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In Re A.A., A Person Coming v. A.A

November 1, 2011

IN RE A.A., A PERSON COMING
UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
A.A., DEFENDANT AND APPELLANT.



(Super. Ct. No. JVSQ102547)

The opinion of the court was delivered by: Hoch ,j.

In re A.A. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 2009, 14-year-old A.A. (minor) enticed then five-year-old M.W. to masturbate him. The court sustained a petition finding the minor committed a lewd act upon a child under 14 years of age. (Pen. Code,*fn1 § 288, subd. (a).) On appeal, the minor contends there was insufficient evidence to support the adjudication and the trial court abused its discretion by prohibiting him from associating with children under 14 years old unless an unrelated responsible adult is present. We find there is sufficient evidence to support the adjudication and the probation conditions complained of are not vague or overbroad. Accordingly, we affirm.

FACTUAL BACKGROUND

M.W. and his family lived at his grandmother's home. M.W. and the minor played together at the home and sometimes the minor would spend the night.

In the summer of 2009, the minor told M.W. to masturbate him. They were in the bedroom where M.W. and his brother slept, sitting on the bed and under the covers. The minor threatened not to play with M.W. anymore if M.W. refused and offered M.W. gum in exchange for the act. M.W. could not remember exactly how many times this occurred, but he knew it happened in the summer. M.W. denied any oral copulation occurred.

The minor denied touching M.W. sexually or having M.W. touch him sexually. He claimed he was never in the home without his mother. He slept in the living room, never in any of the bedrooms. His mother did not allow him in the bedrooms. He admitted having a sexual conversation with M.W. in response to M.W. asking him about ejaculation. He also showed M.W. a hand gesture indicating masturbation. The minor testified he did not know what masturbation was at the time he was visiting with M.W., and had never masturbated himself.

M.W.'s younger brother, K.B., testified that, when he was spying on M.W. and the minor, he heard the minor tell M.W. to orally copulate him and offer M.W. gum and M.W. complied. He heard the minor tell M.W. to do this 100,000 times. He also claimed he was in another room spying on them using his binoculars which let him see through walls.

The minor's mother*fn2 and sister both testified the home was a 900 square foot trailer, and because of its layout it was easy to see from one end to the other. The minor was not permitted to go into the bedrooms of the trailer, was never in them with the door shut and mother knew where he was in the home at all times. There were no beds in the bedrooms, but rather blankets and pillows on the floor. The children would play together on the front porch or in the living room, but never in the bedrooms. The minor was never in the home without his mother.

M.W.'s mother testified that the minor's mother sometimes left the minor in the house without her when she went to her boyfriend's home. As to beds in the bedrooms, M.W.'s mother clarified that initially there were air mattresses on the bedroom floors. When those were "busted" there were just pillows and blankets on the floor and then air mattresses again. Eventually, she was able to save enough money to buy beds. Irrespective of what was actually on the floor, the children called the air mattresses and pillows and blankets a bed.

A few months after the molestation, in November 2009, M.W. reported he had been put in a trash can and locked in a closet. M.W.'s mother told the investigator that M.W. had a tendency to "make up things." A few weeks later, ...


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