In re Misael E.
Filed 7/2/12 In
re Misael E. CA2/2
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
In
re MISAEL E., a Person Coming Under the Juvenile Court Law.
B235122
(Los Angeles County
Super. Ct. No. PJ47646)
THE
PEOPLE,
Plaintiff and Respondent,
v.
MISAEL
E.,
Defendant and Appellant.
APPEAL
from a judgment of the Superior Court of
County. Fred J.
Fujioka, Judge. Affirmed as modified.
Mary
Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey
and Taylor Nguyen, Deputy Attorneys General for Plaintiff and Respondent.
Appellant
Misael E. (minor) appeals from a judgment of the juvenile court, challenging
the sufficiency of the evidence to support a finding that he committed a
forcible lewd act upon a child under the age of 14 years. We conclude that substantial evidence
supports the court’s finding. Minor also
challenges as overbroad three conditions of his probation, one restricting
family contact and two restricting associations. We conclude that the juvenile court adequately
narrowed the condition regarding family contact but omitted the provision from
the minute order; we thus order the
court to insert the missing provision into the minutes. We modify the remaining two conditions by
inserting a knowledge provision. With
such modifications, we otherwise affirm the judgment.
In an
amended petition filed pursuant to Welfare and Institutions Code section 602 to
bring minor within the jurisdiction of the juvenile court, count 1 alleged that
in 2009, minor committed a lewd act upon a child, in violation of Penal Code
section 288, subdivision (a).
committed a forcible lewd act upon a child, in violation of section 288,
subdivision (b)(1). A third count,
alleging a violation of section 289, subdivision (a)(1), was dismissed on
minor’s motion after the adjudication hearing.
The juvenile court sustained counts 1 and 2. On July 26, 2011,
the court declared minor a ward of the juvenile court and ordered minor
suitably placed upon specified terms and conditions. Minor filed a timely
At the
adjudication hearing, minor’s nine-year-old sister Jennifer G. testified that
when she was in the second grade, minor touched her inappropriately two or three
times while the two siblings were watching television in their mother’s
bedroom. In the first incident, minor
kissed Jennifer, reached under her clothing and touched her “private part in
the middle†where her “pee comes out.â€
He penetrated her with his fingers for about 50 seconds, told her not to
tell their mother and then left the room.
A week or two later, minor took Jennifer’s hand, placed it on his bare
penis, and squeezed her hand over it, causing her hand to hurt slightly. Jennifer tried to pull her hand away, but was
unable to do so until minor released it after about 50 seconds. Minor then left the room after saying, “Don’t
tell mom.†During the third incident,
their sister saw minor kissing Jennifer and told their mother.
Minor’s
sister E.E. testified that the incident she observed occurred in 2009. She saw Jennifer lying on the bed with minor
on top of her, kissing her neck. When
she asked her younger siblings what they were doing, minor was reluctant to
answer, seemed nervous, and replied they were not doing anything. E.E. telephoned her mother to report what had
occurred.
Minor’s
mother Linda M. discussed what had occurred with minor, and told him that it
was wrong. She testified that he
appeared to be scared or embarrassed.
Minor was never left alone with Jennifer again.
Los
Angeles Police Officer Ignacio Murillo testified that as part of his
investigation, he interviewed minor and Jennifer in January 2011. Minor admitted to kissing Jennifer multiple
times. Minor admitted that he forced
Jennifer into touching his penis and that he penetrated Jennifer’s vagina with
his finger. Minor cried and said he knew
what he did was wrong.
I. Substantial evidence
supports count 2
Minor
contends that there was insufficient evidence to support the juvenile court’s
finding that he committed a forcible lewd act upon Jennifer in violation of
section 288, subdivision (b). In
particular, minor contends that there was insufficient evidence of force.
A challenge to the sufficiency of the evidence
to support a juvenile court judgment sustaining
the same standard of review applicable to any criminal appeal. (In re Ryan N. (2001) 92 Cal.App.4th
1359, 1371 (Ryan N.).) Thus we review the whole record in the light most favorable to the
prosecution to determine whether it discloses evidence that is “reasonable,
credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319; Ryan N.,
supra, at p. 1372.) “The same standard applies when the
conviction rests primarily on circumstantial
evidence. [Citation.]†(People v. Kraft (2000) 23 Cal.4th
978, 1053.) We do not reweigh the
evidence or resolve conflicts in the evidence.
(People v. Young (2005)
34 Cal.4th 1149, 1181.) “Before the judgment of the trial court can
be set aside for insufficiency of the evidence . . . , it must clearly appear
that upon no hypothesis whatever is there sufficient substantial evidence to
support it. [Citation.]†(People v.
Redmond (1969) 71 Cal.2d 745, 755; Ryan N., at p. 1372.)
Under
section 288, subdivision (a), it is a crime to commit a lewd or lascivious act
on a child under age 14 with the intent to arouse or satisfy the sexual desires
of the perpetrator or the child. Any
touch with the requisite sexual intent is a violation of subdivision (a). (People
v. Martinez (1995) 11 Cal.4th 434, 440-441, 452.) Subdivision (b)(1) of section 288 prohibits
the commission of such an act “by use of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another
person . . . .â€
“[T]he force used for a subdivision (b) conviction [must] be
‘substantially different from or substantially greater than that necessary to
accomplish the lewd act itself.’
[Citation.]†(
242 (Soto).)
Minor
contends that the acts of taking and squeezing the victim’s hand were not
substantially different from or greater than the force necessary to accomplish
the lewd touching. We disagree. The evidence established that minor took
Jennifer’s hand, placed it on his penis, squeezed her hand over his penis as
she tried to pull it away, and continued to squeeze for about 50 seconds. Such “acts of grabbing, holding and
restraining that occur in conjunction with the lewd acts themselves†have been
held to constitute force. (
999, 1005.) Indeed, just ‘“a modicum of
holdingâ€â€™ may be sufficient to violate section 288, subdivision (b). (Alvarez,
at p. 1004.) For example, in
383, 385-386 (Babcock), sufficient
force was established with evidence demonstrating that the defendant took the
victim’s hand and “made her touch his crotch for ‘a couple minutes’â€; and in
38, 48 (Pitmon), the defendant’s
“manipulation of the [victim’s] hand as a tool to rub [the defendant’s]
genitals†while holding the victim’s hand throughout the act “was a use of
physical force beyond that necessary to accomplish the lewd act.â€
Minor
argues that Babcock is
distinguishable because the evidence showed in that case that the victim
resistance may be helpful in determining whether force was used, which minor
construes as requiring evidence of
resistance. (See Babcock supra, 14 Cal.App.4th at p. 387.) As respondent notes, resistance is not an
element of forcible lewd touching and no evidence of resistance is required to
prove a violation of section 288, subdivision (b)(1). (Babcock
supra, at p. 387; People v. Cicero
(1984) 157 Cal.App.3d 465, 484-485 (Cicero),
overruled on other points in Soto,
107, 112.) Thus, as we construe the
language in Babock, evidence of
resistance could serve to establish force; however, the absence of resistance
would not defeat a finding of force. In
any event the evidence showed that Jennifer did, in fact, resist minor for
nearly a minute by trying to pull her hand away, but was prevented from doing
so by minor’s squeezing her hand so hard that it hurt.
Minor
acknowledges in reply that there was evidence of resistance and that resistance
is not an element of forcible lewd touching, but contends that a finding of
force must be supported by evidence that the perpetrator was
logic, as requiring evidence showing that the perpetrator was
requiring evidence of resistance. We thus reject the contention that the
evidence of force was insufficient without proof of minor’s awareness of
resistance.
Finally,
we decline minor’s request to disregard Pitmon’s
example because the court’s conclusion
as to force was dictum. Rather, we find it persuasive. We disagree with minor’s contention that the dissent
in Babcock is more compelling than the majority opinion. Relying on Cicero, supra, 157
Cal.App.3d at pages 481-482, Justice
Kline disagreed with the conclusion of the majority because there had been no
proof that the lewd act was accomplished against the victim’s will. (See Babcock, supra, 14 Cal.App.4th at pp. 389-390 (dis. opn. of Kline,
J.).) This was the same “flawed
reasoning†rejected by the California
Supreme Court in Soto, supra, 51 Cal.4th at pages 233,
245-248. Cicero and cases
following it, including Pitmon, were disapproved to the extent they held
or suggested that consent could provide a defense to aggravated lewd acts, or
that lewd acts could be accomplished by duress, menace, or fear, only if
committed “‘against the will of the victim.’â€
(Soto, supra, 51 Cal.4th at pp. 233, 245-248; see Cicero,
supra, at pp. 481-482; Pitmon, supra, 170 Cal.App.3d at p.
51.)
We conclude that the evidence was sufficient
to permit a reasonable trier of fact to find that minor committed a forcible
lewd act upon the victim.
II. Probation condition
regarding visits
Minor
challenges the following condition of probation (condition No. 17): “Don’t contact or cause any contact with [or]
associate with the victims or witnesses of any offense alleged against
you.†Minor contends that the condition
is overbroad and unconstitutionally interferes with his freedom of association,
with the effect of banishing him from his home.
Respondent
contends that minor has forfeited this contention by failing to object to the
condition in the juvenile court. Failure
to object below to conditions of probation forfeits a challenge on appeal,
including challenges made on constitutional grounds, unless the circumstances
“‘present “pure questions of law that can be resolved without reference to the
particular sentencing record developed in the trial court.â€â€™ [Citation.]â€
(In re Sheena K. (2007) 40
Cal.4th 875, 889 (Sheena K.).) Respondent contends that minor’s challenge
does not fall within this exception, because “there was a specific discussion
at the disposition hearing about how to ‘handle home visits from suitable
placement.’†On the contrary, the
discussion shows that minor’s concern was raised, although not as a
constitutional challenge.
We
observe that the discussion ensued from defense counsel’s request that the
court recommend a program near minor’s home so that mother could visit him, and
so minor could eventually have home visits.
Thus, the issue was raised and prompted the juvenile court to ask the
court officer to suggest language that would address home visits and allow for
family reunification without endangering the sibling. The court officer suggested that the language
remain general, as the therapist would determine when and under what conditions
visits would be appropriate. At the
court officer’s request, the juvenile court ordered that prior to visits with
mother or home visits, the court and counsel be advised, and the therapist to
provide a recommendation.
This
summary of the proceedings demonstrates that the juvenile court did, in fact,
narrow the condition that minor now challenges as overbroad. We construe the court’s order as giving
discretion to minor’s therapist to permit visits and to determine the
appropriate time and conditions, with notice to the court and counsel prior to
home visits.
As
minor acknowledges, a juvenile court may impose conditions that are broader
than those imposed upon adult offenders.
(In re Christopher M. (2005)
127 Cal.App.4th 684, 693.) “‘[B]ecause
juveniles are deemed to be more in need of guidance and supervision than adults
. . . a minor’s constitutional rights are more
circumscribed. . . .’
[E]ven conditions infringing on constitutional rights may not be invalid
if they are specifically tailored to fit the needs of the juvenile. [Citation.]â€
(Ibid.) Indeed, as minor recognizes, a court may
impose reasonable restrictions on contact with family members. (See People
v. Wardlow (1991) 227 Cal.App.3d 360, 367.)
Here, the juvenile court tailored condition No. 17 to fit the needs of
the minor by conferring discretion on minor’s therapist to determine timing and
conditions of visits.
name="_ftnref3" title="">[3] The court does not act
unreasonably in giving discretion to an appropriate authority to make such
determinations. (Cf.
665, 677 [probation officer given discretion to approve associates].)
The
only flaw we find in the court’s order is that it is not reflected in the
court’s minutes. The minute order lists
each condition of probation, but fails to include the court’s modification
regarding visits. “A probation condition
‘must be sufficiently precise for the probationer to know what is required of
him, and for the court to determine whether the condition has been violated
. . . .’
[Citation.]†(
The reviewing court may modify the condition to make it sufficiently
explicit. (Id. at p. 892.) We do so here by directing the juvenile court
to make the minute order conform to its oral pronouncement.
III. Probation conditions
regarding children and schools
Probation
condition No. 18 requires minor not to associate with any children under the
age of 14 years unless he is in the physical presence of a responsible
adult. Condition No. 12 prohibits minor
from being “within one block of any school ground unless enrolled, attending
classes, on approved school business, or with school official, parent, or guardian.†Minor asks that we modify the conditions to
add a knowledge requirement. Respondent
agrees.
Probation
conditions restricting association with others should include a requirement
that the probationer have knowledge that the person with whom he associates
comes within the restricted category. (
Where the trial court has not included a knowledge provision, the
reviewing court should do so. (
minor requests.
Probation
condition No. 12 is modified to read:
“Do not knowingly be within one block of any school ground unless
enrolled, attending classes, on approved school business, or with school
official, parent or guardian.†Probation
condition No. 18 is modified to read: “Do
not knowingly associate with any children under the age of 14 years except in
the physical presence of a responsible adult.â€
The juvenile court is directed to prepare an amended minute order with
the modified conditions, and is further directed to include the court’s orally
pronounced order with regard to home and family visits, conferring discretion
on minor’s therapist to determine timing and conditions of visits, conditioned
upon notice to counsel and the court. As
so modified, and in all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________,
J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
ASHMANN-GERST
unless otherwise indicated.
overruled on a different point in Soto,
supra, 51 Cal.4th at page 248, as
explained within.
