(Super. Ct. No. J-220996) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag and Carolyn M. Caietti, Judges. Reversed.
The opinion of the court was delivered by: Mcconnell, P. J.
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A second amended petition filed in juvenile court under Welfare and Institutions Code section 602 charged D.M. with three felonies arising from one incident with another boy: forcible oral copulation, with an enhancement based on his knowledge the victim was developmentally disabled (Pen. Code,*fn1 §§ 288a, subd. (c)(2), 667.9, subd. (a), count 1); a forcible lewd act on a child under fourteen years of age (§ 288, subd. (b)(1), count 2); and a nonforcible lewd act on a child under 14 years of age (§ 288, subd. (a), count 3). The court made true findings on all charges and the enhancement and imposed probation with a number of conditions. On appeal, D.M. contends the evidence is insufficient to satisfy the element of duress for counts 1 and 2. D.M. also challenges the sufficiency of the evidence to satisfy the element of counts 2 and 3 that the act was for the purpose of his sexual gratification. We agree and reverse the judgment.*fn2
On July 19, 2008 (hereafter July 19), D.M. and J.C. were with their mothers at a thrift store. At the time, D.M. was 12 years old and J.C. was 10 years old. According to J.C.'s mother, he has a "slight retardation," he attends special education classes, and she must help him with daily activities such as reminding him to brush his teeth. He cannot be left alone for a "long time," but he does not need constant supervision "because he can manage himself well." According to D.M., his mother began home schooling him when he was in second or third grade because he has attention deficit disorder and his behavior disrupted his class. He acknowledged his condition causes him to "mak[e] the wrong decision maybe once in a while."
D.M. and J.C. had played together during previous visits to the thrift store. On July 19, the boys went to the store's second story loft area and played with a Gameboy, a hand held video game device, that belonged to J.C.'s cousin.
J.C. testified that D.M. took his pants down and politely asked J.C. to kneel down and "taste his penis." D.M. asked, "Can you please do that?" J.C. said he did not want to, and D.M. responded, "just do it." J.C. then knelt down and D.M. put his penis in J.C.'s mouth. The act caused J.C. to have trouble breathing and to cough. J.C. testified that after the act he had "[d]irty stuff" "[l]ike germs" in his mouth. He denied that D.M. held his head or any other part of his body during the act.
J.C. admitted that when D.M. wanted to play with the Gameboy, J.C. refused unless D.M. showed his penis to J.C. D.M. complied with J.C.'s request. J.C. first testified this occurred during the July 19 incident, but he then said he asked to see D.M.'s penis "[w]ay before" that time.
D.M. testified that on July 19, J.C. refused to let him play the Gameboy unless he showed J.C. his "wee-wee." D.M. said J.C. pulled his pants down first, and then D.M. pulled his pants down and J.C. "put his mouth around my thing." D.M. denied asking J.C. to taste his penis. When asked whether he knew J.C. was "mentally ill," D.M. responded, "I knew he was a little bit strange, but I didn't really know he was that bad off until . . . he put his mouth on my penis. I knew he was a little bit bad off." D.M. said he earlier denied the incident occurred because he did not want to get into trouble or have anyone think he is gay.
J.C.'s mother testified that on July 19, J.C. "was coming down the stairs very rapidly," as if he was scared and as if he wanted to throw up." He said, "Ma, ma, my friend put his thing in my mouth." She saw "slobber" between his lips. J.C. went to the restroom and rinsed out his mouth. J.C.'s mother found D.M. and confronted him. A cashier noted J.C. was gagging and he appeared frightened. When the cashier said he was going to call the police, D.M. began to cry and blamed the incident on J.C. When D.M.'s mother appeared, he denied the incident took place at all.
The former cashier testified he asked D.M. if he put his penis in J.C.'s mouth, and D.M. admitting doing so and said he was sorry. When D.M.'s mother approached, though, he denied doing it. J.C. appeared scared and he was gagging. Another thrift store employee testified J.C. "had a lot of saliva in his mouth and he really looked like he wanted to rinse his mouth out." The People asked this employee whether J.C. could have had semen in his mouth, and she responded, "It could have been."
During an interview of D.M. by a detective,*fn3 D.M. said that on July 19, he and J.C. went to the second floor loft area of the thrift store, where J.C.'s cousin was playing near the top of the stairs with a Gameboy. J.C. annoyed his cousin by begging to play with the Gameboy. The cousin went downstairs and left the Gameboy behind. D.M. explained that "one thing led to another and [J.C.] ended up opening his pants and . . . then I did the same thing and he put . . . I put my dick in his mouth." D.M. later said J.C. put D.M.'s penis in his mouth. D.M. added, "And then I realized that after like probably two seconds maybe that it was wrong and I said no more." According to D.M., he and J.C. then returned to playing with the Gameboy.
D.M. denied to the investigator that he used any force against J.C. He also denied his penis was erect during the incident or that any substance came out of it. When the investigator asked whether that was a possibility, he responded, "That could be possible, I doubt it though," because "it didn't become hard" and "it was so quick." He denied that the incident was pleasant or felt good. He denied knowing the meaning of the term "ejaculate." When asked whether he had ever "masturbated and had an orgasm," he said he had touched his penis and "it became hard," but nothing came out of it. He said he knew what the word "orgasm" meant, but he defined it as "like a living kind of thing." He had not studied sex education, but had learned in a life ...