In re Marcos V.

Filed 8/11/06 In re Marcos V. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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The Sacramento County Juvenile Court found that minor Marcos V. was a person described within the meaning of Welfare and Institutions Code section 602 in that he committed two lewd and lascivious acts on L.B., a five-year-old child (Pen. Code, § 288, subd. (a)--counts one and two)^[1] and participated in oral copulation with L.B. (§ 288a, subd. (b)(1)--count three). The court placed the minor on probation and released him to the custody of his mother, with permission to reside with his stepfather.

On appeal, the minor contends there was insufficient evidence that he possessed the requisite lewd intent for violation of section 288, subdivision (a), and that he appreciated the wrongfulness of his conduct as required by section 26. The minor also contends, and the People concede, that the matter must be remanded to the juvenile court with directions to determine whether the oral copulation was a felony or a misdemeanor. We shall remand for that determination.

Facts

Prosecution Case-in-Chief

In 2004, when L.B. was five years old, he and his mother moved in with L.B.'s aunt. L.B.'s mother had filed for legal separation from L.B.'s father and for custody of L.B. L.B.'s paternal grandparents later joined the custody dispute over L.B.

The minor was L.B.'s then 12-year-old cousin. He and other relatives also lived at the aunt's house. While at the house, the minor and L.B. engaged in sexual conduct in the minor's room and in â€