In re R.O.

Filed 8/25/09 In re R.O. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

R. O. appeals from the juvenile courts dispositional order after a contested jurisdictional hearing in which the court found true the allegations that he committed assault with intent to commit rape (Pen. Code, 220) and sexual battery (Pen. Code, 243.4, subd. (a)). Appellant contends the juvenile court abused its discretion in committing him to juvenile hall. He also argues there was insufficient evidence of intent to support the true finding on the charge of assault with intent to commit rape. Finding no error, we will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 17, 2008, the Alameda County District Attorney filed a petition under Welfare and Institutions Code section 602[1] alleging that, on June 15, 2008, appellant, who was 15 years old at that time,[2] committed assault with intent to commit rape (Pen. Code, 220; count 1), sexual battery (Pen. Code, 243.4, subd. (a); count 2), and false imprisonment (Pen. Code, 236; count 3).

The contested jurisdictional hearing took place over five days in July and August 2008.

In June 2008, 16-year-old Jane Doe and her mother, 45-year-old Maria H., shared an apartment with friends in Hayward. Maria was rarely home, instead staying in Oakland with her new boyfriend, 21-year-old Gregorio O., appellants older brother. Appellant was living with Gregorio. He had recently emigrated from Mexico.

At around 11:00 a.m. on June 15, 2008, Maria arrived at the Hayward apartment in a pick-up truck to bring Doe to a party at Gregorios apartment. With her in the truck were appellant, appellant and Gregorios uncle, Jacinto B., and their neighbor Enrique. Maria had been at Gregorios apartment the day and night before, and Doe had been home alone. On the way to Oakland, the driver dropped appellant off at work and picked up Gregorio.

The group drove to a two-bedroom apartment at 1541 50th Avenue in Oakland. Gregorio and appellant shared the apartment with Zenaida Jaramillo and her husband, Rufino Ramirez. The bedrooms were down the hall from the living room. Jaramillo and Ramirez slept in one bedroom. Gregorio and appellant slept in the other bedroom. When Maria spent the night, she and Gregorio slept in the bedroom and appellant slept on the living room couch.

After Doe arrived at the apartment, she spent most of the day on the phone with her boyfriend who lived in Santa Rosa. At around 5:00 or 6:00 p.m., appellant arrived and started drinking beer. Doe had not met appellant prior to the day of the party, but she had spoken with him once on the phone. Appellant drank about three or four bottles of beer between about 6:00 and 9:00 p.m. Doe did not drink any alcohol. No one consumed any drugs.

After the party started, Doe sat on the living room couch talking on her cell phone. Maria, Gregorio, and some of the guests started dancing. Doe did not want to dance, but Maria threatened to take away Does cell phone if she did not hang up and dance with appellant. Doe danced with appellant for about an hour. He took the opportunity to hug her at times while they were dancing.

When the party ended, Doe wanted to go home. Maria told her she had to spend the night in Gregorios apartment because no one would drive her home. Around 11:30 p.m., Maria and Gregorio went into Gregorios bedroom and closed the door. Ramirez went into his bedroom and shut the door; Jaramillo had left the apartment earlier in the evening. Doe and appellant were supposed to sleep in the living room. Appellant was lying on the couch with a blanket. Doe was lying on a blanket on the floor. She was wearing a t-shirt over two tank tops and a bra, and long sweatpants over denim shorts and underpants. She was facing away from appellant and sending text messages to her boyfriend as she was trying to fall asleep.

Appellant told Doe that he needed something in return cause he paid the gas to go pick me up. This scared Doe; she was afraid that if she did not want to give him something, he would try to hurt her. Appellant did not ask for money or anything else.

Appellant then got off the couch and jumped on top of [Doe], and he started asking me if I want to be his girlfriend and he liked me, and he started kissing me in the mouth. Appellant was sitting on her thighs, straddling her legs, preventing her from moving her legs. His hands were pressing down on her shoulders and she could not move her arms very much.

Appellant asked Doe if I had a condom, if I wanted to have sex. Doe answered, No. Appellant touched her breasts, at first over her clothes, then put his hands under her clothes and pushed aside her bra. He touched, kissed and licked her bare breasts. Doe told him to stop, I didnt like it. Doe told him to stop many times. Doe tried to push and kick appellant away, but he had her shoulders and legs pinned to the floor.

Doe saw that a man came out of one of the bedrooms and went into the bathroom. She saw him in the hallway, watching the assault, but he did not intervene. She thought it was Gregorio but she was not sure. The man then went back into the bedroom. Doe testified that she wanted the man to help her, but she did not scream for help because she was scared, because they wouldnt believe me, and because she knew they would not call the police on their family member. She did not think her mother would believe her because she was [appellants] brothers girlfriend.

Doe said appellant unzipped his pants and took out his penis. Appellant tried to pull down Does pants. He pulled her sweatpants down to the hem of her shorts at her upper thigh. She testified that he was trying to pull down my shorts. Thats when I pushed him away and I felt his penis. Appellants penis was hard and erect.

At the same time Doe was able to push appellant off of her, she heard the door to Gregorios bedroom open. Appellant jumped back onto the couch, pulled a blanket over his head, and pretended to be sleeping. Doe quickly pulled her bra and shirt back into place, but her sweatpants were still pulled down, she was crying, and she was on the phone with her boyfriend. Doe tried to tell her boyfriend what had happened, but she was crying so hard she could barely speak.

Maria came into the living room. She saw Doe crying and told Doe to get off the phone. Maria went back into Gregorios bedroom. Doe did not tell Maria what had happened because Doe knew that Maria would not believe her. Doe based this belief on Marias behavior the prior year when Doe had been raped by a family friend. The previous September, when Doe and Maria were living with Marias sister and her two teenaged sons, Doe was raped by her cousins friend, Ivan R. Doe reported the rape to the police and Ivan R. was arrested. However, Maria did not believe Doe, accused Doe of provoking Ivan, and refused to take Doe to court on the day of the preliminary hearing.

Doe, who was still crying, decided to leave the apartment. As she put on her shoes, appellant asked what was wrong and where she was going. Doe ran out of the apartment without answering. She walked around Oakland, away from Gregorios apartment, for about 10 to 20 minutes, talking on her cell phone with her boyfriend, telling him what had happened. Her boyfriend advised her to call the police, but her cell phone battery died. Doe saw a woman go into an apartment. She knocked on the door and asked for help. The woman let Doe use her phone to call the police. The recording of the 9-1-1 call was admitted into evidence. The police arrived at the womans apartment and drove Doe back to Gregorios apartment. Doe waited in the car while they went inside and arrested appellant.

Doe was placed in foster care and did not see Maria for several months, although they spoke often on the phone. During a phone conversation the day after appellants arrest, Doe told Maria what appellant had done. Maria screamed and yelled at Doe for an hour, and told her she would be mad if Doe did not drop the charges. Gregorio also asked Doe to drop the charges. Doe told Gregorio, I didnt want to drop the charges cause I was telling the truth and he [appellant] needed to go to jail or he needed to have justice. He attempted to rape me. Doe tried to commit suicide before trial and was hospitalized in a mental institution. Just before Doe testified at the contested jurisdictional hearing, Maria again told her to drop the charges.

A. Defense

Hayward Police Officer Darrin Beyer interviewed Doe in September 2007 on the day she reported she had been raped by Ivan R. at her aunts apartment. The police report did not reflect that Doe said Ivan had a gun with him that day. Ivan fled the apartment and was not apprehended for about 30 minutes. Beyer said Doe was calm during her recitation of the rape and there was no sign of a struggle in the apartment. Beyer found fresh blood at the scene, and Does rape examination at the hospital showed she had a torn hymen. Beyer referred the case to the district attorneys office.

Appellants housemates, Zenaida Jaramillo and Rufino Ramirez, slept in one bedroom and rented the other bedroom to appellant and Gregorio. Jaramillo testified that the walls of the apartment were thin and you can hear everything. On the morning of the incident, Maria announced the good news that Doe would be coming to the party and the bad news that they had to go and pick her up. Doe appeared to be upset and spent the day outside talking on her cell phone. Maria told Jaramillo that Doe was upset because she was angry with her boyfriend. Jaramillo left the apartment shortly before 9:00 p.m. to catch a Greyhound bus for a month-long trip to Los Angeles. Ramirez went to bed at midnight after drinking a couple of beers. He slept soundly.

Appellants 23-year-old uncle, Jacinto B., lived in the same apartment

building as appellant. Jacinto met Doe for the first time when he was in the truck that picked her up from Hayward on the day of the party. During the drive, Jacinto heard her say on the telephone that she was from the Norteos and that they had a gang in Oakland. Doe was wearing red that day. Jacinto said Doe spent the whole day outside on her cell phone. Jacinto did not attend the party.

Appellant's neighbor, 23-year-old Miguel Aguirre, left another party to attend Gregorios party. He heard Maria repeatedly order Doe to hang up her cell phone and socialize. He knew Doe was unhappy and wanted to leave the party and go home. He drank two beers that evening, but told appellant that he could not have any beer because he was a minor. Doe appeared to be upset. She did not join them for dinner. Aguirre danced with Doe during the party. Doe jokingly told him that he was her boyfriend and was caressing him. Aguirre said he was not her boyfriend and told her not to touch him because she was a minor. Miguel left the apartment around 12:30 or 1:00 a.m. because he had to work the next day. When he left, Doe was on the phone.

Gregorio testified that he first met Doe on the day of the party. She spent the entire day talking on her cell phone. After the party, Gregorio told Maria that she and Doe should sleep in Gregorios bedroom, and that he and appellant would sleep in the living room. Doe refused and said she was going to sleep in the living room, where appellant was already on the couch. Gregorio and Maria went into the bedroom to sleep. Ten minutes later, Gregorio came out of the bedroom to check on Doe and appellant. Appellant was on the couch; Doe was on the floor, talking on her cell phone. Five minutes later, Gregorio went to the bathroom. Appellant and Doe were in the same positions and Doe was talking on her cell phone. While he was in the bathroom, Gregorio heard Maria talking to Doe, telling Doe to get off the phone. Five or ten minutes after he and Maria went back into the bedroom, appellant knocked on Gregorios bedroom door to tell him that Doe had left the apartment. Gregorio, Maria and appellant went outside to look for Doe, but they could not find her. Maria tried to call Does cell phone, but it did not work. They returned to the apartment and the police arrived around 4:30 a.m.

Appellant denied assaulting Doe or touching her against her will. He said Doe gave him permission. Appellant had never met Doe before the day of the party. Doe was talking to her boyfriend during the drive to the party. Appellant testified that, after Miguel Aguirre said he was a Sureo, Doe said she was a Nortea. Appellant did not have to force Doe to dance with him. Doe declined to sleep in the bedroom with Maria and instead said she was going to sleep in the living room. When appellant and Doe were alone in the living room, Doe was talking on her cell phone and said that she was in a place with Sureos. She then went outside. Appellant went outside and told her to come back in so her mother would not get mad.

After Doe came back inside, she resumed sending text messages. Appellant asked her to let him sleep because he was tired. Doe asked appellant if he let his girlfriends hit him; appellant responded that he did not have a girlfriend. Doe asked if appellant wanted her to find him a girlfriend and asked what kind of girls he liked. Appellant told her he liked skinny girls with pretty faces. Doe asked him, You don't like them with big tits? and then told appellant to grab on it. Doe continued, Because I dont have titties, theres nothing to grab. Appellant responded, Im not like that.

Doe asked appellant if his friend was mad because she was Nortea. Appellant said he did not know. The conversation lasted for five or ten minutes, then his brother came out of the bedroom and went into the bathroom. Maria came out of the bedroom and told Doe to stop using the phone. After Gregorio and Maria went back into the bedroom, Doe showed appellant videos of Sureos fighting Norteos on her cell phone. She also showed him the gangs hand signs.

Appellant then asked Doe if she wanted to be my girlfriend. Doe said, okay, and appellant started kissing her. Appellant said he stood up for a minute to catch his breath, and Doe lifted her bra and told him to kiss her breasts. This was a new experience for appellant because he did not have a lot of girlfriends. Appellant continued to kiss Doe on the lips, and she was touching him on his chest and back, over his shirt. It was so dark he could not see her breasts, but he kissed them. Doe did not tell him to stop. Appellant then got up and went to the bathroom [b]ecause it was already a lot that was happening. He did not want to have sex with her because it was the first time he had met her and there were other people around.

When appellant came out of the bathroom, Doe was on the phone. She then left the apartment, saying she was going to make a call. About five minutes later, appellant checked outside and Doe was gone. Appellant knocked on Gregorios bedroom door to let Maria know that Doe had left. Gregorio and appellant rode their bicycles around the neighborhood for about half an hour, but could not find Doe. Appellant then went home and went to sleep.

On cross-examination, appellant acknowledged that he did not have a girlfriend at the time and that he would have liked to have a girlfriend like Doe. She was pretty and appellant was attracted to her. Appellant knew Doe had a boyfriend, but she told appellant that she was leaving him. Doe flirted with him that day. She was on the floor but moved closer to the couch and was touching him when she showed him videos on her cell phone. When he first kissed her, he was hanging off the couch. When she lifted up her bra, she told him to come down off the couch. They were lying side-by-side on the floor.

Appellant liked kissing Doe. It was the first time he kissed a girl and it felt good. It did not feel good to kiss her breast. He said this was the first time he had seen a womans breast and that he did not want to kiss Does breasts, but she told me to. He never forced her. Appellant testified that his penis was not hard when he was kissing Doe, and it was not hard when he went to the bathroom. Appellant said that his penis had gotten hard in the past, approximately two or three times per week while he was sleeping.

B. Courts Ruling

The court found appellants testimony to be unreasonable, specifically with regard to appellants account of the conversation he had with Doe after Gregorio and Maria went into the bedroom. Witness accounts confirmed that Doe was unhappy and did not want to be at Gregorio and appellants apartment, that she wanted to go home and basically tried to remove herself from any social interaction with other people at the party. Yet appellant testified that they had a conversation for five to ten minutes about whether Miguel was mad because she was a Nortea, whether appellant wanted to have a girlfriend, and what kind of girls appellant liked. The court found it unreasonable that, given her earlier behavior, all of a sudden she would start talking about all these issues and pursuing him, and yet, nobody heard any of this.

At the conclusion of the contested jurisdictional hearing, the court found true the allegations that appellant committed assault with intent to commit rape (Pen. Code, 200) and sexual battery (Pen. Code, 243.4, subd. (a)); it dismissed the charge of false imprisonment (Pen. Code, 236), and declared appellant to be a ward of the court.

At the dispositional on August 22, 2008, the court found appellants maximum term of confinement was seven years, ordered appellant to serve nine months in juvenile hall, and directed the probation department to deliver appellant to Immigration and Customs Enforcement (ICE) for deportation.

Appellant filed a timely notice of appeal on September 4, 2008.

III. DISCUSSION

A. Appellants Commitment to Juvenile Hall

Appellant contends the juvenile court abused its discretion when it removed him from the custody of his family upon his first sustained petition and ordered him to serve time in juvenile hall. He argues that the juvenile court failed to consider less restrictive alternatives and that he should have been allowed to remain with his family due to the societal interest in keeping families together.

1. Legal Principles

We review the juvenile courts dispositional order only for abuse of discretion. Appellate courts must draw all reasonable inferences in support of the courts decision and will not disturb its findings when there is substantial evidence to support them. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) Substantial evidence is evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jorge G. (2004) 117 Cal.App.4th 931, 942.) Questions regarding the weight of the evidence and the credibility of the witnesses are the province of the trial court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

In determining whether substantial evidence supports a commitment order, the court examines the record presented at the dispositional hearing in light of the purposes of juvenile law. ( 202; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Section 202 of the Welfare and Institutions Code was amended in 1984 to make punishment and public safety appropriate considerations in determining the disposition of juvenile offenders. The amendments shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express protection and safety of the public [citation], where care, treatment, and guidance shall conform to the interests of public safety and protection. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) While it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety, there must also continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. (Ibid.)

2. Factual Background

The dispositional report recommended that appellant be detained at juvenile hall pending release to ICE for deportation. The report listed Paula B. (maternal aunt) and Gregorio O. as appellants acting custodians in the United States.

During appellants probation interview, the probation officer reported that appellant doesnt think about the victim, doesnt think anything about her or the situation, as it is in the past . . . . He alluded that the whole thing was his brother Gregorios fault, that everything was fine until his brother brought his girlfriend over (the mother of the victim) to the house. [] The minor appears to be under the impression that he was trapped into this situation, and blamed the victim as he states she wanted to come over to the house. When asked if he thought the victims decision to sleep in the living room meant she wanted to be with him, he stated I dont know.

The probation report stated that appellants parents and four of his five siblings live in Mexico. Appellant and another brother, Ignacio, came to the United States about two years before the events underlying the instant petition. Appellant lived with his aunt upon arrival in the United States and she enrolled him in school; Ignacio lived with their older brother, Gregorio. After Ignacio returned to Mexico, appellant decided to move in with Gregorio and work full-time. The guardians state that the charges are completely out of the minors character and they believe he is innocent. It is their wish that he return to either of their care and continue working so he can support the mother in Mexico.

The probation officer interviewed appellant in Spanish. The probation officer found appellant cheerful, oblivious to the severity of the charges, and often uninterested in answering the undersigneds questions. Appellant attended school until the fourth grade in Mexico. He attended school briefly in the United States, but found it too difficult due to his low literacy status. He instead opted to work and was employed doing janitorial work. Regarding appellants willingness to receive counseling or treatment, appellant was completely uninterested, unmotivated, and refused to state whether or not he would cooperate or comply, stating I dont know. He preferred to put the whole attempted rape behind him, stating, They say Im guilty, and refusing to acknowledge any wrongdoing.

Juvenile hall staff reported that appellant was on top citizen status, has a great attitude, and gets along well with peers and staff despite his limited English. He has displayed no gang association or affiliation. Regarding the possibility of appellant receiving sexual offender treatment at juvenile hall, the Guidance Clinic social worker said appellant would be screened for suitability.

The probation department concluded that appellant was a flight risk and should be detained until released to ICE. We are concerned about the minors level of denial and although he could benefit from therapeutical services, there is nothing in place that can provide these. The report noted that appellant was ineligible for commitment to the [DJF][3] since the findings are not 707(b) offenses, nor is he suitable for Santa Rita since he is a juvenile. The probation department opined that appellant was a danger to others and needs to be held accountable for his deviant and aggressive behavior in the community. The department recommended that appellant be adjudged a ward of the court, serve time at juvenile hall with sex offender education and treatment if he is found suitable, and that he then be released to ICE for the agency to proceed with deportation proceedings.

At the dispositional hearing, appellants counsel pointed out that appellant was cooperative and had received good grades in juvenile hall. Counsel argued that the recommendation in the dispositional report was primarily based on appellants immigration status, which counsel doubted was even relevant. Counsel complained that the report did not consider any disposition other than juvenile hall based on the officers opinion that appellant was a flight risk. Although appellant had committed a serious offense, it was his first offense and he had no other referrals. It appeared to counsel as though appellant was being punished for being cheerful. Counsel asked that the court consider releasing appellant to his family based on his lack of prior record, excellent behavior at juvenile hall, and his attentive and responsible family members.

The court disagreed that appellants family had acted responsibly toward him. The court stated, I dont think that allowing him to continue to live with his 22-year-old brother who wasnt supervising him and was going out with this older woman shows responsibility. The court noted that appellants aunt and uncle had no control over this 15 year old. They just ceded control to an irresponsible 22-year-old brother and his much older girlfriend. The court also pointed out that there was no confirmation of appellants claimed employment in the record.

The prosecutor argued that appellant should remain at juvenile hall pending deportation based on the seriousness of the offense and his risk of flight. In addition, the prosecutor argued that [h]e does not take responsibility. He continues to point the finger at the victim and blames the victim for everything, and that is . . . supported by and also encouraged by his own family members. His denial of responsibility meant that he was not amenable to any kind of sex offender treatment.

The juvenile court noted that appellant had displayed a true lack of empathy for the victim, and . . . that lack of empathy [was apparent] through the whole family. . . . [T]he message from many of the adults around him [was] that it was probably okay to behave this way. The court ordered appellant to serve nine months in juvenile hall.

3. Analysis

To justify the conclusion that lesser dispositional options would be unsuitable for a minor, there must be some evidence that alternatives were considered and that a commitment would best lead to rehabilitation of the minor and protection of society. (Inre Ricky H. (1981) 30 Cal.3d 176, 184; In re Asean D., supra, 14 Cal.App.4th at p. 473.) There is no requirement that a commitment be used only as a last resort after other options have been tried and have failed. (In re Ricky H., supra, 30 Cal.3d at p. 184.) Even DJF commitments have been upheld for first-time offenders without first attempting a less restrictive placement where the circumstances demonstrate that such alternatives are inappropriate or unavailable. (Ibid.) If there is evidence in the record to show a consideration of less restrictive placements was before the court, the court need not expressly state its consideration of those alternatives and reasons for rejecting them. (Ibid.; In re Teofilio A. (1989) 210 Cal.App.3d 571, 577 (Teofilio A.).)

Here, it is clear that the court considered less restrictive alternatives. At the conclusion of argument at the hearing, the court stated that, absent appellants immigration issues, I might well have considered camp with involvement from the Guidance Clinic if they had found him acceptable and cooperative. I would not have sent him home. Appellants immigration status blocked his placement in either a camp or DJF. The court was aware of the option of releasing appellant into the care of a relative, either his aunt or his brother. However, the court found that both of these individuals had acted irresponsibly toward appellant, had failed to supervise him, and had encouraged his misconduct. The court committed appellant to juvenile hall based on the seriousness of the offenses, the interest of public safety, and the possibility of counseling prior to deportation. Under the circumstances, we can discern no abuse of discretion in the courts conclusion that no appropriate but less restrictive placement was available.

Appellant relies heavily on Teofilio A., supra, 210 Cal.App.3d at page 577, in which the appellate court reversed a first-time offenders commitment to DJF. In Teofilio A., neither the juvenile court nor the probation department considered any less restrictive alternatives to DJF commitment; the record was altogether barren on this point. In addition, the record affirmatively showed that the defendant was not a suitable candidate for DJF. The court pointed out that the defendants offense was a single $60 sale of cocaine, and that his conduct was not aggressive or assaultive; he was not armed; he threatened no one . . . . (Id. at p. 578.) Here, by contrast, the record showed that appellant could not be placed in a camp or in DJF and that the juvenile court considered and rejected the alternative of returning appellant to his family. Moreover, the conduct here was much more serious.

Appellant next contends that he should have been allowed to remain with his family because of the societal interest in keeping families together. He argues that his extended family in Oakland cares for him and is available to supervise him, and contends that it was an abuse of discretion for the court to remove him from his home.

Section 726, subdivision (a), provides: In all cases in which a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over the ward or dependent child by any parent or guardian and shall in its order, clearly and specifically set forth all those limitations, but no ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts: [] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [] (2) That the minor has been tried on probation while in custody and has failed to reform. [] (3) That the welfare of the minor requires that custody be taken from the minors parent or guardian.

The evidence at the dispositional hearing showed that appellant, although before the juvenile court for the first time, had committed a serious sex offense. The probation department concluded that he was a flight risk and should be detained in a secure setting until his release to ICE. The probation department also opined that he was a danger to others based on his deviant and aggressive behavior in the community. Appellant continued to deny wrongdoing, blamed others for his predicament, and his family members supported his position. The juvenile court found that appellants aunt and uncle had no control over this 15 year old. They just ceded control to an irresponsible 22-year-old brother and his much older girlfriend. The court also found a true lack of empathy for the victim . . . through the whole family. Appellant was not attending school, and his employment and wages were not confirmed. The juvenile court did not abuse its discretion in concluding that appellant should be removed from his brothers home and placed in a structured and secure environment because his custodians in this country, his brother and his aunt, had failed or neglected to provide proper maintenance, training, and education for the minor. ( 726, subd. (a).)

B. Sufficiency of the Evidence of Intent

Appellant contends the evidence was insufficient to support the finding of assault with intent to commit rape because appellant used no force against Doe and because the prosecution failed to prove that he intended to act against Does will.

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witnesss credibility. [Citation.] (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

Penal Code section 220 provides for punishment for any person who assaults another with intent to commit rape. Rape is defined as an act of sexual intercourse accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (Pen. Code, 261, subd. (a)(2).) The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required. [Citation.] [I]f there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 399-400.) The specific intent with which an act is done may be shown by a defendants statement of his intent . . . . [Citation.] In objectively assessing a defendants state of mind during an encounter with a victim, the trier of fact may draw inferences from his conduct, including any words the defendant has spoken. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.)

Appellant argues that the prosecution failed to prove beyond a reasonable doubt that appellant specifically intended to have forcible sexual intercourse with Doe against her will. He contends the evidence of intent was insufficient because there was no evidence of a struggle, no evidence of injuries to Doe, and no evidence that appellant follow[ed] through with any alleged attempt to rape Doe where he instead left the room of his own accord.

People v. Craig, supra, 25 Cal.App.4th 1593, 1597 (Craig), in which the defendants conviction of assault with intent to commit rape was upheld on appeal, is instructive. In Craig, the defendant followed the victim as she was driving home. When she pulled into her driveway, he approached her, then apologized for mistaking her for someone else, and started to walk back towards his truck. When the victim got out of her car, the defendant immediately confronted her, grabbed her by her hair and pushed her back into the drivers seat of her car. He shoved his free hand inside her shirt, touching her breasts outside her bra. The assault ended when the victims housemate saw what was happening, came outside, and pulled the defendant off of her. (Id. at pp. 1595-1596.) On appeal, the defendant argued that although there was substantial evidence that he intended something sexual committed forcibly or without consent, the evidence was insufficient to show that he intended to accomplish an act of sexual intercourse. (Id. at p. 1597.) The Craig court noted that, although the defendant had said nothing to the victim that would evidence his intent, there was evidence that during a prior similar assault, the defendant had made statements that could be interpreted as stating a desire for intercourse. (Id. at p. 1600.) The court also noted that the assault only ended when it was interrupted by some intervening force. (Ibid.) In concluding that a reasonable trier of fact could infer that the defendant assaulted the victim with the specific intent to commit rape, the court stated: All of his conduct was consistent with that intent. Nothing he did or said indicated that he intended only to place his hands on her body or to accomplish some sexual act short of or different from intercourse. While other reasonable inferences also might have been drawn, it was for the jury, not us, to draw them. (Id. at p. 1604.)

Similarly here, there was sufficient evidence to support the finding that appellant harbored the specific intent to commit rape. As in Craig, appellants conduct supported this inference: Doe testified that appellant jumped on top of her and pinned her down as he started kissing her and touching her breasts, first over and then under her clothes. In addition, appellant unzipped his pants and took out his penis before trying to pull down her pants. The evidence of intent here also includes appellants words: He asked Doe if she had a condom and if she wanted to have sex, but he did not stop when Doe told him no, that she didnt like it, and to stop. Also as in Craig, the assault ended only when interrupted by an intervening force, here, the opening of Gregorios bedroom door when appellant jumped back on the couch, pulled the blanket over his head, and pretended to be sleeping. Given these circumstances, and the courts express finding that appellants version of events was unreasonable, the court could reasonably infer that appellant assaulted Doe with the intent to rape her. (2RT 365-368)

IV.DISPOSITION

The judgment is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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[1] All further unspecified statutory references are to the Welfare and Institutions Code.

[2] There is some confusion in the record regarding appellants date of birth. We base our statement of appellants age on the probation report, which, in turn, based its determination of appellants birth date on a birth certificate provided by appellants aunt, Paula B.

[3] California Department of Corrections and Rehabilitation, Division of Juvenile Facilities, formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) The DJF was renamed by statutory enactment in 2005. ( 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, 12838, 12838.3, 12838.5, 12838.13.) The probation department here referred to CYA, but we will use the name DJF in this opinion, even when referring to cases predating the name change.