Opinion
F043165.
11-25-2003
In re SEAN G., A Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SEAN G., Defendant and Appellant.
Thomas M. Marovich, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
The juvenile court adjudged Sean G. a ward of the court and placed him on probation under his parents custody after finding he committed a lewd or lascivious act upon a child under the age of 14 years. (Welf. & Inst. Code, § 602; Pen. Code, § 288, subd. (a).) On appeal, Sean contends the evidence fails to support the finding he acted with the specific intent of arousing sexual desires. We will affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Sean admitted to a Tuolumne County Sheriffs deputy during an April 2003 audiotaped interview that he was ashamed and embarrassed about what he had done with his five- or six-year-old stepsister approximately four years earlier when he was 12 years old. Sean said that one night while in their shared bedroom, he touched her "just like where youd think" under her panties. In response to the deputys questioning as to what occurred, Sean explained, "just touching mostly, just kissing and stuff." Sean described that he French kissed her on the mouth and she touched his penis. He said she touched him as many times as he touched her. He clarified that they "didnt do it like every night, it started with like two times" and that it never occurred since because he does not "rape little girls."
Seans stepsister described to authorities that Sean had touched her in her "private" once when she was five- or six-years-old. She also recalled that her brother told her to touch his "private."
Seans mother had not talked to her children about sexual matters. She taught her children to get along and respect each other, but never expressly discussed inappropriate touching.
DISCUSSION
Sean contends insufficient evidence supports the juvenile courts finding of criminal intent.
"When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We 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 defendants guilt, and if the circumstances and reasonable inferences justify the trier of facts 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." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Section 288, subdivision (a), requires the specific "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of" the perpetrator or the victim. The requisite criminal intent must be proved beyond a reasonable doubt, but may be inferred from circumstantial evidence. (Welf. & Inst. Code, § 701; In re Jerry M., supra, 59 Cal.App.4th at p. 299.) "The intent with which the act is done is manifested by the circumstances under which the act is committed." (In re Paul C. (1990) 221 Cal.App.3d 43, 54, citing § 21.)
Section 288, subdivision (a), provides in full: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years."
"Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victims cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings. [Citations.] To this list must be added ... the age of the defendant." (In re Jerry M., supra, 59 Cal.App.4th at p. 299.)
The circumstances surrounding Seans actions provided sufficient evidence from which the juvenile court could reasonably infer Seans intent. According to Sean, the incident occurred at night while he and his sister were alone in their bedroom. Sean admitted he French kissed his stepsister by inserting his tongue into her mouth. He said he touched her underneath her panties and instructed her to touch him. Although Sean first denied having an erection, he later said he could not remember. Seans conduct alone evidenced a prurient objective and refute his contention he was incapable of sexual arousal because of his youth. As the juvenile court reasoned, "the French kissing answers my concern about the issue of sexual arousal."
Years after the incident, Sean realized his behavior was wrong, wished the incident had never occurred, and felt embarrassed and ashamed. His reference to "rape" and his description that he touched his stepsister "where youd think" further suggest a sexual component to his actions. Seans conduct, emotions, and description of the events are inconsistent with a brother who innocently or curiously touched his stepsister and instead demonstrate his "intent of arousing, appealing to, or gratifying [his] lust or passions or sexual desires" under section 288, subdivision (a).
DISPOSITION
The judgment is affirmed.