Opinion
F078349
03-18-2020
In re A.E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.E., Defendant and Appellant.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CEJ600301-1)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Gary D. Hoff, Judge. Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a contested hearing, the juvenile court found true beyond a reasonable doubt appellant had committed continuous sexual abuse of two minor victims (Pen. Code, § 288.5, subd. (a); counts 1 & 2). Appellant admitted, and the court found true, appellant had also committed misdemeanor vandalism involving property from an adult victim (§ 594, subd. (a)(2); count 3). Based on the court's findings, appellant faced a maximum confinement of 20 years four months. Appellant was deemed a ward of the juvenile court, and he was ordered to the Juvenile Justice Campus for 90 days. Appellant was placed on probation. Among other terms and conditions, he was directed to enroll in and complete a long-term sexual offender program.
Appellant was 18 years old when the contested juvenile hearing occurred.
All future statutory references are to the Penal Code unless otherwise noted.
It is undisputed appellant committed the sexual abuse charged in counts 1 and 2 when he was younger than 14 years of age. The court found appellant knew the wrongfulness of his conduct at the time these offenses were committed. On appeal, appellant contends the court abused its discretion and violated his rights to due process when making this finding. He also argues insufficient evidence supports the true findings he violated section 288.5 as alleged in counts 1 and 2. We affirm the juvenile court's order.
Section 26 creates a rebuttable presumption that a minor under the age of 14 is incapable of committing a crime. (§ 26, subd. One; In re Manuel L. (1994) 7 Cal.4th 229, 231.) To defeat the presumption in a petition under Welfare and Institutions Code section 602, "the People must prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed." (In re Manuel L., supra, 7 Cal.4th at p. 232.)
BACKGROUND
Appellant is a cousin to the two sexual abuse victims, who are sisters. These victims are minors. To protect their identities, we refer to them as Victim 1 and Victim 2. Victim 1 was born in 2004 and Victim 2 was born in 2006. Appellant was born in July 2000.
I. Victim 1 Discloses The Inappropriate Touchings To A School Counselor.
In September 2017, appellant visited relatives and he hugged Victim 1. They had not seen each other for a while. While hugging her, he pressed his penis against her. She felt uncomfortable and she started backing away. Victim 1 believed her older sister noticed what had happened.
The victims' older sister did not testify in this matter. The older sister was 18 years old when the contested hearing occurred.
The following day, Victim 1 felt anxiety whenever she was close to people or she was touched. The day after that, she spoke with a school counselor, and she disclosed that appellant had touched her inappropriately when she was younger. The counselor contacted Victim 1's mother, who alerted police. Later that night, Victim 2 also disclosed to the mother that appellant had touched her inappropriately. Victim 1 was not present when Victim 2 made her disclosure to the mother.
On September 27, 2017, a male Fresno police officer contacted the mother and the victims at their residence. The mother reported that possible molestation had occurred involving her two girls and the victims' cousin. The officer tried to speak with Victim 1, but she did not say anything. The mother explained that Victim 1 did not like men. Victim 2 said she wanted to speak with a female officer. Because a female officer was not available to respond, the male officer prepared a report, which was forwarded to an investigation unit within the police department.
II. The Victims Undergo Forensic Interviews.
The police did not further investigate this matter until it was assigned to detective Jay (Peter) Ressler in April 2018. Ressler contacted the mother and he arranged for forensic (MDIC) interviews for the victims. Those interviews occurred on April 27, 2018. We summarize the material portions of the respective interviews.
A. Victim 1's forensic interview.
Victim 1 was 13 years old at the time of her interview, and she was completing seventh grade. She disclosed that appellant had touched her more than 10 times when she was younger. They would play "hide and seek" and he would tell her, "Don't tell anyone. It's okay." He would pull down his pants and make her "do stuff to him." Victim 1 said appellant would then pull down her pants "and he'd pinch my kitty." He said, "It's just a game. We don't have to tell anyone our little game ...."
During her testimony, Victim 1 did not remember telling the interviewer that appellant had pinched her kitty. She denied ever referring to her vagina as a kitty.
Victim 1 reported that the touchings occurred at her grandmother's house. At that time, appellant resided with their grandmother. Victim 1's mother would drop Victim 1 and her sisters off at their grandmother's house. Her grandmother would turn on a television in appellant's room, and the grandmother would leave the kids alone.
The first incident occurred when Victim 1 played hide and seek alone with appellant at the grandmother's house. Appellant hid in a closet and, when she found him, he pulled her in and kissed her. She described it as "like a girlfriend-boyfriend kiss." She just stood there and he said, "It's okay I didn't mean to do it." He told her to hide. When he found her in the grandmother's restroom, he touched her "private area" with his hand over her clothes. She stated she was seven years old and in the second grade when this touching occurred.
Based on her age that Victim 1 reported, appellant would have been approximately 11 years old.
The next incident occurred when other cousins were at the grandmother's house. Appellant asked Victim 1 if she still wanted to play hide and seek. She thought this would be a normal game because other children were involved. When he found her, he rubbed her "private" with his hand outside her clothes. When it was her turn to find the children hiding, Victim 1 was scared to find appellant because she worried he would kiss her again. Appellant became mad because she would not look for him, and he quit the game. Victim 1 reported she was seven years old when this occurred.
When Victim 1 was in second grade, appellant asked her if she wanted to have sex. She said she did not know what that meant. He pulled her into his brother's room and said, "I'll show you." He pulled down his pants and he pulled down her pants. He tried pulling down her underwear, and she said, "No, we shouldn't do that." He asked if they could do it at night when everyone was asleep. She agreed so he would leave her alone. That night, he tried to wake her. He put his hand on her private and said, "It's time to get up." She pretended to remain asleep, and she rolled over, hitting him. He walked away.
On one occasion, appellant was outside with Victim 1. He touched her vagina with his finger. She reported that he put his finger insider her. It hurt and she felt "like a sharp pain." She asked why they did not play the game with her sisters. He asked, "Do you want this to happen to your sister?" She responded, "No." He said, "Okay, good." He asked, "Okay, it's still our little game, right?" She said, "Yeah," and they went back inside. Victim 1 told the interviewer that this was the only time appellant had put his finger inside her. According to her, appellant "always" asked if he could "stick" his private inside her and she said, "No." She did not want that because the finger had hurt. Victim 1 did not recall any other incidents when she was seven or eight years old. She said they did not "really go anymore" to the grandmother's house because Victim 1's mother stopped working because of her back.
Victim 1 said she was nine years old and in third grade when appellant started making her "do stuff" to him. She reported that appellant made her touch his penis with her hand about three times. The first time he told her he had a game for them. He took her near some garbage cans near a sidewalk. The garbage cans partially hid them. He made her touch his private with her hand and he would not let her stop until "stuff would come out." He made "moaning noises" when she touched him. Nobody else was around.
Based on her age that Victim 1 reported, appellant would have been approximately 13 years old. During her interview, Victim 1 stated that she had repeated second grade, which made her nine years old when she was in third grade.
Victim 1 reported that appellant made her "suck" his private while she was on her knees. He would either put his hands on her waist, or he would grab her head and "push it in more." On one occasion, "white stuff came in [her] mouth" and he told her to spit it out. On other occasions, he would put his white stuff on the concrete and then water it down. He would moan while she sucked him.
Victim 1 told the interviewer that the final incident with appellant occurred when she was in her grandmother's garage with appellant. It was summertime, and she believed she was finishing third grade. Their grandmother sent them to the garage to collect old toys for a yard sale. When they were alone in the garage, appellant pulled down his pants and he started touching himself by moving his hand up and down. She told him to pull up his pants, which he did. He started to kiss her with his tongue in her mouth, and she pushed him away. She told him she was going to tell their grandmother and his father if he kept doing this. According to Victim 1, appellant said, "Are you serious you're gonna [sic] snitch?" She told him "this is bad" and "you took advantage of me and you told me we were just playing games." Appellant laughed and said, "I can't believe you're finally noticing it. You think you're all good now just [because] you're gonna [sic] be a fourth grader, huh?" When appellant tried to kiss her, she threatened to scream, and appellant said, "No, you can't do that. You know how much trouble I'll get in?" Appellant asked Victim 1 if she was going to report what happened, and she promised not to say anything if he promised not to play these games with her sisters. Appellant promised to stop.
B. Victim 2's forensic interview.
Victim 2 was 11 years old when her interview occurred. She told the interviewer she had informed her mother about what had happened to her, and her mother had disclosed to her privately that Victim 1 had gone through it too. Victim 2 denied ever talking to Victim 1 about her experience with appellant. She said she never saw what happened to Victim 1.
Victim 2 confirmed that appellant was her cousin. She said he had touched her inappropriately. The first incident occurred at her grandmother's old house in the country. Victim 2 played spin the bottle with appellant. Victim 1 and the victims' half brother also participated in the game. Victim 2 believed she was in preschool when this occurred. The kids sat in a circle and appellant spun the bottle. They were supposed to kiss each other, but Victim 2 did not want to play because she did not want to kiss her cousin, sister or half brother.
Victim 2 recalled that her grandmother moved to a new house. She remembered an incident there when she was in the living room with her oldest sister, her half brother, and Victim 1. Appellant was playing Xbox. Some of the children left the room but either Victim 1 or her half brother remained. Victim 2 asked appellant if she could play the videogame, and he said no. A couple seconds later, he said she could play if she touched his "private parts." Appellant was sitting with a blanket over him. He pulled his pants down a little bit under the blanket. She touched his private part with her hand under the blanket, moving her hand "up and down." She said his private felt like "a skinny hand." He grabbed her hand and moved it up and down slowly. She believed he went slowly so that her half brother or sister would not know what he was doing. She could not remember if everyone left the room or not. If she stopped moving her hand, he would take back the game controller until she started touching him again. While touching him, she played the video game with her other hand. She believed she stopped touching appellant when her grandmother said it was lunchtime. Victim 2 believed she was in kindergarten when this happened, and she was about five years old.
Based on the age Victim 2 reported, appellant would have been approximately 11 years old.
Victim 2 discussed another incident when she was alone with appellant in his bedroom. She believed she was in kindergarten at the time. Appellant told her, "Get in front of me," and she said, "Okay." He pulled down her pants and her underwear. According to Victim 2, he put "his thing" in her "butt." He pushed her really hard and his hands were on her shoulders. She was standing and she fell against a wall. Victim 2 pulled up her pants fast when her mother came into the room. Her mother asked what had happened and whether they were okay. Appellant said, "Yeah. Um, [Victim 2] just tripped when she was dancing." Victim 2 told the interviewer her butt hurt later and it felt like she was constipated. It hurt to sit down. At the time of the interview, she could not remember if appellant's "thing" had felt hard or soft.
Victim 2 recalled an incident where she was walking a dog with appellant on a grassy area. He kissed her on her lips. She told him he was disgusting and he kissed her again. She said she wanted to go home. They walked home. She believed she was five years old at the time.
Victim 2 said appellant spent the night at her house. She was in first grade and either seven or eight years old. Apparently early in the morning when everyone was asleep, appellant would find Victim 2 and bring her to the living room. He played "rock, paper, scissors" with her. Every time she lost he would touch her. He told her she could touch him when he lost. He would touch her chest. He also touched her "private area" over her clothing with his hand. Victim 2 recalled that her grandfather was walking back and forth to the bathroom and, every time her grandfather came out, appellant would hurry and sit down on the couch and watch TV. When appellant lost, she first touched his chest. He then told her to touch his "private part." She touched it over his clothes and then she touched his chest again.
If Victim 2 was seven years old when this incident occurred, appellant would have been approximately 13 years old.
This man had married the grandmother, and he was not biologically related to Victim 2.
On another occasion, appellant entered her room at night, but she said she did not want to do anything with him because she believed it was a sin. He grabbed her butt inside her clothes with his hands. He grabbed her hard and said, "Is this a sin?" She said, "Yes," and she went into the living room. She fell asleep there. She could not remember if this happened during her second time in kindergarten or in first grade.
Victim 2 had repeated kindergarten.
Victim 2 recounted a time when appellant put his private inside her private part. They were lying down on a couch and playing a game called I Spy. She would guess answers and he would touch her. She could not remember if this incident occurred at her grandmother's residence or her house. It hurt when appellant put his penis inside her, and she told him to stop. He asked if he could do it in her butt. She said, "Just don't hurt me." He told her to get on her hands and knees. He "put it in [her] butt" while he stood on his knees. Victim 2 told the interviewer that this second time hurt again. The next day, she had something in her underwear and it looked like she had "crapped [her] pants." Her mom saw this stain, and she took off Victim 2's underwear and threw it in a bath. Victim 2 believed she was in kindergarten when this happened, but she could not remember if it was the first or second year of kindergarten.
At one point, Victim 2 implied that appellant put his private inside her private every time he came over to her house and sometimes when she went to her grandmother's house. When asked if appellant put his private inside her private more or less than five times, she could not remember.
Victim 2 said appellant put his private inside her mouth. The first time she did it, she bit his private part on accident and he pulled her hair. They were in her living room. She saw that appellant had "hair down there," and she asked him about it. He told her, "When you're older, boys and girls get hair down there." She recalled that appellant pushed her head on his private part using his hands. She was sitting down and he was standing up. She could not remember if appellant's private part was moving or not. She believed she was in either kindergarten or first grade when this happened.
Victim 2 stated that appellant did not do anything with her when she was in second or third grade. She did not know why he stopped, but she recalled he had a girlfriend at that time.
In the second and third grades, Victim 2 was approximately eight and nine years old, respectively. At that time, appellant was approximately 14 and 15 years old.
III. Appellant Is Arrested And He Is Interviewed By Detectives.
On May 23, 2018, Ressler obtained a warrant for appellant's arrest, and appellant was arrested on June 11, 2018. Ressler had planned on arresting appellant sooner, but he was unable to locate him for a time.
On June 12, 2018, Ressler and another detective interviewed appellant at the Juvenile Justice Center. During the interview, appellant said he had resided with his grandmother for about 10 years. He had last lived with his grandmother about five or six years before. She had been his guardian for a while.
Appellant said he had grown up with Victim 1 and Victim 2. He admitted he had played "house" with Victim 1. According to appellant, he had been between eight and 10 years old when he played with Victim 1. At some point when playing, they would touch each other. They hugged, kissed and rubbed each other. They played this game at the grandmother's house. Their touching started out over clothing and it progressed. Nobody told them it was wrong. He would touch Victim 1's vagina and she would touch his penis. They would touch each other both over and under clothing.
According to appellant, Victim 1 one day said, "Let's do what husbands and wives do." She told him to pull down his pants. She had him lie on top of her. She directed him to move his body up and down. They were both wearing clothes. He denied ever putting his penis inside Victim 1.
Appellant said he and Victim 1 continued to play house together after that. They would rub each other while wearing underwear. He claimed that Victim 2 and the victims' older sister were present sometimes when he played with Victim 1 in this manner.
Appellant admitted Victim 1 had masturbated him on occasion, and he was erect when it occurred. He denied ever ejaculating. He admitted she had put her mouth on his penis one time. According to appellant, it was Victim 1 who pulled down his underwear and she went down and kissed his penis. She asked if he liked it and he said, "Yeah." She continued kissing it. He denied ever kissing her vagina.
Appellant initially said he played house one time with Victim 2. They kissed and rubbed each other's butts. She rubbed his penis over his clothes. A short time later in his interview, appellant suggested he had played house more than once with Victim 2, but they only gave each other "little kisses" at times. He denied ever touching Victim 2's vagina.
Appellant claimed he was seven or eight years old when he started playing house, and he was in the first grade. He said this behavior continued until he was 11 years old. He said this behavior stopped for no particular reason. He estimated he had touched and kissed Victim 1 about 20 times. He believed he was with Victim 2 only two times. He believed Victim 1 had told Victim 2 about some of the things he had done with Victim 1. He said he had first played house with the victims' older sister, who was about his same age. The older sister would dress appellant up in dresses and put makeup on him. He said no touching or kissing had occurred with the older sister.
Under appellant's timeline, Victim 1 would have been three or four years old when he started playing house, and Victim 2 would have been one or two years old. Victim 1 would have been seven years old when they stopped playing, and Victim 2 would have been five years old.
Appellant recalled playing hide and seek with the girls, but he denied anything ever happened during that game. When pressed, he said "I don't know" if he had touched the girls on their private parts while playing this game. He denied playing rock, paper, scissors. He recalled the grandmother had garbage cans on the side of one residence, but he could not remember doing anything in that area. He did not recall Victim 2 touching him while playing Xbox. He did not remember an incident where Victim 2 bit his penis.
Appellant told the detectives that 50 percent of what happened was because of the girls and what they showed him. He agreed with the suggestion it was the girls who had initiated the events. He denied ever penetrating the victims' vaginas with his penis, and he denied they ever said something had hurt.
Appellant said he was about 12 years old when he first realized that what had happened was wrong. Before that, he had not known their sexual activity was improper. He told the detectives he was 12 years old when he had received sex education at school. At that time, he had learned his prior actions with his cousins had been inappropriate.
Appellant told the detectives that, at some point during his adolescence, he had watched pornography on the television in his living room. He had been asleep and he woke up. The show was playing in the middle of the night. He saw girls on the television "dancing and fucking" and they were naked.
When pressed why the incidents with his cousins had occurred, appellant said he had been molested in fifth grade by an adult at school. Appellant said he could not remember this person's name. This had occurred in a "Saturday class" when he was on detention, which occurred often during the school year. This man would rub and touch appellant on his buttocks and penis. It was usually over appellant's clothing, but the man touched him once under his clothing.
Appellant agreed that the incidents with the man at school happened when he was about 11 years old, which was around the time he claimed to have stopped playing house with his cousins.
Ressler told appellant that he did not believe appellant's timeline of events. Ressler stated that the girls had provided specific details involving their ages and grade levels. Ressler believed appellant had been older than what he was saying. Ressler asked if the incidents with appellant's cousins stopped because Victim 1 told him to stop it. Appellant denied that Victim 1 had confronted him in their grandmother's garage. Appellant said the "serious" incidents with his cousins started when he was in fourth grade. It lasted that year and maybe during fifth grade. He denied ever trying to push his penis inside his cousins' anuses. He reiterated that he had not done anything with his cousins knowing it was wrong at the time. He claimed he could not ejaculate until he was 13 years old.
IV. The Testimony From The Juvenile Hearing.
We summarize the material testimony from the August 2018 hearing.
A. The testimony from the victims' mother.
The victims' mother testified that appellant is her nephew. At the time of the mother's testimony, Victim 1 was in the eighth grade. Victim 1 had started preschool at four years of age and then she went to kindergarten. Victim 1, however, repeated second grade after undergoing appendix surgery. At the time of this testimony, Victim 2 was in the sixth grade. The mother confirmed Victim 2 had repeated kindergarten.
In 2011, the mother worked full time and she relied on the victims' paternal grandmother to babysit them. The kids were at the grandmother's house about four or five days a week.
The mother testified that prior to 2011 the grandmother watched the victims "off and on."
In 2011, Victim 1 was seven years old and Victim 2 was five years old. The mother confirmed that defense exhibit B was a photograph that depicted the grandmother's house in 2011. The mother could not remember where this house was located, but it was in or around Selma or Sanger. Appellant lived with the grandmother at that time, and appellant's two older brothers also lived with the grandmother. The mother recalled the grandmother's residence had three bedrooms.
In or around 2012, the mother suffered a back injury at work. The grandmother continued to watch the children, and appellant continued to reside with the grandmother. In 2013, the mother went back to school. Appellant continued to live with the grandmother and the grandmother continued to watch the children. At times, however, appellant would spend the night at the mother's residence. When appellant slept over at the mother's residence, he would sleep in the living room. Sometimes, however, he would sleep in the bedroom belonging to the victims and their older sister. At times the girls would sleep in the same bedroom with appellant, but at other times the victims would sleep with the mother.
The mother first learned about allegations of appellant inappropriately touching Victim 1 when a school counselor called her. The mother called police. That same night, Victim 2 disclosed to her mother that appellant had also touched her inappropriately. The mother and Victim 2 were alone when this conversation occurred. The mother testified that she never saw appellant touch the girls inappropriately. The mother could not remember when the grandmother stopped watching the victims. She believed Victim 1 was in the fifth grade when she stopped going to her grandmother's house.
B. Victim 1's testimony.
Victim 1 was in the eighth grade and 14 years old when she testified. She identified defense exhibit B as a photograph of the residence where her grandmother babysat her when Victim 1 was seven years old. She recalled that this house had three bedrooms. This house had been in the country. Victim 1 believed she had been in the first grade when she was seven years old. She could not remember when she first went to the country house depicted in defense exhibit B.
Victim 1 said that the year before her testimony, and when she was in the seventh grade, appellant had hugged her and he had pressed against her with his "private." She tried to back away and he pulled her tighter. Prior to this hug, they had not seen each other for a while. This incident left her feeling anxious, which prompted her to talk to a school counselor.
Victim 1 testified that appellant began to touch her inappropriately when she was around seven years old. She recalled that she had repeated second grade, and she believed she had been eight and nine years old during her two stints in second grade.
Victim 1 recalled that appellant first touched her inappropriately during a game of hide and seek. She claimed he had touched her inappropriately every time they had played hide and seek. When they played hide and seek with other children, appellant would find Victim 1 and touch her over her clothing. When they played that game alone, he would find her and touch her under her clothing. She stated that, when she played hide and seek with appellant alone, he would tell her it was a secret game between them. She did not remember if he ever told her not to tell anyone.
When the first incident occurred, appellant told Victim 1 to "go hide [in] a certain place" and he would find her and touch her. She hid in a closet. He entered the closet and touched her "private area" with his hand. He told her to wait there and act like she had not been found. He would find the other children and he would be "it" again. Victim 1 recalled nobody was around when appellant would touch her inappropriately.
When she was eight years old, Victim 1 recalled that her grandmother moved to a new house. She identified defense exhibit A as the new residence. Victim 1 believed she had been nine years old when her grandmother babysat her at this home. Victim 1 recalled that this residence had three bedrooms. At this second home, appellant played hide and seek with her without any other children participating in the game. He would find her, and touch and rub her private area outside her clothes. He made her find him and he made her touch his "private."
According to Victim 1's timeline, the grandmother would have moved in or around the second half of 2012 or the first half of 2013.
Victim 1 testified that when appellant had touched her she had not realized it was wrong or bad. She thought it was okay because he was older and a family member. When she got older, she realized it had been inappropriate.
Victim 1 recalled an incident at the second house near garbage cans. He told her to "follow me to a good hiding spot." Appellant would touch her and he made her touch his private area. Appellant moved her hand over him and he moaned. Nobody was around and the garbage cans hid them somewhat. During her testimony, she denied remembering anything coming out when he made her touch his private.
Victim 1 testified appellant had her orally copulate him more than once in the grandmother's second house. She denied he physically forced her head down to him. Instead, he asked her to do it, saying "it will be okay." While testifying, she did not remember if anything came out of his penis into her mouth. She could not remember how many times she put her mouth on his penis.
Victim 1 said appellant put his finger inside her vagina on one occasion, but she could not remember in which house that had occurred. When asked if she ever told appellant to stop, she said, "I didn't think it was bad."
Victim 1 recalled she told appellant to stop while they were in the grandmother's garage in the house depicted in defense exhibit A. She told appellant she would tell the grandmother or his father if he did not stop touching her. She told him he could not touch her sisters. He said, "[O]kay, I won't." She agreed appellant stopped touching her after this conversation. When testifying, she could not remember if appellant told her something like, "I can't believe you finally noticed it[.]" She also could not remember if appellant said, "[Y]ou think you're all good now because you're going to be in fourth grade?"
On cross-examination, Victim 1 confirmed she had referred to her vagina when she had discussed her private part and she had meant appellant's penis when she had discussed his private. She never saw appellant inappropriately touch Victim 2 or their older sister.
C. Victim 2's testimony.
Victim 2 was 12 years old and in sixth grade when she testified. She confirmed she had attended kindergarten twice. She identified the house depicted in defense exhibit B as the first residence she recalled going to the grandmother's house. This was referred to as the "country house" during her testimony. She believed she was in kindergarten when she started going to her grandmother's house. However, she also believed her grandmother had babysat her at the house depicted in defense exhibit A. This second house was referred to as the "white house" during her testimony. Victim 2 testified she remembered appellant first touching her vagina at the white house. She believed appellant touched her vagina when she was in kindergarten and in first grade. She testified he did not touch her when she was in second grade.
Victim 2 said she had played spin the bottle with appellant and Victim 1 in the country house. It was appellant who spun the bottle. Victim 2 did not want to play the game. She believed she was in preschool when this occurred.
Victim 2 remembered she had touched appellant during an Xbox game at the white house. During this incident, she touched his penis under his clothes. Appellant was under a blanket at the time. She had to touch his "thing" in order to play the Xbox. He took her hand and he placed it on his penis. When she stopped touching him, he would take away the controller. She felt "hair" when touching his penis. Her half brother was present in the room during the Xbox incident. She said she did not walk away because she wanted to play the Xbox and she did not think it was wrong at the time. She could not recall her age when the Xbox incident occurred.
Victim 2 recalled an incident where appellant took her into a room across from appellant's room. This was at the white house. He put his private part "inside" her butt. During this incident, she fell and her mother came into the room. Appellant told her mother that Victim 2 had fallen. Her mother left. Victim 2 testified that this incident hurt. She could not remember her grade level when this incident occurred. She testified it was appellant who usually pulled down her underwear.
At her mother's residence, Victim 2 remembered playing rock, paper, scissors with appellant. They played alone. She at first could not remember her grade level or her age when they played this game. She later testified this occurred when she was in kindergarten the second time. During this game, appellant touched her private part using his hand outside her clothes. When she lost the game she had to touch his private part. She testified that while they played this game, her grandfather came out to use the bathroom and appellant "ran back to the couch." Appellant continued to touch her after the grandfather left.
At the hearing, the mother testified her father had resided with her at her apartment. According to the mother, the victims' maternal grandfather slept in the living room. Victim 2 testified that her maternal grandfather lived with them at the mother's residence starting when she was in kindergarten. He moved out when Victim 2 was in fifth grade.
When she was in first grade, Victim 2 remembered an incident where her mother took Victim 1 to a doctor's appointment. Victim 2 was with appellant in the living room of her apartment. The older sister was home but in her bedroom. Appellant touched her private part with his hand over her clothes.
During her testimony, Victim 2 confirmed she had never previously disclosed this incident. She testified she had remembered this incident during her forensic interview but she had not said anything about it.
Victim 2 testified that she played I Spy with appellant, and he would touch her with his hand inside her clothing. This occurred when appellant slept over at her residence.
Victim 2 recalled that, at some point, appellant put his private inside her private. He wanted to put his penis inside her butt but she said no. According to Victim 2, appellant did it anyway and he put his penis in her butt. The next day, she saw something brown in her underwear. When testifying, she believed she was in kindergarten when this incident occurred, but she could not remember her age. She recalled that this happened in the living room at her mother's residence. It was nighttime and everyone was asleep.
Victim 2 testified that she put her mouth on appellant's penis and she accidentally bit him. She could not recall if appellant's entire penis was inside her mouth, but she denied "kissing it." This occurred at her mother's residence when "[e]veryone" was home. She was with appellant on the couch at night. She could not remember her grade level when this happened. This incident was a different time than when appellant put his penis inside her vagina.
D. Ressler's testimony.
Ressler expressed his belief that, during his police interview, appellant's time frame of events with his cousins had changed. According to Ressler, appellant originally stated the inappropriate touchings happened when appellant was in first grade. Later, appellant said the "serious stuff occurred at the end of fourth grade.
E. The testimony of the defense psychologist.
The defense called Harold Lee Seymour, a licensed psychologist. Seymour has specific experience in the area of adolescent development. His experience includes working with minors aged 10 to 14 who had acted out sexually. Seymour opined that, generally speaking, the younger a child is, the less likely an adolescent will be aware that acting out sexually is wrong.
Seymour testified that boys are typically a year to a year and a half behind girls when it comes to the start of puberty. With puberty, adolescents develop "secondary sexual characteristics" which include an interest in sexual activity. Seymour explained that the ability to ejaculate is rare in a male at 11 years old, and this typically begins at 12 or 13 years of age. Children do not know instinctively that certain sexual behaviors are wrong; this has to be taught. Our bodies are "hard wired" for certain parts to feel good when touched.
Seymour opined that a boy between the ages of eight and 13 could engage in sexual behavior with his younger female cousins and not appreciate that anything was wrong with that behavior. Seymour explained that a person does not obtain "formal operational thinking" until the ages of 14 or 15. This "is the capacity to see things from the perspective of another person." An immature boy may not recognize that something is uncomfortable or unpleasant for another person. A boy who has not learned appropriate sexual boundaries will not appreciate a distinction in harm between different acts, such as touching over clothing or putting a finger in a vagina. Children have a natural progression of curiosity.
Seymour noted that predatory sexual behavior involves extensive periods of grooming. Such a characteristic is generally not seen in someone until well into adolescence because it requires a level of sophistication. Seymour agreed there is a difference in children between trouble avoidance and concealment. Kids are only able to see how things impact them. They try to avoid getting into trouble. In addition, children must be taught the concept of privacy.
Seymour explained that memory is a process of reconstruction. The younger a person is, the harder it is for them to produce memories that are consistent with what happened. In such instances, confabulation often occurs. Erroneous information is used to fill in memory gaps. Every time we reproduce a memory, we are reconstructing it and the memory can become altered over time.
According to Seymour, when someone reports something to law enforcement and there is a lack of follow up for four to six months, memories may not be accurate. There is a risk of confabulation because the children could have talked to other people, which may increase inaccurate memories. In addition, there is a concern with general inconsistencies, which is more problematic with children.
Seymour reviewed Victim 1's and Victim 2's forensic interviews, and he personally interviewed appellant. He was not surprised to see inconsistencies among the various statements. He did not believe any of the children were lying, but they were also likely not completely accurate regarding their respective memory of events.
It was Seymour's understanding that appellant was born in July 2000. Appellant told Seymour he had participated in a sex education class in sixth grade. At that time, appellant had learned his sexual behavior with his cousins was wrong. Seymour calculated that appellant was approximately 12 years of age when he was in sixth grade. Seymour opined that if appellant continued to molest Victim 1 after this class, he knew the wrongfulness of his behavior.
Seymour explained a delay in reporting inappropriate touching is common, particularly in younger children. He noted Victim 1 had stated during her forensic interview that she told appellant to stop the touchings. Seymour had asked appellant about this, but appellant had not recalled that conversation with Victim 1. Seymour was not surprised that Victim 1 was triggered by hugging appellant years after the sexual acts occurred. He noted our strongest memories are not associated with what we see or hear, but with what we feel or smell.
F. The grandmother's testimony.
The victims' and appellant's grandmother testified for the defense. From 2003 to 2007, she had lived in the residence depicted in defense exhibit D. She then moved to the residence depicted in defense exhibit B. This was located in Selma. She lived there from 2007 to either 2008 or 2009. She could not remember when she moved to a third house, but it was either in 2008 or 2009. The third house was depicted in defense exhibit A. She lived there until 2017.
The grandmother believed appellant began living with her when he was five years old. She was his guardian for a time. She never saw appellant touching the girls, and the children never said anything to her. She claimed she was always with the children watching them when they were at her home. She said she taught appellant right from wrong, and she taught him about touching people inappropriately. This conversation occurred before he was 10 years old. The grandmother also spoke with the victims about inappropriate touchings. However, she could not recall the victims' ages when this conversation occurred.
G. The testimony of appellant's older brother.
Appellant's oldest brother testified on his behalf. The brother was 23 years old at the time he testified. He confirmed that appellant was 18 years old at that time.
For a time, the older brother had lived with appellant (and with a third brother) in the home of their paternal grandmother. According to the brother, defense exhibit D depicted the grandmother's house where he and his two brothers had lived. This house had two bedrooms, and their grandmother had lived there with her boyfriend, whom she eventually married.
The older brother denied ever watching sexually explicit videos with appellant, and he never saw appellant watching such material. When the older brother was nine years old, his father had talked to him about "good touches" and "bad touches." When the older brother was 20 years old and appellant 13 years old, the older brother had spoken with appellant about how to act with girls and how to not get a girl pregnant. The older brother and appellant essentially had the same upbringing, except their father was around more when the older brother was young. The older brother had periodically seen the victims and their older sister at his grandmother's house. The girls generally dictated the games they played. The older brother never saw appellant and the girls play hide and seek.
DISCUSSION
I. The Juvenile Court Did Not Abuse Its Discretion And Did Not Violate Appellant's Due Process Rights When Finding Appellant Knew His Conduct Was Wrongful.
Appellant contends the juvenile court abused its discretion and violated his rights to due process when finding appellant knew his conduct was wrongful at the time it was committed.
A. Background.
At the close of the prosecution's evidence, appellant brought a motion to dismiss the allegations. According to appellant's counsel, it was impossible to establish appellant's intent or capacity. At the oldest, appellant was just turning 13 years of age when the last inappropriate acts occurred, and he was probably younger for a majority of the conduct. During his statements to detectives, appellant consistently denied knowledge of wrongdoing at the time of his acts. When he realized his actions had been inappropriate, appellant had felt bad.
A juvenile court may dismiss a petition and discharge a minor from any detention or restriction after the petitioner presents its evidence if the court determines the minor is not a ward of the court under Welfare and Institutions Code sections 601 or 602. (Welf. & Inst. Code, § 701.1.)
After hearing the various arguments, the juvenile court noted a presumption existed regarding appellant's lack of capacity because he was younger than 14 years of age when the alleged acts had occurred. The court commented "some significant inconsistencies" existed in the evidence regarding "a variety of issues." The court stated it had taken into consideration the victims' ages, their demeanors while testifying, and their forensic interviews. The court determined sufficient circumstantial evidence supported the prosecution's burden regarding appellant's capacity "and his awareness" regarding the wrongfulness at the time the acts occurred. The court denied appellant's motion.
The juvenile court did not explain what circumstantial evidence supported its findings.
B. Standard of review.
A substantial evidence standard is used to review a juvenile court's ruling that a minor understood the wrongfulness of his or her actions. (In re Joseph H. (2015) 237 Cal.App.4th 517, 538.) "We review the entire record in the light most favorable to the judgment and affirm the trial court's findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (Ibid.)
C. Analysis.
Appellant raises numerous arguments in asserting the juvenile court abused its discretion. He contends the victims' testimony lacked credibility, especially regarding their ages in relationship to when the inappropriate touchings occurred. He sets forth a number of concerns regarding the victims' testimony, especially Victim 2's version of events. He disputes whether the victims could accurately recall events. He asserts the victims' forensic interviews cannot be considered substantial evidence because they were not sworn testimony.
Appellant contends the grandmother's testimony is critical to determining the children's ages at the time the alleged events occurred. He notes the two victims used the grandmother's various homes as reference points.
If the inappropriate touchings started in 2011, Victim 1 would have been seven years old, Victim 2 would have been five years old, and appellant would have been 11 years old. If the inappropriate touchings continued until 2013, Victim 1 would have been nine years old and in the third grade, Victim 2 would have been seven years old and in first grade, and appellant would have been 13 years old.
Some of Victim 1's assumptions while testifying regarding her age appear incorrect. It is undisputed that Victim 1 repeated second grade. During her testimony, Victim 1 believed she had been eight and nine years old when she completed her two years of second grade. She believed she was 10 years old when she started third grade. Because she was 14 years old and in the eighth grade at the time of her testimony in this matter in August 2018, it appears Victim 1 was actually six years old when she started first grade in 2010, and she was seven and eight years old during her two years of second grade in 2011 and 2012.
The mother testified that in 2011 the grandmother was residing at the residence depicted in defense exhibit B. The grandmother, however, testified that she lived in this residence starting in 2007. She stated she moved from this residence to the residence depicted in defense exhibit A in either 2008 or 2009. She remained in this second residence until 2017. Under the grandmother's recollection, and if appellant's inappropriate touchings of Victim 1 started at the residence depicted in defense exhibit B, Victim 1 would have been between three and five years old. At that point, Victim 2 would have been between one and three years old. Under this timeline, appellant would have been only seven to nine years old when the touchings began, and he would have been well under 13 years of age when the inappropriate behavior stopped.
Based on the grandmother's testimony, appellant argues he and the victims were much younger than what the victims had claimed. He asserts the victims' testimony was flawed regarding when the events occurred, and, instead, the grandmother's testimony sets the correct timeline. He insists the inappropriate touchings occurred before he turned 13 years old. He maintains the grandmother's testimony demonstrates the prosecution's timeline of alleged events (January 1, 2011 through December 31, 2013) had not been established by clear and convincing evidence. He claims that reliance on the victims' testimony and their forensic interviews "produced an erroneous conclusion by both respondent and the juvenile court." Appellant also argues that, based on Seymour's testimony, he could not have appreciated the wrongfulness of his sexual conduct because he had, at most, just turned 13 years old when the conduct ended.
Appellant devotes considerable briefing attempting to refute or discredit some of the prosecutor's arguments made below. First, appellant contends that, although he may have understood his conduct was wrong when he was interviewed by the detectives, his understanding at the time of his interview cannot be used to establish his capacity when he committed the acts. He also argues his attempts to minimize his conduct during his police interview cannot be used to establish his prior knowledge.
In his opening brief, appellant provided a relatively lengthy summary of both the prosecutor's and his counsel's arguments from the hearing below. We need not summarize those relatively lengthy arguments. Instead, our task is to review the record for substantial evidence in support of the juvenile court's ruling. (In re Joseph H., supra, 237 Cal.App.4th at p. 538.)
Second, appellant argues even if he had reached puberty that does not necessarily establish he knew his conduct was wrong. He notes some of the evidence suggesting he had reached puberty came from the unsworn forensic interviews.
Finally, appellant maintains there is insufficient evidence he tried to avoid detection. He disputes any assertion he committed his acts in isolated areas. He notes the grandmother testified she was "always" with the children when they were playing, and other adults were present in the various residences. He claims he did not take extraordinary precautions to conceal his activities. He states he "simply took advantage of an opportunity whenever it arose, such as in games of 'hide and seek.' " He asserts the prosecution failed to present clear and convincing evidence that he appreciated the wrongfulness of his conduct at the time he committed the acts, and respondent failed to convincingly rebut the presumption afforded him under section 26.
We reject appellant's numerous arguments. Despite the conflict regarding when and where the inappropriate touchings began, substantial evidence supports the juvenile court's finding that appellant knew the wrongfulness of his conduct at the time the offenses were committed.
1. An overview of section 26.
Section 26 creates a rebuttable presumption that a minor under the age of 14 is incapable of committing a crime. (§ 26, subd. One; In re Manuel L., supra, 7 Cal.4th at p. 231.) To defeat the presumption in a petition under Welfare and Institutions Code section 602, "the People must prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed." (In re Manuel L., supra, 7 Cal.4th at p. 232.)
The Supreme Court has distinguished between the capacity determination under section 26, and the prosecution's separate burden to prove each element of the crime beyond a reasonable doubt. (People v. Cottone (2013) 57 Cal.4th 269, 280-281.) A juvenile's capacity to commit a crime is not an element of the charged offenses. (In re Manuel L., supra, 7 Cal.4th at p. 236.) "Rather, the presumption of incapacity operates to exempt the minor from legal responsibility." (People v. Cottone, supra, 57 Cal.4th at p. 281.) A finding of capacity is a prerequisite before a minor under the age of 14 years may be deemed a ward of the juvenile court. (In re R.V. (2015) 61 Cal.4th 181, 197; People v. Cottone, supra, 57 Cal.4th at p. 280.)
A minor's knowledge of wrongfulness may not be inferred from the commission of the act itself. (People v. Lewis (2001) 26 Cal.4th 334, 378.) However, a reviewing court may consider the crime's related circumstances, such as preparation, the method of its commission, and any concealment. (Ibid.) In addition, a minor's age, experience, conduct and knowledge may demonstrate a capacity to commit the charged crimes. (In re Manuel L., supra, 7 Cal.4th at p. 232.) It is reasonable to expect that minors are more likely to appreciate the wrongfulness of their acts as they approach 14 years of age. (People v. Lewis, supra, 26 Cal.4th at p. 378.)
2. We reject appellant's suggestion we cannot rely on the victims' testimony or their prehearing statements.
As an initial matter, we address appellant's general argument the victims' testimony, especially that from Victim 2, lacks credibility and is insufficient to support the juvenile court's findings. He claims the victims' recollections "simply cannot be correct" when the grandmother's testimony is examined. Appellant also notes confabulation may have impacted the victims' memories.
Appellant repeatedly asserts confabulation may have occurred with the victims. Victim 2 testified that, prior to disclosing the inappropriate touchings to her mother, she had talked to a girlfriend about some of appellant's conduct. After disclosing the touchings to her mother, Victim 2 discussed with the same girlfriend more of appellant's actions. Victim 2 also discussed some of the incidents with another girlfriend and also with an adult whom Victim 2 described as her mother's "ex-best friend[.]"
We disagree it is appropriate to disregard the victims' testimony or their prehearing statements while we conduct our appellate review. Although inherently improbable testimony may be rejected on appeal, the victims' testimony and prehearing statements were not inherently improbable. (See People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Ontiveros (1975) 46 Cal.App.3d 110, 117.) Although a conflict in the evidence occurred, the juvenile court resolved that conflict against appellant, and we will not reweigh the disputed testimony or resolve the evidentiary conflicts. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)
Further, we reject appellant's claim the victims' prehearing statements lack evidentiary value. To the contrary, these statements were generally consistent with the victims' sworn testimony. When combined with their testimony, the victims' prehearing statements are significant and they tend to prove or disprove disputed facts, including credibility. (Evid. Code, § 210.) The juvenile court indicated it had reviewed the victims' forensic interviews and used them in making its credibility determinations. Under these circumstances, we will not disregard the victims' prehearing statements. In any event, our task is to search the entire record for evidence in support of the juvenile court's finding, and we do not reweigh the credibility of such evidence. (In re Alexis E., supra, 171 Cal.App.4th at pp. 450-451.)
3. The victims' testimony and their prehearing statements represent substantial evidence supporting the juvenile court's order.
The prosecution alleged that appellant's sexual abuse of Victim 1 and Victim 2 occurred between January 1, 2011, through December 31, 2013.
During her forensic interview, Victim 1 stated appellant had touched her more than 10 times when she was younger. They would play "hide and seek" and he would tell her, "Don't tell anyone. It's okay." He would pull down his pants and make her "do stuff to him." Victim 1 said appellant would then pull down her pants "and he'd pinch my kitty." He said, "It's just a game. We don't have to tell anyone our little game ...." Victim 1 testified appellant generally touched her when they played hide and seek and they were alone and behind a closed door, such as a closet. On one occasion near some garbage cans at the residence in defense exhibit A, appellant touched Victim 1's vagina and he made her touch his penis. He moved her hand over his penis and he moaned. When he led her to those garbage cans, he told her to follow him "to a good hiding spot."
During her testimony, Victim 1 did not remember telling the interviewer that appellant had pinched her kitty. She denied ever referring to her vagina as a kitty.
Victim 1 told the forensic interviewer that on one occasion appellant put his finger inside her vagina, which caused a sharp pain. Appellant said, "Would you want to have that happen to your sister?" Victim 1 said no, and appellant said, "Okay, good."
Victim 1 told the interviewer she was in her grandmother's garage with appellant when he pulled down his pants and he started touching himself. She told him to pull up his pants, which he did. He started to kiss her, and she pushed him away. She told him she was going to tell their grandmother and his father if he kept doing this. According to Victim 1, appellant said, "Are you serious you're gonna [sic] snitch?" She said she knew "this is bad" and "you took advantage of me and you told me we were just playing games." Appellant laughed and said, "I can't believe you're finally noticing it. You think you're all good now just [because] you're gonna [sic] to be a fourth grader, huh?" When appellant tried to kiss her again, she threatened to scream, and appellant said, "No, you can't do that. You know how much trouble I'll get in?" Appellant asked Victim 1 if she was going to report what happened, and she promised not to say anything if he promised not to play these games with her sisters. Appellant promised to stop.
Victim 2 testified that on one particular occasion she was playing rock, paper, scissors with appellant. He was touching her private part with his hand outside her clothes. If she lost, she had to touch his private part. The grandmother's husband came into the room and appellant "ran back to the couch." After the husband left the room, appellant returned to Victim 2 and continued to touch her inappropriately. During her forensic interview, Victim 2 made similar statements and she made it clear appellant stopped touching her inappropriately when the adult came into the room. She was in first grade and either seven or eight years old when this occurred.
If Victim 2 was seven years old when this incident occurred, appellant would have been approximately 13 years old.
On another occasion, Victim 2 testified she fell against a wall after appellant put his private part inside her butt. Her mother came into the room and it was appellant who explained that Victim 2 had fallen. Her mother left the room. During her forensic interview, Victim 2 said that, after she fell and her mother came into the room, appellant told her mother Victim 2 had "tripped when she was dancing."
The evidence in favor of the judgment demonstrates it was appellant who initiated the inappropriate incidents, and he often directed the victims to isolated areas before he touched them. The reasonable inferences drawn from the evidence show appellant tried to hide his activity from the adults in the various residences, and he tried to conceal his behavior. Indeed, appellant stopped touching Victim 2 when an adult entered the room, but he resumed touching her when the adult left. Appellant also provided a lie to the mother after Victim 2 fell and the mother came to investigate. When speaking with Victim 1, appellant made statements that strongly suggested he knew his conduct had been inappropriate. The victims' testimony and their prehearing statements overwhelmingly establish appellant knew the wrongfulness of his conduct at the time these offenses were committed.
In addition, the evidence strongly suggests appellant was older than he now claims when he continued to touch the victims inappropriately. The evidence also strongly suggests he had reached puberty. During her forensic interview, Victim 1 said she was nine years old and in third grade when appellant started making her "do stuff" to him. She testified when appellant took her to garbage cans outside the house depicted in defense exhibit A, he touched her and he made her touch his penis. She testified appellant moved her hand and he moaned. While testifying, she denied anything came out when she touched appellant. During her forensic interview, however, Victim 1 stated "stuff" came out when she touched appellant's penis near the garbage cans. She also said during her interview appellant made "moaning noises" when she touched him.
Based on her age Victim 1 reported, appellant would have been approximately 13 years old. During her interview, Victim 1 stated she had repeated second grade, which made her nine years old when she was in third grade.
Further, during her testimony, Victim 1 said she had orally copulated appellant more than once at the grandmother's house depicted in defense exhibit A. She could not remember if anything came out while she copulated him. During her forensic interview, however, Victim 1 reported appellant made her "suck" his private while she was on her knees. On one occasion, "white stuff came in [her] mouth" and he told her to spit it out. On other occasions, he would put his white stuff on the concrete and water it down. He would moan while she sucked him.
Victim 2 testified she felt hair when she touched appellant during the Xbox incident. During her forensic interview, Victim 2 said appellant put his private inside her mouth. The first time she did it, she bit him on accident and he pulled her hair. They were in her living room. She saw appellant had "hair down there," and she asked him about it. He told her, "When you're older, boys and girls get hair down there."
During his police interview, appellant denied ejaculating with Victim 1. He claimed he could not ejaculate until he was 13 years old. However, he admitted Victim 1 had masturbated him on occasion, and he was erect when it occurred.
When viewed in the light most favorable to the juvenile court's ruling, compelling evidence demonstrates appellant was 13 years old and he had reached puberty while he continued to touch the victims inappropriately. The evidence establishes appellant derived sexual pleasure from his encounters with the victims.
Based on this record, the People established by clear and convincing evidence appellant appreciated the wrongfulness of the charged conduct at the time it was committed. Based on appellant's age, the circumstances surrounding the commission of his crimes, and his attempts to conceal his actions, the juvenile court was justified in making its finding regarding appellant's ability to understand the wrongfulness of his conduct. (See In re Manuel L., supra, 7 Cal.4th at p. 232; People v. Lewis, supra, 26 Cal.4th at p. 378.) The evidence supporting the court's ruling was reasonable, credible, and of solid value from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (See In re Joseph H., supra, 237 Cal.App.4th at p. 538.) As such, the presumption under section 26 was rebutted and the juvenile court did not abuse its discretion. Accordingly, appellant's arguments are without merit and this claim fails.
Because the People rebutted the presumption under section 26, and because substantial evidence supports the juvenile court's ruling, we likewise reject appellant's additional argument the court's ruling violated his due process rights.
II. Sufficient Evidence Supports The Juvenile Court's Finding That Appellant Held The Required Intent For The Alleged Offenses.
Appellant argues the evidence was insufficient to establish his lewd intent at the time of his alleged violations of section 288.5 in counts 1 and 2. He contends his inappropriate conduct occurred outside the charged timeline (January 1, 2011, through December 31, 2013). He maintains the victims' testimony was inconsistent and contradictory, and the prosecution failed to establish his age and criminal intent. He asserts the jurisdictional finding must be reversed. We disagree.
A. Standard of review.
To review a claim regarding the alleged insufficiency of the evidence, we examine whether there is evidence, contradicted or uncontradicted, to support the juvenile court's finding. (In re Alexis E., supra, 171 Cal.App.4th at p. 450.) In making this determination, we must review the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. (Id. at pp. 450-451.) We will not weigh the evidence, assess credibility, or resolve those evidentiary conflicts. (Id. at p. 451.) Evidence from a single witness can be sufficient to support the trial court's findings. (Ibid.)
B. Background.
When ruling on appellant's motion to dismiss the allegations, the juvenile court determined sufficient evidence established at least three or more specific acts occurred that were of "substantial sexual conduct" and these acts occurred within the alleged time frame in the petition for each victim. The court found sufficient evidence appellant had recurring access to the victims under section 288.5, subdivision (a), for "continuous sexual abuse." Based on circumstantial evidence, the court found true the allegations in counts 1 and 2, making that finding "beyond a reasonable doubt notwithstanding the inconsistency of the evidence."
The juvenile court did not explain what circumstantial evidence supported its findings. --------
C. Analysis.
We set forth the applicable statutes before examining the record.
1. Section 288.5.
Under section 288.5, "[a]ny person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years." (§ 288.5, subd. (a).)
2. Section 1203.066.
Section 1203.066 defines "substantial sexual conduct" as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subd. (b).)
3. Section 288.
Section 288 states that "a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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 and shall be punished by imprisonment in the state prison for three, six, or eight years." (§ 288, subd. (a).)
4. This record demonstrates substantial evidence under Jones.
In his opening brief, appellant claimed the prosecution had failed to prove he had held the requisite lewd intent to commit the alleged continuous sexual abuse in counts 1 and 2. He had argued the prosecution had failed to establish his age when the acts had occurred.
In contrast, respondent argued the juvenile court did not rely on lewd and lascivious conduct to find true the allegations in counts 1 and 2. Instead, the court based its true findings on "substantial sexual conduct" under section 1203.066, subdivision (b). As such, respondent asserts a finding of lewd intent was not required.
In his reply brief, appellant concedes that acts alleged under section 1203.066, subdivision (b), generally do not require lewd intent. He contends, however, the victims' testimony was "extraordinarily inconsistent" and did not meet our Supreme Court's requirements in People v. Jones (1990) 51 Cal.3d 294, 316 (Jones). Regarding Victim 1, he asserts the prosecution failed to establish the improper conduct occurred over a three-month (or longer) period. He argues Victim 1 did not provide a definitive number of incidents when she was allegedly touched improperly at seven years of age. He claims the improper conduct that occurred when Victim 1 was seven years old "was clearly attenuated" from the conduct that occurred when she was allegedly nine years old. We disagree that the requirements under Jones were not met.
In Jones, our high court discussed what constitutes sufficient evidence when a child victim provides generic testimony about incidents of molestation. (Jones, supra, 51 Cal.3d at p. 315.) "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Id. at p. 316.)
In this matter, the wardship petition alleged two violations of section 288.5, subdivision (a), based on either "substantial sexual conduct" or three or more acts in violation of section 288. It was alleged the criminal conduct occurred on or about January 1, 2011, through December 31, 2013. The juvenile court determined sufficient evidence established at least three or more specific acts of "substantial sexual conduct" and these acts occurred within the alleged time frame in the petition for each victim. The court found sufficient evidence appellant had recurring access to the victims under section 288.5, subdivision (a), for "continuous sexual abuse." The court found true the allegations in counts 1 and 2, making that finding "beyond a reasonable doubt notwithstanding the inconsistency of the evidence."
The record amply supports the juvenile court's findings. The victims testified appellant began touching them in 2011. Victim 1 was seven years old and in the second grade. Victim 2 was five years old and in kindergarten. From 2011 through 2013, the victims each described repeated incidents wherein appellant touched them inappropriately, and he had them touch him. Victim 1 made statements indicating appellant ejaculated on more than one occasion with her. Appellant moaned when she touched his penis with her hand and when she copulated him. Victim 2 testified appellant penetrated her vagina and anus.
The victims described repeated acts that qualify as "substantial sexual conduct" as defined under section 1203.066, subdivision (b). The victims discussed the type of acts that appellant committed with sufficient specificity. The victims described the number of acts committed with sufficient certainty to support each of the counts alleged in the petition. Finally, the victims were able to describe the general time period in which these acts occurred. As such, the requirements in Jones were met. (See Jones, supra, 51 Cal.3d at p. 316.)
Based on this record, substantial evidence supports the juvenile court's findings appellant held the requisite criminal intent and he violated section 288.5, subdivision (a). This evidence was reasonable, credible, and of solid value from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (See In re Joseph H., supra, 237 Cal.App.4th at p. 538.) We will not reweigh the evidence, assess credibility, or resolve the evidentiary conflicts. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.) Evidence from a single witness can be sufficient to support the trial court's findings. (Ibid.) Accordingly, appellant's arguments are without merit, and this claim fails.
DISPOSITION
The juvenile court's order appealed from is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.