In re Guillermo P.

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 12/9/13 
In re Guillermo P. CA5

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 
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In re GUILLERMO P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,        Plaintiff and Respondent,        v.   GUILLERMO P.,        Defendant and Appellant.	F066412   (Super. Ct. No. 12CEJ600440-1 )     >OPINION

 

THE COURThref="#_ftn1"
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            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County.  Hilary A. Chittick, Judge.

            Gregory M.
Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney
General, Sacramento, California, for Plaintiff and Respondent.

.

-ooOoo-

 

            This case
comes to us pursuant to href="http://www.mcmillanlaw.com/">People v. Wende (1979) 25 Cal.3d 436
(Wende) and In re Kevin S. (2003) 113 Cal.App.4th 97 (Kevin S.).  Having reviewed
the record as required by Wende and >Kevin S., we affirm the judgment.

            We provide
the following brief description of the facts and procedural history of the
case.  (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

            On May 24,
2012, a juvenile wardship petition was
filed alleging that Guillermo P., the minor, then age 12, came within the
provisions of Welfare and Institutions Code section 602, subdivision (a), in
that, on or about May 22, 2012, the minor violated Penal Code section 286,
subdivision (c)(2), sodomy by use of force. 


The incident at issue involved the minor
and R.F., age 14, both students in middle school, during the early part of
2012.  They were introduced to each other
by R.F.’s younger sister.  The two
communicated with each other through Facebook and then considered themselves
“boyfriend” and “girlfriend,” which, according to the minor, meant that they
spent time together during breaks at school. 
According to R.F., they “broke up” within 3 or 4 weeks because R.F.’s
friends did not like the minor, although the minor wanted to continue the
relationship.

            While the
two were “dating,” the minor told R.F.’s younger sister several times that he
wanted to “fuck” R.F.  R.F. did not
believe her sister, saying the minor would never do that.  But R.F. also testified that the minor had
told her he wanted to have sex with her at his house and R.F. would tell him
“no.” 

            Although R.F.
had been angry with the minor prior to the incident in question because he had
given her a necklace belonging to a previous girlfriend, she claimed not to be
angry with him on May 22, 2012.  On that
day, while R.F. was still at home, she received a text message from the minor
asking her to text message him once she got to school, which she did.  R.F. arrived at school an hour early, met with
the minor and they took a walk together. 
During the walk, the minor grabbed R.F.’s hand and pulled her toward an
abandoned house, although she told him she did not want to go.

            R.F.
testified that the minor took her to the backside of the house, pulled his
pants down, pushed her head down and put his penis into her mouth.  But she did not tell anyone about orally
copulating the minor after the incident because she was too embarrassed. 

            R.F.
testified that the minor then kissed her and pulled down her pants.  She pulled them back up, and he then pulled
down both her pants and his own.  The
minor turned R.F. around and inserted his penis into her rectum.  R.F. screamed, cried and told the minor to
stop, but he continued.  According to R.F.,
the minor did not wear a condom.  Then,
according to R.F., the minor stopped suddenly, both of them pulled up their
pants, and R.F. walked back to school very quickly, while the minor walked
behind her.  During the incident, R.F.
hit the minor a couple of times with a closed fist. 

            R.F.
arrived at her first class, slightly late and crying.  Her friend J.G. passed her a note asking what
was wrong.  R.F. wrote back that she had
been raped.  Later, during a break, R.F.
told J.G. that the minor had taken her to an abandoned house and raped
her.  She had told him to stop, but he
would not.  Later, during lunch, R.F.
also told her friends F.R. and L.V. 

            L.V. said
that she, F.R., and another friend, B., confronted the minor regarding the
incident and that he said he was “sorry” and “didn’t mean to do it.”  According to F.R., a few of R.F.’s friends
confronted the minor about the incident in front of his friends and they
laughed about it.  After the group talked
to the minor, he approached R.F., grabbed her by the arms, pulled her close to
him and asked, “Why are you saying our business to everyone?”  In response, R.F. yelled at him, “When I say
no, no means no.”  According to L.V., the
minor walked up to R.F. and attempted to talk to her and that R.F. then told
him that when she says “stop” it means to stop and “no means no.”  F.R. and B. then reported the incident to a
teacher.

            Following
an investigation by the police at the school, R.F. was taken for a forensic
exam.  The minor was placed in custody
and also taken for a forensic exam. 
Blood and urine samples were collected from the minor, as well as swabs
from his penis and scrotal areas and the cheek of his mouth.  The minor’s clothing was retained. 

            During the
forensic examination done on R.F., she reported pain in her anal area and
described the incident with the minor in the abandoned house.  A sample of what could be body fluids was
taken from R.F.’s neck, because R.F. told the nurse the minor kissed her and
tried to bite her neck.  A hair sample
and a swab from R.F.’s anal area were collected.  The examiner noticed two small flesh colored
bumps with some area of pink around the bumps in R.F.’s anal area, which could
be caused by penetration, straining or constipation.  No vaginal exam was performed because R.F.
denied any sexual activity prior to the incident and she denied that oral
copulation took place. 

            At the
hearing on the incident, the parties stipulated that the various samples, photographs
and other information collected from R.F. and the minor were transported to and
held at the police department. 

            A senior criminalist
with the Department of Justice who performed the tests on both R.F.’s and the
minor’s samples testified to the results.  He found sperm heads on both R.F.’s rectal
swab and panties.  He found elevated
levels of saliva and epithelial cells from the mouth on R.F.’s neck swab. 

            The
criminalist also found epithelial cells on the minor’s penile and scrotal swabs
and underwear, but did not find any fecal material on any of the samples.  According to the criminalist, epithelial
cells can come from the mouth, rectum, vagina, or urethral openings.  The criminalist also opined that, in a case
involving sodomy, he would expect to find some fecal stains or material on the
alleged suspect or his clothing, but might not if the person used a
condom. 

            Another senior
criminalist with the Department of Justice performed DNA testing on R.F.’s
rectal swab and panties, as well as the swabs taken from both the minor’s and R.F.’s
mouth.  The criminalist concluded that
the minor was a major DNA contributor to the mixtures found in the swabs and
the likelihood that a person other than the minor could have been a contributor
was extraordinarily remote. 

            A certified
sexual assault nurse testified for the minor that R.F.’s clothing should have
been collected as evidence and that a vaginal examination should have been
performed regardless of statements made by the victim.  She opined that, if there had been forced
penetration of the rectal area, some tears, scratches or redness of the area
would normally be expected.  She also
opined that, except for the two small bumps, there was no other swelling of the
area which she thought was unusual. 

            The minor
testified in his own behalf that, before arriving at school, R.F. sent him a
text message to bring a condom.  After
meeting R.F. at school, they walked through the nearby alley at her
suggestion.  The minor testified that, as
on previous occasions, the two of them cut through the yard of the abandoned
house to go to a nearby liquor store to buy candy and chips, but this time stayed
in the abandoned yard to kiss.  R.F. then
suggested they have sex, so she pulled down his pants and put her mouth on his
penis.  The minor then gave R.F. the
condom, which she put on him, pulled her pants down, turned around and he inserted
his penis into her vagina.  While doing
this, the minor claimed his penis “accidentally slipped out and accidentally
went into her anus.”  R.F. then told him
to stop, which he did, and they left the yard. 
According to the minor, R.F. was neither crying nor did she hit
him. 

            The minor
testified that, while they walked back to school, he gave R.F. his phone and she
deleted his text messages.  During lunch
recess, he saw R.F. crying and when he approached her, she ignored him.  R.F.’s friend then approached him and accused
him of making R.F. cry. 

            After being
brought to the principal’s office, the minor was questioned by police.  He denied anything had happened with R.F.
because he was scared.  The minor
testified that officers told him R.F. accused him of rape, that he had hurt
her, and that she was at the hospital. 
The officers told him to “write a letter” to R.F., which he did.  According to the minor, R.F. was not doing
anything she did not want to do and that during the incident, when she told him
to stop, he did. 

            In
rebuttal, a sex crimes investigator who interviewed the minor testified that
the minor initially denied having any sexual contact with R.F., but then
changed his story to acknowledge that they did have sex in the backyard of the
vacant home.  According to the detective,
the minor made various statements: that R.F. was screaming during the incident
for approximately one minute; that she screamed when he first penetrated her; that
she screamed for between one minute and 30 seconds; that sex lasted five
minutes; and that sex lasted less than 30 seconds.  

            The investigator
testified that the minor denied raping anyone and seemed genuinely sorry for
what he had done.  The investigator acknowledged
that he was aware that R.F. and the minor had sent text messages to each other
and that each accused the other of first suggesting they have sex.  But, the investigator felt there was no need
to look at the text messages because the minor eventually admitted they had had
sex.  In response to a question by the
judge, the detective said he would have looked at the text messages if the
minor had told him that R.F. had sent him a text message to bring a condom, but
merely a simple request to meet did not warrant looking at the text
messages. 

Following the jurisdictional
hearing, the court found the allegations of the petition true beyond a
reasonable doubt.

            At
disposition, the court adjudged the minor a ward of the court and ordered him
to remain under the supervision of the probation department until further order
of the court subject to certain conditions set forth by the court.  The court temporarily removed the minor from
the custody of his parents and placed him in the custody of the juvenile
justice campus for 180 days.  The minor
was given credit for 178 days already served in confinement, to be credited
against the maximum period of confinement of eight years.  The minor was ordered to provide specimens
and palm prints pursuant to Penal Code sections 295 and 296; to submit to
testing pursuant to Penal Code section 1202.1; to pay a restitution fine in the
amount of $100 pursuant to Welfare and Institutions Code section 730.6; to not
view, purchase or possess sexually explicit materials; not to own or have any
dangerous or deadly weapons; to not consume any alcohol or use or possess any
illegal drugs or substances; to submit to chemical testing; to subject himself
to search and seizure at any time with or without a warrant; to attend
psychological and substance abuse assessments, counseling and treatment as
ordered by the probation officer; and to enroll in and complete the sex
offender treatment program through the probation department. 

            The minor
appealed.  We appointed href="http://www.mcmillanlaw.com/">counsel to represent the minor on
appeal.  Counsel filed an opening brief
that set forth the facts of the case and requested this court to review the
record and determine whether there are any arguable issues on appeal.  (People
v. Wende, supra, 25 Cal.3d 436; In re
Kevin S., supra, 113 Cal.App.4th 97.) 
The minor was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief.  More than 30 days have elapsed, and we have
received no communication from the minor. 
Having undertaken an examination of the entire record, we find no
arguable error that would result in a disposition more favorable to the minor. 

DISPOSITION

            The
dispositional order is affirmed.