Opinion
C042242.
10-7-2003
In re LAWRENCE F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE F., Defendant and Appellant.
Lawrence F. appeals from orders of the juvenile court finding that he falsely imprisoned and sexually battered another minor, declaring him a ward of the court pursuant to Welfare and Institutions Code section 602, and placing him on probation in the care and custody of his mother. The minor contends there is insufficient evidence to support the finding of sexual battery. He also challenges one of his conditions of probation. We reduce the sexual battery conviction to a lesser offense and remand for a new dispositional hearing.
FACTS AND PROCEDURAL HISTORY
On February 21, 2002, Kennedy High School freshman Monica F. encountered the minor and Francisco C. in a hallway of the school, while walking late to her sixth-period class. The two boys started walking beside her toward her next classroom. Francisco asked if he could see her binder. She handed it to him, and "he ran into the boys bathroom with it."
Monica opened the bathroom door, telling Francisco to return the binder. The minor, who was behind her, kicked her right heel into the door and pushed her into the bathroom. She slipped and fell on her knees to the floor, got up, and walked around Francisco looking between the stalls for her binder. Francisco then walked very close to her and asked if she could "give him a hug." He moved closer, backing Monica to the wall, placed his hands on her wrists and told her to kiss him. Monica pushed him away.
The minor, who was standing by a urinal on the opposite wall, said, "Wait, I want some, too." Monica grabbed her binder from the minor and started to leave the bathroom. The minor ran up behind her, reached his arms underneath her armpits, grabbed her breasts with both hands and squeezed. As Monica struggled to get free, Francisco came over and unzipped her pants. When the minor and Francisco stopped suddenly, Monica retrieved her binder and ran out of the bathroom.
The minor was charged with false imprisonment (Pen. Code, § 236) and sexual battery (Pen. Code, § 243.4, subd. (a); further undesignated statutory references are to the Penal Code). After a contested jurisdictional hearing, the juvenile court found the two counts true but deemed them to be misdemeanors. The minor was declared a ward of the court and placed on probation, committed to the care and custody of his mother.
DISCUSSION
I
Sufficiency of the Evidence
The minor contends there is insufficient evidence to support his conviction for sexual battery. Specifically, he asserts that there is no evidence he touched the victims skin, as required by section 243.4, subdivision (a). We agree.
Section 243.4 proscribes various forms of sexual battery. The more serious forms are defined in subdivisions (a), (b), (c) and (d), and are "wobblers", punishable either as misdemeanors or felonies. (See § 17; In re Jovan B. (1993) 6 Cal.4th 801, 808, fn. 2.)
Section 243.4, subdivision (a) reads: "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. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($ 2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars."
Conviction under section 243.4, subdivision (a) requires: (1) a touching of an intimate part of the victim (2) against the victims will (3) while the victim is unlawfully restrained (4) for the purpose of sexual arousal, sexual gratification, or sexual abuse. Section 243.4, subdivision (f) defines "touching," as used in subdivisions (a) through (d), to mean "physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense." (§ 243.4, subd. (f), italics added.) This requires direct contact with the skin of an intimate part of the victim. (People v. Elam (2001) 91 Cal.App.4th 298, 310.)
The minor contends the court erred in finding a violation of section 243.4, subdivision (a), because there is no evidence he touched the victims skin. In reviewing the sufficiency of the evidence, we presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence, including reasonable inferences based on the evidence but excluding inferences based on speculation or conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) The standard for reviewing the sufficiency of the evidence from a juvenile adjudication is the same as that for an adult conviction. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
Our review of the record reveals no evidence that the minor touched the skin of an intimate part of the victim. The victim testified the minor grabbed her from behind and touched her breast area. According to the police report, she was wearing a gray sweater and a green turtleneck at the time of the assault. None of the testimony or other evidence provided by the witnesses described the victim as having been unclothed around her breasts at the time of the assault. There was also no evidence that the touching was underneath the victims clothing. Nor was there any evidence from which the court could have inferred that the minor otherwise came in contact with the victims skin.
While acknowledging there is no evidence of direct skin contact during the reported incident, the People argue that such contact is not necessary for a conviction of misdemeanor sexual battery. However, this argument presumes the minor was found to have violated section 243.4, subdivision (e). Subdivision (e) sets forth a lesser form of sexual battery punishable as a misdemeanor only. A violation of this subdivision does not require a touching of the skin (§ 243.4, subd. (e)(2)) or that the victim be unlawfully restrained (§ 243.4, subd. (e)(1)).
The Peoples presumption is not warranted. Following the close of the Peoples case, the minor moved to have the section 243.4, subdivision (a) charge dismissed for lack of evidence of a touching of the victims skin. In the alternative, the minor sought reduction of the charge to a misdemeanor. The court refused to dismiss the charge but deferred consideration of the reduction in order to determine if the law required contact with the skin of the victim. Later, the court sustained the charge but deemed it a misdemeanor.
From this record, we cannot say that the court ruled to reduce the charge under section 243.4, subdivision (a) to a charge under section 243.4, subdivision (e). Rather, a reasonable reading of the record suggests that the court deemed the section 243.4, subdivision (a) offense to be a misdemeanor. However, whether designated a felony or a misdemeanor, a violation of section 243.4, subdivision (a) requires proof of contact with the victims skin. (People v. Elam, supra, 91 Cal.App.4th at pp. 309-310.) There is no evidence of such contact in this record.
Nevertheless, it is undisputed that there is sufficient evidence to support a finding the minor violated section 243.4, subdivision (e), which is a lesser included offense of section 243.4, subdivision (a). Therefore, we exercise our authority under section 1260 to reduce the finding against the minor to a violation of section 243.4, subdivision (e). Having done so, we remand the matter to the juvenile court for a new disposition.
II
Probation Condition
The minor contends that a condition of probation imposed by the juvenile court is unconstitutionally vague and overbroad and therefore should be modified. The condition at issue reads: "Not associate with known or reputed users or sellers of marijuana, dangerous drugs or narcotics, or be in places where narcotics and/or dangerous drugs are present." The minor argues that this prohibition is an impingement of personal liberty protected by the due process clause of the Fourteenth Amendment, because it prohibits the minor from being in a location even if he is unaware there are drugs present. The People counter that the minor waived this claim by failing to object to the probation condition in the juvenile court.
We need not decide if the minor has waived his challenge to the probation condition. In light of our determination that the finding of a violation of section 243.4, subdivision (a) must be reduced to a violation of section 243.4, subdivision (e), and the matter remanded for a new dispositional hearing, the minor will have an opportunity to raise his objections if the court decides to impose the same probation condition.
DISPOSITION
The jurisdictional order is modified to reduce the finding of a violation of section 243.4, subdivision (a) to a violation of section 243.4, subdivision (e). The order is otherwise affirmed. The dispositional order is vacated, and the matter is remanded to the juvenile court for a new dispositional hearing.
We concur: NICHOLSON, Acting P.J. and RAYE, J.