Ezequiel V.
Filed 7/18/12 In re Ezequiel
V. CA4/1
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PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re EZEQUIEL V., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
EZEQUIEL V.,
Defendant and Appellant.
D059168
(Super. Ct.
No. J227304)
APPEAL from
a judgment of the Superior Court
of
County, Yvonne E. Campos, Judge. Affirmed.
Ezequiel
V., a minor, appeals the finding he committed a lewd act on a child under the
age of 14 (victim) by use of force or duress in violation of Penal Code section
288, subdivision (b)(1).
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
In late
June 2010, Ezequiel was with his older brother and mother in their apartment in
Oceanside. Ezequiel at the time was 13 years old. For the two preceding months, the mother had
been the regular babysitter for victim and victim's twin sister. Victim was nearly seven years old at this
time. On the day of the incident, the
mother was babysitting the twin girls and tending to Ezequiel and his brother.
While the
mother was in the living room of her apartment, victim and her sister were in
the "closet playroom" watching television. Ezequiel walked into the playroom and told
victim to "[t]ake off [her] clothes."
When victim did not comply, Ezequiel removed her clothes and took off
his own clothes. Victim's sister saw
Ezequiel take off victim's clothes.
Ezequiel then touched victim's "private parts," including her
vagina, and sat her on his lap; victim next laid on the floor and Ezequiel got
on top of victim and pushed his penis on victim and possibly into her
vagina. Victim reported having pain
while Ezequiel was on top of her and stated she held her sister's hand during
the incident. Victim knew Ezequiel had
done a "bad thing" to her.
That
evening, victim told her mother what happened in the playroom with Ezequiel
earlier in the day. Victim's mother
sensed something was wrong with her daughter because victim seemed "very
sad," appeared scared and responded with fear to victim's mother's
questions. Victim told her mother that
Ezequiel took off her clothes while she was in the playroom closet watching
television and that Ezequiel told her not to tell anyone about what had
happened.
The next
day, victim's mother spoke with Ezequiel's mother about the conversation with
victim the night before. Ezequiel, who
was present during their conversation, denied touching victim.
Victim's
mother called police on July 1, 2010. Officers Daniel Sullivan and Ann O'Neill
responded. Officer O'Neill, who is a
certified Spanish interpreter, spoke with victim and her mother about the
incident. Victim told the officers that
Ezequiel used his penis to touch her vagina.
Victim used the words "banana" and "flower" to
describe Ezequiel's penis and her vagina, respectively. Victim also stated that Ezequiel told her to
take her clothes off and that it hurt when he touched her with his penis. Finally, victim told Officer O'Neill that
Ezequiel told her not to tell anyone.
A medical
examination of victim on July 1, 2010,
by Dr. Mary Spencer revealed two injuries to victim's genital area around her
labia and some redness near the clitoral hood.
Dr. Spencer opined that victim's injuries were consistent with a penis
being pressed on and perhaps inserted into victim's vagina.
The trial
court found beyond a reasonable doubt that Ezequiel committed a violation of
Penal Code section 288, subdivision (b)(1).
The trial court subsequently found Ezequiel a ward of the court and
placed him on probation, after he served nine days in juvenile hall.
DISCUSSION
Ezequiel
contends there is insufficient evidence
in the record to support the trial court's finding that he used force or duress
to commit the lewd act on victim, in violation of Penal Code section 288,
subdivision (b)(1).
A. Trial
Court's Findings
The trial court sustained the
allegation that Ezequiel violated Penal Code section 288, subdivision (b)(1)
when it found beyond a reasonable doubt the existence of both force and duress,
either of which was sufficient to support the violation of this statute.
The trial court in its
well-reasoned order ruled in part as follows:
"In
reviewing my notes, in addition to being clear on the uncontroverted facts that
the minor [e.g., Ezequiel] not only told the child [e.g., victim] to remove her
clothes, but that he pulled down her clothes, the second female law enforcement
witness testified that contemporaneous with the investigation of this offense,
the child had indicated that the minor had told her not to tell anyone. And so that goes towards the duress.
"I
know that legally I'm not required to make any explanation of my findings. But given that we had a long discussion as to
what facts before me I would have to hang my hat on, and given that I had
questioned [the prosecutor] yesterday as to whether or not there was precedent
in support of his theory that the removing of the clothes would be an act
sufficient to substantiate the [subdivision] (b)(1) [of Penal Code section 288
finding], I'm satisfied that that is a separate act of force.
"And
again, I'm looking at the public policy behind the Statute and behind the law,
which is that it's about really the degradation of the victim and using or
doing something that would expose the victim to the further sexual act.
"And
so I'm satisfied that the pulling down of the child's clothing covering her
private parts and her legs, even if it's not fully and completely removed, it
certainly is a separate act that was done with force. And by that, I mean, it's a physical act, so
it's different. I'm not saying that the
clothes were ripped off or that anything was done with any substantial force,
but it's an alternative definition.
"And
I'm satisfied that the child at the age of six was certainly under the age of
14 at the time of the offense. I'm
satisfied that given the totality of the circumstances there was the willful
touching of a couple of body parts of the child. I mean, there's clear evidence in my mind
that the minor's penis was on or in the child's vagina, as well as his hands
were on her buttocks. And that, as I've
indicated, force was used. Duress also
comes in play, and that the commission of those acts were with the intent to appeal
to or gratify the sexual desires of the minor.
"In
connection with this true finding, I'm satisfied that . . . the allegations of
the petition are true. . . .
[¶]
. . . . And
the degree of the offense would be a felony offense if committed by an
adult. And, again, I mean, these are
difficult cases, but I did have the opportunity to consider the testimony of
the witnesses, their demeanor on the stand, and also certainly hear witnesses
on the minor's behalf. . . .
And I am satisfied, as well, by more than clear and convincing evidence
that when the minor was 13 during the commission of this offense, that he did
have knowledge of the wrongfulness of the act committed. So if I have said that prior to making the
true finding, that's my inadvertent misqueue.
And my factual findings are, again, beyond a reasonable doubt."
B. Governing
Law
"When a defendant
challenges the sufficiency of the evidence, ' "[t]he 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." [Citation.]'
[Citation.] 'Substantial evidence
includes circumstantial evidence and any reasonable inferences drawn from that
evidence. [Citation.]' [Citation.]
We ' " 'presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.' " [Citation.]'
[Citation.]" (People v.
Clark (2011) 52 Cal.4th 856, 942.)
Section 288
of the Penal Code provides in relevant part:
"(a) . . . [A]ny 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 and shall be punished by
imprisonment in the state prison for three, six, or eight years.
Any person who commits an act described in subdivision (a) by use of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person, is guilty of a felony . . . ."
To
establish lewd conduct by force, the prosecution was required to prove that
Ezequiel used force " 'substantially different from or substantially
greater than that necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229,
242; People v. Griffin (2004) 33 Cal.4th 1015, 1027.)
In People
v. Alvarez (2009) 178 Cal.App.4th 999, the court explained that "a
'defendant may fondle a child's genitals without having to grab the child by
the arm and hold the crying victim in order to accomplish the act. Likewise, an assailant may achieve oral
copulation without having to grab the victim's head to prevent the victim from
resisting.' [Citation.] Lewd conduct of this sort is punishable in
and of itself. [Citation.] Therefore, it stands to reason that the force
requirement will be deemed satisfied when the defendant uses any force that is
'different from and in excess of the type of force which is used in
accomplishing similar lewd acts . . . .' [Citation.]
[¶] According to the majority of courts, this includes acts of grabbing, holding and restraining that occur in
conjunction with the lewd acts themselves.
[Citations.]" (Id. at
pp. 1004-1005, italics added; see also People v. Bolander (1994) 23
Cal.App.4th 155, 160–161 [pulling victim's pants down, bending victim over and
pulling victim toward defendant constituted forcible lewd conduct]; People
v. Neel (1993) 19 Cal.App.4th 1784, 1790 [pushing the victim's head down on
defendant's penis, grabbing victim's wrist and placing victim's hand on his
penis to masturbate him constituted forcible lewd conduct]; People v.
Babcock (1993) 14 Cal.App.4th 383, 387 [grabbing victim's hand and making
victim touch defendant's genitals constituted sufficient force].)
C. Analysis
Here, the evidence in the record
shows that Ezequiel walked into the small closet playhouse and ordered victim,
then aged six, to remove her clothes.
When victim did not comply and thus refused his request, Ezequiel
removed victim's clothes for her. He
next removed his own clothes, grabbed victim and placed her on his lap. This evidence alone is sufficient to
constitute "force" within the meaning of Penal Code section 228,
subdivision (b)(1). (See People v.
Alvarez, supra, 178
Cal.App.4th at p. 1005.)
Ezequiel,
however, also grabbed victim's buttocks, and after victim laid on the floor
Ezequiel got on top of her where he either pressed his penis on her vagina or
partially inserted his penis into her vagina, causing her pain. This additional evidence, particularly when
considered in light of the evidence that victim was physically very small and
Ezequiel much bigger than victim, further supports the finding of the trial
court that Ezequiel used force on victim within the meaning of Penal Code
section 288, subdivision (b)(1) when he committed the lewd act or acts.
DISPOSITION
We affirm
the trial court's order finding that Ezequiel used force when committing a lewd
act on victim, a minor under the age of 14 years (see § 288, subd. (b)(1)).
BENKE, Acting P. J.
WE CONCUR:
McDONALD,
J.
McINTYRE,
J.
substantiality of the evidence, we do not reweigh the
in the light most favorable to the trial court's
(See In re Julie M. (1999) 69 Cal.App.4th 41, 46; In re
Shelley J. (1998) 68 Cal.App.4th 322, 329.)
victim's "injuries" could have come from her scratching or touching
herself, or from pressure from objects such as a toilet paper or a
washcloth. While relevant in the trial
court given its role as fact finder, such arguments are not germane in this
appeal where our role is limited to determining whether the trial court's
findings are supported by substantial evidence in the record. (See ante
footnote 1.)
