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Court of Appeal, Fifth District, California.

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


Decided: January 17, 2012

Kendall Simsarian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.



It was alleged in a juvenile wardship petition that appellant, Nicholas K., a minor, committed three offenses:  sexual battery (Pen.Code, § 243.4, subd. (e)(1);  count 1), simple battery (Pen.Code, § 243, subd. (a);  count 2) and lewd or lascivious conduct with a child under the age of 14 (Pen.Code, § 288, subd. (a);  count 3).   At the jurisdiction hearing, at the close of the People's case, appellant moved to dismiss the petition under Welfare and Institutions Code section 701.1.1  The court granted the motion as to counts 1 and 2 and denied the motion as to count 3. Thereafter, the jurisdiction hearing resumed with the presentation of the defense case, after which the court found count 3 true.   Following the subsequent disposition hearing, the court adjudged appellant a ward of the court, placed him on probation, released him to the custody of his parents, and declared his maximum term of physical confinement (MTPC) to be eight years.

On appeal, appellant contends the court erred in denying the motion to dismiss as to count 3 and in setting an MTPC. We will strike the MTPC and otherwise affirm.

On February 6, 2010, Maggie E. (Maggie), who was then ten years old and in the fourth grade, visited her best friend, Katie K. (Katie), at Katie's house.   Katie, who at that time was in the third grade, is appellant's younger sister.   Also present at the house were appellant and his other sister, Ashley K. (Ashley), both 16 years old at the time.

Maggie testified that at one point, all four minors were in the living room.3  Appellant was sitting in a chair, Ashley was sitting in another chair reading a book and Maggie and Katie were on a couch, playing a game on a laptop computer.   Appellant asked the two girls to come to where he was sitting so he could see the computer screen and play the game with them.   The two girls walked over to appellant and Katie sat on appellant's left knee, Maggie sat “kind of halfway on the arm of the chair and on his lap,” and the computer “was halfway on Katie's lap and halfway on [appellant's] lap.”

Appellant asked Katie to take the dog out and Katie left the room.   At that point appellant “picked [Maggie] up and put [her] on [his] lap.”   Katie soon returned, “sat down by [Maggie] on the chair like she was kneeling” and “looked over [Maggie's] shoulder at the computer.”   Ashley was still sitting nearby, reading.

Shortly thereafter, Katie left the room again, to “check on the dog.”   When she was out of the room, appellant “kissed [Maggie's] shoulder.”   Maggie “asked him to stop” and he complied.   Katie returned to the room, but left again “to get a Band–Aid for a cut.”   This time during her absence, appellant “started rubbing” the “upper part” of Maggie's right leg with his right hand in a “circular motion,” his hand closer to her hip than to her knee.   As he did so, he said, “This might feel a little weird.”   Thereafter, appellant moved his hand closer to the zipper on the jeans Maggie was wearing, “on the left side of [her] right leg, on the inside.”   At that point Maggie told appellant “to stop,” and “picked his hand up and moved it.”   When she did so, appellant whispered in her left ear, “Maggie, no.”   Ashley was “still reading.”   Maggie got up, put the computer in appellant's lap, left the room and walked to Katie's parents' bedroom and told Katie “that [appellant] was making her feel uncomfortable by rubbing [her] leg and shifting [her] around and getting close to the inside of [her] leg.”   Katie responded, “It's okay.   He's done it to me before.”

Subsequently, Katie telephoned her mother and told her “what [Maggie] told her.”   Shortly after that, Maggie telephoned her father and asked him to come pick her up and take her home.   After she got off the telephone, appellant came in and said, “I'm sorry.   You should have told me that you were feeling uncomfortable.”

Ashley testified that before Maggie left to go home, she talked to appellant and “at some point, [appellant] told [Ashley] to tell Maggie, ‘Don't tell, this is gonna bring trouble to our family[.]’ ”  Maggie testified that before she left, Ashley asked her not to tell her parents about the “incident” until Ashley's mother talked to them.

On another occasion, less than one year previously, when Maggie was at Katie's house, appellant “picked [Maggie] up and took [her] into his room.”   There, “He was hugging [her].”   He “put [Maggie] on the bed.”   While the two were on the bed “he was still hugging [her].”   She “felt uncomfortable” and “turned around” so that she was no longer facing appellant.   Because she was “uncomfortable and wanted to be with Katie,” she “got up and told [appellant] she needed to find Katie for something.”


Motion to Dismiss

“Violation of [Penal Code] section 288, subdivision (a) requires the specific intent of arousing the sexual desires of either the perpetrator or the victim.  [Citations.]  Because the requisite specific intent is an element of the crime it must be proved beyond a reasonable doubt.”  (In re Jerry M. (1997) 59 Cal.App.4th 289, 299 (Jerry M.).)   Appellant contends the evidence that had been introduced at the time he made his motion to dismiss was insufficient to establish the specific intent element of the instant offense, and therefore the court erred in denying the motion.   We disagree.

Preliminarily, we note that the People do not contend that appellant's touching was for the purpose or with the intent of arousing the sexual desires of the victim.   Our inquiry therefore focuses on the sufficiency of the evidence that appellant's touching was with the intent to arouse his sexual desires.

Section 701.1 authorizes the juvenile court, upon the minor's motion, to dismiss a wardship petition “after the presentation of evidence on behalf of the petitioner has been closed, if the court upon weighing the evidence then before it, finds that the minor is not a person described by section 601 or 602.” (§ 701.1.) Section 701.1 “is substantially similar to Penal Code section 1118 governing motions to acquit in criminal trials․  [¶] Thus, the requirement in a criminal case that on a motion for acquittal the trial court is required ‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the defendant is “proved beyond a reasonable doubt before [the defendant] is required to put on a defense” ’ applies equally well to motions to dismiss brought in juvenile proceedings.  [Citation.]”  (In re Anthony J., supra, 117 Cal.App.4th at p. 727, fn. omitted.)

“[T]he standard for review of the juvenile court's denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition.  [Citation.]  In applying the substantial evidence rule, we must ‘assume in favor of [the court's] order the existence of every fact from which the [court] could have reasonably deduced from the evidence whether the offense charged was committed and if it was perpetrated by the person or persons accused of the offense.  [Citations.]  Accordingly, we may not set aside the trial court's denial of the motion on the ground of the insufficiency of the evidence unless it clearly appears that upon no hypothesis whatsoever is there sufficient substantial evidence to support the conclusion reached by the court below.’  [Citations.]”  (In re Man J. (1983) 149 Cal.App.3d 475, 482.)  “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’   [Citations.]”  (People v. Lewis (2009) 46 Cal.4th 1255, 1289–1290.)

“Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.”  (In re Michael D. (2002) 100 Cal.App.4th 115, 126.)  “ ‘[W]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation];  inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ ”  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393–1394, italics omitted.)   “Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction.”  (People v. Redmond (1969) 71 Cal.2d 745, 755.)

As the court in Jerry M. stated:  “Because intent can seldom be proved by direct evidence, it may be inferred from the circumstances.  [Citations.]  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.]”  (Jerry M., supra, 59 Cal.App.4th at p. 299.)   To this list, the Jerry M. court added the age of the accused.  (Ibid.) “[T]he younger the minor the less likely his acts are with the specific intent of sexual arousal.”  (Id. at p. 300.)

Several of the circumstances set forth above are present in the instant case and support the conclusion that appellant touched Maggie with the specific intent to arouse his sexual desires.   First, we note that appellant was 16 years old and, the court reasonably could infer, had reached puberty.   (Compare Jerry M., supra, 59 Cal.App.4th at p. 300 [finding evidence insufficient to establish requisite intent for lewd or lascivious act based in part on minor's age11 years oldand the lack of evidence he had reached puberty].)   Second, the nature of the acthe kissed Maggie and rubbed her leg and groin area in a manner that reasonably could be viewed as a caress, moving his hand closer to her groin until she stopped himis indicative of a sexual, rather than an innocent motive.

Third, appellant conducted himself in a secretive manner.   He waited until Katie, who while in the room was sitting right next to Maggie, left the room before he kissed Maggie and began rubbing her leg.   In addition, in what reasonably can be interpreted as appellant imploring Maggie to allow him to continue touching her, he whispered to her.   We recognize Ashley was in the room during the entire incident, but the record indicates she was reading during this time and therefore the court reasonably could conclude that appellant believed she was not paying attention to what he was doing and that his actions and whispered “no” would go undetected.

Fourth, appellant's statement to Maggie that his touching her “might feel a little weird,” as well as his whispered “no” when she picked up his hand and moved it, are suggestive of a sexual intent.

Fifth, Ashley testified that appellant asked her to admonish Maggie not to disclose what he had done.

Sixth, on a previous occasion, appellant had “put” Maggie on the bed and hugged her, causing her to want to turn away from him.   This act, like the events of February 6, 2010, made Maggie uncomfortable and, when considered in conjunction with those events, provides further support for the court's implied finding that appellant acted with requisite specific intent.

Appellant likens the instant case to Jerry M., supra, 59 Cal.App.4th 289, where it was held the evidence was insufficient to support the specific intent element of Penal Code section 288, subdivision (a).   That case, however, is distinguishable.   There was “no evidence” in that case that the 11–year–old minor “had reached puberty,” and there was “no attempt or opportunity to avoid detection,” “no caressing,” and “no admonishment to the victims not to disclose the occurrence.”  (Jerry M., at p. 300.)

Appellant also relies on People v. Mansell (1964) 227 Cal.App.2d 842 (Mansell ).   In that case the trial court ruled at the preliminary hearing that the evidence was insufficient to hold the defendant to answer on a charge of violating Penal Code section 288, subdivision (a).   The People appealed, and the appellate court affirmed.  Mansell is also distinguishable on a number of grounds.   There, “The confused, contradictory and fragmentary descriptions given by [the two purported victims] indicate[d] at most that on two occasions, in public view, defendant held the girls on his knee and in the course of this he put his hand at or near the area of suspicion.”  (Mansell, at p. 847.)   Here, by contrast, Maggie's testimony was clear, consistent and detailed and showed not just that she was touched in a certain location, but that appellant kissed her and moved his hand in a way that could be reasonably interpreted as a caress.   Moreover, there was nothing in Mansell that suggests the kind of secretive conduct displayed by appellant, or that the defendant admonished his victims not to disclose the occurrences.

Admittedly, at least some of these circumstances discussed above, e.g., appellant's age, would not be sufficient, by themselves to establish appellant's motive was sexual arousal.   However, based on these circumstances considered in conjunction with each other, the juvenile court reasonably could conclude beyond a reasonable doubt that appellant acted with the specific intent to arouse himself sexually.


Section 726 deals with “the maximum term of confinement in juvenile wardship cases generally.”  (In re Sean W. (2005) 127 Cal.App.4th 1177, 1187.)   Subdivision (c) of section 726 (section 726(c)) “requires the juvenile court to specify that the minor may not be confined for a period in excess of the maximum term of imprisonment which could be imposed on an adult convicted of the offense that brought the minor under the jurisdiction of the juvenile court.   By its express terms, however, section 726(c) applies only ‘[i]f the minor is removed from the physical custody of his or her parent or guardian․’ ”  (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)   Where, as here, a minor is not removed from the physical custody of his parent or guardian, section 726(c) “does not apply[,] ․ the juvenile court [is] not required by [section 726(c) ] to include a maximum period of confinement in its dispositional order” (In re Ali A., at p. 573), and the setting of an MTPC “is of no legal effect” (id. at p. 574).   Accordingly, as the parties agree, the juvenile court erred when it set an MTPC of eight years for appellant.   (Ibid.;  In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)

Appellant contends the error requires the striking of the MTPC. The People counter that the MTPC “is of no legal effect,” does not prejudice appellant, and therefore “there is no need to strike the term.”   We believe appellant is entitled to a dispositional order free of potentially confusing legally ineffective directives, and that the practice of improperly declaring an MTPC should be discouraged.  (In re Matthew A., supra, 165 Cal.App.4th at p. 541.)   Therefore, we will strike the MTPC. (Ibid.)


The maximum term of confinement of eight years declared by the court is stricken.   As modified, the judgment is affirmed.


FOOTNOTE.  FN*.  Before Cornell, Acting P.J., Gomes, J., and Dawson, J.

FN1. Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code..  FN1. Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.

FN2. Because appellant challenges the denial of his motion to dismiss, our factual summary is limited to evidence adduced during the presentation of the People's case.  (See In re Anthony J. (2004) 117 Cal.App.4th 718, 730 [“review of an unsuccessful motion for [dismissal] is limited to the evidence introduced at the time the motion was made”].).  FN2. Because appellant challenges the denial of his motion to dismiss, our factual summary is limited to evidence adduced during the presentation of the People's case.  (See In re Anthony J. (2004) 117 Cal.App.4th 718, 730 [“review of an unsuccessful motion for [dismissal] is limited to the evidence introduced at the time the motion was made”].)

FN3. Except as otherwise indicated, the remainder of our factual statement is taken from Maggie's testimony..  FN3. Except as otherwise indicated, the remainder of our factual statement is taken from Maggie's testimony.


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