IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
November 1, 2011
IN RE A.A., A PERSON COMING
UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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, M.W. admitted to the investigator he had fabricated the story.
A Welfare and Institutions Code section 602 petition was filed, alleging that the minor committed continuous sexual abuse of a minor (§ 288.5, subd. (a) -- count one), a lewd act upon a child (§ 288, subd. (a) -- count two), and oral copulation of a person under 18 years of age (§ 288a, subd. (b)(1) -- count three). At the close of the People's case, the court granted the minor's motion to dismiss counts one and three. The petition was sustained as to count two.
At the dispositional hearing, the minor was adjudged a ward of the court, under the supervision of the probation department and returned to his parent's custody. As a condition of probation, he was ordered to serve 155 days in juvenile hall, with credit for time served, and pay $2,000 in direct victim restitution. In addition to various other terms of probation, the minor was ordered not to associate with "persons under the age of 14 years unless accompanied by an unrelated responsible adult."
Substantial Evidence Supports the Adjudication
The minor contends there was insufficient evidence to support the determination that he violated section 288, subdivision (a), by committing a lewd act against M.W. Specifically, he challenges M.W.'s testimony and contends it was inherently improbable. We are not persuaded.
"In reviewing a criminal conviction challenged as lacking evidentiary support, '"'the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" [Citation.]' (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)" (People v. Combs (2004) 34 Cal.4th 821, 849.) In making this assessment, we do not assess the relative credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Nor can we disregard evidence believed by the trial court, unless that evidence is inherently improbable. (People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Ennis (2010) 190 Cal.App.4th 721, 728; People v. Gunn (1959) 170 Cal.App.2d 234, 239.)
The minor's argument goes to the weight of the evidence; not inherent improbability. The minor argues that M.W.'s testimony is inherently improbable based on internal inconsistencies in M.W.'s testimony and testimony from other witnesses contradicting M.W.'s testimony. Specifically, the minor argues M.W.'s testimony is inconsistent because at one point M.W. testified the molestation occurred in the room where he and his brother slept and another time he indicated it happened in his grandmother's bedroom. The minor also relies on discrepancies between M.W.'s testimony and that of others. For example, M.W. testified the incident occurred in a bedroom, others testified the minor was not permitted in the bedrooms and was never in the home without his mother, who always knew where he was in the residence; and, M.W. testified the incident occurred on a bed, others testified there were no beds in the rooms. These are not examples of inherent improbability, but are examples of testimonial inconsistencies or discrepancies. Evidence is inherently improbable when it is either unbelievable on its face or physically impossible. (See In re Paul C. (1990) 221 Cal.App.3d 43, 54; People v. Carpenter (1955) 136 Cal.App.2d 726, 728; People v. Moreno (1938) 26 Cal.App.2d 334, 336.) Contradictions, inconsistencies or discrepancies in testimony go to the weight of the evidence and "are matters solely for the consideration of the trier of fact." (People v. Merrill (1951) 104 Cal.App.2d 257, 263.) Here, the minor's arguments are really an attempt to attack the victim's credibility. As such, these arguments "cannot be the basis for a reversal of the judgment on appeal." (People v. Ennis, supra, 190 Cal.App.4th at p. 725.)
In sustaining the allegations of the petition, the court found M.W. a credible witness. The court noted that when M.W. fabricated an allegation, he quickly recanted and admitted he had lied. In pursuing this case over the course of about one year, M.W. withstood numerous interviews and remained consistent in his assertion that the minor told M.W. to masturbate him. The court also noted the minor's testimony that he discussed masturbation with a five year old provided some corroboration of M.W.'s testimony. In contrast, the court found portions of the minor's defense were not credible. The court did not believe the minor's testimony about his own lack of masturbation. Nor did the court find the testimony of the minor's mother and sister about who was present in the home credible.
To sustain the allegation in the petition, the prosecution was required to establish that the minor touched an underage child's body with the intent of sexual gratification. (People v. Martinez (1995) 11 Cal.4th 434.) The minor does not contend that, if believed, M.W.'s testimony was insufficient to sustain an adjudication under section 288. Here, the evidence was that in the summer of 2009, M.W. and the minor were in a bedroom. Upon the minor's instruction, and in exchange for some gum and continued interaction, M.W. masturbated the minor. This testimony, not being either facially unbelievable or physically impossible, provided sufficient evidence to support the judgment.
The minor next contends the court abused its discretion in imposing a probation condition prohibiting the minor from associating "with persons under the age of 14 years unless accompanied by an unrelated responsible adult." Specifically, he contends the condition is vague and overbroad because: (1) the association with a child under 14 could be unknowing; (2) there was no reason to require the supervising adult be unrelated; and (3) ascertaining the adult's level of responsibility is difficult.
The minor's claim that the probation condition is vague because it does not include a qualification that he know the child he is associating with is under 14, involves a question of law and is one frequently raised and addressed by this court. The repetitive nature of this issue in appeals and the well-established body of law making it clear "that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter" recently compelled us to address this issue. In People v. Patel (2011) 196 Cal.App.4th 956, we announced our intent that we will no longer entertain this issue on appeal; that we will "construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly." (Id. at p. 960.) Accordingly, it is no longer "necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement." (Patel, supra, at pp. 960-961.)
The minor also challenges the portion of this probation condition that requires him to be supervised by an "unrelated responsible adult" when in the presence of a child under 14 years old on two grounds: (1) there was "no reason" supporting this requirement; and (2) determining who qualifies as a "responsible" adult is too difficult.
As to the first challenge, the minor argues there is no apparent reason why he "could not associate with an under 14-year-old child in the presence of his aunt, or another relative who is responsible and an adult. There is no evidence in the record that any of [his] relatives were in the least complicit in [the minor's] misconduct." Unlike the minor's challenge to the probation condition prohibiting the association with a child under 14 that presents a pure question of law, the resolution of this challenge requires an examination of the facts. The minor did not object to the probation condition. The failure to raise this objection to the sentencing court forfeits any claim a condition was factually inappropriate. (In re Sheena K. (2007) 40 Cal.4th 875, 885.)
However, even if the issue were not forfeited, we reject the minor's challenge. "A juvenile probationer may be . . . subject to 'any and all reasonable conditions' the court 'may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' In deciding what probation conditions are appropriate, the court shall consider not only the circumstances of the offense but also the minor's entire social history. Such conditions are valid and enforceable unless they bear no reasonable relationship to the underlying offense or prohibit conduct that is neither criminal in nature nor related to future criminality. On appeal, the court's exercise of discretion will not be disturbed absent a manifest abuse of discretion." (In re Juan G. (2003) 112 Cal.App.4th 1, 6-7, fns. omitted.)
Here, the record indicates that the minor's mother and sister were regularly with the minor and M.W. in the home where M.W. was molested, and were apparently unaware of what was happening. Testifying in the minor's defense, the court found significant portions of their testimony was not credible, suggesting either complete denial of the minor's conduct or a willingness to engage in deception to protect the minor. The minor's risk factors for reoffending include his lack of empathy for the victim, his lack of remorse and guilt, his refusal to accept responsibility for the offense, and denial that he sexually abused M.W. The probation report reveals that the minor's mother told several people about the "incident" which led to M.W. being teased and assaulted in school, and made "the situation more difficult than it had to be." A psychological evaluation noted "some reservations regarding [the minor's mother] and her willingness to support [the minor] should treatment be mandated. She indicated that she does not believe he committed the alleged offenses and should not be forced to attend treatment. She blamed the victim and his family." Given these circumstances, the requirement that any supervising adult be unrelated to the minor was reasonably related to the possibility of future criminality.
The minor's second challenge to this condition relates to the portion requiring the supervising adult be "responsible," complaining the term is "vague" with "no definite standard" to determine its meaning. Contrary to the thrust of the minor's claim, the word "responsible" in this condition does not require the minor to determine whether an adult has achieved any particular level of personal responsibility or maturity. Rather, as we concluded when addressing an identical probation condition in People v. Turner (2007) 155 Cal.App.4th 1432, "[g]iven the purpose of the probation condition, protecting children from defendant, it is clear this phrase refers to an adult responsible for the minor with whom defendant wishes to associate." (Id. at p. 1436.) We continue to believe this is the meaning of "responsible" in this context and find no error.
The judgment is affirmed.
We concur: RAYE , P.J. HULL ,J.