Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. JV14776
Lambden, J.
In 2007, defendant was declared a ward of the court pursuant to Welfare and Institutions Code section 602. On October 28, 2008, a supplemental section 602 petition was filed regarding defendant; the petition alleged one count of felony sexual battery by restraint (Pen. Code, § 243.4, subd. (a)) and one count of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)). After a contested jurisdiction hearing, the trial court sustained the sexual battery by restraint allegation and dismissed the misdemeanor sexual battery allegation.
All further unspecified code sections refer to the Welfare and Institutions Code.
Defendant appeals and contends that insufficient evidence supported the element of unlawful restraint. We are not persuaded by defendant’s argument and affirm the lower court’s judgment.
BACKGROUND
On June 2, 2006, defendant was alleged to be a ward of the court pursuant to an original section 602 petition. This petition charged him with one count of carrying a weapon on school grounds (Pen. Code, § 626.10, subd. (a)). On August 2, 2006, he admitted that allegation and was granted deferred entry of judgment.
A supplemental section 602 petition was filed on December 11, 2006, alleging one count of misdemeanor petty theft (Pen. Code, § 484, subd. (a)). Defendant admitted the allegation and was terminated from deferred entry of judgment participation. On April 9, 2007, defendant was declared a ward of the court and placed on probation. Defendant admitted a further allegation of driving without a license. The court continued wardship and probation with the additional condition that he serve 12 days in juvenile hall.
On October 28, 2008, a supplemental section 602 petition was filed. The petition alleged one count of felony sexual battery by restraint (Pen. Code, § 243.4, subd. (a)) and one count of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)).
The trial court held a contested jurisdiction hearing. B.R., who was 16 years old at the time of the jurisdiction hearing, testified that she was walking with defendant and their friend D.H. after school on October 14, 2008. The two boys, D.H. and defendant, told B.R. that they were going to show her a shortcut. They started walking and at some point defendant and D.H. stopped for ice cream. They then walked down a path near the railroad tracks and D.H. started walking “pretty fast” in front of B.R. and defendant. D.H. was about 15 feet ahead of them.
B.R. described what happened as defendant and she walked on the path: “[Defendant] was standing behind me, and he was kind of like hugging me from behind, and I was like okay[,] whatever. And then he started putting his hand down my shirt. And I was like, ‘No, don’t,’ and I was pushing his hand away, and then he would back off for a second and then he would do it again. And, and then he tried to undo my belt. And I pushed him away again, and I was like, ‘No, stop it.’ And then I just––I don’t know. He did it a few times.”
B.R. said that defendant’s hand went under her shirt and bra and touched her breasts. Defendant, according to B.R., would back off and then do it again. He did it three or four times and she said, “No,” each time. At first, while defendant was eating his ice cream, he used only one hand, but later he used both hands. Defendant then tried to undo her belt and she pushed him away again and said, “No, stop it.” Defendant was able to put his hand down her pants and touch her underwear, but he did not put his hand under her underwear. Defendant was standing behind B.R. during this entire time. When asked whether defendant had his arms around her, B.R. responded, “I think so.” The incident lasted a few minutes. B.R. said that she was shocked and scared.
B.R. stated that when defendant was sticking his hand up her shirt, she felt that she could get away from him. On cross-examination, she reiterated that she always felt she could get away during her encounter with defendant. Defense counsel asked, “So he was never holding you back and restraining you in such a way that you could not leave?” B.R. replied, “No.” When asked whether she said stop loudly, B.R. replied: “I was just saying ‘stop, stop,’ like quietly.” She responded, “Yes,” to the question asking her whether she remembered “saying it continually over and over.”
B.R. phoned her friend N.S., who lived nearby, and told him to meet her in the alley. N.S. recalled that she told him that somebody was following her and that she wanted him to meet her at the alley. N.S. testified that B.R. did not sound normal when she phoned him, but sounded like she was in a hurry to get somewhere. About five minutes after the phone call, N.S. met B.R. and she ran to him. He saw a male following her and, when he saw N.S., he placed his arms around his head and turned around and walked away. N.S. said that he could not identify the male. He said that B.R. told him that a group of guys were trying to kiss her “and stuff” and she seemed visibly upset.
B.R. later called J.V. She denied telling J.V. defendant’s name and asserted that she did not give his name because she was afraid that J.V. and others would beat defendant up. J.V. testified that B.R. called him and told him that “some guy tried to rape her” and that he should come over. She sounded frightened. She told him that she was at N.S.’s house.
About six days later, B.R. told Officer Kenneth Chapman, the high school resource officer, about the incident. Chapman testified that B.R. told him that she did not yell during the incident involving defendant but declared to Chapman that she “was just very frightened and scared.” B.R. informed Chapman that she was too scared to report the incident but her friends were urging her to report it; one of her girlfriends told the dean of their school. The dean was asking B.R. questions and she finally told him. After B.R. reported the incident, she stopped attending school; B.R. testified that defendant’s friends were “trying to jump” her “every time” she went to school.
D.H. acknowledged that the three teens had walked together on the path on October 14, 2008, but denied walking ahead of B.R. and defendant. He claimed that they remained together the entire time. He admitted, however, that he had previously reported to an investigator from the public defender’s office that he was walking in front of defendant and B.R. He also had written a statement for Chapman that he was walking about 15 feet ahead of B.R. and defendant. D.H. claimed that he lied to the investigator. D.H. agreed that he was defendant’s good friend and that he did not want to see defendant get into trouble. He claimed that he saw B.R. and defendant kissing, but denied ever seeing defendant putting his hands under B.R.’s clothing or ever hearing her say, “No,” to defendant. D.H. stated that he had been expelled from the high school for gang activity.
Defendant testified and confirmed that he was walking with B.R. and D.H. on October 14, 2008. He admitted that he first told Chapman that his brothers had picked him up and that he had not walked home on October 14. He said that D.H. was walking ahead of them on the path after D.H. and he had purchased ice cream. He agreed that he “grabbed” B.R. “from behind” but asserted that she was “okay with it.” He testified that he was grabbing her by her waist. He reported that she never told him, “No,” and never pushed him away. He maintained that he still had his ice cream when he was touching her waist. He claimed that he kissed her and she told him that his mouth was too cold from eating ice cream.
At the close of the hearing, the court stated that it found B.R. “to be believable” and that her testimony was consistent with what she had told Chapman. The court pointed out that defendant initially denied the incident to Chapman but later provided a rendition that was similar to the statements made by B.R. with the significant difference being that defendant claimed B.R. consented to the touching. The court found that, based on B.R.’s testimony, it found no consent and unlawful restraint. The court explained: “[I]n listening to the evidence and understanding that unlawful restraint requires proof that there was more force than that required to commit the act of touching her, she described him quite clearly coming from behind and hugging her, getting his hands from behind her in front of her, holding her so he could commit this act. And I think that’s under the law sufficient unlawful restraint.”
In response to a statement by defense counsel, the court stated that it recognized that B.R. testified during her cross-examination that defendant had the ice cream in one hand despite originally testifying that defendant used both hands when hugging and touching her. The court stated that B.R. described defendant as hugging her and the court considered that a “description of restraining somebody.” The court elaborated: “If you restrain somebody, I don’t think the law requires that... you have to restrain and commit the act at the identical same time. I think that he restrained her, and then he committed the act on her.” Subsequently, the court noted that the question of restraint was a close call.
The court sustained the allegation of sexual battery by restraint and dismissed the lesser included misdemeanor sexual battery.
At the disposition hearing on December 3, 2008, the court continued defendant as a ward of the court, found defendant’s maximum potential commitment term to be five years, and ordered defendant placed at the Bar-O Boys Ranch.
Defendant filed a timely notice of appeal.
DISCUSSION
The trial court found that substantial evidence supported the allegation of sexual battery by restraint in violation of Penal Code section 243.4, subdivision (a). Defendant contends the evidence supported the misdemeanor sexual battery but not the allegation of sexual battery by restraint.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence––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.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “We do not reweigh evidence or reevaluate a witness’s credibility.” (Guerra, at p. 1129.)
Penal Code section 243.4, subdivision (a) provides in relevant part: “Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery....” The touching has to be of an “intimate part[,]” which is defined as “the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.” (Pen. Code, § 243.4, subds. (a) & (g).)
Defendant does not challenge the lower court’s finding that he touched an intimate part of B.R. against her will and for the purpose of sexual arousal, sexual gratification, or sexual abuse. The record shows that he touched her breast three of four times. Defendant does, however, object to the lower court’s finding that he unlawfully restrained B.R. while touching an intimate part of her.
The evidence was that defendant placed his hand down B.R.’s pants, but did not put his hand under her underwear; therefore, this act was not a violation of Penal Code section 243.4.
“[T]he unlawful restraint required for violation of [Penal Code] section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.” (People v. Pahl (1991) 226 Cal.App.3d 1651, 1661 (Pahl).) However, the unlawful restraint need not be physical in nature and “ ‘ “may be accomplished by words or acts....” ’ ” (People v. Grant (1992) 8 Cal.App.4th 1105, 1112 (Grant).) A person is unlawfully restrained “when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person’s liberty, and such restriction is against the person’s will; a restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose, as long as the restraint continues to be for a lawful purpose.” (People v. Arnold (1992) 6 Cal.App.4th 18, 28 (Arnold).)
The question in the present case is whether, in addition to the sexual acts themselves, defendant used “words, acts or authority” (Arnold, supra, 6 Cal.App.4th at p. 28) to restrict B.R.’s liberty against her will. Although we agree with the trial court that this was a close call, the record contained sufficient evidence to support the lower court’s finding of unlawful restraint.
Viewed in the light most favorable to the judgment, the record shows that defendant and his friend D.H. told B.R. that they would accompany her and that they knew a shortcut along a path near the railroad tracks. D.H. walked about 15 feet ahead of defendant and B.R. The record establishes that, while he was eating his ice cream, defendant hugged or grabbed B.R.’s waist and then placed his hand under her shirt. He did this three or four times and it is unclear whether he no longer had his ice cream and grabbed her with both hands during one of these incidents. B.R. repeatedly protested and resisted defendant’s sexual advances. B.R. testified that she was shocked and scared. Defendant’s acts of repeatedly grabbing or hugging B.R.’s waist stopped B.R. from pulling away to prevent the sexual act of placing his hand under her shirt and on her breast. We conclude that defendant’s grabbing B.R. by the waist when viewed in the context of the two of them walking on a path by the railroad track, while D.H. walked about 15 feet ahead of them, was “something more than the exertion of physical effort required to commit the prohibited sexual act.” (Pahl, supra, 226 Cal.App.3d at p. 1661.)
Defendant cites Arnold, supra, 6 Cal.App.4th 18, Pahl, supra, 226 Cal.App.3d 1651, and Grant, supra, 8 Cal.App.4th 1105 for the proposition there was insufficient evidence of unlawful restraint. These cases have limited relevance and the question of whether the requirements of unlawful restraint under Penal Code section 243.4, subdivision (a) have been proven “depends on the particular fact” of the case. (Arnold, supra, at p. 30.) The facts in the present case differ significantly from those in any of the cases upon which defendant relies.
In Arnold, the defendant was a school teacher and the victim was a 17-year-old female high school student who was infatuated with her teacher. (Arnold, supra, 6 Cal.App.4th at p. 22.) The court reversed one count of sexual battery against the defendant that involved an incident in which defendant and the victim went running together. (Id. at p. 30.) The defendant’s sexual advances initially consisted of pulling the student toward him, grabbing her buttocks, and fondling her breasts. (Id. at p. 22.) The court determined that the grabbing of the victim and pulling her towards him was an act of restraining her, but it concluded that it was not an unlawful restraint. (Id. at p. 29.) The court stressed that the victim did not testify and there was no evidence that the initial activity by the defendant of restraining the victim by grabbing her by the buttocks was against her will and without her consent. (Ibid.) The court explained that the victim went with the defendant thinking something might happen and, when it did, “she did not like it and expressed her dissatisfaction by pushing defendant away and saying no. She was successful in escaping the restraints imposed by defendant. Under these circumstances, there was no showing that at the time defendant grabbed [the victim’s] buttocks and put his hands down her top that her submission was unwilling and compelled by defendant’s words, acts or authority.” (Ibid.)
Defendant claims that the facts regarding unlawful restraint in the present case are even weaker than those in Arnold. Unlike the situation in Arnold, where the defendant was a teacher and an authority figure, in the present case the defendant, like B.R., was a teenager. He maintains that, as in Arnold, B.R. acquiesced to his initial act of putting his arm around B.R.’s waist as evidenced by her testimony that she thought to herself, “okay[,] whatever[,]” when he hugged her. Furthermore, defendant argues that B.R. testified that she believed she could get away and there was no evidence that defendant prevented her from leaving.
We conclude, however, that the present case differs significantly from Arnold in the respect that the defendant in Arnold had withdrawn when the victim told him to stop; the grabbing occurred before the victim ever rejected the defendant’s advances. In contrast, here, B.R. stated she “was like okay[,] whatever[,]” when defendant first started hugging her from behind. However, after he started putting his hand down her shirt, she said, “ ‘No, don’t,’ ” and pushed his hand away. She stated that he would “back off for a second and then he would do it again.” Thus, under Arnold, the first grabbing and touching of B.R.’s breast may not have been unlawful, but the second, third, and possibly fourth were clearly against her will and sufficient evidence of an unlawful restraint.
As to defendant’s argument that B.R. testified that she believed she could get away from defendant, this testimony was not dispositive. The trial court was in a better position to evaluate this statement given that it could observe the size and demeanor of both B.R. and defendant. The trial court also considered B.R.’s testimony that she was frightened, Chapman’s testimony that she told him that she was very frightened and scared, and N.S.’s testimony that B.R. sounded frightened when she called him and seemed “visibly upset” when she ran to him from the alley on October 14, 2008. Additionally, the court assessed B.R.’s testimony that she was afraid to go back to school after she had reported the incident with defendant.
Defendant also relies on Pahl, supra, 226 Cal.App.3d 1651. In Pahl, the victim was on a date with the defendant and, after he discussed sexual subjects with her, she told him she wanted to go home. Instead, he drove her to a secluded area where he sexually assaulted her, despite her efforts to resist him, her crying, and her telling him she wanted to go home. (Id. at p. 1661.) The court found this evidence sufficient to establish unlawful restraint, reasoning that the defendant, “for his own sexual gratification, repeatedly touched [the victim] intimately against her will. [The victim] resisted physically and verbally and expressed a desire to go home, but [the defendant], being heavier and stronger than [the victim], restrained her despite her pleas.” (Ibid.)
Defendant maintains that the present case does not have the physical domination present in Pahl. Defendant attempts to minimize B.R.’s resistance by arguing that she quietly said, “No” or “Stop,” which was not the same as a person yelling, crying, or requesting to be taken home. We agree that the physical domination may be less in the present case, but the facts of this case are significantly similar in that B.R., like the victim in Pahl, repeatedly resisted––both physically and verbally––defendant’s touching of her. Defendant’s argument that B.R.’s resistance was insufficient is completely without merit given that B.R. testified that she repeatedly told defendant “No, don’t,” and “No, stop it,” and pushed him away. We reject defendant’s attempts to argue that the victim has to do something more than show that the touching was not consensual to establish that the touching was against the victim’s wish.
Finally, defendant’s reliance on Grant, supra, 8 Cal.App.4th 1105 seems misplaced. In Grant, the defendant approached two teenagers who were parked in a car on private property and said he worked for the property owners. (Id. at p. 1108.) He claimed to be investigating vandalism complaints and ordered the girl to accompany him to the back of his vehicle and told the girl’s boyfriend to remain in the car. (Ibid.) While she was separated from her companion, the defendant made a number of sexual remarks, fondled her breasts, and placed his hands inside her pants. (Ibid.) The girl felt that she was unable to do anything because she believed the defendant was a person in authority. (Ibid.) The court in Grant rejected an argument that a threat of physical violence was required. “There are many situations where one is compelled, i.e., forced, to do something against one’s will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure.” (Id. at p. 1112.)
Defendant argues that the psychological restraint evident in Grant is not present in this case since defendant did not make any false representation of authority and this case involves two teenagers, with equal authority, walking home. The facts in the present case are not similar to those in Grant as Grant involved a situation where there was no threat or use of any physical restraint. The court in Grant merely held that the threat of physical force was not necessary to establish unlawful restraint under Penal Code section 243.4, subdivision (a) if there was evidence of psychological force by someone with actual or apparent authority. (Grant, supra, 8 Cal.App.4th at p. 1112.) Since defendant did use physical force by hugging or grabbing B.R., the facts in Grant have little bearing on this trial court’s determination of unlawful restraint.
Here, defendant’s repeated grabbing of B.R.’s waist prior to placing his hand under B.R.’s shirt, despite her repeated verbal and physical protests, while B.R. and defendant walked together on a path near the railroad tracks was sufficient to establish unlawful restraint under Penal Code section 243.4, subdivision (a).
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.