In re Rodney C.

Filed 9/20/07 In re Rodney C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Morton Rochman, Judge. Affirmed.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Attorney General, Roberta L. Davis and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Rodney C. (Rodney) appeals the order of wardship (Welf. & Inst. Code, 602) entered following the juvenile courts finding he committed a lewd act upon a child (Pen. Code, 288, subd. (a)). The juvenile court ordered Rodney C. placed at home on probation.

Rodney contends: (1) there is no substantial evidence he committed a lewd act on the victim with the requisite intent of arousing, appealing to, or gratifying his or the victims lust, passions or sexual desires, and (2) since he was granted probation, the trial court erred by setting a maximum term of confinement. We affirm the order of wardship.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecutions case.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; In re Jesse L. (1990) 221 Cal.App.3d 161, 165), the evidence established that on June 19, 2005, Patricia A. (Patricia), accompanied by her husband, her 12-year-old son, Daniel, and her four-year-old daughter, Victoria, went to the Sylmar home of Katie H. ([H.]) for a Fathers Day celebration. H.s two grandsons, Paul and 14-year-old Rodney, were also at the party. It appeared to Patricia that Rodney was displaying a special interest in Victoria. He played with Victoria and sat with her while she ate.

At some point, Rodney, Paul, Daniel and Victoria went inside the house, to Rodneys room. According to Victoria, while Paul and Daniel played with various toys and games, Rodney sat down on the bed. Victoria sat on Rodneys knee. As she sat there, Rodney reached down and touched Victoria on her vaginal area, which she referred to as her private. Victoria was wearing a bathing suit at the time and Rodney touched Victoria for approximately one minute through the suit; he did not touch her skin.

Approximately 20 minutes after the children had gone inside the house, Patricia went inside to look for Victoria. When Victorias father, who was sitting in the living room, told Patricia that he had not seen Victoria, Patricia went to Rodneys room and knocked on the closed door. When no one responded, Patricia went to the bathroom, knocked on the door and found H.s grandson, Paul, inside. Patricia then went back to Rodneys room, knocked on the closed door and opened it to see Rodney and Victoria facing each other. Rodney and Victoria both jumped. As Rodney then pulled his hands back away from Victoria, Victoria turned to face Patricia and closed her towel in front of her. Patricia thought both Victoria and Rodney looked scared, like they were doing something they werent supposed to be doing. Patricia, who felt very uncomfortable and knew something wasnt right[,] took Victoria to the bathroom. There, Patricia asked Victoria what she and Rodney had been doing. Victoria told Patricia that Rodney had tickled her in her private, then pointed toward her crotch.

Patricia took Victoria back to Rodneys room. After Paul and Daniel left the room, Patricia told Rodney that Victoria just told [her] that [he, Rodney, had] touched her[, Victoria,] in her private. Rodney stated, Oh, thats disgusting. Why did you say that, Victoria? Victoria responded, Because you did . . . .

After speaking to Rodneys mother, Patricia and her husband decided to leave the party. As they did so, Rodneys grandmother, H., apologized for what had happened.

On June 30, 2005, Los Angeles Police Detective James Clifford (Clifford) and his partner, Detective Teresa Gordon (Gordon), interviewed Victoria at the Van Nuys police station. When Clifford asked Victoria to demonstrate where Rodney had touched her, Victoria pointed to her vaginal area.

On July 8, 2005, Clifford and Gordon interviewed Rodney at the police station. When Clifford asked Rodney if he knew why the officers wished to speak with him, Rodney stated that Victoria had made allegations that he molested her. Rodney initially vehemently denied any inappropriate touching. A short time later, Rodney indicated that, in order to keep Victoria from jumping up and down on the bed, he had to place his hands on her shoulders, then pull her feet out from under her. When the officers told Rodney that his DNA would be present on Victorias bathing suit, Rodney became increasingly nervous. He described how, while lifting her off of the bed, he might have inadvertently touched [Victoria] in . . . her vaginal[,] buttocks region. However, he stated the touching had not been intentional.

The detectives told Rodney that they believed Victoria and that her story had been credible and consistent with what she had told her mother. In response to questions about his sexual orientation or preference, [Rodney] said he was struggling with whether or not he was homosexual or heterosexual and that [this] struggle had either commenced or had begun to consume him around the . . . time . . . he molested [Victoria]. After initially indicating that the touching had been an accident, Rodney then described to the detectives, both verbally and by demonstration on the palm of Detective Gordons right hand[, how he had] used his [index and middle] fingers to touch [Victorias] vagina. He had placed his hand over her vagina, suspended [it] over her vagina, [without] making direct contact, [then] had stroked her vagina with his fingers. Rodney indicated that touching Victoria in this way had not caused him to have an erection.

Detective Clifford told Rodney there was no doubt in his mind that Rodney had inappropriately touched Victoria. He, however, wanted an explanation as to why Rodney had done it. Rodney indicated he had meant to do it, [but] that he didnt know why . . . . Clifford then suggested to Rodney that, if he was battling or struggling with his sexual orientation or sexual preference, that . . . he touched [Victoria] as a . . . litmus test . . . as to what his true sexual desires or sexual identity was.

Clifford asked Rodney to provide him with a written statement and gave Rodney a pen and paper. Approximately 20 minutes later, Rodney gave to the detective the following signed and dated writing: The night of the barbecue when I called Daniel in the room, we all sat on the bed and I saw [Victoria] and asked if she wanted to sit with us. When I picked her up, I touched her. But not to be perverted. Then and now I was questioning my sexuality. But then and now Im confused about everything school, work, family, confirmation. [] I cannot begin to explain how badly I feel about this. The whole time since that day, Ive had a knife in my soul. My heart is broken about what Ive done, and I cant begin to explain how sorry I am. I can only hope for forgiveness.

After Rodney completed the written statement, he was placed under arrest. The entire interview, including the writing of the statement, lasted for approximately one hour and twenty minutes.

2. Defense evidence.

H.s grandson, 12-year-old Paul, testified that during the June 19, 2005, party, he, Rodney, Daniel and Victoria had gone to Rodneys room to play. At no time was the door to Rodneys room closed since H. doesnt let [the children] close the door when there is a party. While they were in the room, H. came to check on them approximately three times. On one occasion, Victoria was jumping up and down on the bed and H. told her to stop. Victoria left the room for a short time. When she returned, she was followed by her mother, Patricia.

At no time did Paul see Victoria sit on Rodneys lap and at no time did he see Rodney touch Victoria. Although Paul and Daniel were busy playing with toys, Paul looked in Rodneys direction several times while they were all in the room. Rodney was sitting on the bed, toward the back end. Victoria was more toward the front of the bed. After Victorias mother, Patricia, came into the room, she and her family left the party. Paul overheard Victoria say that she didnt really want to leave.

Rodneys grandmother, H. , testified Patricia and her family had been guests in her home on many occasions. At the June 19, 2005, Fathers Day party, approximately 20 to 25 people, including Patricia and her family, were present. At some point, Rodney, Paul, Daniel and Victoria came into the house from the outside pool area and went to Rodneys room to play with some toys he had there. The children played in the room for between one-half to one hour and, during that time, H. checked on them approximately four times. At no time was Rodneys bedroom door closed. H. explained, We have a rule. When we have guests, no door is closed except for the bathroom doors or the front door. Those are always locked. Or if somebody is in the bathroom, then they lock it. But the bedrooms, no. Every door is always open. Its a rule.

On one occasion when H. checked on the children, Rodney asked her if she could  get Victoria out  because Victoria was jumping on the bed. H. entered the room, picked up Victoria from the bed and told her to go outside to her mother. On another occasion, after Victoria had returned to the bedroom, H. again found her jumping on the bed. H. picked up Victoria and said,  I told you to stay outside with your mother.  When Victoria looked at H. and raised her little foot as if to kick H. , H. swatted [Victoria] and again told her to go outside. H. stated she would not normally have swatted Victoria, but [Victoria] was like a little out-of-control person. She [could be] very stubborn.

Approximately five minutes later, Victoria, accompanied by her mother came back inside the house. H., who was talking on the telephone in her bedroom, heard a commotion and came out to see what was going on. Victorias father told H. that Rodney [had] hurt Victoria. Although H. denied the allegation and stated that she wished to straighten . . . out the situation, Victorias father, Patricia, Victoria and Daniel left the party. Both Victoria and Daniel were crying and H. heard Victoria say she did not wish to leave.

Mark Costanzo (Costanzo), a professor at McKenna College and Claremont Graduate University, has a Ph.D. in social psychology from the University of California at Santa Cruz. Interviewing interrogation is one of Costanzos primary research interests and he is currently on the approved list of experts for the L.A. panel of courts.

Costanzo stated that, according to the Innocence Project, a group which looks at cases of people who have been exonerated because of DNA evidence, false confessions are the second most common cause of wrongful convictions. Minors, or persons under 18 years of age, are especially likely to make false confessions. According to studies relied on by Costanzo, youth . . . [is] the most potent risk factor . . . yet identified. Young victims are also susceptible to suggestion. Costanzo indicated that [v]ery young children, children five, four and younger, tend to be the most suggestible. [O]pen ended questions, such as,  What happened?  tend to elicit the most accurate responses. When more specific questions, such as,  Did the doctor touch you here?  are asked, the rate of error goes way up. Merely repeating a question also increases the rate of error in responses, particularly when the person being questioned is a minor. The [child] get[s] the idea that the first answer [he or she] gave was unacceptable, or not what the adult want[ed] to hear [and this] can create some bias.

Costanzo had reviewed the materials gathered by police in Rodneys case, including the investigative report, the police report, [and] the charging instruments. In addition, Costanzo had interviewed Rodney approximately one week before the adjudication proceedings. Rodney told Costanzo that, during the detectivess interview, he had been terrified. In addition, the detectives wouldnt listen to his denials and . . . offered a variety of scenarios about what might have happened.

Costanzo was of the opinion the detectivess interview was likely coercive in that 14‑year-old Rodney was alone in a room with two police interrogators without the benefit of any appropriate adult. The detectives also suggested a motive . . . [;] to see if [Rodney] liked girls or not. Further, the detectives used what is referred to as an evidence ploy, which is an attempt to say the evidence is going to show you guilty. They said they would test the DNA on the swimsuit.

3. The juvenile courts rulings.

Before making its ruling in the matter, the juvenile court noted it had found the victim, Victoria, competent and very bright. The court concluded she told the truth as to what happened. The court continued, Also you have, coupled with that, the prompt complaint of the child to her mother when the mother confronted the Minor and child. And promptly the child told what happened. . . .  [T]his child did not have time to plan such a story to be told.

The juvenile court found that overall, the People [had met] their burden of proof and found beyond a reasonable doubt that Rodney had committed a lewd act on a child in violation of Penal Code section 288, subdivision (a). The court sustained the petition and determined Rodney was a person as described by Welfare and Institutions Code, section 602.

At proceedings held on July 20, 2006, the juvenile court directed that Rodneys care, custody, control and conduct [were to be] placed under the supervision of the probation officer and that he was to be permitted to remain in the home of his mother. After reading to Rodney the conditions of his probation, the trial court stated, The maximum confinement time is set by the law at eight years.

CONTENTIONS

Rodney contends: (1) there is insufficient evidence he committed a lewd act on Victoria with the requisite intent of arousing, appealing to, or gratifying his or Victorias lust, passions or sexual desires and, (2) since he was granted probation, the trial court erred by setting a maximum term of confinement.

DISCUSSION

1. Substantial evidence supports the finding Rodney violated
Penal Code section 288, subdivision (a).

Subdivision (a) of Penal Code section 288 provides in relevant part: Any person who willfully and lewdly commits 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, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. The crux of [the] crime is that the perpetrator have the specific intent to arouse sexual desire when any touching of any part of the body of an underage child is committed. (People v. Chambless (1999) 74 Cal.App.4th 773, 785.)

Rodney contends, although he may have committed what would be characterized as a lewd act, there is insufficient evidence he did so with the intent required for a violation of Penal Code, section 288, subdivision (a).

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]. [] . . . [I]f the circumstances reasonably justify the [courts] findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witnesss credibility. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)   Reversal . . . is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]   (People v. Manriquez (2005) 37 Cal.4th 547, 577.) As to criminal intent,  [b]ecause [it] can seldom be proved by direct evidence, it may be inferred from the circumstances. [Citations.] (People v. Mullens (2004) 119 Cal.App.4th 648, 662.) These principles are equally applicable to proceedings adjudicated pursuant to section 602 of the Welfare and Institutions Code. (In re Jesse L., supra, 221 Cal.App.3d at p. 165.)

It has been determined that [c]ircumstances relevant to determining whether [a] touching was sexually motivated include the nature of the charged act, physical evidence of sexual arousal, clandestine meetings, the defendants 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 victims cooperation or to avoid detection [citation].  (In re Randy S. (1999) 76 Cal.App.4th 400, 405-406 (italics omitted).

Here, Patricia noticed Rodney displayed a special interest in Victoria. In addition, the incident occurred behind a closed door, while the two other young boys in the room were preoccupied with games and toys.

Most significant, however, are Rodneys extrajudicial statements. He at first vehemently denied touching Victoria. Then, after changing his story several times, Rodney admitted during an interview with Detectives Clifford and Gordon that he had inappropriately touched Victoria. In response to the detectivess questions about his sexual orientation or preference, Rodney stated he was struggling with whether or not he was homosexual or heterosexual and that [this] struggle had either commenced or had begun to consume him around the . . . time . . . he molested [Victoria]. Rodney then described to the detectives, both verbally and by demonstration on the palm of Detective Gordons right hand[, how he had] used his [index and middle] fingers to touch [Victorias] vagina. When Detective Clifford then suggested to Rodney that his touching of Victoria might have acted as an indicator with regard to his sexual orientation, Rodney did not disagree. Instead, he gave to the detective a written statement indicating that, both at the time he touched Victoria and during the writing of the statement, he was questioning [his] sexuality.

This evidence substantially supports the juvenile courts finding Rodney touched Victoria with the requisite intent of arousing, appealing to, or gratifying [his] lust, passions, or sexual desires . . . . (Pen. Code, 288, subd. (a).) The juvenile court properly found Rodney had violated the provisions of Penal Code section 288, subdivision (a).

2. The trial courts statement, that [t]he maximum confinement time
is set by the law at eight years, had no legal effect.

After sustaining the petition, the juvenile court placed Rodney at home on probation. The court nevertheless stated that the maximum confinement time is set by the law at eight years.

When a minor is committed to the California Youth Authority, Welfare and Institutions Code section 731, subdivision (b)  unambiguously provides that the juvenile court has discretion to set a maximum term of physical confinement, based on the facts and circumstances of the case, so long as that term does not exceed the maximum period that could be imposed on an adult convicted of the same offense.  (In re Ali A. (2006) 139 Cal.App.4th 569, 572.) Likewise, if a minor is placed in juvenile hall, ranch, camp, forestry camp or any other secure home or facility other than the Youth Authority, Welfare and Institutions Code, section 726, subdivision (c) provides that the order removing the minor from the physical custody of his or her parent shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

Here, Rodney was not removed from the physical custody of his parents. Instead, he was committed to the custody of his mother subject to supervision on probation. In the event [Rodney] violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his [mothers] custody. [Citation.] If that happens, then at that time the juvenile court will have to comply with [Welfare and Institutions Code section 726, subdivision (c) or section 731, subdivision (b)] in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because [Rodney] is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case. (In re Ali A., supra, 139 Cal.App.4th at p. 573-574, original italics.)

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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