Opinion
E053774
04-12-2012
In re ISRAEL F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ISRAEL F., Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher P. Beesley and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.Nos. J238006 KJ33916)
Cheryl C. Kersey, Judge of the Superior Court of San Bernardino County, accepted the transfer of the matter from Los Angeles County to San Bernardino County and placed minor on probation. (Case No. J238006.) Merrill Toole, Temporary Judge of the Superior Court of Los Angeles County, found true the allegation in the petition. (Case No. KJ33916). Minor appeals the juvenile court's finding that the allegation in the petition was true.
OPINION
APPEAL from the Superior Court of San Bernardino and Los Angeles Counties. Cheryl C. Kersey, Judge, and Merrill Toole, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher P. Beesley and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Israel F. (minor), appeals from the juvenile court's ruling finding true the allegation that he committed a forcible lewd act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).) Specifically, minor argues the evidence was insufficient to support a finding that he acted with the intent to sexually arouse himself, which is a required element of the above crime. As discussed post, the evidence was sufficient to support the juvenile court's finding.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURE
On May 13, 2009, Jasmine V., who was 12 years old, was in band class at her middle school. Two classmates, Anthony L. and Scott C., asked Jasmine to go into the choir room because they had something to tell her or show her. Anthony and Scott walked with Jasmine into the hallway, where other students were playing their instruments, and into the dark choir room. The two boys then stepped out of the choir room and closed the door behind Jasmine. Minor was in the room. Minor walked up behind Jasmine, said something to her, and then touched her breasts and buttocks. Jasmine kept moving away from minor and telling him to stop; he kept following her and touching her. Jasmine tried to open the door to leave the room, but people were holding it closed.
Once the two were in the part of the room away from the door, minor went back toward the door and said "over here" to call Anthony, Scott, and Luis E. into the room. The four boys pushed Jasmine to the ground. Scott, Anthony, and Luis held Jasmine's arms and legs, while minor got on top of her. Minor continued to touch Jasmine's breasts over her clothes, while she told him to stop, for five minutes or so. All the boys were laughing. Jasmine could see people from the hall looking into the darkened room through the window in the door. When the bell rang, the boys left the room without saying anything. Jasmine got up and left as well to go to lunch. Jasmine did not initially tell anyone because she did not feel comfortable and she knew the people looking in through the window were talking about it.
Minor and the other boys were interviewed by a sheriff's deputy about the incident. The boys agreed to the facts as described by Jasmine, and stated that minor had asked Scott and Anthony to bring Jasmine into the choir room. Minor eventually came to the door and asked them to come inside the room to help him, at which point Scott, Anthony, and Luis entered the room and held Jasmine down.
The one difference in the accounts is that Jasmine recalled Luis stayed by the door during the entire incident, whereas the boys stated that Luis took part in holding Jasmine down, along with Scott and Anthony.
On August 10, 2009, the People filed a juvenile court petition against minor under Welfare and Institutions Code section 602, subdivision (a). The petition alleged that minor had committed a forcible lewd act upon a child under the age of 14 years (§ 288, subd. (b)(1), count 1), and sexual battery by restraint (§ 243.4, subd. (a), count 2.)
On March 4, 2011, after a contested jurisdiction hearing, the juvenile court found count 1 to be true and dismissed count 2. The case was then transferred from Los Angeles County to San Bernardino County for disposition. The juvenile court placed minor on probation in the custody of his parents. This appeal followed.
DISCUSSION
Minor challenges the finding that he violated section 288, subdivision (b)(1), on the ground that the evidence was insufficient to show that he intended to arouse his own sexual desires. He bases his contention on the fact he was only 12 years old at the time, and there was a lack of evidence of sexual arousal.
" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]' " (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088, quoting In re Jose R. (1982) 137 Cal.App.3d 269, 275.) Our review of any claim of insufficiency of the evidence is limited. "In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)
To find true the allegation that minor committed the crime of a forcible lewd or lascivious act upon a child under the age of 14 years, it was necessary to show beyond a reasonable doubt that minor touched Jasmine with the specific intent to arouse his own sexual desires. (§ 288, subds. (a), (b)(1); People v. Martinez (1995) 11 Cal.4th 434, 444, 452.) Because intent can seldom be proven by direct evidence, it may be inferred from the circumstances. (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) Circumstances relevant to proving that the intent was sexually motivated include the nature of the charged act, physical evidence of sexual arousal, 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 a reward for cooperation, a stealthy approach to the victim, admonishing the victim not to disclose the occurrence, clandestine meetings, and the age of the defendant. (Martinez, at p. 445; In re Jerry M., at p. 299.)
Section 288 provides in part: "(a) . . . any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body . . . of a child who is under the age of 14 years, with the intent of arousing . . . the . . . sexual desires of that person . . . is guilty of a felony . . . . [¶] (b)(1) Any person who commits an act described in subdivision (a) by use of force . . . is guilty of a felony . . . ."
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Minor relies on In re Jerry M., supra, 59 Cal.App.4th 289, to argue there was insufficient evidence of intent of sexual arousal. In that case, the perpetrator, an 11-year-old boy, on several occasions publicly touched the breasts of two 12-year-old and one 13-year-old girl, and coerced a 12-year-old girl to show him her breasts. The juvenile court found that the perpetrator committed four counts of violating section 288, subdivision (a).
On appeal, the appellate court reversed the lower court ruling on the ground there was insufficient evidence that the perpetrator committed the acts with specific intent of arousing his sexual desires.
In reaching this conclusion, the court relied on the following factors: "Jerry was 11 years old and there is no evidence he had reached puberty. There is no evidence of sexual arousal. (Cf. In re Paul C. [(1990)] 221 Cal.App.3d [43,] 54 [defendant 13 1/2 years old had an erection at time of offense].)" (In re Jerry M., supra, 59 Cal.App.4th at p. 300.) The court further noted that the minor victims knew Jerry; Jerry made no attempt to avoid detection as the touching took place during daylight, in public, and in the presence of others; the touchings were momentary; and there was no caressing. The Jerry M. court concluded that "[t]he record shows Jerry was a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal. Under these circumstances Jerry was perhaps guilty of battery [citation], but the record does not support a true finding beyond a reasonable doubt of conduct intended sexually to exploit a child—the 'gist' of section 288, subdivision (a). [Citation.]" (Ibid.)
In contrast, this court in In re Randy S. (1999) 76 Cal.App.4th 400 [Fourth Dist., Div. Two], upheld the juvenile court's finding that an 11-year-old boy violated section 288, subdivision (a). The minor's stepmother found him in the shower with his two-year-old stepsister with the door locked. The stepmother later noticed the girl's vaginal area was red and irritated. The girl told her mother that the minor had hurt her and pointed to her vaginal area. When the stepmother confronted the minor, he said that he hoped she did not think he sexually abused the girl. He claimed he was just trying to wash the soap off her body. He later stated that he put his fingers inside his stepsister, and he did not know why. When he was questioned by law enforcement officers, however, the minor denied that he touched the girl and claimed she had slapped her vaginal area and put carpet fibers inside her own body. (Id. at pp. 403-404.)
In Randy S., the minor relied on Jerry M., and argued there was insufficient evidence to show he intended to arouse his own sexual desire. The minor claimed he was only 11 years old at the time, he was prepubescent, and there was a lack of evidence of sexual arousal. However, we noted that "[w]hile it is reasonable to assume that if a young child is incapable of experiencing sexual arousal, the child would not intend to arouse his own sexual desires, it is likewise reasonable to assume that when a young child begins to experiment in sexual arousal, the child can harbor an intent to arouse his own sexual desires." (In re Randy S., supra, 76 Cal.App.4th at p. 406, italics omitted.)
In Randy S., we rejected the minor's evidentiary challenges and found several circumstances that distinguished the case from Jerry M. During the stepmother's initial confrontation, the minor volunteered that he hoped his stepmother did not think he sexually abused his stepsister. In addition, the minor had requested permission on prior occasions to shower with the girl, as recently as the same week, and the stepmother repeatedly refused and ordered him not to take showers with her. We found the minor had "an unnatural interest" in showering with the girl. (In re Randy S., supra, 76 Cal.App.4th at p. 407.) We also noted the incident was done in a clandestine manner, while the minor was alone with the girl, and the bathroom door was closed. Such conduct clearly showed he was trying to "keep the nature of his activities hidden" from the stepmother. (Ibid.)
We also addressed the minor's argument that given his young age he had not reached puberty, and his age should trump the other factors that must be considered in determining whether the touching was sexually motivated. (In re Randy S., supra, 76 Cal.App.4th at p. 407.) We rejected the minor's argument, and explained: "[The minor] knew he could be in trouble for sexually abusing [the girl]. He had gone into the bathroom with [the girl] on at least one occasion and locking the door, he placed his fingers in her vagina, and then he attempted to evade the consequences of his actions. Therefore, we are convinced that the circumstances surrounding [the minor's] actions demonstrate that he harbored the requisite intent to arouse his own sexual desires through the use of [the girl]. Although he may only have been experimenting sexually, his actions clearly evidenced an intent to sexually stimulate himself. We are mindful of the words of our high court, '[T]he circumstances of the touching remain highly relevant to a section 288 violation. The trier of fact must find a union of act and sexual intent [citation], and such intent must be inferred from all the circumstances beyond a reasonable doubt.' [Citation.]" (Id. at pp. 407-408, italics omitted).
In the present matter, unlike the facts in Jerry M. and looking at all of the circumstances in this case as we did in Randy S., several factors are present that may be relied upon in concluding there was sufficient evidence of intent to sexually arouse. First, minor here was 12 years 11 months old—closer to the age of puberty—at the time of the crime. Second, minor sent two of his friends to lure the victim to an empty, darkened room under false pretenses, then had them leave the room to block the door, and finally asked them and a third boy to enter the room to "help" him by holding down the victim when she proved too physically resistant to the assault by minor acting alone. Third, minor repeatedly fondled Jasmine's buttocks and breasts over a period of five to 10 minutes, even after she repeatedly told him to stop and attempted to leave the room through the blocked door. Viewed in the light most favorable to the judgment, a reasonable trier of fact could find that the preceding evidence sufficiently established minor's sexual purpose under section 288, subdivision (b)(1). We conclude substantial evidence supports the juvenile court's inference that minor acted with the requisite specific intent.
DISPOSITION
The juvenile court's judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RICHLI
J.