Filed 6/16/14 In re Joseph G. CA6

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re JOSEPH G., a Person Coming Under                               H039235
the Juvenile Court Law.                                             (Santa Clara County
                                                                     Super. Ct. No. JV37942)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

JOSEPH G.,

         Defendant and Appellant.



         The juvenile court found that appellant Joseph G. had committed two counts of
forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1)) on separate
victims and that he had been aware of the wrongfulness of his conduct. The court
declared Joseph a ward and placed him on probation. On appeal, Joseph claims that the
court’s finding that he committed the two counts of lewd conduct is not supported by
substantial evidence. He also claims that the court’s finding that he knew of the
wrongfulness of his conduct is infirm because the court used a clear and convincing
evidence standard of proof rather than a beyond-a-reasonable-doubt standard of proof.
We reject both of his contentions and affirm the juvenile court’s order.
                               I. Sufficiency of the Evidence
       Joseph contends that the evidence presented at the jurisdictional hearing does not
support the juvenile court’s finding that he committed the two counts of lewd conduct.
The juvenile court expressly found the testimony of the two victims, whom we will refer
to as “Eric” and “Alan” to protect their privacy, to be “credible” and stated “I absolutely
believe this happened.” Joseph claims on appeal that the testimony of Alan and Eric was
not credible. While he acknowledges that we view the evidence in the light most
favorable to the court’s findings (In re Roderick P. (1972) 7 Cal.3d 801, 808-809) and
cites no cases reversing a factfinder’s credibility determination, he insists that this case is
one in which the factfinder’s finding cannot be upheld. We disagree.
       “Although we must ensure the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314, italics
added.) Yet Joseph urges us to reject the juvenile court’s determination that the victims
were credible and instead determine that they were not credible. We have no power to do
so.
       Eric and Alan testified at the jurisdictional hearing, and their testimony plainly
provided the requisite evidence that Joseph had committed forcible lewd conduct on
them. They testified that, when they were young children in elementary school, they both
went to Joseph’s mother Isabel’s home for afternoon childcare. Both Alan and Eric
testified that, during the period when they were going to Isabel’s home for childcare, they
were molested by Joseph in his upstairs bedroom on multiple occasions. The
molestations consisted primarily of Joseph making the boys orally copulate him and
Joseph orally copulating them. Joseph told the boys that he would beat them up if they

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did not submit or if they told anyone about the molestations, and the boys were afraid of
Joseph because Joseph “took karate.”
        Neither Alan nor Eric told anyone about the molestations for at least four years
after they stopped going to Isabel’s home for daycare. When Alan was in eighth grade,
he began having nightmares and told his father that he was worried about Eric. When his
father asked why, Alan told his father that Eric had been molested when they were in
daycare. Alan’s father told Alan’s mother about this disclosure, and she immediately
contacted Eric’s parents. Alan’s mother also immediately contacted the police and spoke
to Eric, who disclosed that both he and Alan had been molested. Alan confirmed as
much.
        The testimony of Alan and Eric established the essential elements of lewd
conduct. “[S]ection 288 [(lewd conduct)] is violated by ‘any touching’ of an underage
child accomplished with the intent of arousing the sexual desires of either the perpetrator
or the child.” (People v. Martinez (1995) 11 Cal.4th 434, 452.) A violation of Penal
Code section 288, subdivision (b)(1), which is what was alleged here, occurs when the
lewd conduct is committed “by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.” (Pen. Code,
§ 288, subd. (b)(1).) It was undisputed that Alan and Eric were well under the age of 14
when the molestations occurred. Joseph accomplished the molestations by threats and
fear. The acts of oral copulation were plainly sexually motivated; no other motivation
can be imagined under the circumstances. Joseph does not claim otherwise.
        Despite the fact that the testimony of Alan and Eric supported each of the requisite
elements of the offenses, Joseph contends that the juvenile court’s findings cannot stand
because no reasonable factfinder could credit that testimony due to the inconsistencies




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between Alan’s testimony and Eric’s testimony, between their testimony and their prior
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statements, and between their accounts and other evidence.
       “To warrant the rejection of the statements given by a witness who has been
believed by a trial court, there must exist either a physical impossibility that they are true,
or their falsity must be apparent without resorting to inferences or deductions.
[Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
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determination depends.” (People v. Huston (1943) 21 Cal.2d 690, 693, disapproved on
different point in People v. Burton (1961) 55 Cal.2d 328, 352; accord People v. Maury
(2003) 30 Cal.4th 342, 403.)
       The offenses described by Alan and Eric were not physically impossible, and their
accounts of the molestations did not appear on their face to be false. It is true, as
defendant points out, that there were many inconsistencies and conflicts in the evidence.
Alan testified that the molestations occurred when he and Eric were in fourth grade or in
2004 (when they were in first and second grades); Eric testified that the molestations
occurred when they were in second or third grade. The defense presented evidence that



1
       The defense also presented two expert witnesses. Dr. James Missett, a forensic
psychiatrist, testified that the manner in which the allegations came to be made were
suggestive and indicated that the allegations were unreliable. He also testified that the
inconsistencies in the accounts made them unreliable. Dr. Ashley Cohen, a forensic
neuropsychologist, testified that she had administered tests to Joseph. The test results
indicated that Joseph was not psychopathic, did not have an anti-social personality
disorder, and was not prone to sexual offenses or other criminal behavior.
2
       Joseph argues that this rule applies only where there is a single witness and does
not apply where there are two witnesses. We disagree. The fact that there were two
witnesses to an event and both of them testify concerning it enhances, rather than detracts
from, the reliability of their accounts. The rule regarding inconsistencies and conflicts
applies regardless of the number of witnesses.

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Eric and Alan were only at Isabel’s home for daycare together during first grade and the
first month of second grade, from May 2003 to September 2004.
       Alan testified that there were four or five molestations; Eric testified that there
were as many as 10 or more molestations. In prior statements, Alan had said there were
three or four molestations, and Eric had said that there were five or more molestations.
Both boys were vague and inconsistent about how much time elapsed during the
molestations, with their estimates ranging from five minutes to an hour. Alan testified
that Joseph molested him first, then Eric; Eric said the opposite. Alan and Eric were
inconsistent about how, if, and by whom certain articles of clothing were removed prior
to the molestations. Alan testified that Joseph was lying on a bed when he molested
Alan; Eric testified that Joseph was standing up when he molested both boys. Alan
testified that they never played video games in Joseph’s bedroom; Eric testified that they
played video games in Joseph’s bedroom prior to the molestations. Defense witnesses
testified that there was no video game player in Joseph’s room. Alan testified that no
other children were present; Eric testified that one or two other boys were present during
some of the molestations, and one of them was also molested. That boy testified that he
was not molested.
       Alan testified that he went upstairs with Joseph despite knowing that it was against
Isabel’s rules, and he insisted that no adults were in the house when the molestations
occurred. Both Alan and Eric testified that Isabel was out of the house picking up other
children when the molestations occurred. However, in one prior statement, Eric said that
Isabel had been downstairs during these events. Alan’s mother testified that Isabel would
often leave the older children in the house without adult supervision while she left the
house for an hour to pick up the younger children. Eric’s mother testified that she had
noticed a couple of times that no adult was present when she picked up Eric from Isabel’s
home. Defense witnesses testified that Eric and Alan were not allowed upstairs, never
went upstairs with Joseph, would have been unable to go upstairs because there was a

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gate blocking access to the stairs, and were never left in the house without adult
supervision. Isabel testified that there were alarms on all of the upstairs bedroom doors
that would have alerted her to anyone going into Joseph’s bedroom without permission.
Joseph testified that he had never gone upstairs with Eric and Alan. He denied that Alan
had ever been in his bedroom.
       None of these inconsistencies and conflicts in the evidence or any others precluded
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the juvenile court from crediting the testimony of Eric and Alan. At least four years had
elapsed between the offenses and the initial disclosure, and more than two additional
years passed before the boys testified at the jurisdictional hearing. By that point, the boys
were teenagers in high school attempting to recall events that occurred when they were
little children in the early years of elementary school. It is not at all surprising under
these circumstances that their recall was poor when they testified or that their prior
statements were inconsistent. Eric admitted that he did not remember a lot of the details
of the molestations. The fact that the two accounts were alike as to the critical elements
of the offenses and the basic circumstances under which they occurred enhanced their
reliability, particularly since the two boys had not seen each other but once during the
two years prior to the disclosures, and that visit was a year before the disclosures. No
reason for believing that the boys would both fabricate such similar allegations was ever
established. We conclude that substantial evidence supports the juvenile court’s findings.


                 II. Standard of Proof of Knowledge of Wrongfulness
       “All persons are capable of committing crimes except those belonging to the
following classes: [¶] One—Children under the age of 14, in the absence of clear proof
that at the time of committing the act charged against them, they knew its wrongfulness.”


3
      We do not purport to list all of the inconsistencies and conflicts, but merely note
the most significant ones.

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(Pen. Code, § 26.) Joseph was three years older than Eric and Alan. Hence, he was
necessarily under the age of 14 when the offenses occurred. Joseph testified at trial that
he had been taught from the time he was a “baby” that it was “not okay” to touch
someone else’s private parts. The prosecutor argued that she had proved by clear and
convincing evidence that Joseph was aware of the wrongfulness of his conduct. The
juvenile court expressly found that Joseph “knew of the wrongfulness of the act that was
shown by the threats to keep the nature of the act quiet as well as the location in an area
where it was not going to be noticed or viewed by other persons who were in the
household.”
       Joseph’s appellate contention is that the juvenile court’s finding is invalid because
the court used a clear and convincing evidence standard rather than a beyond-a-
reasonable-doubt standard. He acknowledges that the California Supreme Court held in
In re Manuel L. (1994) 7 Cal.4th 229 (Manuel L.) that the clear and convincing evidence
standard is the appropriate standard of proof for knowledge of wrongfulness, but Joseph
maintains that the reasoning of Manuel L. is no longer valid. In Manuel L., the California
Supreme Court distinguished the nature of this requirement from the elements of a
criminal offense. “The issue of the juvenile’s capacity remains, as historically it has
been, subject to a distinct standard of proof. Penal Code section 26, subdivision One,
continues to define the prosecution’s burden of proving the juvenile’s capacity in
[Welfare and Institutions Code] section 602 proceedings. Section 701 establishes its
burden with respect to all elements of the offense necessary to a finding that the minor
violated any law defining a crime.” (Manuel L., at p. 236.) The court reasoned that
“criminal capacity is not an element of the offense and thus is not the type of fact [that]
requires proof beyond a reasonable doubt. Rather, it is akin to the question of sanity,
which due process does not require the prosecution to prove beyond a reasonable doubt.”
(Manuel L., at p. 238.)



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       Joseph concedes that we would ordinarily be bound to follow the holding in
Manuel L. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but he
contends that Manuel L. is no longer valid in light of the United States Supreme Court’s
decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). In Apprendi, the
United States Supreme Court held that a fact (other than a prior conviction) that increases
the maximum penalty for an offense must be proved to a jury beyond a reasonable doubt,
but the court explicitly did not consider “the State’s power to manipulate the prosecutor’s
burden of proof by, for example, relying on a presumption rather than evidence to
establish an element of an offense, [citations], or by placing the affirmative defense label
on ‘at least some elements’ of traditional crimes.” (Apprendi, at p. 475.)
       A juvenile’s capacity to commit a criminal offense is not an element of a criminal
offense, nor is it a sentencing factor that increases the maximum penalty for an offense.
As the California Supreme Court explained in Manuel L., a juvenile’s capacity to commit
a criminal offense (Pen. Code, § 26, subd. One) is akin to an adult’s sanity (Pen. Code,
§ 26, subd. Two). In People v. Ferris (2005) 130 Cal.App.4th 773 (Ferris), the defendant
claimed that Apprendi applied to the issue of sanity and required the prosecution to prove
sanity beyond a reasonable doubt. In Ferris, the jury had been instructed that the
defendant had the burden of proving by a preponderance that he was insane. (Ferris, at
p. 777.) The Fifth District Court of Appeal rejected the defendant’s attempt to
characterize sanity as an element of the offense for Apprendi purposes. (Ferris, at
p. 780.)
       Sanity, like a juvenile’s capacity to commit a criminal offense, concerns the
individual’s ability to understand the wrongfulness of the criminal act at the time of its
commission. (Ferris, supra, 130 Cal.App.4th at p. 780; Pen. Code, § 26.) Since the issue
of sanity is not an element of the offense for Apprendi purposes, it follows that a
juvenile’s capacity is not an element of the offense for Apprendi purposes. Therefore,
Apprendi does not require that capacity be proved beyond a reasonable doubt. Thus, we

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remain bound by Manuel L. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d
at p. 455) The juvenile court applied the correct standard of proof.


                                     III. Disposition
       The juvenile court’s order is affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




In re Joseph G.
H039235


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