Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J-220996 Stephanie Sontag and Carolyn M. Caietti, Judges.
McCONNELL, P. J.
A second amended petition filed in juvenile court under Welfare and Institutions Code section 602 charged D.M. with three felonies arising from one incident with another boy: forcible oral copulation, with an enhancement based on his knowledge the victim was developmentally disabled (Pen. Code, §§ 288a, subd. (c)(2), 667.9, subd. (a), count 1); a forcible lewd act on a child under fourteen years of age (§ 288, subd. (b)(1), count 2); and a nonforcible lewd act on a child under 14 years of age (§ 288, subd. (a), count 3). The court made true findings on all charges and the enhancement and imposed probation with a number of conditions. On appeal, D.M. contends the evidence is insufficient to satisfy the element of duress for counts 1 and 2. D.M. also challenges the sufficiency of the evidence to satisfy the element of counts 2 and 3 that the act was for the purpose of his sexual gratification. We agree and reverse the judgment.
All further undesignated statutory references are also to the Penal Code.
The parties agree that since count 3 is a lesser included offense of count 2, the court erred by making a true finding on count 3.
FACTS
On July 19, 2008 (hereafter July 19), D.M. and J.C. were with their mothers at a thrift store. At the time, D.M. was 12 years old and J.C. was 10 years old. According to J.C.'s mother, he has a "slight retardation, " he attends special education classes, and she must help him with daily activities such as reminding him to brush his teeth. He cannot be left alone for a "long time, " but he does not need constant supervision "because he can manage himself well." According to D.M., his mother began home schooling him when he was in second or third grade because he has attention deficit disorder and his behavior disrupted his class. He acknowledged his condition causes him to "mak[e] the wrong decision maybe once in a while."
D.M. and J.C. had played together during previous visits to the thrift store. On July 19, the boys went to the store's second story loft area and played with a Gameboy, a hand held video game device, that belonged to J.C.'s cousin.
J.C. testified that D.M. took his pants down and politely asked J.C. to kneel down and "taste his penis." D.M. asked, "Can you please do that?" J.C. said he did not want to, and D.M. responded, "just do it." J.C. then knelt down and D.M. put his penis in J.C.'s mouth. The act caused J.C. to have trouble breathing and to cough. J.C. testified that after the act he had "[d]irty stuff" "[l]ike germs" in his mouth. He denied that D.M. held his head or any other part of his body during the act.
J.C. admitted that when D.M. wanted to play with the Gameboy, J.C. refused unless D.M. showed his penis to J.C. D.M. complied with J.C.'s request. J.C. first testified this occurred during the July 19 incident, but he then said he asked to see D.M.'s penis "[w]ay before" that time.
D.M. testified that on July 19, J.C. refused to let him play the Gameboy unless he showed J.C. his "wee-wee." D.M. said J.C. pulled his pants down first, and then D.M. pulled his pants down and J.C. "put his mouth around my thing." D.M. denied asking J.C. to taste his penis. When asked whether he knew J.C. was "mentally ill, " D.M. responded, "I knew he was a little bit strange, but I didn't really know he was that bad off until... he put his mouth on my penis. I knew he was a little bit bad off." D.M. said he earlier denied the incident occurred because he did not want to get into trouble or have anyone think he is gay.
J.C.'s mother testified that on July 19, J.C. "was coming down the stairs very rapidly, " as if he was scared and as if he wanted to throw up." He said, "Ma, ma, my friend put his thing in my mouth." She saw "slobber" between his lips. J.C. went to the restroom and rinsed out his mouth. J.C.'s mother found D.M. and confronted him. A cashier noted J.C. was gagging and he appeared frightened. When the cashier said he was going to call the police, D.M. began to cry and blamed the incident on J.C. When D.M.'s mother appeared, he denied the incident took place at all.
The former cashier testified he asked D.M. if he put his penis in J.C.'s mouth, and D.M. admitting doing so and said he was sorry. When D.M.'s mother approached, though, he denied doing it. J.C. appeared scared and he was gagging. Another thrift store employee testified J.C. "had a lot of saliva in his mouth and he really looked like he wanted to rinse his mouth out." The People asked this employee whether J.C. could have had semen in his mouth, and she responded, "It could have been."
During an interview of D.M. by a detective, D.M. said that on July 19, he and J.C. went to the second floor loft area of the thrift store, where J.C.'s cousin was playing near the top of the stairs with a Gameboy. J.C. annoyed his cousin by begging to play with the Gameboy. The cousin went downstairs and left the Gameboy behind. D.M. explained that "one thing led to another and [J.C.] ended up opening his pants and... then I did the same thing and he put... I put my dick in his mouth." D.M. later said J.C. put D.M.'s penis in his mouth. D.M. added, "And then I realized that after like probably two seconds maybe that it was wrong and I said no more." According to D.M., he and J.C. then returned to playing with the Gameboy.
D.M.'s mother agreed that he undergo a polygraph, and to the admission of portions of the accompanying interview. The polygraph itself was not discussed or admitted.
D.M. denied to the investigator that he used any force against J.C. He also denied his penis was erect during the incident or that any substance came out of it. When the investigator asked whether that was a possibility, he responded, "That could be possible, I doubt it though, " because "it didn't become hard" and "it was so quick." He denied that the incident was pleasant or felt good. He denied knowing the meaning of the term "ejaculate." When asked whether he had ever "masturbated and had an orgasm, " he said he had touched his penis and "it became hard, " but nothing came out of it. He said he knew what the word "orgasm" meant, but he defined it as "like a living kind of thing." He had not studied sex education, but had learned in a life science class about how babies are made, which he described as "the man inserts his penis into another woman's vagina." When asked, "OK does anything else happen?" He responded, "No that's [all]."
DISCUSSION
I
Standard of Review
" 'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) The "court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Id. at p. 578.)
II
Counts 1 and 2/Duress Element
The offenses of forcible oral copulation and a forcible lewd act on a child under 14 years of age require proof that "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" was used. (§§ 288a, subd. (c)(2); 288, subd. (b)(1).) The People's theory was that D.M. used duress in committing the offenses. He challenges the sufficiency of the evidence to support the court's finding of duress.
Accordingly, D.M.'s appellate briefing pertaining to the lack of evidence of force is not relevant.
We agree the evidence is insufficient to support a finding of duress. The term "duress, " as used in the offenses here, has long been described as a " 'direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have been submitted.' " (People v. Cochran (2002) 103 Cal.App.4th 8, 14, italics added; People v. Leal (2004) 33 Cal.4th 999, 1004-1005, citing People v. Pitmon (1985) 170 Cal.App.3d 38.) The total circumstances should be considered, including the ages of the defendant and the victim, their relative sizes and the nature of their relationship. (People v. Cochran, supra, at p. 14; People v. Senior (1992) 3 Cal.App.4th 765, 775.) " 'Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family." (People v. Cochran, supra , at p. 14.) Duress cannot be established without evidence the victim's participation was impelled, at least in part, by a direct or implied threat. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.)
The court here initially appeared reluctant to find duress. The People argued that because of J.C.'s mental disability, "what would be duress to him is going to be different than any other 11-year-old [sic] boy." D.M.'s comment "just do it, " after J.C. initially refused to participate supposedly "overcame his will." The court, relying exclusively on J.C.'s mental disability, found duress.
We disagree with the court's assessment. J.C.'s vaguely defined mental disability, standing alone, is insufficient to establish duress. There must still be evidence of a direct or implied threat, and the People adduced no such evidence. D.M. did not warn J.C. or threaten to harm him or his family if he did not participate. D.M. did not even threaten not to play with J.C. in the future unless he participated. By J.C.'s own account, D.M. politely asked him to engage in oral copulation, and when he said he did not want to, D.M. said "just do it" and J.C. immediately acquiesced.
Despite his mental condition, there is no indication J.C. viewed D.M. as an authority figure or as dominating him. The boys were only 18 months apart in age, and no competent evidence showed J.C.'s actual age was not equivalent to his mental age. The record does not reveal the boys' sizes on July 19, but J.C.'s mother testified he was then "a little heavy." D.M. and J.C. had played together previously at the thrift store, and on July 19 J.C. told his mother, "Look, my friend came over to play with me." J.C. obviously felt comfortable with D.M., as by J.C.'s own account either on July 19 or a previous occasion he bargained to let D.M. use the Gameboy in exchange for D.M. showing J.C. his penis. This hardly connotes any intimidation of J.C. by D.M. Evidence that J.C. appeared frightened after the incident is insufficient to establish his participation was impelled by duress. (See People v. Espinoza, supra, 95 Cal.App.4th at p. 1321 ["It would be circular reasoning to find that [the victim's] fear of molestation established the molestation was accomplished by duress based on an implied threat of molestation."].)
A probation report submitted after the court's ruling states D.M.'s weight was 100 pounds.
The People rely on opinions in which duress was found when adults molested children. For instance, in People v. Cochran, supra, 103 Cal.App.4th at pages 15-16,
the court noted the "record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to the father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress." (Fn. omitted.) In People v. Pitmon, supra, 170 Cal.App.3d at page 51, the court found duress where the victim of a sex crime perpetrated by an adult was eight years old, "an age at which adults are commonly viewed as authority figures." The court also noted the "disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of his relative physical vulnerability." (Ibid.) In People v. Veale (2008) 160 Cal.App.4th 40, the defendant molested his seven-year-old stepdaughter. In finding duress, the court explained the stepfather was an authority figure in the home, there was a great disparity in the ages and sizes of him and the girl, and she feared him and feared that if she told anyone about the molestation he would kill her or her mother. (Id. at p. 47.)
The People cite no opinion on the duress element with facts similar to those here. "It is elementary that the language used in any opinion is to be understood in the light of the facts and the issue then before the court." (Porter v. Bakersfield & Kern Elec. Ry. Co. (1950) 36 Cal.2d 582, 590.)
We reverse the judgment as to counts 1 and 2 for insufficiency of the evidence on the duress element of the offenses.
III
Counts 2 and 3/Sexual Gratification Element
An element of both a forcible and a nonforcible lewd act on a child under the age of 14 is the defendant's "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child." (§ 288, subds. (a), (b)(1).) D.M. challenges the sufficiency of the evidence to support the specific intent element of counts 2 and 3.
A lewd act within the meaning of section 288 "requires the specific intent of arousing the sexual desires of either the perpetrator or the victim." (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) "Because intent can seldom be proved by direct evidence, it may be inferred from the circumstances. [Citations.] Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim's cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings." (Ibid.; People v. Martinez (1995) 11 Cal.4th 434, 445.)
Further, when the defendant is a minor his age is relevant. (In re Jerry M., supra, 59 Cal.App.4th at p. 299.) "[T]he younger the minor [defendant] the less likely his acts are with the specific intent of sexual arousal." (Id. at p. 300.) "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." (In re Randy S. (1999) 76 Cal.App.4th 400, 406, italics omitted.)
We conclude the court's ruling is unsupported by substantial evidence. D.M. was 12 years of age and no evidence was adduced that he had reached the age of puberty. Further, there is no physical or other evidence he was sexually aroused during the incident. J.C. described D.M.'s penis as looking "like an elephant trunk, " which indicates it was flaccid. No competent evidence was presented that D.M. ejaculated. The thrift store employee's opinion, solicited by the People, that the substance in or around J.C.'s mouth could have been semen is irrelevant. His mother described the substance as "slobber" and the employee described it as "saliva" before the People asked her to speculate. There was no forensic evidence. D.M.'s testimony that nothing came out of his penis is uncontested. We disagree with the People's claim that the interview with the detective showed D.M. "had a sexual awareness far beyond the typical 12 year old." In our view, D.M.'s remarks to the detective do not indicate sexual precociousness.
The People assert D.M. told the detective during the interview that "he had masturbated on previous occasions when his penis had become erect." (Italics added.) The detective asked D.M. if he knew what masturbation means, and D.M. responded, "You touch your genitals." The detective asked D.M. whether he had touched his genitals in the past, and D.M. said he had. The detective then asked, "Have you touched when it became hard?" and D.M. said yes. The detective did not ask whether he had done so more than once. Further, D.M. unequivocally denied he had ever ejaculated.
Additionally, other indicia of sexual arousal are not present. D.M. had not committed other lewd acts; he did not coerce or deceive J.C. to obtain his cooperation, or offer any reward for cooperation; no "stealthy approach" was involved; and D.M. did not tell J.C. to keep the incident secret. (Jerry M., supra, 59 Cal.App.4th at p. 299.) Further, there was no "clandestine" meeting between D.M. and J.C. (Ibid.) They were playing in the upstairs loft area of a store open to the public. There is no indication D.M. encouraged J.C.'s cousin to leave the area so D.M. could be alone with J.C. The boys' mothers were in the store, and either one of them or another person could have appeared without warning. D.M. told the investigator that when he and J.C. were upstairs, D.M.'s mother was "trying to watch me." Contrary to the People's position, this case is not akin to In re Randy S., supra, 76 Cal.App.4th at page 407, where the court found clandestine activity when an 11-year-old boy, whose stepmother had forbidden him from showering with his 2-year-old stepsister, molested the girl in a shower behind a closed bathroom door.
J.C. admitted he was the instigator in D.M. exposing his penis to J.C. Although J.C.'s testimony was conflicting as to whether he asked to see D.M.'s penis on July 19 or on a previous occasion, he presumably made the request on July 19 as D.M. testified. J.C. did not ask to have D.M.'s penis in his mouth, and D.M.'s conduct was wrong. On this record, however, we cannot uphold the court's finding that he acted with the intent of sexually gratifying himself. "[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." (People v. Martinez, supra, 11 Cal.4th at p. 452.) We disagree with the People's view the court could reasonably have decided the issue either way.
DISPOSITION
The judgment is reversed.
WE CONCUR: McDONALD, J., O'ROURKE, J.