Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. SJ07008132
Jenkins, J.
This is an appeal from the judgment in a juvenile delinquency matter. Following a contested hearing, the juvenile court found that minor R.K. had committed a lewd act upon a child in violation of Penal Code section 288, subdivision (a). On appeal, R.K. seeks reversal of the judgment on the ground that there was insufficient evidence of intent to sustain the charge. We affirm.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2007, an amended petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that R.K. had committed lewd acts upon a child under the age of 14 in violation of section 288, subdivision (a) (counts 1 and 4); forcible oral copulation in violation of section 288a, subdivision (c)(2) (count 2); and sexual battery in violation of section 243.4, subdivision (a) (count 3).
The filing of the amended petition stemmed from events occurring on or about August 13, 2007, in the City of San Leandro. In the morning of that day, R.K., age 13, went to the house of his friend and neighbor, Doe, age 6, to play. Despite their age difference, R.K. had been visiting Doe at his home frequently for the past few months because both boys enjoyed skateboarding and other hobbies. Doe’s mother often prepared meals for the boys, and permitted R.K., as well as Doe’s other friends, to spend the night.
On the day in question, Doe’s mother asked R.K. to watch Doe and his two-year old sister for a short while so she could run an errand. After Doe’s mother left, the children watched television in the living room, and then Doe and R.K. went to Doe’s room to play with a skateboard. While there, R.K. asked Doe to orally copulate him, saying “please, please, please.” Doe replied: “No, no, no,” to which R.K. replied: “Yes, yes, yes.” This conversation was repeated several times, at which point R.K. pulled down his pants and underwear.
Doe observed that R.K.’s penis was approximately six inches in length, and that R.K. had developed secondary male characteristics, mainly, “a lot of [pubic] hair.” Eventually, in response to R.K.’s persistence, Doe said “fine” and R.K. placed about half the length of his penis, which Doe described as “bent” and “floppy,” into Doe’s mouth. Doe counted to two in his mind, and then released it. Doe then left his room and spit into the kitchen garbage can to “spit his germs out,” before returning to watch television with his sister and R.K. R.K. told Doe that, if he told his parents what had occurred, R.K. would no longer be his friend. Shortly thereafter, Doe’s mother returned.
Initially, Doe told no one that R.K. had placed his penis in Doe’s mouth because Doe “was still thinking about [whether R.K. should] be my friend or not” . . . “[b]ecause he made me do that.” However, on the night of September 9 during the weekend that Doe moved with his mother into his maternal grandparents’ house, Doe disclosed what had occurred. Specifically, on that night, Doe had gone to church with his grandmother, and had learned a new hymn. Later, when Doe’s grandmother asked that he sing the new hymn to his mother, Doe stated that “I bet God doesn’t love R.K.” When his grandmother denied that was true and asked why Doe believed that, Doe told his mother and grandmother that R.K. had molested him. Doe later testified that he told “everybody in my family” so that R.K. “never did that again.”
The next morning, Doe’s mother and grandmother reported the incident to school authorities and then, on their advice, reported the incident to the police.
When confronted, R.K. denied molesting Doe, and agreed it would be wrong to make a child touch one’s genitals. R.K.’s mother had explained to him the difference between a “good” and “bad” touch, and R.K. had received sex education at school. Further, while R.K. acknowledged being at Doe’s house on the day in question, he claimed Doe’s 15-year-old aunt was present the entire time. R.K. also denied being in Doe’s bedroom that day, and having ever been left alone with Doe and his younger sister in their home.
R.K. acknowledged that, once, he had watched a movie with Doe that showed naked female breasts. According to R.K., Doe had laughed at the scene, stating that he “wish[ed] those girls would suck on my balls” and that he wished to urinate “on their faces.”
Following a contested hearing on October 15, 17, and 18, the juvenile court sustained count one, committing a lewd act upon a child in violation of section 288, subdivision (a), but dismissed the remaining counts. In doing so, the juvenile court noted: “I do not think given [Doe’s] description that the act itself lasted more than a few seconds, and therefore, I think that the germs that he referred to I do not believe were ejaculate or there was arousal or an act of oral copulation in that sense. What did occur I think does still fit the description of what a [section ] 288 sub[division] (a) is intended to be . . . .”
The juvenile court thereafter established wardship over R.K. and, following a dispositional hearing, placed him with his mother and on probation. The juvenile court further ordered R.K. to participate in appropriate counseling. This timely appeal followed.
DISCUSSION
R.K. raises a single argument on appeal – that there was insufficient evidence to prove he had the requisite specific intent to commit a lewd act in violation of section 288, subdivision (a).
“In determining whether there is sufficient evidence to find a defendant guilty of violating section 288, subdivision (a), ‘[w]e 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. [Citations.] The trier of fact, not the appellate court, must be convinced of the defendant’s guilt, and if the circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ (In re Jerry M. [(1997)]59 Cal.App.4th 289, 298.)” (In re Randy S. (1999) 76 Cal.App.4th 400, 404; see also In re Angel R. (2008) 163 Cal.App.4th 905, 913.)
In applying this standard, “[e]ven testimony which is subject to justifiable suspicion does not justify a reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Piccionelli (1959) 175 Cal.App.2d 391, 393.)
With respect to the offense at issue, section 288, subdivision (a) provides in relevant part: “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 . . . .” (§ 288, subd. (a) [emphasis added]; see also People v. Martinez (1995) 11 Cal.4th 434, 452 [“section 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’ ”]; In re Randy S., supra, 76 Cal.App.4th at p. 405.) To be found guilty of this offense, “the trier of fact must find a union of act and sexual intent [citation], and such intent must be inferred from all the circumstances beyond a reasonable doubt.” (In re Randy S., supra, at p. 405.) “Each case involving a lewd act must be decided on its own facts.” (In re Paul C. (1990) 221 Cal.App.3d 43, 54.)
Here, R.K. challenges the finding that he violated section 288, subdivision (a) on the ground that the evidence was insufficient to show that he committed the lewd act on Doe with the intent to arouse or gratify his own sexual desires. In doing so, R.K. relies upon evidence of his young age, the short duration of the act, and his lack of arousal (including evidence of his lack of erection or ejaculation).
There is no allegation in this case that R.K. engaged in the lewd act with the intent to arouse the sexual desires of Doe.
California courts have found the following circumstances relevant in determining whether sufficient evidence exists to prove specific intent to satisfy sexual desires: the charged act, the age of the minor committing the act, the parties’ relationship, other lewd acts, coercion or deceit used to obtain the victim’s cooperation, attempts to avoid detection, offering a reward for cooperation, a stealthy approach to the victim, advising the victim not to disclose the act, physical evidence of sexual arousal and clandestine meetings. (People v. Martinez, supra, 11 Cal.4th at p. 445, In re Paul C., supra, 221 Cal.App.3d at pp. 53-54; In re Jerry M., supra, 59 Cal.App.4th at pp. 299-300.)
Having reviewed this record, we conclude several of these relevant circumstances are present, tending to prove R.K. harbored an intent to satisfy his sexual desires when he committed a lewd act upon Doe. In particular, the evidence proved that R.K. pressured Doe, a 6-year-old boy who, according to Doe’s grandmother, looked upon R.K. as a “hero,” to orally copulate him, and then advised Doe that, if he told his parents about the act, he would lose R.K. as his friend. The evidence further proved that R.K. knew his act was wrong at the time he committed it. This evidence, we conclude, is sufficient to prove the specific intent of sexual arousal. (People v. Martinez, supra, 11 Cal.4th at p. 445, In re Paul C., supra, 221 Cal.App.3d at pp. 53-54; In re Jerry M., supra, 59 Cal.App.4th at pp. 299-300.)
Contrary to R.K.’s claim, our conclusion in this regard is not affected by the juvenile court’s statement that: “I do not believe [there] w[as] ejaculate or there was arousal.” As set forth above, a finding of actual arousal is not required under section 288, subdivision (a); rather, a finding of intent to arouse is required. (§ 288, subd. (a).) Otherwise stated, “[i]t is not necessary to show that the sexual desires of the child, or of both child and defendant, were actually affected, since the gist of the crime is the intent and not its accomplishment. Whether the passions were actually aroused is immaterial, except as evidence of the intent with which the acts were committed.” (People v. Piccionelli, supra, 175 Cal.App.2d at pp. 393-394 [emphasis added].) As such, the fact that R.K.’s passions may have been aroused is evidence supporting the juvenile court’s ultimate finding of intent, regardless of whether there was “ejaculate or . . . arousal.”
True, as R.K. points out, “the younger the minor the less likely his acts are with the specific intent of sexual arousal. At some age younger than 14 years . . . the minor cannot as a matter of law have the specific intent of sexual arousal.” (In re Jerry M., supra, 59 Cal.App.4th at p. 300.) Here, however, R.K. had reached the age of 13 and had developed secondary male characteristics, including, according to Doe, “a lot of [pubic] hair.” As such, we decline to conclude as a matter of law that R.K. lacked the capacity to possess the specific intent to sexually arouse himself. (In re Randy S., supra, 76 Cal.App.4th at p. 404 [affirming the trial court’s finding of specific intent to sexually arouse in a case involving an 11-year-old minor].)
Accordingly, on this record, we conclude there was sufficient evidence to prove that R.K. possessed the specific intent required to support a violation under section 288, subdivision (a). As such, the judgment must be affirmed.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.