justin were on the driver’s side of the bus and Defendant and S.P. were on the other side of the bus. The seat backs came to about mouth level on G.A., who was tall. G.A. responded affirmatively to the question, “So you had a clear view of [them]?”
About five minutes after S.P. sat next to Defendant, G.A. saw Defendant touch her in the crotch under her pants and on the breast over her shirt. S.P. was sitting there not really saying anything. She was not touching Defendant at all before he touched her. Defendant stopped touching S.P. and she returned to the front of the bus. In response to the question, “Did [S.P.] seem happy? sad?” G.A. testified that she seemed sad because of the expression on her face.
In the five minutes before the touching, S.P. and Defendant appeared to be talking to each other. When asked if they appeared to be having a good or bad time, G.A. responded, “I couldn’t really tell. I wasn’t really paying much attention to them.” He testified that neither talked very loud or used a voice that indicated he or she was upset. S.P. did not yell and Defendant did not use an angry voice. When S.P. went back to sit with Defendant, she carried her backpack but did not have her cell phone out. When he was asked, “How do you know?” he responded, “Because I could see.”
Before S.P. went back to join Defendant, Antoine and Steven had moved from the front to the rear of the bus. G.A. talked to Steven and played with Steven’s Gameboy, which hardly made any noise, for about 10 to 15 minutes. He had stopped playing the Gameboy by the time he saw Defendant touch S.P.
On the day of the incident (a Friday), G.A. told his grandmother what happened. The next day, he told his psychologist. At school, he told two teachers. After he talked to the teachers, he talked to S.P. about the incident “a little bit.” He then spoke to a police officer.
When G.A. was asked if he had ever heard S.P. say, at or around the time of this incident, that she wanted Defendant to be her boyfriend, G.A. responded, “Not really,” and testified that she wanted a boy named Todd to be her boyfriend.
Testimony of Officer McCrea
G.A. had testified that he could not remember whether J.P. said anything to S.P. after he touched her. His memory was better when he spoke to a police officer shortly after the incident and he told that officer the truth.
Vallejo Police Officer Matthew McCrea testified that G.A. told him that, when S.P. was returning to the front of the bus, he heard Defendant say “I’m sorry,” and tell her not to say anything because she would get in trouble if she did. He also testified that S.P. was “very calm” when he spoke to her about the incident.
Testimony of S.P.
The trial court conducted voir dire to determine whether S.P., who is developmentally disabled, was competent to testify. S.P. provided many nonresponsive answers to questions about whether it was right or wrong to lie from the witness stand, but also provided appropriate responses. The court qualified her as competent. When the prosecutor commenced direct examination, S.P. testified that she did not see Defendant in the courtroom, even though he was present, and she testified that she never rode the bus with Defendant. When asked immediately thereafter how she knew Defendant, she responded, “Bus.” The court excused her as a witness and no statements by S.P. about the incident were admitted in evidence.
Testimony of June Anderson
June Anderson, S.P.’s teacher, testified that when she asked S.P. about the incident on Monday (three days after the incident), S.P. was calm.
Testimony of the Bus Driver
The substitute driver who drove the bus on September 22, 2006 testified for the defense that nothing unusual occurred on the bus that day and no one getting off the bus was crying or upset. The bus had about six rows of seats and about eight or ten children were on board. In his mirror, the driver could see the children on the bus from their shoulders up. He would not be able to see if a child put his hands into another child’s pants. If a fight occurred on the bus, he would see it. He definitely would have noticed if S.P. had made loud noises or complained about anything or if she was crying and upset when she got off the bus.
Testimony of Justin
Justin, 11 years old at the time of the hearing, testified for the defense that he was sitting three rows behind Defendant and S.P. and on the same side of the bus during the alleged incident. G.A. was sitting across from him. Justin confirmed this testimony on examination by the court and further cross-examination by the prosecutor and he drew a diagram to depict the seating arrangement. He also testified that S.P. and Defendant changed seats a couple of times—S.P. changed seats and then Defendant moved to sit with her—but he specifically testified that at no time were S.P. and Defendant seated across the aisle from him with G.A. behind him. Justin also testified that G.A. was asleep on the bus: his eyes were closed and he was not doing anything.
When he was asked on direct examination, “you were two seats behind them?” he responded, “Mm-hm. They were on the third seat in front of the two—they were on the third seat in front of me.” On cross-examination, he nodded in response to the question: “And you were sitting behind so there was a seat and then they were sitting in front of you?” In response to a question by the court regarding the seating arrangements, he testified that S.P. and J.P. “were on the third seat in front of me.”
Justin could not see S.P. and Defendant very well when they were sitting together. He heard S.P. “smacking [Defendant] against the head,” but did not know whether she did it in a mean or a playful way. When he was asked, “Were they hitting each other or just [S.P.] touching [Defendant]?” he responded, “They weren’t hitting each other.” They were “playing talking,” making each other laugh. When asked how long S.P. and Defendant were talking together, Justin responded, “I didn’t hear,” and added, “Most of the people on the bus were talking.” He could not see whether they were touching each other. He did not see S.P. or Defendant with a cell phone and did not see them playing around with anything at all. From where Justin was sitting, it looked like S.P. was mad for a while. When asked, was this “[a]t the beginning or end, or when they were together,” Justin replied “[l]ike when the end they were together and she was going off the bus.”
Testimony of Defendant
Defendant testified that when S.P. came to sit with him, Justin was sitting three seats in front of them and G.A. was sitting “closer up to the bus driver” with Steven. Justin moved to sit two seats behind G.A., then he came back and sat next to Defendant and S.P. and he asked Defendant for a sucker. Justin said, “Why you guys play fighting? Are you guys for real?” Defendant answered, “No.” Defendant later testified that when S.P. left his seat and returned to the front of the bus, he also moved to the front and sat next to Justin.
Defendant invited S.P. to come to the back of the bus “because at the time all of us were sitting near the back of the bus.” When she got to the back of the bus, she looked inside her backpack and pulled out her purse. Defendant asked her what she had in the purse and she said she had a cell phone. He asked to see it and she pulled it out. She pretended to talk on it. Defendant asked if it belonged to anyone and she said no, that it was hers. Defendant then asked if he could have it because he could get a charger for it. She said no because it was her father’s and she would get in trouble if she let Defendant use it. Defendant became upset because he could not understand why he could not have the phone.
When Defendant and S.P. were sitting together, they were play fighting, “talk[ing] smack to each other and act[ing] like we’re going to beat up each other and stuff.” The last time S.P. hit Defendant, he pushed her off the seat. When she got up she was very angry and said she was not Defendant’s friend any more. She did not cry. She returned to the front of the bus.
From the time Defendant was in sixth grade, S.P. would tell him she liked him and he would tell her he already had a girlfriend. On the day of the incident, S.P. was winking at Defendant. He told her she needed to stop doing that or he was going to tell her father. She said she did not care. She leaned over and said, “Come here boyfriend,” put her arms around him and tried to kiss him. “And that’s when I also pushed her out of my seat again and she got back up. And that time she wasn’t mad. She was laughing it off.” When she said she was not his friend anymore, she had a sad face and was crying. Defendant never reached inside S.P.’s pants or touched her vagina.
Rebuttal Testimony of Officer McCrea
Officer McCrea testified that Defendant told him he moved to the back of the bus because S.P. was becoming annoying. He said he asked S.P. to come to the back of the bus because he thought he had a charger that would fit her cell phone. He was trying to be nice to S.P. Defendant said that S.P. called him cute and tried to kiss him, but he told her to stop or he would tell her father. S.P. then got up from the seat crying and went to the front of the bus. He told S.P. he was sorry and she should come back.
Court’s Ruling
The court found Justin “very credible.” “I have absolutely no reason to disbelieve Justin.” As to G.A., the court said, “I found no reason to disbelieve [G.A.]. . . . [¶] Although he appeared to be somewhat developmentally delayed or disabled, I did not find that that had any particular effect on his credibility or his ability to observe, recall, and tell the truth.” She added, “Until Justin testified, I had no reason to question at all [G.A.]’s recollection. Justin has made me question because primarily of the different placement of the players on the bus.” She observed that G.A., Justin and Defendant “seem to have placed the players in different places on the bus, but that I don’t find that particularly surprising given that this alleged event was last September and there was apparently a jumbled sequence of kids changing seats from here, there and the other.”
The court gave the following reasons to question Defendant’s credibility.
“There was no indication actually until [Defendant] testified . . . that anything of a sexual nature was going on. . . . [¶¶] [Defendant] has testified that he was basically taking the protective posture from [S.P.], telling her to stop doing that or he would tell her father. [G.A.] has said he took anything but a protective posture but instead took advantage. [¶] Those aren’t [G.A.]’s words. Those are my words to describe what it is [G.A.] testified he saw happen.”
“There were apparently some discrepancies between what [Defendant] told Officer McCrea and what he testified to here today. I note, for instance, the comment about crying which he reported to Officer McCrea which he did not testify to here today and which nobody saw what happened.”
“He further testified that he pushed her out of the seat. But the first time he talked about pushing her out of the seat, it was over something different than the second time when he testified about pushing her out of the seat. [¶] Under cross-examination, he indicated that it was over the cell phone that this activity which included pushing her out of the seat which made her mad occurred. Under redirect, it was because of her saying ‘Come here boyfriend’ and putting her arms around him that he pushed her out.”
The court summarized: “I really have the testimony of [G.A.] and I have the testimony of [Defendant] to compare. I have reasons to suspect the credibility of [Defendant]’s testimony. The question now is whether remembering the seating order somewhat differently than Justin recalls the seating order is enough to create a reasonable doubt as to the reliability of G.A.’s testimony. That’s what I see it coming down to, and I’m letting it settle as I sit here to see which side I am comfortable on. [¶] All right. With respect to the three elements of this charged offense, I believe [G.A.].” Earlier, the court had said that G.A. “is the only one who has indicated he was in a place to see what actually happened, and he testified that something did happen.”
The court found that G.A. saw Defendant touch an intimate part of S.P. The court also found beyond a reasonable doubt that the touching was against S.P.’s will and was done for the purpose of sexual arousal, gratification or abuse.
Discussion
Defendant argues insufficient evidence was presented at the jurisdictional hearing to prove beyond a reasonable doubt that he committed sexual battery against S.P. He argues there was insufficient evidence (1) that Defendant touched an intimate part of S.P. or (2) that any touching was against S.P.’s will.
On review of a claim of insufficient evidence, “the court must 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371 [same standard applies on review of findings that sustain allegations in a juvenile delinquency petition].) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
I. Sufficiency of the Evidence that Intimate Touching Occurred
The trial court’s finding that Defendant touched an intimate part of S.P. is supported by substantial evidence. G.A. testified that he had a clear view of S.P. and Defendant while they were sitting one row ahead of him and across the aisle. He testified that he saw Defendant touch S.P.’s breast over her clothes and put his hand under her pants. Defendant does not dispute that this testimony, if found credible, established the touching element of the crime. (§ 243.4, subds. (e)(1), (e)(2), (g)(1).)
Defendant argues G.A.’s testimony was inherently not credible because it was physically impossible for him to see the alleged touching from his seat one row behind and across the aisle from S.P. and Defendant. Defendant cites no evidence of the alleged physical impossibility and we have found no such evidence in the record. Defendant simply asserts the physical impossibility as if it were self-evidently true. We disagree. We cannot conclude on this record that a witness sitting on the aisle end of a bench seat could not see the lap and torso of a person sitting on the aisle end of the seat one row ahead of him and on the other side of the bus. The only record evidence about the physical layout of the bus was that it had several rows of bench seats divided by an aisle, that the seats accommodated two students each, and that the seat backs reached G.A.’s mouth level. Those facts do not rule out the possibility that G.A.’s scope of vision permitted him to see what he testified he observed.
Defendant argues the court’s acceptance of G.A.’s testimony as credible was not supported by substantial evidence. He cites conflicting testimony about where G.A. was sitting with respect to S.P. and Defendant; G.A.’s admission that he was not really paying attention to S.P. and Defendant before he saw the touching; and G.A.’s “emotional and psychological challenges.” On the cold appellate record, we see no reason to question the court’s credibility finding. The court expressly acknowledged there was conflicting testimony about the seating arrangements and expressly considered whether those conflicts raised a reasonable doubt regarding G.A.’s testimony. The court concluded that confusion was understandable because of repeated changes in the students’ seats combined with the passage of time. It can be inferred the court concluded that Justin was mistaken about where G.A. was seated and that G.A. was indeed in a position to observe what he said he observed. As to G.A.’s testimony about not paying attention, we find it unsurprising that a student who was not following the conversation of nearby students would nevertheless notice if one of those students touched the other in a sexually intimate way. As to G.A.’s possible psychological challenges, the court acknowledged that G.A. appeared somewhat developmentally delayed but found the disability did not affect the credibility or reliability of his testimony. The court had the opportunity to witness G.A.’s demeanor on the witness stand. Nothing in the written record calls into question the court’s assessment.
The court also had the opportunity to observe Defendant’s demeanor on the witness stand and it expressly questioned his credibility. The court could take the Defendant’s questionable credibility into account when it assessed whether it had reasonable doubt about the reliability of G.A.’s testimony. Notably, Defendant was the only witness to testify that S.P. acted in a flirtatious or sexual manner toward him. The court could infer that Defendant’s suspect testimony was an attempt to excuse his own sexual conduct, which was witnessed by G.A.
Finally, Defendant suggests that the trial court made a spur of the moment decision in finding that the touching occurred, rather than determining whether the prosecution had proved its case beyond a reasonable doubt. The court stated, “The question now is whether remembering the seating order somewhat differently than Justin recalls the seating order is enough to create a reasonable doubt as to the reliability of Gage’s testimony.” The court expressly applied the correct legal standard.
II. Sufficiency of the Evidence that Touching was Against the Victim’s Will
The trial court’s finding that the touching described by G.A. was against S.P.’s will is supported by substantial evidence. G.A. testified that S.P. seemed sad when she left the seat she was sharing with Defendant and returned to the front of the bus. Starting the afternoon of the bus ride, G.A. reported the incident to numerous adults. This conduct corroborated his testimony that he had observed disturbing behavior or some form of misconduct. Justin also testified that S.P. seemed mad toward the end of her encounter with Defendant. Even Defendant acknowledged that S.P. became upset with him, although he attributed her discontent to a conflict over a cell phone rather than any intimate touching. No other witness observed S.P. with a cell phone or overheard any conflict about a cell phone or any other item. G.A. overheard Defendant tell S.P. immediately after the incident that he was sorry and that she should not tell anyone what happened. Those statements reflect a consciousness that he had committed some sort of misconduct that displeased S.P. Defendant provided the only testimony that sexual conduct was initiated by or welcome to S.P. No other witnesses observed flirtatious conduct by S.P.
Defendant argues that in finding beyond a reasonable doubt that the touching was against S.P.’s will, the trial court inappropriately relied on S.P.’s presumed inability to consent due to her developmental disability. The court stated, “When I am told that [S.P.] left mad by Justin, appeared sad by [G.A.], was upset for one reason or another according to [Defendant], given her age and developmental ability or inability to consent to such a touching, I think there is sufficient evidence to prove beyond a reasonable doubt that the touching was against her will.” Defendant notes that inability to consent is an element of some crimes of sexual misconduct (see, e.g., § 261, subd. (a)(1)), but is not an element of the crime he was accused of committing (§ 243.4, subd. (e)(1)). He argues it was error for the court to rely on a fact that he had no reason to believe would be at issue in the proceeding and a fact that was neither raised nor proven during the hearing.
The question before the court was whether S.P. assented to the touching, regardless of her ability to legally consent to the touching. (People v. Thompson (2006) 142 Cal.App.4th 1426, 1437-1438.) The court considered the testimony of three separate witnesses, including Defendant, that S.P. expressed displeasure after sitting with Defendant and before she returned to the front of the bus. The court also heard evidence that Defendant told S.P. he was sorry and she should not tell anyone what happened, comments that revealed a consciousness that he had somehow offended or mistreated her. The trial judge could also take into account her human experience in assessing the likelihood that S.P., given her age and developmental disability (her “developmental ability or inability to consent”), would freely assent to intimate touching on a school bus and then walk back to the front of the bus with a sad or mad expression on her face.
Ample evidence supports the court’s finding that the touching was against the victim’s will.
Disposition
The jurisdictional finding that Defendant committed sexual battery on or about
We concur. SIMONS, J. NEEDHAM, J.