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In re S.W.

California Court of Appeals, Fourth District, Third Division
Apr 1, 2009
No. G040651 (Cal. Ct. App. Apr. 1, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. DL029114, Donna L. Crandall, Judge.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey Koch and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

O’LEARY, ACTING P. J.

S.W. appeals from a judgment rendering him a ward of the juvenile court (Welf. & Inst. Code, § 602) after the juvenile court found true two counts of committing a lewd act upon a child under the age of 14. He contends there was insufficient evidence on one of those counts and the juvenile court erroneously ordered he register as a sex offender because he did not have a jury trial. Because we agree insufficient evidence supports the juvenile court’s finding on one of the lewd act offenses, we reverse and remand for resentencing. On remand, the juvenile court may choose to commit S.W. to local juvenile facility, in which case he would not be required to register as a sex offender, and therefore, we need not address his sex offender registration contention. In all other respects, the judgment is affirmed.

FACTS

C.H. had three biological children, N.N., J.N., and M.H. C.H. was S.W.’s guardian, and he moved in with her and her family in May 2006. S.W. was born on August 7, 1992.

Sometime between August and November 2006, C.H., a registered nurse, left S.W. and less than one-year-old M.H. in the car while she went inside her work to get some personal items. S.W. was in the front passenger seat, and M.H. was in a child seat in the back passenger seat facing backwards. C.H. returned approximately 10 minutes later. S.W. was in the backseat holding M.H., and he had unlatched the car seat and pushed it behind the driver’s seat. C.H. went to the car’s passenger side and asked S.W. what he was doing. C.H. opened the door, and S.W. handed M.H. to C.H. C.H. looked at S.W.’s crotch area and saw the cloth flap that covered his zipper was flipped open, but the zipper was closed. S.W. got out of the car, and C.H. saw he appeared to have an erection as the tip of his penis was poking at the top of the zipper area. When C.H. asked S.W. what he was doing, he did not respond. C.H. never left S.W. alone with M.H., and she instructed other family members to never leave them alone together.

Approximately one year later, 19-year-old N.N. was babysitting M.H. when S.W. arrived home and walked into the kitchen. M.H. followed S.W. into the kitchen. When N.N. went into the kitchen approximately 30 seconds later, she saw S.W. with his hand in his pants and he appeared to be stroking his erect penis. S.W. told M.H. to touch his penis. N.N. returned to the living room and she called for M.H. to come to her. A little later, she called her mother and told her what had happened.

After advising him of his Miranda rights, Officer Lori Bartel interviewed S.W., who said he had an “‘urge’” in the kitchen. S.W. admitted both he and M.H. “handl[ed]” his penis, but he did not have an erection or ejaculate, and N.N. interrupted them. When Bartel asked him how that happened, he could not explain why.

Miranda v. Arizona (1966) 384 U.S. 436.

A petition alleged S.W. committed the following acts: Count 1, between June 1, 2006, and June 30, 2006, a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)); and count 2 on or about September 10, 2007, a lewd act upon a child under the age of 14 (§ 288, subd. (a)). Counts 3 and 4 also alleged these offenses as attempted crimes pursuant to section 664.

All further statutory references are to the Penal Code, unless otherwise indicated.

After trial, the juvenile court found counts 1 and 2 true beyond a reasonable doubt, and declared S.W. a ward of the court. The court set the maximum term of confinement as 10 years—eight years on count 1 and two years on count 2. The court ordered S.W. to register as a sex offender pursuant to section 290.

DISCUSSION

I. Sufficiency of evidence-count 1

S.W. argues insufficient evidence supports the juvenile court’s finding he committed count 1 because: (1) the evidence failed to establish the offense occurred on the dates alleged in the petition; (2) the evidence failed to establish he was 14 years old at the time of the offense, and therefore, the prosecutor failed its duty to establish by clear and convincing evidence he knew of the wrongfulness of his act; and (3) the evidence failed to establish he intended to commit a lewd act. As we explain below, because the prosecutor did not establish S.W.’s age or that he knew of the wrongfulness of his act, we need not address his other claims.

“‘“In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” [Citation.] We apply an identical standard under the California Constitution. [Citation.] “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citations.]’ [¶] We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning ‘evidence which is reasonable, credible, and of solid value.’ [Citation.] In contrast, ‘mere speculation cannot support a conviction. [Citations.]’ ‘In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]’” (People v. Mejia (2007) 155 Cal.App.4th 86, 93.)

Section 288, subdivision (a), prohibits any person from “willfully and lewdly commit[ting] 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 . . . .”

“All persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.” (§ 26.) “[S]ection 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. [Citation.] To defeat the presumption, the People must show by ‘clear proof’ that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602. [Citation.] Only those minors over the age of 14, who may be presumed to understand the wrongfulness of their acts, and those under 14 who—as demonstrated by their age, experience, conduct, and knowledge—clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system. [Citation.]” (In re Manuel L. (1994) 7 Cal.4th 229, 231-232, fns. omitted.)

As to his claim the evidence failed to establish he was 14 years old at the time of the offense, S.W. turned 14 years old on August 7, 2006. The evidence established S.W. moved in with C.H. in May 2006, when he was 13 years old. Although the petition alleged count 1 occurred in June 2006, the evidence established it occurred between August 2006 and November 2006. If count 1 occurred sometime between August 1 and August 6, 2006, S.W. was 13 years old. We reject the Attorney General’s invitation to conclude there was sufficient evidence for the juvenile court to infer S.W. was 14 years old at the time of the offense because he turned 14 in the beginning of August or because “the prosecutor’s question to [C.H.] were designed to prove that [S.W.] committed the crime after he turned 14.” (Italics added.) Needless to say, history is riddled with failed designs. The evidence, under any standard, is insufficient to establish S.W. was 14 years old when he committed the offense. Nor is it convincing defense counsel did not explore this issue on cross-examination, perhaps realizing the prosecutor had failed its burden of proof. Why bring it to the prosecutor’s attention?

It is unclear what burden of proof applies to a finding whether a minor is 14 years old. In the majority of cases, we presume this would be a simple matter. The juvenile court would review the petition for the minor’s birth date, calculate when the minor turned 14 years old, and determine whether the minor was 14 years old at the time of the offense. Here, however, the determination is complicated by the fact the offense could have occurred during a five month time span in which S.W. turned 14 years old. If S.W. was 14 years old when he committed the offense, the prosecutor did not have to prove S.W. appreciated the wrongfulness of his act, but if he was 13 years old, the prosecutor was required to make this showing.

With respect to his contention the prosecutor failed to establish by clear and convincing evidence he knew of the wrongfulness of his act, People v. Lewis (2001) 26 Cal.4th 334, 378, is instructive. In Lewis, the California Supreme Court stated: “Although a minor’s knowledge of wrongfulness may not be inferred from the commission of the act itself, ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment’ may be considered. [Citation.] Moreover, a minor’s ‘age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts.’ [Citation.]” (Ibid.)

The Attorney General argues there was clear and convincing evidence S.W. knew of the wrongfulness of his act based on the following: (1) if he was 13 years old when he committed the offense, it was just days before he turned 14 years old; (2) S.W. climbed into the car’s back seat and unlatched and moved the car seat to position himself to commit the crime; and (3) he displayed a consciousness of guilt when C.H. opened the door, and he handed M.H. to her. We cannot conclude this was clear and convincing evidence S.W. knew of the wrongfulness of his act.

Although if believed S.W. was just days away from his 14th birthday, and inferred it was more likely he appreciated the wrongfulness of his act, there was no additional evidence to support that finding. The fact S.W. got into the back seat, took M.H. out of her car seat, and unlatched and moved the car seat, does not establish S.W. knew he was committing an unlawful act. It is equally likely he was bored sitting in the car waiting for C.H. to return when he decided to take M.H. from her car seat to pass the time.

Equally unconvincing is the fact S.W. handed M.H. to C.H. when she opened the car door. It is not surprising a teenager would hand an infant to a parent after sitting in a car for 10 minutes. Perhaps S.W. handed M.H. to her mother so she could reposition the car seat and secure M.H. in it. Based on this evidence, we cannot conclude the prosecutor established by clear and convincing evidence S.W. knew of the wrongfulness of his act. Therefore, we reverse the juvenile court’s finding S.W. committed count 1.

Because we reverse the juvenile court’s finding S.W. committed count 1 and we remand for resentencing, we need not address S.W.’s claim sex offender registration and Jessica’s Law residency restriction violated his federal constitutional rights because he did not have a jury trial. In In re Bernardino S. (1992) 4 Cal.App.4th 613, 620-621, the court held a minor cannot be required to register as a sex offender unless the court has committed him to the California Youth Authority. On remand, it is possible the juvenile court could commit S.W. to a local juvenile facility, and not to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, in which case he would not be required to register as a sex offender.

DISPOSITION

The juvenile court’s finding S.W. committed count 2 is affirmed. The juvenile court’s finding S.W. committed count 1 is reversed, and we remand the matter for resentencing as directed.

WE CONCUR: MOORE, J., FYBEL, J.

S.W. contends the prosecutor must prove his age beyond a reasonable doubt, and the Attorney General does not specify what standard is applicable. Without deciding the correct standard of review, as we explain above, we conclude the prosecutor failed its burden under any standard. It is possible the incident at the hospital occurred on August 1 through 6, 2006, when S.W. was 13 years old. The possibility it could have also occurred on one of the other 115 days during that time period is insufficient evidence to establish he was 14 years old at the time of the offense.


Summaries of

In re S.W.

California Court of Appeals, Fourth District, Third Division
Apr 1, 2009
No. G040651 (Cal. Ct. App. Apr. 1, 2009)
Case details for

In re S.W.

Case Details

Full title:In re S.W., a Person Coming Under the Juvenile Court Law. v. S.W.…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 1, 2009

Citations

No. G040651 (Cal. Ct. App. Apr. 1, 2009)