IN RE: J.N.

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Court of Appeal, Second District, California.

IN RE: J.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.N., Defendant and Appellant.

B219073

Decided: November 18, 2010

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant J.N. appeals from the juvenile court's order declaring him a ward of the court under Welfare and Institutions Code section 602 and placing him home on probation, following the juvenile court's sustaining of a petition alleging that he committed one count of lewd act on a child (Pen.Code, § 288, subd. (a)).  He contends that the evidence was insufficient to prove that he committed lewd conduct, because the evidence failed to prove that he acted with the required sexual intent.   We affirm.

BACKGROUND

Prosecution

Over Labor Day weekend 2008 (August 29 to September 1), Rebekah O. and her husband, Fernando O., went to Las Vegas, leaving their daughters, 4-1/2 year old N.O. and her younger sister A.O., at home in the care of their paternal grandparents.   The grandparents brought with them two grandsons, 15-year-old David and 11-year-old appellant.

While giving N.O. a bath on the night she returned, Rebekah asked about N.O.'s weekend.   N.O. said that appellant had been mean and she explained what had happened.   Based on that information, the next day Rebekah took N.O. to the hospital and the police were notified.

At the adjudication hearing, N.O. testified that over Labor Day Weekend appellant touched her once under her clothes while they were in the bathroom behind the closed door.   She gestured to her groin area.   She later testified that appellant grabbed her hand and made her touch his private part while his pants and underwear were down.   She denied that any other touching occurred.

The prosecution introduced certain prior inconsistent statements N.O. had made to Detective Amber Montenegro of the Los Angeles County Sheriff's Department, who interviewed N.O. on September 11, 2008.   N.O. told her about six incidents, although some of them might have been repetitive:  (1) appellant entered the bathroom and told her to touch his penis;  she did so, over his clothes;  (2) appellant pulled down his pants, grabbed her hand, and placed it on his penis;  (3) appellant poked her vagina with a purple stick while she was in the front room;  (4) near the dining area, appellant touched her vagina over her clothes;  he was interrupted by David, who told him to stop;  (5) later, near the dining area, appellant again touched her vagina over her clothes;  she told him to stop and appellant slapped her hand;  and, (6) she (as the mom) and appellant (as the dad) played house;  appellant kissed her “in her mouth” (N.O. illustrated by sticking out her tongue a bit).

At the adjudication hearing, David testified that he did not see appellant touch N.O. He was impeached by the testimony of N.O.'s father, Fernando, who testified that after he returned from Las Vegas he spoke to David by telephone and asked him if appellant had touched N.O. David said that he saw appellant touch N.O on her vagina in a bedroom and that he told appellant to stop.

David was also impeached by statements he made to Detective Montenegro on October 23, 2008, when interviewed at his school.   David said that he saw appellant touching N.O. twice.   The first occasion was in the kitchen/dining area, when he heard N.O. telling appellant, “No,” and saw appellant touching or spanking N.O. on her buttocks.   David told appellant to stop and appellant ran off.   The second occasion he heard voices behind a closed bedroom door.   David walked into the bedroom, and saw N.O. with her panties pulled down, and appellant's hand was up her skirt and appeared to be touching her vagina.   David pushed appellant and told him to stop.   Crying, appellant ran from the room.

The same day, Detective Montenegro spoke to appellant at his school.   Appellant said that he knew it was wrong to touch another person's private parts, but said nothing when asked about touching N.O.

Defense

The paternal grandmother, Francisca O., testified that she continuously supervised the children and did not see any inappropriate behavior.   N.O. did not complain to her of any acts by appellant.  (RT 83-84)

DISCUSSION

Lewd conduct in violation of Penal Code section 288, subdivision (a), requires the commission of a lewd or lascivious act on a child under the age of 14, committed “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.”   Appellant contends that the evidence is insufficient to prove that he committed lewd conduct, because it failed to prove that he, as an 11-year-old, acted with the intent to arouse or gratify his sexual desires, as opposed to acting with the intent of merely being curious.   We disagree.   Of course, in addressing this contention, we view the entire record in the light most favorable to the juvenile court's order.  (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)

To determine whether a reasonable trier of fact could conclude that appellant acted with the intent of arousing or gratifying his own sexual desires, we look not simply to the charged acts, but also to all the circumstances under which those charged acts were committed.  (People v. Martinez (1995) 11 Cal.4th 434, 445.)   The circumstances here create a reasonable inference that appellant had the required specific intent.   There were multiple inappropriate touchings.   Although the precise number is unclear, at the very least they involved appellant making N.O. touch his penis, and appellant touching N.O.'s vagina both over and under her clothes.   Moreover, contrary to appellant's contention on appeal, there is evidence that he tried to conceal his conduct.   At least one touching of N.O.'s vagina, interrupted by David, occurred behind a closed bedroom door.   According to N.O., another incident occurred in the bathroom behind a closed door.   Moreover, appellant knew his conduct was wrong, and fled in tears when caught by David touching N.O.'s vagina under her skirt.   Finally, particularly telling is the occasion in which appellant kissed M.O. in an overtly sexual manner, placing his tongue in her mouth.   From all this evidence, it may reasonably be inferred that when appellant touched N.O.'s vagina and made her touch his penis, he acted not out of mere curiosity, but with the intent of arousing or gratifying his own sexual desires.

Appellant argues that he was an immature, pre-sexual 11-year-old incapable of forming the intent to arouse sexual desires.   However, “[w]hile it is reasonable to assume that if a young child is incapable of experiencing sexual arousal, the child would not intend to arouse his own sexual desires, it is likewise reasonable to assume that when a young child begins to experiment in sexual arousal, the child can harbor an intent to arouse his own sexual desires.”  (In re Randy S. (1999) 76 Cal.App.4th 400, 406, italics in original.)

Appellant relies on In re Jerry M. (1997) 59 Cal.App.4th 289 (Jerry M.), in which the court found that an 11-year-old boy lacked the required intent when, on separate occasions, he (1) touched the breasts of a 12-year-old girl in front of her friends, (2) took her bicycle and refused to give it back unless she showed him her breasts, (3) approached a 13-year-old girl and touched her breasts, and (4) approached another 12-year-old girl and touched her breasts under her shirt and bra.   The court concluded that the evidence showed that the boy “was a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal.”   (Id. at p. 300.)   Whatever might be said of the minor's conduct in Jerry M., a reasonable trier of fact in the instant case could easily conclude that appellant acted not with the mere intent to annoy (or with mere curiosity), but with the intent of sexual arousal.   First, appellant's conduct-making N.O. touch his penis, his touching N.O.'s vagina, and his kissing N.O. in an overtly sexual way-was more sexualized than the touching in Jerry M. Second, appellant did not seek attention;  he tried to conceal his conduct.   Third, appellant was not “a brazen 11-year-old.”   When discovered by David on one occasion, he fled in tears.   For these reasons, Jerry M. is distinguishable.   We conclude that the evidence here is sufficient for a rational trier of fact to conclude that defendant acted with the specific intent to gratify or arouse his own sexual desires.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

EPSTEIN, P. J. SUZUKAWA, J.