Filed 10/5/15 In re J .E. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re J.E., a Person Coming Under the Juvenile Court Law

. B263121 (Los Angeles County Super. Ct. No. NJ28105)

THE PEOPLE,

Plaintiff and Respondent,

v.

J.E.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John H.
Ing, Judge. Affirme d.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and T oni R.
Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *2

In this juvenile proceeding, w e reject appellant J. E.’s challenge to the sufficiency of
the evidence to support the finding he raped his former girlfriend K.C. We affirm the trial

court’s dispositional judgment adjudicating appellant a ward of the court and removing him
from his parents custody

. FACTS AND PROCEDURE
Following a cou rt trial, the court sustained a n amended petition alleging that
appellant com mitted t he following offenses: rape of K.C., assault with a deadly weapon on
K.C., assault by means likely to produce great bodily injury on K.C., two counts of forcible
oral copulation o f S.K. (another victim) , and assaul t with a deadly weapon on S.K. On

appe al , appellant challenges only the sufficiency of the evidence to support the rape of K.C.

W e summarize the relevant facts in accordance with the appropriate standard of review

. 1. Background
When she was 14 years old, K.C. began dating appellant

, and thei r relationship lasted

from about January 2012 thru October 2012. 1 At the end of January 2012, appellant and

K.C. started a consensual sexual relationship. In March, they started to argue and appellant

became violent. Once, when K.C. started to walk away

, appellant grabbed her hair and

pu n ched her in the chest causing her to fall backwards. He also kicked her stomach. On
another day

, appellant punched and shoved her and slammed her into a bathroom wall.
K.C. did not remember specific dates and she bel ieved that her use of marijuana , cocaine,
and other pills may have affected her memory.

K.C. remembered one incident when appellant would not allow her to leave his
apartment, and she ran into the bathroom and called a friend. Appellant broke down the

ba throom door and dr agged her out of the bathroom. Appellant threw a phone at her leg and
bruised her leg. Appellant tried to choke K.C.

, upsetting K.C. and causing her to urinate in
her pants. The friend whom K.C. had called entered appellant ’s bedroom a nd “grabbe d him

1 K.C. did not report appellant ’s conduct until much later

, and testified that she only reported it because her the rapist insisted.3

[ ( appellant ) ] off o f me [ ( K.C. ) ]” K. C. had handprints on her neck. K.C.’s friend te stified
that when he entered appellant’s bedroom he saw appellant on top of K.C. wit h his hands

around her throat.

Sometime in June, a ppellant held K.C. w ith his left hand and used h is right hand to

hold a knife. The blade was appr o x im ately fou r or five inches long

. Holding the knife
against K.C., a ppellant said he wanted to slit her throat

. He cut her throat. When he saw
blood, he stopped. K.C. was sc ared. K.C. did not brea k up with appellant because she did

n o t want to lose him.
During their relationship, K.C. often con sented to sexual intercourse. When she did
not want to have sex, K.C. would say “ no ” to appellant multiple times. Appellant and K. C.
broke up at the end of April 2012 and started dating again in June 2012. K.C. had

consensual sex with appellant when they were separated

. Sometimes even when she did not

want to have sexual intercourse, K.C. “gave in” and agreed to have sex because he “kept
pushing [her] and saying please” and s he “couldn’t take it anymore.” K.C. told a ppellant

once or twice she did not want hi m to penetrate her but he did.

2. Rape of K.C.

K.C. remember e d one incident when she did not want to have se x with appellant but

he ignored her and penetrated her vagina with his penis. K.C. and appellant were both in

bed . A ppellant wanted to have sex. K.C. “kept saying no

. ” Appellant grabbed K.C.’s arm

an d turned her over, climbed on t op of her and “started

. . . forcing i t until it [ ( his penis ) ]
finally went in.” K.C. tried to resist when appellant turned her over onto her back. K.C. did
not “give in” on this occasion ; the sex was “ [ t ] otally forced.” K.C. did not try to resist when
appellant put his penis in her vagi na because “he was stronger than [her]

, and he held [her]

do wn. There was no

. . . getting out of it.” Based on other incidents with appellant , K.C.

was afraid of what appellant migh t do if she tried to stop him. K.C. believed “it was
impossible for [h er] to physically stop him.” Sh e did not want to “get hurt worse.”
Defendant did not testify and none of the defense witnesses provided evidence

relevant to this incident. Detective Daniele Moreale testified that defendant told her his sex4

with K.C. was con sensual. She further testified that appellant admitted t hat he threatened to

kill K.C.

As noted

, the trial court sustained the petition. This appeal followed.

DISCUSSION
As we shall explain, appellant ’s challenge to the sufficiency of the evidence of t he

forcible rape of K.C. lacks merit.

“ ‘ The standard of proof in juvenile proceedings involving criminal acts is the same as

the standard in adult criminal trials. [Citation.] ’ [Citation.] ‘ In considering the sufficiency
of the evidence in a juvenile p roceeding, 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 defendant guilty
beyond a reasonable d oubt. 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 th e juvenile court. ” ’” ( In re
Gary F. (2014) 226 Cal.App.4th 1076, 1080.)
Appellant was found to have committed the fo r cible rape of K.C. in violation of
Penal Code section 261, subdivision (a)(2). That statute provides: “Rape is an act of sexual
intercourse accomplished with a person no t the spouse of the perpetrator, under any of the
following circumstances : [¶]

. . . [¶] (2) Where it is accomplished against a person’s will
by means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person of another.” The phrase “against a person’s will” means without the
victim’s consent. ( People v. Lee (2011) 51 Cal.4th 620, 6 34 , fn. 10 .)

“ ‘Actual consent must be distinguished from submission. [A] victim’s decision to

submit to an attacker’s sexual deman ds out of fear of b odily injury is not consent [citation]

b ecause the decision is not freely and voluntarily made [citation] .’” ( People v. Ireland
(2010) 188 Cal.App.4th 328, 336.) A reasonable good faith belief in consent is a defense to
rape. ( I bid

. ; People v. Sojka (2011) 196 Cal.App.4th 733, 736.) But victims are not
required to communicate their lack of consent. ( Ireland, supra

, at p. 338.)5

Overwhelming evidence supported the finding that appellant forcibly raped K.C.

K.C. testified that on one occasion , she did not want to have sex w ith appellant and
repeatedly told him “no.” Appellant grabbed her, turned her over, climbed on top of her,

and force d his penis inside her vagina. K.C. testifi ed that she did not “give in.” The only

reason that sh e did not resist more was that she was afraid of a ppellant and did not want to get hurt

. She knew ther e was no “getting out of it

. ” This evidence supported the finding

that appellant forced his penis inside K.C.’s vagina without her consent. The fact th at K.C.
stopped resisting because she was afraid of appellant , does not show that K.C. consen ted to

the sexual intercourse.
Appellant ’s arguments that there was insufficient evidence K.C. did not consent to

sex ual intercourse and insufficient evidence tha t she communicated the absence of consent
lack merit. First, K.C. was not required to communicate the absence of consent. ( Ireland,

supra , 188 Cal.App.4th at p. 338.) But even if she had been required to do so

, she
repeatedly told him “ no. ” She also tr ied to resist when he turned her on her ba ck and
climbed on top of her. The same evidence shows that she did not consent. Although she
consented and acquiesced on other occasions, K.C. testified that on that occasion she clearly

did not. Appellant ’s con trary arguments fail to interpret the evidence in the light most
favorable to the trial court’s findings, which is requi red by the standard of review.

DISPOSTION

The judgment sustaining the petition and adjudicating appellant a ward of the court is

affirm ed.

FLIER, J.

WE CONCUR:
RUBIN, Acting P. J. OHTA , J. *

* Judge of the Los Angeles Superior Court, assigned b y the Chief Justice pursuant to article VI, section 6 of the California Constitution.