Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. SJ06003443
GEMELLO, J.
Defendant Kevin P. contends that the juvenile court erred in finding that he committed a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)) because the court’s comments show that the court had a reasonable doubt regarding whether defendant violated the statute. We affirm.
Procedural Background
The Alameda County District Attorney filed an amended Welfare and Institutions Code section 602 petition alleging that defendant committed a forcible lewd act on a child under the age of 14 years (Pen. Code § 288, subd. (b)(1)). Following a contested jurisdictional hearing, the juvenile court found that defendant had committed the lesser offense of a non-forcible lewd act on a child (Pen. Code, § 288, subd. (a)). The court adjudged defendant a ward of the court, ordered him to reside in his mother’s home and undergo weekly outpatient sex offender treatment, and ordered his family to undergo family counseling.
Factual Background
As defendant does not contend that there is no substantial evidence to support the juvenile court jurisdictional finding, we include only a brief summary of the evidence before the court.
On August 10, 2005, the victim, T.B., was almost ten years old. She had spent the night at her great grandmother’s home, as had defendant. When T.B. awoke, she watched television from the bed in the guest bedroom; at some point, defendant got on the other end of the bed. T.B. lay on her right side, still dressed in her pajamas.
T.B. testified that defendant moved closer to her and began touching her over her pajamas. At some point she realized that her pajama pants had been pulled down, exposing her bottom. The defendant touched her butt with his hand and penis. Eventually, T.B.’s father entered the room and told her to go to the bathroom and get dressed. She told him that nothing had happened.
T.B’s father, Edwin B., testified that he saw her lying on her side and defendant was behind her wearing boxer shorts and a T-shirt. Defendant’s hands were in front of his boxers where his penis would be. T.B.’s pajamas were sagging down such that part of her bottom was exposed. Edwin “put two and two together” and said, “What the hell is going on?” Defendant left the room without saying anything. Later, Edwin asked defendant what he was thinking. Defendant just shook his head as if to say, “I don’t know.” The first few times Edwin asked T.B. about the incident, she kept saying that nothing happened. Eventually, T.B. told him that defendant had put his penis in her “two to four inches.”
Betty B., T.B.’s paternal great grandmother, testified that she was in the living room the morning of the incident. After Edwin came out of the bedroom he told Betty, “I caught them little devils in there horsing around, messing around.” When Betty asked T.B. what was going on in the bedroom, T.B. said, “just messing around, horsing around.” During the remainder of the morning, T.B. did not say or do anything that gave Betty the impression that she had been molested.
Discussion
Juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. (In re Winship (1970) 397 U.S. 358, 365.) Defendant contends the juvenile court jurisdictional finding should be reversed because the court’s comments demonstrate that it had reasonable doubt whether defendant committed a lewd act on the victim. He particularly emphasizes the court’s comment that defendant’s conduct “could have been something as mild and relatively—I am not going to use the word ‘innocuous,’ but relatively as nonserious as some fooling around.”
We presume that the juvenile court knew and correctly applied the law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914.) It is defendant’s burden to rebut that presumption by an affirmative showing of error. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Where a claim of error is based on comments made by a lower court, those comments must “unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1440.) We do not comport undue significance to ambiguous stray comments by the lower court where the record as a whole does not show error. “[W]here a judge’s statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his determination.” (People v. Cartier (1960) 54 Cal.2d 300, 313.)
Considering the entirety of the juvenile court’s comments, it is clear that the court had no reasonable doubt that a lewd touching occurred. The court’s first finding was that the People had failed to prove that defendant used force in molesting T.B., as charged in the amended petition. The court continued, “That leaves then the question of whether it’s appropriate to make a finding that something less serious happened; namely, lewd conduct without the use of force, violence, or threat of violence or duress. And on that, I feel that the petitioner has met the burden of proof. I’m convinced that there was some sort of sexual activity or conduct that was going on, some sort of sexual contact between Kevin and the victim. Edwin [B.] came in and saw something that certainly, however reluctant he was to talk about it, and I must say he was quite reluctant on the stand, something that made him think that there was something more than just physical horseplay going on.[¶] It is clear that [T.B.] is under the age of fourteen and I think that it is clear from the facts and from reasonable inferences that I can draw from the facts that the minor in this case was engaging in that conduct with the intent of gratifying himself or the child.[¶] It could have been something as mild and relatively—I am not going to use the word “innocuous,” but relatively as non-serious as some fooling around. Kids do this. Or it could have been way more serious, in which this ten-year-old, nine-year-old had her pants pulled down and was being handled or treated in a way that was against her will and violative of her rights as a person and her own well being.[¶] I don’t know. None of us knows what really went on in that room. All I can do is draw the inferences that I feel are compelled by the facts, and based on those facts and the inferences that I do draw from them, I find as true the allegation in the new petition before it was amended that the minor violated Section 288(a) of the Penal Code, and based on that finding, we will need to set a hearing for dispositional orders and alternatives.”
“[S]ection 288 is violated by ‘any touching’ of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.” (People v. Martinez (1995) 11 Cal.4th 434, 452.) Although the court expressed uncertainty about the exact nature of the lewd touching that occurred and whether that touching was forcible, the court never expressed any doubt as to whether there was a lewd touching of some sort. In the portion of the transcript quoted above the court explains that, although the evidence shows that sexual contact occurred, it is unclear whether the contact was a relatively less serious consensual touching or whether it was a quite serious forcible touching. Because of the court’s uncertainty as to the nature of the sexual contact, it sustained only the lesser offense of a non-forcible lewd act. Defendant’s suggestion that the court may have believed the sexual activity involved was masturbation not involving a lewd touch of the victim is unreasonable. Defendant does not quote any comments by the court suggesting that it believed that the sexual conduct may have been limited to masturbation by defendant.
Penal Code section 288, subdivision (a) provides: “Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony ....”
We further note that the applicability of the beyond a reasonable doubt standard was a strong theme in defendant’s argument. No comment by the court demonstrates any misunderstanding of that standard.
Because it is clear from the totality of the record that the court had no reasonable doubt that lewd touching of the victim occurred, defendant fails to meet his burden of showing error. (Ross v. Superior Court, supra, 19 Cal.3d at p. 915; People v. Mack, supra, 178 Cal.App.3d at p. 1032.)
Disposition
The juvenile court orders are affirmed.
We concur. SIMONS, Acting P.J., NEEDHAM, J.