Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. JUV81777 Robert J. McIntyre, Judge.
Dale Rasmussen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
McKinster, J.
This is an appeal by R.R., defendant and appellant (hereafter appellant), from the trial court’s order vacating a 1999 order sealing his juvenile court record.
The pertinent factual and procedural details are not in dispute. On December 10, 1993, the District Attorney of Riverside County filed a Welfare and Institutions Code section 602 petition that alleged appellant, who was then 16 years old, had violated Penal Code section 286, subdivision (c) by committing three acts of sodomy with a child under the age of 14 and more than 10 years younger than appellant (pars. 13), and that appellant had violated Penal Code section 288, subdivision (a) by committing two acts of child molestation with a child under the age of 14 and more than 10 years younger than appellant (pars. 4 & 5). In January 1994, appellant admitted one count of attempted sodomy in violation of Penal Code section 286, subdivision (c) and the remaining allegations were dismissed. Appellant’s wardship terminated on June 27, 1995.
In 1999, appellant filed a petition under Welfare and Institutions Code sections 389 and 781 to seal his juvenile records. The Riverside County District Attorney’s Office did not file any opposition and the trial court granted that petition. On June 24, 2008, the District Attorney of Lassen County (hereafter district attorney) filed a petition for disclosure of appellant’s juvenile court records. In that petition, the district attorney alleged that appellant had been “convicted of [violating Penal Code section] 288(a) and sent to State Prison, as an adult. He parolled, [sic] violated, went back to prison and is again eligible for parole. He was evaluated and found to be a high-risk person likely to reoffend. He is currently pending trial as a Sexually Violent Predator in Lassen County. He has denied a juvenile conviction prior to his most recent adult conviction.” The trial court granted the petition to disclose appellant’s juvenile record on June 20, 2008, without conducting a hearing, and apparently unaware that the records had been sealed in 1999. Appellant filed an appeal from that disclosure order, but that appeal was dismissed as untimely.
Appellant then filed a petition for writ of mandate (R.R. v. Superior Court (E047430, Feb. 27, 2009) [nonpub. opn.]) challenging disclosure of his juvenile record on the ground that those records were sealed. In response, the district attorney argued that appellant’s juvenile record should not have been sealed because appellant committed an offense listed in Welfare and Institutions Code section 707, subdivision (b). Under Welfare and Institutions Code section 781, subdivision (a), juvenile records that involve offenses listed in Welfare and Institutions Code section 707, subdivision (b) cannot be sealed. According to the district attorney, appellant had admitted a violation of Penal Code section 286, subdivision (c), which is a crime that comes within Welfare and Institutions Code section 707, subdivision (b). Therefore the district attorney contended that appellant’s juvenile record should not have been sealed.
We issued a peremptory writ in the first instance directing the juvenile court “to set aside its order ordering disclosure of the petitioner’s records and to reconsider the matter. On reconsideration, the court shall allow the People to vacate the 1999 order sealing the records by showing petitioner’s crimes were actually qualifying offenses under section 707, subdivision (b).” (R.R. v. Superior Court, supra, E047430 [at p. 4].)
On remand, and after two hearings at which appellant was represented by counsel, the juvenile court found that he had committed a crime listed in Welfare and Institutions Code section 707, subdivision (b), namely a violation of Penal Code section 286, by force, and therefore his juvenile records had improperly been sealed in 1999. The court ordered the records unsealed. Appellant appeals from that order.
DISCUSSION
The juvenile court, as previously noted, found that appellant had committed a violation of Penal Code section 286, and as a result appellant’s juvenile record had been improperly sealed in 1999. In making that finding the court stated, “Okay. I’ve gone over this, and I do wish we had complete-more complete records. Based on the records here, though, that we do have, including the description of the offense, given the disparity in ages of the minors, the Court does believe that this offense falls within 707(b) and that Judge Warren improperly sealed the records. [¶] I do believe that one can imply the force even though it’s somewhat-it says, oh, I didn’t object. You are dealing with a five-year-old victim in this case. And I think under the circumstances-with a larger brother, under the circumstances that this occurred, that it does fall within 286 of the Penal Code, and there is sufficient force being used given the acts.”
We review the trial court’s finding that appellant committed an offense that comes within Welfare and Institutions Code section 707, subdivision (b) under the substantial evidence test. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1065.) “In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.... The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is “evidence which is reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Penal Code section 286 defines sodomy as “sexual conduct consisting of contact between the penis of one person and the anus of another person.” (Pen. Code, § 286, subd. (a).) As set out above, in 1994 appellant admitted that he attempted to commit a violation of Penal Code section 286, subdivision (c), which as alleged in the delinquency petition is sodomy committed with a person under the age of 14 and more than 10 years younger than the perpetrator. The Attorney General concedes that Welfare and Institutions Code section 707, subdivision (b) does not include attempted crimes other than attempted murder which is expressly listed as an included offense. (See Welf. & Inst. Code, § 707, subd. (b)(12).) Therefore, evidence that appellant admitted an attempt to commit a violation of Penal Code section 286, subdivision (c) does not support the juvenile court’s finding that appellant committed an offense that comes within Welfare and Institutions Code section 707, subdivision (b).
The only other evidence contained in the record on appeal is the probation officer’s report dated February 24, 1999, submitted in support of appellant’s petition to seal his juvenile court record, a copy of which is attached as an exhibit to appellant’s petition for writ of mandate in case No. E047430. That report states, in pertinent part, “The allegation which the petitioner was brought to the attention of the court, 288(c) PC (Unlawful Act of Sodomy with a Person Under the Age of 14 Years Old), a felony, is a serious matter. The petitioner admitted that over a two-month period, he, without the use of force, molested his 5-year-old foster brother, by having the 5-year-old orally copulate him; he already copulated the foster brother; and he attempted anal sex with the victim.” Nothing in the probation officer’s report supports a finding that appellant did anything more than attempt anal sex with his foster brother. Consequently, we must conclude the evidence presented in the trial court does not support a finding that appellant violated Penal Code section 286, subdivision (c).
The district attorney referred to a January 28, 1994, probation officer’s report in a memorandum filed in support of unsealing appellant’s record. That 1994 report is not included in the record on appeal in this case, or as an exhibit to appellant’s writ petition in case No. E047430. The Attorney General purports to quote the probation officer’s report in his respondent’s brief, but the citation is to the district attorney’s previously mentioned memorandum. As described by the district attorney and quoted by the Attorney General, the 1994 probation officer’s report, like the 1999 report appended to appellant’s writ petition, stated that appellant “would perform oral copulation and attempt anal sex with his five year old foster brother during times he thought he would not get caught.”
Contrary to the probation officer’s report, Penal Code section 288 addresses lewd and lascivious conduct, not sodomy. Penal Code section 286, quoted above, is the section that pertains to sodomy. As previously noted, appellant admitted he committed an attempted violation of Penal Code section 286, subdivision (c).
The Attorney General argues that although an attempt to violate Penal Code section 286, subdivision (c) is not an offense listed in Welfare and Institutions Code section 707, subdivision (b) and therefore does not preclude sealing appellant’s juvenile record, the juvenile court could also consider evidence pertinent to the dismissed allegations which in this case support a finding that appellant committed oral copulation by force or duress, an offense that is included in Welfare and Institutions Code section 707, subdivision (b)(7). The dismissed counts in this case alleged violations of Penal Code section 288, subdivision (a), lewd and lascivious conduct with a child under the age of 14.
Before addressing the merit of the Attorney General’s claim, we first note that in issuing the peremptory writ and remanding this matter to the juvenile court to determine if appellant had committed a crime listed in Welfare and Institutions Code section 707, subdivision (b), we relied on the representation that appellant had “actually admitted a violation of Penal Code section 286, subdivision (c), ” which is an offense that would preclude sealing his juvenile record. (In re R.R., supra, E047430 [at p. 4].) The fact that appellant admitted only an attempt to commit that offense was not made clear in the writ proceeding. Consequently, in issuing the writ, and remanding the matter to the trial court we did not anticipate that the juvenile court would consider facts of offenses that had been dismissed and based on those facts would make findings on issues that had not been alleged in the delinquency petition.
To support the assertion that a juvenile court may consider facts of dismissed counts, the Attorney General relies on In re James H. (2007) 154 Cal.App.4th 1078 (James H.), in which the appellate court held that the juvenile court had improperly released the appellant’s sealed juvenile records to the Board of Parole Hearings. As we noted in our opinion in the writ proceeding, the court in James H. “skirted over” whether the records had improperly been sealed in the first place. In connection with that issue, the James H. court noted, “Case authority supports the People’s general proposition that a court may, under certain circumstances, look beyond the bare elements of a juvenile adjudication to determine whether it is based on conduct qualifying under section 707, subdivision (b).” (Id. at pp. 1086-1087.) The James H. court simply did not address the issue.
The Attorney General also cites In re Gary B. (1998) 61 Cal.App.4th 844 (Gary B.) for the proposition that in making a determination under Welfare and Institutions Code section 707, subdivision (b), the court may rely on facts either admitted by the minor or which the court finds true by a preponderance of evidence. In Gary B, . the trial court considered the fact that the juvenile had used a gun as alleged in an enhancement that had been dismissed as part of a plea agreement with the district attorney, to find that the robbery the juvenile admitted as part of that plea agreement was within Welfare and Institutions Code section 707, subdivision (b). On appeal, Division One of this court noted that the issue of whether the trial court could consider dismissed allegations appeared to be one of first impression. “But the law is replete with examples of courts looking beyond the pleadings to consider circumstances of an offense for purposes of disposition-even when those circumstances relate to a count or an enhancement dismissed, as here, pursuant to a bargained plea.” (Gary B., at p. 849.) Relying in part on People v. Harvey (1979) 25 Cal.3d 754, the Gary B. court held that the evidence considered by the juvenile court in making a determination under Welfare and Institutions Code section 707, subdivision (b) “may consist of events the probation officer’s social study and other relevant evidence reveals are transactionally related to the offenses upon which the petition is sustained.” (Gary B., at pp. 850-851.) In Gary B.’s case, “[t]he firearm use was described in the probation officer’s report, conceded by Gary in the written factual basis for his admission, and transactionally related to the robbery charge [the minor admitted].” (Id. at p. 851, fn. omitted.)
In Gary B., the Welfare and Institutions Code section 707, subdivision (b) finding was required under then rule 1494(c) of the California Rules of Court when the court committed a juvenile to the California Youth Authority. “The consequences of this specification can be significant. If the offense is a section 707, subdivision (b) offense, the California Youth Authority maintains jurisdiction over the minor for two years or until the minor reaches the age of twenty-five, whichever occurs later. [Citation.] If, on the other hand, the offense is not on the list, the minor must be discharged after either two years or upon turning twenty-one, whichever is later. [Citation.]” (Gary B., supra, 61 Cal.App.4th at p. 846.)
Although the evidence in this case is thin, we nevertheless conclude that it supports a finding that the act or acts of oral copulation were transactionally related to the offense of attempted sodomy, the offense appellant admitted. As previously noted, the 1999 probation officer’s report submitted in connection with appellant’s application to seal his juvenile court record stated, “The petitioner admitted that over a two-month period, he, without the use of force, molested his 5-year-old foster brother, by having the 5-year-old orally copulate him; he already copulated the foster brother; and he attempted anal sex with the victim.” From that evidence we can reasonably infer that appellant’s various acts were connected to each other and therefore transactionally related.
In order to come within Welfare and Institutions Code section 707, subdivision (b), the act of oral copulation had to be accomplished by “force, violence, duress, menace, or threat of great bodily harm.” (Welf. & Inst. Code, § 707, subd. (b)(7).) Force, duress, and menace may be implied from circumstantial evidence, such as the age of the victim compared with that of the perpetrator, the relative sizes of the victim and the perpetrator, and the relationship between the victim and the perpetrator. (See People v. Cochran (2002) 103 Cal.App.4th 8, 13-14; see also People v. Pitmon (1985) 170 Cal.App.3d 38, 50-52.) In People v. Cochran, for example, evidence that the victim was nine years old, the perpetrator was her father, who was five feet nine inches tall while the victim was only four feet three inches, and that the father outweighed the victim by about 100 pounds was found sufficient to support a finding of duress. (People v. Cochran, supra, at p. 15.)
The juvenile court, as previously noted, found that appellant’s use of force could be implied from the fact that the victim was five years old, and appellant is the “larger brother.” Although we are not persuaded the evidence supports a finding of force, it does “support a finding of duress based on factors other than force, such as age and the victim’s relationship with the defendant.” (People v. Veale (2008) 160 Cal.App.4th 40, 50 [Fourth Dist., Div. Two], citing People v. Pitmon, supra, 170 Cal.App.3d at p. 51.) Appellant was 11 years older than the victim, lived in the same home with the victim, and was a foster brother to the victim. From these facts we may reasonably infer that plaintiff accomplished the acts of oral copulation by duress.
Appellant was actually a foster brother who lived in the home with the victim.
For each of the reasons stated, we must affirm the trial court’s finding that appellant committed oral copulation by force, a crime listed in Welfare and Institutions Code section 707, subdivision (b), and therefore appellant’s juvenile record should not have been sealed.
DISPOSITION
The order is affirmed.
We concur: Ramirez P.J., Miller J.