Opinion
H046315
11-26-2019
In re J.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.H., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] BY THE COURT:
It is ordered that the opinion filed herein on November 26, 2019, be modified as follows:
On page two, insert footnote 1 after the eighth sentence of the first full paragraph:
Doe testified on direct examination as follows:
Q: At some point, when you started again after you stopped the first time, did you try to stop again?
A: I did.
Q: And how did you do that?
A: I just kind of pulled my head back, but with his force on his hands, went backward.
Q: So you tried to move your head back?
A: Yeah.
Q: Okay. But did [J.H.] continue holding your head there?
A: Yes.
Q: Do you remember how long?
A: Three to four seconds.
Q: When he was pulling your head back and you were trying to pull away, how did that make you feel?
A: Confused.
Q: Why is that?
A: Because I've never experienced anything like that.
Q: At that point when you were trying to move your head back, did you want to stop?
A: Yes.
There is no change in the judgment.
The petition for rehearing is denied. Dated: __________
/s/_________
GREENWOOD, P. J.
/s/_________
ELIA, J.
/s/_________
GROVER, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 15-JV-41731)
J.H. was declared a ward of the juvenile court based on findings he committed forcible oral copulation and rape. He contends the evidence of forcible oral copulation is insufficient because he believed the act was consensual. Since the record contains substantial evidence showing a reasonable person would have perceived a withdrawal of consent, we will affirm.
I. BACKGROUND
The following summary is based on testimony at the jurisdictional hearing. J.H. and Doe were students at the same high school. One day in the spring of their sophomore year, J.H. invited Doe to his house. Doe described that she snuck in through his bedroom window because they "both did not want to get in trouble by his parents." They started kissing and J.H. asked if she wanted to have sex. Doe said no. He continued to ask, and eventually took off her clothes and they had intercourse. She did not physically resist; but she told him she was not ready, said no several times and asked, "Can we stop now?" Afterward, she felt she had been raped.
Less than a month later, J.H. and Doe made plans to meet for ice cream. They never got the ice cream but ended up sitting on some stairs outside an apartment complex. J.H. asked her to perform oral sex. She said something like, "Are you serious?" and sighed. He kept asking, repeatedly saying, "Come on," until she knelt in front of him and, in her words, "just did it." Not wanting to continue, she pulled her head away and stopped for six or seven seconds. She thought it was clear from her body language that she did not want to keep going. She resumed, but soon after stopped again. As she tried to pull away, J.H. held her head down with his hands. She continued trying to move her head away but could not. J.H. ejaculated, and Doe went home.
A few weeks later, J.H. asked Doe to help him clean his house. He took her to a laundry room, sat on a washing machine with his pants down, and requested oral sex. She rolled her eyes and began orally copulating him. Then she stopped and pulled away. The encounter ended because J.H. had somewhere he had to go.
J.H. and Doe stopped seeing each other for a while. But one night around 9:00, J.H. texted and asked her to come to his house, which she did. She testified that she wanted to see him and still cared for him, even though she was upset. They sat on J.H.'s bed and talked until they were interrupted by J.H.'s father coming home and knocking on the door. J.H. told Doe to hide in the closet. After his father left the room, J.H. told Doe she could not leave. She asked "countless times" if she could please go home and each time he said no. Doe was afraid to leave because J.H.'s father did not know she was there. She stayed in the bedroom all night while J.H. slept. In the morning, he asked if she would have sex and she said no. He proceeded to take his pants off, put on a condom, and pull her shorts aside. As he was having sex with Doe she did not push him away. She testified that she just "gave up," thinking if she got it over with she could go home. Doe decided she would not tell anyone about the incident because she felt embarrassed and ashamed, and did not want to think about it.
Almost a year later, Doe saw a story in the news about J.H.—he had sexually assaulted another girl. Around the same time, J.H. contacted Doe on social media. He messaged her, "I want to apologize for what happened months and months ago. Like, I know I can't just say sorry and get you to accept my apology, but I think from the bottom of my heart that I'm so sorry for everything I did. It was terrible. It was awful." Doe's response included the accusation, "You raped me, [J.H.]." His reply: "And I'm apologizing for it, like, I'm not trying to run away."
After seeing the news story and exchanging the social media messages, Doe reported what happened between her and J.H., first to her high school principal and then to police. She reported the two incidents involving oral copulation, and the events that occurred after she hid in the closet. The District Attorney filed a juvenile wardship petition alleging that J.H. had committed two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)); false imprisonment (Pen. Code, § 236); and forcible rape (Pen. Code, § 261, subd. (a)(2)).
At the jurisdictional hearing, the court received evidence that in a previous wardship proceeding J.H. was found to have committed forcible oral copulation (the assault Doe heard about on the news which prompted her to reveal her own story). The girl assaulted in that incident testified at the hearing here. Her description of how J.H. forced her to perform oral sex— "When he felt the resistance on my behalf, he started pushing my head down with a lot more force"—was similar to Doe's account.
The juvenile court found true one of the forcible oral copulation counts (the earlier of the two alleged incidents), as well as the forcible rape (the incident after Doe hid in the closet). J.H. was declared a ward of the court, placed on probation, and committed to juvenile hall for 30 days.
II. DISCUSSION
J.H. challenges only the forcible oral copulation count, contending there is insufficient evidence that he committed the offense. In reviewing the sufficiency of the evidence, we view the facts in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Arrellano (2004) 125 Cal.App.4th 1088, 1094.) As long as substantial evidence supports the trier of fact's findings, reversal is not warranted, even if that evidence can also be reconciled with a contrary finding. (Ibid.)
Forcible oral copulation requires that an act of oral copulation be accomplished by using force to overcome the victim's refusal to consent. (People v. Guido (2005) 125 Cal.App.4th 566, 576.) The offense also requires proof that the perpetrator understood, or reasonably should have understood, that the victim did not consent. (See People v. Williams (1992) 4 Cal.4th 354, 361.) J.H. argues the evidence is insufficient to prove that a reasonable person would have perceived a lack of consent. He asserts that Doe initially consented by willingly performing the act and when she wanted to stop "she did not communicate her desire to stop in such a way that a reasonable person would have understood she was no longer consenting."
Consent is defined by statute. It is "positive cooperation in act or attitude pursuant to an exercise of free will." (Pen. Code, § 261.6.) Positive cooperation must be present throughout a sexual act, from beginning to end. (See In re John Z. (2003) 29 Cal.4th 756, 760.) Our task is to determine if there is substantial evidence to show a reasonable person would have realized Doe did not consent to oral copulation at any point during the act. We find such evidence in the record: Doe described initially complying with J.H.'s request for oral sex but only reluctantly, and then stopping for six or seven seconds. Ultimately, she physically pulled away but J.H. prevented that by holding her head in place until he ejaculated. Viewed as a whole, that is enough for a trier of fact to find a withdrawal of consent that would have been apparent to a reasonable person.
Other evidence bolsters the juvenile court's finding: J.H. sent social media messages apologizing to Doe for "everything" he did and acknowledging his behavior was "terrible" and "awful" (undermining his claim that he believed the acts he and Doe engaged in were consensual). And J.H. had assaulted another girl in a very similar manner. Evidence Code section 1108 allowed the juvenile court to infer from the prior offense that J.H. has a propensity to commit forcible oral copulation, making it more likely he did so on this occasion. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823.) There is sufficient evidence that the oral copulation at issue was not consensual throughout, and that J.H. knew it or reasonably should have.
III. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Elia, J.