*1 Dist., Fourth Div. Two. Nov. E023152. 1999.] [No. S., the Juvenile Court Coming
In re RANDY a Person Under Law. PEOPLE, Respondent, THE Plaintiff S.,
RANDY Defendant and Appellant.
Counsel Hinz, under the Court of for Defendant Michon M. by Appeal, appointment and Appellant. General, Druliner, David Assistant Lockyer, Attorney Attorney
Bill P. Chief General, Schons, General, H. and W. Assistant Carl Horst Attorney Gary General, Sevidal, and for Plaintiff Attorneys Arlene Aquintey Deputy Respondent.
Opinion HOLLENHORST, P. In Inre M. 59 Acting J. insufficient 148], court decided 289 Cal.Rptr.2d sexual that the intent arouse own specific defendant possessed case, he was old. In this we hold the fact desires because 11 years in determining defendant old is one factor consider years only intent to arouse his own whether he is the specific capable possessing sexual desires. minor, S., a final (herein Defendant) from
Randy appeals judgment act that he committed a lewd court’s following adjudication the juvenile (a),1 a child violation of Penal Code section upon (Welf. of Defendant as a ward of the court. & Inst. subsequent adjudication Code, 602.) Defendant contends there was insufficient evidence of the key §
element of intent to arouse sexual desires. We affirm disagree juvenile court’s judgment.
Facts 3, 1998, a.m., On April (herein Mother) 7:30 Defendant’s stepmother heard Defendant and his in the shower. Defendant stepsister, Ryan, old and was 2 at the time. Ryan Mother tried to the bathroom open door, door but it was locked. After she told Defendant to he did so open came Ryan wet, out of the bathroom. She was not crying but was naked.2
Ten minutes after Mother discovered and Defendant in the bath- room, bathroom, Mother saw Ryan reemerge from this time *4 crying wet.3 her, Mother a towel around wrapped and thought Ryan was crying because she was wet. Five minutes after Defendant left for school at 8:30 a.m., Mother (the noticed an area “size of an orange”) around Ryan’s vagina red, raw, was swollen and had a rash. When Mother asked what had Ryan Mother, told happened, Ryan tearfully hurt my pee-pee,” “[Defendant] to her pointed vaginal area.
Mother then went to Defendant’s school and Defendant. In spoke there, to Mother’s response as to he inquiry why she was Defendant thought said, “I said, don’t think that hope you I abused sexually Mother Ryan.” that, that funny you should . . . say “[I]t’s because has been . . . something her, inside of and she’s red and she’s swollen and we have to go Mother added hospital.” examination would show “traces” of Defend- ant if he had his body fingers inside Ryan. Defendant that he responded did not want to to the go because “there would be traces of him on hospital her.” He he said his fingers her to her with put wash and to soap get home, out. On the soap Defendant denied he way had touched but Ryan, home, after he got wall, truth, Mother him pushed against demanding and Defendant said he had his put fingers inside and he did not Ryan, know why. incident,
Prior to the of the Mother had told day Defendant not to take showers with not to be naked Ryan, in her and not to touch her presence, Code, statutory 1 All further references are to the Penal unless otherwise stated. because, 2 With the exception wearing pull-ups Ryan night, normally naked Mother, according undergoing potty training. day she was On the of the incident she had got up been naked since she around 4:00 a.m. 3 It is unclear long Ryan from the record as to how Defendant and were in the bathroom together they after reentered the bathroom and whether the bathroom door had been locked. occasions, if Defendant asked Mother On numerous private parts. previous time, had denied he could take a shower with and each Mother Ryan, Defendant’s request. Defendant sheriff’s on of the by day
During questioning deputy incident, been came into the Defendant said he had in the shower when Ryan bathroom, in the area. Defendant herself Ryan began slapping vaginal had them in her vagina.4 added that fibers Ryan picked up carpet put in the area and Ryan vaginal explained Defendant denied touched having told he had the officer that he Mother touched because was what Ryan He when if she she wanted to hear. also told he asked Mother deputy he he made the Ryan, showed at his school because had harassed sexually up that he (Defend- statement he had told Mother thought stepbrother because ant) had harassed sexually Ryan. incident, took to the three after the she days
When Mother Ryan hospital, as When Mother later took diagnosed a bladder infection. having center, let examine to the child assessment she refused to her anyone would any not answer questions.
Standard of Review sufficient evidence to find a defend determining In whether (a), ant review the whole guilty violating section “[w]e sub favorably record most to the to determine whether there is judgment *5 reasonable, credible, is, evidence that is of solid stantial evidence—that the a trier fact could made value—from which reasonable of have requisite fact, standard The trier of finding under the of governing proof. [Citations.] court, the and if the guilt, not the must be convinced of defendant’s appellate the fact’s circumstances and inferences trier of justify findings, reasonable the of the court that the circumstances also reason reviewing might opinion does not reversal of reconciled with a warrant ably contrary finding M., 289, 298.) (In re 59 judgment. supra, Cal.App.4th [Citation.]” Sufficiency of the Evidence 288, he violated section finding Defendant challenges (a), on the that the evidence was insufficient show subdivision ground contention on the he intended arouse own sexual desires. He bases his any pieces carpet. Mother did not notice loose any 4 The did not notice loose of also deputy Ryan pull of Ryan’s vaginal pieces of area. She had never seen pieces carpet in or around Ryan slap vaginal area before. carpet, had she ever seen her carpet fiber from nor
405 time, fact he was 11 old at the only he was and there prepubescent,5 a lack of evidence of sexual arousal. 288, (a), Section in relevant “Any part, provides: person who willfully commits lewd or lascivious act. . . or lewdly any upon thereof, with the body, or or member any of a child who is under the part age to, lust, of 14 years, with the intent arousing, appealing gratifying of child, or sexual passions, desires or the person of a guilty felony (Italics . . . added.) 288 is violated by of an ‘any touching’ “[SJection child underage with the intent accomplished the sexual desires of arousing either the or the child.” perpetrator v. 11 (People Cal.4th Martinez 434, 905, P.2d Cal.Rptr.2d 1037].) [45 Martinez,
In our high court that the explained basic of section 288 purpose is “to children with provide from ‘special protection’ sexual exploitation. . . . The statute also assumes that victims suffer young [Citation.] profound harm whenever are they perceived used as of sexual desire. objects reason, ... For this the courts have indicated that long [Citation.] [10 section 288 all forms of prohibits sexually motivated contact with an under Indeed, age child. of the offense ‘gist’ has been the always defendant’s child, intent to sexually exploit not the nature act. offending [Cita of the purpose perpetrator tion.] ‘[T]he the child is the control touching factor and ling each case is to be examined in the of the intent with light which the act 443-444, Martinez, was done. . . .’” v. (People 11 Cal.4th supra, added.)
italics The court noted that “convictions have been obtained and Martinez upheld where the only defendant’s lustful intent was manifest under the particular statute, circumstances. In all cases arising under the are People required that the defendant prove touched the child in order to obtain immediate sexual gratification. ... We reiterate that the circumstances of the [10 remain touching relevant to highly a section 288 violation. The trier of fact must find a union of [citation], act and sexual intent and such intent must be inferred from all the circumstances a reasonable beyond doubt.” v. (People Martinez, 434, 452, supra, added; 11 Cal.4th italics People Levesque (1995) 35 439].) Cal.Rptr.2d *6 Circumstances relevant to whether the determining was touching act, sexually motivated include the nature of the charged physical 1836, Dictionary (1993) 5 Webster’s Third New page International “pubescent” defines as 1835, “arriving at having or reached puberty.” page “puberty” At it defines as “the condition being of or the period becoming capable of first reproducing sexually by maturing of marked genital characteristics, of the organs, development secondary of sex and in the human and in female; higher primates by the first occurrence of age menstruation in the ... the at which People puberty occurs legally boys girls.” (See often construed as 14 in in [is] 12 also v. 638, Olsen 492, 52].) 36 Cal.3d Cal.Rptr. 645-646 685 P.2d [205 406 arousal, state- meetings, extrajudicial of sexual “the clandestine defendant’s [citation], or in the case charged
ments other acts of lewd conduct admitted coercion, [citations], [citation], brib- the of the parties any relationship used to obtain the victim’s or to avoid detection deceit ery, cooperation Martinez, 434, 445, added.) 11 Cal.4th italics supra, (People [citation].” M., The in In re added “the of supra, age court 289 Jerry 299.) the to this of factors. at the (Id., younger defendant” list p. “[T]he At the are with intent of sexual arousal. minor less acts the likely specific case, in than which we need not determine this age some youngér years, intent the minor cannot as a matter of have of sexual specific law (Id., at it is reasonable to assume that if a 300.) young arousal.” While p. arousal, child would not intend child is of sexual experiencing incapable desires, it to to arouse his own sexual is likewise reasonable assume arousal, the child can a child to sexual young begins experiment when an harbor intent to arouse his own sexual desires. M.,
Defendant relies on In re 289 in Jerry supra, arguing 59 Cal.App.4th case, of sexual In that there was insufficient evidence intent arousal. on touched two 12-year- an several occasions 11-year-old boy, perpetrator, him breasts and coerced a show 12-year-old old one 13-year-old girls’ four her The court found that the committed juvenile perpetrator breasts. 288, (a). counts section subdivision On violating appeal, appellate court the lower court on the there was insufficient ruling ground reversed the acts intent of evidence that committed perpetrator specific sexual desires. arousing his conclusion, the factors:
In this court relied on the reaching following reached was 11 old and there no evidence he had “Jerry years puberty. (Cf. [(1990)] 221 There is evidence of sexual arousal. In re Paul C. no had an [43,] 13V2 old Cal.Rptr. Cal.App.3d [defendant 369] M., re offense].)” (In Jerry supra, erection at time of 59 Cal.App.4th victims knew made 300.) Jerry; Jerry The court further noted that minor detection; was avoid were touchings momentary; no attempt that, record shows Jerry Jerry no The M. court concluded “The caressing. an intent conduct more consistent with was a brazen whose 11-year-old Under circum- and obtain attention than with sexual arousal. these annoy [citation], not but the record does stances guilty battery Jerry perhaps intended a doubt of conduct finding true reasonable beyond support (a). of section ‘gist’ a child—the sexually to exploit M., 300.) (In Jerry supra, re p. [Citation.]” M., Here, may factors are which unlike the facts in several present *7 of to intent relied in was sufficient concluding upon First, confronted Defendant she did arouse. when Mother sexually initially him. not tell him she was and had come to his school see why upset Instead, abused he volunteered “I don’t think that I you sexually hope that, should . . . say Mother Ryan.” responded, funny you “[I]t’s her, and she’s because has been . . . inside of and she’s red something swollen and we have to to the further Defendant go hospital.” Upon inquiry, admitted that he had his inside put fingers Ryan.
Second, occasions, on several Defendant had prior requested permission to shower with His latest was made earlier in the week. Ryan. request Mother refused his to take with telling him he was not showers requests, not to be naked in Ryan, her and not to touch her presence, private parts. Defendant had an unnatural interest in Obviously, showering Ryan. Third, the incident was done in a clandestine manner. Defendant and Ryan were alone in bathroom with the door closed. Defendant was Clearly, Mother, the nature trying of his activities hidden from his who had keep told him he was not to specifically shower with More Ryan. importantly, bathroom, within minutes after Mother had taken out of the Defendant Ryan had her back inside and his inside her proceeded place fingers vagina. fourth,
And Defendant his of what had changed story happened many First, times in an to avoid he admitted attempt being caught. touching Ryan. Then he denied her. Then he returned to his And touching original story. he concocted finally, had herself until she red story Ryan slapped and stuffed fibers into her carpet vagina.
Nonetheless, Defendant of the facts in his case emphasizes similarity M., to the facts in Jerry the fact that both he and the specifically, defendant Jerry in M. were 11 old and there was no evidence that either one had years reached or was puberty sexually aroused at the time of the incident.6 Using his as the young age evidence that he had not reached primary puberty, Defendant that his should suggests age other factors which must trump be considered in whether the motivated. determining touching sexually We his Defendant knew he could be in trouble for reject suggestion. sexually He had abusing Ryan. gone into the bathroom with on at least one door, occasion and he and then locking her placed fingers vagina, Therefore, he to evade the his actions. we are attempted consequences convinced that the circumstances Defendant’s actions demon- surrounding that he strate harbored the intent to arouse his own sexual desires requisite the use through he have been Ryan. Although may only experimenting his actions evidenced an intent to stimulate him- sexually, clearly sexually court, self. We are mindful of the words of our circumstances high “[T]he M., reading only similarity 6 From our that case and this is of the facts in between fact both defendants were 11 old at the time of the incidents. *8 408 The trier of
the remain relevant a section violation. touching highly [citation], and such intent must fact must find a union of act and sexual intent a doubt.” (People all circumstances reasonable beyond inferred from 452, 434, Martinez, added.) 11 Cal.4th italics supra, Furthermore, the evidence showed that Defendant was a although also troubled had deficit disorder had exhib- who attention youth previously not demon- ited toward we are convinced this evidence Ryan, hostility more nothing strates that Defendant’s touching inappropriate than a towards her. hostility continuation his that Defendant we there was sufficient evidence conclude
Accordingly, 288, intent under subdivi- section requisite required possessed specific (a). sion
Disposition The is affirmed. judgment
Richli, J., concurred. GAUT, I dissent.Here there was insufficient evidence supporting J. doubt intended finding Randy sexually trial court’s reasonable beyond 288, (a). in Penal subdivision violation of Code section exploit Ryan intent of (a) “Violation of section requires specific the victim. . . . of either the arousing sexual desires perpetrator it of the crime must be Because the intent is an element requisite specific (In (1997) M. a reasonable doubt.” re 59 proved beyond 148].) the minor the less his likely Cal.Rptr.2d younger “[T]he 300.) (Id., acts are intent of sexual arousal.” specific p. its following support The relies on the majority opinion did not in a reasonable finding beyond conclusion that the trial court err 288: doubt violated Penal Code section Randy mom, think sexually his “I don’t that I abused (1) said to hope you Randy Ryan.” told not to do so showers with and was
(2) Ryan, to take Randy requested not to touch Ryan’s parts. private manner. (3) the offense a clandestine committed Randy about incident. lied changed story Randy that what he did Randy wrong This evidence shows that knew *9 that it of a sexual nature. The does not establish that he was evidence to, the or arousing, grati- touched “with intent of Ryan’s vagina appealing “lust, own or sexual desires.” fying” his passions, hand, On the other was evidence a Randy there substantial that was disturbed, violent child who wanted attention and was hostile toward angry, his had tried to choke her. Four Ryan. days stepsister, Randy previously incident, before the Mother had called and asked him to take Randy’s father because he had out said he Randy acting been and had wanted leave. called, the week before Mother had been and During Randy rebelling a also had lot He been in trouble at school. The causing problems. getting school had called Mother several times because he had been stu- pushing dents and other he have to causing Randy Mother told would live problems. with if his father he did not behave. said he wanted to leave but Randy mother, wanted biological to live with his days not father. Three before incident, the Randy’s grandmother was him but paternal going pick up, she did not show up.
There no committed is evidence that had misconduct Randy any sexual 288, to the Under prior subject (a) incident. Penal Code section subdivision it is not that a enough child has committed a suggestive perpetrator sexually 288, act. Penal Code (a) section states commission that expressly of the act be must motivated Where there sexually as well. is no evidence that a child been prepubescent has aroused or is of sexual sexually capable arousal, that evidence an inappropriate, sexually act has been suggestive committed is not sufficient to that the child satisfy requirement perpe- trator committed the act intent to with arouse his or her own desires. sexual
As to the incident not occurring record does indicate clandestinely, whether the bathroom door was shut or when locked committed Randy offense. The record that the Mother and indicates first time discovered locked, in the bathroom the door was but there is as to Randy no evidence whether, later, committed when Randy offense 10 minutes approximately The Randy shut bathroom door locked it. evidence does raise the inference the act committed in blatant defiance of his mother’s Randy order not take a shower with It could inferred that knew Ryan. Randy order, Mother would discover he had defied her after she had particularly discovered he had just Ryan. taken shower with These circumstances or, most, indicate an act of defiance an absence at of clandestine activity weak evidence of clandestine with no of sexual very activity, or gratification. motivation
The age states should not other majority opinion Randy’s “trump” factor, be the it age factors. While should not sole determinative is a very old, age factor here since was whereas significant Randy of, 14, is no evidence that Randy capable for boys puberty As noted in the majority or motivated sexual lust. by, gratification ‘to children with “the basic of section 288 is provide opinion, purpose ” ante, 405, sexual (Maj. from “special exploitation.’ opn., p. protection” 11 Cal.4th 443-444 People Cal.Rptr.2d quoting Martinez Here, does evidence that 1037].) P.2d record not provide any Rather, the record sexually Randy shows Randy Ryan. exploiting disturbed, conduct was more consistent “11-year-old was a hostile whose re (In an obtain attention than with sexual arousal.” intent to *10 annoy M., M., 300.) the court found Jerry As supra, p. circumstances, ([Pen. guilty battery under such “was Randy perhaps Code,] not a true 242), finding beyond but the record does support § a child—the ‘gist’ reasonable doubt conduct intended sexually exploit (a).” (Ibid. of section Court was denied Febru- for review
Appellant’s petition by Supreme Kennard, J., that the should 2000. ary opinion petition granted.