In re Alexis S.

In re Alexis S.

Filed 8/7/08 In re Alexis S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re ALEXIS S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. ALEXIS S., Defendant and Appellant.	E044521 (Super.Ct.No. J216899) OPINION

APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Alan Macina, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Alexis S., a minor, appeals from a dispositional judgment of the juvenile court granting probation following a judicial determination that he committed a lewd act upon a child. (Pen. Code, 299, subd. (a).) The minors counsel on appeal has filed an opening brief in which no issues were raised, asking that this court independently review the record in accordance with the procedures outlined in People v. Wende (1979) 25 Cal.3d 436.

BACKGROUND

During the summer of 2004, when the minor was 13 years of age, he committed lewd acts upon his cousin, then six years old, including acts of oral copulation and masturbation which occurred in the bathroom of the victims Pomona residence on a single occasion. The victim delayed reporting the acts to his parents until December 2006. On March 14, 2007, a wardship petition was filed in the County of Los Angeles, alleging that the minor committed acts which would constitute crimes if committed by an adult, including a lewd act upon a minor (Pen. Code, 288, subd. (a), count 1), and oral copulation with a person under the age of 16. (Pen. Code, 288a, subd. (b)(2), count 2.)

Prior to the jurisdictional hearing, the prosecution dismissed count 2. Following a court trial, the court found count 1 true beyond a reasonable doubt, sustained the petition, and ordered the case transferred to San Bernardino County, where the minor lived with his mother and siblings. At the disposition hearing, the minor was declared a ward of the court, and placed with his mother, on probation. The minor appeals.

DISCUSSION

At his request, this court appointed counsel to represent the minor on appeal. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. The Anders procedures are applicable to juvenile delinquency appeals. (In re Kevin S. (2003) 113 Cal.App.4th 97, 99, 119.) We offered the minor an opportunity to file a personal supplemental brief, but he has not done so.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.

1. Competency of the Nine-Year-Old Victim Witness

The record establishes that the victim was nine years old at the time of the adjudicatory hearing, and no objection was made on the ground he was not competent to testify. Failure to object timely on the basis of a witnesss incapacity to perceive and recollect (Evid. Code, 702, subd. (a)), constitutes a waiver of the objection on appeal. (People v. Lewis (2001) 26 Cal.4th 334, 357.)

2.                  Sufficiency of Evidence Minor Understood the Wrongfulness of His

Conduct

The minor was 13 years old at the time of the offense. Penal Code section 26 embodies a presumption that a minor under the age of 14 is incapable of committing a crime, absent clear proof the minor appreciated its wrongfulness. (In re Manuel L. (1994) 7 Cal.4th 229, 231.) A minor under 14 years of age may be adjudged responsible for having committed a violation of Penal Code section 288, subdivision (a), upon proof he appreciated the wrongfulness of his conduct. (In re Jerry M. (1997) 59 Cal.App.4th 289, 296.)

In determining whether the minor knows of the wrongfulness of his conduct, the court may rely on circumstantial evidence such as the minors age, experience, and understanding, as well as the circumstances of the offense, including its method of commission and concealment. (In re Jerry M., supra, 59 Cal.App.4th at p. 298.) Generally, the older a child gets and the closer he approaches the age of 14, the more likely it is that he appreciates the wrongfulness of his acts. (In re James B. (2003) 109 Cal.App.4th 862, 872-873.)

In James B., the court found the 12-year-, 10-month-old minor was properly found to have appreciated the wrongfulness of his conduct by virtue of a statement he made to police that he did not want to lie any more, coupled with the fact he had concealed a cell phone he had stolen from a car, indicating he knew it was wrong to take it. (In re James B., supra, 109 Cal.App.4th at p. 873.) Here, the minor was over 13 years old, and the court found evidence he appreciated the wrongfulness of his conduct when he told the victim not to tell his parents what had happened.

There was testimony by the minors mother that she did not specifically teach her children the difference between right and wrong, or to respect the person and privacy of others, or to refrain from touching the private parts of others, but this did not refute the inference the minor appreciated the wrongfulness of his conduct by directing the victim to maintain secrecy.

3.                  Sufficiency of Evidence to Establish the Elements of the Lewd Acts Upon a

Child

We have independently reviewed the record to determine if there was substantial evidence to establish (a) intent to sexually arouse, and (b) the date of the offense. The victims testimony, describing the minors aroused state at the time of the offense and establishing that the offense occurred in the summer of 2004, adequately establishes those elements of the offense. There is substantial evidence to support both elements of the crime.

We have completed our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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