In re K.C. CA4/2

Filed 5/3/16 In re K.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E063623
Plaintiff and Respondent,
(Super.Ct.No. J256072)
v.
OPINION
K.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, Tami Hennick
and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
Following a jurisdictional hearing, the juvenile court found true that defendant and
appellant K.C. (minor) committed sexual penetration by a foreign object on a minor
victim over 14 years old against her will (Pen. Code, § 289, subd. (a)(1)(C)).1 Minor was
thereafter declared a ward of the court and placed on probation in the custody of his
brother. On appeal, minor argues there was insufficient evidence to sustain the petition
and that this court should modify the judgment to reflect the lesser included offense of
simple battery. We reject minor’s contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In May 2014, the victim and minor were friends for about one year. The victim
was 15 years old and minor was 16 years old. On May 27, 2014, the victim went to
minor’s house after school to “ ‘hang out.’ ” Minor’s brother and a couple of other
friends were also at minor’s house. While minor and the victim were talking in the
garage, the others left in their cars. After minor closed the garage door, minor and the
victim began kissing.
Minor then pulled down the victim’s pants and underwear and began to fondle her
vagina. The victim told minor to stop, but minor continued touching her. The victim told
minor that she did not want to have sex and that he should stop. At some point, minor
turned the victim’s body around until she was facing away from him. The victim felt
minor’s penis as minor was behind her. While still standing, minor bent the victim over
1 All future statutory references are to the Penal Code unless otherwise stated.
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and told her, “ ‘You are going to take this dick.’ ” The victim again told minor to stop,
but she felt him anally penetrate her three times. Minor also vaginally penetrated the
victim. The victim testified that she was unable to physically see what was going on
behind her; that she was unaware of what it was that had penetrated her; and that she
could not see what penetrated her. Minor had one hand on her hip, and she did not know
where his other hand was at the time. The victim also testified that minor never
ejaculated when he penetrated her.
After being penetrated, minor and the victim fell to the ground, with minor landing
to the victim’s side. Minor asked the victim if she wanted to have sexual intercourse.
The victim refused, stood up after minor moved away from her, pulled her clothes back
on, and went inside the house. After the victim and minor talked in the house for a while,
the victim left.
Later, the victim felt pain in her vagina and anal area. She also noticed dried
blood when she went to the bathroom. The victim called the police after speaking with
her sister and youth pastor. At the direction of the police, the victim made a pretextual
call to minor. When the victim confronted minor about the incident during the call,
minor said he “was hard” and “wanted to bust a nut.” Detective Louis Rios testified that
when he spoke to the victim, she told him that minor tried to put his penis inside her
vagina and anus.
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Minor testified that he vaginally and anally penetrated the victim with his penis.
However, he claimed the vaginal intercourse was consensual and that he stopped the anal
intercourse when the victim asked him to.
At the conclusion of the prosecution’s case, defense counsel made a motion to
dismiss the petition under Welfare and Institutions Code section 701.1. Counsel argued
the prosecution had not “proven beyond a reasonable doubt that the foreign object was
anything other than a penis,” which is required for a violation of Penal Code section 289.
The prosecutor replied that circumstantially it may have been a penis but the victim
replied “no” when asked several times if she saw what it was that had penetrated her.
The prosecutor explained that the victim could not identify if it was a penis or another
object because she was facing the other direction. Also the People could have charged it
as a violation of section 286 (sodomy) but the prosecutor “would have the same difficulty
with a [section] 286 proving that it was a penis rather than not.” The court denied the
motion, finding that there was sufficient evidence to go forward with the prosecution’s
theory under the “unknown-object element.”
During closing argument, the prosecutor again argued that the evidence was not
clear as to exactly what penetrated the victim and therefore minor could properly be
convicted of penetration by an “unknown object.” Defense counsel argued that the
evidence showed the penetration was in fact by minor’s penis and, thus, he could not be
convicted of violating section 289. After hearing argument, the court adjourned to the
next day.
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On the following day, the court stated it had researched the issue and found some
guidance on the law relating to section 289 but no guidance on this exact issue. The court
thereafter explained:
“So I look at it from the point of view that the People are claiming unknown object
in their theory. I am the trier of fact. I am saying there is no doubt in my mind—just to
make it clear for the record—there is no doubt in my mind it was a penis, especially after
defense counsel called Officer Rios to talk about the victim said it wasn’t his fingers or
something to that extent. There is no doubt in my mind, circumstantially, it was a penis
that penetrated the anus. So that’s me, the trier of fact, making a determination that it
was, in fact, a penis and not some other unknown object.
“And so I am trying to figure out if, basically, a conviction for 289 can stand once
the trier of fact make[s] a determination that it was a penis beyond a reasonable doubt.
And I would say it is a penis beyond a reasonable doubt to me.
“So I am thinking that this instruction allows a trier of fact to come up with that
determination, and it would still qualify for 289. And so that is how I am interpreting
this. Like I say . . . this is a difficult task because I think it is a very technical area of the
law. . . .
“Obviously, if the legislature did not mean to prohibit this conduct by the statute,
then I cannot find it true, even on the technicality. But I think because they added this
language and there is some evidence the People rely upon to say that the victim couldn’t
be sure what it was . . . that arguably it was unknown because she didn’t actually see it,
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and she wasn’t 100 percent sure what it was, so she didn’t want to say beyond a doubt or
something like that. . . . So that’s sort of what the People presented in order to cover their
bases, I guess. I could say it would be easier if the People charged both the sodomy and
the unknown object penetration. . . . But because sodomy wasn’t charged, then I am left
with this.”
The trial court thereafter found true the allegation minor committed a violation of
section 289.
II
DISCUSSION
Minor argues there was insufficient evidence to sustain the juvenile court’s true
finding that he committed sexual penetration by a foreign object because the court found
the victim was penetrated by minor’s penis rather than an unknown object and therefore
the evidence precluded a finding minor violated section 289. Minor requests this court to
modify the judgment to reflect the lesser included offense of simple battery.
“Where the juvenile court has sustained a petition, an attack on the sufficiency of
the evidence to support that ruling is governed by the substantial evidence rule.” (In re
Andrew I. (1991) 230 Cal.App.3d 572, 577.) When a minor challenges the sufficiency
of the “evidence to support the judgment, our review is circumscribed. [Citation.]
We review the whole record most favorably to the judgment to determine whether there
is substantial evidence—that is, evidence that is reasonable, credible, and of solid
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value—from which a reasonable trier of fact could have made the requisite finding under
the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Further, we review “the evidence in the light most favorable to the prosecution,
[asking whether] any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a
defendant [here, minor] has been found guilty of the crime charged, the factfinder’s role
as weigher of the evidence is preserved through a legal conclusion that upon judicial
review all of the evidence is to be considered in the light most favorable to the
prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted.)
“Whether the evidence presented at trial is direct or circumstantial, . . . the relevant
inquiry on appeal remains whether any reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Towler (1982) 31
Cal.3d 105, 118-119.) “ ‘Although it is the duty of the jury [or trier of fact] to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury [or trier of fact],
not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. “ ‘If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.’ ”
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[Citations.]’ [Citation.] ‘ “Circumstantial evidence may be sufficient to connect a
defendant with the crime and to prove his guilt beyond a reasonable doubt.” ’
[Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Section 289, subdivision (a)(1)(C), provides, “Any person who commits an act of
sexual penetration upon a minor who is 14 years of age or older, when the act is
accomplished against the victim’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another person, shall be
punished by imprisonment in the state prison for 6, 8, or 10 years.” A violation of
section 289 thus requires an act of sexual penetration.
“ ‘Sexual penetration’ ” is defined as “the act of causing the penetration, however
slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or device, or by any
unknown object.” (§ 289, subd. (k)(1).) “ ‘Foreign object, substance, instrument or
device’ shall include any part of the body, except a sexual organ.” (§ 289, subd. (k)(2),
italics added.) An “ ‘[u]nknown object’ ” includes “any foreign object, substance,
instrument, or device, or any part of the body, including a penis, when it is not known
whether penetration was by a penis or by a foreign object, substance, instrument, or
device, or by any other part of the body.” (§ 289, subd. (k)(3), italics added.) The statute
thus encompasses penetration by both a finger (foreign object) and a penis (as an
unknown object when the means of penetration is unclear).
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Minor contends that because the penetration was by minor’s penis, not an
unknown or foreign object, the elements of section 289 are not met. The People here
charged minor with penetration with a foreign or unknown object (§ 289) rather than
sodomy (§ 286). The prosecutor explained the charge due to the concern that the victim,
who was facing away from the minor during the assault, could not positively identify the
penetrating object as a penis. At trial, the victim testified she felt minor anally penetrate
her three times. She also stated minor vaginally penetrated her. She further asserted that
she felt minor’s penis as minor was behind her. She described the attack as minor turning
her body around until she faced away from minor and then minor bending her over.
After minor bent her over, he said “ ‘You are going to take this dick.’ ” Detective Rios
testified that the victim told him minor tried to insert his penis inside her vagina and anus.
The victim testified, however, that she was faced away from minor and could not see
what penetrated her. She also stated that she was not sure what minor used to penetrate
her and that minor had one hand on her hip and she did not know where his other hand
was at the time. The victim further testified that minor never ejaculated when he
penetrated her. Thus, while it appears the victim reasonably assumed minor penetrated
her with his penis, she could not be absolutely certain because she could not see what he
penetrated her with.
As originally enacted in 1978, section 289 provided a foreign object “shall not
include any part of the body.” (Stats. 1978, ch. 1313, § 1, p. 4300.) Subsequently, a
foreign object included any part of the body except a sexual organ. (Stats. 1988, ch. 404,
9
§ 1, p. 1760.) In 1994, the statute was amended to add penetration with an unknown
object, which included a penis when it was not known if penetration was by a penis or
another part of the body or another object. (Stats. 1993-94, 1st Ex. Sess. 1994, ch. 39,
§ 1, p. 8713; ch. 40, § 4.5, pp. 8725-8726.) Where, as here, there is a lack of certainty as
to whether the penetrating object was a penis, section 289 is the proper charge. This case
presents the situation that the 1994 amendment to section 289 was designed to address.
Defendant asserts there is a legal question whether “unknown object” as defined in
section 289 means unknown only to the victim or to the factfinder. We agree with the
parties that whether an “unknown object” is unknown is a question for the factfinder.
(See CALCRIM No. 1045.) Defendant thereafter argues that because the juvenile court
stated it determined beyond a reasonable doubt minor penetrated the victim with his
penis, the evidence is insufficient to support the court’s finding minor violated
section 289. However, the court’s commentary on the nature of the evidence does not
affect the determination whether there was sufficient evidence to sustain the petition.
Indeed, the court also stated the victim did not actually see minor’s penis and was not
“100 percent sure what it was, so she didn’t want to say beyond a doubt or something like
that.” “No antecedent expression of the court, whether casual or cast in the form of an
opinion, can in any way restrict its absolute power to declare its final conclusion upon
proper submission of the cause; nor will such an expression, casual or otherwise, furnish
any basis for attack on a finding unless it be ‘made clearly to appear that upon no
hypothesis whatever is there sufficient substantial evidence to support the conclusion
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reached in the court below’ [citation].” (People v. Smith (1959) 176 Cal.App.2d 688,
692; see People v. Alexander (1947) 78 Cal.App.2d 954, 957.) In the present matter,
despite the court’s comments, it does not appear “ ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support the conclusion reached in the court
below.’ ” (People v. Smith, supra, at p. 692.)
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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