In re Ezequiel M.

Filed 7/3/06 In re Ezequiel M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ezequiel M. appeals a judgment declaring him a ward of the juvenile court. (Welf. & Inst. Code, § 602.) The court sustained a petition alleging lewd or lascivious acts upon a child (Pen. Code, § 288, subd. (a)),[1] kidnapping for purposes of committing a lewd or lascivious act (§ 207, subd. (b)), and unlawful sexual intercourse with a minor who was three years younger than the perpetrator (§ 261.5, subd. (c)). Ezequiel contends that there was insufficient evidence to support the kidnapping offense. We affirm.

FACTS AND PROCEDURAL HISTORY

Seventeen-year-old Ezequiel and his family lived next door to eleven-year-old Michelle A. and her family in Delano, California.[2] In August or September 2004, the two minors became what they described as boyfriend and girlfriend and, according to Ezequiel, engaged in sexual intercourse on two occasions. Michelle's mother did not approve and, in October 2004, summoned the police when she discovered Michelle in Ezequiel's apartment during the night. At that time, the police told Ezequiel that it was against the law to have sexual relations with Michelle.

Later in 2004, Ezequiel and his family moved to Santa Maria which is approximately 150 miles from Delano. Communicating by cellular phone, Ezequiel and Michelle devised a plan whereby she could join him so that they could live together and get married. They also discussed going to Mexico to avoid problems with the law.

On or about January 14, 2005, Ezequiel drove to Delano with his brother and two other companions where they picked up Michelle and drove her to Ezequiel's home in Santa Maria. Michelle had packed some of her belongings and was waiting for Ezequiel at a prearranged location near her school. Michelle did not tell her mother because she knew her mother would not let her go.

While she was in Santa Maria, Michelle lived with Ezequiel in his family's home and slept on a blanket on the floor. They had sexual intercourse three times. They knew the police were looking for them.

The police located Michelle on January 18. Ezequiel told police that Michelle had moved to Santa Maria because they were going to get married. He initially denied having sexual relations with her, telling police that she was "still a young, innocent girl." But, when a police officer expressed disbelief in his denial, Ezequiel admitted sexual intercourse with Michelle.

A petition was filed in Kern County, the location of Michelle's Delano residence. The petition alleged three counts of lewd or lascivious acts upon a child, kidnapping for purposes of committing lewd or lascivious acts (§ 207, subd. (b)), and three counts of unlawful sexual intercourse with a minor. After an evidentiary hearing, the juvenile court sustained the petition as to all seven counts.

For disposition, the Kern County court transferred the case to Santa Barbara County where Ezequiel resided. The Santa Barbara juvenile court declared Ezequiel to be a ward of the court (Welf. & Inst. Code, § 602), and placed him in the custody of the probation department, on terms and conditions of probation, pending release to the Department of Homeland Security on an immigration hold.

DISCUSSION

Substantial Evidence Supports Finding of Kidnapping

In sustaining the allegation of kidnapping under section 207, subdivision (b), the trial court found that Ezequiel persuaded or enticed Michelle, a child under 14, to go to his Santa Maria home "for the purpose of committing" a lewd or lascivious act.[3] Ezequiel contends that there was insufficient evidence to support the finding. He contends that the evidence fails to support the required elements of persuasion or enticement or intent to engage in lewd or lascivious acts at the time of asportation. Ezequiel argues that the evidence shows that he acted jointly with Michelle to pursue their relationship as boyfriend and girlfriend. We conclude that substantial evidence supports the juvenile court's finding that Ezequiel committed the kidnapping offense.

We review the sufficiency of the evidence to support a finding by the juvenile court under the substantial evidence standard. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.) We review the record in the light most favorable to the judgment to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Earp (1999) 20 Cal.4th 826, 887.) We accord the judgment all reasonable inferences from the evidence, and will not reweigh the evidence or second-guess credibility determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Substantial evidence supports the juvenile court's conclusion that Ezequiel persuaded and enticed Michelle to run away from home by holding out the prospect of marriage and promising a relationship in which he would take care of her. Ezequiel communicated to Michelle his intent to marry her if she would live with him, and Michelle testified that she left home only to fulfill the expectations engendered by these communications.

Ezequiel argues that the evidence shows he and Michelle considered themselves boyfriend and girlfriend and that, after his family moved, Michelle took an active role in planning to leave home and join him in Santa Maria. She telephoned him, packed her bags, and met him at a prearranged location near her school of her own volition.

The juvenile court's finding is not undermined by the ease with which Ezequiel convinced Michelle and apparently himself that his vision of their future could be achieved. Michelle's expressed preference to live with Ezequiel does not translate into an unsolicited decision by Michelle to abandon her home and live on the run without the care and comfort of her family. Nor does her youthful rebelliousness or naïve hope that she could live happily with Ezequiel operate to make Ezequiel a passive participant rather than an instigator in her decision to run away.

Force is not required for a kidnapping under section 207, subdivision (b), nor is consent inconsistent with the use of persuasion, enticement, false promises, "or the like" to effect the asportation. (§ 207, subd. (b).) To uphold the juvenile court's finding, we are not called upon to decide as a matter of law that an 11-year-old girl lacks the maturity and independent judgment to consent to the asportation. Rather, we must decide whether the court could reasonably conclude based on the evidence, including her vulnerability based on her age, that Michelle's willingness to run away from home was the product of Ezequiel's persuasion and enticement.

Ezequiel also contends that the evidence does not show that the asportation was "for the purpose of" sexual acts with Michelle in violation of section 288 at the time he drove her from her home to his home. (§ 207, subd. (b).) We disagree.

The element of intent presents a question of fact which must be proved like any other fact, and is usually inferred from circumstantial evidence. (People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 12.) The trier of fact may consider all the circumstances, including the charged act, evidence of the defendant's statements, uncharged acts of lewd conduct, and conduct designed to avoid detection. (People v. Martinez (1995) 11 Cal.4th 434, 445.)

Here, the evidence establishes that Ezequiel had sexual intercourse with Michelle before he moved to Santa Maria, intended to continue such conduct when he brought her to his new home, and did continue to have sexual intercourse with Michelle during the three days she spent with him in Santa Maria. Based on this evidence, the juvenile court could reasonably conclude that Ezequiel drove Michelle from Delano to Santa Maria for the purpose and with the intent of committing acts in violation of section 288.

Ezequiel argues that he and Michelle considered themselves to be boyfriend and girlfriend and that he only intended "to commit the act of taking Michelle away." We fail to see how reuniting to pursue a romantic attachment is inconsistent with an intent to engage in conduct prohibited by section 288, even if the attachment was heartfelt.

Ezequiel also contends that there was no evidence that the asportation "substantially increased the risk of harm" to Michelle over that inherent in the section 288 violations. The requirement of a substantial increase in the risk of harm is not a statutory element of section 207, subdivision (b), but is included in the standard jury instruction for that offense and is not challenged by respondent. (CALJIC No. 9.51 (Apr. 2006 ed.).)

In any event, there is substantial evidence supporting the conclusion that the kidnapping substantially increased the risk of harm to Michelle. As Ezequiel argues, there is no evidence Michelle could have been physically harmed during the asportation by trying to escape or otherwise. But, the increased harm derives from the fact that the movement separated an 11-year-old girl from her parents and her school, and placed her in a precarious and potentially dangerous situation. (See People v. Martinez (1999) 20 Cal.4th 225, 235; People v. Bradley (1993) 15 Cal.App.4th 1144, 1154, disapproved on other grounds in People v. Rayford (1994) 9 Cal.4th 1, 21.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Roger Randall, Judge*

Superior Court County of Santa Barbara

______________________________

Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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

[2] Ezequiel was born in April 1987 and Michelle A. was born in February 1993.

[3] Section 207, subdivision (b), states: "Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping."

Section 288, subdivision (a) states: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 . . . ."

* Assigned by the Chairperson of the Judicial Council.