Opinion
A151882
06-29-2018
In re X.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. X.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV00723305)
X.L. (Minor) appeals from a judgment of the juvenile court finding she sexually penetrated the victim (Penal Code, § 289, subd. (e)), and molested her (§ 647.6, subd. (a)(1)). On appeal, Minor makes two arguments. First, Minor argues there was insufficient evidence she was motivated by an abnormal sexual interest in the victim when she took a photograph of her fingers inserted inside the victim's vagina. Second, she contends the juvenile court's interpretation of section 647.6, subdivision (a)(1) was incorrect. We disagree and affirm.
All undesignated statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
We begin with a review of the facts relevant to the issues on appeal.
Minor Moves in with her Friend
Both S.L. (Victim) and Minor were 17 years old in December 2016. Victim and Minor went to the same high school. Around December 2016, Minor's family was evicted, and Victim's mother agreed Minor could stay with them. Victim and her 15-year-old sister shared a bedroom. The first night she stayed, Minor slept in Victim's bed. From then on, Minor slept on an air mattress in Victim's bedroom.
Minor stayed at Victim's home from about "the week after Thanksgiving to a few days before New Year's." Minor drove Victim to school each day, and Minor usually dropped Victim off at home before Minor went to work. Minor got home from work around 10:00 p.m., and Victim would open the door and save dinner for her.
Minor described their relationship as "like sisters," and they "shared a lot of intimate stuff." During this time, Victim had a girlfriend and Minor had a boyfriend. Victim and Minor discussed their relationships. Victim and Minor were comfortable around each other, and they changed in the same room together. Minor felt like part of the family. The Events of December 24, 2016
On Christmas Eve, after visiting her boyfriend, Minor went to Victim's house. A plate of dinner was waiting for her, and Minor ate it in Victim's bedroom. Victim came to the bedroom to get her, and encouraged her to drink alcohol. When Minor arrived in the kitchen, there were three shot glasses on the table. Victim's parents were not in the kitchen.
Victim, Minor, and one of Victim's older sisters, began drinking Cognac. Minor and Victim each had about six or seven shots of Cognac. When Minor and Victim went to their bedroom, Victim testified she "blacked out," and Victim did not remember much of what occurred in the bedroom.
According to Minor, Victim and Minor were touching each other over their clothing. Soon after, Victim started vomiting. Minor informed Victim's older sister, who responded that Minor should take care of it. Minor did not get Victim's parents involved. Minor walked Victim to the bathroom, and Minor tried to help Victim vomit in the toilet. Intending to splash water on both their faces, Minor put Victim in the shower. Victim was leaning on Minor, with her clothes on. They were in the shower about two minutes. After the shower, Minor told Victim to lay on the bathroom floor. Victim's shirt was wet, so Minor helped Victim change.
When they got back to the bed, Minor claimed Victim was "tugging," "grabbing," and "touching" her. Victim pulled up her shirt and was moving her body in "a sexual manner." Victim put Minor's hand on Victim's vagina, and Minor "got the impression that she wanted me to finger her." Minor put her fingers inside Victim's vagina.
Minor grabbed her phone and took a picture of her fingers inside Victim's vagina. When asked why, Minor testified: "It wasn't on purpose or anything. It wasn't something that I was planning. It was not - it was none of that intention. I just - I don't even know why I grabbed my phone. As soon as I just seen it, that's the first thing that came to my mind, because it was on the bed." Minor's phone was about "two arm reaches" away. Minor took one picture and then threw her phone back on the bed. According to Minor, after she threw away the phone, she and Victim continued to touch each other.
Minor thinks Victim vomited again, and Minor also started to feel nauseous. Minor went to the kitchen. When Minor returned, she did not get back in bed with Victim. Instead, Minor collapsed on her own bed. About 30 minutes elapsed from the time Minor left the kitchen to when Minor collapsed on her own bed.
Subsequent Developments
When Victim woke up the next morning, she felt "off" and had a hangover. When Victim went to the bathroom, she could not find her tampon. She discovered it was "pushed all the way up," and when she urinated, she felt an "extremely bad" burning sensation. Victim was wearing different clothes, her hair was wet, and her usual blankets and sheets were not on her bed. Victim had a feeling that "something had happened," but she was not sure.
Minor also had a hangover, she felt "really sick," and she started vomiting. Minor mustered up "the strength to get up and open Christmas presents with everybody." Minor was thankful for the presents, but participating was "a struggle because I wanted to throw up." Minor felt bad all morning and afternoon.
Although Victim had a feeling Minor had "violated" her, she did not immediately tell anyone about it. A few days later, Victim told her 25-year old sister and her mother. Victim texted Minor about the incident, and told Minor she did not feel comfortable with Minor staying at the house. In addition, Victim's mother said Minor had to leave because the landlord was asking questions about Minor's vehicle, and Minor was not on the lease.
When Victim texted Minor regarding whether anything happened on Christmas Eve, Minor said no. Victim sent Minor a text asking why Minor felt her up, and Minor replied that she thought Victim was coming on to her. Victim did not tell the police about the incident because she did not have proof and she "just wanted to let it go." However, in February 2017, a friend of Victim told her she saw "a nude photograph" of Victim. Victim told her sister and mother. The following day, Victim and her mother went to the school principal and the police.
On February 15, 2017, Minor was called into the principal's office. When the principal found the photograph, Minor told the principal she obtained the photograph from the Internet. Minor admitted showing the photograph to a student at her high school. Minor stated she attempted to delete the photograph, but a software application on her phone restored it.
Later that day, police interviewed Minor in the principal's office, and Minor was not truthful with them regarding the photograph. The police took Minor to the Hayward Police Department, where a detective interviewed Minor. Minor was "extremely nervous," and she did not tell the truth. Minor began writing an apology letter to Victim, but Minor tore it up because it was not perfect.
Victim first saw the photograph when the police showed it to her. Victim had no memory of the photograph being taken. According to Victim, she never touched Minor's body in a way that was sexual, she never told Minor she was interested in her, and she did not give Minor permission to put her fingers in Victim's vagina. Minor, on the other hand, did not believe Victim had passed out. She claimed they were both drunk and slurring their speech, but, according to Minor, Victim did not resist when Minor and Victim were touching each other. Petition, Jurisdiction, Disposition, and Appeal
On February 16, 2017, the Alameda County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) charging Minor with sexual penetration by a foreign object (§ 289, subdivision (e); count 1) and child molesting (§ 647.6, subd. (a)(1); count 2). The juvenile court ordered Minor detained.
The juvenile court held jurisdictional hearings on May 23, 25, 26, and 31, and June 2, 5, and 9, 2017. At the June 9, 2017 jurisdictional hearing, the juvenile court stated "I've read a number of cases to satisfy myself that intoxication is not a defense and I find beyond a reasonable doubt that the charges are true. It just seems clear to me that the victim was not capable of consent and I think a reasonable person would have realized that." With regard to count two, the juvenile court stated "it's the picture that we are talking about," and the court found "[t]he conduct was motivated by an unnatural or abnormal sexual interest in the child and the child was under 18. So it seems to me that all of those elements have been shown beyond a reasonable doubt."
The juvenile court held disposition hearings on June 23, and July 10, 2017. The juvenile court ordered Minor placed under the care, custody, and control of the probation officer for placement in a suitable family home or group home. Minor appeals.
DISCUSSION
First, Minor contends there was insufficient evidence she "exhibited an abnormal sexual interest" in Victim when she took the photograph. Second, Minor contends the juvenile court's finding she violated section 647.6, subdivision (a)(1) was "based on an incorrect interpretation of the law." We disagree and affirm.
I
There Was Sufficient Evidence of an Abnormal Sexual Interest
In considering Minor's challenge to the sufficiency of the evidence, we focus on Minor's act of taking a photograph of her fingers in Victim's vagina. It is a misdemeanor to annoy or molest any child under 18 years of age. (§ 647.6, subd. (a)(1).) "A violation of section 647.6 requires proof of the following elements: [¶] 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 or in children generally; and [¶] 4. The child was under age 18 at the time of the conduct." (People v. Valenti (2016) 243 Cal.App.4th 1140, 1161.)
"In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) We must affirm if we find "evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Minor does not dispute there was evidence to support the first, second, and fourth elements of the offense. Minor's appeal focuses on the third element. Section 647.6 has been described as "a strange beast" because motive is usually not an element of a criminal offense. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1126.) But this statute requires "conduct ' "motivated by an unnatural or abnormal sexual interest" ' in the victim." (People v. Lopez (1998) 19 Cal.4th 282, 289; In re Gladys R. (1970) 1 Cal.3d 855, 867-868.)
We conclude there was sufficient evidence that Minor's taking of the photograph was motivated by an abnormal sexual interest. First, the photograph was taken under circumstances indicating Minor knew Victim could not consent to the digital penetration and the taking of a sexually explicit photograph. Here, Victim testified she "blacked out" on Christmas Eve, and she had no recollection of Minor taking the photograph. Victim first learned of the photograph when a school friend told Victim she saw "a nude photograph" of Victim, and Victim first saw it when police showed it to her. When Victim texted Minor regarding whether anything happened on Christmas Eve, Minor said no.
Minor knew Victim was intoxicated. Yet Minor revealed the photograph to another student at school. Additionally, Minor claimed she attempted to delete the photograph, but a software application on her phone restored it. When confronted by her school principal about the photograph, Minor told him she got it "off the Internet." Based on this evidence, it is reasonable to infer Minor knew she had done something wrong, and was motivated by an "abnormal sexual interest" in Victim when she took the photograph. (See American Heritage College Dict. (3d ed. 2000) p. 3 [defining "abnormal" as "[n]ot usual or regular; not normal; deviant"; see also Merriam-Webster's Collegiate Dict. (11th ed. 2014) p. 3 [defining "abnormal" as "deviating from the normal or average"].)
In arguing otherwise, Minor contends teenagers "take and post pictures of virtually everything they do." But in People v. Kongs (1994) 30 Cal.App.4th 1741 (Kongs), the court found it was reasonable to infer that a photographer's conduct was motivated by an abnormal sexual interest in children when he directed models to pose in awkward or compromising positions and took " 'crotch shots' " of the models. (Id. at p. 1751.) Similarly here, it is reasonable to infer Minor was motivated by an abnormal sexual interest when, while Victim was intoxicated, Minor took a photograph of her fingers in Victim's vagina. (See Kongs, at p. 1752 ["The deciding factor for purposes of a Penal Code 647.6 charge is that the defendant has engaged in offensive or annoying sexually motivated conduct which invades a child's privacy and security . . . ."]; see also Nicanor-Romero v. Mukasey (9th Cir. 2006) 523 F.3d 992, 1000 [describing section 647.6, subdivision (a) as "an annoying photograph away from a thought crime"] overruled on another ground in Marmolejo-Campos v. Holder (9th Cir. 2009) 558 F.3d 903, 911.) There was sufficient evidence to support the juvenile court's finding that Minor's conduct was motivated by an abnormal sexual interest in Victim.
II.
The Juvenile Court Did Not Incorrectly Interpret the Statute
Next, Minor argues the juvenile court's finding that Minor violated section 647.6, subdivision (a)(1) was based on "an incorrect interpretation of the law." We reject this argument. We begin with a review of the parties' arguments and the juvenile court's comments during the jurisdictional hearings.
When arguing the statute had been violated, the Agency initially focused on Minor's conduct of placing her fingers in Victim's vagina. The Agency relied on language from People v. Shaw (2009) 177 Cal.App.4th 92, 103 (Shaw), where the court stated " '[t]here can be no normal sexual interest in any child.' " (Italics added.) Minor responded that both she and Victim were 17 years old, they were each other's "peers," and, for this reason, her sexual interest in Victim could not be viewed as "unnatural or abnormal." The juvenile court acknowledged the statement from Shaw, but also noted it might be limited to cases where the defendant was an adult and the victim a minor. The Agency continued to argue that "any sexual conduct between two minors is a violation of the statute." Four days later, the juvenile court found beyond a reasonable doubt that the charges were true. With regard to count two, the juvenile court focused upon the taking of the photograph, and concluded this "conduct was motivated by an unnatural or abnormal sexual interest in the child
On appeal, Minor argues that by construing the statute "to encompass a per se rule that any sexual interest in a minor, or sexual conduct with a minor, is unnatural or abnormal, the juvenile court misinterpreted the statute." Minor argues that "had the court correctly understood that the 'unnatural or abnormal sexual interest' element of the offense was not satisfied simply by showing that the acts were directed toward someone under age 18, but that it required specific proof that [Minor] was motivated by such an interest, the court may well have found the evidence did not establish that she was motivated by an unnatural or abnormal sexual interest in [Victim]."
We are not persuaded. "[A] trial court's remarks in a bench trial cannot be used to show that the trial court misapplied the law or erred in its reasoning [unless] . . . [¶]. . . taken as a whole, the judge's statement discloses an incorrect rather than a correct concept of the relevant law, 'embodied not merely in "secondary remarks" but in [the judge's] basic ruling.' [Citations.]" (People v. Tessman (2014) 223 Cal.App.4th 1293, 1302.) The court's comments must "unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1440.)
Here, based on our review of the juvenile court's statements at the jurisdictional hearings, we cannot conclude the juvenile court relied on a "per se" rule that any sexual interest in a minor is motivated by an unnatural or abnormal sexual interest. The juvenile court took note of the statement in Shaw, supra, 177 Cal.App.4th at p. 103, but the juvenile court also questioned whether that language applied in a case involving two minors. We reject Minor's claim the juvenile court "clearly indicated it agreed with" the per se rule.
DISPOSITION
The judgment is affirmed.
/s/_________
JONES, P J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.