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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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. Nu ttall 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 dis positional order of th e juvenile court following its determination that he committed a lewd act upon a child in violation of2. Penal Code 1 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 i ssues on appeal concern the suffici ency of the evidence as to Joseph’s ability to understand th e 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 PROCED URAL BACKGROUND The events in question o ccurred at a house where Joseph lived with his greatgrandparents, a great-aunt and great-uncle, and a second cous in. His age at the time was 12 years and 10 months. The great-grandpa rents were Joseph’s legal guardians and owned the home where he resided. His gr eat-uncle was a quadriplegic who received assistance with daily living from Joseph’s gr eat-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-grand parents 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 reque sted time accompanied by her six-year-old daughter (the victim), four-year-old son, a nd 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 s lightly as to what transpired next, but the par ties agree that prior to the departure of Carmen and her children from the home at approximately 7:30 p. m., the victim inform ed her mother that Joseph “touched” her while they were on the boat. Later that evening, as Carmen was driv ing home, the victim tearfully complained to her about the touching incide nt and of pain that she was experiencing between her legs.

1 All statutory reference are to the Pe nal Code unless otherwise specified.3. The victim used the bathroom when she arrived home, at which point Carmen discovered blood on her daughter’s underw ear and in the toilet. The victim was thereafter taken to the hospital for an evaluation. Medical pr ofessionals 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 A ttorney filed a juvenile wardship petition under Welfar e and Institutions Code sec tion 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 jurisdictiona l 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 h ealth care providers, and a retained defense expert. Carmen testified that she noticed someth ing was wrong with he r daughter as soon as Joseph and the children came into the hous e after being outside on the boat. Joseph invited the victim and her brother into his be droom 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 rea lized the victim’s clothing was askew. Joseph’s relatives stepped away so that Carmen and her daught er 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 Ca rmen she did not want to talk about what4. 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 te ll 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 vic tim’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 acknowled ged this was true; she told Carmen that her brother had been playing with the toy gun on the side of the boat and th at 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 he r pants and touched her in the groin area, and further testified that the touching was physically painful. She conf irmed the incident occurred on the boat, while her brother was “shooting the ra bbits,” and that Joseph told her not to tell Carmen about what he had done. The victim was examined at the hospital by Philip Hyde n, 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 swe lling 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 out side of your clothing down there?” The victim nodded affirmativ ely, and said “Yes” when he r mother asked, “Are you telling me the truth?” At no time did Jose ph’s great-aunt observe or hear the victim crying, nor did she see the victim’s cl othing 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” su ggestive of a sexual assault, he could not diagnose sexual abuse as the cau se 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-grand father told him, “[Y] ou don’t let anybody touch your private area and you are not to touc h anybody else’s private area.” Based on her long-term familiarity w ith 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 mo lester. Dr. Zimmerman interviewed Joseph several times, reviewed his medical and acad emic 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 pa rts of the Wechsler Intelligence Scale for Children were cumulatively indicative of bo rderline intellectual functioning, meaning “borderline below average and mental retarda tion.” Dr. Zimmerman also found Joseph to be psychosexually delayed, wi th no apparent curiosity or interest in sexual activity.6. After considering the evidence presen ted and hearing closing arguments by counsel, the juvenile court f ound (1) Joseph willfully made sk in-to-skin contact with the victim’s vagina usi ng 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 w ith the specific intent to arouse, gratify, or appeal to his own lust, passions, or sexua l desires. On January 10, 2013, Joseph was adjudged a ward of the court and received prob ation, the terms of which allowed him to continue to reside with his great-grandpa rents. 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 c onsidering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review th e whole record in the light most favorable to the judgment below to determine whether it discloses substantial ev idence - such that a reasonable trier of fact could find the [minor] guilty beyond a reasonable doubt. We must presume in support of the judg ment the existence of every f act the trier of fact could reasonably deduce from the evidence [citati on] and we must make all reasonable inferences that support the findi ng of the juvenile court.’” ( In re Babak S . (1993) 18 Cal.App.4th 1077, 1088-1089.) The appellant has the burden of showi ng 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 reso lve 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 juven ile 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 wr ongfulness.” (§ 26.) Thus, to declare a child a ward of the juvenile court under We lfare and Institutions Co de section 602 based on a criminal offense committed wh en 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 cap acity is separate and distinct from the elements of the offense upon which th e petition for wardship is based. ( Manuel L ., supra , 7 Cal.4th at pp. 236, 238.) “[I]t is ak in 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 un derstanding, 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 Ca l.4th 334, 379 [“A trier of fact making a sec tion 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 unders tood 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 thatthe relevant inquiry is whether the child appreciated the wrongfulness of the actus reus of the offense. There is no additional8. requirement that the minor have the intell ectual sophistication to conceptualize or articulate his or her objectives in the langua ge 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 behave d with the required mens rea of the crime is a separate component of the People’s burd en 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 girl s 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 cer tain 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 in sufficient to establish the mino r’s criminal intent beyond a reasonable doubt as require d by section 288, but held that the aforementioned circumstances provided adequate proof w ith 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.”].) Desp ite evidence of devel opmental delays, it was shown that Joseph was himself a victim of sexual molestation, received counseling for that experience, and had been taug ht not to touch others in thei r “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 circ umstances under which the touching occurred, along with Joseph’s alleged exhortation that the victim keep the incident a secret, can9. fairly be characterized as evidence of con cealment 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 Se xual Intentions (§ 288, subd. (a)) Section 288 prohibits all forms of sexua lly 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, appea ling to, or gratifying the lust, passions, or sexual desires” of the accused or the victim , and the union of su ch intent with the underlying act must be proven beyond a reasonable doubt. (§ 288, subd. (a); In re Randy S. (1999) 76 Cal.Ap p.4th 400, 405 ( Randy S .); In re Paul C. (1990) 221 Cal.App.3d 43, 54.) The objective of the accus ed is rarely provable by direct evidence, thus requiring the trier of fact to evaluate the totality of the circ umstances in order to determine whether the minor acted for pu rposes 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 mino r’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 sexu al 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 arou se his own sexual desires, it is likewise reasonable to assume that when a young child begins to expe riment 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 insuffic ient evidence. As no ted, 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 mailb oxes of her apartment complex when Jerry touched her breasts with his fingertips, sayi ng, “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 an d prepubescence, the Fourth District concluded that the evidence di d not show the minor’s intent to sexually arouse himself. ( Jerry M ., supra , 59 Cal.App.4th at p. 300.) The c ourt’s analysis took into account that Jerry’s conduct was very public, occurring du ring the daytime and in the presence of others, and thus there was no a ttempt or opportunity to avoid detection. No clandestine activity occurred, nor did the minor ask the gi rls not to tell anyone what had happened. The touching was momentary, without any care ssing or attempts to prolong the contact. From the totality of these circumstances, the appellate court concluded that “Jerry was a brazen 11-year-old whos e 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 ina ppropriately expressed, should not be viewed as criminal. However, the same district found sufficient evid ence 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 ye t reached puberty when he inserted his fingers into his two-year-old stepsister’s vagina while they were inside of a bathroom11. 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, Rand y took responsibility for the touching but said that he did know why he ha d 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 physi cal 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 clandestin e nature of the incident, and the minor’s attempt to “evade the consequences of his actions.” ( Ibid .) Returning briefly to the applicable sta ndard of review, we emphasize it is the juvenile court, not the appellate court, wh ich 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 f act’s findings, “the opinion of the reviewing court that the circumstances might also reason ably 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, a nd 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 behavi or in cases involving a prepubescent minor may hinge on the factors of secrecy, consciousn ess 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 preparation12. by (1) waiting outside his house for the victim to arrive and immediatel y leading her to an isolated location, i.e., the boat, (2) ensuring their privacy by distra cting 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 clandestin e activity, the attempt and opportunity to avoid detec tion, 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 penetr ation 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 essentia lly 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 th e 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 eviden ce 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 surr ounding the incident were such that a reasonable trier of fact coul d 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 re quired 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.