IN RE T.V.

No. C081703.

In re T.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.V., Defendant and Appellant.

Court of Appeals of California, Third District, Sacramento.


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

BUTZ, J.

A petition filed on February 24, 2015, alleged that the 12-year-old minor, T.V., came within the provisions of Welfare and Institutions Code section 602 in that he committed five counts of lewd and lascivious conduct upon eight-year-old J.H. (Pen. Code, § 288, subd. (a)). After a contested jurisdictional hearing, the court sustained counts one, two, and three but did not sustain counts four and five. At the dispositional hearing, the court adjudged the minor a ward of the court and committed him to the care and custody of his father.

The minor appeals. He contends that insufficient evidence supports the juvenile court's findings that the minor knew the wrongfulness of his conduct or acted with the specific intent to arouse his sexual desires. We conclude sufficient evidence supports the court's findings and will affirm the jurisdictional order.

FACTUAL AND PROCEDURAL BACKGROUND

The minor lived with his mother at an apartment complex where the victim also lived with his mother. The minor was almost 12 years old when he started playing video games with the eight-year-old victim. They played video games daily in the victim's bedroom but the victim stopped playing with the minor because the minor started molesting the victim.

The minor began by "humping" the victim's stuffed animals. Then the minor, using his penis, "humped" the victim. The victim believed the minor had "humped" him 10 times. The victim described "humping" as the minor moving back and forth. Most acts occurred in the victim's bedroom. The victim had his hands on his bed and the minor "humped" him "with his penis" from behind. Initially, they had their clothes on but then they removed their clothes and the minor's penis touched the victim's butt. The minor put his penis on the outside of the victim's butt on at least two occasions. More than once, the minor put his penis inside of the victim's anus which hurt the victim and made him feel "uncomfortable." The victim told the minor to stop but the minor would not. The victim refused the minor's request that the victim put his penis in the minor's anus. The minor orally copulated the victim 12 times. The minor put his mouth on the victim's penis, saying, "Let me suck your dick." The minor wanted the victim to orally copulate him. The victim did so one time when the minor told him, "Suck my dick now." Afterwards, the victim "spit in the sink." The acts took place in the victim's bedroom with the door sometimes open and sometimes closed. The victim's mother was usually home watching television in the living room but sometimes she was at the complex's pool or some other place around the complex. The minor was always worried that the victim's mother would discover what he was doing to the victim. The minor "humped" the victim outside behind trees in the playground at the complex. Their clothes were pulled down.

The victim did not tell his mother about the molestations because he was afraid he would get into trouble. One night the victim told his mother's friend, S.B., that the minor wanted to orally copulate him. The victim's mother overheard the victim say that the minor rubbed up against him. The victim's mother immediately confronted the minor and his mother, saying that the minor had exposed his genitals to the victim, slapped the victim's genitals, and rubbed against the victim. The minor looked afraid, as if he had been caught, and did not deny the allegations. The minor's mother yelled at the minor and shoved him against the wall, repeatedly asking if he did that to the victim. The minor finally said, "Yes." The victim's mother returned to her apartment and the victim was not willing to talk further about what had happened. The victim explained that he was afraid of losing the minor as a friend.

The next morning, the victim's mother contacted the police. While the victim's mother spoke with an officer, D.S., a neighbor and friend, stayed in the apartment with the victim and claimed the victim told her that the minor tried to make the victim orally copulate the minor, "grinded" on the victim, and made the victim rub the minor's penis "until water came out of it."

S.B., the friend of the victim's mother, testified that the victim had said that the minor "twerks," put toys between his legs and "hump[ed]" them, and hit him "in the privates."

Deputy Sheriff David Schramm received the call from the victim's mother. The deputy spoke with the victim for about five minutes. The deputy had not received any kind of training with respect to interviewing juvenile victims. The victim claimed the minor touched him in the bedroom and the minor exposed himself in the playground area of the complex. The victim explained that the minor had "hump[ed]" him and "slapp[ed] his genital area." The victim denied that the minor had touched him under his clothing.

The juvenile court also reviewed the transcript and audio tape of the interview of the victim by a forensic interview specialist with Child Protective Services. The victim explained that the 12-year-old minor did "gross stuff" to him, like "hump[ing]" him and "stick[ing] his private[s]" in the victim's mouth, almost every day beginning when the victim was near the end of second grade. The minor told the victim to get on his bed. The minor stood behind and "humped" the victim's butt with the minor's "crotch" (penis). They both had clothes on at the time. The victim told the minor to stop but he refused, saying, "[W]e're not done yet." The victim again told the minor to stop after a long time but the minor refused and made "uh, uh, uh, uh, uh" noises. Another time, the minor told the victim to pull his pants down and the minor inserted his penis in the victim's anus. The victim said the minor's penis was "a little bit hard" and "just big." The minor moved back and forth and told the victim to move up and down. The victim claimed the minor sodomized him "plenty of times," usually in the victim's bedroom. The minor told the victim to close the door so that the minor could "say bad words." After playing video games on one occasion, the minor put his penis in the victim's mouth and forced the victim to put his penis in the minor's mouth, threatening to go home unless the victim complied. Two times outside, the minor "humped" the victim when they both had their clothes on, once behind some trees and another time behind a wooden gate.

The victim denied speaking to a social worker about his father touching his penis. The victim claimed his father never touched him inappropriately.

The minor testified and denied molesting the victim. The minor stated that he knew it would be wrong to expose his penis and to put his mouth on the victim's penis. The minor denied "humping" the victim, touching the victim's butt with his penis, or sodomizing the victim. The minor admitted that he "hump[ed]" (a thrusting motion) the victim's stuffed animals. The minor admitted that he played video games with the victim in the victim's bedroom. A few times when they were play fighting, the minor might have hit the victim in the genitals but denied he did so for a "sexual purpose."

The minor's father testified. He discussed photograph exhibits of the minor's unerect penis which reflected that it was less than three inches long.1

DISCUSSION

In considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment and affirm the juvenile court's findings if supported by substantial evidence, that is, evidence that is reasonable, credible, and of solid value, from which the juvenile court could make the required findings under the applicable standard of proof. (In re James B. (2003) 109 Cal.App.4th 862, 872.)

Penal Code section 26 establishes a presumption that a minor under the age of 14 years is incapable of committing a crime. In order to defeat the presumption, the prosecution must show "`clear proof,'" meaning "clear and convincing evidence," that at the time of the offense, the minor knew of its wrongfulness. (In re Manuel L. (1994) 7 Cal.4th 229, 234-239.) Circumstantial evidence may demonstrate that the minor understands the wrongfulness of his conduct. Such evidence includes the minor's age, experience, and understanding, in addition to the circumstances of the offense "including [the] method of [its] commission and concealment." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) Penal Code section 26 applies to juvenile delinquency proceedings. (In re Marven C. (1995) 33 Cal.App.4th 482, 486.)

Although almost 12 years of age at the time of the offenses, the minor testified at the jurisdictional hearing that he knew it was wrong to expose his penis to the victim and to orally copulate the victim. Even the eight-year-old victim knew it was wrong. The minor expressed concern that the victim's mother would discover that he was molesting the victim. The minor usually told the victim to close the door prior to molesting the victim. The victim consistently objected to being molested but the minor continued. The minor concealed molesting the victim outside by hiding behind trees and a gate. The minor manipulated the victim by threatening to stop playing video games with the victim if he refused to orally copulate the minor. The minor instructed the victim on movements when the minor sodomized the victim. The minor told the victim, "Let me suck your dick." Sufficient evidence supports the juvenile court's finding that the minor knew the wrongfulness of his conduct.

A violation of Penal Code section 288, subdivision (a) is shown by "`any touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." (People v. Martinez (1995) 11 Cal.4th 434, 452; In re Randy S. (1999) 76 Cal.App.4th 400, 405.) In finding intent, the juvenile court evaluates the totality of the circumstances. (Martinez, at pp. 444-445; Randy S., at pp. 405-408.)

The minor claims insufficient evidence supports the juvenile court's findings that he committed three acts of lewd and lascivious conduct upon the victim, arguing there was no evidence that he had the specific intent to arouse his sexual desires. We disagree. In addition to the facts discussed in connection with the minor's knowledge of the wrongfulness of his conduct, the minor preyed on the victim and elevated his assaults from rubbing his penis on the victim's stuffed animals, to doing the same on the victim while clothed, and then while the victim had his pants down, to orally copulating him, and then sodomizing him. The victim described the minor's penis as "a little bit hard" and "just big." The minor inserted his penis in the victim's anus for long periods of time, moving back and forth, hurting the victim, refusing to stop when asked, and making noises proving he was sexually aroused. Sufficient evidence supports the trial court's findings that the minor's acts were accompanied by the requisite intent of sexual gratification.

DISPOSITION

The juvenile court's order is affirmed.

BLEASE, Acting P. J. and HULL, J., concurs.

FootNotes


1. The victim had testified that he thought the minor's penis was "[l]ong" and when asked to hold up his hands to demonstrate, held his hands 12 inches apart.

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