Opinion
G061982
10-23-2023
In re C.C., a Person Coming Under the Juvenile Court Law. v. C.C., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 22DL0696, Joe T. Perez, Judge. Affirmed.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
The juvenile justice court found true allegations C.C. had committed sexual crimes against Z.R. (the victim), a minor. (The juvenile court also found true allegations C.C. evaded and resisted the police; those charges are not challenged on appeal.) On appeal, C.C. argues there was insufficient evidence of the victim's lack of consent to support the true finding of forcible rape, and there was insufficient evidence the victim was under 18 years of age to support the true findings of sexual penetration of a minor and oral copulation with a minor. We reject C.C.'s arguments and affirm.
BACKGROUND
I. THE PEOPLE'S CASE
In July 2022, C.C. was 16 and the victim was 17. C.C. and the victim had known each other for several years. They attended the same elementary school and the victim was friends with C.C.'s sister. The victim was one grade above C.C., and one grade below C.C.'s sister. Before July 21, 2022, they were friends on social media, had texted each other, and had been talking about meeting up "for a while."
On July 21, 2022, the victim texted C.C. and asked him to meet her that night. At 11:50 p.m., C.C. texted the victim he was at her home. The victim left her home without her parents' knowledge or permission; her curfew was 10:00 p.m.
The victim got into the front passenger seat of C.C.'s car, and C.C. drove to a dead end storage unit area near the victim's home. The area was dark and the victim did not see any other people in the area. After they had talked in the front seat of the car for a while, C.C. asked the victim to move to the backseat with him. The victim told C.C. she was not going to have sex with him, to which C.C. responded, "'We'll see.'"
C.C. and the victim got into the backseat of the car and began kissing. C.C. then pulled off the victim's shorts, underwear, and sweatshirt. The victim did not want him to take her clothes off, but she did not try to stop him. She told him again she did not want to have sex with him, but he did not respond. C.C. removed his own clothes.
C.C. digitally penetrated the victim. She was in pain and tried to push him off of her. She could not remember doing or saying anything else to make him stop. She testified, "I was just thinking how it would be worse if he put his penis into where he put his fingers."
C.C. then spread the victim's legs apart and put his penis inside her vagina, causing her pain. She tried to push him off her and told him again she did not want to have sex with him. He responded, "just relax." She said he "didn't even have a condom on" to get him to stop, and he grabbed one from the front seat. At that point, she would have tried to leave, but she was naked and did not know where he had put her clothes. The victim again told C.C. she did not want to have sex with him, but he again penetrated her. She tried again, unsuccessfully, to push him off her, told him she was in pain, and asked him to stop.
When he saw she was bleeding, C.C. stopped vaginally penetrating her and forced her to orally copulate him. The victim told C.C. she did not want to, but allowed C.C. to put his penis in her mouth. She testified she was scared C.C. would hurt her if she did not do what he wanted or if she tried to stop him.
The victim had not had sexual intercourse before July 21, 2022.
After finishing, C.C. grabbed a shirt to clean himself, the car, and the victim. He put on his clothes, and handed the victim her clothes. After getting dressed, they both returned to the front seat of the car. C.C. said, "he had always been wanting that." The victim admitted C.C. never threatened her with violence, strangled her, pinned her down, said he would kill her, or threatened her family.
While C.C. was driving the victim home, sheriff's deputies attempted to initiate a traffic stop. (The traffic stop was unrelated to the assault on the victim.) C.C. was speeding, driving on the wrong side of the road, and almost collided with a sheriff's car; he finally stopped, jumped out of the car, and ran into the bushes. The deputies approached the victim with guns drawn, threw her onto the ground, handcuffed her, and placed her in the backset of the patrol car. The victim did not initially tell the deputies about the sexual assault.
The deputies saw marijuana, vape pens, a used condom, and blood in the backseat of the car. One of the deputies told the victim, "'I know there are condoms in the car, were you, like, forced to do anything like that?'" The victim then said, "'I told him I didn't want to.'"
An examination performed on the victim showed bruising and redness in her genital area. C.C. could not be eliminated as a contributor of DNA from samples collected from the victim's body. Forensic experts for both C.C. and the People testified the victim's injuries could be consistent with either consensual or nonconsensual sex.
II. C.C.'S Defense Case
C.C. "kind of knew just of" the victim because she was friends with C.C.'s sister. The victim was one grade above him in school, and a year or so older than him. When they were in middle school together they texted each other over the summer. Later, C.C. became active on social media, and he and the victim texted each other again.
C.C. testified the victim was the sexual aggressor. As soon as she got into the passenger's seat of C.C.'s car, she "was leaning up on him" and tried to kiss him. C.C. told her to wait, and drove to a dead end street to park. While driving, he asked if she had any condoms; she pulled a small box of condoms from under her sweatshirt and handed them to him. After parking, the two made out.
The victim asked C.C. to get into the backseat of the car. While they were kissing in the backseat, the victim tried to take C.C.'s shirt off and removed her own shorts. C.C. digitally penetrated the victim, and believed "she was enjoying it" because of the noises she was making. She did not say it was painful or she wanted to stop. The victim then orally copulated C.C.; he did not force her and she never said she did not want to do it. C.C. then laid the victim down on the backseat of the car; she did not say no or try to stop him. As he was penetrating her, she told him, "'You don't even have a condom,'" so he grabbed one from the front seat and put it on. C.C. testified the victim never said she did not want to have sex with him and she seemed happy about it. They had sex for about five minutes. While they were having sex, the victim said, "'I feel guilty of doing this since you got with two of my best friends.'"
At no point during the encounter did the victim seem upset or indicate that she did not want to have sex with C.C. She never told C.C. to stop or said anything hurt. C.C. testified he would have stopped if the victim had said "'no.'" C.C. testified he did not force the victim to have sex with him, and her testimony about forced sex was a lie. When they were done, C.C. put his clothes on and told the victim he would drop her off at home.
C.C. admitted fleeing from the police because he did not have a driver's license and the car was unregistered. He also suspected the car might be stolen because he bought it through Instagram for only $1,000.
Defense counsel presented two character witnesses who had sex with C.C. on prior occasions. They testified C.C. always treated them with respect and adhered to their boundaries, and they were surprised to hear he had been charged with rape.
III. PROCEDURAL HISTORY
The district attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging C.C. had committed forcible rape (Pen. Code, § 261, subd. (a)(2); count 1), sexual penetration by a foreign object (id., § 289, subd. (a)(1); count 2), sexual penetration of a minor by a foreign object (id., § 289, subd. (h); count 3), oral copulation with a minor (id., § 287, subd. (b)(1); count 4), evading a peace officer while driving recklessly (Veh. Code, § 2800.2; count 5), and two counts of resisting and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1), counts 6 and 7). The petition alleged, as to counts 1 through 4, the offenses involved great violence, great bodily harm, threat of great bodily harm, and otherwise disclosed a high degree of cruelty, viciousness, and callousness. (Cal. Rules of Court, rule 4.421(a)(1).)
At the jurisdiction hearing, C.C. and the district attorney stipulated to the facts proving counts 5, 6, and 7. After the hearing, the juvenile court dismissed count 2 pursuant to Welfare and Institutions Code section 701.1. The court found the allegations of counts 1, 3, 4, 5, 6, and 7 true beyond a reasonable doubt.
At the disposition hearing, the court found counts 6 and 7 were misdemeanors and the other counts were felonies. The court declared C.C. to be a ward of the court, pursuant to Welfare and Institutions Code section 602. C.C. was committed to juvenile hall for 365 days, with 106 days credit for time previously served, and ordered to participate in a sex offender treatment program. C.C. filed a timely notice of appeal.
DISCUSSION
I. STANDARD OF REVIEW
C.C. argues on appeal the evidence was insufficient to support his adjudications on counts 1, 3, and 4. "Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, '"an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt."' [Citations.] '"'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (In re George T. (2004) 33 Cal.4th 620, 630631.)
II. COUNTS 3 AND 4 - KNOWLEDGE OF THE VICTIM'S AGE
An element of both counts 3 and 4 is that the victim be under 18 years of age. (See Pen. Code, §§ 289, subd. (h), 287, subd. (b)(1).) A defendant's actual and reasonable belief that the victim is 18 years of age or older is a defense to these crimes. (People v. Hernandez (1964) 61 Cal.2d 529, 535-536; People v. Peterson (1981) 126 Cal.App.3d 396, 397; People v. Winters (1966) 242 Cal.App.2d 711, 716; see CALCRIM Nos. 1102, 1082.) "[B]elief as to age is a matter of defense and is not part of the prosecution's burden of proof." (People v. Zeihm (1974) 40 Cal.App.3d 1085, 1089.)
"As a matter of constitutional due process, the defendant need only raise a reasonable doubt regarding a defense that negates an element of the crime, and in this situation the burden of persuasion is on the People to show the nonexistence of the defense beyond a reasonable doubt. [Citations.] In contrast, when the defense does not directly concern an element of the crime but exonerates the defendant as a matter of public policy, there is no constitutional impediment to requiring the defendant to prove the defense by a preponderance of the evidence." (People v. Saavedra (2007) 156 Cal.App.4th 561, 570-571.) No matter which standard applies to the defense of a reasonable belief the victim was over the age of 18 when the crime charged involves sexual acts with a minor, C.C. in this case did not meet his burden.
The People established the victim was 17 years of age when the incident occurred. As of July 21, 2022, C.C. was 16 years nine months old. C.C. testified he knew the victim was one grade ahead of him in school, and "a little bit more than a year or a year or so" older than him. At no point during the evidentiary hearing did C.C. testify he actually and reasonably believed the victim was 18 years old or older.
C.C.'s reliance on People v. Hernandez, supra, 61 Cal.2d 529 is unavailing. In that case, the defendant in a statutory rape case made an offer of proof in his good faith, reasonable belief that the female victim was over the age of 18. (Id. at p. 530.) The trial court rejected the offer. (Ibid.) The appellate court concluded statutory rape is not a strict liability crime, and the defendant should be permitted to offer his belief the victim was old enough to consent as a defense. (Id. at pp. 535-536.) In this case, C.C. was not prohibited from raising this defense; however, he did not do so.
III. COUNT 1 - KNOWLEDGE OF LACK OF CONSENT
As to count 1, C.C. contends the adjudication for forcible rape must be reversed because there was not sufficient evidence the victim did not consent to the sexual encounter. Lack of consent is an element of the crime of forcible rape. (People v. Ireland (2010) 188 Cal.App.4th 328, 336.)
C.C. relies primarily on People v. Ireland, supra, 188 Cal.App.4th 328, in which the defendant was charged with four counts of forcible rape. In each case, a woman consented to engage in sexual intercourse with the defendant for money, after which the defendant threatened the victim by placing a large knife to her neck. (Id. at pp. 330-333.) The defendant claimed on appeal none of the victims communicated a withdrawal of her consent to engage in sex with him. (Id. at p. 335.) The appellate court held if "the woman's lack of consent was uncommunicated and could not reasonably be detected . . . the accused may not be guilty of rape." (Id. at p. 336.) However, the court further held that, given the facts of the case, "[the defendant's] use of the knife, along with his express or implied threat to harm his victims if they did not cooperate, did automatically negate their previously given consent." (Id. at p. 337.)
This case presents the opposite factual situation. The victim testified she told C.C. at the beginning of their encounter and several times thereafter she did not want to have sex with him and she wanted him to stop. The victim also testified she tried to push C.C. off her several times; she asked C.C. to put on a condom as a way of getting him to stop; she did not run away when C.C. was distracted with the condom because she was naked; and she did not do anything more to stop C.C. because she was afraid he would hurt her. The victim initially denied consent, and nothing in "the circumstances of the case" indicates C.C. reasonably believed the victim had withdrawn her refusal to consent or that the victim's fears were anything other than "genuine and reasonably grounded." (People v. Barnes (1986) 42 Cal.3d 284, 304.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOETHALS, ACTING P. J., DELANEY, J.