Opinion
No. A141329
02-28-2017
In re SEAN H., a Person coming under the Juvenile Court Law THE PEOPLE, Plaintiff and Respondent, v. SEAN H., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J41735)
This appeal, in which we review the prosecution of an adolescent for sex crimes committed when he was a child of 9 or 10 years old, raises difficult issues. They include issues relating to proof, most significantly, whether the evidence established that when, at 9 or 10 years old, he committed the sexual misconduct, he acted with the intent to sexually arouse himself or his victim, as well as issues relating to certain police interrogation tactics aimed at a 17 year old in an effort to elicit evidence about acts of sexual misconduct he was alleged to have committed much earlier, when he was a child. Finally, the appeal raises the question whether law enforcement unreasonably delayed prosecuting the young man, given that there was prior contact with law enforcement relating to conduct he was accused of engaging in long before the charges were filed.
Sean, who at all times relevant to the case was a minor, appeals from the Solano County juvenile court's jurisdiction and disposition orders, issued in a wardship proceeding initiated by the Solano County District Attorney pursuant to Welfare and Institutions Code section 602 et seq. At the jurisdictional hearing, held when Sean was 19 years old, the court found there was insufficient evidence to sustain the more serious allegations that Sean had repeatedly raped D.G., a neighbor girl several years younger than him, between 2004 and 2007, when he was 10 to 12 years old. However, the court sustained two counts, each of which alleged in identical terms that Sean had engaged in lewd and lascivious conduct in violation of Penal Code section 288 (section 288), subdivision (a) by touching D.G.'s vagina in three separate incidents (one more than needed to sustain the two counts). The evidence indicates the first two of the touching incidents occurred in the summer of 2004 in Sean's family's garage, when Sean was 9 years old, and the third occurred in his upstairs bedroom after he and D.G. returned to school when he was 9 or 10 years old.
Sean argues we should reverse the juvenile court's jurisdiction order sustaining these counts for several reasons. Chief among them is the lack of sufficient evidence (1) that he acted with sexual intent, as required by section 288, subdivision (a), and (2) that he appreciated the wrongfulness of his actions at the time, as required by Penal Code section 26. Sean's argument is premised in part on his contention that the juvenile court should have suppressed his recorded statement to a police investigator, given when he was 17 years old, because it was obtained in violation of his rights against self-incrimination under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We are troubled by some of the investigator's comments to Sean, but conclude we do not need to decide whether the juvenile court should have suppressed any part of the recorded statement. Even if it were admissible, it would not contribute anything to a determination of whether there is substantial evidence that Sean acted with the requisite sexual intent in any of the three touching incidents the court found occurred.
We further conclude there is insufficient evidence that Sean acted with sexual intent in the first two incidents, which D.G. testified took place in Sean's family's garage, making it improper for the court to rely on either to sustain one of the two section 288, subdivision (a) counts. However, we conclude that D.G.'s testimony about the third incident, which took place in Sean's bedroom, as well as Sean's mother's testimony about her son's knowledge by that time that it was wrong to touch other children's private parts, provide sufficient evidence to support the court's sustaining of one section 288, subdivision (a) count. We reject Sean's other arguments, including that the petition should have been dismissed because the People unjustifiably delayed prosecuting him until 2012 for events that occurred in 2004. Accordingly, we affirm in part and reverse in part the juvenile court's jurisdiction order, and we vacate the disposition order and remand for further proceedings consistent with this opinion.
BACKGROUND
In November 2012, the district attorney filed a wardship petition alleging in counts one and two that between October 13, 2004, and August 31, 2007, Sean, then 10 to 12 years old, committed lewd and lascivious acts upon D.G. in violation of section 288, subdivision (a). The district attorney further alleged in counts three and four that between these same dates, Sean forcibly raped D.G. in violation of Penal Code section 261, subdivision (a)(2).
According to the petition, Sean was born in October 1994.
Prior to a contested jurisdictional hearing, the court granted the prosecutor's motion under Evidence Code section 1108 to present evidence that Sean committed another lewd act, which was not charged, on another young girl, A.H., in 2007 when he was 12 years old. During the hearing, the court denied Sean's motion under Miranda to suppress the recorded statement Sean made during a police interrogation in 2012 when he was 17 years old, and overruled his counsel's related objections to portions of the recorded statement as they were played for the court.
The contested jurisdictional hearing commenced in November 2013. Evidence was presented that from 2004 to 2007, Sean lived with his mother, Cynthia H. (Cynthia), father and siblings in a house in Vacaville, California, where Cynthia ran a day care service. D.G., who was about four years younger than Sean, lived with her family next door. D.G. was friends with A.H., the daughter of Sean's older sister and Sean's niece, and was often in Sean's house.
A number of witnesses testified, including D.G., who was 15 years old at the time of the hearing. She testified that Sean began molesting her in the summer of 2004, when she was six years old. She testified that he first touched her vagina in his family's garage on two separate occasions (the first and second incidents), that some time later, after they had returned to school, he touched her "everywhere" and raped her in his bedroom (the third incident), and that he raped her repeatedly over the next three years. Also admitted into evidence was Sean's recorded statement to police investigator Andrew Talton, made when Sean was 17 years old, in which Sean said he touched D.G.'s vagina on three occasions when he was 10 years old and did nothing more.
The People presented evidence of uncharged misconduct by Sean when he was a child. In 2006 D.G. told a parent and a school administrator that Sean had repeatedly touched her vagina, and in July 2009 police investigated a report that Sean sent threatening text messages to her but they did not pursue the matter. Also, a parent of a toddler, A.B., in the day care program run by Sean's mother, Cynthia, reported to police in April 2005 that Sean and his brother had pulled down her daughter's pants and rubbed on her vagina. Sean, then 10 years old, admitted he had A.B. pull down her pants, but denied touching her, and his brother said they had two girls pull down their pants. Law enforcement did not take any further action regarding this incident because the girls were too young to be interviewed and their parents did not want charges brought; Cynthia later called the investigator to ask if he could arrange counseling for Sean because of his inappropriate behavior. Finally, a 2007 recording of eight-year-old A.H. was admitted into evidence, in which A.H. said Sean put his hand in her vagina as they bathed together once, causing her to bleed, and another time pulled down her underwear and "humped" her with his clothes off, putting his "potty" inside her "potty." A.H. testified at the jurisdictional hearing, when she was 15 years old, that she had made up these allegations to get attention.
At the conclusion of the hearing, the juvenile court found regarding the allegations of rape in counts three and four that the People did not meet their burden of proof because the evidence "was lacking in specificity as to some of the times and . . . regarding penetration and some of the details around that." The court found the allegations in counts one and two—that Sean committed lewd and lascivious acts upon D.G. in violation of section 288, subdivision (a)—"true beyond a reasonable doubt, the Court finding persuasive the specifics by the complaining witness on the first three occasions, the two in the garage and the one in the upstairs. It also found persuasive the admissions made by the minor, some of the other evidence at . . . the contest," and that Sean "clearly knew the difference between wrong and right at the time, based on the totality of the evidence."
Because the court found the rape allegations not true, we discuss them only to the extent necessary to resolve this appeal.
At a February 2014 disposition hearing, the juvenile court adjudged Sean to be a dependent of the court, ordered him to remain in his parents' custody, placed him on supervised probation with various terms and conditions, set his maximum term of confinement at 10 years, and ordered him to move out of his father's home within 90 days, reserving jurisdiction over his domicile.
Sean filed a timely notice of appeal. During the pendency of this appeal, we requested, and the parties submitted, additional briefing on what statute of limitations applied to the two section 288, subdivision (a) counts that the court sustained.
DISCUSSION
Sean argues we must reverse the juvenile court's jurisdiction and disposition orders for several reasons, and that regardless the prosecution untimely pursued the two sustained counts. In particular, he contends there was insufficient evidence of the requisite sexual intent and knowledge of the wrongfulness of his acts. We agree in part and disagree in part. We agree there was insufficient evidence that Sean acted with sexual intent during the first two touching incidents. However, we conclude that D.G.'s testimony about the third incident, together with Sean's mother's testimony of his knowledge, is sufficient evidence to support the sustaining of a section 288, subdivision (a) count. Accordingly, we affirm the court's sustaining of one count and reverse the other. We also conclude the prosecution timely pursued its claims.
I.
Sufficient Evidence Supports Only One of the Two Section 288 Counts.
Section 288, subdivision (a) states in relevant part: "[A]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (§ 288, subd. (a).) Penal Code section 26(One) requires that there be "clear proof" that a child under the age of 14 knew the wrongfulness of a criminal act before he or she can be found to have committed it.
Sean argues we must reverse the juvenile court's sustaining of the two section 288, subdivision (a) counts because there is insufficient evidence showing that he either acted with the requisite sexual intent or appreciated the wrongfulness of his acts, particularly because the trial court should have suppressed his statement to Talton as obtained in violation of his Miranda rights.
"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. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) We 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 (Jerry M.).)
Courts "have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done . . . . If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute . . . .' [Citation.] [¶] Thus, . . . cases have made clear . . . that sexual gratification must be presently intended at the time such 'touching' occurs." (People v. Martinez (1995) 11 Cal.4th 434, 444.) Minors, as well as adults, may be found to have acted with this sexual intent so as to violate section 288, subdivision (a). (See In re Randy S. (1999) 76 Cal.App.4th 400 (Randy S.) [11-year-old boy found to have violated section 288, subdivision (a) because of extrajudicial statements and conduct indicating he acted with the specific intent to arouse his sexual desires].)
Intent is seldom proven by direct evidence, but may be inferred from the circumstances. "Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, 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 of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings." (Jerry M., supra, 59 Cal.App.4th at p. 299.) Further, "the younger the minor the less likely his acts are with the specific intent of sexual arousal. At some age younger than 14 years . . . the minor cannot as a matter of law have the specific intent of sexual arousal." (Id. at p. 300.)
A. Sean's Statement to Talton
Sean contends that Talton made numerous comments during the interrogation that caused him to involuntarily and unknowingly waive his constitutional rights against self-incrimination.
1. The Relevant Proceedings Below
The court ruled on Sean's motion to suppress his statement to Talton after the People presented the relevant evidence at the jurisdictional hearing. Talton, a police officer with the Vacaville Police Department, testified that in 2012, he had D.G. make a "pretext" phone call to Sean in which Sean denied any knowledge of touching her. The next day, Talton went to Sean's school and interrogated him, then 17 years old, in a conference room. After reading Sean his Miranda rights, Talton spoke to him for about an hour and Sean made certain disclosures.
The recorded interrogation appears to have been played for the court. Sean's counsel objected now and again to portions of what was played on the grounds that Talton coerced Sean's disclosures by impliedly threatening he would take Sean to jail if he did not answer appropriately and by making statements, such as that Sean was just "experimenting" with D.G. when they were just "kids," that amounted to implied promises of leniency. The court overruled these objections and admitted the evidence.
The interrogation, contained on three CDs, was played for the court and admitted into evidence. Transcripts of the CDs were used at the hearing and are in the record, but are incomplete and do not appear to have been admitted into evidence.
2. Relevant Law
"A suspect, having been advised of his Miranda rights may waive them 'provided the waiver is made voluntarily, knowingly and intelligently.' " (In re Norman H. (1976) 64 Cal.App.3d 997, 1001.) The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's statement is made as part of a voluntary, knowing and intelligent waiver of his or her constitutional right against self-incrimination. (People v. Williams (2010) 49 Cal.4th 405, 436.) We determine voluntariness based on " ' "totality of [the] circumstances." ' " (People v. Leonard, (2007) 40 Cal.4th 1370, 1402.)
" ' "[A]ny promise made by an officer . . . express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law." ' " (People v. Ray (1993) 13 Cal.4th 313, 339.) However, " ' "mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary." ' " (In re Shawn D. (1993) 20 Cal.App.4th 200, 210.)
The Supreme Court has had a "long-standing concern about false confessions" that "may be most acute in cases involving the police interrogation of juveniles, particularly adolescents." (In re Elias V. (2015) 237 Cal.App.4th 568, 578.) Nonetheless, " '[a] minor can effectively waive his constitutional rights [citation] [fn. omitted] but age, intelligence, education and ability to comprehend the meaning and effect of his confession are factors in that totality of circumstances to be weighed . . . in determining whether the confession was a product of free will and an intelligent waiver of the minor's Fifth Amendment rights.' " (Id. at p. 576.)
When reviewing a trial court's suppression motion decision, we normally "conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence." (People v. Williams, supra, 49 Cal.4th at p. 425.) However, when, as here, " ' "the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court's determination of voluntariness." ' " (People v. McWhorter (2009) 47 Cal.4th 318, 346.)
3. Analysis
Sean contends that Talton made numerous comments that were so coercive as to violate Sean's constitutional right not to incriminate himself. We are not particularly troubled by some of these comments. However, we are troubled by others, as well as by Talton's misrepresentation of law in the middle of the interrogation, because they possibly amounted to implied promises of leniency that motivated Sean to make certain disclosures. Nonetheless, we need not decide if any part of Sean's statement should have been suppressed, because we conclude that his disclosures do not affect our determination of whether there is substantial evidence that he acted with the requisite sexual intent, or appreciated the wrongfulness of his acts.
At first in the interrogation, Sean denied doing anything other than kissing D.G. and horsing around with her when he was 10 years old. Talton told Sean he did not believe Sean was telling him everything, to be honest and to avoid "lying" to him "because that's just gonna get you in more trouble." He encouraged Sean to say what occurred "to put closure to this—put this thing to bed and just be up—honest." As we have discussed such exhortations to tell the truth alone are not unduly coercive. (See In re Shawn D., supra, 20 Cal.App.4th at p. 210.)
Early in the interrogation, Talton indicated that whatever Sean said, he was not going to jail that day. Talton repeated this commitment, saying, "I already promised you I'm walking out of here and you're going back to class today that's a promise I'm not going to take you to jail." Sean contends Talton's reassurance "would be sufficient to lull an adolescent into a false sense of security" that vitiated the Miranda warning. We do not agree. Talton's reassurance appears to have merely indicated Talton was still investigating the matter and that Sean would be going back to class whatever Sean said.
Sean further contends that Talton made implicit promises of leniency in his "numerous statement[s] to the effect that [Sean's] conduct occurred when he was just a little kid, that he was just 'experimenting,' that he was not an 'anomaly,' and that he was not a bad person." For example, Talton said, "If you guys were experimenting or doing whatever so be it," and "I mean even if that happened when she was six that would have put you at 10 years old, I mean you're 10 years old okay?" He also distinguished Sean from the people he said he usually investigated, who were "really, really, really bad people," saying Sean was "not even close" to that "category" of people and did not "fit that mold." These statements are troubling because they suggest Sean would be treated more leniently if he admitted sexual acts because of his young age at the time, that he was just "experiment[ing]", and that he generally had a good character compared to the suspects Talton usually encountered.
After these exchanges, Sean indicated that he once touched D.G.'s vagina inside her pants and nothing more. Specifically, Sean said he "touched [D.G.'s] like area but I never like—like you know how you go inside—I've never been inside but I just like you know just messed around like rubbed but that's—like around . . . ." He continued, "Like never like fingered her or anything. I've never done anything like I just touched it and like touched her," and said he was referring to her "vagina or whatever." He said D.G.'s clothes were on but that he went inside her pants and "[j]ust like touched it and then that was it like nothing more than that." He denied putting his fingers inside her vagina, saying that he just "rub[bed] it like the top" when they were outside, and never when they were in his house. D.G. "didn't do anything. She just like, nothing she kissed me and stuff like that like she felt like she likes me or something but never pushed me away or anything, nothing at all." Asked "what were you thinking at the time that made you do that?," Sean replied, "Mm, just like feelings for a girl like I guess . . . ." Talton asked him if he had liked D.G. and he said, "A little bit." He further stated, "I was just curious I guess," and, "I guess—developing feelings you know?"
Sean's "admission" here is of questionable reliability, as it fit neatly into the story line Talton encouraged him to adopt and suggested would not lead to further law enforcement action. Rather than being one of "those guys" Talton had to be "worrying about down the road," as Talton put it, Sean and D.G. were merely "kids" who were just experimenting, and Sean's admission to it would, as Talton also said, help Talton bring "closure" to the matter, "put this thing to bed," and not have to take Sean "to jail."
Sean denied more had occurred and Talton continued questioning him. In the course of doing so, he directly misrepresented the law. Around the 31st minute of the interrogation, Talton asked Sean his definition of "rape," and in doing so Talton said, "if she wanted it, it makes it okay, right?" After Sean agreed, Talton asked, "Was there ever a time that you both experimented with each other more than you just touching her?," and then said "if there's nothing else, you know, fine, but if there was, I need you to be honest with me." (Italics added.) The clear import of Talton's comments is that touching D.G.'s vagina or more with her consent was not a criminal act. This is not the case under section 288, subdivision (a) (or the rape count), which contains no such exception to criminal liability. Talton's misrepresentation implied that if Sean merely engaged in consensual touching with D.G., this did not concern Talton. As such, it, as well as Talton's comments about S.H.'s young age, "experimenting" and relatively good character that we have already discussed, would be the kind of "minimization tactics" this court has referred to as " 'designed to provide the suspect with moral justification and face-saving excuses for having committed the crime in question,' a tactic that 'communicates by implication that leniency in punishment is forthcoming upon confession.' " (In re Elias V., supra, 237 Cal.App.4th at p. 583.)
It also could be argued that Talton's misrepresentation of law was the "motivating cause" of Sean's subsequent disclosures of a second and third time when he touched D.G.'s vagina when he was 10 years old. A few minutes after Talton's misrepresentation, Sean stated that in addition to the first incident, he touched D.G.'s vagina "[t]wi—twice—couple times. Not more than three, though." The second incident came about "[j]ust pretty much all the same. Like, we just—outside just hangin' out" and things "just happen[ed]." He continued, "We would just, like, look at each other and then, like, kiss each other and then that's what would happen." A third incident occurred in his bedroom. Nothing but touching occurred, he said, he never took off his clothes and D.G.'s shirt might have been off but her pants were on.
This interrogation raises serious questions, but we do not need to determine whether any of Talton's tactics crossed the constitutional line because, as we will discuss, D.G.'s testimony establishes that these three incidents occurred and, further, what Sean said in the interrogation does not aid our determination of whether substantial evidence shows he acted with sexual intent or with an appreciation of the wrongfulness of his acts. Sean provided only sparse descriptions of his touching D.G.'s vagina in the three incidents, and none of his descriptions indicate he acted with sexual intent or an appreciation of the wrongfulness of his acts.
Regarding sexual intent, Sean did indicate his reasons for his actions in the first incident. In response to Talton asking him what he was thinking at the time, Sean said, "Mm, just like feelings for a girl like I guess," "I was just curious I guess" and "I guess—developing feelings you know?" (Italics added.) Such conjectural statements cannot be reasonably relied on to conclude that he acted with the requisite sexual intent, particularly in regard to incidents occurring when he was 9 or 10 years old. As our Supreme Court has instructed repeatedly, " '[a] reasonable inference . . ."may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work." ' " (People v. Davis (2013) 57 Cal.4th 353, 360, quoting People v. Morris (1988) 46 Cal.3d 1, 21 [disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5].) Any suggestion that Sean's comments indicated he acted with sexual intent is further undermined by the fact that his "guess[es]" were made seven years or more after the fact and because his conjecture that he "was just curious," even if it had evidentiary significance, implies he acted for reasons other than sexual intent. Accordingly, we must look to other evidence to determine if Sean acted with sexual intent in the three subject incidents.
B. There Is Substantial Evidence of Sexual Intent Regarding the Third Incident Only.
Upon our review of the totality of the circumstances, we conclude there is not substantial evidence that Sean acted with sexual intent in the first two incidents, described by D.G. as occurring in Sean's family's garage, but there is substantial evidence that he acted with sexual intent in the third incident, which both Sean and D.G. indicated occurred in Sean's bedroom.
D.G. testified that Sean first touched her vagina when she was six years old, in the summer of 2004. D.G. testified that the two were alone in his family's garage. It was daytime, one of two garage doors was open, but they were behind "a wall of stuff" where they could not be seen by people outside the garage. Other children were playing in the backyard. Sean touched D.G.'s vagina over her clothing. She told him to stop. When he did not, she pushed him away and walked out of the garage.
According to D.G., a second incident occurred one afternoon "a couple of weeks later" when the two were again alone in the garage. Sean "stuck his hand down [her] pants" and touched her vagina, and she ran away. No one was in the house at the time. She did not tell anyone what Sean had done to her in this incident "because he had threatened me."
D.G. testified that another time when she was "a little bit older," but still six years old, she was in Sean's upstairs bedroom, which was a "hangout area," with Sean and his two brothers. It was after school, about 5 p.m. on a Friday afternoon. When the brothers left the room, Sean removed D.G.'s clothing and touched her "everywhere" while they were on the floor. D.G. told appellant to stop, but he did not. Sean removed his pants, held her arms down, told her not to move, and "raped" her, by which she meant "where a guy sticks his private part into a girl's private part." After about three or four minutes he stopped, got off of her, and told her to get dressed. She indicated she was "stuck in this room with him" for about 10 minutes. He then said "to not tell or he will hurt me or my family."
D.G. further testified that in 2012 she was suicidal and wrote what Sean had done to her in a suicide note that she showed to her mother. D.G.'s mother testified that she arranged counseling for D.G. which led to the counselor reporting D.G.'s allegations to police.
D.G.'s testimony provides insufficient evidence that Sean acted with sexual intent in the first two incidents that she said occurred in his family's garage. However, D.G.'s testimony provides substantial evidence of evidence beyond a reasonable doubt that Sean acted with the requisite sexual intent regarding the third incident in his bedroom. We reach these conclusions based on our review of the only two cases we have found that evaluate the sexual intent of a child as young as 11 in determining whether section 288, subdivision (a) was violated, Jerry M. and Randy S.
We do not further discuss the evidence of accusations against Sean regarding A.B. in 2005 and A.H. in 2007. The evidence regarding the former does not indicate Sean acted with sexual intent, however inappropriate his conduct, and the latter incident occurred almost three years later, after Sean probably reached puberty, fundamentally altering the circumstances. Further, as we will discuss, none of this evidence is necessary for us to conclude that Sean acted with the requisite sexual intent and appreciation of the wrongfulness of his conduct in the third incident.
Jerry M. was an 11-year-old boy. (Jerry M., supra, 59 Cal.App.4th at p. 292.) The juvenile court found that he touched the breasts of girls under the age of 14 on three occasions, and coerced one of them to show him her breasts. In the first instance, he approached a group and without the girl's permission squeezed her breasts through her shirt. (Id. at p. 294.) A month later, he borrowed this same girl's bicycle and refused to return it until she showed him her breasts and, according to the girl, he touched her breasts this time as well. (Ibid.) That same month, he went over to a girl on the steps of her apartment building, asked her a question that she ignored, put his hands under her T-shirt and bra, and touched her breasts with his fingertips. (Ibid.) He was between the second and fourth months of his eleventh year of age when he committed these acts, and his mother had told him it was wrong to touch girls in certain places. (Id. at pp. 294-295.) The juvenile court sustained four counts alleging that Jerry M. by his acts had violated section 288, subdivision (a), and Jerry M. appealed. (Jerry M., at pp. 292-293.)
The appellate court focused on whether there was substantial evidence supporting a finding beyond a reasonable doubt that Jerry M. had acted with the specific intent of arousing his sexual desires. (Jerry M., supra, 59 Cal.App.4th at p. 299.) The court, after noting the circumstances from which such intent can be inferred (ibid.), concluded that a "[a] rational trier of fact could not conclude beyond a reasonable doubt that Jerry acted with the specific intent sexually to arouse himself." (Id. at p. 300.) In reaching this conclusion, the court considered that "Jerry was 11 years old and there is no evidence that he had reached puberty. There is no evidence of sexual arousal. [Citation.] Each of the minor victims knew Jerry; his conduct was in public, during daytime in the presence of others; and there was no attempt or opportunity to avoid detection. There was no clandestine activity preceding the touching, no stealthy approach or modus operandi and no admonishment to the victims not to disclose the occurrence. There was no attempt to prolong the touching beyond the initial momentary contact; there was no caressing. The 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." (Ibid.) The court continued, "Under these circumstances Jerry was perhaps guilty of battery (§ 242), 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)." (Ibid.)
In Randy S., supra, 76 Cal.App.4th 400, 11-year-old Randy S.'s stepmother heard him in the shower with his two-year-old stepsister with the door locked. (Id. at p. 403.) The stepmother later noticed the girl's vaginal area was red and irritated. (Ibid.) The girl said Randy S. had hurt her and pointed to her vaginal area. (Ibid.) When the stepmother confronted him, Randy S. said that he hoped she did not think he had sexually abused the girl, and claimed he was just trying to wash the soap off her body. (Ibid.) He later stated that he put his fingers inside his stepsister, and he did not know why, but later denied doing so to an investigating sheriff's deputy. (Id. at pp. 403-404.)
On appeal, Randy S., relying on Jerry M., argued there was insufficient evidence that he acted with sexual intent, as he was only 11 years old at the time and prepubescent, and there was a lack of evidence of sexual arousal. (Randy S., supra, 76 Cal.App.4th at p. 406.) The court concluded 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 sexual desires, it is likewise reasonable to assume that when a young child begins to experiment in sexual arousal, the child can harbor intent to arouse his own sexual desires." (Ibid.) It noted that unlike Jerry M., before the incident Randy S. had repeatedly requested and been denied permission to shower with his two-year-old stepsister; nonetheless he showered alone with her in the bathroom early one morning after locking the bathroom door; his stepmother, upon discovering they were again in the bathroom showering, found her daughter's vagina red, raw and swollen; and the girl told her mother that Randy S. had "hurt my pee-pee." (Id. at pp. 403, 407.) Further, when his stepmother went to talk with Randy S. at school later that morning, he said " 'I hope you don't think that I sexually abused [the girl].' " (Id. at p. 403.) Initially he claimed to have put his fingers in his stepsister while washing her, later admitted he put his fingers inside her but did not know why and then concocted another story that the girl had slapped herself until she was red. (Id. at pp. 403, 404.) All of this evidence distinguished the case from Jerry M. (Randy M., at pp. 406-408.) The court held the lack of evidence of puberty or sexual arousal was not determinative, stating, "[W]e are convinced that the circumstances surrounding [his] 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." (Id. at p. 407.)
We conclude D.G.'s description of the first two incidents are close to the facts in Jerry M. D.G. stated that the two incidents occurred in the summer of 2004, when she was six and Sean, born on October 9, 1994, was 9 years old. There is no evidence indicating he had reached puberty by that summer or was sexually aroused in either incident. Further, what can be inferred about intent from the circumstances surrounding these incidents is ambiguous. D.G. said the first incident occurred when the two were alone in a visually obscured area of the garage, but that one of the garage doors was open and other children were playing in the backyard. She provided no details about the second incident other than it occurred in the afternoon when the two were again alone in the garage. Thus, we have two circumstances where the two were alone, but in an area where they could have encountered others; D.G.'s account indicated Sean's touches of her vagina were fleeting, the first being on her outer clothing. D.G. did testify that she did not tell anyone about these incidents "because [Sean] had threatened me," but she did not state whether he did so at the time of the incidents or later, when, she made clear, he did threaten her. These circumstances do not provide substantial evidence of evidence beyond a reasonable doubt that Sean at the age of nine and without evidence of puberty or sexual arousal, acted in these two incidents with sexual intent, however inappropriate was his conduct.
On the other hand, D.G.'s account of the third incident, in Sean's bedroom, indicates a sexual intent similar to that discussed in Randy S. This incident occurred when she was a little older and Sean was about 10 years old because D.G. indicated it occurred after they had returned to school. It occurred when the two were alone in Sean's bedroom. Even disregarding D.G.'s statements, rejected by the juvenile court, that Sean "raped" her, the actions she described in the bedroom were significantly more extensive than in the two earlier touching incidents. D.G. testified that the assault by Sean in the bedroom lasted three or four minutes. She testified that Sean removed all of her clothes, ignoring her telling him to stop. She also testified that he took off his own clothes. And she testified that he touched her "everywhere." Finally, she testified that Sean warned her at the time of that incident not to tell anyone what he had done or he would hurt her or her family. These circumstances provide sufficient evidence that Sean acted with the intent to arouse himself sexually when he assaulted D.G. in the bedroom.
The juvenile court determined that the rape charges were not proven beyond a reasonable doubt, and thus had questions about D.G.'s accounts on that subject. But its explanation indicated the limits of its questions, which were about her accounts "lacking in specificity as to some of the times and . . . regarding the penetration and some of the details around that." This does not mean the court had questions about other facts recounted by D.G., such as regarding Sean's removing all of her clothing and touching her "everywhere" in the third incident. The court could and did reasonably believe that Sean sexually assaulted D.G. in this third incident, but that a rape was not established beyond a reasonable doubt.
C. There Is Substantial Evidence That Sean Appreciated the Wrongfulness of His Acts at the Time of the Third Incident.
Sean also argues there is insufficient evidence to satisfy the requirement of Penal Code section 26 that there be "clear proof" Sean knew the wrongfulness of his acts at the time of any of the subject incidents, including the third incident in Sean's bedroom. We reject this argument.
This "clear proof" is required by Penal Code section 26(One), which states: "All persons are capable of committing crimes except . . . [¶] . . . [c]hildren under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness." This "finding of capacity is a prerequisite to an adjudication of wardship for a minor under 14. [Citation.] The prosecution may rebut Penal Code section 26(One)'s presumption of incapacity by producing ' "clear proof" ' that the minor appreciated the wrongfulness of the conduct when it was committed, 'as demonstrated by [the child's] age, experience, conduct, and knowledge.' [Citation.] . . . While knowledge or wrongfulness may not be inferred from the act alone, ' "the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment" may be considered.' " (People v. Cottone (2013) 57 Cal.4th 269, 280-281.) " 'Clear proof" in this context means clear and convincing evidence." (Id. at p. 280.)
A trier of fact making a Penal Code section 26 determination "does not attempt to read the mind of the minor, but considers the objective attendant circumstances of the crime—such as its preparation, the method of its commission, and its concealment—to determine whether the minor understood the wrongfulness of his or her conduct. [Citation.] 'Reliance on circumstantial evidence is often inevitable when . . . the issue is a state of mind such as knowledge.' " (People v. Lewis (2001) 26 Cal.4th 334, 379.)
At the conclusion of the jurisdictional hearing, the juvenile court found that "as to Counts One and Two, [Sean] clearly knew the difference between wrong and right at the time, based on the totality of the evidence." There is substantial evidence of clear and convincing evidence that Sean appreciated the wrongfulness of his conduct at the time he engaged in the third incident.
Specifically, his mother, Cynthia, testified that she taught all of her children how to treat other kids "[b]y telling them what's right and wrong." She said she told them, " 'how would you like to be treated or how would you feel if you were in a position if you [sic] didn't like.' " It was important for her children to know how to treat the children in her day care program, which she operated out of her home. She had taught her sons about "the birds and the bees," and was "positive" that Sean knew when he was 10 years old that it was not appropriate to touch a girl's vagina. The court asked Cynthia, "Just so I understand, before the age of ten, did you have any discussions with [Sean] about it being inappropriate to touch anybody's private parts?" Cynthia replied, "Yeah, I taught all my boys that we keep our hands to ourselves." She testified that she told her sons, "[W]e don't fondle other people's parts, anybody."
In his reply brief, Sean argues for the first time that this part of Cynthia's testimony was "inadmissible testimony as to the mental state of another." This argument is tardily made and, therefore, we disregard it. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 ["Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before"].)
Cynthia's testimony is sufficient by itself to support the juvenile court's finding that Sean knew the wrongfulness of his actions in the third incident, which took place in his bedroom. That finding is further supported by D.G.'s testimony that Sean did not assault her there until after his brothers left the bedroom and that Sean threatened to harm her or her family if she told anyone what he had done. This testimony, too, demonstrates that Sean appreciated the wrongfulness of his acts in the bedroom at the time he committed them.
Sean further argues that we must vacate the juvenile court's orders because the court erred in its "wrongfulness" finding, since it stated not that Sean knew the wrongfulness of his touching D.G.'s vagina, but merely that Sean "clearly knew the difference between right and wrong at the time." We disagree. Sean does not establish that the court was required to use any "magic words" in stating its finding. The court indicated it was specifically talking about "Counts One and Two," making it apparent the court intended to mean that there was sufficient evidence to satisfy the requirement of Penal Code section 26(One), i.e., that Sean knew it was wrong for him to touch D.G.'s vagina when he did so.
In short, we conclude there is sufficient evidence that Sean acted with the requisite sexual intent and knowledge of the wrongfulness of his acts in the third incident, which occurred in his bedroom, but that there is not sufficient evidence that he acted with sexual intent regarding the first two incidents, which D.G. testified occurred in Sean's family's garage. Therefore, we affirm the juvenile court's jurisdiction order to the extent it sustained the first section 288, subdivision (a) count, but reverse the order to the extent it sustained the second section 288, subdivision (a) count. In light of this partial reversal, we vacate the court's disposition order and remand the matter for disposition proceedings consistent with this opinion.
II.
Sean's Evidence Code Section 1108 Argument Lacks Merit.
In light of our analysis, we do not address in any detail Sean's argument that the juvenile court erred in granting the prosecution's motion under Evidence Code section 1108 to admit evidence of Sean's alleged uncharged sexual assault of A.H. in 2007. We do not rely on this evidence for any of our conclusions here. Also, even if the court erred, it would be harmless in light of the strong evidence of Sean's misconduct in the third incident whatever harmless error test is applied, including People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Mullens (2004) 119 Cal.App.4th 648, 659 ["Error in the admission or exclusion of evidence [under section 1108] following an exercise of discretion under section 352 is tested for prejudice under the Watson harmless error test"].) We note also that the juvenile court did not cite this incident at all in stating its findings at the jurisdictional hearing.
Evidence Code section 1108, subdivision (a) states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Evidence Code section 352 states, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
III.
The Prosecution Timely Pursued the Two Section 288 Counts.
Sean also argues the prosecution was time-barred from pursuing the two section 288 counts and, in any event, unjustifiably delayed pursuing these claims in violation of his due process rights. We disagree with both arguments.
A. The Prosecution Brought the Counts Within the Time Period Allowed by the Applicable Statute of Limitations.
The district attorney filed the petition containing the two section 288 counts within the time allowed by the applicable statute of limitations, a former version of Penal Code section 801.1, subdivision (a). When the district attorney filed the wardship petition regarding Sean, Penal Code section 801.1 stated the time to bring a section 288 count under the circumstances of this case was as follows: "Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim's 28th birthday." (Stats. 2007, ch. 579, § 40 [former § 801.1, subd. (a), italics added].)
Effective January 1, 2015, section 801.1 was amended to expand the limitations period to any time prior to the victim's 40th birthday. (Stats. 2014, ch. 921, § 1; see Pen. Code, § 801.1, subd. (a)(1).)
The district attorney filed the two section 288 counts in juvenile court on November 2, 2012. Each count alleged Sean had violated section 288 between October 13, 2004, and August 31, 2007, regarding "a child under the age of fourteen years." Thus, the prosecution alleged the child victim was one or more days shy of 14 years of age as of the earliest date of Sean's violations, October 13, 2004, making her at most only 22 years old when the petition was filed. This was corroborated by D.G.'s testimony that she was 15 years old at the time of the trial and six years old when Sean sexually assaulted her. Accordingly, the petition was timely filed under former section 801.1, subdivision (a).
In our supplemental briefing order on this issue, we asked the parties, to the extent they relied on former Penal Code section 801.1, subdivision (a), to address how "the phrase relating to penetration by an unknown object," applies here, if at all. Having reviewed the parties' briefing on this question, we agree with the People that this phrase does not apply to a section 288, subdivision (a) offense and, therefore, does not preclude application of former section 801.1, subdivision (a) to the prosecution's section 288, subdivision (a) counts.
The meaning of former section 801.1, subdivision (a) is a legal issue of statutory interpretation that we independently review. " '[W]e begin with the fundamental rule that our primary task is to determine the lawmakers' intent.' [Citation.] The process of interpreting the statute to ascertain that intent may involve up to three steps. . . . '[W]e first look to the plain meaning of the statutory language, then to its legislative history and finally to the reasonableness of a proposed construction.' " (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.)
The language of former section 801.1, subdivision (a) provides a significant indication of the Legislature's intent. The "unknown object" language in former section 801.1, subdivision (a) is contained within a phrase referring to Chapter 293 of the Statutes of 1991. This language follows two uses of the term "or" and is separated from other statutory references by a comma: "prosecution for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object, that is alleged to have been committed when the victim was under the age of 18 years, may be commenced . . . ." (Italics added.) This phrasing and punctuation suggest that "relating to penetration by an unknown object" was intended to relate solely to Penal Code "[s]ection 289.5, as enacted by Chapter 293 of the Statutes of 1991."
This textual analysis is confirmed by the legislative history for Penal Code section 289.5. Chapter 293 of the Statutes of 1991 enacted former Penal Code section 289.5, which related to "penetration . . . of the genital or anal openings of any person . . . by a penis or by any foreign object . . . ." (Stats. 1991, ch. 293, § 1, italics added.) It was repealed in 1993. (Stats. 1993-1994, 1st Ex. Sess., ch. 39, § 2.) The current version of Penal Code section 289.5 relates to a different subject matter entirely—sex offenders fleeing California with the intent to avoid prosecution. (Pen. Code, § 289.5.) Given this change in subject matter for the same numbered statute, it is apparent that the Legislature in former section 801.1, subdivision (a) referred to Section 289.5 "as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object" to distinguish it from the later version of section 289.5 regarding fleeing sex offenders that replaced it. This is made further apparent by the fact that to apply the "unknown object" language to other statutes mentioned in former section 801.1, subdivision (a) would be absurd because some of these statutes do not involve "an unknown object." (See Pen. Code, § 286, subd. (a) ["Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person"]; id., § 288a, subd. (a) ["Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person"].)
In short, we conclude that the statute of limitations in former section 801.1, subdivision (a) applied to violations of section 288, subdivision (a), whether or not there was penetration with an unknown object. The district attorney therefore timely filed the wardship petition alleging the two section 288(a) counts regarding Sean
B. Sean Does Not Establish an Unreasonable Delay in Prosecution of the Sustained Counts.
Sean also argues the prosecution unjustifiably delayed prosecuting Sean, thereby interfering with his ability to mount a defense in violation of his constitutional due process rights. We disagree.
1. The Relevant Proceedings Below
The People's evidence included Sean's statement to Talton; the testimony of D.G.; and the testimony of both a former elementary school administrator that D.G. said in the spring of 2006 that Sean had touched her vagina over 100 times and a Child Protective Services (CPS) worker that CPS "evaluated out" the matter at the time.
After the prosecution presented its case against Sean, Sean's counsel moved for dismissal of the charges against him. Counsel argued, "I don't think the case should be able to proceed for one, the things that was [sic] mentioned during the cross-examination of the complaining witness were specificities dealing with dates and time and so forth, and the complaining witness was unable to provide that type of specific information. The reason I mention that is there was a substantial delay in the filing of this petition . . . . [¶ . . . [T]hat delay, coupled with the lack of specificity of the complaining witness, in my view, provides a basis and a justification for the Court dismissing this petition outright. [¶] . . . [¶] . . . [S]o I think the two coupled together at this time really do violate his due process, and so I would invite the Court to dismiss the petition on that ground."
The intended legal basis for the motion is unclear. Sean's counsel moved pursuant to a specific statute, quoted in the reporter's transcript as "section 708.1," while the court is quoted as denying "the 700.1 motion." There is no section 708.1 in the Penal Code or the Welfare and Institutions Code, and no section 700.1 in the Penal Code. Welfare and Institutions Code section 700.1 involves motions to suppress evidence obtained in an unlawful search and seizure. Regardless, Sean's counsel argued below, and argues here, that Sean's due process rights were violated by the prosecution's unreasonable delay. --------
The prosecutor responded, "[L]ate reporting is fairly common in this case. [D.G.] did report to a teacher, and the teacher reported to CPS, and CPS failed her. . . . The system has failed her. [¶] But with regard to the specificity of the time period, she was very clear that it first happened when she was 6, and that last time it happened was when she was 8-and-a-half, and she talked about it happening at Sean's house, and she was specific about where in the house and the time of day, and the People don't think that they are required to show more than that."
The court denied the motion without explanation.
2. Analysis
Although "[t]he statute of limitation is usually considered the primary guarantee against overly stale criminal charges, . . . the right of due process provides additional protection, safeguarding a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." (People v. Abel (2012) 53 Cal.4th 891, 908.) Accordingly, "[t]he due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging." (People v. Cowan (2010) 50 Cal.4th 401, 430.)
We review a trial court's denial of a motion to dismiss for such a delay for an abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at p. 431.) We defer to the trial court's factual findings if supported by substantial evidence. (Ibid.) Whether the delay is unreasonable and prejudicial is a question of fact. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.)
Sean argues that the prosecution unjustifiably delayed prosecuting him because "[i]nexplicably, no prosecution commenced when D.G. first reported her alleged molestation to police in April of 2006, and no prosecution was commenced when D.G. reported her alleged molestation to the police a second time in July of 2009. The prosecution proclaimed that the 'system failed,' but this is no justification at all for the delay in prosecution."
Sean's argument is unpersuasive because the record does not support his assertion that D.G. told the police in 2006 or 2009 about his lewd and lascivious conduct towards her.
a. D.G.'s 2006 Disclosures
Regarding 2006, D.G. testified that when she was six years old, in what she thought was the spring of 2004, she told a parent at her school "what happened" to her (she was not asked what she said) and that this parent told her teacher, who pulled her aside "and tried, I guess, asking questions without trying to lead me on, but I refused to say it after, because I told other people and it never came about." In later testimony, asked who she told about Sean raping her, D.G. again referred to telling this parent at school that "something happened," and testified that her teacher "tried to get it out of me but never was able to get it out." She did not know if she told the teacher that Sean had "done something wrong."
A retired elementary school administrator testified that in April 2006, D.G.'s teacher came to her office and told her D.G. said Sean had touched her vagina; subsequently, the administrator testified, D.G. told the administrator that Sean had "touched her . . . over a hundred times in her vagina," including the day before. The school administrator wrote a report to CPS, and a CPS employee came to the school to investigate and talk to D.G. CPS records showed that in 2006 it received a report that D.G. was the victim of lewd touching. According to a CPS employee who testified, it was determined that the report did not meet the criteria for CPS investigation and it appeared from CPS records that it "evaluated this referral out and did nothing further." However, CPS records did not indicate the matter was referred to police.
According to D.G., two uniformed police officers came to her home a couple of days after she told the parent at her school. She remembered an officer "kind of asked if there's anything wrong. It was like, if anything was upsetting me or something was wrong or if someone had done anything, just basically along the lines of those questions." Asked, "And other than this teacher and this situation we've just discussed, did you tell anyone else after that through early 2012?," D.G. testified that she thought she "told one other person, but nothing came about it." She said she did not tell more people because she was afraid that "the more I tell, the more likely that he would hurt me." D.G. was not asked and did not testify about what she did or did not tell police when they interviewed her, and Sean does not identify anything in the record that provides this information.
This evidence does not establish a basis for Sean's unjustified delay claim. As the moving party, Sean had the burden to show he should have been prosecuted promptly in 2006. Without establishing what D.G. did or did not tell the investigating police officers, he does not meet this burden. Further, it can be reasonably inferred from D.G.'s testimony about her fear of disclosing anything and her limited disclosures that she did not tell the investigating police officers that Sean had done anything to her, which undermines Sean's unjustifiable delay defense based on D.G.'s 2006 disclosures. In short, the juvenile court did not abuse its discretion in rejecting this defense.
b. D.G.'s 2009 Disclosures
Sean similarly fails to establish there was an unjustified delay in prosecuting him after 2009. He bases his contention about D.G.'s 2009 disclosures on the following evidence: D.G. testified that after Sean had stopped raping her, she received multiple texts from his phone "saying that if I ever told, that he would not only hurt me but would hurt my brothers and my mom and my dad, anyone that he could." When asked if the police were called about a specific text telling her "to keep your mouth shut or else," she said they were not. She said the police were called after another incident, which "was actually the one where it was he was also texting me sexual things." These "sexual things" were "[b]asically, I can see you. I'm going to rape you. You can't do anything about it, just stuff like that." She further testified that she "believed" she showed "text messages" to the police who came to her house but was crying a lot and did not remember whether the police took them. She did not save any of the messages, instead deleting them when she got a new phone because she did not want to remember any of them.
Sean also relies on the testimony of a Vacaville Police Department public safety dispatcher and police officer. The dispatcher testified she did not have an independent memory of the incident, but a department record indicated she answered a 911 call on July 3, 2009, from someone with D.G.'s last name. The court allowed the dispatcher to further testify, solely to establish that the call was made and not for the truth of the matter asserted, that the document indicated that "the responsible is a 14-year-old male neighbor, was sending the reporting party . . . text messages that he's going to rape her as in the past, also to assault her." The dispatcher sent a school resource officer to investigate. The police officer testified similarly that he did not have an independent memory of the incident, but a department record indicated that on the afternoon of July 3, 2009, when he was working as a school resource officer, he was dispatched on a call, did not arrest anyone and did not take any evidence. The record indicated that the matter was "handled at the scene."
This evidence is insufficient to establish the police should have initiated wardship proceedings regarding Sean in 2009 based on his lewd and lascivious conduct towards D.G. between 2004 and 2007. Even though it appears that the dispatcher was told of threats in text messages to D.G. that alluded to past rapes, Sean did not establish what was or was not told to the police officer at the scene, whether the officer was shown the text messages, or that the officer acted unreasonably in failing to take further action.
Therefore, the juvenile court did not err in rejecting Sean's unjustified delay defense based on D.G.'s interactions with law enforcement in 2009.
IV.
Sean's Other Claims
In light of our conclusions, we do not need to resolve the remainder of Sean's claims. This includes his argument that there were so many errors made below that, even if individually harmless, they were cumulatively prejudicial. Because we are remanding the case for further proceedings, we need not address his arguments about the court's setting of probation terms and of a maximum period of confinement in its disposition order.
However, because we remand this matter for further proceedings, we note that, as both parties point out, the juvenile court erred by setting a maximum term of confinement for him. Welfare and Institutions Code section 726 provides in relevant part: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (Welf. & Inst. Code, § 726, subd. (d)(1).) The court's disposition order included that Sean was to remain in his parents' physical custody. Therefore the court erred in setting a maximum period of confinement. (See In re A.C. (2014) 224 Cal.App.4th 590, 591-592.)
DISPOSITION
We affirm the juvenile court's jurisdiction order to the extent it sustained the first section 288, subdivision (a) count, but reverse the order to the extent it sustained the second section 288, subdivision (a) count. We vacate the court's disposition order and remand the matter for disposition proceedings consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.