Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 06CEJ600907-1, Jon N. Kapetan, Judge.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a contested hearing, the juvenile court sustained allegations of lewd acts on a child under the age of 14 accompanied by force or other coercion (Pen. Code, § 288, subd. (b)(1)) and lewd acts on a child under the age of 14 (§ 288, subd. (a)) against L.J. (appellant). The court found that the offenses were felonies and that the maximum period of confinement was eight years. Appellant was granted probation but was detained at juvenile hall pending suitable placement.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends the juvenile court erred in finding that he understood the wrongfulness of his conduct because that determination was based on improperly considered statements, and there is insufficient evidence to support the finding. Appellant contends his alleged acts were wrongly prosecuted as criminal conduct under Welfare and Institutions Code section 602, and that the proceedings should have been conducted under Welfare and Institutions Code section 601. He also contends that the trial court failed to conduct a competency hearing. And finally, he contends that there is insufficient evidence to support the true finding that appellant violated section 288, subdivisions (a) and (b)(1)). We disagree and affirm.
FACTS
On April 11, 2006, 11-year-old appellant and his cousins, eight-year-old M.L. and six-year-old A.R., were all at their grandmother’s house for the night. The grandmother, Mrs. J., had raised appellant since birth and was his guardian. The children were sleeping on separate couches in the living room. A 22-year-old uncle, G.W., was also in the living room. Mrs. J. could hear the children watching television and talking until she fell asleep.
About midnight, G.W. left the living room to make a phone call. At that point, appellant got onto the floor and reached under M.L.’s covers and under her skirt and touched her thigh. Appellant also got “into [her] panties.” M.L. told appellant to stop and pushed him away, but he pulled M.L. by the arm and caused her to fall down onto the floor. He then pulled her skirt down, got on top of her, covered her mouth with his hand, pulled down her underpants, and then pulled down his own pants and underwear. He then tried to put his penis in M.L.’s vagina, but she told him to stop and tried to push him off of her. Appellant said, “I’m going to fuck you,” and slapped her six or seven times.
M.L. heard a noise as if G.W. was coming back and appellant got off of her and back onto the couch. Appellant then slapped M.L. and she slapped him back. Appellant told M.L. not to tell anyone.
The following morning, M.L. told her mother what had happened. That evening, Police Officer Tsauas Yang responded to a report of a sexual assault. Officer Yang spoke to M.L. and her mother about the incident. M.L. told the officer what had happened. She admitted that she was angry that appellant had gotten a bicycle that she wanted, but said that she did not tell any lies about appellant because of the bike.
Officer Yang then went to Mrs. J.’s home and spoke to her. Officer Yang also spoke to appellant, who was “nervous and tearing up” as he discussed the incident. When Officer Yang asked appellant if he knew why he was there, appellant said he did. He told the officer that he and M.L. were watching television and slapping each other to try to make the other say “ouch.”
Appellant told Officer Yang that he, M.L., and A.R. were watching television when M.L. tried to pay A.R. to go to sleep early because they were going to do “fireworks,” which appellant understood to mean “to do the nasty.” Appellant said that he had done something he was not supposed to do, he had tried to “do the nasty” with M.L. Officer Yang asked appellant if he knew the meaning of “doing the nasty,” and “sex,” and appellant said that he did, and he agreed that it was the same thing. Appellant said that he knew it was a “bad touch” but that he did not know it was against the law.
After speaking with his sergeant, Officer Yang arrested appellant, handcuffed him, placed him in his patrol car, and read him his Miranda rights. Appellant said he understood his rights, but Officer Yang agreed that he had not asked appellant if he gave up those rights. Appellant then began crying and screaming for his mother. He repeatedly apologized for what he did to M.L. and promised not to do it again.
Miranda v. Arizona (1966) 384 U.S. 436.
While they were still in the patrol car, Officer Yang’s sergeant called and told him to release appellant. Before being released, appellant asked if he would be let go or given a chance if he told the truth. Officer Yang told appellant it was up to him to tell the truth because he already knew what had happened. Appellant then discussed the incident. Officer Yang released appellant to his grandmother and notified child protective services of the incident.
The juvenile court concluded that there was insufficient evidence of appellant’s Miranda waiver and excluded these statements by appellant.
Mrs. J. recalled an occasion a year or two earlier when appellant rubbed his hand on her leg under her dress. Mrs. J. told appellant that his behavior was not appropriate and told him not to touch her leg. Mrs. J. also acknowledged an incident in which appellant was suspended from school for touching a female classmate in a sexual way. Mrs. J. talked to appellant about his behavior and told him what he did was wrong.
DISCUSSION
1. Is there sufficient evidence to find that appellant knew the wrongfulness of his conduct?
Appellant first challenges the juvenile court’s finding that he knew the wrongfulness of his conduct, as required by section 26, because he contends the court’s finding was based on improperly considered statements excluded in violation of Miranda and the evidence is insufficient to support the finding. We disagree.
Section 26 provides, in pertinent part, that “[a]ll persons are capable of committing crimes except those belonging to the following classes: [¶] One–Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.…” (See also In re Gladys R. (1970) 1 Cal.3d 855, 864 [“Section 26 embodies a venerable truth, which is no less true for its extreme age, that a young child cannot be held to the same standard of criminal responsibility as his more experienced elders”].) But, “the presumption of a minor’s incapacity [may] be rebutted by clear and convincing evidence” that the minor defendant knew of the act’s wrongfulness. (In re Manuel L. (1994) 7 Cal.4th 229, 238.)
In this particular matter, the juvenile court specifically stated,
“As for Penal Code 26, the witness stated that he had been admonished in the past regarding improper touching. He stated to the officers that he was sorry for what had occurred. He was tearful. Additionally, the witness, [M.L.], whom, by the way, I found very credible, told us that he warned her not to say anything about it, which is further evidence that he knew the situation or what had occurred was wrong.”
Appellant contends that “[t]wo of those reasons were statements obtained in violation of Miranda,” referring to appellant’s statement to the officer that he was sorry for what had occurred and the fact that appellant was tearful.
We first consider whether the juvenile court erred when it considered the fact that appellant “was tearful.” Appellant insists that this reference was to the time when appellant was crying in the back of the patrol car. Respondent argues the juvenile court was referring to the questioning of appellant at the house when Officer Yang described appellant as “tearing up.” We cannot decipher from the court’s reasoning which incident it was referring to, so we will address both.
To invoke the protections of Miranda, a suspect must be subjected to “custodial interrogation.” (Miranda v. Arizona, supra, 384 U.S. at p. 444.) “Custodial interrogation has two components.” (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) The first component, “custodial,” means “‘any situation in which “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”’” [Citations.]” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161.) In People v. Lopez (1985) 163 Cal.App.3d 602, 608, the court listed various objective indicia of custody for Miranda purposes: (1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.
The second component, interrogation, is defined as express questioning or its “functional equivalent,” i.e., by words or actions on the part of police that they should know are “reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 291, 303; People v. Mickey (1991) 54 Cal.3d 612, 648.) Spontaneous statements are not the product of interrogation and therefore do not implicate Miranda. (People v. Mickey, supra, at p. 648.)
We question whether either appellant’s being “tearful” at the interview or his crying in the back of the patrol car is a statement for purposes of Miranda. Evidence Code section 225 defines a “[s]tatement” as “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” Evidence Code section 125 defines “[c]onduct” to include “all active and passive behavior, both verbal and nonverbal.” An individual’s reaction to a question asked by the police could constitute assertive conduct and, therefore, a statement within the meaning of Evidence Code section 225. (See, e.g., People v. Clark (1970) 6 Cal.App.3d 658, 668 [admissibility of wife’s emotional reaction to question asked of her husband during police interrogation]; People v. Snow (1987) 44 Cal.3d 216, 227-228 [defendant’s lack of emotional reaction to the news that the only witness against him had just been murdered not hearsay and admissible as probative of knowledge].)
The act of “tearing up” during questioning at his home by Officer Yang took place before appellant was in custody. Officer Yang testified that he first noticed appellant was “tearing up” when he sat down with him at the kitchen table and talked to him about the incident. Officer Yang asked appellant if he knew why he was there, and when appellant stated that he did, Officer Yang asked him about the incident between him and M.L. At the time, appellant was not under arrest. Officer Yang was the only one questioning appellant, and the length of questioning appears brief.
Even if we assume that appellant’s action of “tearing up” when he first spoke to Officer Yang can be considered a statement for Miranda purposes, we agree with respondent that, at that time, appellant was not in custody and was therefore not entitled to Miranda warnings.
If we assume that the juvenile court was using the fact of appellant’s crying in the back of the patrol car, we will address that issue along with the juvenile court’s reliance on appellant’s statement that he was sorry for what had occurred. Both the crying and that statement occurred after appellant was in custody, as both occurred after appellant was handcuffed and placed into the patrol car. Although Officer Yang read appellant his Miranda rights, the juvenile court ruled that appellant did not waive those rights and any statements made after he was formally arrested were inadmissible.
But appellant’s act of crying, even if considered a statement, and his apologies were both spontaneous and not made in response to any questions posed by Officer Yang. Officer Yang testified that he placed appellant in handcuffs, put him in the back of his patrol car, and read him his Miranda rights. At that point, appellant spontaneously began “crying and screaming for his mother,” “apologiz[ed] multiple times that he was sorry that he did that to M[.L.],” and “that he won’t do it again.” Spontaneous statements are not the product of interrogation and therefore are not violative of Miranda. (People v. Mickey, supra, 54 Cal.3d at p. 648.)
Furthermore, even assuming for the sake of argument that appellant’s responses of “tearing up” or crying and apologizing for what he had done should have been excluded, there remains sufficient evidence to demonstrate that appellant was aware of the wrongfulness of his conduct, despite appellant’s claim to the contrary.
The juvenile court’s finding that the minor understood the wrongfulness of his actions will be affirmed if supported by substantial evidence. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298-299.) In applying the substantial evidence test, it is not this court’s task to reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Rather, our duty is solely to ascertain whether there is reasonable, credible evidence of solid value to support the conclusion of the juvenile court. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) All conflicts are resolved in favor of the judgment, and the issues of fact and credibility are questions for the court below. (Ibid.) The trier of fact, not the appellate court, must be convinced of the minor’s guilt; hence, if the circumstances and reasonable inferences 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 reversal. (In re Jerry M, supra, at p. 298.)
“Although a minor’s knowledge of wrongfulness may not be inferred from the commission of the act itself, ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment’ may be considered. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 378.) “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—to determine whether the minor understood the wrongfulness of his or her conduct.” (Id. at p. 379.) Moreover, a minor’s “age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts.” (In re Cindy E. (1978) 83 Cal.App.3d 393, 399.)
Here, the juvenile court properly could infer that appellant understood it was wrong to commit a lewd act on M.L. based on the manner in which appellant committed the offense. Appellant waited until his uncle left the room before he assaulted M.L. During the incident, appellant covered M.L.’s mouth with his hand. He stopped as soon as it became apparent that his uncle might be returning to the room. And he told M.L. not to tell anyone what had happened.
In addition, appellant told Officer Yang that “doing the nasty” and “sex” meant the same thing, and that he had tried to do “the nasty” with M.L. He also told Officer Yang that he knew it was a bad touch but he didn’t know it was against the law.
Appellant had also been warned in the past that his actions were wrong. Mrs. J. testified that one or two years earlier appellant had touched her leg and moved his hand on her leg while they were in bed. She told appellant that his behavior was not appropriate. Mrs. J. also testified that appellant was suspended from school for touching a female student in a sexual way and that “he knew what he did was wrong.”
Finally, appellant was 11 years and 5 months old when he committed the acts. Appellant asserts that the evidence suggests that he was immature for his age and that he functioned at a level “no higher than a 9-year-old.” But appellant bases this contention on a psychological evaluation done on March 31, April 2, and April 11, 2007—all dates after the juvenile court had already determined that appellant understood the wrongfulness of his acts. In addition, the psychological evaluation does not specifically state that appellant functioned at the level of a nine-year-old; it states that he functioned below grade level in reading, comprehension, spelling, and math.
A minor’s knowledge of the wrongfulness of an act may be inferred from circumstantial evidence. (In re Tony C. (1978) 21 Cal.3d 888, 900; In re Paul C. (1990) 221 Cal.App.3d 43, 52.) Here, appellant’s actions before, during, and after the incident, his statements to Officer Yang, plus the fact that he was admonished on two prior occasions, constitute clear and convincing evidence that appellant knew the wrongfulness of his acts. In sum, substantial evidence supports the trial court’s finding that the minor knew his conduct was wrong.
2. Was appellant improperly prosecuted under Welfare and Institutions Code section 602?
Appellant argues that, because he did not have any prior referrals to the juvenile justice system and he didn’t understand the wrongfulness of his conduct, proceedings against him should have been conducted under Welfare and Institutions Code section 601 and not section 602. Specifically, appellant claims his situation is more akin to a child having difficulty obeying his guardian’s rules than one in which he committed a crime. We disagree.
Welfare and Institutions Code section 601 provides, in pertinent part:
“(a) Any person under the age of 18 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian, or who is beyond the control of that person, or who is under the age of 18 years when he or she violated any ordinance of any city or county of this state establishing a curfew based solely on age is within the jurisdiction of the juvenile court which may adjudge the minor to be a ward of the court.”
Welfare and Institutions Code section 602 provides, in pertinent part:
“(a) [A]ny person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”
As explained in In re Gladys R., supra, 1 Cal.3d at page 867:
“[Welfare and Institutions Code s]ection 601 provides that a child who disobeys the lawful orders of his parents or school authorities, who is beyond the control of such persons, or who is in danger of leading an immoral life may be adjudged a ward of the court. Section 601 might clearly cover younger children who lack the age or experience to understand the wrongfulness of their conduct.… [¶] Section 602 should apply only to those who are over 14 and may be presumed to understand the wrongfulness of their acts and to those under the age of 14 who clearly appreciate the wrongfulness of their conduct.”
Appellant relies on In re Michael B. (1975) 44 Cal.App.3d 443, in which the appellate court found that nine-year-old Michael was improperly adjudged a ward of the court under Welfare and Institutions Code section 602. In In re Michael B., the minor was questioned by a police officer after a neighborhood car was vandalized, the rear view mirror broken off, the antenna bent, and the window pried open. The minor told the officer he and several friends had gotten into three or four cars and that he had broken off the rear view mirror of the one car so that he could get his hands in to pry open the window. His friend then reached inside and unlocked the door and they took a package of cigarettes. The minor was asked if he knew right from wrong and whether he knew it was wrong to break into cars and steal. The minor said, “Yes.” The officer then asked the minor how it would feel if someone took something that meant a lot to him. The minor said he never had anything that meant a lot to him, so it didn’t really matter. (In re Michael B., at p. 445.)
The court in In re Michael B. found there was insufficient evidence that the minor knew the difference between right and wrong and the nature and circumstances of the crime itself did not furnish clear proof of knowledge of the wrongfulness of the conduct. “The only evidence on that issue was the brief statement of the police officer that Michael said yes when asked if he knew the difference between right and wrong.” (In re Michael B., supra, 44 Cal.App.3d at p. 446.) For this reason, the appellate court determined that the minor was improperly adjudicated a ward of the court under Welfare and Institutions Code section 602. (In re Michael B., at p. 446.)
We find appellant’s situation distinguishable from that in In re Michael B. As discussed in part 1, ante, there is substantial evidence of clear and convincing proof pursuant to section 26 that appellant knew the wrongfulness of his conduct. We also find appellant’s conduct, that of committing a lewd act upon M.L., was more than just a situation in which a minor had difficulty obeying his guardian’s rules. Appellant was therefore correctly declared a ward under Welfare and Institutions Code section 602.
Appellant also contends Welfare and Institutions Code section 602 proceedings were inappropriate because a declaration under section 602 wardship has severe consequences and does not provide appellant with the support and help he needs. While it is true that “disposition under section 602 carries a stigma,” (In re Michael B., supra, 44 Cal.App.3d at p. 446), the juvenile court here adopted the recommendation of the clinical psychologist and probation department and placed appellant in a treatment facility where he would receive the appropriate treatment and support.
3. Did the juvenile court err in failing to hold a competency hearing for appellant?
Appellant contends that the juvenile court erred when it failed to conduct a competency hearing because there were “several indications that [appellant] was not competent to stand trial and that he was not capable of understanding the proceedings and cooperating with his attorney.” We disagree.
Appellant relies on California Rules of Court, rule 5.645(d), former rule 1498, which provides, in pertinent part, that if the juvenile court finds there is reason to doubt that a child “is capable of understanding the proceedings or of cooperating with the child’s attorney, the court must stay the proceedings and conduct a hearing regarding the child’s competence.” It directs that if the court finds that the child is not capable of understanding the proceedings or of cooperating with the attorney, “the court must proceed under [Welfare and Institutions Code] section 6550 and (a)-(c) of this rule.” (Rule 5.645(d)(2).) Subdivisions (a) through (c) provide procedures upon a finding that the child is mentally ill, mentally disabled, or mentally disordered. But if the court finds that the child is capable of understanding the proceedings and of cooperating with the attorney, the court must proceed with the case. (Rule 5.645(d)(3).)
Further references to rules are to the California Rules of Court.
The appellate court in Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 852, construed the former rule 1498(d) to be consistent with the constitutional test of competency stated in Dusky v. United States (1960) 362 U.S. 402, and held that the rule does not require that a minor have a mental disorder or developmental disability before the juvenile court may hold a hearing to determine whether, or find after holding a hearing that, the minor is incompetent to stand trial. In Dusky v. United States, the United States Supreme Court defined the competency standard as including both (1) whether the defendant has “‘a rational as well as factual understanding of the proceedings against him’” and (2) whether the defendant “‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” (Id. at p. 402.)
Here, there was nothing to suggest that the juvenile court had any doubt that appellant was capable of understanding the proceedings or of cooperating with his attorney. Appellant appeared before the juvenile court on the date set for adjudication. Appellant was prepared to enter a plea to a lesser charge. At that time, defense counsel stated that appellant “seems to understand that what he did was wrong.” The court then addressed appellant and asked if he wished to enter an admission, to which the minor stated he did. Also, when asked if he knew what a trial was, appellant answered that he did. When the court asked appellant to explain what a trial was, appellant asked if he could use an example and then stated, “Like, when Marcus Wesson went to trial for killing those kids and all the people was there.” The court asked appellant “For what?” and appellant replied “For his witnesses.”
The juvenile court then explained the basics of a trial, which appellant stated he understood. He stated that he understood that by entering an admission, he gave up a trial. He also stated that he understood his right to have an attorney, to call witnesses, to cross-examine witnesses, and to testify in his own behalf.
When the trial court asked if appellant understood what sexual intercourse was, he at first stated that he did not, but then acknowledged that his attorney had explained it to him and that it was “[w]hen you put your body into another person’s, even just a little bit.” The court stated, “They’re saying that you put your penis inside a girl who was three years younger than you.” Appellant stated that he understood. Appellant answered “No” when the court asked “did you put your penis inside of the girl.”
At no time did the court express any doubt as to appellant’s capability of understanding the proceedings or of cooperating with counsel. Neither did defense counsel present any evidence that would have given the court doubt.
Appellant contends the psychological evaluation submitted to the court provided evidence that he was not competent to consult with his lawyer or to understand the proceedings against him. Specifically, he relies on the psychological evaluation which stated that he had a lower than average IQ. As noted previously, the psychological report was prepared after the contested hearing. But appellant contends incompetency hearings may be undertaken at any time before judgment.
Appellant has provided no authority that doubt of a juvenile’s capacity to understand the proceedings or of cooperating with counsel under rule 5.645(d) may be raised at any time. And, in fact, in Timothy J. v. Superior Court the court, in contrasting a finding under section 26 and rule 5.645(d), stated that “the inquiry under [former] rule 1498(d) is made before trial and the question is whether the minor is capable of understanding the proceedings and of cooperating with counsel.” (Timothy J. v. Superior Court, supra, 150 Cal.App.4th at p. 862, italics added.)
Section 1368, which addresses the issue of competency hearings for adults, specifically states that it is to be held when such evidence is presented “during the pendency of an action and prior to judgment.” (Id., subd. (a); see also People v. Jones (1991) 53 Cal.3d 1115, 1152-1153.) And rule 5.645(a), which addresses the issue of doubts concerning the mental health of a child, states that the court must order the child taken to a mental health facility “[w]henever the court believes that the child … is mentally disabled or may be mentally ill .…” (Italics added.) But the wording of rule 5.645(d), at issue here, is less specific and states, in pertinent part, “If the court finds that there is reason to doubt that a child … is capable of understanding the proceedings or of cooperating with the child’s attorney,” it must stay the proceedings and conduct a competency hearing.
In any event, even if we assume that the juvenile court may undertake a rule 5.645(d) determination at any time before judgment, the record does not support a finding that the court had any reason to doubt appellant’s ability to understand the proceedings and cooperate with counsel. While a child’s “developmental immaturity may result in trial incompetence despite the absence of any underlying mental or developmental abnormality” (Timothy J. v. Superior Court, supra, 150 Cal.App.4th at p. 860), a report indicating that appellant had a lower than average IQ does not automatically negate evidence before the court that appellant understood the proceedings and was able to cooperate with counsel.
The juvenile court was in the best position to observe appellant during trial and to witness his interaction with counsel. At no time did the court express any doubt as to appellant’s competence. Neither did his counsel. Before judgment was imposed, the court stated that it had read the psychological evaluation, and again, the court expressed no doubt as to appellant’s competence.
We reject appellant’s claim that the juvenile court should have ordered a competency hearing.
4. Is there sufficient evidence to support the true finding that appellant violated section 288, subdivisions (a) and (b)(1)?
Finally, appellant contends there is insufficient evidence to support the juvenile court’s true finding that he violated section 288, subdivisions (a) and (b)(1). We disagree.
The substantial evidence rule governs a sufficiency of the evidence challenge. The appellate court views the record in the light most favorable to the judgment to determine whether there is substantial evidence by which a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) It is the trial court’s and not the appellate court’s task to resolve credibility questions and find the truth of inconsistent facts. (In re Robert V. (1982) 132 Cal.App.3d 815, 821.) On appeal, we must not only view the evidence in the light most favorable to the juvenile court’s findings but also must draw all inferences in support of the judgment if they can reasonably be deduced from the evidence. (In re Charles G. (1979) 95 Cal.App.3d 62, 67-68.) We will not substitute our judgment for that of the juvenile court unless its decision is unsupported by substantial evidence. (Id. at p. 67.)
Section 288, subdivision (a) states, in pertinent part:
“Any person who willfully and lewdly commits any lewd or lascivious act … upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony .…”
Section 288, subdivision (b) adds the element of force, which appellant does not contest.
In determining whether a violation of section 288, subdivision (a) or (b) occurred, the trier of fact looks to all the circumstances, including the nature of the lewd act, to determine whether the touching was performed with the requisite intent. (People v. Martinez (1995) 11 Cal.4th 434, 445; People v. Mullens (2004) 119 Cal.App.4th 648, 662; In re Randy S. (1999) 76 Cal.App.4th 400, 405.)
“Circumstances relevant to determining whether the touching was sexually motivated include the nature of the charged act, physical evidence of sexual arousal, clandestine meetings, ‘the defendant’s extra judicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim’s cooperation or to avoid detection [citation].’ [Citation.]” (In re Randy S., supra, 76 Cal.App.4th at pp. 405-406, italics omitted.)
As stated in Randy S., the court in In re Jerry M., supra, 59 Cal.App.4th at page 299, included the age of the defendant as a relevant factor. (In re Randy S., supra, at p. 406.) The closer the child is to the age of 14, the more likely that “the minor understands the wrongfulness of his acts within the meaning of section 26[,]” and “the younger the minor the less likely his acts are with the specific intent of sexual arousal.” (In re Jerry M., supra, at p. 300.)
Appellant argues that the evidence is insufficient on the issue of intent because he was only 11 at the time of the alleged act, and there is no evidence either to prove that he had reached puberty or of sexual arousal at the time of the offense. He compares his case to In re Jerry M., but we find the facts of that case distinguishable.
In In re Jerry M., the minor, an 11-year-old boy, was alleged to have committed four instances of lewd acts: (1) he approached a 12-year-old girl while she was talking with her friends and squeezed her breasts through her shirt; (2) he borrowed the same 12-year-old’s bike and would not return it until she showed him her breasts; (3) he approached a 13-year-old girl standing near her apartment mail boxes and briefly touched her breasts and commented that they “grew” and “feel good”; and (4) he approached a 12-year-old girl on her apartment steps, asked her if she was “flat,” and put his hands under her T-shirt and bra, touching her breasts with his fingertips. (In re Jerry M., supra, 59 Cal.App.4th at p. 294.)
Although the court found that the minor in In re Jerry M. understood the wrongfulness of his conduct, it concluded that he did not have the specific intent to sexually arouse himself. The court based its finding on the fact that the minor had not reached puberty, he knew each of the victims, his conduct was in public during daytime in the presence of others, there was no attempt to avoid detection, there was no clandestine activity preceding the touching, there was no admonishment to the victims not to disclose the occurrence, and there was no attempt to prolong the brief touchings. (In re Jerry M., supra, 59 Cal.App.4th at p. 300.) “The record shows [the minor] was a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal.” (Ibid.)
Here, there was sufficient circumstantial evidence of appellant’s intent to support the juvenile court’s finding. Appellant did not approach M.L. until G.W. was out of the room and A.R. was asleep. He covered M.L.’s mouth with his hand. Appellant stopped all activity when G.W. made noise as if he might be returning to the room. In addition, appellant warned M.L. not to tell anyone what had happened. Furthermore, appellant’s actions were not brief touchings. Instead, he reached under the covers and under M.L.’s skirt. He then touched her thigh and “got into [her] panties.” When M.L. tried to push appellant away, he pulled her onto the ground, pulled down her skirt, got on top of her, pulled down his and her underwear, and tried to put his penis inside her vagina. The sexual nature of the charged act was not at all ambiguous. Also, appellant’s intent was evident from his statement to M.L. that he was “going to fuck [her].” Unlike the circumstances in Jerry M., there was sufficient evidence of the requisite intent required under section 288, subdivisions (a) and (b)(1).
Considering the totality of the circumstances in this case, we conclude there was sufficient evidence to infer beyond a reasonable doubt that appellant acted with the requisite sexual intent, and the juvenile court reasonably found true the allegations in the petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.