Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. FJ37253, Shep Zebberman, Temporary Judge.
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Locker, and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
The juvenile court found that appellant Juan T. had committed three counts of lewd acts on a child (Pen. Code, § 288, subd. (a) (§ 288(a)). The victim was his younger cousin, Javier L. The exact timing was never clear, but it appears that Juan was 11 or 12 years old, and Javier was five or six years old at the time. Juan was declared a ward of the juvenile court and placed home on probation, with a maximum confinement time of 12 years.
After sustaining the petition, the court asked defense counsel if Juan was 11 or 12 years old at that time. Defense counsel answered: “We estimate that he was 12. It’s hard to tell exactly when it happened.”
We hold that no prejudicial error occurred based on the record below, which includes Javier’s testimony and Juan’s admissions to the police and on the witness stand. We strike the finding of the maximum confinement term, and otherwise affirm.
PROCEDURAL HISTORY AND FACTS
1. Procedural Events Before the Adjudication Hearing
The juvenile wardship petition, filed on October 25, 2005, alleged five counts of section 288(a), all of which occurred “[o]n or between 01/01/2003 and 07/29/2004.” The only explanation in the record for the delay in filing the case is a sentence in the probation report, stating that an officer went to Javier’s home on August 10, 2005, “to investigate a backlog suspected child abuse report.”
On November 14, 2005, Juan denied the petition.
The probation report, filed on January 12, 2006, showed that Juan had no prior arrests and excellent grades at school. He lived at home with his parents and a younger brother. His parents said he was organized and well-behaved, had good communication with them, always told them where he was, and spent a lot of time with his family. They did not believe Javier’s allegations, which they thought arose from Javier’s underlying psychological problems.
At the January 12, 2006 hearing, the matter was scheduled for an adjudication hearing on March 6, 2006. All further proceedings in the case occurred in 2006.
On March 6, 2006, the adjudication hearing began. At that time, Juan was 15 years old, and Javier was seven years old.
2. The Adjudication Hearing
A. Prosecution Testimony
Javier’s mother testified that Javier was born in July 1998 and was currently in the second grade. He started kindergarten when he was five years old and first grade when he was six years old. “[S]ince kindergarten,” when his mother “began to take him” to school, he would cry, fearing that something would happen to him if he went inside the school. At some point when he was in the first grade, school officials called his mother to say that they were taking him to a mental hospital. She visited him there. She further testified that there were occasions when Javier’s father took him on visits to Juan’s home.
It therefore appears that Javier’s mental problems began prior to the incidents in this case.
Javier then took the witness stand, in the presence of his mother and therapist. We summarize his testimony in detail.
Javier’s examination by the prosecutor began with typical questions regarding competency. He said he was seven years old, but did not know his birthday. He knew that a boy who saw a picture of a cat and said he saw a cat was telling the truth. He knew that a girl who said that a picture of pizza was a picture of a hot dog would be lying. He knew that a girl who lied to a grandmother and a boy who lied to a judge would “get in trouble.”
At that point, the prosecutor inquired if the court was satisfied about competency. Defense counsel asked to examine Javier. The court said it would not make findings yet, but would allow defense counsel to cross-examine later. Questioning proceeded to the incidents themselves.
Javier said he was in the second grade. He remembered that he talked to a policeman because Juan touched him. The first time that happened he was in Juan’s room, and was six years old. It also happened “[s]ometimes in the bathroom.” Juan touched his penis, while his pants were on. Juan touched him “skin to skin.” He “didn’t feel right” about it, and told his mother about it.
At proceedings the next day, Javier said Juan touched him more than once, at Juan’s house. It happened another time, in Juan’s room, in the summer, after first grade. His own clothes were off. Juan touched his penis. He touched Juan’s penis, after Juan threatened him with a knife. Juan also made him touch his rear end, while Juan’s clothes were on the floor. Javier then became confused about whether Juan touched him a first time, a second time, and a third time. He then said that it happened each time his father took him to Juan’s house. His father now lived in the hospital, but previously lived in an apartment, by himself.
Javier then testified that there was a third time, in Juan’s room, when he was six years old. Both of their clothes were off. Juan touched him, and he touched Juan, because Juan threatened him with a knife. He orally copulated Juan’s penis, because Juan told him to do that. It tasted “nasty,” and made his mouth hurt. He felt nervous about it, and about touching Juan “in the back.” He then said he was sure that there were only three times. The same thing happened each time. Every time he touched Juan “at the back” and in the penis. The acts happened in different places, including the bathroom and Juan’s room. One time was on the floor of the bathroom. Javier was standing up and the lights were on, every time. Javier forgot what else happened in the bathroom. Every time, he orally copulated Juan, and Juan orally copulated him. He knew how long a week was, but not how long a month was. He did not know how much time transpired between the incidents. He went to Juan’s house every Saturday and Sunday. The acts happened every time he went there. He had forgotten how many times they happened. He stopped going to Juan’s house after he told people what had happened.
Cross-examination of Javier began with questions on competency. He said he knew that when you do something wrong, “you get in trouble.” He could not give an example of something that was wrong. He remembered that he had agreed in the courtroom on the previous day that he would tell the truth. Defense counsel asked, “Do you know the difference between the truth and a lie?” Javier answered, “No.” He was taken to Del Amo Hospital from school, after he said he was going to kill himself. Nobody at the hospital ever asked him if anybody had touched him. His mother visited him at the hospital. He did tell the doctor at the hospital that Juan had touched him. After he was released from the hospital, he told several people at the “Kedrin” mental health facility that Juan touched him. He did not remember when he first told anybody about the touching. Defense counsel asked, “Isn’t it true that you told Doctor Kenneth Abdulina that you had never been touched or sexually abused?” Juan answered, “Yes.” He then said he had told the truth, when he told Dr. Abdulina that he had never been touched or sexually abused.
Dr. Abdulina’s identity was not further explained. He may have been the doctor at Del Amo Hospital.
At that point, defense counsel moved to strike Javier’s testimony, for lack of competency, because Javier “ha[d] no idea between a truth and a lie.” The motion was denied.
Javier then testified that he told Dr. Abdulina that he was “currently sexually active,” but did not know what that term meant. He was confused about anatomical terms, but knew that Juan was the only person who had touched his penis. He had forgotten if anybody at Del Amo Hospital or at Kedrin had asked him if he had been touched without his permission.
Javier became increasingly confused. He knew that he had been in court the previous day, but did not remember where he had been the day before that, or the previous week or month. He did not remember if he might have been at Juan’s house a month before the court proceedings. He knew “a little bit” the difference between his left hand and his right hand. When asked to raise his left hand, he raised his right hand. He did not know what year it was. He remembered kindergarten, but not the month that kindergarten started. He knew the months of the year “a little bit.” He knew the meaning of first and second. “Second” meant “like the flowers that are inside that have water.” The third time meant “telling a kid to help you.” He had forgotten what the prosecutor asked him 30 minutes earlier, about “the third time.” Juan touched him a long time ago, and it was difficult to remember details. He knew how to count to five.
Javier then said that the first time Juan touched him was on a Saturday. He had difficulty explaining how he decided it was a Saturday, and finally said that he talked to his parents and looked at a calendar, as he did not know the different days of the month.
Defense counsel asked, “How do you know whether the day you were looking at was really a Saturday or a Sunday?” The court made its own relevancy objection, and sustained it. Defense counsel said, “I think I’m trying to show that he’s going to tell us things that aren’t actually true because he thinks we want to hear an answer. He really has no way of coming up with that answer.” The court said it had heard the testimony already.
Defense counsel moved on to questions about the first incident. Javier testified he was alone with Juan in Juan’s room, watching TV. The door of the bedroom was closed and locked. It was in the morning, but it was also after dinner. Javier now did not recall if either he or Juan was undressed. Juan touched the skin of his private parts, while they were lying next to each other on the bed. Javier then wavered back and forth, as to whether there was a second touching incident.
At that point, the juvenile court complained that defense counsel was asking repetitive questions. At sidebar, defense counsel explained that she was trying to cross-examine on the second and third time, if those times existed. The court thought that the questions were being repeated in an effort to confuse the witness, and were not phrased in a manner that was appropriate for a seven-year-old. Counsel said she was asking “the very essence of what took place.” The court responded, “Not so far.”
Finally, Javier said that there was another time that Juan touched him. He knew how to count, but had not counted how many times Javier touched him. The first time it happened, he was six years old. He denied telling a police officer that he was five years old at that time. He then said he did not remember if Juan said anything after closing the door, but he did “remember the second time.” He did not remember that Juan had a knife, or that Juan had threatened to hurt him. He was afraid that he would get into trouble with his parents, because of what happened. The first time was in the bedroom. Another time was in the bathroom. Juan came into the bathroom while he was sitting on the toilet. He did not remember what happened in the bathroom, but he told a police officer what happened there.
At that point, the trial court refused to allow further cross-examination about what Javier had previously told the police. Cross-examination ended with Javier’s saying that Juan touched him “every Saturday and Sunday every week.”
Extensive questioning of Javier then ensued, on redirect and recross-examination.
On redirect examination by the prosecutor, Javier testified that he had never, at any time, heard Juan “say a single word.” Juan had never even said hello to him. He had never heard Juan speak in English. He had heard him speak in Spanish, but he did not recall to whom Juan was speaking. He had never seen Juan angry. He did not recall seeing Juan with a knife, and had not heard him talk about a knife. He had seen a knife in Juan’s house, but that was at the place where the plates were washed, and on the table. He did not remember seeing Juan touch a knife. Juan had never hit or kicked him. He did not remember if Juan ever said anything that made him feel scared.
At that point, Javier’s testimony changed. He said that Juan did say to him, in English, that “he would kill [him].” It happened in the kitchen, in the place where dishes were washed, on one of the days that Juan touched him. Juan said on one or two occasions that he would kill him. Juan had nothing in his hand at that time. He did not remember if Juan asked him to touch his penis, or if he did touch Juan’s penis. He did not remember how many times Juan put his penis into his mouth, but it happened on more than one day. He did not remember lying on the bed or sitting on the toilet in the bathroom.
During recross-examination, defense counsel reminded Javier that he had given conflicting testimony about whether Juan said anything or held a knife. Javier said Juan did have a knife, which he put on the television set. Then he said that Juan was washing the knife in the kitchen. He again said that Juan threatened to kill him, while they were in Juan’s room. He then said he told the police officer what happened in the kitchen.
At that point, the court refused to allow defense counsel to ask what happened in the kitchen. She complained that she had not heard previously about a “kitchen incident.” The court said it was “considering striking the entire redirect and re-cross.” Defense counsel said, “I would ask for that.” The court said it was going to do that. It asked defense counsel if she planned to ask more questions. She responded, “Not if you’re going to strike them.” The prosecutor objected to striking Javier’s negative response to the question, “Did you ask Juan to touch you?” Then she interviewed Juan at his school, for about an hour. During that interview, Juan filled out a Gladys R. questionnaire, waived his Miranda rights, and made incriminating statements. He was arrested and driven to the station, about 15 minutes away. He was booked, made and signed a written statement. Then he was dropped off at his mother’s workplace.
In re Gladys R. (1970) 1 Cal.3d 855 (Gladys R.).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
During the interview at the school, Juan initially denied touching Javier and then admitted that they touched each other. His written, signed statement gave these details: Javier told Juan that his brother had previously touched his penis, and asked Juan to do the same thing, over his clothing. Javier seemed comfortable with the touching, because he kept asking for it. Juan touched Javier because he was curious, and wanted the experience. On one occasion only, Juan touched Javier’s penis, under his clothing, rather than over his clothing. Also, on one occasion only, Javier stroked Juan’s penis, because Juan wanted that experience. The incidents happened at Juan’s house and at Javier’s house. They touched each other about five times. They did nothing more than touch each other’s penises.
On cross-examination, Detective Angel-Rummer testified that Javier told her he was five years old when the offenses occurred.
2. Defense Testimony
Juan’s father testified that he had talked to Juan about touching other people’s penises, but only in the context of possible problems from adults. He did not discuss touching the private parts of children, because “with children, there is innocence involved.”
The defense called Detective Angel-Rummer. Her police report was a summary of what Javier and his mother told her. Javier did not mention the bathroom or a knife to her. The court refused to allow further questioning about what Javier told the detective. Defense counsel renewed the motion to strike Javier’s testimony, because Javier was an incompetent witness, and because his numerous “I don’t remember” responses precluded effective cross-examination, in violation of Juan’s Sixth Amendment right to confrontation. The court denied the motion, ruling that Javier’s inability to answer resulted from the form and tone of defense counsel’s questioning.
Juan then took the witness stand. He first testified that he did not fully understand his rights when he was questioned by the detective. Defense counsel moved to exclude Juan’s statement. The motion was denied.
Juan then admitted that he touched Javier, but denied having a sexual intent and maintained that the only thing that happened was a mutual touching of penises. The first time it happened, Juan was 12 years old, and Javier was in the middle of kindergarten. Juan touched Javier three to five times, over a three month period. At that time, he did not think the touching was wrong. He found out it was wrong when a social worker talked to him, four months later. He told the police the truth. He touched Javier out of curiosity and for experience. It was not a sexual touching, for the purpose of becoming aroused, or to arouse Javier. He never threatened to hurt Javier, and did not have a knife. The first time it happened, he was watching television alone in his room. Javier approached him and said, “Why don’t you touch me and I touch you.”
On cross-examination, Juan said he knew that Javier was in kindergarten when the incidents happened, because Javier stopped visiting him before he was in the first grade. Juan insisted that the touching began as Javier’s idea. His penis was not erect when he touched Javier, and he never put it into Javier’s mouth.
On redirect examination, Juan testified that when he told the police he knew the behavior was wrong, he thought the officers were asking if he knew that at the time of the police interview. However, he recognized that he had answered “yes” when he was asked if he knew it was wrong to touch Javier’s private parts, before the last time he saw him.
3. The Juvenile Court’s Findings
Following arguments of counsel, the court found that Juan knew the wrongfulness of his actions, Javier understood his obligations as a witness, Juan’s statement to the police was voluntary, Juan’s testimony partly corroborated Javier’s testimony, and “at least 3 incidents” had been proven. It sustained the first three counts of section 288(a), and dismissed counts 4 and 5. It then proceeded immediately to disposition. The prosecutor argued for suitable placement. The court followed the probation report’s recommendation of home on probation, with stringent conditions. It set the maximum term of confinement at 12 years. This appeal followed.
DISCUSSION
1. The Gladys R. Issue
Children under the age of 14 are incapable of committing crimes, “in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” (Pen. Code, § 26.) Therefore, “[t]he juvenile court should consider whether a child appreciates the wrongfulness of her conduct in determining whether the child should be declared a ward under section 602 . . . .” (Gladys R., supra, 1 Cal.3d at p. 858.) The substantial evidence test applies to review of this issue. (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)
We find sufficient evidence that Juan knew the wrongfulness of his conduct, from these facts:
(1) The incidents always occurred when the two boys were alone.
(2) Javier discovered that, when he tried to open the door of Juan’s bedroom, the door was locked.
(3) Juan told Detective Angel-Rummer that his father had taught him when he was “around 11 or 12” years old that it was wrong to touch someone else’s private parts, and he knew, before the last time he saw Javier, that it was wrong to touch Javier’s private parts.
2. The Miranda Issue
Juan maintains that he did not knowingly and voluntarily waive his rights under Miranda, supra,384 U.S. 436.
“On appeal, a reviewing court looks at the evidence independently to determine whether a defendant’s confession was voluntary, but will uphold the trial court’s findings of the circumstances surrounding the confession if supported by substantial evidence.” (People v. Lewis (2001) 26 Cal.4th 334, 383.) “With respect to conflicting testimony, however, we accept the version favorable to the People to the extent it is supported by the record.” (In re Aven S. (1991) 1 Cal.App.4th 69, 76.)
Although Detective Angel-Runner testified Juan said he was 16 years old when he was interviewed, he was actually 14 years old at that time.
During the one-hour interview at the school, Juan said he understood his Miranda rights, waived them, and made incriminating statements. The detective made no promises or threats. Juan was arrested, taken to the station, and booked. He made and signed a written statement, in which he said the statement was voluntary. He was then dropped off with his mother. The detective told Juan’s mother before the interview that Juan was going to be interviewed, but did not tell Juan that he could have a parent present during the interview.
Juan testified that he did not really understand his Miranda rights. He said he thought he could have an attorney in a courtroom but not during the interview and wrote that the statement was voluntary because he was told to do that.
We find substantial evidence to support the court’s findings of voluntariness, because Juan indicated at the time of the statement that he understood his rights and was making a voluntary statement, there were no threats or promises, he was in custody for a relatively brief period of time, and “police interviewers are not obliged to advise a juvenile suspect of a right to speak with parents or have them present during questioning.” (In re Aven S., supra, 1 Cal.App.4th at p. 76.)
3. Sufficiency of the Evidence of Specific Intent
“Violation of section 288, subdivision (a) requires the specific intent of arousing the sexual desires of either the perpetrator or the victim.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) Juan maintains that he lacked the requisite mental state, as he acted solely “to satisfy pre-adolescent curiosity.”
When sufficiency of the evidence is raised in a juvenile appeal, the same standards apply that govern review of criminal convictions generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) The appellate court must “review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M., supra,59 Cal.App.4th at p. 298.)
In addition to the age of the defendant, “[c]ircumstances 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.” (In re Jerry M., supra, 59 Cal.App.4th at p. 299.)
We find substantial evidence of the requisite specific intent here, from the combination of these facts: (a) Juan was much older than Javier, (b) the incidents occurred when the boys were alone, (c) Juan locked the door to his room, and (d) Juan admitted that there were multiple incidents involving mutual stroking of penises, even though he denied that the acts occurred with sexual intent. We do not base our finding on certain uncorroborated facts to which Javier testified, such as threats, a knife, and oral copulation, as it is not clear that the trial court found those facts to be true.
4. Speedy Trial
Juan was arrested on September 15, 2005. The wardship petition, which was filed on October 25, 2005, alleged that the acts occurred between January 1, 2003, and July 29, 2004. Juan maintains that there was a violation of due process of law in the delay between the time of the incidents and the time of his arrest or the filing of the petition. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505.) He focuses on how much he grew in size and maturity during the intervening period, and on Javier’s difficulties in remembering what had happened.
Issues involving a violation of the constitutional and statutory rights to speedy trial are deemed waived if they are not asserted in a timely fashion. (People v. Simon (2001) 25 Cal.4th 1082, 1104, citing People v. Wilson (1963) 60 Cal.2d 139, 146-148.) There was no speedy trial objection below. We know little about the delay, other than the statement in the probation report that the police had a backlog in investigating child abuse complaints. We cannot address this issue on the record before us, particularly since it is not clear when the incidents occurred or when Javier first reported them.
5. Javier’s Competency as a Witness
“Capacity to . . . understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion.” (People v. Anderson (2001) 25 Cal.4th 543, 573.) We find no clear abuse of discretion here, in the trial court’s ruling that Javier was competent to testify.
“Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (Evid. Code, § 700; People v. Cudjo (1993) 6 Cal.4th 585, 621-622 [seven-year-old witness was competent to testify].)
Evidence Code section 701 governs disqualification of a witness. It states: “(a) A person is disqualified to be a witness if he or she is: [¶] (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or [¶] (2) Incapable of understanding the duty of a witness to tell the truth. [¶] (b) In any proceeding held outside the presence of a jury, the court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.”
“[I]n practice . . . the California courts have permitted children of very tender years and persons with mental impairment to testify.” (7 Cal. Law Revision Comm. com. (1965) p. 115, reprinted in West’s Ann. Evid. Code (1995 ed.) foll. § 701, p. 284.)
Javier was a seven-year-old child with mental problems, who was asked to describe events that happened when he was five or six years old. He gave appropriate responses to the usual competency questions, when he first took the witness stand. We recognize that, when defense counsel was later permitted to examine Javier on this issue, Javier answered “No” when he was asked, “Do you know the difference between the truth and a lie?” That isolated statement must be considered in the context of everything else that Javier said. He also told defense counsel he knew that “when you do something wrong [¶] . . . [¶] [y]ou get in trouble,” and recalled that he had promised to tell the truth, at the proceedings the previous day. The facts are therefore different from In re Crystal J. (1990) 218 Cal.App.3d 596, 601, on which Juan relies, as the combination of everything that Javier said was sufficient to show that he understood his duty to tell the truth.
We further recognize that Juan was inconsistent about some of the details of the incidents, beginning with defense cross-examination, and extending through redirect and recross-examination. “Inconsistencies in testimony and a failure to remember aspects of the subject of the testimony, however, do not disqualify a witness. [Citation.] They present questions of credibility for resolution by the trier of fact.” (People v. Mincey (1992) 2 Cal.4th 408, 444.) Despite the conflicts as to some facts, Javier consistently testified that he and Juan touched each other’s private parts on at least three occasions, while they were alone together at Juan’s house. Considering everything that Javier said on the witness stand, the trial court did not err in refusing to disqualify Javier as a witness.
6. The Striking of Part of Javier’s Testimony
We asked for supplemental briefing on this issue because it was very unusual that the court ordered the striking of Javier’s redirect and recross-examination. We have concluded that the issue was waived, since defense counsel concurred in the juvenile court’s decision to strike the testimony.
7. Denial of Confrontation
The juvenile court placed limitations on defense counsel’s questions, and became irritated with the form and tone of the questioning. It complained that defense counsel was not asking age-appropriate questions, was repeating herself, and was inquiring about subjects that were “marginally relevant.” It ruled that Javier’s difficulties on the witness stand resulted from defense counsel’s inappropriate manner and tone of asking questions.
Although we cannot hear the tone of defense counsel questions, it does not appear from the record that her questions were inappropriate. Respondent stresses the court’s statutory duty to protect witnesses who are under the age of 14 from questions that are not age-appropriate, that are unnecessarily repetitive, or that can cause “undue harassment or embarrassment.” (Evid. Code, § 765, subd. (b).) In our view, that statutory duty cannot outweigh an accused’s fundamental constitutional right to cross-examine an adverse witness. (In Re Gault (1967) 387 U.S. 1; In re Anthony P. (1985) 167 Cal.App.3d 502, 506-507.) Defense counsel was entitled to cross-examine Javier about the incidents that he had described during direct examination, and to explore weaknesses and inconsistencies in his testimony. She also could properly question Javier about differences between what he said in court and what he had said to the police detective and to personnel at Del Amo Hospital and the Kedrin facility. The restrictions that were placed on cross-examination with prior inconsistent statements are very troubling.
We reject respondent’s contention that defense counsel failed to make an adequate objection below, since there was a specific objection on Sixth Amendment grounds.
However, although we find a violation of Juan’s Sixth Amendment right of cross-examination, we also find that the error was harmless, under Chapman v. California (1966) 386 U.S. 18, 24, in view of what Juan admitted during the police interview and on the witness stand. He told Detective Angel-Rummer that there were about five incidents in which he touched Javier’s penis, including one incident in which he touched Javier’s penis under his clothing, and one incident in which Javier stroked Juan’s penis. On the witness stand, he admitted that there were three to five incidents in which he and Javier touched each other’s penises, even though he denied that he acted with sexual intent or knew at that time that the touching was wrong. Those admissions by Juan convince us that the Sixth Amendment violation was harmless.
8. The Maximum Confinement Time
Since Juan was not removed from the physical custody of his parents, the court erred in setting a maximum term of confinement of 12 years. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574.) The confinement time set by the court has no legal effect. Therefore, we order it stricken.
DISPOSITION
The maximum term of physical confinement set by the court is stricken. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J. BOLAND, J.
Juan himself testified that he was 12 years old at the time, and Javier was in the middle of kindergarten.
Respondent emphasizes Javier’s testimony, indicating that he was then six years old at the time of the incidents. However, Javier told the police detective that he was five years old at that time. The detective testified that she thought five years old was the correct age, “[b]ased on the doctor reports and that he was entering kindergarten.” Javier’s mother testified that Javier was five years old when he was in kindergarten.