In re R.C.
Filed 7/9/13 In
re R.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re R.C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
R.C.,
Defendant and Appellant.
F065289
(Super.
Ct. No. JJD065739)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Juliet L. Boccone, Judge.
Hassan
Gorguinpour, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Charles
A. French and Daniel Bernstein, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
The
juvenile court found true the allegation that R.C., age 12, committed two
separate lewd acts upon a child (Pen. Code, § 288, subd. (a))
ordered to reside in the custody of his father and under the supervision of the
probation officer.
On appeal,
R.C. challenges the admission of his confession into evidence and the
sufficiency of the evidence to support the juvenile court’s true findings of
section 288, subdivision (a). He also
contends that the juvenile court violated his
it found he violated section 288 without substantial
evidence of intent. We disagree and
affirm.
STATEMENT OF THE FACTS
R.C. was
born in January of 1999 and spent the first five years with his parents. When his parents separated, R.C. and his
sister lived with their mother, who abused drugs and alcohol and often left the
children unattended so that she could gamble at a local casino. When R.C. was around seven years old, he was
removed from mother’s custody and placed with his father, who lived on an
Indian Reservation. R.C. had academic
and behavioral problems and was suspended from school several times.
In March of
2011, R.C.’s father’s girlfriend brought her two children to the house, a
nine-year-old boy, A., and a six-year-old girl, J. One evening, the children were in the living
room watching a movie while the adults were in the bedroom. During the movie, the girlfriend returned to
the living room and saw R.C. and J. together on the sofa under a blanket. The girlfriend pulled off the blanket and saw
both R.C. and J. pulling up their pants.
The girlfriend yelled at the children, went to wake up R.C.’s father,
and told her two children to get into the car.
Both R.C. and J. told her that J. was only adjusting her underwear. R.C. also told her that they were playing a
game called “Truth or Dare,†a game where someone dares another to do something
and the act must be done.
During the
investigation that followed, J. claimed that R.C. had initiated the game and
dared J. to do “really nasty things.â€
This included R.C. touching her with his penis and inserting it into her
vagina and anus. J. claimed this
happened twice, once at a public park near R.C.’s house and the second time
when they were discovered in the living room.
Soon after
the allegations, a detective named Ronna Brewer came to R.C.’s home to speak to
him. When she arrived, she gave R.C.’s
father the option to be present, but also told him R.C. “might be more
comfortable†talking about the sexual allegations without him in the room. Father left the room, but was still within
earshot.
A recording
of the interview was played at the hearing.
In the interview, Brewer spoke to R.C., first reminding him that he had
committed a crime. Brewer told R.C. that
she first had to do “official stuff,†like advise him of things like he had
seen “on TV.†Brewer explained to R.C.
that he was “not under arrest. I’m not
taking you with me. I am not putting
handcuffs on you ….†She explained that
they were just going to “have a nice chat and then I’m gonna go about my
business,†but that she “ha[d] to read this to you regardless, ok?†Brewer then advised R.C. of his
Brewer then
asked R.C. about his school and grade level.
At times, she referred to him as “honey†when she could not understand
his voice: “I’m sorry, honey.†A short
time later, the investigator had to ask R.C. to “move your lips when you talkâ€
because she could not make out his words.
Brewer then
questioned R.C. on whether he understood the difference between right and
wrong. When he said that he did, Brewer
asked him to give her an example of something right, he responded “think twice
before you do something.†Brewer asked
what happens if you do something wrong.
R.C. said “[y]ou might get in trouble.â€
When asked
about the allegations against him, R.C. acknowledged that he had played Truth
or Dare with J. and her brother on two occasions: once in the park and the
second time on the couch. Brewer told
R.C. not to be embarrassed in giving her details because “you’re not gonna be
telling me anything that’s gonna shock me ….â€
R.C. then
told Brewer that, at the park, J. dared R.C. to kiss her “middle part.†When asked to explain what he was referring
to, he said “between the legs,†which was used for “[p]eeing, pooping†and “for
having intercourse.†When asked what he
called female genitalia, R.C. said “vagina.â€
R.C. said that he did not enjoy it when J. kissed his penis because it
felt awkward and he was not excited by it.
He said that A. then dared him to put his penis in J.’s vagina, but he
could not accomplish that because she was too short. Instead, he inserted his finger into her
vagina and pulled it out quickly when J. moved away.
While
describing this scene, Brewer told him:
“Ok, honey, calm down.
It’s ok. Take a deep breath. It’s ok.
Breathe. Breathe. Breathe.
It’s gonna be ok. It’ll be
ok. You’re really embarrassed about
this, huh?â€
Brewer
mentioned that R.C.’s dad was dating J.’s mom, to which R.C. said, “[w]ell, not
anymore.†Brewer said “don’t worry about
that.†Brewer then explained that R.C.
should not have touched J., stating “[Y]ou don’t do that stuff.… [¶] … [¶]
[Y]ou don’t do that with your sister or step-sister, definitely
not.… You know, you gotta save some
things ‘til you get bigger otherwise you’re gonna take all the fun out of
life….â€
Brewer then
asked if that was all that had taken place at the park. When R.C. said it was, Brewer then asked him
about the incident in the living room.
According to R.C., they were lying on the couch under a blanket when J.
dared him to touch her vagina. He
briefly inserted his finger and pulled it back out. He also rubbed his penis against her, but did
not know why he did it.
Brewer
asked R.C. if anyone had ever touched him inappropriately and he said no. When asked if he knew it was wrong to touch
J., R.C. said that he did, but he did not think they would get caught. When asked if he “[p]ositively … knew†it was
wrong, he again said, “Yes, I didn’t know why I did.†Brewer again asked him if he knew it was only
wrong “right now†because of his age.
R.C. said, “Yes.†Brewer then
said “[y]ou realize when you turn 18 .…†and R.C. said “ … you’re gonna
jail.â€
When asked
how he knew it was wrong, R.C. said that no one had ever told him it was wrong,
but he knew it was wrong because J.’s mother threatened to call the police on
him after it happened. Brewer again
asked if he knew it was wrong before he did it or whether anyone had ever
taught him that it was wrong. R.C. said
that his father watched the television show CSI, so he “kinda knew.â€
Brewer told
R.C. that she did not want him to think that people were picking on him, but
that she was scared someone had touched him and she wanted to check on
that. R.C. told Brewer that someone had
come to his house and called him a child molester. According to R.C., J. told her sister what happened
and then she told the people at school.
Brewer told R.C. he was not a child molester and concluded the
questioning.
At trial, the prosecution introduced a
taped statement by J. and also had her testify in person. J. testified that she played Truth or Dare
with R.C. and her brother, but she was not sure which of the two taught her to
play the game. J. said that R.C.
“always†dared her to do “nasty stuff.â€
According to J., R.C. was the only one that did the daring when they
played the game. During the game at the
park, R.C. touched her on her vagina and butt.
They then moved to an area where there were not many other people, he
pulled both their pants down and touched her vagina. During the taped interview, J. said that R.C.
inserted his penis in her anus and neither of them moved. She then told him to stop and he did.
In the
taped interview, J. said that the second incident took place shortly after the
first. R.C., J., and A. were together at
R.C.’s father’s house watching a movie. R.C. and J. were together under a blanket on
the sofa and started to play Truth or Dare.
R.C. dared J. to let him put his penis in her anus. He also inserted it into her vagina. When she told him to stop, he did. R.C.’s penis was not “hard†and nothing came
out of it. J.’s mother came into the
room and they started to pull up their pants.
According to J., R.C. lied to her mother, telling her that J. had dared
him to do this. J. also claimed that, at
some point, R.C. told her not to tell anyone what had happened.
At trial,
J. testified that during the second incident, R.C. touched her vagina and butt
with his penis. Her mother then came
into the room and pulled the blanket off and then put her in the car and took
her away. J. explained to her mother
about the game they were playing.
A.
testified that he did not remember what his involvement was in the game, but he
remembered R.C. daring himself to touch J. between her legs. R.C. touched J. with both his hand and his
private part. A. did not see the second
incident because he was asleep. He said
that, at the time of the game, he did not know that it was wrong.
The
prosecutor introduced R.C.’s statement to Brewer into evidence.
Defense Case
The defense
called licensed clinical social worker Timothy Zavala, the clinical director of
Tulare Youth Services Bureau, a children’s mental health clinic, to
testify. Zavala’s primary area of work
was in determining the risk for an adolescent or adult who has committed a
sexual offense to commit another such offense in the future. Part of his analysis was also a psychosexual
assessment, which looked into an individual’s knowledge of sex, how he learned
about it, and what his thoughts about sexuality were.
Zavala read
all of the reports about R.C., spoke to him, and conducted a series of
collateral interviews. Zavala opined
that R.C. was immature for someone his age, lacked social skills and was naive
about sex and sexuality. Although he had
had a sex education class at some point in the past, R.C. had gained most of
his knowledge about sex by overhearing conversations and watching
television. R.C. said he had girlfriends
but did not have any sexual experience with them.
Zavala
found it significant that R.C., at age 6 or 7, had witnessed an incident
involving his mother having sex with a boyfriend. According to Zavala, when a young child is
exposed to sex, there is a “level of sexualization†that occurs. Zavala explained that the child cannot
process or understand what he has seen, and the exposure could blur appropriate
boundaries and confuse the child’s sense of right and wrong touching.
Given a
hypothetical resembling the incident at the park, Zavala explained that it was
possible R.C. could confuse boundaries in that situation. Zavala noted there was no evidence of a
sexual statement. According to Zavala,
without such statement and without evidence of a physiological response, there
was no way to conclude that the child even knew what sexual arousal was, let
alone that he acted with sexual arousal in mind.
Regarding
the second incident, Zavala explained that it appeared the game had by then
become “normalized†and the children engaged in it like it was “not a big
deal.†Zavala again noted the absence of
sexual arousal or sexual purpose.
When asked
on cross-examination whether R.C. might nonetheless have understood sexual
boundaries and the wrongfulness of his actions, Zavala acknowledged that it was
possible. But he also pointed out that
children engage in “what we consider sexual touching all the time,†out of
exploration or curiosity. Or they do it
because they are processing something that they have seen or heard or has
happened to them. Zavala stated that
“most of the time they’re engaging in those activities for reasons other than
sexual arousal.â€
In the
middle of closing argument, the juvenile court put the proceedings on hold and
ordered the parties to provide further briefing on R.C.’s specific intent, “the
arousal factor.†After receiving further
briefing and argument, the juvenile court found that R.C. had the required
intent and it sustained the petition.
DISCUSSION
I. ADMISSION OF
R.C.’S STATEMENT TO LAW ENFORCEMENT
R.C.
contends his confession was coerced. We
have reviewed the recording and examined the transcript. After considering the totality of the
circumstances, we conclude that the confession was voluntary.
Background
As
mentioned, Brewer advised R.C. of his Miranda
rights before she questioned him, and R.C. indicated that he understood those
rights. In reading R.C. his rights,
Brewer asked R.C. if he understood them and whether he wanted to speak to
her. He agreed that he did. Brewer asked if R.C. “completely†understood
what she had told him, if he knew what a lawyer was, and if he understood that
he did not have to talk to her. He said
he did to each question. She also asked
if he understood that anything he told her would go into a report and given to
the court. He said he did.
Court’s Ruling
At the
hearing, defense counsel argued that,
while Brewer advised R.C. of his rights, “he was not really understanding his
rights.†Counsel listed a number of
factors suggesting that R.C. did not make a knowing and voluntary waiver of his
rights: his age; his lack of experience with “the system†and law enforcement;
his family background; his intelligence and education; and his emotional state,
as evidenced by the fact that he started to cry during the interview. Counsel argued that R.C. did not understand
the implications of what he was saying.
The
juvenile court found that R.C. understood and waived his Miranda rights, stating:
“Counsel, I believe the Miranda requires that they be given notice, the requirements that
they acknowledge that he did. That he
obviously understand English. I can
think of very few people who you give a statement pursuant to
or nervous. Just about everybody across
the board, whether they are a child or whether they are an adult, is in that
situation.
“I don’t think
statement when they are upset, certainly.
I think the Miranda is
specifically targeted to make sure that they are advised. And that is it. And this officer did do that, so I’m going to
deny your request that it be suppressed.â€
(Italics added.)
Standard of Review
“On appeal,
a reviewing court looks at the evidence independently to determine whether a
defendant’s confession was voluntary, but will uphold the trial court’s
findings of the circumstances surrounding the confession if supported by
substantial evidence. [Citations.] However, if there is
defendant waived his Miranda rights,
‘we must accept that version of events which is most favorable to the People,
to the extent that it is supported by the record.’ [Citation.]â€
(People v. Lewis (2001) 26
Cal.4th 334, 383-384.) The prosecution
bears the burden of establishing a valid Miranda
waiver by a preponderance of the evidence.
(In re Bonnie H. (1997) 56
Cal.App.4th 563, 577.)
Applicable Law and Analysis
In order
for a confession to be admissible as evidence, the confession must have been
made voluntarily and without coercion. (
385-386; People v. Benson (1990) 52
Cal.3d 754, 778.) Admitting an
involuntary confession as evidence against a defendant violates a defendant’s
due process rights under both the California and United States Constitutions. (Jackson
v. Denno, supra, at pp. 385-386; People
v. Berve (1958) 51 Cal.2d 286, 290, overruled on other grounds in
509.) Use of such confession in a
criminal prosecution is prohibited because “it offends ‘the community’s sense
of fair play and decency’ to convict a defendant by evidence extorted from
him .…†(People v. Atchley (1959) 53 Cal.2d 160, 170.)
A
confession is involuntary if an individual’s will was overborne. (Rogers
v. Richmond (1961) 365 U.S. 534, 544; People
v. Sanchez (1969) 70 Cal.2d 562, 572; In
re J. Clyde K. (1987) 192 Cal.App.3d 710, 720, overruled on other grounds
in People v. Badgett (1995) 10
Cal.4th 330, 350.) A coerced confession
is not “the product of a rational intellect and a free will ….†(Blackburn
v. Alabama (1960) 361 U.S. 199, 208.)
In deciding
if a defendant’s will was overborne, courts examine “all the surrounding
circumstances – both the characteristics of the accused and the details of the
interrogation.†(Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226;
779.) A minor can waive his
v. Lara (1967) 67 Cal.2d 365, 389-391.)
Whether a valid waiver occurred turns on a number of circumstances
including: the minor’s age; the minor’s intelligence, education, experience,
and ability to comprehend the meaning and effect of the Miranda warning; the nature of the minor’s Fifth Amendment rights;
and the consequences of waiving them. (
378; People v. Lewis (2001) 26
Cal.4th 334, 383.) The minor’s age is a
factor because children will often feel pressured to submit to police
questioning when an adult in the same circumstances will feel free to leave. (J.D.B.
v. North Carolina (2011) ___U.S. ___, 131 S.Ct. 2394, 2398, 2403.) We thus carefully scrutinize any purported
waiver of a minor’s right against self-incrimination
to ensure it was voluntary, intelligent, and knowledgeable. (See In
re Michael B. (1983) 149 Cal.App.3d 1073, 1083.)
Details of
the interrogation may prove significant in deciding whether a defendant’s will
was overborne. For example, courts may
consider whether the police lied to the defendant. “While the use of deception or communication
of false information to a suspect does not alone render a resulting statement
involuntary [citation], such deception is a factor which weighs against a
finding of voluntariness [citations].†(
840-841, overruled on other grounds in People
v. Cooper (1991) 53 Cal.3d 771, 836.)
A lie told to a detainee regarding an important aspect of his case can
affect the voluntariness of a confession or admission. (People
v. Engert (1987) 193 Cal.App.3d 1518, 1524.)
R.C.
contends that, while he was informed of his rights in keeping with
voluntarily. R.C. argues instead that he
was “an insecure and immature boy†who was abused and neglected by his
mother. He argues that Brewer first
separated him from his father, and then portrayed herself as his guardian and
downplayed the interview as consisting of nothing more than a “‘nice chat’†and
assuring him that she would not arrest, handcuff, or take him away.
We find
that the juvenile court did not err in concluding that R.C. voluntarily,
intelligently, and knowledgeably waived his Miranda
rights. At the time he was questioned,
R.C. was 12 years old. He did not have
prior contact with the police. Although
he claims he was the victim of abuse and neglect when he was in his mother’s
home, R.C. fails to demonstrate that these past events affected his ability to
ask for an attorney or decline to speak with Brewer.
Brewer
testified that she gave R.C.’s father the option of being present during the
interview, but told him R.C. may be more comfortable talking without him in the
room. R.C.’s father chose to step out of
the room, but as noted by Brewer, the house was not very big, so he remained
“within earshot.†Our review of the
interview shows that Brewer was gentle and respectful toward R.C. while making
it clear that he could obtain an attorney and that he did not need to speak to
her at all. The fact that R.C. cried
during a portion of the interview or that Brewer called him “honey†does not
change our perception.
R.C. relies
on People v. Honeycutt (1977) 20
Cal.3d 150, for the proposition that Brewer’s tactics were coercive. In Honeycutt,
the defendant was taken into custody as a suspect in a homicide. The questioner engaged in a half-hour
unrecorded conversation, wherein the two discussed unrelated past events and
former acquaintances, finally turning to conversation of the victim of the homicide. Three hours after his arrest, defendant was
first advised of his Miranda rights,
and then provided a confession to the homicide.
The court found this “clever softening-up†of the defendant through
pre-advisement ingratiating conversation and disparagement of the victim, which
resulted in defendant’s agreement to talk prior to being advised of his rights,
rendering his post-advisement confession involuntary. (People
v. Honeycutt, supra, at pp. 160-161.)
No such
tactics occurred here. Brewer did not
engage in small talk with R.C. other than to introduce herself, ask R.C. his
age, how he spells his last name, and his date of birth. She then told R.C. that she was required to
read him his rights and then immediately did so.
R.C. also
relies on In re Shawn D. (1993) 20
Cal.App.4th 200, for the proposition that Brewer used deception to obtain his
statement. In In re Shawn D., the court found the juvenile’s confession to
burglary involuntary after the police “repeatedly suggested that [he] would be
treated more leniently if he confessed.â€
(Id. at p. 214.) The juvenile was told that his honesty would
be noted in the police report and that he would receive more lenient treatment
if he “explained†his role in the robbery.
The officers also implied that if he confessed to and helped recover the
proceeds of the burglary, they would intervene on his behalf with the
prosecutor. The court stated:
“[T]his is not a case where there was merely one
isolated instance in which the police implied that [defendant] would benefit
from confessing. Rather, the officer
continually raised this theme- from the very beginning of the interrogation –
to the comments about helping the police get the property back – to the
statements about [defendant] being able to see his girlfriend and baby – to the
hypothetical about the bank robber – to [the officer’s] statement that,
‘Seriously, you help us get the stuff back and I will personally talk to the
D.A. or persons who do the juvenile.’
The promise of leniency in exchange for a confession permeated the entire
interrogation.†(In re Shawn D., supra, 20 Cal.App.4th at p. 216.)
R.C. points
to comments made by Brewer which he claims were deceptive: her words to him
that he calm down and breathe; her acknowledgement that he was embarrassed when
he explained what he had done; and her words to him that his actions were
better saved for when he was older. But
when read in context with the entire interview, we cannot conclude that R.C.
made the incriminating statements based on Brewer’s empathetic comments. There is no suggestion of any benefit to R.C.
in exchange for his cooperation.
The
voluntariness of a confession or a waiver of
totality of all the surrounding circumstances - both the characteristics of the
accused and the details of the interrogation.’
[Citations.]†(
981, overruled on other grounds in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Accordingly, we find R.C.’s statement to
Brewer was voluntarily given and properly admitted into evidence.
II. SUFFICIENCY OF THE EVIDENCE OF SECTION 288,
SUBDIVISION (a)
R.C. asserts that the People
failed to present substantial evidence supporting a finding beyond a reasonable
doubt that, in touching J., he had the requisite intent to obtain sexual
gratification. We disagree.
Standard of Review
“In
assessing a claim of insufficiency of evidence, the reviewing court’s task is
to review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence – that is, 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. Rodriguez (1999) 20 Cal.4th 1, 11.)
Reversal of a conviction for insufficient evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.) These principles are
equally applicable to a review on appeal of the sufficiency of the evidence in
a juvenile proceeding in which the minor is alleged to have violated a criminal
statute. (In re Roderick P. (1972) 7
Cal.3d 801, 809.)
Applicable Law and Analysis
Section 288
imposes felony liability upon “any person who willfully and lewdly commit 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 .…â€
(§ 288, subd. (a).) Criminal
liability under section 288 does not depend on proof that the accused touched
an intimate body part of the minor; rather, “section 288 is violated by ‘any
touching’ of an underage child accomplished with the intent of arousing the
sexual desires of either the perpetrator or the child.†(People
v. Martinez (1995) 11 Cal.4th 434, 452.)
To determine
whether a perpetrator touched his or her victim with the specific intent to
obtain sexual gratification, the trier of fact looks to all the circumstances
to infer the perpetrator’s intent, which generally is incapable of proof by
direct evidence. (People v. Martinez, supra, 11 Cal.4th at p. 445;
289, 295 (Jerry M.).) Factors relevant to discerning the
perpetrator’s intent include the manner of the touching that occurs, any deceit
used to avoid detection, extrajudicial statements made by the perpetrator, and
the relationship of the perpetrator and the victim. (People
v. Martinez, supra, at p. 445.) The
trier of fact may also take into account “the presence or absence of any
nonsexual purpose†for the contact. (
R.C. cites
show that he did not act with the intent to gratify himself sexually. In Jerry
M., 11-year-old Jerry touched the breasts of three young girls. Twelve-year-old Clair was with friends when
Jerry approached the group and squeezed Clair’s breasts through her shirt. (Id.
at p. 294.) A month later, he refused to
return Clair’s bike unless she showed him her breasts, which she ultimately
did. While another girl, Stephanie, was
standing near her apartment complex mailboxes, Jerry touched her breasts,
saying that they “‘grew’†and felt “‘good.’â€
(Ibid.) Jerry was charged with four violations of
section 288, subdivision (a).
Relying
largely on Jerry’s age (11) and his prepubescence, Jerry M. found that the minor lacked the specific intent to
sexually arouse himself. (
300.) The court also found relevant that
the victims knew Jerry and that his conduct was public, occurring in daytime
and in the presence of others, thus there was no attempt or opportunity to
avoid detection. No clandestine activity
occurred and the minor did not warn the girls not to tell anyone what happened. The minor’s touching was momentary, without
caress or an attempt to prolong the touching.
The court concluded that “Jerry was a brazen 11-year-old whose conduct
was more consistent with an intent to annoy and obtain attention than with
sexual arousal.†(Ibid.)
The
sentiment underlying Jerry M. was
that the natural, normal curiosity of a prepubescent child, even if
inappropriately expressed, should not be criminalized. But several factors distinguish Jerry’s
prepubescent curiosity from what R.C., age 12, did to J. Unlike Jerry, who touched the girls in public
without attempting to avoid detection, R.C. touched J. in a secluded area of a
park, specifically moving to a location where there were less people, and under
a blanket when adults were not in the room.
The manner of the touching – pulling both her pants down as well as his
own, touching and/or inserting his penis in her vagina and anus, and inserting
his finger into her vagina – is itself suggestive of a lewd motive. According to J., R.C. told her at one point
not to tell anyone what had happened. He
also lied when confronted by J.'s mother. (See, e.g., In re Randy S. (1999) 76 Cal.App.4th 400, 407 [minor’s intent to
sexually arouse himself by touching his stepsister inferred in part from the
fact that he sought to hide his conduct].)
Furthermore, no evidence of an innocent purpose for this contact was
presented. Finally, appellant admitted
to the investigator that he knew his acts were wrong at the time he did them.
As stated
by our Supreme Court in People v.
Martinez, supra, 11 Cal.4th at page 452, “[T]he circumstances of the
touching remain highly relevant to a section 288 violation. The trier of fact must find a union of act
and sexual intent [citation], and such intent must be inferred from all the
circumstances beyond a reasonable doubt.â€
Although R.C. may only have been experimenting sexually, his actions
clearly evidenced an intent to sexually stimulate himself. Accordingly, we conclude there was sufficient
evidence that R.C. possessed the requisite intent required under section 288,
subdivision (a).
Finally, because we conclude that
there was sufficient evidence of R.C.’s sexual intent, we need not address his
related argument that he was denied his federal constitutional
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Franson, J., and Peña, J.
name="_ftn2" title="">[1] All
further statutory references are to the Penal Code.
