In re C.J.

Filed 10/6/08 In re C.J. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Commissioner.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

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C. J., a minor found guilty of committing lewd acts on a child under age 14, contends that there was insufficient evidence to support the finding that he used excessive force. He also contends that the juvenile court erred in its decision to commit him to a sex offender group home. Finally, he contends that he was entitled to additional days of custody credit. For the following reasons, we affirm the convictions and remand for recalculation of time credits.

STATEMENT OF THE CASE

On September 5, 2007, the Tulare County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code, section 602, subdivision (a) in the Juvenile Division of the Tulare County Superior Court. The petition alleged that appellant C. J., a minor, committed four lewd acts on a child under age 14 accompanied by force or other coercion (Pen. Code, 288, subd. (b)(1)).

A contested jurisdictional hearing was held on October 30, October 31 and November 6, 2007. On October 31, defense counsel made a motion to dismiss pursuant to Welfare and Institutions Code section 701.1, arguing that there was insufficient evidence that appellant used force or duress as required under Penal Code section 288, subdivision (b)(1).^[1] The juvenile court denied the motion. On November 6, 2007, the court found count one true, reduced counts two and three to lesser included offenses because there was insufficient evidence of force, and dismissed count four.

At the dispositional hearing on November 27, 2007, the juvenile court declared appellant a ward of the court pursuant to Welfare and Institutions Code, section 602, and held that the offenses were felonies with a maximum exposure of 12 years confinement. In addition, physical custody was removed from appellants parent or guardian. Appellant was detained pending suitable placement at a high level sexual offenders group home.

On December 19, 2007, appellant filed a timely notice of appeal.

STATEMENT OF THE FACTS

On Labor Day weekend in September 2007, Tammy B.s 10-year old son, K., visited her home near Porterville, California. That Saturday night, K. and R., a next-door-neighbor, borrowed a tent from another neighbor, David T., and spent that night and the following night in the tent just outside Tammys trailer house. To make the tent more comfortable, Tammy and David put a light and a fan inside the tent. No one else slept with K. or R. on Saturday night. On Sunday night, K., R. and appellant, who is R.s cousin, spent the night in the tent.

Around 8:00 p.m. on Sunday night, K., R. and C. J. retreated to the tent and Tammy went back into her trailer to watch a move with David, who was drinking whiskey. The three boys stayed in the tent, played video games, and played a sex game of truth or dare. At one point, K. left the tent to use the restroom. When K. returned, appellant was lifting weights that he found in the tent. K. lay down on the floor on his stomach and continued to play video games. Appellant came over to K., touched his bottom on the outside of his clothes, and then pulled K.s pants down to his ankle against his will. K. told appellant to stop; appellant did not stop.

Appellant then took his own pants down, touched K.s butt with his penis, and inserted his penis into K.s anus. K. was in pain and asked appellant to stop; again, appellant did not stop. K. tried to get away [a] little bit and was scared, but he could not get up because appellant was on top of him and he was not strong enough. Appellant then placed his hand on the back of K.s head, inserted his penis in K.s mouth, and then ejaculated. Appellant did not, at any time, threaten or hit K or hold him down at any point.

Appellant then went over to R. and touched his penis to R.s bottom. R. asked appellant to stop but he did not. Appellant then inserted his penis in R.s mouth.

At approximately 10:30 p.m., David left Tammys trailer to go next door to his trailer to get some cold water. As he approached his trailer, he looked at the lighted tent and saw appellant on top of K. K. was lying on his stomach, appellant was on top of K., and then appellant backed off K., started masturbating, and got back on top of K. R. was playing a video game. David walked up to the tent, opened the screen door to the tent, and said Hey, get out of here. Appellant jumped back and tried to cover himself up because he was nude. K., whose pants were pulled down below his bottom, did not do much.

When David returned to Tammys trailer, he was very upset and in mild shock. David told Tammy what he had seen. Tammy, stressed out by what David told her, used her asthma inhaler, suffered an asthma attack, and passed out. David then went back outside and told R. and appellant to go home. K. stayed in the tent for approximately 20 minutes by himself and then went to Tammys trailer, but did not tell her what had happened. Around 8:30 a.m., the next morning, Tammy talked to K. about the incident and called the police.

Detective Larry Camacho with the Tulare County Sheriffs Department was dispatched to Tammys residence and conducted an interview with K., R., and other witnesses.

Defense

Appellant did not testify or otherwise present a defense.

DISCUSSION

I.

Sufficiency of Evidence on Use of Force

On appeal, C. J. contends that the evidence was insufficient to support the juvenile courts finding that he exerted force beyond that required to accomplish the lewd act. We disagree.

In reviewing a claim regarding the sufficiency of the evidence, the appellate court must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) The appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 1156.) The reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) The same standard applies in juvenile cases. (In re Macidon (1966) 240 Cal.App.2d 600, 607.)

Here, there was no evidence that appellant hit, threatened, pushed, or held down K. However, there was evidence that K. told appellant to stop, tried to get away a little bit, that he was scared, and that he was unable to get away because appellant was lying on top of him and he was too heavy. Thus, although appellant did not hold K. down with his hands, he used his body weight to exert force to prevent K. from getting up and getting away. In People v. Stark (1989) 213 Cal.App.3d 107, the appellate court concluded that a defendant used physical force substantially different from and substantially greater than that necessary (id. at p. 112) to commit a lewd act when he lay on top of a nine-year-old boy, who was rendered unable to move away because of the weight of the adult on top of him. The adult ignored the boys request to get off of him and to stop fondling him. The molestation only stopped when the boy kicked the adult six times in the stomach (Ibid.) In this case, appellant lay on top of K. and prevented him from getting up and getting away. Thus, there was sufficient evidence to support the trial courts finding that appellant committed a forcible lewd act.

II.

Commitment Decision

Appellant also contends that the juvenile court abused its discretion in committing him to a sexual offender group home. Appellant argues that the court erroneously relied on the probation report which contained no information as to his parents or guardians inability to provide the necessary care and counsel. In addition, he argues that the court improperly relied heavily on the circumstances of the offense. We disagree.

We review a commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. [Citations.] (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) An abuse of discretion occurs when there is no substantial evidence to support the decision, as demonstrated by the record at the dispositional hearing. (In re Martin L. (1986) 187 Cal.App.3d 534, 544.)

Here, the juvenile court considered the probation report, testimony from appellants family, arguments of counsel, and the circumstances of the offense. There was substantial evidence to support the finding that appellants father was incapable of providing or [had] failed or neglected to provide proper maintenance, training, and education because appellants father had told the probation officer that he did not believe that his son committed any offense. (Welf. & Inst. Code, 726, subd. (a)(1).) The juvenile court also could properly rely upon the probation officers conclusion that the minor [was] in need of a more structured environment then [sic] his father ha[d] provided. Thus, there was substantial evidence to support the juvenile courts decision to remove appellant from his guardians or parents custody and to place him in a high level sexual offender group home.

III.

Custody Credit

Finally, appellant contends that he was improperly credited only with 77 days of custody credit when he was actually in custody for 86 days. He contends that this violated section 726 of the Welfare and Institutions Code. We agree with appellant and thus will modify the terms of the disposition of the juvenile wardship petition.

Subdivision (c) of section 726 of the Welfare and Institutions Code provides that: If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship the minor may not be held in physical confinement in a period in excess of the maximum term of imprisonment which could be imposed upon an adult . (Welf. & Inst. Code,  726, subd. (c).) Thus, a minor is entitled to pre-commitment credit for time in juvenile hall pending resolution of the charges. (In re Eric J. (1979) 25 Cal.3d 522, 536.) Here, appellant was arrested on September 3, 2007, and remained in custody until the dispositional hearing on November 20, 2007a period of 79 days. However, on November 20, 2007, the juvenile court continued the matter and set the dispositional hearing for November 27, 2007an additional period of 7 days. Thus, appellant was in custody for 86 days. The People have conceded that appellant is entitled to 86 days of custody credit. Therefore, we will modify the juvenile wardship disposition to reflect 86 days of presentence custody credit.

DISPOSITION

The disposition is ordered modified to reflect 86 days of predisposition custody credit. In all other respects the judgment is affirmed.

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Ardaiz, P.J.

WE CONCUR:

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Cornell, J.

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Kane, J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.