Filed 10/7/13 In re Robert A. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re ROBERT A., a Person Coming Under                               B247044
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. TJ19575)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

ROBERT A.,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Tamara Hall, Judge. Reversed.
                   Tonja R. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C.
Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
                                          _______________________
       Appellant, Robert A., a minor, was declared a ward of the court and placed home
on probation. On appeal, he contends the juvenile delinquency court erred in (1) finding
that he had violated Penal Code section 288, subdivision (a) because sufficient evidence
did not show that he had the specific sexual intent to commit the crime; and (2) setting a
maximum period of physical confinement. As we shall explain, although sufficient
evidence supports the conclusion that appellant injured the four-year-old victim and was
guilty of a battery, the record does not support a true finding beyond a reasonable doubt
that appellant had the requisite specific sexual intent to violate Penal Code section 288,
subdivision (a). Accordingly, we reverse.
                      FACTUAL AND PROCEDURAL HISTORY
       Relationship between the Parties
       The families of the victim, R.G. (four years old at the time of the incident), and
appellant (then age 13) socialized. The victim‘s older sister, S.W., and appellant had
attended preschool together. The families‘ children1 went to each other‘s homes and
spent time together. According to R.G., he and his sister had spent the night at
appellant‘s home on occasion.
       Events of July 16 Incident
       On July 16, 2011, at about 2:30 p.m., appellant and his family picked up R.G. and
S.W. from their home and took them to the mall for about an hour. According to
appellant and his family, while at the mall, R.G. was whiny and agitated. R.G. claimed to
need to use the restroom, but then refused to go to the bathroom.
       After leaving the mall, appellant‘s parents took the children to appellant‘s house.
The children played inside the house while appellant‘s parents were in the kitchen. At
some point, appellant‘s mother sent appellant‘s sister and R.G‘s sister outside to the front
yard to play because the children were noisy and appellant‘s mother thought that R.G.



1
       Appellant‘s sister, Savannah, was age 10 or 11 at the time of the incident.



                                             2
was whiny and might need a nap. After arriving home from the mall, appellant‘s mother
had taken some medication that made her feel sleepy. After sending the girls outside to
play, appellant‘s mother went upstairs to her bedroom and fell asleep. Appellant‘s father
would occasionally check on the children.
       While the girls played outside, appellant and R.G. stayed inside appellant‘s room.2
The boys were in appellant‘s room for 10-15 minutes. During that time, they played
video games together, but at some point appellant refused to let R.G. play with him any
longer. According to appellant, R.G. became angry when he could not play and began to
cry and left the room to look for his sister.
       R.G. remembered playing with appellant and jumping on the bed, but he did not
recall what he and appellant did together. R.G. testified appellant made him feel
uncomfortable one time when appellant ―wasn‘t playing right‖ when they were alone.
R.G. testified appellant put his finger in R.G‘s anus, hit him in the stomach, and told him
not to say anything.
       S.W. saw R.G. standing in the front window of the house crying for her. S.W. and
appellant‘s sister came back into the house. Appellant played video games in his room
alone for a short time. He then joined the other children in Savannah‘s room where they
watched a movie on the television. Appellant‘s parents were upstairs at the time. S.W.
testified that R.G. continued to cry a little while and then calmed down; she thought he
was crying because he was tired. R.G. lay down next to his sister and fell asleep.
       At some point thereafter, according to appellant and his sister, R.G. jumped on the
bed in Savannah‘s room and he played with his buttocks. Savannah said that R.G. placed
his hands on his buttocks and said, ―You can't catch me, there is nothing you can do
about it.‖ According to appellant, R.G. was trying to get the other children to chase him
around the house. R.G. eventually stopped after S.W. told him she would tell their


2
       Appellant‘s room was not fully enclosed; it had three walls and opened up into the
kitchen. The only door in the room led to the outside of the house. Appellant‘s parents‘
room was upstairs, and Savannah‘s room was downstairs next to appellant‘s room.


                                                3
mother. Appellant‘s father testified that at some point he saw R.G. running back and
forth between Savannah‘s and appellant‘s bedrooms and jumping on the bed.
       During the trial when asked about R.G.‘s actions, S.W. denied that R.G. had
touched his buttocks or encouraged the others to chase him or that he jumped on the bed.
R.G. did not recall touching his own buttocks while he was on the bed. He testified,
however, that his sister had told him that he should not spread his buttocks or put his own
finger in his anus. Nonetheless, R.G. remembered jumping on the bed and also recalled
that at some point he bumped his head on a shelf when he was jumping on the bed.
       Appellant‘s mother woke up at about 8:30 p.m. that night when she heard a bump.
Appellant‘s father also heard the noise so he went downstairs to investigate and saw
appellant and R.G. in appellant‘s room.
       S.W. and R.G. went home shortly thereafter.
       Later that same day, R.G.‘s mother took R.G. and S.W. to a birthday party at the
home of a family friend. R.G. did not interact much with the other children, but instead
sat with his mother. R.G.‘s mother assumed that he was tired.
       After the party, R.G. and his family returned to their home. R.G.‘s mother gave
him a bath. During the bath she noticed that R.G. flinched when she tried to wash his
―bottom.‖ When R.G.‘s mother asked R.G. about it, R.G. told her that appellant had hurt
him. R.G.‘s mother testified that R.G. told her that appellant had ―socked‖ him in the
stomach and then stuck his finger in R.G.‘s anus. R.G.‘s mother tried to examine his
buttocks, but R.G. would not allow her to look. R.G.‘s mother told him she wanted to
take him to the doctor, but the child became frantic, so she decided to put him to bed.
R.G. testified he remembered telling his mother that appellant hurt him by putting his
finger in his anus. He further testified he remembered telling his mother appellant
punched him in the stomach and told him not to say anything.
       After R.G. went to bed, his mother called appellant‘s house and appellant
answered the phone. R.G‘s mother asked to speak to appellant‘s parents, and he told her
to hold on. When he returned to the phone, he told R.G.‘s mother that his parents were



                                             4
asleep. She again asked to speak to one of appellant‘s parents. According to R.G.‘s
mother, appellant seemed hesitant.
      R.G.‘s mother asked appellant if something happened between him and R.G.
There was a long pause over the phone. R.G.‘s mother thought appellant had hung up the
phone, and when she received no further response over the phone, R.G.‘s mother hung up
the telephone.
      Appellant confirmed that he spoke to R.G.‘s mother over the telephone and that
she had asked to speak to his parents. Appellant testified that he set the phone down and
went upstairs. Both of his parents were asleep. Appellant woke up his mother, who told
him she would call R.G.‘s mother back. Appellant‘s mother testified that at about 11:30
p.m. or 12:00 midnight, appellant shook her and said something, but she told him to go
away. Appellant‘s father also remembered appellant coming to their bedroom and trying
to wake up his wife.
      When appellant went back to the telephone, no one was on the other end of the
line, so he called back R.G.‘s mother. According to appellant, at that point R.G.‘s mother
asked if anything happened to R.G. while he was at appellant‘s house. Appellant claims
that he told her that R.G. hit his head while jumping on the bed. R.G.‘s mother recalled
telling police that appellant denied anything happened between him and R.G. Appellant
told her his parents were sleeping and his mother would return the call the following
morning.
      The next morning R.G.‘s mother noticed that the underwear R.G. had worn the
day before had a stain—like a ―small flow‖ of dark red blood—on them, so she put them
in a bag.3 R.G.‘s mother took him to the hospital to be examined. The police were also
summoned.




3
      R.G.‘s mother gave the bag containing R.G.‘s underwear to the police.

                                            5
       When R.G. was interviewed by police, he confirmed that while appellant and he
were alone in appellant‘s room, appellant grabbed him, pulled his pants down, bent him
over and a stuck a finger in his anus. Afterward, appellant pulled up R.G.‘s pants,
punched him once in the stomach, and told him not to tell anyone what had happened.
       Appellant was subsequently interviewed by police, he denied harming R.G. and
indicated that he knew it was wrong to put his finger in someone‘s anus.
       Proceedings in the Juvenile Delinquency Court
       In September 2011, a juvenile wardship petition was filed pursuant to Welfare and
Institutions Code section 602 seeking to declare appellant a ward of the court. Count 1 of
the petition alleged that on July 16, 2011, appellant committed a lewd act upon a child in
violation of Penal Code section 288, subdivision (a).
       In addition to evidence from R.G. and his family members, appellant and his
family members, and police investigators, testimony from medical experts was presented
to the court. According to the medical expert, the evidence developed from R.G.‘s
medical examination shortly after the incident revealed that the child ―had an abrasion
around his peri-anal tissues on his anal fold.‖ The injury was consistent with a finger
being put in a child‘s anus and that the injury was recent. According to the medical
expert, the injury could not have been caused by someone cleaning himself or by riding a
bicycle and it would not have been surprising to find blood associated with the injury.
       During his closing argument, appellant‘s counsel argued that the prosecution had
failed to satisfy its burden of proof that appellant had injured R.G. or that he had acted
with the sexual intent required under Penal Code section 288, subdivision (a). With
respect to the issue of intent, prosecutor responded that ―[t]here is no other reason to stick
your finger in a four-year old‘s butt except for the arousal, passion, sexual desires.
[Appellant‘s] conduct did show a consciousness of guilt.‖
       On February 5, 2013, the juvenile court found count 1 true and sustained the
Welfare and Institutions Code section 602 petition. The juvenile court found further that
appellant understood the wrongfulness of his actions. The juvenile court explained its
findings of fact in light of the factors contained in the case law which are relevant to the

                                              6
issue of the required sexual intent under Penal Code section 288, subdivision (a). First,
the juvenile court determined appellant had reached puberty because he was 13 years old
at the time of the incident. The court found the evidence showed appellant had been
taught not to touch other people without permission and so understood his actions were
wrong. The juvenile court further found that when R.G.‘s mother called to speak with
appellant‘s parents, appellant responded by asking if she was calling about whether
anything happened between him and R.G. thereby indicating he had ―a knowledge and he
knew she was calling regarding something that had occurred between him and [R.G.].‖
The court also found appellant‘s story changed over time based on the court‘s view of the
evidence that appellant did not tell R.G.‘s mother during the telephone call that R.G. had
bumped his head, but instead mentioned the incident only later during the investigation.
       The juvenile court found that the touching took place in private, after the girls and
the boys were separated, and appellant and R.G. were alone. The court also found the
nature of the conduct supported the finding of intent. The juvenile court found that
appellant attempted to coerce R.G. into silence by hitting him in the stomach and
instructing him not to tell anyone about the incident. The court found R.G. to be a
credible witness, that he consistently stated that appellant put his finger in his anus, and
that his statement was corroborated by physical evidence.
       The court imposed terms and conditions of probation, imposed a maximum
confinement time of eight years with one day of predisposition credit, and ordered
appellant placed home on probation.
       Appellant timely appeals.
                                       DISCUSSION
       Appellant argues that sufficient evidence did not support the juvenile delinquency
court‘s true finding that he violated Penal Code section 288, subdivision (a) for lewd act
upon a child, R.G. In particular, appellant claims that the evidence fails to support a
finding of sexual intent accompanying his physical contact with R.G. Upon reviewing
the entire record, we find that there is insufficient circumstantial evidence of sexual intent
to violate Penal Code section 288, subdivision (a).

                                              7
         The same standard governs review of the sufficiency of evidence in adult criminal
cases and juvenile cases. (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) A
criminal conviction not supported by sufficient evidence violates both state and federal
due process and is thus invalid. (U.S. Const., amend. XIV, § 1; Cal. Const., art. I, § 15;
People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing the sufficiency of evidence,
we must determine whether a reasonable trier of fact could have found a defendant guilty
beyond a reasonable doubt on each element of a crime. (Ibid.) We view the evidence in
the light most favorable to the prosecution (People v. Johnson (1980) 26 Cal.3d 557,
578), and we must presume the existence of every fact that the trier of fact could
reasonably deduce from the evidence. (People v. Upsher (2007) 155 Cal.App.4th 1311,
1322.)
         In addition, the sufficient evidence standard is the same whether the evidence is
direct or circumstantial. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) ―Although
it is the duty of the jury 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, 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.‘ [Citations.]‖ (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
―‗Circumstantial evidence may be sufficient to connect a defendant with the crime and to
prove his guilt beyond a reasonable doubt.‘‖ (Id. at p. 933, quoting People v. Pierce
(1979) 24 Cal.3d 199, 210.) However, if circumstantial evidence lacking substance is
that which supports an inference of guilty knowledge, California courts have found such
evidence insufficient. (People v. Williams (1971) 5 Cal.3d 211, 215-217.)
         Furthermore, ―[e]vidence which merely raises a strong suspicion of the
defendant‘s guilt is not sufficient to support a conviction. Suspicion is not evidence; it
merely raises a possibility, and this is not a sufficient basis for an inference of fact.‖
(People v. Redmond (1969) 71 Cal.2d 745, 755.) A reversal is warranted if ―‗upon no

                                               8
hypothesis whatever is there sufficient evidence to support [the conviction].‘‖ (People v.
Bolin (1998) 18 Cal.4th 297, 331.)
       With these principles in mind, we review the evidence of appellant‘s sexual intent
presented in the record on appeal.
       On appeal, the sole element of Penal Code section 288, subdivision (a) that
appellant challenges is the element of intent. For the sake of the appeal he concedes that
the physical evidence corroborated R.G.‘s claim that appellant inserted his finger into
R.G.‘s anus, and that perhaps this conduct constituted a battery. However, he claims that
sufficient evidence did not establish that he acted with the specific sexual intent required
by Penal Code section 288, subdivision (a).
       Penal Code section 288, subdivision (a) prohibits ―any lewd or lascivious act . . .
upon or with the body, or any part or member thereof, of a child who is under the age of
14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child.‖ ―A lewd or lascivious act can occur through
the victim‘s clothing and can involve ‗any part‘ of the victim‘s body.‖ (People v.
Martinez (1995) 11 Cal.4th 434, 444.) ―Courts have long indicated that [Penal Code]
section 288 prohibits all forms of sexually motivated contact with an underage child.
Indeed, the ‗gist‘ of the offense has always been the defendant‘s intent to sexually exploit
a child, not the nature of the offending act. [Citation.] ‗[T]he purpose of the perpetrator
in touching the child is the controlling factor and each case is to be examined in the light
of the intent with which the act was done. . . . If [the] intent of the act, although it may
have the outward appearance of innocence, is to arouse . . . the lust, the passion or the
sexual desire of the perpetrator [or the child,] it stands condemned by the statute. . . .‘
[Citation.]‖ (Ibid.)
       To establish the requisite intent, ―‗[T]he trier of fact looks to all the circumstances,
including the charged act, to determine whether it was performed with the required
specific intent.‘ [Citations.] Other relevant factors can include the defendant's
extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the
case [citations], the relationship of the parties [citation], and any coercion, bribery, or

                                               9
deceit used to obtain the victim‘s cooperation or to avoid detection [citation].‖ (People v.
Martinez, supra, 11 Cal.4th at p. 445.) In addition, courts have also looked to whether
the perpetrator admonished the victim not to disclose the occurrence, physical evidence
of sexual arousal, clandestine meetings, and the age of the defendant at the time of the
incident.4 (In re Jerry M. (1997) 59 Cal.App.4th 289, 299 (―Jerry M.‖).)
       Based on our review of the evidence in the record and the factors outlined in the
case law used to determine whether the element of intent is met under Penal Code section
288, subdivision (a), we conclude that the evidence was insufficient to prove appellant
acted with the intent to sexually arouse, gratify, or abuse as required by the statute. As
we shall explain, sufficient evidence does not support the trial court‘s findings with
respect to several factors cited by the court, and even as to those factors with evidentiary
support, a rationale trier of fact could not conclude beyond a reasonable doubt that
appellant acted with the required specific intent.
       First, although appellant was 13 years old at the time of the incident there was no
evidence appellant had reached puberty. The court‘s finding to the contrary is not
supported by anything in the record; there was no evidence presented during the trial that
appellant had reached puberty, had expressed any interest or curiosity sex or sexual
activity. It appears that the court based its finding that appellant had reached sexual
maturity on the fact of appellant‘s chronological age and nothing more. Given that
children‘s sexual, emotional and physical development varies widely by age, the court‘s
reliance on only the fact of appellant‘s age to determine he had reached puberty is based
on speculation and conjecture. Thus, the conclusion that appellant had reached puberty
does not support the court‘s finding on intent. The court‘s conclusion in this regard is
further undermined by the lack of any evidence of sexual arousal.




4
       The court in Jerry M. noted that the younger the perpetrator the less likely his acts
are with the specific intent of sexual arousal, and at some age ―younger than 14 years, . . .
the minor cannot as a matter of law have the specific intent of sexual arousal.‖ (Jerry M.,
supra, 59 Cal.App.4th at p. 300.)

                                             10
       Likewise the court‘s finding that appellant‘s comments to R.G.‘s mother over the
telephone reflected his acknowledgment that he had harmed R.G. and that appellant knew
she was calling regarding something that had occurred between him and R.G. also lacks a
basis in the record. There was no evidence to support the finding that when R.G.‘s
mother called to speak with appellant‘s parents, appellant responded by asking if she was
calling about whether anything happened between him and R.G. On the contrary both
appellant and R.G.‘s mother testified during the trial that R.G.‘s mother, not appellant
raised the issue of whether anything had happened between appellant and R.G. Thus,
appellant‘s telephone conversation does not support any conclusion with respect to
appellant‘s consciousness of guilt.
       Furthermore other factors used to determine intent are lacking in this case. The
incident was not accompanied by extra judicial statements indicative of a sexual intent
and there was no evidence of prior incidents or lewd contact between appellant and R.G.
In fact, there was no evidence appellant had engaged in lewd actions on previous
occasions with anyone.
       Appellant did not employ deceit to gain access to R.G. Appellant‘s contact with
R.G. did not involve clandestine meetings or take place behind closed or locked doors.
Although R.G. and appellant were together for 10-15 minutes, they were not alone in the
house in a private location. Appellant and R.G. were in appellant‘s room which opened
up into the kitchen on one side and appellant‘s father checked on the children a number
of times during the visit.
       Other evidence the court relied upon does not support a conclusion beyond a
reasonable doubt that appellant harbored a sexual intent. Evidence that (1) appellant
apparently did not initially disclose (to R.G.‘s mother) that R.G. had jumped on the bed
hitting his head; (2) appellant acknowledged that it was wrong to touch another person
without their permission; and (3) appellant struck R.G. in the stomach and admonished
the child not tell anyone what had happened, are equally consistent with an intent to
avoid detection for injuring R.G., as they are with an intent to sexually exploit R.G.



                                             11
Where the evidence presented provides equal support to two inconsistent inferences,
neither is established. (People v. Tran (1996)) 47 Cal.4th 759, 772.)
       In short, the only evidence in the record cited by the court which rises above the
level of suspicion to support an inference of a sexual intent, is the act itself—that
appellant pulled down R.G.‘s pants and put his finger in R.G.‘s anus. In fact, the nature
of the act was the only evidence the prosecutor cited during the trial to provide intent.
Here, the act may be sexually suggestive. Nonetheless, under Penal Code section 288,
subdivision (a) it is not enough that a child perpetrator has committed a sexually
suggestive act. Penal Code section 288, subdivision (a) expressly states that commission
of the act must be sexually motivated as well. Where there is no evidence that a
prepubescent child has been sexually aroused or is capable of sexual arousal, evidence
that an inappropriate, sexually suggestive act has been committed is not sufficient,
standing alone, to satisfy the requirement that the child perpetrator committed the act
with intent to arouse his or her own sexual desires.
       We do not condone or minimize appellant‘s conduct, which was cruel and
reprehensible. Nonetheless, the evidence is insufficient to prove that appellant was
capable of, or motivated by, sexual gratification or lust beyond a reasonable doubt. The
basic purpose of Penal Code section 288 is to provide children with ―special protection‖
from sexual exploitation. (See People v. Martinez, supra, 11 Cal.4th at pp. 443-444.)
Here, the record does not provide sufficient evidence that appellant sexually exploited
R.G. Instead the record shows that appellant was an apparently hostile 13-year-old who
got into some kind of disagreement with a four-year-old over a video game and whose
conduct was more consistent with an intent to annoy and injure the younger boy than
with sexual arousal. As the court found in Jerry M., under such circumstances, appellant
―was perhaps guilty of battery ([Pen. Code,] § 242), but the record does not support a true
finding beyond a reasonable doubt of conduct intended sexually to exploit a child – the
‗gist‘ of [Penal Code] section 288, subdivision (a).‖ (In re Jerry M., supra, 59
Cal.App.4th at p. 300.)



                                             12
      In view of the foregoing we conclude that sufficient evidence in the record does
not support the court‘s finding beyond a reasonable doubt that appellant had the requisite
sexual intent pursuant to Penal Code section 288, subdivision (a).


                                     DISPOSITION
      The judgment is reversed.




                                                                     WOODS, J.


We concur:




             PERLUSS, P. J.                                          ZELON, J.




                                            13
