Filed 6/27/14 In re David H. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re DAVID H., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,

     Plaintiff and Respondent,                                         G048782

         v.                                                            (Super. Ct. No. DL043446)

DAVID H.,                                                              OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Jane L.
Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Cindy Brines, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
                                  *          *           *
              The Orange County Juvenile Court declared David H. (born January
1998)~(ct1)~ a ward of the court (Welf. & Inst. Code, § 602) after finding he committed
misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1); all further statutory
citations are to the Penal Code unless noted). Minor contends there is insufficient
evidence he committed the act with the specific purpose of sexual arousal, sexual
gratification, or sexual abuse. We affirm.
                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              On May 9, 2012, minor and Taylor, both 14 years old, were in their eighth
grade middle school class. Taylor was on the floor by her desk putting something in her
backpack. As she stood up, minor reached out and grabbed her breast “really hard.” She
asked him what he was doing and he laughed. The teacher saw minor pinch Taylor’s
breast and giggle, and sent him to the office. Taylor suffered a bruise on her right breast
the size of a quarter. She went to the nurse’s office, and later sought counseling (RT 68.)
after becoming fearful of boys and men. A few months before this incident minor tripped
Taylor and she fell on her desk and twisted her ankle. Minor laughed. The teacher
described minor as a class clown who physically and verbally disrupted the classroom.
Minor had pushed and pinched other students in class.
              Following a hearing on May 15, 2013, the juvenile court found minor
committed misdemeanor sexual battery and declared him a ward of the court. The court
ordered home probation on various terms and conditions.




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                                              II
                                         DISCUSSION
Substantial Evidence Supports the Juvenile Court’s Finding Minor Committed Sexual
Battery
              Section 243.4, subdivision (e)(1), provides, “Any person who touches an
intimate part of another person, if the touching is against the will of the person touched,
and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is
guilty of misdemeanor sexual battery . . . .” In re Shannon T. (2006) 144 Cal.App.4th
618 (Shannon T.) held “‘sexual abuse’” in section 243.4 encompassed “a purpose of
insulting, humiliating, intimidating, or physically harming a person sexually by touching
an ‘intimate part’ of the person . . . .” (Shannon T., supra, 144 Cal.App.4th at p. 621.)
Abuse is not limited to physical injury and includes emotional harm caused by offensive
conduct. (Id. at p. 622; People v. White (1986) 179 Cal.App.3d 193, 205 [“abuse”
imports an intent to injure or hurt badly, not lewdness, and when mistreatment is directed
to a victim’s sexual parts, the resulting conduct may be considered sexual abuse]; § 289.)
              Minor contends “[t]he act of grabbing Taylor’s breast and the surrounding
circumstances do not indicate [minor] had the requisite intent. Even though [minor]
laughed after he grabbed Taylor’s breast, that does not amount to [minor] having the
specific intent to humiliate, intimidate, or physically hurt her. . . . More likely, [minor]’s
behavior was more consistent with an intent to annoy and obtain attention from Taylor
than with sexual abuse. [Minor]’s behavior as a class clown and being disruptive in class
supports that [minor]’s intention was more consistent with an intent to annoy or joke
around. Moreover, the previous tripping incident further supports an intent to annoy and
obtain attention from Taylor. [Minor]’s laughter after both incidents with Taylor also
supports a class clown type of behavior.”
              We “review the whole record in the light most favorable to the



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judgment . . . 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.” (People v. Johnson (1980)
26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) Intent is rarely
susceptible of direct proof and usually must be inferred from circumstantial evidence.
(People v. Kwok (1998) 63 Cal.App.4th 1236, 1245`.) The trier of fact may use the
surrounding circumstances to determine the defendant’s intent. (People v. Smith (1998)
64 Cal.App.4th 1458, 1469; People v. Martinez (1995) 11 Cal.4th 434, 445 [manner of
touching is relevant and “‘trier of fact looks to all the circumstances, including the
charged act, to determine whether it was performed with the required specific intent’”].)
              As in Shannon T., the “circumstances support a conclusion that the minor
pinched the girl’s breast for the specific purpose of insulting, humiliating, intimidating,
and even physically hurting her. The minor was not a prepubescent boy who, acting in a
fit of pique, grabbed the nearest available body part of a physically immature girl who
refused to acquiesce in childish demands.” (Shannon T., supra, 144 Cal.App.4th at
p. 623.) Here, minor was a 14-year-old boy who forcibly pinched a female classmate’s
breast, causing pain, bruising, and emotional harm. He engaged in this behavior during
class in full view of the teacher and other classmates. His subsequent laughter supports
the inference he understood his action would embarrass and humiliate Taylor. The
juvenile court reasonably could infer minor pinched Taylor’s breast to humiliate,
intimidate, or physically harm her. The “class clown” may seek attention at his own
expense, but when his antics include pinching the intimate part of another person to
expose that person to ridicule, he has crossed a legal boundary and committed sexual
abuse, as that term has been defined in the law.




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                                       III
                                  DISPOSITION
           The judgment is affirmed.



                                             ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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