Opinion
H046005
12-19-2019
In re C.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18JV000009)
Minor C.H. challenges the juvenile court's determination that he committed two counts of sexual battery against a female classmate. Minor argues that in both instances insufficient evidence supports the intent element of the offense—that he touched his classmate's breast for the purpose of sexual arousal, sexual gratification, or sexual abuse. For the reasons stated here, the evidence compels a finding of sexual intent in the second incident, but there is insufficient evidence of sexual intent as to the first touching. We will therefore reverse the true finding as to that count, and remand the matter to the juvenile court to enter an amended dispositional order.
I. BACKGROUND
A second amended wardship petition charged minor with three counts of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1); counts 1, 3, and 5), and three counts of misdemeanor battery committed on school grounds (Pen. Code, § 243.2, subd. (a); counts 2, 4, and 6). Counts 1 and 2 (alleging an act committed in September 2017) were dismissed on the prosecution's motion for lack of evidence. The juvenile court found true the remaining counts, which involved an incident in early October 2017 (counts 3 and 4), and an incident in November of the same year (counts 5 and 6) involving the same victim. As to the sexual battery counts, the court found that minor had touched the victim's breast against her will and for the specific purpose of sexual arousal or gratification. The juvenile court found neither touching was done for the purpose of sexual abuse. Minor was declared a ward of the court for 12 months, placed on probation, and ordered to remain in his parents' custody.
Minor successfully completed probation during the pendency of this appeal, and the juvenile court entered an order dismissing the wardship petition and sealing the case records. This court granted minor's unopposed motion to proceed with the appeal in light of the potential future consequences flowing from the jurisdictional findings. --------
Jane Doe testified at a contested jurisdictional hearing that she was a new student in her sophomore year of high school. According to her testimony, she and minor became friends at the beginning of the school year. When they met, Doe was unhappy because she was being bullied, and she informed minor that she did not like to be touched, especially when she was upset. Doe also befriended two female students who were friends of minor. The group posted pictures of themselves on social media "playing around and hugging each other." One of the females testified that the four spent time together during breaks and at lunch, and sometimes minor, Doe, and the other female would hug and slap each other on the butt in a joking way. Doe was never interested in minor romantically, nor was he romantically interested in her. Doe related that she thought he was gay. Doe began dating a senior in September, which resulted in her spending less time with minor and their friends.
Doe testified that in early October she and minor were walking to lunch after third period. They were laughing and joking as they met up with Doe's boyfriend. After some brief conversation, minor asked Doe's boyfriend, " 'What would you do if I grabbed your girlfriend's boob?' " Doe was confused by the question. Her boyfriend retorted, " 'Do it and find out.' " Minor "reached over and grabbed" Doe's breast. She was shocked and said, " 'Don't ever touch me again. We're not friends.' " Doe's boyfriend testified similarly and reported he was also upset. Doe testified that she did not want to be touched, she did not like being touched, she was embarrassed by the incident, and she felt violated. She did not report the incident to school officials because she thought she had handled the situation appropriately. As a result of the October incident, Doe stopped socializing with minor.
Doe testified about another incident after the Thanksgiving break in which minor grabbed her breast during chemistry class. Doe paired with minor to work on a lab assignment because neither had a partner. Though they had not socialized since the October incident, she stated that by that point they were "Friends, I think." She and minor were seated at a table with four or five male classmates. One of the boys was "leaning and hanging off another boy who said " 'You are touching me, you are touching me,' " to which the other replied, " 'No, I'm not.' " Minor looked at them and said, " 'That's not touching, this is.' " He reached for Doe's breast, "grabbed" it, "squeezed" it, and left a mark. Doe was shocked, upset, and surprised. She slapped minor and told him not to ever do it again. The boys at the table were laughing, joking, and "encouraging it," and Doe slapped one of them as well (J.M.), after he asked minor how it felt to be slapped by her.
J.M. testified at the jurisdictional hearing. His description of the November incident was largely consistent with Doe's. According to J.M., all the boys at the table were laughing at the situation, and Doe slapped him after he said "Oh that sounded like it hurt," referring to her slapping minor. Doe appeared upset, mad, and surprised. J.M. told minor, " 'You shouldn't do that to her,' " or " 'Don't do that to her.' " Minor's response was " 'Why not?' "
Minor testified about both incidents. Regarding the October incident, he described walking to lunch with Doe after third period when he shared a thought with her that had entered his head: " 'If I ask your boyfriend, like if I can grab your girlfriend's boob, what would he say?' " Minor posed the question to Doe even though he knew her boyfriend would be mad. Doe said, " 'It's okay, you can just ask him,' " but minor " 'already kn[e]w the answer.' " Minor was not sure whether Doe really wanted him to ask the question. But he did ask, and her boyfriend told him he would get " 'very, very mad.' " Minor then turned around and pointed a finger at Doe as if to say " 'I told you.' " He testified he was not sure what happened next. He did not mean to touch Doe's breast or remember touching her. Doe and her boyfriend got upset and they both walked away. After the incident Doe avoided minor and stopped being his friend.
Minor's recollection of the November incident in chemistry class was consistent with Doe's, except that, in addition to being surprised and angry, he stated Doe also was laughing. When asked why he grabbed Doe's breast, minor said, "At that time I didn't really think. Because like the -- if -- in my brain at that time, if she would still [be] willing to pair up with me for the lab [¶...¶] I was thinking that, does that maybe mean she['s] still friend[s] with me?" He stated he did not touch Doe to embarrass her, and he did not mean to upset, injure, or offend her. He was never romantically interested in Doe, and he received no pleasure in touching her breast. He was just "trying to show the other boys what [he] thought a touching actually was."
II. DISCUSSION
A. ELEMENTS OF SEXUAL BATTERY
Sexual battery is the touching of an intimate part of another person, against the will of the person touched, and "for the specific purpose of sexual arousal, sexual gratification, or sexual abuse." (Pen. Code, § 243.4, subd. (e)(1).) An intimate body part specifically includes a female's breast. (Pen. Code, § 243.4, subd. (g)(1).) The terms "sexual arousal" and "sexual gratification" may be viewed from the standpoint of perpetrator or victim. (See People v. Martinez (1995) 11 Cal.4th 434, 452 [intent to sexually gratify in the context of an unlawful touching of a child under Pen. Code, § 288, subd. (a) described as touching "accomplished with the intent of arousing the sexual desires of either the perpetrator or the child"].) "Sexual abuse" as used in the sexual battery statute includes humiliation and other emotional harm, in addition to actual physical injury. (In re Shannon T. (2006) 144 Cal.App.4th 618, 622 & fn. 1.)
We review for substantial evidence the juvenile court's findings that a minor has violated a criminal law. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809.) The standard is well settled: " ' "[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
1. Sexual Arousal/Sexual Gratification
Minor argues that the evidence is insufficient to support a finding that he touched Doe for the purpose of either sexual arousal or sexual gratification. He acknowledges that an intent to sexually arouse or gratify may be circumstantially established, but urges that such circumstances are not present here, citing In re Jerry M. (1997) 59 Cal.App.4th 289. The In re Jerry M. opinion catalogues circumstances which have been found to establish an "intent to satisfy sexual desire" under Penal Code section 288, subdivision (a), including: "the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim's cooperation, attempts to avoid detection, offering of an award 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." (In re Jerry M., at p. 299.) The In re Jerry M. court also noted that the age of the offender (in that case a pre-pubescent 11 year old) may suggest a lack of sexual intent. (Ibid.)
The Attorney General argues that the circumstances set forth in In re Jerry M. should not apply here because sexual battery under Penal Code section 243.4, subdivision (e)(1) is broader than the conduct proscribed under Penal Code section 288. We agree that Penal Code section 243.4 protects victims of all ages from unlawful sexual touching, but the sexual intent element described in the two offenses is substantially similar, and the circumstances in In re Jerry M. are relevant to our analysis.
Doe testified that she had never been romantically interested in minor, whom she believed was gay, and minor had no romantic interest in her. Similarly, minor testified that he was not romantically interested in Doe, and he received no pleasure in touching her breast. There was no physical evidence of sexual arousal, and neither incident involved coercion, deceit, stealthy behavior, or an attempt to avoid detection. To the contrary, the touchings were accomplished in the presence of others. While minor was 15 years old and presumably capable of forming a specific sexual intent, there is no evidence of that here.
The Attorney General argues that the circumstances surrounding each event and the body part touched support the juvenile court's findings. But the circumstances of each incident show minor callously objectifying a friend and classmate by touching her breast in front of others, not sexual behavior. The Attorney General also posits that several of the In re Jerry M. factors weigh in favor of the prosecution, such as the acts themselves and the statements minor made before and after touching Doe ("Would you be mad if I grabbed your girlfriend's boob?" and "That's not touching, this is touching."). While minor's statements demonstrate the absence of accident or mistake, the words and context do not suggest a desire to sexually arouse or gratify. Nor does the resulting loss of friendship after the October incident show that either act was done with a sexual intent.
The Attorney General's authorities are not on point. In re Carlos H. (2016) 5 Cal.App.5th 861 was not a sufficiency of the evidence case; it involved the scope of a juvenile court restraining order under Welfare and Institutions Code section 213.5 against a minor charged with sexual battery. (In re Carlos H., at p. 866.) Similarly, In re Carlos C. (2018) 19 Cal.App.5th 997 (partial publication) contains no substantial evidence discussion in the published portion of that opinion, which addressed only probation conditions. (Id. at p. 999.)
Minor's conduct was highly offensive and reflects extremely poor judgment. But the record is devoid of evidence, circumstantial or otherwise, from which the specific purpose of sexual arousal or sexual gratification could be found beyond a reasonable doubt. To conclude otherwise on this record would conflate the distinct element of intent to arouse or gratify and the element of touching an intimate part. But that does not end our analysis. The statute also defines sexual battery as the proscribed touching undertaken for the purpose of sexual abuse.
2. Sexual Abuse
The term sexual abuse as used in Penal Code section 243.4, subdivision (e)(1) includes the nonconsensual touching of a woman's breast "for the purpose of insulting, humiliating, or intimidating the woman, even if the touching does not result in actual physical injury." (In re Shannon T., supra, 144 Cal.App.4th at p. 622.) After considering all the evidence and the arguments of counsel, the juvenile court sustained both sexual battery counts based on sexual arousal or gratification. It specifically rejected the prosecution's theory that the touching was done for the purpose of sexual abuse, stating "The Court's view of the sexual abuse may be somewhat different than the attorneys[']. That a reviewing Court can look at this particular transcript and the testimony that was presented. [¶] It did not appear to the Court, as the trier of fact, that the touching in this particular case, on both occasions, ... [was] done for the purpose of [minor] causing pain, injury or discomfort."
We may consider the juvenile court's ruling as to sexual abuse, even though it was adverse to the prosecution. (Pen. Code, § 1252.) Where "the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the [prosecution] as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Thus, our inquiry is whether there was evidence of intent to sexually abuse that was " 'uncontradicted and unimpeached,' " and " 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a [sexual battery] finding.' " (Ibid.) Our review of the matter is not for substantial evidence, as the Attorney General argues, citing People v. Guiton (1993) 4 Cal.4th 1116. In that case the California Supreme Court explained that reversal of a criminal conviction is not required where insufficient evidence supports one of several culpability theories whenever a valid ground for the verdict remains. (Id. at p. 1129.) "[A]bsent an affirmative indication in the record that the verdict actually did rest on the inadequate ground," the reviewing court will affirm a conviction if an alternative theory of culpability is supported by substantial evidence. (Id. at pp. 1126-1129.) Here, the failure of proof standard applies instead of the substantial evidence standard because there is an affirmative showing in the record that the trial court rejected the theory that minor committed the batteries for the purpose of sexual abuse.
a. The October Incident
Although the evidence clearly shows that Doe was emotionally harmed when minor grabbed her breast as they walked with her boyfriend, the evidence does not compel a finding that minor's purpose was to cause sexual abuse. Minor testified that he did not intend to upset, injure, or offend Doe. The uncontradicted evidence shows that he and Doe were good friends at that time, and Doe described the two as laughing and joking immediately before the incident. Minor's action was rash and unreasonable, but there is no evidence that Doe was physically harmed or that minor was aware his action would harm Doe emotionally. Thus, the evidence does not compel a legal finding that minor intended to cause physical or emotional harm to Doe.
The Attorney General argues that grabbing Doe's breast in front of her boyfriend demonstrates an intent to humiliate Doe and her boyfriend, citing M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607. That case involved a minor who participated in ongoing bullying on a school bus. (Id. at p. 628.) The minor had witnessed other boys committing sexual batteries on the bus before he engaged in similar behavior, and he admitted knowing what he did (touching the victim's buttocks multiple times) was wrong and hurtful to the victim. (Ibid.) Here there is no evidence that when minor acted in October he understood his conduct would emotionally harm his friend. We therefore agree with the trial court that the first touching was not done to cause sexual abuse.
b. The November Incident
We reach a different conclusion as to the November incident. Doe's reaction to the October incident put minor on notice that his conduct was emotionally harmful. Doe told minor "don't ever touch me again," and she announced they were no longer friends. She and minor had no social relationship after that point, and minor confirmed he was aware Doe was avoiding him. Another male student also told minor sometime after the October incident that it was not okay to touch Doe's breast. Yet in November, with full knowledge that touching Doe's breast had ended their friendship and was hurtful to her, minor decided to repeat the behavior in class. The evidence shows that minor acted to be noticed by his classmates, and that he did so at the expense of Doe's emotional and physical well-being. Minor declaring "that's not touching, this is" after watching his classmates engage in benign contact shows he himself distinguished the nature of his act. And in this second incident minor grabbed Doe's breast with enough force to leave a mark. Minor cannot act with full knowledge of the impact of his action yet claim he did not intend those consequences. The circumstances of the case compel us to find as a matter of law that minor touched Doe's breast in class with a purpose to cause emotional harm.
Minor distinguishes the evidence of sexual abuse found sufficient in In re Shannon T. In that case a 14-year-old boy forcefully pinched a 16-year-old girl's breast for purposes of physical and emotional sexual abuse. (In re Shannon T., supra, 144 Cal.App.4th at p. 620.) The minor in In re Shannon T. had been harassing the victim who was on the phone, demanding that she end the call. (Id. at p. 623.) He insulted her and slapped her face before pinching her breast. (Ibid.) But sexual battery does not require attendant harassment or escalation. Minor's intent to sexually harm Doe was established here by the circumstances flowing from the earlier incident, which demonstrated the harm that Doe would suffer if minor were to repeat the same inappropriate touching.
B. CONCEDED ERROR
The Attorney General concedes that the juvenile court erred by including a maximum term of confinement in its dispositional order. When a minor is removed from the physical custody of a parent or guardian as a result of a petition sustained under Welfare and Institutions Code section 602, the juvenile court is required to specify the maximum term of confinement that could be imposed on an adult convicted of the same offense. (Welf. & Inst. Code, § 726, subd. (d)(1).) But the statute neither requires nor authorizes the juvenile court to specify a maximum confinement period where, as here, the minor is not removed from parental custody. The remedy is to strike the unauthorized maximum term from the dispositional order. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; In re A.C. (2014) 224 Cal.App.4th 590, 591-592.)
III. DISPOSITION
The true finding on count 3 is reversed. The clerk of the superior court is directed to prepare an amended dispositional order reflecting the reversal, and enter the order nunc pro tunc to the date of the original order. The amended order shall not include a maximum period of confinement.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Elia, Acting P. J. /s/_________
Danner, J.