Filed 7/15/15 In re Michael M. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

In re MICHAEL M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F070128

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD067063)

                   v.
                                                                                         OPINION
MICHAEL M.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Kane, Acting P. J., Poochigian, J. and Detjen, J.
                                     INTRODUCTION
       Appellant Michael M. challenges the sufficiency of the evidence to support his
juvenile adjudication for committing a lewd act with a child, a violation of Penal Code
section 288, subdivision (a).1 We affirm the order.
                      FACTUAL AND PROCEDURAL SUMMARY
       On July 2, 2013, Michael admitted to committing two counts of battery and one
count of assault, all misdemeanors. Michael was declared a ward of the juvenile court
and placed under the supervision of the probation officer.
       As a result of the filing of a second Welfare and Institutions Code section 602
petition on August 29, 2013, Michael admitted to committing three counts of
misdemeanor battery. Michael was continued as a ward of the juvenile court and placed
under the supervision of the probation officer.
       Another Welfare and Institutions Code section 602 petition was filed against
Michael and on March 6, 2014, Michael admitted committing misdemeanor vandalism.
At the dispositional hearing, Michael was removed from the custody of his mother and
placed in the custody of the probation officer for suitable placement. Michael was placed
in the foster home of Rosa Acuna.
       Esmeralda Espinoza is Acuna’s mother and the foster mother of M.M., who in
July 2014 was nine years old. On July 8, 2014, M.M. was swimming at the Acuna home.
Michael was the only other person in the pool. M.M. was in the pool with Michael when
M.M. felt Michael touch his penis over his swimsuit.
       M.M. subsequently told J.A., another of Espinoza’s foster sons, what had
happened. J.A. told Espinoza that something had happened to M.M. Espinoza spoke to
M.M. and asked him questions about what had happened. M.M. was nervous and
embarrassed when speaking about the incident. M.M. previously had been a victim of

       1All   further statutory references are to the Penal Code unless otherwise specified.


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inappropriate touching and had received counseling on this subject; Espinoza had made
clear to M.M. how important it was he tell her about any inappropriate touching.
       Espinoza reported the incident. Officer Mark Lightfoot investigated the matter
and spoke to Michael after advising him of his constitutional rights. Lightfoot told
Michael that M.M. had accused him (Michael) of touching M.M.’s penis and also doing
“some thrusting, gyrating, like a sexual-type motion on him” while they were in the pool.
Michael told Lightfoot he “was not the type of person that would do something like that.”
       Michael told Lightfoot he knew the type of behavior Lightfoot was describing was
“wrong.” Michael continued to deny the accusations made against him by M.M.
       At the adjudication hearing, Michael did not testify and presented no evidence.
       The juvenile court found that based on the quality and nature of the testimony,
M.M. was touched on his genitals. The juvenile court opined that it was a “close case”
on whether Michael had the requisite intent when he touched M.M., but that
circumstantial evidence established Michael had the intent and the allegation was proved
beyond a reasonable doubt.
                                       DISCUSSION
       The sole contention on appeal is that the evidence was insufficient to support a
finding that Michael had the requisite intent to commit the offense set forth in section
288, subdivision (a). Michael contends there was no evidence he touched M.M. for
purposes of sexual gratification.
       Section 288, subdivision (a) is violated when a person willfully and lewdly
commits any lewd or lascivious act upon the body of a child under the age of 14 years
with the intent of arousing or gratifying the sexual desires of that person or the child.
Here, Michael has challenged only the intent element of this offense and asserts that
M.M. “over reacted after being innocently touched while playing in a swimming pool.”
       In assessing a challenge to the sufficiency of the evidence in a juvenile
delinquency proceeding, this court reviews the whole record in the light most favorable to

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the judgment to determine whether it contains substantial evidence. (In re Ryan D.
(2002) 100 Cal.App.4th 854, 859 (Ryan D.).) This court does not reevaluate the
credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The testimony of one witness is sufficient to
support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
       The requisite intent for a violation of section 288, subdivision (a) may be proven
by circumstantial evidence. (People v. Singh (2011) 198 Cal.App.4th 364, 368.) No
force of any kind or substantial sexual conduct is required for a violation of section 288,
subdivision (a). (People v. Fulcher (2006) 136 Cal.App.4th 41, 51.)
       The touching of M.M. occurred in a swimming pool and over M.M.’s swimsuit
while M.M. and Michael were alone in the pool. There was no evidence presented that
Michael’s touching of M.M. was accidental. Michael touched M.M.’s penis. M.M. was
nervous and embarrassed when speaking about the incident. When asked about the
incident by Lightfoot, Michael did not claim the touching was accidental; instead, he
denied any touching occurred.
       The juvenile court credited M.M.’s testimony about the touching; there was no
evidence presented that the touching did not occur; and M.M. was the only witness to the
incident who testified. In crediting M.M.’s testimony about the touching, the juvenile
court as the trier of fact could infer that Michael’s denial that any touching occurred
evidenced a consciousness of guilt. (People v. Hughes (2002) 27 Cal.4th 287, 335 [false
denial evidences consciousness of guilt].)
       Here, Michael touched an intimate part of M.M.’s body, his penis, but was not in
physical contact with any other part of M.M.’s body while the two were in the pool; the
touching occurred after the third child in the pool had exited and M.M. and Michael were
alone in the pool; the touching made M.M. nervous and embarrassed; and Michael falsely
denied that any touching occurred. A trier of fact, in this case the juvenile court, is



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entitled to infer that a touch of this nature, under these circumstances, was motivated by
sexual gratification. (People v. Alvarez (2002) 27 Cal.4th 1161, 1181-1182.)
       Substantial evidence supported the juvenile court’s determination that Michael
committed a violation of section 288, subdivision (a). (Ryan D., supra, 100 Cal.App.4th
at p. 859.)
                                     DISPOSITION
       The order is affirmed.




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