Filed 4/8/15 In re Joseph G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

In re JOSEPH G., a Person Coming Under the 

Juvenile Court Law. 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

JOSEPH G., 

Defendant and Appellant. 

F066851 

(Super. Ct. No. 12CEJ600036) 

OPINION

 APPEAL from an order of the Superior Court of Fresno County. John F. Vogt, 

Judge. 

 Nuttall & Coleman, Roger T. Nuttall for Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Julie A. Hokans and John W. Powell for Plaintiff and Respondent. 

-ooOoo- 

 Joseph G., a minor, appeals from a dispositional order of the juvenile court 

following its determination that he committed a lewd act upon a child in violation of 
2. 

Penal Code1 section 288, subdivision (a). Joseph was found to have touched the vagina 

of a six-year-old girl during an incident that occurred approximately six weeks prior to 

his thirteenth birthday. The issues on appeal concern the sufficiency of the evidence as to 

Joseph’s ability to understand the wrongfulness of his conduct at the time of the offense, 

and the existence of his intent to obtain some form of sexual gratification. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 The events in question occurred at a house where Joseph lived with his greatgrandparents, a great-aunt and great-uncle, and a second cousin. His age at the time was 

12 years and 10 months. The great-grandparents were Joseph’s legal guardians and 

owned the home where he resided. His great-uncle was a quadriplegic who received 

assistance with daily living from Joseph’s great-grandparents and a third-party caregiver 

named Carmen. Carmen is the mother of the victim in this case. 

 On January 9, 2012, Joseph’s great-grandparents asked Carmen to begin her shift 

early, at 5:00 p.m. instead of 6:30 p.m., so that they could leave the house to attend a 

birthday dinner. Carmen arrived at the requested time accompanied by her six-year-old 

daughter (the victim), four-year-old son, and an infant child. According to Carmen, 

Joseph was waiting outside when they arrived and requested permission to play with her 

two oldest children on a boat parked along the side of the house. The request did not 

strike Carmen as unusual, since Joseph and her children had played together on numerous 

occasions, and so she assented. Accounts in the record differ slightly as to what 

transpired next, but the parties agree that prior to the departure of Carmen and her 

children from the home at approximately 7:30 p.m., the victim informed her mother that 

Joseph “touched” her while they were on the boat. 

 Later that evening, as Carmen was driving home, the victim tearfully complained 

to her about the touching incident and of pain that she was experiencing between her legs. 

 1 All statutory reference are to the Penal Code unless otherwise specified. 
3. 

The victim used the bathroom when she arrived home, at which point Carmen discovered 

blood on her daughter’s underwear and in the toilet. The victim was thereafter taken to 

the hospital for an evaluation. Medical professionals confirmed that she was bleeding 

from, and appeared to have sustained physical trauma to, her internal genitalia. 

 On January 11, 2012, the Fresno County District Attorney filed a juvenile 

wardship petition under Welfare and Institutions Code section 602, subdivision (a), 

alleging that Joseph committed a lewd act upon the victim with the intent of arousing, 

appealing to, or gratifying the lust, passions, or sexual desires of himself or the victim 

(§ 288, subd. (a)). A contested jurisdictional hearing was held in late November and 

early December 2012. The juvenile court received testimony from several witnesses 

including Carmen, the victim, Joseph’s great-grandmother and great-aunt, law 

enforcement officers, one of the victim’s health care providers, and a retained defense 

expert. 

 Carmen testified that she noticed something was wrong with her daughter as soon 

as Joseph and the children came into the house after being outside on the boat. Joseph 

invited the victim and her brother into his bedroom to play video games, but the victim 

turned to Carmen and said, “I don’t want to go play with him, Mom.” Joseph’s greataunt and his second cousin entered the home as these events were unfolding, and both 

were present when Carmen realized the victim’s clothing was askew. Joseph’s relatives 

stepped away so that Carmen and her daughter could have a private conversation, and 

Carmen proceeded to ask the victim why the waistband of her pants was rolled down. 

The victim began to cry and said that Joseph had touched her, but she also reported that 

he had merely rubbed against her, and told Carmen she did not want to talk about what 
4. 

had happened. When Carmen asked if the touching occurred by accident, the victim 

responded affirmatively but continued to cry.2 

 On their drive home, the victim started crying again and said, “I’m scared. Joe 

touched my thing... It hurts, Mom.” The victim further alleged that she had told Joseph 

to “stop” and warned him that she would tell Carmen what he was doing to her, to which 

he replied, “No, don’t tell [your mother], please....I’m going to get in trouble with my 

grandma.” When Carmen questioned the victim’s brother about these events, the boy 

said that Joseph had given him a Nerf gun and told him to use it to shoot rabbits on the 

property. The victim acknowledged this was true; she told Carmen that her brother had 

been playing with the toy gun on the side of the boat and that she did not know his exact 

whereabouts at the time of the incident. 

 The victim broke down in tears several times while testifying at the jurisdictional 

hearing. Pointing to locations on a diagram and on a stuffed animal, the victim indicated 

that Joseph had pulled down her pants and touched her in the groin area, and further 

testified that the touching was physically painful. She confirmed the incident occurred on 

the boat, while her brother was “shooting the rabbits,” and that Joseph told her not to tell 

Carmen about what he had done. 

 The victim was examined at the hospital by Philip Hyden, M.D., a pediatrician 

who specializes in child abuse. The results of the examination showed the victim was 

bleeding from her vaginal area and had swelling of the hymen and surrounding tissue. 

Dr. Hyden explained that while it does not take a great deal of force to cause a hymenal 

 2 Joseph’s great-aunt disputed some of the details in this version of events. She 

recalled that Carmen and the victim had a conversation approximately two or three 

minutes after the children came inside from playing on the boat, during which Carmen 

said, “So Joseph accidentally touched you on the outside of your clothing down there?” 

The victim nodded affirmatively, and said “Yes” when her mother asked, “Are you 

telling me the truth?” At no time did Joseph’s great-aunt observe or hear the victim 

crying, nor did she see the victim’s clothing in a state of disarray. 
5. 

injury, it is an unusual place for a child to experience trauma since the hymen is located 

in a recessed area protected by the labia minora and majora. The symptoms were 

consistent with the allegations of skin-to-skin contact with a finger. However, while 

Dr. Hyden felt that this was a “highly suspicious incident” suggestive of a sexual assault, 

he could not diagnose sexual abuse as the cause of the victim’s physical condition to a 

reasonable degree of medical certainty. 

 Testimony from the great-grandmother revealed that Joseph was sexually 

molested by an older boy sometime around the age of seven. His great-grandparents 

reported the incident to Joseph’s therapist and subsequently attempted to provide him 

with basic sex education. Joseph’s great-grandfather told him, “[Y]ou don’t let anybody 

touch your private area and you are not to touch anybody else’s private area.” Based on 

her long-term familiarity with Joseph and the manner in which she had raised him, 

Joseph’s great-grandmother believed he knew, at the time of the incident, that “it would 

be wrong to do what he has been accused of doing” to Carmen’s daughter. 

 Joseph had a history of behavioral problems, but nothing involving sexual 

misconduct. According to the testimony of his great-grandmother, Joseph showed no 

outward signs of pubescent development at the time of the incident, nor had he displayed 

any interest in matters of sexuality. This was consistent with the findings of psychologist 

Michael Zimmerman, Ph.D., who was hired by the defense to determine whether Joseph 

fit the profile of a sexual deviant or molester. Dr. Zimmerman interviewed Joseph 

several times, reviewed his medical and academic records, and administered to him a 

series of standardized tests and questionnaires. The testing indicated that Joseph had a 

low IQ; his “low average” scores on all parts of the Wechsler Intelligence Scale for 

Children were cumulatively indicative of borderline intellectual functioning, meaning 

“borderline below average and mental retardation.” Dr. Zimmerman also found Joseph to 

be psychosexually delayed, with no apparent curiosity or interest in sexual activity. 
6. 

 After considering the evidence presented and hearing closing arguments by 

counsel, the juvenile court found (1) Joseph willfully made skin-to-skin contact with the 

victim’s vagina using his finger(s), and the contact did not occur by accident or 

inadvertence; (2) Joseph knew such acts were wrongful in nature; and (3) Joseph’s 

behavior was sexually motivated, i.e., he acted with the specific intent to arouse, gratify, 

or appeal to his own lust, passions, or sexual desires. On January 10, 2013, Joseph was 

adjudged a ward of the court and received probation, the terms of which allowed him to 

continue to reside with his great-grandparents. This timely appeal followed. 

DISCUSSION 

 We review the sufficiency of the evidence in juvenile court proceedings under the 

same standard applicable to adult criminal appeals. (In re Muhammed C. (2002) 

95 Cal.App.4th 1325, 1328.) “In considering the sufficiency of the evidence in a juvenile 

proceeding, the appellate court ‘must review the whole record in the light most favorable 

to the judgment below to determine whether it discloses substantial evidence - such that a 

reasonable trier of fact could find the [minor] guilty beyond a reasonable doubt. We must 

presume in support of the judgment the existence of every fact the trier of fact could 

reasonably deduce from the evidence [citation] and we must make all reasonable 

inferences that support the finding of the juvenile court.’” (In re Babak S. (1993) 

18 Cal.App.4th 1077, 1088-1089.) 

 The appellant has the burden of showing there is no evidence of a sufficiently 

substantial nature to support the challenged findings and orders of the juvenile court. (In 

re Dakota H. (2005) 132 Cal.App.4th 212, 228.) It is not our place to reweigh the 

evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts in the 

record. (Ibid.) “This standard of review applies with equal force to claims that the 

evidence does not support the determination that a juvenile understood the wrongfulness 

of his conduct.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298 (Jerry M.).) 
7. 

Sufficiency of the Evidence re: Joseph’s Capacity to Commit the Offense (§ 26) 

 Children under the age of 14 years are presumed by law to be incapable of 

committing a crime. (§ 26; In re Manuel L. (1994) 7 Cal.4th 229, 231-232 (Manuel L.).) 

The statutory presumption may be rebutted by “clear proof that at the time of committing 

the act charged against them, they knew its wrongfulness.” (§ 26.) Thus, to declare a 

child a ward of the juvenile court under Welfare and Institutions Code section 602 based 

on a criminal offense committed when he or she was less than 14 years old, there must be 

“clear proof” that the minor appreciated the wrongfulness of their actions. (Manuel L., 

supra, 7 Cal.4th at pp. 231-232.) 

 The issue of a juvenile’s criminal capacity is separate and distinct from the 

elements of the offense upon which the petition for wardship is based. (Manuel L., 

supra, 7 Cal.4th at pp. 236, 238.) “[I]t is akin to the question of sanity, which due 

process does not require the prosecution to prove beyond a reasonable doubt.” (Id. at 

p. 238.) As used in section 26, the term “clear proof” means “clear and convincing 

evidence.” (Manuel L., supra, at p. 238.) “In determining whether the minor knows of 

the wrongfulness of his conduct, the court must often rely on circumstantial evidence 

such as the minor’s age, experience, and understanding, as well as the circumstances of 

the offense, including its method of commission and concealment.” (In re James B. 

(2003) 109 Cal.App.4th 862, 872; accord, People v. Lewis (2001) 26 Cal.4th 334, 379 

[“A trier of fact making a section 26 determination does not attempt to read the mind of 

the minor, but considers the objective attendant circumstances of the crime - such as its 

preparation, the method of its commission, and its concealment....”].) 

 Joseph submits that while he may have known it was wrong to touch the victim’s 

genitals, the People failed to prove he understood the wrongfulness of engaging in such 

behavior for the purpose of achieving sexual gratification. We disagree with the premise 

of this argument. Case law indicates that the relevant inquiry is whether the child 

appreciated the wrongfulness of the actus reus of the offense. There is no additional 
8. 

requirement that the minor have the intellectual sophistication to conceptualize or 

articulate his or her objectives in the language of section 288 (i.e., to realize they are 

acting “with the intent of arousing, appealing to, or gratifying [their] lust, passions, or 

sexual desires...”). Showing the minor behaved with the required mens rea of the crime 

is a separate component of the People’s burden and requires proof beyond a reasonable 

doubt. The case of Jerry M., supra, illustrates these distinctions. 

 In Jerry M., an 11-year-old boy was accused of violating section 288, subdivision 

(a) after he touched the breasts of three girls who were between the ages of 12 and 13. 

(Jerry M., supra, 59 Cal.App.4th at pp. 292-294.) The evidence showed the boy’s 

mother had taught him that “it was wrong to touch girls in certain places,” and despite his 

apparent understanding of this concept, he persisted in his behavior when the victims 

verbally declined and/or resisted his advances. (Id. at pp. 298-299.) The appellate court 

ultimately found the evidence insufficient to establish the minor’s criminal intent beyond 

a reasonable doubt as required by section 288, but held that the aforementioned 

circumstances provided adequate proof with respect to his knowledge of the 

wrongfulness of his conduct for purposes of section 26. (Jerry M., supra, 59 Cal.App.4th 

at pp. 298-300.) 

 Here, it is significant that Joseph was nearly 13 years old at the time of the 

incident. (Jerry M., supra, 59 Cal.App.4th at p. 300 [“[T]he closer the minor approaches 

the age of 14 years, the more likely the minor understands the wrongfulness of his acts 

within the meaning of section 26.”].) Despite evidence of developmental delays, it was 

shown that Joseph was himself a victim of sexual molestation, received counseling for 

that experience, and had been taught not to touch others in their “private area.” It appears 

that in light of those experiences, the juvenile court placed considerable weight upon the 

great-grandmother’s opinion that Joseph would have known it was wrong to insert his 

fingers into the victim’s vagina. The circumstances under which the touching occurred, 

along with Joseph’s alleged exhortation that the victim keep the incident a secret, can 
9. 

fairly be characterized as evidence of concealment and consciousness of guilt. Viewing 

the record in the light most favorable to the findings, we conclude there was sufficient 

evidence to meet the applicable standard of proof under section 26. 

Sufficiency of the Evidence re: Joseph’s Sexual Intentions (§ 288, subd. (a)) 

 Section 288 prohibits all forms of sexually motivated contact with children under 

the age of 14 years. (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) The 

statute speaks in terms of “arousing, appealing to, or gratifying the lust, passions, or 

sexual desires” of the accused or the victim, and the union of such intent with the 

underlying act must be proven beyond a reasonable doubt. (§ 288, subd. (a); In re 

Randy S. (1999) 76 Cal.App.4th 400, 405 (Randy S.); In re Paul C. (1990) 221 

Cal.App.3d 43, 54.) The objective of the accused is rarely provable by direct evidence, 

thus requiring the trier of fact to evaluate the totality of the circumstances in order to 

determine whether the minor acted for purposes of sexual gratification. (Martinez, supra, 

11 Cal.4th at pp. 444-445; Jerry M., supra, 59 Cal.App.4th at p. 295.) 

 Factors relevant to determining the minor’s intent include the manner in which the 

touching occurred, the use of any coercion, deceit, or enticement to obtain the victim’s 

cooperation, attempts to avoid detection, admonishment of the victim not to disclose the 

incident to others, physical evidence of sexual arousal, and the overall maturity of the 

child. (Randy S., supra, 76 Cal.App.4th at pp. 405-406; Jerry M., supra, 59 Cal.App.4th 

at p. 299.) The trier of fact may also take into account “the presence or absence of any 

nonsexual purpose” for the contact. (Martinez, supra, 11 Cal.4th at p. 450, fn. 16.) 

“While it is reasonable to assume that if a young child is incapable of experiencing sexual 

arousal, the child would not intend to arouse his own sexual desires, it is likewise 

reasonable to assume that when a young child begins to experiment in sexual arousal, the 

child can harbor an intent to arouse his own sexual desires.” (Randy S., supra, 76 

Cal.App.4th at p. 406.) 
10. 

 We have already mentioned the evidence in Jerry M., supra, which is the only 

case cited by Joseph where an appellate panel overturned a juvenile court’s findings of 

intent under section 288 on grounds of insufficient evidence. As noted, 11-year-old Jerry 

touched the breasts of three young girls. Twelve-year-old Clair was with a group of 

friends when Jerry approached them and squeezed Clair’s breasts through her shirt. 

(Jerry M., supra, 59 Cal.App.4th at p. 294.) In a separate incident, a 13-year-old girl 

named Stephanie was standing near the mailboxes of her apartment complex when Jerry 

touched her breasts with his fingertips, saying, “those grew” and “those feel good.” A 

similar situation occurred with 12-year-old Sonia, who was on the steps of her apartment 

building when Jerry asked if she was “flat” and then proceeded to reach underneath her 

shirt and brassiere. (Ibid.) 

 Placing emphasis on Jerry’s young age and prepubescence, the Fourth District 

concluded that the evidence did not show the minor’s intent to sexually arouse himself. 

(Jerry M., supra, 59 Cal.App.4th at p. 300.) The court’s analysis took into account that 

Jerry’s conduct was very public, occurring during the daytime and in the presence of 

others, and thus there was no attempt or opportunity to avoid detection. No clandestine 

activity occurred, nor did the minor ask the girls not to tell anyone what had happened. 

The touching was momentary, without any caressing or attempts to prolong the contact. 

From the totality of these circumstances, the appellate 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. is that the natural, normal curiosity of a 

prepubescent child, even if inappropriately expressed, should not be viewed as criminal. 

However, the same district found sufficient evidence of sexual motivation on the part of a 

prepubescent boy in Randy S., supra, which was published two years after Jerry M. was 

decided. Randy was also 11 years old and had not yet reached puberty when he inserted 

his fingers into his two-year-old stepsister’s vagina while they were inside of a bathroom 
11. 

together. (Randy S., supra, 76 Cal.App.4th at pp. 403-405.) The victim’s genitals were 

discovered to be “red, raw, [and] swollen” as an apparent result of the touching. (Id. at 

p. 403.) When confronted by his angry stepmother, Randy took responsibility for the 

touching but said that he did know why he had done it. He later recanted the confession, 

claiming that he simply told her “what she wanted to hear.” (Id. at p. 404.) Despite the 

lack of evidence that Randy experienced physical arousal during or from the touching of 

his stepsister, the appellate court upheld the finding that he had acted with the requisite 

intent under section 288, subdivision (a). “Although he may only have been 

experimenting sexually, his actions clearly evidenced an intent to sexually stimulate 

himself.” (Id. at p. 407.) Factors cited in support of this conclusion included the type of 

touching that was involved, the clandestine nature of the incident, and the minor’s 

attempt to “evade the consequences of his actions.” (Ibid.) 

 Returning briefly to the applicable standard of review, we emphasize it is the 

juvenile court, not the appellate court, which must be convinced beyond a reasonable 

doubt of the minor’s criminal intent. (In re Brandon T. (2011) 191 Cal.App.4th 1491, 

1496, citing and quoting People v. Rodriguez (1999) 20 Cal.4th 1, 11.) When 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.” (Ibid.) While a number of parallels and 

distinctions can be drawn between the facts of this case and those which carried the day 

in Jerry M. and Randy S., the juvenile court was in a better position than we are to 

evaluate the witnesses, weigh the evidence, and consider the totality of the circumstances. 

 The analyses in Jerry M. and Randy S. indicate that a trier of fact’s determination 

regarding culpable and non-culpable behavior in cases involving a prepubescent minor 

may hinge on the factors of secrecy, consciousness of guilt, and the nature of the actual 

touching. In this instance, a rational fact finder could have interpreted the evidence as 

showing that Joseph acted with a sufficiently advanced level of planning and preparation 
12. 

by (1) waiting outside his house for the victim to arrive and immediately leading her to an 

isolated location, i.e., the boat, (2) ensuring their privacy by distracting her brother with 

the toy gun and telling him to go shoot rabbits, and (3) requesting that the victim keep his 

actions a secret. As so interpreted, there was proof of clandestine activity, the attempt 

and opportunity to avoid detection, and admonishment to the victim not to disclose the 

occurrence. 

 As stated by our Supreme Court in Martinez, supra, “[T]he circumstances of the 

touching remain highly relevant to a section 288 violation.” (Martinez, supra, 11 Cal.4th 

at p. 452.) Here, the juvenile court clearly felt that digital penetration of the victim’s 

genitalia was a more inherently sexual act in comparison to the momentary touching of 

breasts. Unlike in Jerry M., there was no evidence that the purpose of Joseph’s behavior 

was to harass or annoy the victim, or to make a spectacle of himself in front of others. 

The form of touching was essentially identical to the conduct in Randy S., but even there 

the defense had shown that Randy’s actions might have been motivated by feelings of 

hostility towards his stepsister. (Randy S., supra, 76 Cal.App.4th at p. 408.) There was 

no similar proof of hostility in this case, but the evidence that Joseph removed the 

victim’s clothing and inserted his finger inside of her to the point of causing pain and 

injury supports the inference of an attempt to prolong the touching beyond a brief or 

momentary contact, which further distinguishes this case from Jerry M. 

 Joseph may only have been experimenting sexually, and possibly for the very first 

time, but the juvenile court believed the evidence led to “the unavoidable conclusion that 

this was a sexually motivated act, no matter how nescient or unsophisticated that intent 

may [have been].” Case law indicates that the circumstances surrounding the incident 

were such that a reasonable trier of fact could objectively arrive at the same conclusion. 

Therefore, when cast in the light most favorable to the decision below, the record 

contains sufficient evidence of the intent required to establish a violation of section 288, 

subdivision (a). 
13. 

DISPOSITION 

The order of wardship is affirmed. 

 _____________________ 

Gomes, J. 

WE CONCUR 

 _____________________ 

Hill, P.J. 

 _____________________ 

Franson, J.