Opinion
A152480
08-21-2018
In re D.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. JV311524)
D.B. contends the juvenile court erred in sustaining allegations of a juvenile wardship petition that charged him with oral copulation by force (Pen. Code, § 288a, subd. (c)(2)(C)) and assault with intent to commit oral copulation (§ 220, subd. (a)(1)). He argues that the court erred in finding the offenses occurred in 2014 (when he was 14 years old) rather than in 2013 (when he was 13 years old), and that there was insufficient evidence to overcome the presumption that he did not understand the wrongfulness of his actions (§ 26). We will affirm.
Except where otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
In February 2017, a petition filed under Welfare and Institutions Code section 602 alleged that D.B. perpetrated multiple sexual offenses upon his victim, J.W., in 2013 and 2014. Counts 1-9 alleged that he committed lewd and lascivious acts upon a child under the age of 14 years (§ 288, subd. (b)(1)) between June 9, 2013, and August 10, 2013. Count 10 alleged that he committed forcible oral copulation with a child over the age of 14 years (§ 288a, subd. (c)(2)(C)), and counts 11-19 alleged that he committed assault with intent to commit oral copulation (§ 220, subd. (a)(1)), between June 8, 2014, and August 13, 2014. The matter proceeded to a jurisdictional hearing in August 2017.
A. Jurisdictional Hearing
1. Prosecution Evidence
D.B. was born on August 22, 1999. He was therefore 13 years old during the alleged periods of sexual abuse in 2013, and 14 years old during the alleged periods of sexual abuse in 2014. His victim, J.W., was also 13 years old during the 2013 period and 14 years old during the 2014 period. D.B. and J.W. are cousins, whose mothers are sisters.
a. J.W.'s Testimony
In the summer of 2013, J.W. had completed the seventh grade and was 13 years old. From May until August 2013, she spent much of her summer vacation at D.B.'s home in Lakeport. Because their parents worked, D.B. and J.W. babysat their respective younger brothers together. The younger brothers were about five years younger than D.B. and J.W.
When J.W.'s father was working out of state, her mother would drop her off at D.B.'s house on her way to work. When J.W.'s father was home, J.W. would not go to D.B.'s house unless her little brother wanted to spend time with D.B.'s little brother.
J.W. testified that D.B. touched her breasts, over or under her bra, "20 or 30 times" that summer. The touching took place in D.B.'s bedroom, where they played video games, or in the living room. J.W. did not consent to the touchings and told D.B. to stop. "Maybe 10 or 15 times," D.B. held J.W. down and lifted up her shirt, commenting on the size of her breasts. J.W. tried to push D.B. off or tried to leave the room. The younger brothers did not witness this abuse, which continued to August 2013, shortly before the school year began.
During the ensuing school year, when J.W. was in the eighth grade, she did not go to D.B.'s house as often and nothing sexual occurred between them. J.W. told two of her friends what D.B. had done to her.
In the summer of 2014, both J.W. and D.B. were 14 years old. Like the summer of 2013, J.W. spent much of her vacation at D.B.'s home. This summer, however, D.B. displayed a heightened sexual desire. As J.W. put it, "the summer [of 2013] between [her] 7th and 8th grade, he just wanted to touch [her], but then the summer [of 2014] between [her] 8th and 9th grade he wanted [her] to touch him. He wanted to stimulate himself more."
Starting in June 2014, D.B. touched J.W.'s breasts and tried "to force [her] legs apart so he could rub himself against [her] between [her] legs." Although she told him to stop or to leave her alone, he would spread her legs and "settle himself between her legs so his crotch was lined up with [her] pelvis" and "rub himself against" her. J.W. and D.B. were clothed, but sometimes D.B.'s penis was exposed. This happened every other day during the first half of the summer.
D.B. also touched J.W.'s face with his erect penis "ten, twenty times" and tried to coax her into opening her mouth, but she clenched her teeth and turned away. In early August, he told her that if she let him put his penis in her mouth, he would stop bothering and touching her and leave her alone. After a couple of days, she relented and D.B. inserted his penis into J.W.'s mouth for a "couple seconds maybe."
In addition, D.B. tried to force J.W. to masturbate him approximately five times. He grabbed J.W.'s hand and attempted to wrap it around his penis, and when she resisted, he held her hand on his penis and masturbated until he ejaculated. J.W. did not consent to any of this conduct, and she experienced panic attacks thereafter.
D.B.'s last attempt at a sexual encounter with J.W. occurred when she went to his house during her freshman year of high school. D.B. asked her to help him "get off," but she "told him no and he didn't pursue further."
b. Testimony of Colleen (J. W.'s Mother)
In January 2017, J.W.'s mother (Colleen) noticed that her daughter was "acting really funny" with her cell phone. When J.W. told Colleen that some of the contents of the device would upset her, Colleen asked her husband - J.W.'s father (Harry) - to inspect the contents. After Harry read the text messages, he asked J.W. to write a summary of what occurred. J.W. later described the events to Colleen as well.
D.B.'s and J.W.'s families met at J.W.'s house in January 2017. J.W., Colleen, Harry, D.B., and D.B.'s mother were present. D.B. admitted "some sexual things had occurred" that were not consensual, and he and J.W. had engaged in oral sex. D.B. apologized.
c. Deputy Dunia's Testimony
In February 2017, Lake County Sheriff's Deputy Todd Dunia interviewed D.B. at Clearlake High School. D.B. told Dunia that when he was 13 or 14 years old, he was depressed over his grandparents' health and the loss of his father. Due to his depression, he began to interact sexually with J.W. At first it involved mutual groping and touching her breasts, but it escalated to oral sex and masturbation. The conduct was initially consensual, but later he forced J.W. to masturbate him and place his penis in her mouth. D.B. acknowledged that his behavior toward J.W. was wrong, but claimed she provoked him by talking about sexual matters.
2. D.B.'s Motion to Dismiss
At the close of the People's case, D.B. moved to dismiss the petition under Welfare and Institutions Code section 701.1. Defense counsel argued that no sexual activity occurred in 2014, the second summer of the alleged abuse was actually in 2013, D.B. was 12 or 13 years old at the time of the events, and there was no evidence that D.B. knew what he did was wrong when the offenses were committed.
The juvenile court granted the motion to dismiss as to counts 1-9, pertaining to the offenses alleged to have occurred in 2013, when D.B. was 13 years old (§ 288, subd. (b)(1)). The court denied the motion to dismiss as to counts 10-19, which were alleged to have occurred in 2014, when D.B. was 14 years old. The court confirmed its belief that "the years [of the offenses] are correct, 2013 and 2014," as alleged in the petition. As to the acts D.B. committed in counts 1-9 when he was 13, the court stated that "none of the testimony has shown that a 13-year-old, this young man, was aware of the wrongfulness of his conduct at the time in 2013 . . . . [E]ven his admission of the wrongfulness of the conduct relates to what happened in 2014. There was no allegation[] of force or of lustful conduct during [2013]. All of the testimony as to that was clear in 2014."
3. Defense Witnesses
D.B.'s witnesses testified, essentially, that J.W. was not at D.B.'s house much during the summer of 2014. His mother (Jessica) asserted that J.W. did not visit her home often in 2014, and while D.B. babysat his brother in the family home, J.W. babysat her brother in J.W.'s home. According to Jessica, J.W. came to her home that summer one day in June, on the Fourth of July, and on August 22 (D.B.'s birthday), and "that's about all." D.B.'s best friend Jeremy added that he stayed at D.B.'s house for "a little over half of the summer" in 2014 and saw J.W. there only "a couple times."
B. Jurisdictional Order
As to the remaining counts 10-19 - based on acts allegedly occurring in 2014 when D.B. was 14 years old - the court sustained count 10 (§ 288a, subd. (c)(2)(C)) and counts 15-19 (§ 220, subd. (a)(1)), and found not true the allegations as to counts 11-14 (§ 220, subd. (a)(1)). The court explained that there was no reasonable doubt that the acts underlying the sustained counts occurred, and that they occurred in 2014 (when D.B. was 14): "So just a review, I'm making my findings today based on a careful evaluation of the credibility of witnesses and of all the evidence presented. I am satisfied that there's proof beyond a reasonable doubt that the second summer was the summer of 2014; I find no reasonable doubt in that area. I also find the victim's testimony credible, that these things did occur."
C. Dispositional Order
D.B. was declared a ward of the juvenile court and placed on probation with specified terms and conditions. This appeal followed.
II. DISCUSSION
A person under the age of 14 is presumed to be unaware of the wrongfulness of his or her act. (§ 26, subd. (1).) This presumption may be rebutted by clear and convincing evidence that the person appreciated the wrongfulness of the act at the time it was committed. (§ 26, subd. (1); In re Manuel L. (1994) 7 Cal.4th 229, 238; In re Joseph H. (2015) 237 Cal.App.4th 517, 538.) "Only if the age, experience, knowledge, and conduct of the child demonstrate by clear proof that he has violated the criminal law should he be declared a ward of the court under [Welfare and Institutions Code] section 602." (In re Gladys R. (1970) 1 Cal.3d 855, 867.)
At the heart of this case, therefore, is whether D.B. was 13 years old or 14 years old when he committed the acts underlying the sustained counts in the second summer of abuse. If those acts occurred in 2014 as alleged, when D.B. was 14, the presumption of section 26 does not apply. If they occurred in 2013, when he was just 13, the presumption would apply and the counts could not be sustained without clear and convincing evidence overcoming the presumption.
As set forth ante, the juvenile court expressly found that the acts underlying the sustained counts - count 10 and counts 15-19 - occurred in the summer of 2014 when D.B. was 14 years of age. D.B. challenges this finding, and we review for substantial evidence. Viewing the evidence in the light most favorable to the prosecution, we consider whether any rational trier of fact could have made the finding reached by the juvenile court. (See, e.g., Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Roderick P. (1972) 7 Cal.3d 801, 809.)
"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.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
Here, substantial evidence supported the juvenile court's finding that D.B. committed the acts alleged in the sustained counts in the summer of 2014, when he was 14 years old. J.W. testified that she was 14 years old that summer, having turned 14 the previous April. D.B., nine months older than J.W., was also 14 years old at that time, becoming 15 years of age in August 2014. The court found J.W. to be a credible witness, we defer to the court's credibility determinations, and her testimony is sufficient to uphold the court's finding. (Young, supra, 34 Cal.4th at p. 1181.)
D.B. nevertheless contends that other evidence suggests he committed the acts in 2013, when he was 13 years old. As discussed next, his arguments lack merit: individually, they fail to compel the conclusion that J.W.'s testimony did not constitute substantial evidence; collectively, D.B.'s arguments merely amount to a plea for us to reweigh the evidence, which we cannot do.
a. D.B.'s Brother M. Not Born at the Time of the Offenses
J.W. testified that she, D.B., and their brothers were at the house during the summers in which the abuse occurred. She also testified that D.B. had a younger brother M., but M. had not been born at the time of the offenses. However, both J.W.'s mother (Colleen) and D.B.'s mother (Jessica) testified that M. was born in February 2013. Based on this testimony, D.B. contends that the first summer of abuse had to be in 2012 before M. was born, so the second summer had to be in 2013 rather than 2014.
J.W. testified as follows: "Q And when - during the summers that we're talking about you would go visit [D.B.'s] home? [¶] A Uh-huh. [¶] Q And his brother was there too; is that correct? [¶] A Yes. [¶] Q And what is his brother's name? [¶] A [Redacted]. [¶] Q And do you know how old [he] is? [¶] A I think he's the same age as [J.W.'s younger brother]. . . . Q Were there any other children in the home? [¶] A No. [¶] Q Did you - did your aunt - doesn't your aunt have a smaller child? [¶] A Yeah. But he's - oh, I think he's four now so he wasn't there during the time. [¶] Q He wasn't born yet? [¶] A Uh-huh. [¶] Q And what's the younger child's name? [¶] A [M.]. [¶] Q [M.]? [¶] A But everyone calls him L.J. [¶] Q L.J.; okay. But at that time L.J. was not born? [¶] A No."
D.B.'s argument is unavailing. In the first place, it may be that J.W. was simply mistaken about whether M. had been born at the time. After all, if J.W. was correct that M. had not been born by the time of the offenses, then both summers of abuse must have occurred before February 2013, such that the summers were actually in 2011 (when D.B. and J.W. were just 11 years old) and 2012. D.B. does not point to any independent evidence to support the proposition that he fondled J.W.'s breasts when she was just 11 or forced her to masturbate and orally copulate him when he was 12.
Moreover, other evidence explains why J.W. might have been mistaken about whether M. was born by the time of the offenses. Jessica testified she had placed M. in private daycare in the summer of 2014, so he might not have been in D.B.'s house at the time J.W. was there. From this perspective, J.W. correctly testified that M. was not in the house during the commission of the offenses, and assumed incorrectly that he had not yet been born.
J.W.'s testimony that M. was not yet born when D.B. sexually abused her does not make her testimony that the second summer of abuse occurred in 2014 unbelievable or insubstantial.
b. Death Date of J.W.'s Grandmother
Colleen testified that she sent J.W. to D.B.'s house not only to babysit the younger brothers, but also to "keep an eye" on Colleen's mother (J.W.'s grandmother), who lived with Denise and D.B. According to Colleen, the grandmother died in December 2012. Therefore, D.B. argues, the first summer of D.B.'s abuse of J.W. must have been in 2012, before the grandmother died, and the second summer - when the acts underlying count 10 and counts 15-19 occurred - must have been in 2013 when D.B. was only 13.
The argument is unavailing. First, although J.W. testified that she, D.B. and the two younger brothers were at D.B.'s house during the summers when the abuse occurred, she did not explicitly state that her grandmother was not staying at the house at that time. Moreover, even if J.W.'s testimony could be so construed, it merely means there was a conflict between Colleen's testimony and J.W.'s testimony: either (1) J.W. was mistaken that she, D.B., and the two younger brothers were at D.B.'s house and the abuse occurred in 2013 and 2014, or (2) Colleen was mistaken about the year her mother died or why she sent J.W. to D.B.'s house in 2013 and 2014. The juvenile court found J.W. to be credible and did not comment on Colleen's credibility. We must defer to the juvenile court's credibility determinations. (Young, supra, 34 Cal.4th at p. 1181.)
c. Dunia's Testimony Regarding the Grandmother's Death
Deputy Dunia acknowledged at trial that he heard Colleen testify that her mother died in December 2012. D.B.'s attorney asked Dunia if he concluded that D.B. and J.W. babysat in the summer of 2012 when Colleen's mother was still alive, and Dunia responded: "Based on the testimony from today, that would be correct. I didn't get that information from the interview."
Deputy Dunia's testimony on this point adds nothing to the analysis. Dunia had no personal knowledge of when the grandmother died, and was merely asked to draw a conclusion from Colleen's testimony; if, as suggested ante, Colleen's testimony was inaccurate, the inference to which Dunia acceded was inaccurate as well.
d. D.B.'s Witnesses
D.B.'s mother testified that J.W. did not come to her house often in the summer of 2014, and D.B.'s best friend Jeremy testified that he saw J.W. only a "couple times" that summer. The desired inference, apparently, is that the second summer of abuse must have occurred in 2013. However, this evidence was provided by witnesses ostensibly sympathetic to D.B. It was up to the juvenile court to decide who was telling the truth, and we defer to the juvenile court's assessment of the witnesses' credibility. (Young, supra, 34 Cal.4th at p. 1181.)
In sum, the evidence cited by D.B. does not conclusively refute J.W.'s assertion that the summers of abuse were in 2013 and 2014. Furthermore, both parties seem to overlook evidence that support's J.W.'s testimony - and the juvenile court's finding - that the acts underlying the sustained counts occurred in 2014. D.B. told Deputy Dunia that he had become depressed over his grandparents' health and the loss of his father when he was 13 or 14 years old, and due to that depression he interacted sexually with J.W. Given that he acted sexually with J.W. due to depression when he was 13 and 14, his first summer of abusing J.W. was in 2013 and the second summer - the period pertaining to count 10 and counts 15-19, was indeed in 2014, when D.B. was 14 years of age.
Considering the evidence as a whole, substantial evidence supported the court's conclusion that D.B. committed the acts underlying count 10 and counts 15-19 in the summer of 2014, when he was 14 years of age. D.B. fails to establish error.
D.B. contends that, if the acts underlying count 10 and counts 15-19 occurred in 2013 as he asserts, then he was 13 years old at the time, the presumption of section 26 applies, and the matter must be reversed because the juvenile court found that the acts he committed when he was 13 did not show sufficient understanding to overcome the presumption. Because we conclude that the acts underlying the sustained counts were committed when D.B. was 14 years of age, D.B.'s contention is immaterial. We also note that it is a non-sequitur. D.B.'s argument assumes that he committed the acts of the second summer when he was 13; but if he was 13 in the second summer, he was 12 in the first summer when he committed the acts underlying counts 1-9; in that scenario, the court's finding as to D.B.'s understanding pertained to when he was only 12, not 13. --------
III. DISPOSITION
The order is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.