APPEAL from an order of the Superior Court for the County of Los Angeles. Stephanie M. Bowick, Judge. (Los Angeles County Super. Ct. No. KJ 34345)
The opinion of the court was delivered by: Grimes, J.
CERTIFIED FOR PUBLICATION
The issue in this case is whether evidence was admissible under a rarely used -- so far as published appellate cases reveal -- statutory provision. Evidence Code section 1228 (hereafter section 1228) allows, as an exception to the hearsay rule in certain cases involving sex crimes against children, the admission of the child victim's out-of-court statements, but under specified conditions and solely "for the purpose of establishing the corpus delicti as a necessary antecedent to introduction of the defendant's confession." (People v. Alvarez (2002) 27 Cal.4th 1161, 1175.) In this delinquency proceeding, the juvenile court admitted the hearsay statements of the three-year-old victim and then found the lewd act allegations against the minor defendant to be true. The minor defendant contends the requirements of section 1228 were not met, and there was otherwise no evidence (except his own extra-judicial statements) to establish the corpus delicti, or body of the crime. We conclude the requirements of section 1228 were satisfied and affirm the juvenile court's order.
FACTS AND LEGAL PRINCIPLES
On October 20, 2009, the Los Angeles County District Attorney filed a two-count petition alleging that the 15-year-old minor, J.A., came within the provisions of section 602 of the Welfare and Institutions Code, in that he committed the crime of lewd act upon a child, a felony (Pen. Code, § 288, subd. (c)(1); count 1), and the crime of attempted lewd act upon a child, a felony (Pen. Code, §§ 664 & 288, subd. (c)(1); count 2).*fn1 J.A. denied the allegations. In January 2010, the juvenile court found the allegations true and sustained the petition. J.A. was released to his parents and the case was continued for disposition. After J.A. admitted an allegation in a later petition (filed in March 2010) alleging a felony count of assault by means likely to produce great bodily injury, the juvenile court ordered that J.A. be placed home on probation and participate in a sexual offender treatment program.
J.A. filed a timely appeal. He contends the trial court erroneously admitted hearsay evidence under section 1228 and, without that evidence, the court's order sustaining the allegations rested only on his own out-of-court admissions, in violation of the corpus delicti rule. For sake of clarity, we describe the legal principles upon which J.A. relies before relating the evidence adduced before the juvenile court.
First, the corpus delicti principle -- requiring proof that a crime actually occurred -- cannot be satisfied by exclusive reliance on a defendant's extra-judicial statements. (People v. Alvarez, supra, 27 Cal.4th at pp. 1164-1165.) "[E]very conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and . . . the jury must be so instructed." (Id. at p. 1165.)
Second, section 1228 provides an exception to the hearsay rule in certain cases involving sex crimes against children (including the crimes charged in this case). Section 1228 "is directed at the corpus delicti rule." (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 826 (Creutz).) The hearsay exception in section 1228 is "for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person accused" of those crimes. For this purpose, the court may admit the out-of-court statement of a child victim if several conditions are met.
The statement must be made by a victim under the age of 12. Its contents must have been included in a written report of a law enforcement official or county welfare department employee. (§ 1228, subd. (a).) The statement must describe the child as a victim of sexual abuse. (Id., subd. (b).) It must be made prior to the defendant's confession. (Id., subd. (c).) There must be no significant inconsistencies (or other circumstances that would render the child's statement unreliable) between the defendant's confession and the child's statement "concerning material facts establishing any element of the crime or the identification of the defendant . . . ." (Id., subd. (d).) The child must be unavailable or refuse to testify. (Id., subd. (e).) And the defendant's confession must have been memorialized "in a trustworthy fashion by a law enforcement official." (Id., subd. (f).) If these conditions are met and the child's statement is found admissible, it is to be admitted "solely for the purpose of determining the admissibility of the confession of the defendant." (§ 1228.)
In this case, the victim was three years old, and J.A. is her 15-year-old uncle (the younger brother of the victim's mother). The victim did not testify at the hearing. She was called as a witness but began to cry and would not answer any questions, so the court deemed her unavailable as a witness. The mother testified for the prosecution, as did the police officer who questioned J.A. and prepared the report of J.A.'s statements. The victim's aunt (J.A.'s sister) testified for the defense. The mother's testimony was given subject to a continuing hearsay objection by the defense. (The juvenile court informed the parties it would hear all the evidence before making its admissibility determination.) Viewed in the light most favorable to the judgment, the evidence showed the following circumstances.
Various relatives were gathered for a family reunion at the home of the victim's grandparents in Pomona. The gathering was in the backyard most of the day, but in the late afternoon, most of those present went indoors. The victim, a very active child, was outdoors, as was J.A. They were outside for about 30 minutes.
The victim's aunt was bathing her children. The victim came running in from the backyard, saw that her cousin S. was taking a shower, and wanted to take a shower also. She went straight to the bathroom, and the mother's sister asked the mother if she (the aunt) could bathe the victim. The mother said "yes," and after bathing the victim, the aunt wrapped her in a towel and took her to another room. The mother was walking into the room when she heard the victim tell her aunt that J.A. had touched her private part.
The mother then questioned her daughter. The victim told her mother in Spanish that J.A. had touched her "cola," by which she meant her vagina. The mother asked if J.A. had pulled her pants down, and the victim told the mother that he did. The mother asked, "Up to where?" and the victim told her "up to her buttocks." The victim told her mother "he sucked her part." The mother asked how J.A. did it, and the victim "stuck her tongue out, in and out her mouth." The mother "asked her what else had happened, and she [the victim] told me that she did not want to taste it because it tasted nasty." (The victim did not tell her mother to what she was referring.) Her mother asked her where this had happened, and the victim told her it happened in the backyard. The mother asked the victim to take her to where it happened, and the victim took her to the backyard. The mother asked the victim what J.A. was doing, and the victim said "[t]hat he was outside watering plants, and that's when it happened." The victim was very casual and was not crying while she was talking to her mother.
The mother began to cry. She confronted J.A. in the backyard, after talking to her parents, who were questioning her about what had happened. (J.A. had gone to the store and then returned.) J.A. "immediately denied anything . . . ." The next time the victim saw J.A., several hours later that same evening, she told her mother "she did not like him no more." Her mother asked why, and the victim, who was sitting, told her "because he had sucked her private part, ...