Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. KJ29064. Daniel S. Lopez, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Appellant Luis F. appeals from dispositional orders of the juvenile court made pursuant to Welfare and Institutions Code section 602 after the juvenile court found true the allegation that appellant committed a lewd act upon a child in violation of Penal Code section 288, subdivision (a). We affirm with modifications and directions.
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Appellant contends that: (1) the People failed to prove the corpus delicti through evidence independent of appellant’s extrajudicial statements; (2) the juvenile court abused its discretion in admitting the opinion testimony of a forensic nurse; and (3) the juvenile court must modify probation conditions Nos. 18 and 21.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the following.
On October 30, 2006, after receiving a report of possible sexual abuse of a two-year-old child, a social worker for the Los Angeles County Department of Children and Family Services, Lorena Garcia, interviewed appellant, appellant’s parents, and another family who lived with appellant’s family in an apartment. The other family had a two-year-old daughter named Sylvia. Fourteen-year-old appellant told Garcia that he had touched his cousin Sylvia in her private areas, and put his fingers in her vagina.
That same day, in response to Garcia’s call, Los Angeles Deputy Sheriffs Cong Ha and Alfredo Gomez visited the families. Garcia told the deputies that appellant had admitted touching Sylvia’s vagina. Deputy Ha read appellant his rights under Miranda v. Arizona (1966) 384 U.S. 436, then asked appellant if he knew why the deputies had been called to his home. Appellant told the deputy that he had touched Sylvia below her stomach, and then specified that he had touched her vagina. He said he was curious and wanted to experiment. Appellant also admitted that he had an erection when he touched Sylvia. Appellant’s father told Deputy Ha that appellant had admitted to him that he had touched Sylvia’s vagina.
The deputies then contacted forensic nurse Dawn Henry. She told them that because the alleged sexual assault had occurred more than 72 hours prior, no biological evidence could be obtained from an examination, and the examination of Sylvia could be conducted the next day. Nurse Henry examined Sylvia the next day and observed that one area of her genitalia was quite red, and that there were some tiny faint red spots, called petechiae, in another area. While redness can occur from a variety of sources, the petechiae indicates trauma. Nurse Henry concluded that the redness and petechiae were consistent with touching and reported that sexual abuse was highly suspect.
At the adjudication, appellant’s father denied that appellant had told him he had touched Sylvia inappropriately. Rather, he testified that appellant had only told him that he had kissed Sylvia.
DISCUSSION
I. The People proved the corpus delicti through evidence independent of appellant’s extrajudicial statements
Appellant contends that under the corpus delicti rule, the People were required to, but failed to show evidence that appellant touched Sylvia with the intent to sexually arouse himself or the child, independent of appellant’s extrajudicial statements.
In a criminal trial, the prosecution must prove that (1) a crime actually occurred, and (2) the accused was the perpetrator. (People v. Alvarez (2002) 27 Cal.4th 1161, 1164–1165 (Alvarez).) The corpus delicti rule concerns the first factor and not the second. According to the corpus delicti rule, the fact that a crime occurred cannot be proved by exclusive reliance on the defendant’s extrajudicial statements. (Id. at pp. 1168–1169.) The independent proof may be circumstantial and need not be beyond a reasonable doubt. It is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. “There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citation.]” (Id. at p. 1171.)
The corpus delicti of committing a lewd act upon a child in violation of section 288, subdivision (a) consists of the statutory elements that an underage child was physically touched, by means of force, violence, duress, or menace, for the present and immediate purpose of sexually arousing or gratifying the toucher or the victim. (§ 288, subds. (a), (b); Alvarez, supra, 27 Cal.4th at p. 1171.)
In Alvarez, the defendant was charged with a violation of section 288, subdivision (a). Our Supreme Court held that the evidence was sufficient to permit an inference of criminal conduct under the corpus delicti rule where the defendant had entered the victim’s bedroom surreptitiously after bedtime; the victim felt a light touch under her T-shirt; and the defendant put his hand over her mouth. The defendant’s post-attack behavior of returning to the apartment two days later and jiggling the handle also provided circumstantial evidence of his lewd intent at the time he assaulted the victim. The court held that the jury could infer that his return to the victim’s home indicated his obsessive, and likely sexual, interest in the victim. (Alvarez, supra, 27 Cal.4th at p. 1182.)
Appellant contends that the People did not provide evidence that appellant touched Sylvia with the intent to sexually arouse himself or Sylvia, independent of his extrajudicial statements. He cites cases where intent was shown because the defendants broke into residences to commit their acts or had previously been charged with sexual contact involving other victims. But, the People need only show a slight or prima facie showing of the injury caused by a criminal agency. (Alvarez, supra, 27 Cal.4th at p. 1171.) Indeed, “it should be noted that the connection of the defendant, or any other person, with a crime, is no part of the corpus delicti. Frequently the corpus delicti of an offense is evident even though the culprit is never apprehended, or is unknown.” (People v. Mohr (1938) 24 Cal.App.2d 580, 582–583 (Mohr).) In Mohr, the mother examined her child, finding bruises on her outer thighs and a scratch on her genital area, which had not existed before the child had been lured away by the defendant. The court concluded that the mother’s testimony in conjunction with testimony that the defendant had taken the child in his car was sufficient to establish the corpus delicti of violation of section 288. (Ibid.)
Similarly, circumstantial evidence indicated that a lewd act had been performed on Sylvia. Her genitalia was “quite red,” and petechiae, or tiny red spots were present in one area, indicating trauma. Nurse Henry testified that the findings were consistent with a touching of Sylvia’s genitalia, and that she had reported that sexual abuse was highly suspected. Although nurse Henry also testified that the marks could have been caused by something other than touching, the corpus delicti rule requires only that the criminal inference be reasonable—even if there is a noncriminal plausible inference. Moreover, examination of Sylvia revealed that there was evidence of physical touching only on her genitalia, and nowhere else on her body. Therefore, the juvenile court could infer that Sylvia was touched by someone for the purpose of sexual gratification. Appellant’s references to cases in which convictions have been obtained for violation of section 288, subdivision (a) upon a manifestation of the defendant’s lustful intent do not convince us that People did not establish a corpus delicti. Rather, those cases refer to the proof required of the People to establish the defendant’s intent to sexually gratify himself, not to the People’s burden of establishing corpus delicti.
We conclude that the People proved the corpus delicti through evidence independent of appellant’s extrajudicial statements.
II. The juvenile court did not abuse its discretion in admitting the expert testimony of nurse Henry
Appellant contends that nurse Henry’s testimony lacked foundation and should not have been admitted because there was no showing that she had any training regarding the genesis of physical injury to a sexual organ. We disagree.
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert witness may testify to a subject that is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) A trial court’s determination regarding the qualification of an expert is governed by the deferential abuse of discretion standard and will not be disturbed absent a showing of manifest abuse. (People v. Panah (2005) 35 Cal.4th 395, 478.) The trial court has committed error only if the evidence shows that the witness clearly lacks qualification as an expert. (Ibid.)
Nurse Henry testified that she had been a registered nurse and forensic examiner for 12 years. She started her forensic training in 1995. Her training involved 40 hours of didactic training and a preceptorship involving at least eight adults and eight children. She completed a course in Los Angeles as well as in Texas. In the past 12 years she had conducted over 1,000 sexual abuse or sexual assault examinations. We conclude that the juvenile court did not abuse its discretion in finding that nurse Henry had sufficient experience in sexual assaults examinations to render an opinion that Sylvia had been the victim of sexual assault.
We are not convinced otherwise by appellant’s contentions that there was no foundation that nurse Henry had any special knowledge regarding the causes of physical injury to a sexual organ and that absent scientific studies correlating physical symptoms with the conclusion that they were inflicted by sexual assault, no witness should be allowed to testify that an injury is consistent with sexual touching or abuse. Rather, we note that “an expert medical witness is qualified ‘to give an opinion of the cause of a particular injury on the basis of the expert’s deduction from the appearance of the injury itself.’” (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293 [the diagnosis of sexual abuse or rape from the observation of certain marks or scarring is nothing new and doctor’s opinion based entirely upon visual examination and the observations she made was proper]; People v. Rance (1980) 106 Cal.App.3d 245, 254–255 [trial court could reasonably conclude that a registered nurse who worked in emergency room had sufficient experience in observing wounds to render an opinion that violence had been inflicted upon the victim].) Nor are we persuaded that nurse Henry improperly and impliedly opined that appellant was guilty. Instead, nurse Henry merely testified about the results of her examination, as is proper under People v. Mendibles, supra, 199 Cal.App.3d at page 1293.
The juvenile court did not abuse its discretion in admitting nurse Henry’s testimony.
III. Probation conditions Nos. 18 and 21 shall be modified
A discrepancy between the judgment as orally pronounced and as entered in the minutes is a clerical error which may be corrected on appeal. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The People concede that probation condition No. 21 as reflected in the minute order failed to reference the juvenile court’s orally pronounced knowledge requirement or prescription drug qualification. Accordingly, probation condition No. 21 shall be corrected to require appellant: “not to use or possess any narcotics unless you have a valid prescription” and to “stay away . . . from people that you know are involved in illicit drug business.”
The People also concede that probation condition No. 18 is unconstitutionally overbroad, citing In re Sheena K. (2007) 40 Cal.4th 875, 891–892. In that case, our Supreme Court held that a probation requirement that a minor not “associate with anyone disapproved of by probation” did not impose a necessary knowledge requirement. (Ibid.) The People concede that probation condition No. 18 should be modified to read: “Do not associate with children known to you to be under 14 years of age, except in the presence of a responsible adult,” instead of: “Do not associate with children under 14 years except in presence of a responsible adult.”
DISPOSITION
Probation condition No. 21 shall be corrected to require appellant: “Not to use or possess any narcotics unless you have a valid prescription and to stay away from people that you know are involved in illicit drug business.” Probation condition No. 18 shall be modified to read: “Do not associate with children known to you to be under 14 years of age, except in the presence of a responsible adult.” In all other respects, the orders are affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.