Opinion
C088838
04-21-2020
In re A.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.P., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JDSQ180000160)
Following a contested jurisdictional hearing, the juvenile court found the minor A.P. committed sexual battery. (Pen. Code, § 243.4, subd. (e)(1).) On appeal, A.P. contends there was insufficient evidence for the juvenile court's finding. We disagree and affirm.
Further undesignated statutory references are to the Penal Code.
I. BACKGROUND
An October 2018 Welfare and Institutions Code section 602 petition alleged A.P., then 14 years old, committed misdemeanor sexual battery and misdemeanor grand theft. (§§ 243.4, subd. (e)(1), 487, subd. (c).) Both A.P. and 16-year-old Doe testified at the contested jurisdictional hearing.
Doe testified that on September 5, 2018, she was riding a school bus with around 20 other students. She was reclining in a seat big enough for two people, with her back against the side of the bus, when A.P., a student who attended the same school, sat in her lap with his back to her, reached an arm behind his back, took her phone out of her hands, and then touched her thighs and vagina over her clothing. Doe told A.P. to stop and moved his hand away, but A.P. remained on top of Doe for about 20 minutes.
On three or four prior occasions on the bus, A.P. had acted similarly toward Doe. But this time he tried to put his hand down Doe's pants.
When Doe's friends confronted A.P. about the incident (while Doe stood close by), A.P. said "yes, he did" what Doe told her friends, and that "he would never do it again to" Doe.
Two days after the incident Doe informed the school and stopped taking the bus altogether.
On cross-examination, counsel for A.P. confirmed with Doe that, in a written statement of the incident—which counsel showed to Doe, but did not seek to enter into evidence—she did not write the words "thigh" or "vagina" when describing what A.P. did to her.
A.P. testified that he was friends but not close friends with Doe, and that on the day in question he sat next to Doe, but never touched her "vaginal area," or any "private place" on her body on that day or any time before. A.P. had used Doe's phone before, and had "leaned on her once," but had also leaned on other male and female students during bus rides.
A.P. agreed that Doe's friends accused him of touching her inappropriately, and that Doe was standing close enough to hear the conversation, but insisted that he told Doe's friends that he did not touch her.
During closing arguments, counsel for A.P. and the juvenile court discussed the significance of Doe's written statement and if it was "inconsistent" with her testimony. Counsel for A.P. argued the written statement was "absolutely inconsistent with the trial statement," but the juvenile court pointed out the statement "was never . . . admitted," so all the court knew was that Doe "admitted that two terms were not used in that writing . . . . [The juvenile court couldn't] say that that's an inconsistent statement." The juvenile court explained: "I don't know if [Doe] used an alternative like 'private area.' I don't have that evidence."
The juvenile court sustained the sexual battery allegation, but not the grand theft allegation. The juvenile court found Doe "extremely credible," emphasizing that it had "the opportunity to observe" Doe's testimony, and saw "her hands trembling" and "her emotion." The juvenile court emphasized that Doe "didn't take the bus thereafter," which showed "this incident was clearly not something she wanted to occur."
The juvenile court ruled there was not enough evidence that A.P. took Doe's phone "with intent to permanently deprive."
A.P. filed a motion for a new hearing, citing counsel's "failure to submit [Doe's] prior written statement into evidence" at the jurisdictional hearing and attaching the written statement. At a January 2019 dispositional hearing, the juvenile court denied the new hearing motion and placed A.P. on probation, but did not declare him a ward of the court.
The hand-written statement, on a school district "Incident Report Form," is dated September 8, 2018, and describes how, after Doe refused to allow A.P. to use her phone, he "just went and sat on [Doe's] seat and [then] lay[] on [Doe] and . . . took [her] phone from [her] and then he put his arm behind his back and tried to put his hand down [Doe's] pants." --------
A.P. timely appealed.
II. DISCUSSION
A.P. argues there was insufficient evidence to sustain the sexual battery allegation. Specifically, A.P. contends "the total picture does not constitute" sufficient evidence to sustain the allegation, "given [Doe's] inconsistent statements and lack of immediate reporting, and lack of eyewitnesses . . . and given [A.P.]'s lack of a criminal history." A.P. also argues there is insufficient evidence he "harbored any intent to sexually arouse himself or abuse [Doe]." We affirm.
Section 243.4, subdivision (e)(1) provides in relevant part:
"Any person who [1] touches an intimate part of another person, if the touching is [2] against the will of the person touched, and is [3] for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery . . . ." (Italics added.)
"[T]he sexual battery statute's use of the phrase touching 'for the specific purpose of . . . sexual abuse' encompasses a purpose of insulting, humiliating, intimidating, or physically harming a person sexually by touching an 'intimate part' of the person." (In re Shannon T. (2006) 144 Cal. App.4th 618, 621, italics added.)
On appeal from the juvenile court's adjudications after a contested jurisdiction hearing, " '[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citations.] Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. [Citations.]" (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615-616.)
" 'Evidence of . . . state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support [sustaining an allegation].' " (People v. Rios (2013) 222 Cal.App.4th 542, 568.) " '[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.' [Citations.] Other relevant factors can include the defendant's extrajudicial statements [citation]." (People v. Martinez (1995) 11 Cal.4th 434, 445.)
As A.P. concedes, Doe's testimony, by itself and if believed by the trier of fact, can supply all the evidence necessary to sustain an allegation in a Welfare and Institutions Code section 602 petition. (People v. Ghobrial (2018) 5 Cal.5th 250, 281 ["It is well settled that 'unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support' " a finding beyond a reasonable doubt].)
The juvenile court found Doe credible, in part due to her demeanor during the jurisdictional hearing. We will not second-guess that credibility determination. (See People v. Scott (2011) 52 Cal.4th 452, 493 ["a witness's 'demeanor is always relevant to credibility' "]; People v. Lewis (2001) 26 Cal.4th 334, 359 [giving "proper deference" to a credibility finding, because "reviewing court[s] . . . confront a cold record without the trial court's benefit of observing firsthand the appearance and demeanor of the witness"].)
Here, A.P. placed himself on top of a reclining Doe with his back to her, moved his arm behind his back, touched Doe's thighs and vagina over her clothes with his hand, and tried to place his hand inside of Doe's pants. He did this for about 20 minutes, despite Doe telling him to stop and moving his hand away. This is substantial direct evidence for elements 1 and 2 of sexual battery, as A.P. (1) touched an intimate part of Doe (her vagina) (2) against Doe's will (as A.P. did this even after Doe told A.P. to "stop," and pushed his hand away).
Regarding element 3—that A.P. acted for the specific purpose of insulting, humiliating, or intimidating Doe—the act of touching Doe's vagina for a significant period of time is substantial direct evidence, and A.P.'s extrajudicial admission to Doe's friends that he inappropriately touched Doe and promised to "never do it again" is substantial circumstantial evidence, that A.P.'s conduct "was neither innocent nor accidental. The reasonable inference to be drawn from the evidence is that [A.P.] engaged in the acts with the intent of" insulting, humiliating, or intimidating Doe. (People v. Cantrell (1973) 8 Cal.3d 672, 681 [explaining that the prosecution may establish intent to commit a sex crime by using defendant's extrajudicial statements], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.)
A.P. cites In re Shannon T., supra, as authority for his contention there was insufficient evidence to sustain the sexual battery allegation, because "much more nefarious conduct is needed to establish sexual abuse" than what Doe said A.P. did. A.P. is incorrect because, as the People contend, In re Shannon T. did not purport to set a minimal showing required for sexual battery.
We reject A.P.'s invitation to consider an argument "whether the prior inconsistent statement of a sexual battery victim has to be a complete denial to justify a challenge to her credibility," because it is undeveloped, and not stated under a separate heading or subheading. Therefore, the argument is forfeited. (See Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, fn. 10; Cal. Rules of Court, rule 8.204(a)(1)(B).)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
MAURO, Acting P. J.
/S/_________
MURRAY, J.