In re Robert A.
Filed 10/7/13
In re Robert A. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re ROBERT A., a Person
Coming Under the Juvenile Court Law.
B247044
(Los Angeles County
Super. Ct. No. TJ19575)
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT A.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, Tamara Hall, Judge.
Reversed.
Tonja
R. Torres, 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, Senior Assistant Attorney General, Kenneth C. Byrne
and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant,
Robert A., a minor, was declared a ward of the court and placed home on
probation. On appeal, he contends the
juvenile delinquency court erred in (1) finding that he had violated Penal Code
section 288, subdivision (a) because sufficient evidence did not show that he
had the specific sexual intent to commit the crime; and (2) setting a maximum
period of physical confinement. As we shall explain, although sufficient
evidence supports the conclusion that appellant injured the four-year-old
victim and was guilty of a battery, the record does not support a true finding
beyond a reasonable doubt that appellant had the requisite specific sexual
intent to violate Penal Code section 288, subdivision (a). Accordingly, we reverse.
FACTUAL AND PROCEDURAL HISTORY
The
families of the victim, R.G. (four years old at the time of the incident), and
appellant (then age 13) socialized. The
victim’s older sister, S.W., and appellant had attended preschool
together. The families’ children
each other’s homes and spent time together.
According to R.G., he and his sister had spent the night at appellant’s
home on occasion.
On July 16,
2011, at about 2:30 p.m., appellant and his family picked up R.G. and S.W. from
their home and took them to the mall for about an hour. According to appellant and his family, while
at the mall, R.G. was whiny and agitated.
R.G. claimed to need to use the restroom, but then refused to go to the
bathroom.
After
leaving the mall, appellant’s parents took the children to appellant’s
house. The children played inside the
house while appellant’s parents were in the kitchen. At some point, appellant’s mother sent
appellant’s sister and R.G’s sister outside to the front yard to play because
the children were noisy and appellant’s mother thought that R.G. was whiny and
might need a nap. After arriving home
from the mall, appellant’s mother had taken some medication that made her feel
sleepy. After sending the girls outside
to play, appellant’s mother went upstairs to her bedroom and fell asleep. Appellant’s father would occasionally check
on the children.
While the
girls played outside, appellant and R.G. stayed inside appellant’s room.
minutes. During that time, they played
video games together, but at some point appellant refused to let R.G. play with
him any longer. According to appellant,
R.G. became angry when he could not play and began to cry and left the room to
look for his sister.
R.G. remembered playing with
appellant and jumping on the bed, but he did not recall what he and appellant
did together. R.G. testified appellant
made him feel uncomfortable one time when appellant “wasn’t playing right†when
they were alone. R.G. testified
appellant put his finger in R.G’s anus, hit him in the
say anything.
S.W. saw R.G. standing in the front
window of the house crying for her. S.W.
and appellant’s sister came back into the house. Appellant played video games in his room
alone for a short time. He then joined
the other children in Savannah’s room where they watched a movie on the
television. Appellant’s parents were
upstairs at the time. S.W. testified
that R.G. continued to cry a little while and then calmed down; she thought he
was crying because he was tired. R.G.
lay down next to his sister and fell asleep.
At some
point thereafter, according to appellant and his sister, R.G. jumped on the bed
in Savannah’s room and he played with his buttocks. Savannah said that R.G. placed his hands on
his buttocks and said, “You can't catch me, there is nothing you can do about
it.†According to appellant, R.G. was
trying to get the other children to chase him around the house. R.G. eventually stopped after S.W. told him
she would tell their mother. Appellant’s
father testified that at some point he saw R.G. running back and forth between
Savannah’s and appellant’s bedrooms and jumping on the bed.
During the
trial when asked about R.G.’s actions, S.W. denied that R.G. had touched his
buttocks or encouraged the others to chase him or that he jumped on the
bed. R.G. did not recall touching his
own buttocks while he was on the bed. He
testified, however, that his sister had told him that he should not spread his
buttocks or put his own finger in his anus.
Nonetheless, R.G. remembered jumping on the bed and also recalled that
at some point he bumped his head on a shelf when he was jumping on the
bed.
Appellant’s
mother woke up at about 8:30 p.m. that night when she heard a bump. Appellant’s father also heard the noise so he
went downstairs to investigate and saw appellant and R.G. in appellant’s room.
S.W. and
R.G. went home shortly thereafter.
Later that
same day, R.G.’s mother took R.G. and S.W. to a birthday party at the home of a
family friend. R.G. did not interact
much with the other children, but instead sat with his mother. R.G.’s mother assumed that he was tired.
After the
party, R.G. and his family returned to their home. R.G.’s mother gave him a bath. During the bath she noticed that R.G.
flinched when she tried to wash his “bottom.â€
When R.G.’s mother asked R.G. about it, R.G. told her that appellant had
hurt him. R.G.’s mother testified that
R.G. told her that appellant had “socked†him in the stomach and then stuck his
finger in R.G.’s anus. R.G.’s mother
tried to examine his buttocks, but R.G. would not allow her to look. R.G.’s mother told him she wanted to take him
to the doctor, but the child became frantic, so she decided to put him to
bed. R.G. testified he remembered
telling his mother that appellant hurt him by putting his finger in his
anus. He further testified he
remembered telling his mother appellant punched him in the stomach and told him
not to say anything.
After R.G.
went to bed, his mother called appellant’s house and appellant answered the
phone. R.G’s mother asked to speak to
appellant’s parents, and he told her to hold on. When he returned to the phone, he told R.G.’s
mother that his parents were asleep. She
again asked to speak to one of appellant’s parents. According to R.G.’s mother, appellant seemed
hesitant.
R.G.’s
mother asked appellant if something happened between him and R.G. There was a long pause over the phone. R.G.’s mother thought appellant had hung up
the phone, and when she received no further response over the phone, R.G.’s
mother hung up the telephone.
Appellant
confirmed that he spoke to R.G.’s mother over the telephone and that she had
asked to speak to his parents. Appellant
testified that he set the phone down and went upstairs. Both of his parents were asleep. Appellant woke up his mother, who told him
she would call R.G.’s mother back.
Appellant’s mother testified that at about 11:30 p.m. or 12:00 midnight,
appellant shook her and said something, but she told him to go away. Appellant’s father also remembered appellant
coming to their bedroom and trying to wake up his wife.
When
appellant went back to the telephone, no one was on the other end of the line,
so he called back R.G.’s mother.
According to appellant, at that point R.G.’s mother asked if anything
happened to R.G. while he was at appellant’s house. Appellant claims that he told her that R.G.
hit his head while jumping on the bed.
R.G.’s mother recalled telling police that appellant denied anything
happened between him and R.G. Appellant
told her his parents were sleeping and his mother would return the call the
following morning.
The next
morning R.G.’s mother noticed that the underwear R.G. had worn the day before
had a stain—like a “small flow†of dark red blood—on them, so she put them in a
bag.
When R.G.
was interviewed by police, he confirmed that while appellant and he were alone
in appellant’s room, appellant grabbed him, pulled his pants down, bent him
over and a stuck a finger in his anus.
Afterward, appellant pulled up R.G.’s pants, punched him once in the
stomach, and told him not to tell anyone what had happened.
Appellant
was subsequently interviewed by police, he denied harming R.G. and indicated
that he knew it was wrong to put his finger in someone’s anus.
Court
In
September 2011, a juvenile wardship
petition was filed pursuant to Welfare and Institutions Code section 602
seeking to declare appellant a ward of the court. Count 1 of the petition alleged that on July
16, 2011, appellant committed a lewd act upon a child in violation of Penal
Code section 288, subdivision (a).
In addition
to evidence from R.G. and his family members, appellant and his family members,
and police investigators, testimony from medical experts was presented to the
court. According to the medical expert,
the evidence developed from R.G.’s medical examination shortly after the
incident revealed that the child “had an abrasion around his peri-anal tissues
on his anal fold.†The injury was
consistent with a finger being put in a child’s anus and that the injury was
recent. According to the medical expert,
the injury could not have been caused by someone cleaning himself or by riding
a bicycle and it would not have been surprising to find blood associated with
the injury.
During his
argued that the prosecution had failed to satisfy its burden of proof that
appellant had injured R.G. or that he had acted with the sexual intent required
under Penal Code section 288, subdivision (a).
With respect to the issue of intent, prosecutor responded that “[t]here
is no other reason to stick your finger in a four-year old’s butt except for
the arousal, passion, sexual desires.
[Appellant’s] conduct did show a consciousness of guilt.â€
On February
5, 2013, the juvenile court found count 1 true and sustained the Welfare and
Institutions Code section 602 petition.
The juvenile court found further that appellant understood the
wrongfulness of his actions. The juvenile court explained its
findings of fact in light of the factors contained in the case law which are
relevant to the issue of the required sexual intent under Penal Code section
288, subdivision (a). First, the
juvenile court determined appellant had reached puberty because he was 13 years
old at the time of the incident. The
court found the evidence showed appellant had been taught not to touch other
people without permission and so understood his actions were wrong. The juvenile court further found that when
R.G.’s mother called to speak with appellant’s parents, appellant responded by
asking if she was calling about whether anything happened between him and R.G.
thereby indicating he had “a knowledge and he knew she was calling regarding
something that had occurred between him and [R.G.].†The court also found appellant’s story
changed over time based on the court’s view of the evidence that appellant did
not tell R.G.’s mother during the telephone call that R.G. had bumped his head,
but instead mentioned the incident only later during the investigation.
The
juvenile court found that the touching took place in private, after the girls
and the boys were separated, and appellant and R.G. were alone. The court also found the nature of the
conduct supported the finding of intent.
The juvenile court found that appellant attempted to coerce R.G. into
silence by hitting him in the stomach and instructing him not to tell anyone
about the incident. The court found R.G.
to be a credible witness, that he consistently stated that appellant put his
finger in his anus, and that his statement was corroborated by physical
evidence.
The court imposed terms and
conditions of probation, imposed a maximum confinement time of eight years with
one day of predisposition credit, and ordered appellant placed home on
probation.
Appellant
timely appeals.
DISCUSSION
Appellant argues that sufficient
evidence did not support the juvenile delinquency court’s true finding that he
violated Penal Code section 288, subdivision (a) for lewd act upon a child,
R.G. In particular, appellant claims
that the evidence fails to support a finding of sexual intent accompanying his physical
contact with R.G. Upon reviewing the
entire record, we find that there is insufficient
to violate Penal Code section 288, subdivision (a).
The same
standard governs review of the sufficiency of evidence in adult criminal cases
and juvenile cases. (
537, 540.) A
sufficient evidence violates both state and federal due process and is thus
invalid. (U.S. Const., amend. XIV, § 1;
Cal. Const., art. I, § 15; People v.
Rowland (1992) 4 Cal.4th 238, 269.)
In reviewing the sufficiency of evidence, we must determine whether a
reasonable trier of fact could have found a defendant guilty beyond a
reasonable doubt on each element of a crime.
(Ibid.) We view the evidence in the light most
favorable to the prosecution (People v.
Johnson (1980) 26 Cal.3d 557, 578), and we must presume the existence of
every fact that the trier of fact could reasonably deduce from the
evidence. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.)
In
addition, the sufficient evidence standard is the same whether the evidence is
direct or circumstantial. (
174, 200.) “Although it is the duty of
the jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt.†“‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.’
[Citations.]†(
932-933.) “‘Circumstantial evidence may
be sufficient to connect a defendant with the crime and to prove his guilt beyond
a reasonable doubt.’†(Id. at p. 933,
quoting People v. Pierce (1979) 24
Cal.3d 199, 210.) However, if
circumstantial evidence lacking substance is that which supports an inference
of guilty knowledge, California courts have found such evidence insufficient. (People
v. Williams (1971) 5 Cal.3d 211, 215-217.)
Furthermore,
“[e]vidence which merely raises a strong suspicion of the defendant’s guilt is
not sufficient to support a conviction.
Suspicion is not evidence; it merely raises a possibility, and this is
not a sufficient basis for an inference of fact.†(People
v. Redmond (1969) 71 Cal.2d 745, 755.)
A reversal is warranted if “‘upon no hypothesis whatever is there
sufficient evidence to support [the conviction].’†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
With these
principles in mind, we review the evidence of appellant’s sexual intent
presented in the record on appeal.
On appeal,
the sole element of Penal Code section 288, subdivision (a) that appellant
challenges is the element of intent. For
the sake of the appeal he concedes that the
corroborated R.G.’s claim that appellant inserted his finger into R.G.’s anus,
and that perhaps this conduct constituted a battery. However, he claims that sufficient evidence
did not establish that he acted with the specific sexual intent required by
Penal Code section 288, subdivision (a).
Penal Code
section 288, subdivision (a) prohibits “any lewd or lascivious act . . . 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.†“A lewd or lascivious act can occur through
the victim’s clothing and can involve ‘any part’ of the victim’s body.†(People
v. Martinez (1995) 11 Cal.4th 434, 444.)
“Courts have long indicated that [Penal Code] section 288 prohibits all
forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always
been the defendant’s intent to sexually exploit a child, not the nature of the
offending act. [Citation.] ‘[T]he purpose of the perpetrator in touching
the child is the controlling factor and each case is to be examined in the
light of the intent with which the act was done. . . . If [the] intent of the act, although it may
have the outward appearance of innocence, is to arouse . . . the lust, the
passion or the sexual desire of the perpetrator [or the child,] it stands
condemned by the statute. . . .’
[Citation.]†(
To
establish the requisite intent, “‘[T]he trier of fact looks to all the
circumstances, including the charged act, to determine whether it was performed
with the required specific intent.’
[Citations.] Other relevant
factors can include the defendant's extrajudicial statements [citation], other
acts of lewd conduct admitted or charged in the case [citations], the
relationship of the parties [citation], and any coercion, bribery, or deceit
used to obtain the victim’s cooperation or to avoid detection [citation].†(People
v. Martinez, supra, 11 Cal.4th at p. 445.)
In addition, courts have also looked to whether the perpetrator
admonished the victim not to disclose the occurrence, physical evidence of
sexual arousal, clandestine meetings, and the age of the defendant at the time
of the incident.
title="">[4] (In re
Jerry M. (1997) 59 Cal.App.4th 289, 299 (“Jerry M.â€).)
Based on
our review of the evidence in the record and the factors outlined in the case
law used to determine whether the element of intent is met under Penal Code
section 288, subdivision (a), we conclude that the evidence was insufficient to
prove appellant acted with the intent to sexually arouse, gratify, or abuse as
required by the statute. As we shall
explain, sufficient evidence does not support the trial court’s findings with
respect to several factors cited by the court, and even as to those factors
with evidentiary support, a rationale trier of fact could not conclude beyond a
reasonable doubt that appellant acted with the required specific intent.
First,
although appellant was 13 years old at the time of the incident there was no
evidence appellant had reached puberty.
The court’s finding to the contrary is not supported by anything in the
record; there was no evidence presented during the trial that appellant had
reached puberty, had expressed any interest or curiosity sex or sexual
activity. It appears that the court
based its finding that appellant had reached sexual maturity on the fact of
appellant’s chronological age and nothing more.
Given that children’s sexual, emotional and physical development varies
widely by age, the court’s reliance on only the fact of appellant’s age to
determine he had reached puberty is based on speculation and conjecture. Thus, the conclusion that appellant had
reached puberty does not support the court’s finding on intent. The court’s conclusion in this regard is
further undermined by the lack of any evidence of sexual arousal.
Likewise
the court’s finding that appellant’s comments to R.G.’s mother over the
telephone reflected his acknowledgment that he had harmed R.G. and that
appellant knew she was calling regarding something that had occurred between
him and R.G. also lacks a basis in the record.
There was no evidence to support the finding that when R.G.’s mother
called to speak with appellant’s parents, appellant responded by asking if she
was calling about whether anything happened between him and R.G. On the contrary both appellant and R.G.’s
mother testified during the trial that R.G.’s mother, not appellant raised the
issue of whether anything had happened between appellant and R.G. Thus, appellant’s telephone conversation does
not support any conclusion with respect to appellant’s consciousness of
guilt.
Furthermore
other factors used to determine intent are lacking in this case. The incident was not accompanied by extra
judicial statements indicative of a sexual intent and there was no evidence of
prior incidents or lewd contact between appellant and R.G. In fact, there was no evidence appellant had
engaged in lewd actions on previous occasions with anyone.
Appellant did not employ deceit to
gain access to R.G. Appellant’s contact
with R.G. did not involve clandestine meetings or take place behind closed or
locked doors. Although R.G. and
appellant were together for 10-15 minutes, they were not alone in the house in
a private location. Appellant and R.G.
were in appellant’s room which opened up into the kitchen on one side and
appellant’s father checked on the children a number of times during the visit.
Other evidence the court relied
upon does not support a conclusion beyond a reasonable doubt that appellant
harbored a sexual intent. Evidence that
(1) appellant apparently did not initially disclose (to R.G.’s mother) that
R.G. had jumped on the bed hitting his head; (2) appellant acknowledged that it
was wrong to touch another person without their permission; and (3) appellant
struck R.G. in the stomach and admonished the child not tell anyone what had
happened, are equally consistent with an intent to avoid detection for injuring
R.G., as they are with an intent to sexually exploit R.G. Where the evidence presented provides equal
support to two inconsistent inferences, neither is established. (People
v. Tran (1996)) 47 Cal.4th 759, 772.)
In short, the only evidence in the
record cited by the court which rises above the level of suspicion to support
an inference of a sexual intent, is the act itself—that appellant pulled down
R.G.’s pants and put his finger in R.G.’s anus.
In fact, the nature of the act was the only evidence the prosecutor
cited during the trial to provide intent.
Here, the act may be sexually suggestive. Nonetheless, under Penal Code section 288,
subdivision (a) it is not enough that a child perpetrator has committed a
sexually suggestive act. Penal Code
section 288, subdivision (a) expressly states that commission of the act must
be sexually motivated as well. Where
there is no evidence that a prepubescent child has been sexually aroused or is
capable of sexual arousal, evidence that an inappropriate, sexually suggestive
act has been committed is not sufficient, standing alone, to satisfy the
requirement that the child perpetrator committed the act with intent to arouse
his or her own sexual desires.
We do not condone or minimize
appellant’s conduct, which was cruel and reprehensible. Nonetheless, the evidence is insufficient to
prove that appellant was capable of, or motivated by, sexual gratification or
lust beyond a reasonable doubt. The
basic purpose of Penal Code section 288 is to provide children with “special
protection†from sexual exploitation.
(See People v. Martinez, supra,
11 Cal.4th at pp. 443-444.) Here, the
record does not provide sufficient evidence that appellant sexually exploited
R.G. Instead the record shows that
appellant was an apparently hostile 13-year-old who got into some kind of
disagreement with a four-year-old over a video game and whose conduct was more
consistent with an intent to annoy and injure the younger boy than with sexual
arousal. As the court found in
appellant “was perhaps guilty of battery ([Pen. Code,] § 242), but the record
does not support a true finding beyond a reasonable doubt of conduct intended
sexually to exploit a child – the ‘gist’ of [Penal Code] section 288,
subdivision (a).†(In re Jerry M., supra, 59 Cal.App.4th at p. 300.)
In view of the foregoing we
conclude that sufficient evidence in the record does not support the court’s
finding beyond a reasonable doubt that appellant had the requisite sexual
intent pursuant to Penal Code section 288, subdivision (a).
DISPOSITION
The judgment is reversed.
WOODS,
J.
We concur:
PERLUSS, P. J. ZELON,
J.
name="_ftn1" title="">
[1] Appellant’s sister, Savannah, was age
10 or 11 at the time of the incident.
[2] Appellant’s room was not fully
enclosed; it had three walls and opened up into the kitchen. The only door in the room led to the outside
of the house. Appellant’s parents’ room
was upstairs, and Savannah’s room was downstairs next to appellant’s room.
