Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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(Super. Ct. No. DL034928)
Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed as modified.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court sustained a petition under Welfare and Institutions Code section 602 against Jason J. alleging he committed a forcible lewd act on a child under age 14. It declared the minor a ward of the court, committed him to juvenile hall for 90 days, and imposed probation conditions.
The minor contends substantial evidence does not support the court's determination he had the necessary specific intent or used force against the victim. He also argues the court abused its discretion in allowing the prosecution to cross-examine his witnesses about evidence not directly related to the character trait they testified to on direct examination. Additionally, he challenges several of the probation conditions.
We agree three of the probation conditions are overbroad and order them modified accordingly. In all respects, the judgment is affirmed.
The minor's older sister normally babysat the six-year-old victim and her two younger brothers but was unavailable on the date of the incident and suggested the 14-year-old minor substitute for her. The victim's parents agreed because the minor had assisted his sister before in caring for the children and had taken a baby-sitting class. The minor was left "in charge" of the children, assisted by his younger sister.
After dinner, the minor took the children upstairs and put them to bed, with the victim on the top bunk of a bunk bed and the two boys sharing the bottom bunk. The victim woke up to the minor touching her "privates." The minor had pulled the victim's underwear down to her knees and was digitally penetrating her vagina and anus simultaneously. The victim "felt like [the minor] was pushing all the way in" and she was "scared." She pushed the minor's hand away more than five times and pulled the blanket over her head "[b]ut he kept doing it," each time "immediately touch[ing]" her again. The minor continued doing so until the victim's parents returned home.
Upon entering the house, the victim's mother saw the minor coming down the stairs and avoiding eye contact with her. She was putting her stuff away while the victim's father took the minor and his sister home when she "heard a traumatic cry" from the victim, who stated the minor had "'touched'" and "'hurt'" her. The victim told her mother she "'tried to push him away'" and "'pull[ her] panties up and . . . the sheet over [her] head'" but the minor "'kept pulling it down and pulling [her] panties off and doing it again.'"
As part of the minor's defense, his older sister testified that while babysitting the victim and her brothers a week before the incident, the victim had picked out a book for her to read, entitled "You Can Say No," which included a story about a man touching a girl between her legs. The minor also had three witnesses testify regarding his character and honest reputation. On cross-examination, the prosecutor elicited testimony from each that they had heard the minor had sent a text message to his 12-year-old girlfriend asking her to send him a naked photograph of herself. Nevertheless, that did not affect their positive opinions of him.
1. Sufficiency of the Evidence
The minor argues substantial evidence does not support the court's findings he committed a lewd act with the necessary intent to make it a violation of Penal Code section 288, subdivision (a) (all further statutory references are to this code unless otherwise stated) or that he committed it using force. We disagree.
"Violation of section 288, subdivision (a) requires the specific intent of arousing the sexual desires of either the perpetrator or the victim. [Citation.]" (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) Such intent may be inferred from circumstantial evidence but "must be proved beyond a reasonable doubt. [Citation.]" (Ibid.)"Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim's cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings. [Citations.]" (Ibid.)
The minor contends there was no substantial evidence of sexual arousal, prior lewd acts, a change in story, inculpatory statements, attempt to escape discovery, or showing of concern when the victim's father asked to talk with his father. Some of that may be but viewing the evidence in the light most favorable to the judgment as we must (In re Randy S. (1999) 76 Cal.App.4th 400, 404), we conclude the evidence supports a finding of the minor's intent to arouse himself.
Although the record does not reflect he committed a prior lewd act, the touching here was not momentary but prolonged with the minor removing the victim's blanket, pulling her underwear to her knees, and repeatedly penetrating her vagina and anus with his fingers even after she pushed him away and tried to cover herself with her blanket. No evidence of an innocent purpose for this conduct was presented. (See People v. Martinez (1995) 11 Cal.4th 434, 450, fn. 16 [trier of fact may consider "presence or absence of any nonsexual purpose" for contact].)
Additionally, contrary to the minor's claim, there was evidence from which a trier of fact could find he was trying to avoid being caught. Although he had previously accompanied his older sister numerous times when she babysat, he waited until he was "in charge" of the children, after the victim's parents had left and there were no adults in the house, for his younger sister to go back downstairs after telling the children a story, and for the victim's brothers to fall sleep before committing the lewd acts. He also tried to hide his actions by stopping his actions when the victim's parents returned home and attempting to get downstairs before they entered. Moreover, when the victim's mother saw him on the stairs, she noticed the minor was not making eye contact with her as he usually did, suggesting consciousness of guilt. Based on this record, a reasonable trier of fact could find the minor was acting with the intent to sexually arouse himself despite the lack of evidence of physical sexual arousal.
The minor asserts that even if substantial evidence supports the necessary intent for a lewd act under section 288, subdivision (a), there was insufficient evidence he used force in committing it as to render it a crime of forcible lewd conduct under section 288, subdivision (b)(1). We conclude otherwise.
Section 288, subdivision (b)(1) provides, "Any person who commits an act described in subdivision (a) by use of force . . . on the victim . . . is guilty of a felony . . . ." The Supreme Court recently confirmed the "appropriate definition of force required for an aggravated lewd conduct conviction under section 288[, subdivision (b)(1)]" is force that is "'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' [Citation.]" (People v. Soto (2011) 51 Cal.4th 229, 242.)
Here the victim testified she awoke to find her underwear by her knees and the minor touching her private parts. From this the court could reasonably find the minor had to manipulate the victim's body in order to pull her underwear down. Additionally, the victim resisted the minor by pushing his hand away several times and pulling her underwear up and the blanket over her head. But each time the minor pulled them back down and began "immediately touch[ing]" her again. "Although resistance is not required to prove forcible sexual assault, the [trier of fact] could reasonably have considered [the victim's] resistance in assessing whether defendant used force to accomplish the lewd act. [Citation.]" (People v. Babcock (1993) 14 Cal.App.4th 383, 387.)
The minor argues the removal of physical barriers such as the victim's clothing and blanket do not constitute force under section 288, subdivision (b) because it "is a prefatory step necessary to the commission of the act, analogous to soliciting the victim to a remote location." He also asserts the victim's ineffective attempts to stop him were "not analogous to the active application of force . . . ." (Italics omitted.)
But a rational trier of fact could conclude the minor's conduct in manipulating the victim's body in order to remove her underwear and overcoming the victim's resistance were acts of force substantially different from or greater than that necessary for him to accomplish the lewd acts of penetrating her vagina and anus. (See People v. Cochran (2002) 103 Cal.App.4th 8, 13 ["hold[ing] a victim who is trying to pull away . . . is use of physical force above and beyond that needed to accomplish the act"]; see also People v. Bolander (1994) 23 Cal.App.4th 155, 161 [the "defendant's acts of overcoming the victim's resistance to having his pants pulled down, bending the victim over, and pulling the victim's waist towards him" constituted force]; People v. Babcock, supra, 14 Cal.App.4th at p. 388 ["grabbing the victims' hands and overcoming the resistance of an eight-year-old child are [not] necessarily elements of the lewd acts or touching defendant's crotch"]; People v. Stark (1989) 213 Cal.App.3d 107, 112 ["ignor[ing] the boy's request to get off of him and stop fondling him," among other things, constituted "physical force substantially different from and substantially greater than necessary to fondle" the boy].) The court's finding of force was supported by substantial evidence.
2. Improper Cross-Examination
The minor argues the court abused its discretion in allowing the prosecutor to cross-examine his character witnesses with evidence he asked his 12-year-old girlfriend to send him a nude photograph of herself. According to him, the questioning was improper because it "was not directly related to the character trait about which [his] witnesses testified on direct examination" in violation of Evidence Code section 1102. But defendant's failure to object on that specific ground in the trial court forfeits the claim. (People v. Demetrulias (2006) 39 Cal.4th 1, 21; Evid.Code, § 353, subd. (a).) Even if it was not forfeited, the contention lacks merit.
"When a witness testifies to a defendant's good reputation, the prosecutor is entitled to ask in good faith if the witness has heard of misconduct by the defendant. [Citations.] . . . [¶] . . . When a witness offers an opinion of a defendant's good character, it is often based on personal knowledge as well as reputation. [Citation.] This opens the door for the prosecutor to offer rebuttal evidence of defendant's character. [Citation.] Character evidence includes opinions, reputation, and specific instances of the person's conduct. [Citation.] The prosecutor can test the witness's opinion by asking about his or her knowledge of the defendant's misconduct [citation], even if the witness professes ignorance. [Citation.]" (People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.)
But that does not mean "'that any evidence introduced by defendant of his "good character" will open the door to any and all "bad character" evidence the prosecution can dredge up. As in other cases, the scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf.'" (People v. Ramirez (1990) 50 Cal.3d 1158, 1192.)
The minor claims that because his character witnesses testified as to his "truthfulness" or "honesty," the court abused its discretion in allowing the prosecutor to cross-examine them about the text message to his girlfriend, which had "no conceivable bearing on [his] honesty . . . ." We disagree. The minor's witnesses also testified as to his character and trustworthiness. Stacy Ann Maijarrez, whose children the minor's mother often babysat, testified on direct examination that she "completely trust[s] [the minor] and so does [her] family," to the extent she had no concern about the minor being alone with her young daughters. This opened the door to the prosecutor asking if Maijarrez knew the minor had sent a text message to a girl his age asking her to send him a naked picture of herself and whether that would affect her decision on having a person who had done that babysit her children alone. The scope of the rebuttal was specific and related directly to the character trait of trustworthiness to which the minor's witness had testified.
During direct examination of Sherry W. and Lloyd G., the superintendent and principal, respectively, at the minor's school, defense counsel elicited testimony Sherry W. had "a high regard for [the minor's] character" and that in Lloyd G.'s opinion the minor "has a great reputation for honesty[ and he had] no reason not to trust him." The minor acknowledges his counsel also questioned them about the text messaging as part of his direct examination. Given that, the trial court did not abuse its discretion in allowing the prosecutor cross-examine Sherry W. and Lloyd G. on the same topic.
3. Probation Conditions
The minor challenges four of the probation conditions imposed by the trial court. Although he failed to object to these conditions, they are reviewable on appeal because they involve "pure question[s] of law." (In re Sheena K. (2007) 40 Cal.4th 875, 888.)
We apply a deferential abuse of discretion standard in reviewing probation conditions and the court's determination will be overturned only when it is "arbitrary or capricious or "'"'exceeds the bounds of reason, all of the circumstances being considered.'" [Citations.]' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Where a court imposes a probation condition that regulates conduct "'not itself criminal,'" the condition must be "'reasonably related to the [defendant's] crime . . . or to future criminality.' [Citation.]" (Ibid.)Additionally, where a probation condition "impinges" on a "fundamental [constitutional] right," it must not be "impermissibly overbroad." (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.) "A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.) But in juvenile cases "'"[e]ven conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation]."' [Citations.]" (In re Tyrell (1994) 8 Cal.4th 68, 82, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128, 138.)
Two of the contested restrictions require the "[m]inor not to associate with any minor under the age of 10 years, without prior approval of the probation officer, and unless in the company of a responsible adult who is approved of by the probation officer"; and "not to contact or attempt to contact the victim in any manner whatsover . . . [or] enter onto the premises, travel past or loiter near where the victim resides, attends school or is employed." The Attorney General agrees, as do we, that these two terms are unconstitutionally vague for failing to include a personal knowledge requirement. (In re Sheena K, supra, 40 Cal.4th at p. 890.)
The third condition raised by the minor states he is "not to engage in any volunteer work or employment without prior approval of the probation officer." He contends this provision "violates [his] constitutional right to employment and is not narrowly tailored." The Attorney General responds that given the minor's crime, "[i]t hardly seems unreasonable to allow the probation department oversight of his employment choices in order to assure that he does not take a job at, among other places, Toys R Us, or other babysitting jobs." But even if so, the condition contains no such limitation and has not been tailored specifically to meet the minor's needs. (See People v. Burden (1998) 205 Cal.App.3d 1277, 1281 [probation condition prohibiting the defendant from "working in a position of outside or commissioned sales" held constitutionally overbroad]; cf. People v. Lewis (1978) 77 Cal.App.3d 455, 463-464 [upholding probation condition forbidding defendant from engaging in trades related to future criminality].) "Without a meaningful standard, the order is too broad and it is not saved by permitting the probation department to provide the necessary specificity." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358, fn. omitted.)
Lastly, the minor contends his First Amendment rights are infringed by the probation condition that he "not subscribe to or have access to any form of on-line Internet service, without permission of the probation officer and in conjunction with any restriction(s) as determined by him or her." He relies on In re Stevens (2004) 119 Cal.App.4th 1228, which held the complete prohibition on use of computers and the Internet "bore no relation to [the defendant's] conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the state's legitimate goal." (Id. at p. 1239.) According to him, there may be many circumstances where he "would need to use the [I]nternet for legitimate purposes, such as basic research for school, looking for a job, and basic email communication." But the Internet restriction is not absolute. The minor may still use the Internet for these purposes if he gets permission from his probation officer and abides by any restrictions the officer may impose.
The minor also argues "[n]othing in the allegations against [him] suggested the [I]nternet assisted him in perpetrating the lewd act." Regardless, cases have affirmed probation conditions restricting a defendant's use of computers or the Internet or both, even when the offense is not directly computer related. (See, e.g., In re Hudson (2006) 143 Cal.App.4th 1, 10-11; In re Victor L. (2010) 182 Cal.App.4th 902, 925-927 [striking language completely banning "access to" or "use of" Internet-enabled computer but allowing conditions imposing certain restrictions on Internet access].) Courts have also upheld Internet restrictions imposed on probationers convicted of sexually-based crimes. (See United States v. Rearden (9th Cir. 2003) 349 F.3d 608, 620-621 and cases cited therein.) We agree with these cases.
The minor's probation conditions are modified as follows:
(1) The condition "[m]inor not to associate with any minor under the age of 10 years, without prior approval of the probation officer, and unless in the company of a responsible adult who is approved of by the probation officer" is changed to: "Minor not to associate with any minor whom he knows, or reasonably should know, is under the age of 10 years, without prior approval of the probation officer, and unless in the company of a responsible adult who is approved of by the probation officer."
(2) The condition "[m]inor not to contact or attempt to contact the victim in any manner whatsover, . . . [or] enter onto the premises, travel past or loiter near where the victim resides, attends school or is employed" is changed to: "Minor not to contact or attempt to contact the victim in any manner whatsover . . . [or] enter onto the premises, travel past or loiter near where he knows, or reasonably should know, the victim resides, attends school or is employed."
(3) The condition "[m]inor not to engage in any volunteer work or employment without prior approval of the probation officer" is changed to: "Minor is not to engage in any volunteer work or employment that would give him access to children without the prior approval of the probation officer."
In all other respects, the judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: BEDSWORTH, J. FYBEL, J.