Opinion
F084802
04-20-2023
In re E.H., a Person Coming Under the Juvenile Court Law. v. E.H., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Super. Ct. No. JW142876-00. Christie Canales Norris, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Minor E.H. contends on appeal that the sexual battery and annoying or molesting a child findings against him by the juvenile court must be reversed because there is no substantial evidence on the record to support either of these findings. We affirm.
PROCEDURAL SUMMARY
On June 8, 2022, the Kern County District Attorney filed an amended juvenile wardship petition, pursuant to Welfare &Institutions Code section 602, alleging that minor had committed sexual battery (Pen. Code, § 243.4, subd. (e)(1); count 1), and annoying or molesting a child (§ 647.6, subd. (a)(1); count 2).
All statutory references are to the Penal Code unless otherwise noted.
On July 8, 2022, a contested jurisdictional hearing was held. On July 8, 2022, the juvenile court found both allegations true.
On August 10, 2022, minor was adjudged a ward of the court and granted probation with various terms and conditions, including that minor serve five days in custody at a youth detention center.
On August 2, 2022, minor filed a notice of appeal.
FACTS
On October 24, 2021, A.R. (15 years old at the time), J.H. (14 years old at the time), and minor (17 years old at the time), attended their school's homecoming dance. A.R. and J.H. were friends. Minor is J.H.'s older brother.
A.R.'s mother, Grace R., drove the three teenagers to the dance. A.R.'s younger sister, B.R. (12 years old at the time), accompanied them for the drive. B.R. had known minor as an acquaintance for the prior month, as she began attending the same school as A.R., J.H., and minor at the beginning of the school year, and her older sister, A.R., was friends with minor's younger sister, J.H.
Later that evening, A.R. and B.R.'s father, Alexander R., picked the teenagers up from the dance in his large SUV. B.R. again accompanied them for the drive, as did her younger sister L.R. (11 years old at the time), and their small lap dog. Alexander sat in the driver's seat, A.R. sat in the front passenger seat, J.H. sat on the left side of the middle row bench seat, minor sat in the middle seat of the middle row bench seat, B.R. sat on the right side of the middle row bench seat, and L.R. sat behind B.R. in the third row by herself with the dog. During the approximately 40- to 45-minute drive home, it was "dim" in the car, but not "pitch black."
Alexander brought pizza when he picked the teenagers up, which everyone passed around and ate in the car. After eating the pizza, B.R. took the dog from her sister, L.R., and put it on her lap so that she could show it to minor and his sister, J.H. Minor pet the dog on the head "every now and then" while it was in B.R.'s lap as he and B.R. talked. Minor told B.R. he was "in a bad spot mentally." She told him she "was there if he ever needed anything."
L.R. and Alexander testified that they could both hear minor and B.R. talking on the drive, but neither could make out the conversation.
As they drove, minor was turned towards B.R., petting the dog on her lap with his left hand. B.R. then felt minor touch her left breast with his left hand. B.R. showed the trial court where on her body he touched her, described by the prosecutor as the "left chest area above the top of the breast." He started "groping" her with the same hand, which B.R. demonstrated to the court. The prosecutor described her demonstration, stating, "[T]he witness just had her hand out and closed her fingers in kind of a grabbing movement."
B.R. testified that at first, she thought that minor misplaced his hand when trying to pet the dog, but stated that he "just kept ... grabbing [her]." B.R. asked him whether he wanted to pet the dog and, even though he said he did not want to anymore, B.R. pushed the dog "in front of" the area where minor was groping her so that he could no longer touch her there.
Minor pet the dog but then touched B.R.'s breast again, this time by reaching his hand under the dog's neck and then rubbing, rather than grabbing, her breast. B.R. then pushed the dog into minor's lap and he stopped touching her breast. In total, minor touched B.R.'s breast for about five minutes.
L.R. and Alexander both testified that they saw B.R. push the dog to minor. Alexander also stated that he heard B.R. say to minor several times, "[H]old my dog." L.R. testified that B.R. then turned to L.R. and had a "funny" look on her face, but B.R. did not say anything to her.
The day after the car ride, B.R. stated to police that when minor could no longer touch her left breast because of where she moved the dog, he reached his right arm over the back of her head and top of her seat and moved his right arm in such a way that she thought he was going to touch her right breast. To prevent him from doing so, B.R. moved her own arm so that minor could not reach her breast. L.R. saw minor put his right arm around the back of B.R.'s seat. L.R. could hear B.R. and minor laughing. At the jurisdictional hearing, B.R. stated she could not remember what minor did with his right hand and arm, which was closest to her.
While minor was touching her breast, B.R. was "[s]cared" and "didn't really know why it was happening." As a result, she did not tell anyone right away. At first, she thought minor's hand was misplaced, but the area where he was touching was covered by her thick wool jacket that did not feel "fuzzy like [her] dog."
Thirty seconds after minor and his sister, J.H., were dropped off at their home, B.R. felt like she "was going to throw up." B.R. asked her father, Alexander, in a panicked way, to stop their car. Alexander saw B.R. become "increasingly frantic." He immediately pulled over and B.R. got out of the car and cried. Alexander got out of the car and saw B.R. "trembling and shaking" and "[h]er voice was kind of broken and panicky." She was "struggling to get her words out." B.R. told him that minor had grabbed her breast and showed him where minor had touched her. According to L.R., once back inside the car, B.R. told her sisters, A.R. and L.R., that minor had touched her.
Alexander immediately drove back to minor's home to confront him. Grace called the police the following morning.
Defense Case
Minor's Testimony
Minor testified that he sat between his sister, J.H., and B.R. on the middle row bench seat on the drive home from the dance. He stated it was "light enough" for him to see inside the car. He stated he had no relationship with B.R. and that she was a "stranger" to him. He testified that he pet the dog in B.R.'s lap almost the entire car ride home and that the dog was resting against B.R.'s chest, at her "breast level." He used his left hand to pet the dog and only pet the dog's head. He testified that he moved his right arm to the back of B.R.'s seat because there was no room for his right arm beside him, but that his right arm never fell down onto or touched B.R. He denied ever inappropriately touching B.R. because she is "fat and ugly."
When police questioned minor, he stated to them that "it may have been an accident if [his hand] did touch" B.R, but that he "did not grab her."
Minor testified that he understood that touching a female's breast area without consent was inappropriate.
J.H.'s Testimony
Minor sister, J.H., testified that she was falling in and out of sleep on the drive home, but that when she was awake, she did not see J.H. touch B.R. inappropriately. She stated that minor was facing towards B.R. when B.R. asked minor if he wanted to pet the dog and that minor pet the dog's head for only a few seconds.
DISCUSSION
Minor contends the juvenile court abused its discretion because there is not substantial evidence on the record to support the court's findings that minor committed the offenses of sexual battery and annoying or molesting a child. We disagree.
A. Background
The juvenile court found true both allegations against minor: sexual battery (§ 243.4, subd. (e)(1); count 1), and annoying or molesting a child (§ 647.6, subd. (a)(1); count 2). It explained at the jurisdictional hearing that it found B.R. to be credible, while minor was not.
B. Law
We review the minor's contentions using the same standard of review that applies in adult criminal cases. (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
"Specifically, we determine whether substantial evidence-'evidence that is reasonable, credible, and of solid value'-supports the juvenile court's findings." (In re I.A. (2020) 48 Cal.App.5th 767, 778 (I.A.).) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Clark (2011) 52 Cal.4th 856, 943.)
"We view the evidence 'in the light most favorable to the prosecution and presume in support of the [findings] the existence of every fact the [court] could reasonably have deduced from the evidence.' [Citation.] We 'accept [all] logical inferences that the [court] might have drawn from the ... evidence' [citation], but reject inferences' "based on suspicion alone or on imagination, speculation, supposition, surmise, conjecture, or guess work."' [Citations.]" (I.A., supra, 48 Cal.App.5th at p. 778.)
When the circumstances reasonably support the court's findings, the reviewing court's opinion that the circumstances might also reasonably point to a contrary finding does not warrant reversal. (In re George T. (2004) 33 Cal.4th 620, 631.) "[O]n appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment." (In re Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted.) "We will reverse only if' "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the [court's findings].'" (I.A., supra, 48 Cal.App.5th at p. 778.)
The testimony of a single witness, if believed by the factfinder, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
C. Analysis
Here, there is sufficient evidence on the record to support the juvenile court's findings that minor committed both the offense of sexual battery and annoying and molesting a child.
1. Sexual Battery (§ 243.4, subd. (e)(1); count 1)
Here, there is sufficient evidence to support the court's finding that minor committed sexual battery by touching B.R.'s breast during the car ride home from the dance.
"Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse," commits misdemeanor sexual battery. (§ 243.4, subd. (e)(1).) One" 'touches'" under the statute by causing "physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim." (§ 243.4, subd. (e)(2).) An "intimate part" refers to "the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (§ 243.4, subd. (g)(1).) In contrast to simple or felony battery, "[s]exual battery is a specific intent crime." (People v. Chavez (2000) 84 Cal.App.4th 25, 29.) One's purpose "can be inferred from the act itself together with its surrounding circumstances." (In re Shannon T. (2006) 144 Cal.App.4th 618, 622.)
B.R. testified that minor touched her breast over her jacket while they were in the car. Her breast is an intimate part of her body. (§ 243.4, subd. (g)(1).) She testified that she did not want him to do so and that she had attempted to stop him by telling him to pet her dog and pushing the dog into his lap.
The juvenile court stated that it found B.R.'s testimony on where and how minor touched her to be credible. It also stated that it found her testimony that she did not want minor to touch her breast and had tried to stop him by pushing her dog onto his lap to be credible. The court also stated that it did not believe minor to be credible based on the inconsistencies in his testimony. As the factfinder, the juvenile court was entitled to find B.R.'s testimony to be credible, as nothing B.R. alleged was either physically impossible or inherently improbable.
Last, the evidence supports the inference that minor touched B.R.'s breast with the specific purpose of sexual arousal or sexual gratification. He testified that B.R. was only an acquaintance and that he knew she was only 12 years old at the time. He also stated that he knew the difference between "appropriate" and "inappropriate" touching and that he knew it was inappropriate to touch females' breasts against their will.
Minor contends that he believed he was touching the dog, rather than B.R.'s breast. However, minor testified that, while it was dark outside, it was still light enough to see inside the car. Further, B.R. testified that minor touched her breast over her wool jacket, which felt different than the dog's fur, and that he reached under the dog's neck to continue touching her breast and only finally stopped touching her breast once she pushed the dog into his lap.
Based on this evidence, the juvenile court was entitled to make the reasonable inference that minor's touching was accordingly for the specific purpose of sexual arousal or sexual gratification and was not accidental.
Minor last argues that B.R. consented to him touching her breast, and accordingly, he could not commit sexual battery because of her consent. However, there is no evidence on the record that she consented. She testified, as outlined above, that she tried to push the dog in the way of his hand to prevent him from reaching her breast, and when he continued to touch her breast by reaching his hand under the dog's neck, she finally pushed the dog into his lap so he could not touch her any longer. Further, minor testified at trial that he did not touch her breast. He also testified that, if he did touch her breast, it was only by accident while he was trying to pet the dog. Accordingly, there is no evidence to support minor's contention that B.R. consented to him touching her breast.
Accordingly, as we must resolve all conflicts in the evidence and the juvenile court's attendant reasonable inferences in favor of the judgment, we find there is sufficient evidence on the record supporting the court's finding that minor committed sexual battery (§ 243.4, subd. (e)(1); count 1).
2. Annoying or Molesting a Child (§ 647.6, subd. (a)(1); count 2)
Here, there is also sufficient evidence on the record to support the juvenile court's finding that minor committed the offense of annoying or molesting a child.
To convict a defendant of violating section 647.6, the prosecution must prove: (1) the defendant engaged in conduct directed at a child; (2) a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant's conduct; (3) the defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child; and (4) the child was under the age of 18 years old at the time of the conduct. (§ 647.6, subd. (a)(1).) It is not necessary that the child actually be irritated or disturbed or that the child actually be touched. (People v. Lopez (1998) 19 Cal.4th 282, 289.) In determining "whether the defendant's conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test not dependent on whether the child was in fact irritated or disturbed." (Id. at p. 290.)
Here, the evidence is undisputed that B.R. was a child under the age of 18: she was only 12 years old at the time of the incident. Also, as discussed above, there is sufficient evidence of minor's conduct directed at B.R. of touching her breast against her will. Further, there is sufficient evidence supporting the court's reasonable inference that minor's conduct was motivated by an unnatural or abnormal sexual interest in the child, as he testified that he knew it was wrong to touch females inappropriately without permission, and that he did not have a relationship with B.R.
Last, the evidence supports the court's finding that a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by minor's conduct. The age difference between a 12 year old and 17 year old is great and being touched inappropriately and without consent by someone with whom a person has no prior relationship would be offensive, irritating, disturbing or injurious to a reasonable person.
Minor contends that any sexual interest he had in B.R. could not be deemed" 'unnatural'" or" 'abnormal'" because he and B.R. were relatively close in age. Minor contends that B.R. was "already" 12 years old and attended the same school as minor and their respective sisters, A.R. and J.H, arguing that they were in the same age group and thus, their age difference did not make his conduct objectively offensive or any sexual interest he had in B.R." 'abnormal.' "
However, the juvenile court stated that it found B.R. and minor's age difference and lack of a prior relationship to be significant. B.R. and minor attended a "JuniorSenior" high school, which B.R. had only just begun attending one month prior as a 12 year old, while minor was 17 years old and in the 12th grade, preparing to graduate. B.R. did not attend the dance with the teenagers A.R., J.H., and minor, and B.R. testified that she only knew minor as an acquaintance because their sisters, A.R. and J.H., were friends, not because she and minor were friends. Further, as discussed above, minor testified that he knew touching a female's breast without consent was "inappropriate." Accordingly, sufficient evidence supports the court's finding that minor's conduct was motivated by an abnormal or unnatural sexual interest in B.R.
Reviewing the whole record in the light most favorable to the judgment below, it does not appear that" '" 'upon no hypothesis whatever is there sufficient substantial evidence to support'" '" the court's findings, although the circumstances might also reasonably point to a contrary finding. (I.A., supra, 48 Cal.App.5th at p. 778.)
Accordingly, as we must resolve all conflicts in the evidence and the juvenile court's attendant reasonable inferences in favor of the judgment, we affirm.
DISPOSITION
The disposition order is affirmed.
[*] Before Poochigian, Acting P. J., Detjen, J. and Snauffer, J.