Filed 6/27/14 In re Carlos M. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re CARLOS M., a Person Coming Under                               B248070
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. VJ41960)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

CARLOS M.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County. Stephanie M.
Davis, Referee. Affirmed as modified.
         Courtney M. Selan, 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, Assistant Attorney General, Linda C. Johnson and Elaine F.
Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
                                __________________________________
         Carlos M. appeals from orders of the juvenile court, sustaining a petition under
Welfare and Institutions Code section 602, declaring him to be a ward of the court, and
ordering him placed at home on probation. He challenges the sufficiency of the evidence
supporting some of the counts in an 11-count petition alleging sex crimes committed
against his two minor nieces and a minor nephew while he also was a minor. We affirm,
modifying the true finding on one count to reflect a lesser included offense, as explained
below.
                                        BACKGROUND
         The victims in this case, M.M., A.R. and R.R., are Carlos’s nieces and nephew,
respectively. A.R. and R.R. are siblings. Their mother is Carlos’s sister. M.M.’s father
is Carlos’s brother.
         On January 14, 2013, the Los Angeles County District Attorney filed a second
amended petition under Welfare and Institutions Code section 602, alleging:
         Count 1: On or between January 24 and April 24, 2009, when Carlos was 16-17
              1
years old, Carlos committed forcible oral copulation, in violation of Penal Code section
                                2
288a, subdivision (c)(2)(A), against M.M.
         Count 2: On or between April 24, 2005 and April 24, 2008, when Carlos was 13-
16 years old, Carlos participated in an act of sodomy, in violation of section 286,
subdivision (b)(2), with M.M.
         Counts 3, 4, and 5: On or between April 24, 2005 and April 24, 2008, when
Carlos was 13-16 years old, Carlos committed forcible rape, in violation of section 261,
subdivision (a)(2), against M.M.




         1
             Carlos was born in early March 1992. M.M. is three years younger than Carlos.
         2
             Statutory references are to the Penal Code unless otherwise indicated.

                                                 2
       Counts 6, 7, and 8: On or between August 27, 2006 and August 27, 2009, when
Carlos was 14-17 years old, Carlos committed forcible rape, in violation of section 261,
                                   3
subdivision (a)(2), against A.R.
       Count 9: On or between April 24, 2005 and April 24, 2006, when Carlos was 13-
14 years old, Carlos committed a lewd act upon a child, in violation of section 288,
subdivision (a), with M.M.
       Count 10: On or between August 27, 2006 and August 27, 2009, when Carlos was
14-17 years old, Carlos committed continuous sexual abuse of a child, in violation of
section 288.5, subdivision (a), against A.R.
       Count 11: On or between July 27, 2005 and July 27, 2006, when Carlos was 13-
14 years old, Carlos committed forcible oral copulation, in violation of section 288a,
                                       4
subdivision (c)(2)(A), against R.R.
       M.M., A.R. and R.R. testified at the adjudication hearing, held on various days
from January 24, 2013 through February 11, 2013. At the time of the adjudication
hearing, M.M. was 17, A.R. was 14, and R.R. was 16 years old.
M.M.
       M.M. was about 10 and one-half years old and in the fifth grade when the
incidents alleged in this case first began. During her fifth and sixth grade years, she
moved back and forth between the homes of her grandmother and her aunt J.R. (A.R. and
R.R.’s mother). Her uncle Carlos, who was three years older than her, lived at the home
of his mother (the three victims’ grandmother), but usually stayed at the home of his
sister J.R. (and niece A.R. and nephew R.R.) on weekends and during vacations from
school. Thus, M.M. and Carlos often stayed at the same home. When M.M. was 12, she
and her mother moved to Tennessee.




       3
           A.R. is six years younger than Carlos.
       4
           R.R. is four years younger than Carlos.

                                               3
        When M.M. was between 10 and one-half and 11 years old, Carlos taught her how
to get high by inhaling air freshener. She “liked it,” and continued to inhale air freshener,
and believed she became “addicted to it.”
        Around the time Carlos taught M.M. to inhale air freshener, he also began to touch
her inappropriately. The first incident (count 9) occurred when she was about 10 and
one-half years old. M.M. was in her aunt J.R.’s bedroom, watching television with her
                                            5
cousins A.R. and R.R. and her brother A. Carlos “kicked out” R.R. and A., and “closed
the door,” leaving it open only a “crack.” Then Carlos got under the covers with M.M.
and A.R., who were already lying on the bed. Carlos touched M.M.’s vagina with his
fingers for about 20 minutes, first over her clothes, and then under her clothes and inside
her vagina. M.M. told Carlos to stop, but he did not listen to her. She tried to push his
hands away but he continued to try to touch her. M.M. felt “disgusting” when Carlos did
this to her because he was her uncle and she did not want him to touch her like that.
During this same incident, Carlos also touched A.R. under the covers while M.M. looked
away.
        M.M. did not tell anyone immediately that Carlos had touched her inappropriately
because she was scared no one would believe her. Moreover, Carlos threatened to turn
her cousins against her and to tell her parents she used air freshener if she told anyone
about the incident. Similar incidents of Carlos touching M.M. and A.R. began to occur
regularly. M.M. recalled that nearly every day, Carlos wanted to touch her and A.R., and
wanted to have them “suck his penis.”
        On about 20 occasions between the time M.M. was 10 and one-half and 12 years
old, Carlos tried to insert his penis into her vagina (counts 3-5). These incidents usually
proceeded in the same way. Carlos, R.R., A., M.M. and A.R. would be playing in R.R.’s
room, which was a garage converted into a bedroom. Carlos would instruct R.R. and A.
to go play video games in a part of the room where they could not see the bed. Carlos
would take M.M. and A.R. to the bed. He would order M.M. to lie beside A.R. while he

        5
            M.M.’s brother A. also stayed at their aunt J.R.’s home sometimes.

                                                4
touched A.R. M.M. would hear A.R. saying “‘no,’” and making sounds indicating Carlos
was hurting her. M.M. would feel scared and she would close her eyes because she
“knew he was going to come to [her] next.”
       When Carlos finished with A.R., he would begin touching M.M.’s vagina while he
touched his penis. Then he would climb on top of M.M. and try to insert his penis into
her vagina. M.M. would repeatedly say “‘stop’” and “‘no.’” She felt pain as Carlos tried
to insert his penis into her vagina. M.M. testified that Carlos “would touch [her] really
ugly,” meaning “hard.” During about five of these 20 incidents, Carlos was able to insert
                                6
his penis into M.M.’s vagina.
       On one occasion when M.M. was 10 and one-half years old, Carlos inserted his
penis into her “butt” (count 2). During a party at the apartment complex where her
grandmother (Carlos’s mother) lived, M.M. went upstairs to her grandmother’s room to
change her clothes. Carlos followed her into the room. There was no one else in the
apartment. Carlos “threw” her onto the bed, pulled down her pants and “put his penis
inside [her] butt.” She felt severe pain. She “was screaming” and “telling him to stop,”
but he continued. When it was over, she went to the bathroom and discovered that her
“butt” was bleeding.
       As set forth above, M.M. and her mother moved to Tennessee when M.M. was 12
years old. A couple of years later in October 2009, when M.M. was 14 years old, she
returned to California to visit her father. She stayed at her aunt J.R.’s home. One night
while M.M. was there, Carlos knocked on the outside of A.R.’s window between 11:00
p.m. and 12:00 a.m. Then he opened the window and climbed into A.R.’s bedroom.
Carlos pulled out his penis and told A.R. and M.M., “‘Y’all going to suck my dick.’”


       6
        M.M. also testified about a particular incident which occurred in the summertime
when she was 11 years old and spending the night in a large tent in her aunt J.R.’s
backyard with Carlos, R.R., A., and A.R. After R.R. and A. went to sleep, Carlos began
touching A.R. and then he climbed on top of A.R. When Carlos finished with A.R., he
began touching M.M. and tried unsuccessfully to insert his penis into M.M.’s vagina.
M.M. cried during this incident.

                                             5
Then he grabbed A.R. by the back of the head, pulled her off the bed, and brought her
head down to his penis. Carlos moved A.R.’s head around while his penis was in her
mouth. M.M. heard A.R. saying, “‘No. I don’t want to. I don’t want to.’”
       When Carlos finished with A.R., he grabbed M.M. by the hand and pulled her off
the bed. Then he put his hand on the back of her head and brought her head down to his
penis. M.M. tried to pull her head backward, but Carlos was stronger than her. Carlos
held her hair and moved her head around while his penis was in her mouth (count 1).
When he finished, he left A.R.’s room through the window.
A.R.
       When A.R. was seven or eight years old, her uncle Carlos taught her how to get
high by inhaling air freshener and also began to touch her inappropriately. The sexual
abuse continued until she was at least 10 years old. At around that time, Carlos started
dating a girlfriend and he stopped touching A.R.
       Whenever Carlos slept at A.R.’s house during weekends or school vacations, he
would put his penis inside her vagina (counts 6-8 & 10). This happened more than 10
times. “A couple of times,” M.M. was present, but usually A.R. and Carlos were alone.
Carlos would come to her room while she was lying in bed and pull down her pants and
underwear. She would “tell him no” and try to push him away, but “he would tell [her] to
be quiet” and continue what he was doing. He would climb on top of her and pull down
his shorts, then insert his penis into her vagina multiple times. When he was finished,
“[h]e would pull his pants up and leave.” Carlos told A.R. that if she told anyone about
the sexual abuse, he would tell her mother (his sister J.R.) that she used air freshener and
she would “get in trouble.”
       Sometimes when A.R. “was sleeping in the garage” (R.R.’s room), she would see
Carlos “doing things to” M.M. She would see Carlos “on top of” M.M., and she would
see M.M. “suck” Carlos’s penis.
       On more than 10 occasions when A.R. was between the ages of eight and 10,
Carlos forced A.R. to “suck” his penis. This would occur during the night or when
A.R.’s parents went out and left Carlos “in charge” of her and R.R. Carlos would grab

                                              6
A.R.’s head with his hands and pull it down to his penis. A.R. would try to pull her head
away but Carlos was stronger than her. She would tell Carlos to stop, but he would
continue until he was finished. A.R. recalled a particular incident when she was spending
the night in a tent in her backyard with R.R., A., M.M. and Carlos, and Carlos forced her
and M.M. to suck his penis.
       When A.R. was 13 years old, she told her parents that Carlos had touched her
inappropriately. At that time, she was in trouble with her parents because they found out
she snuck out of her house at night to see a male friend. They brought her to the police
station to teach her a lesson. Before going inside the station, she was sitting in the car
with her parents when her father asked her if anyone had ever touched her. At first she
remained silent and did not answer the question, but then she told them her uncle Carlos
had touched her. A.R. and her parents left the parking lot of the police station and went
to A.R.’s grandmother’s home to tell her about what Carlos had done to A.R. Later that
day, A.R. and her parents returned to the police station and A.R. spoke to an officer about
the sexual abuse. An investigation commenced.
R.R.
       When R.R. was about nine years old, his uncle Carlos taught him how to inhale air
freshener. R.R. was nervous about trying it. Carlos told him if he did not try it Carlos
would make up a lie to get him in trouble. R.R. continued to use air freshener for at least
a year. He would go to liquor stores with Carlos to steal cans of air freshener.
       Also when R.R. was nine years old, he and Carlos took showers together. On one
occasion, when they were exiting the shower, Carlos told R.R. “to suck his penis.” “[A]t
first,” R.R. “said no,” but then Carlos told R.R. that he would do the same thing to R.R.
R.R. knelt down, but he “hesitated” because he “didn’t really want to” do it. Carlos
grabbed the back of R.R.’s head and placed his penis in R.R.’s mouth. Carlos moved his
penis back and forth in R.R.’s mouth while holding the back of R.R.’s head with one
hand. R.R. felt “uncomfortable.” “Less than a minute” after Carlos placed his penis in
R.R.’s mouth, R.R. pulled his head away and stopped sucking Carlos’s penis. R.R. stood
up and Carlos sucked R.R.’s penis. R.R. could not recall whether he wanted Carlos to do

                                              7
that to him. After it was over, Carlos and R.R. never talked about the incident and it
never happened again.
       Around the time of this incident, when R.R. was nine, R.R. used to spend the night
in the garage play room of his home with Carlos, M.M. and A.R. R.R. would often see
Carlos under the covers with either M.M. or A.R. R.R. could not see what was
happening under the covers because whenever he looked Carlos would tell him “to go
away.” R.R. would comply because Carlos would threaten to get him in trouble if he did
not go away. R.R. would “usually” hear M.M. telling Carlos to “stop.” R.R. saw M.M.
under the covers with Carlos on more than 20, and possibly more than 30, occasions
during a period of six months to a year.
       Over the years, R.R. would have bad dreams about the incident that occurred
between him and Carlos after the shower. After one of those dreams, when he was 14 or
15 years old, he told his girlfriend about what had happened with Carlos. He had never
told anyone else about it up to that time.
Carlos
       Carlos testified at the adjudication hearing. He denied ever having “sexual
contact” with A.R., M.M. or R.R. He also denied ever showing any of them how to get
                                               7
high on air freshener or using it with them.
       The juvenile court sustained the petition, finding all 11 counts to be true. At the
disposition hearing on February 25, 2013, the court declared Carlos to be a ward of the
court under Welfare and Institutions Code section 602, ordered him placed at home on
probation, and declared all counts to be felonies.




       7
          Carlos called his sister J.R., her husband, a deputy sheriff and a detective to
testify in his defense. It is not necessary for us to summarize the testimony of these
witnesses in deciding the issues on appeal.

                                                   8
                                      DISCUSSION
Count 2
       In count 2 of the second amended petition, Carlos was charged with participating
in an act of sodomy with M.M. in violation of section 286, subdivision (b)(2). This
statutory provision requires that the defendant be over 21 years of age and the victim be
under 16 years of age at the time the act of sodomy occurs. (§ 286, subd. (b)(2).) Carlos
challenges the sufficiency of the evidence supporting the juvenile court’s true finding on
count 2 on the ground he was not over 21 years of age when the act occurred. The
Attorney General concedes the evidence establishes Carlos was “was no older than 16 at
the time.” Carlos does not challenge the sufficiency of the evidence demonstrating that
he participated in an act of sodomy with M.M. during the timeframe alleged in count 2 or
that M.M. was under 16 years of age at the time.
       As the Attorney General argues in her respondent’s brief, and Carlos agrees in his
reply brief, the appropriate remedy is to modify the adjudication order to reflect a true
finding on count 2 on the lesser included offense of sodomy with a person under 18 years
of age, a violation of section 286, subdivision (b)(1). “Section 1181, subdivision 6
provides that a trial court may grant a new trial ‘[w]hen the verdict or finding is contrary
to law or evidence, but if the evidence shows the defendant to be not guilty of the degree
of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a
lesser crime included therein, the court may modify the verdict, finding or judgment
accordingly without granting or ordering a new trial, and this power shall extend to any
court to which the cause may be appealed . . . .’ [¶] Section 1260 provides that ‘[t]he
court may reverse, affirm, or modify a judgment or order appealed from, or reduce the
degree of the offense or attempted offense or the punishment imposed . . . and may, if
proper, order a new trial and may, if proper, remand the cause to the trial court for such
further proceedings as may be just under the circumstances.’” (People v. Bailey (2012)
54 Cal.4th 740, 748, fn. 3.)
       We modify the adjudication order to reflect a true finding on count 2 on the lesser
included offense of sodomy with a person under 18 years of age, a violation of section

                                              9
286, subdivision (b)(1). Based on this modification of the adjudication order, we have no
cause to reverse the disposition order, and Carlos does not argue otherwise.
Count 11
       Carlos challenges the sufficiency of the evidence supporting the juvenile court’s
true finding on count 11 alleging forcible oral copulation, in violation of section 288a,
subdivision (c)(2)(A), against R.R. Carlos argues the prosecution failed to present
evidence demonstrating he accomplished the act against R.R.’s “will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person,” within the meaning of section 288a, subdivision (c)(2)(A).
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘“Although it is the duty of the [trier of fact] to acquit a defendant
if it finds the circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the [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.”’ [Citations.]”’ [Citation.]”
(People v. Rodriguez (1999) 20 Cal.4th 1, 11.)



                                               10
       To establish forcible oral copulation in violation of section 288a, subdivision
(c)(2)(A), the prosecution must prove the “defendant accomplished an act of oral
copulation by the use of force sufficient to overcome the victim’s will.” (People v. Guido
(2005) 125 Cal.App.4th 566, 576.) The prosecution is not required to prove the use of
force prevented the victim from physically resisting the defendant. (Ibid.)
       R.R. testified that, after kneeling down, he hesitated because he did not want to
orally copulate Carlos. Carlos grabbed the back of R.R.’s head and placed his penis in
R.R.’s mouth. Carlos continued to hold the back of R.R.’s head while he moved his
penis back and forth in R.R.’s mouth. Substantial evidence demonstrates Carlos used
force sufficient to overcome R.R.’s will to accomplish the act of oral copulation. R.R.
did not voluntarily take Carlos’s penis into his mouth. Carlos used force to place it there.
Gladys R. Requirements
       Children under 14 years of age are deemed incapable of committing crimes unless
there is “clear proof that at the time of committing the act charged against them, they
knew its wrongfulness.” (§ 26.) Where a petition alleges a minor under 14 years of age
has committed a crime, to comply with section 26, the prosecution must prove by clear
and convincing evidence that the minor understood the wrongfulness of his conduct when
he committed the charged act. (In re Manuel L. (1994) 7 Cal.4th 229, 232-234, 239; In re
Gladys R. (1970) 1 Cal.3d 855, 858, 862-867.)
       Carlos challenges the juvenile court’s true findings on the count of sodomy and
the three counts of forcible rape against M.M., and the count of forcible oral copulation
against R.R., arguing “a fair reading of the record suggests that there was a high
probability that appellant was under fourteen [14] years old at the time that . . . [these]
offenses were committed” and “the record appears to be silent with respect to any proof
that appellant understood the nature of his actions as wrongful.” “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 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.)

                                              11
        As our Supreme Court has stated, “‘“it is only reasonable to expect that generally
the older a child gets and the closer [he] approaches the age of 14, the more likely it is
that [he] appreciates the wrongfulness of [his] acts.” [Citation.]’ [Citation.]” (People v.
Cottone (2013) 57 Cal.4th 269, 281.) “In determining whether the minor knows of the
wrongfulness of his conduct, the court must often rely on circumstantial evidence
[citation] including the minor’s age, experience and understanding, as well as the
circumstances of the offense including its method of commission and concealment
[citation].” (In re Jerry M., supra, 59 Cal.App.4th at p. 298.) The issue of the minor’s
appreciation of the wrongfulness of his conduct may be tried together with the issue of
whether the minor committed the charged act. In deciding whether the minor understood
the wrongfulness of his conduct, the juvenile court may consider evidence presented to
prove commission of the charged act. (In re Cindy E. (1978) 83 Cal.App.3d 393, 400-
401.)
        To the extent Carlos was under 14 years of age at the time he committed acts of
sodomy and forcible rape against M.M. and the act of forcible oral copulation against
R.R., substantial evidence supports a finding by clear and convincing evidence that he
understood the wrongfulness of his conduct when he committed the acts. It is undisputed
that he was 13 and one-half years old, at the youngest, at the time he committed these
acts, old enough to understand it was wrong to commit sex acts against his 10-and-one-
half-year-old niece and nine-year-old nephew.
        Moreover, Carlos’s conduct before and during the sex acts with M.M.
demonstrates he knew what he was doing was wrong. The evidence establishes he took
measures to ensure no one other than the children would find out about the sex acts with
M.M. Before committing the acts, he would send R.R. and A. away so they could not see
what he was doing to M.M. Carlos would threaten to get R.R. in trouble if he did not go
away. Carlos also threatened to turn M.M.’s cousins against her and tell her parents she
was getting high on air freshener if she told anyone what he was doing to her. The
evidence also establishes Carlos continued to engage in the acts even when M.M. made
clear he was hurting her and she was not consenting. During the acts, M.M. repeatedly

                                             12
said “‘stop’” and “‘no,’” but Carlos did not stop until he was finished. M.M. screamed in
pain during the act of sodomy, but Carlos continued to sodomize her.
       As discussed above, substantial evidence establishes that Carlos resorted to use of
force when R.R. indicated he did not want to orally copulate Carlos. On these facts, it is
inconceivable that Carlos did not understand at 13 and one-half years old that grabbing
the back of his nine-year-old nephew’s head and placing his penis inside his nephew’s
mouth was wrong.
                                     DISPOSITION
       The adjudication order is modified to reflect a true finding on count 2 on the lesser
included offense of sodomy with a person under 18 years of age, a violation of section
286, subdivision (b)(1). As so modified, the adjudication order is affirmed. The
disposition order is affirmed.
       NOT TO BE PUBLISHED.




                                                 CHANEY, Acting P. J.


We concur:



              JOHNSON, J.



              MILLER, J.*




       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                            13
