Filed 6/10/16 In re J.P. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re J.P., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E063285
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. J257905)
v.
                                                                         OPINION
J.P.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,

Judge. Affirmed.

         Arielle Bases, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.




                                                             1
McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.

      The juvenile court found that defendant and appellant J.P. committed two lewd

acts upon his eight-year-old cousin, in violation of Penal Code section 288, subdivision

(a)1 (counts 1 & 2). The court declared J.P. a ward of the court under Welfare and

Institutions Code section 602 and placed him on formal probation in the custody of his

mother.

      On appeal, J.P. argues:

      1. There was insufficient evidence he harbored the necessary lewd intent to

commit a violation of section 288, subdivision (a).

      2. His prearrest statements to law enforcement should have been excluded

because they were not preceded by Miranda2 warnings and were not knowing and

voluntary.

      3. The court erred in setting a maximum term of confinement of 10 years.

      4. The court imposed an unconstitutionally vague and overbroad probation term.

      For the reasons discussed post, we reject these contentions and affirm the

judgment.




      1   Undesignated statutory references are to the Penal Code.

      2   Miranda v. Arizona (1966) 384 U.S. 436.



                                            2
                                              I

                     FACTS AND PROCEDURAL BACKGROUND

       A.      The Incidents

       The victim, J.P.’s cousin, testified at the jurisdictional hearing that J.P. touched her

vagina on two separate occasions. At the time of the incidents, the victim was eight and

J.P. was 14. By the time of the hearing, the victim was 11 and J.P. was 17 and a senior in

high school.

       The first incident happened in August or September 2012, when J.P. and the

victim were alone in J.P.’s bedroom, playing a video game. The victim testified that they

were sitting next to each other on the bed when J.P. grabbed her by her shoulders and

pulled her closer to him. J.P. put his hands down her pants and inside her underwear. He

rubbed her bare vagina, in a circular motion, for about 30 seconds.

       About two weeks later, while playing hide and seek at J.P.’s house, the victim hid

in a small trailer in the backyard. J.P. followed her into the trailer and stood behind her.

He put his hands down her pants and rubbed her bare vagina in the same way he had

before, again for about 30 seconds. The victim did not tell anyone about either incident

at the time.

       About two years later, the victim’s father was arrested for molesting the victim’s

older sister. The victim’s mother asked the victim if she had ever been touched

inappropriately, and the victim told her about the two incidents with J.P. in 2012. The

victim also told a counselor her family was seeing as a result of her father’s arrest that



                                              3
J.P. had touched her inappropriately. The counselor reported this information to child

protective services.

       A deputy from the San Bernardino County Sheriff’s Department testified that, on

August 12, 2014, he went to J.P.’s house to question him about the victim’s allegations.

J.P. indicated to the deputy that he remembered the incident. J.P. recalled it happened

approximately two years before, when he and the victim were playing a video game. He

said he might have accidentally touched the victim as he was moving her. However, he

denied putting his hands down the victim’s pants or touching her under her clothing.

       J.P. testified that he never touched the victim inappropriately. According to J.P.,

he and the victim never played video games alone and they never sat on the bed together.

Whenever he played video games, he would sit on a chair he would bring in from the

kitchen table.

       J.P. acknowledged that he may have accidentally touched the victim’s “private

parts” once. He described an incident where the victim had climbed onto his lap while he

was sitting in the chair playing the video game. J.P. testified that he grabbed the victim

by the waist with both hands, picked her up, and placed her on the bed next to him. He

denied putting his hand down her pants when this happened and he denied having ever

touched her under her clothing. He denied the hide-and-seek incident had occurred.

       B.        The Juvenile Court’s Ruling

       After hearing testimony, the trial court found the allegations in counts 1 and 2 true.

The court found the victim “very credible,” observing that she “answered questions



                                               4
forthright,” and “didn’t . . . look like she was exaggerating.” As factors supporting its

finding that J.P. harbored the requisite lewd intent, the court pointed to J.P.’s age (“at the

time this minor was older”) and the clandestine nature of the incidents (“both episodes

happened in a private location”). The court observed that when the victim’s family

visited J.P.’s house “there probably [were] lots of kids running around . . . parents

around,” which “may explain why it only happened twice over this time period.”

                                              II

                                       DISCUSSION

       A.        Lewd Intent

       J.P. contends there was insufficient evidence he harbored the requisite criminal

intent when he touched the victim’s vagina. He bases his contention on his age at the

time and the lack of evidence of sexual arousal. We conclude there is substantial

evidence to support the court’s finding that on each occasion J.P. touched the victim with

a lewd intent.

       “In determining whether there is sufficient evidence to find a defendant guilty of

violating section 288, subdivision (a), ‘[w]e 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. [Citations.] The trier

of fact, not the appellate court, must be convinced of the defendant’s guilt, and if the

circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of



                                              5
the reviewing court that the circumstances might also reasonably be reconciled with a

contrary finding does not warrant reversal of the judgment. [Citation.]’ ” (In re Randy S.

(1999) 76 Cal.App.4th 400, 404.)

       “The criminal intent required to prove a violation of section 288 is ‘the intent of

arousing, appealing to, or gratifying the lust or passions or sexual desires’ of perpetrator

or victim. The intent with which the act is done is manifested by the circumstances under

which the act is committed. [Citation.] Each case involving a lewd act must be decided

on its own facts.” (In re Paul C. (1990) 221 Cal.App.3d 43, 54, fn. omitted.) As our

Supreme Court has explained, “the circumstances of the touching [are] highly relevant to

a section 288 violation. The trier of fact must find a union of act and sexual intent

[citation], and such intent must be inferred from all the circumstances beyond a

reasonable doubt.” (People v. Martinez (1995) 11 Cal.4th 434, 452.) Circumstances

relevant to lewd intent include the nature of the charged act, whether it was done in

private, and the defendant’s extrajudicial statements. (Id. at p. 445.)

       J.P. relies on In re Jerry M. (1997) 59 Cal.App.4th 289 to support his argument

that he was too young to have harbored a lewd intent when he touched the victim. In that

case, Jerry, an 11-year-old boy, touched the breasts of two 12-year-old girls and one 13-

year-old girl and coerced a 12 year old to show him her breasts. (Id. at pp. 293-295.)

The juvenile court found Jerry committed four counts of violating section 288,

subdivision (a). (Id. at p. 293.) The appellate court reversed on the ground there was

insufficient evidence of lewd intent. (Id. at p. 300.)



                                              6
       In reaching this conclusion, the court relied on the following factors: Jerry’s

young age and the fact there was “no evidence he had reached puberty” and “no evidence

of sexual arousal”; Jerry had made no attempt to avoid detection, each touching had been

momentary and performed in public; and there had been no “caressing.” (In re Jerry M.,

supra, 59 Cal.App.4th at p. 300.) The court concluded that “Jerry was a brazen 11-year-

old whose conduct was more consistent with an intent to annoy and obtain attention than

with sexual arousal.” (Ibid.)

       Unfortunately, the same cannot be said about J.P.’s acts based on the record before

us. Unlike in Jerry M., there are several factors that support the juvenile court’s finding

of sexual intent.

       First, the manner in which J.P. touched the victim indicates it was not done

innocently or accidentally, but instead for sexual gratification. J.P. reached inside the

victim’s underwear and put his hand on her bare vagina. He proceeded to rub her vagina

for half a minute, in a circular motion. A prolonged caress of a person’s bare genitals

generally does not occur accidentally or innocently. The victim testified that she could

tell J.P.’s actions were not accidental and that no one had ever touched her “like th[at]”

while playing. Second, that J.P. waited until he and the victim were alone (the video

game incident) and followed her into a private area (the hide-and-seek incident), suggests

a lewd intent. (See In re Randy S., supra, 76 Cal.App.4th at p. 407 [“clandestine” nature

of 11 year old’s act supported a finding of lewd intent].) Third, J.P.’s statements to the

deputy support an inference that he had a guilty conscience about having touched the



                                              7
victim. When the deputy asked J.P. if he had ever touched his younger cousin, his

immediate response was that he remembered an incident from two years before, in which

he might have accidentally touched the victim while they were playing a video game.

While J.P. stressed that any touching would have been accidental, the mere fact he

remembered the specific video game incident from two years before supports an

inference that he felt the incident was inappropriate. All of these factors cut against J.P.’s

argument that the incidents were a result of “simple, albeit highly inappropriate,

curiosity.”

       J.P. makes much out of what the victim did not say during her testimony. He

points out that there was no evidence he was sexually experienced, had gone through

puberty, or was aroused during the touching. But the absence of these factors does not

negate the possibility of lewd intent. The sexual (as opposed to merely “curious”)

manner in which he touched the victim and the fact he did so in private are alone

sufficient to support a finding of lewd intent. That J.P. may not have had an erection like

the 13 year old in In re Paul C. or may not have reached sexual maturity3 are not

dispostive factors. (In re Paul C., supra, 221 Cal.App.3d at pp. 47, 54.) As courts have


       3  J.P. was 14 when the incidents occurred. “Webster’s Third New International
Dictionary (1993) . . . [a]t page 1835, . . . defines ‘puberty’ as ‘the condition of being or
the period of becoming first capable of reproducing sexually marked by maturing of the
genital organs, development of secondary sex characteristics, . . . the age at which
puberty occurs [is] often construed legally as 14 in boys and 12 in girls.’” (In re Randy
S., supra, 76 Cal.App.4th at p. 405, fn. 5, italics added.)




                                              8
explained, even children under the age of 14 are capable of lewd conduct. “ ‘It is not all

that unusual for mature children age 13 or younger sexually to molest children even

younger than they knowing it is wrong to do so.’ ” (Id. at p. 51.)

       Taking the victim’s testimony as true, as the standard of review requires us to do,

we conclude the record contains substantial evidence of lewd intent based on the sexual

and private nature of the touching.

       B.     J.P.’s Statements to the Deputy

       J.P. contends his statements to the deputy should have been excluded because they

were given without a Miranda warning and were not knowing and voluntary.

              1.     Factual background

       The deputy and J.P. testified at the hearing on J.P.’s motion to exclude his

prearrest statements. According to the deputy, after interviewing the victim and her

mother about the incidents, he went to J.P.’s home to question him about the victim’s

allegations. The deputy parked his marked police car in front of the home and honked his

horn to announce his presence. J.P. came outside and spoke to the deputy through the

five foot tall chain link fence that surrounded his property.

       The deputy confirmed J.P.’s name and told him he was there to talk to him about

the victim’s allegations that he had “touch[ed] her.” J.P. responded, “Yes, I remember

that.” J.P. said he had accidentally touched the victim over her pants while they were

playing a video game, about two years ago. The deputy asked whether J.P. had put his




                                              9
hands down the victim’s pants and J.P. replied, “no.” The deputy left without citing or

arresting J.P.

       The deputy described his interaction and conversation with J.P. as “quick.” J.P.

stood about five feet away from the fence the entire time and the deputy had no access to

him. The deputy was in uniform. At no point did the deputy give J.P. a Miranda

warning or tell J.P. he had to stay and talk to him. Later that afternoon, the deputy

returned and issued J.P. a citation but did not arrest him.

       J.P. testified that he felt he had to answer the deputy’s questions and could not go

back into his house while the deputy was there.

       The court denied J.P.’s motion. It concluded there was no Miranda violation

because J.P. was not in custody when the deputy questioned him.

                 2.   Miranda warning

       Miranda warnings are required only where there has been such a restriction on a

person’s freedom as to render him “in custody.”4 (Oregon v. Mathiason (1977) 429 U.S.

492, 495 [Miranda is not applicable “simply because . . . the questioned person is one

whom the police suspect”].) “ ‘Absent “custodial interrogation,” Miranda simply does

not come into play.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 401.)

       4 “ ‘Before being subjected to “custodial interrogation,” a suspect “must be
warned that he has a right to remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.” ’ ” (People v. Leonard (2007) 40 Cal.4th 1370, 1399-1400
(Leonard).)




                                             10
       “An interrogation is custodial when ‘a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.’ [Citation.] Whether

a person is in custody is an objective test; the pertinent inquiry is whether there was ‘ “ ‘a

“formal arrest or restraint on freedom of movement” of the degree associated with a

formal arrest.’ ” ’ ” (Leonard, supra, 40 Cal.4th at p. 1400.) Relevant factors include:

“(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length

of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the

demeanor of the officer, including the nature of the questioning.” (People v. Forster

(1994) 29 Cal.App.4th 1746, 1753; see also In re Joseph R. (1998) 65 Cal.App.4th 954,

961 [although the officer handcuffed minor and placed him in the patrol car, minor was

not in custody during the 20-minute encounter because the officer let him out of the car

and removed the handcuffs before questioning].)

       “When reviewing a trial court’s determination that a defendant did not undergo

custodial interrogation, an appellate court must ‘apply a deferential substantial evidence

standard’ [citation] to the trial court’s factual findings regarding the circumstances

surrounding the interrogation, and it must independently decide whether, given those

circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to

end the questioning and leave.’ ” (Leonard, supra, 40 Cal.4th at p. 1400.)

       Here, the totality of the circumstances surrounding the deputy’s questioning

demonstrate that J.P. was not in custody. The deputy was the only officer present and he

did not arrest J.P. J.P. came out of his house to speak with the deputy and remained in



                                               11
his own yard for the entirety of the conversation, which, based on their testimony, could

not have lasted longer than a few minutes. At no time during this brief conversation did

the deputy tell J.P. he could not leave.

       J.P. testified he felt he had to answer the deputy’s questions; however, this

perception represents his subjective belief and was not objectively reasonable based on

the deputy’s actions. J.P. did not claim the deputy acted in a coercive or confrontational

manner, and no evidence in the record suggests that was the case. In the absence of any

objective indicia of detention, we must conclude J.P. was not in custody for Miranda

purposes. The juvenile court therefore did not err by admitting J.P.’s prearrest

statements.

              3.     Voluntariness

       J.P. argues his statements to the deputy were involuntary because of his young age

and lack of experience with law enforcement.

       “A statement is involuntary if it is not the product of ‘ “a rational intellect and free

will.” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 404.) The test for determining

voluntariness is whether the defendant’s will was “ ‘overborne’ ” at the time of the

statement. (Ibid.) “A finding of coercive police activity is a prerequisite to a finding that

a confession was involuntary under the federal and state Constitutions. [Citation.] A

confession may be found involuntary if extracted by threats or violence, obtained by

direct or implied promises, or secured by the exertion of improper influence. [Citation.]

. . . . The statement and the inducement must be causally linked.” (Id. at pp. 404-405,



                                              12
italics added.) “On appeal, we uphold the trial court’s findings of historical fact, but we

independently review its determination that defendant’s statements were voluntary.”

(Leonard, supra, 40 Cal.4th at pp. 1402-1403.)

       The entirety of the deputy’s interaction with J.P. consists of the deputy arriving at

his home, confirming his identity, and inquiring whether the victim’s accusations were

true. There is no evidence the deputy exerted coercion or any type of improper influence

over J.P. during this interaction. J.P.’s emphasis on his age (he was 16 at the time) and

his lack of experience with law enforcement misses the focus of the voluntariness

analysis. The question is whether the police employed any objectively improper,

coercive tactics to elicit statements from a defendant, and there is simply no evidence the

deputy did so.

       C.     Maximum Term of Confinement

       J.P. argues that because he was placed on probation and not removed from his

mother’s custody, it was error for the court to set his maximum term of confinement at 10

years. While it is true a court is authorized to set a maximum term of confinement only

when the minor is placed in custody (and therefore removed from parental custody) (In re

Ali A. (2006) 139 Cal.App.4th 569, 573-574), the court did not actually set a maximum

term of confinement in this case.

       At the jurisdiction hearing, the court informed J.P. that his maximum term of

confinement “would” be 10 years because counts 1 and 2 would be felonies if committed

by an adult. (Italics added.) When the court pronounced J.P.’s sentence at the



                                             13
disposition hearing, it placed him on probation in his mother’s custody and did not set, or

even mention, a maximum term of confinement. Additionally, J.P.’s juvenile detention

disposition report contains no reference to confinement.

       The court’s statement at the jurisdiction hearing did not have the legal effect of

setting a maximum term of confinement. (In re P.A. (2012) 211 Cal.App.4th 23, 31-32

[“What the court stated at the jurisdiction hearing regarding the maximum term of

confinement is of no consequence”].) Because the court did not set a maximum term of

confinement, we decline J.P’s request to “remove” the court’s statement from the record.

       D.     Probation Condition No. 22

       Condition No. 22 of J.P.’s probation conditions states that J.P. shall “[n]ot

associate with (persons/females/males) [he] knows or reasonably should know are under

the age of 14, unless in the presence of a responsible adult who is aware of the nature of

[his] background and current offense, and who has been approved by the probation

officer.” The following exchange occurred after the court imposed this condition:

       “[THE COURT:] So obviously I understand from the trial that this is a family

where there were lots of cousins together. He can’t be alone with anyone under the age

of 14, and the person in the room with him has to be aware of the offense. [¶] Do you

understand that, ma’am?

       “MINOR’S MOTHER: Yes.

       “THE COURT: And do you understand that, [J.P.]?

       “THE MINOR: Yes.



                                             14
       “THE COURT: I don’t want probation to show up at the house—if you’re in the

room playing video games and there’s a 12-year-old in there, you’re going to be in

violation. Understood?

       “THE MINOR: Yes.”

       J.P. contends condition No. 22 is vague and overbroad because he could arguably

violate it by attending high school. He also argues the requirement that the supervising

adult be “aware of the nature of his background and current offense” violates the Welfare

and Institutions Code by failing to protect the confidentiality of his name and offense.

J.P. asks us to modify condition No. 22 to read that he shall not associate with children

under the age of 14, unless he is in the presence of a responsible adult “or he is in a

supervised classroom setting.” (Italics added, bolding omitted.) We conclude the

condition does not violate his constitutional rights or any right to confidentiality under

the Welfare and Institutions Code.

       “The juvenile court has wide discretion to select appropriate conditions and may

impose ‘ “any reasonable condition that is ‘fitting and proper to the end that justice may

be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ [Citations.] In

distinguishing between the permissible exercise of discretion in probationary sentencing

by the juvenile court and that allowed in ‘adult’ court, we have advised that, ‘[a]lthough

the goal of both types of probation is the rehabilitation of the offender, “[j]uvenile

probation is not, as with an adult, an act of leniency in lieu of statutory punishment . . . .”

[¶] In light of this difference, a condition of probation that would be unconstitutional or



                                              15
otherwise improper for an adult probationer may be permissible for a minor under the

supervision of the juvenile court. . . .’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889.)

       “A probation condition ‘must be sufficiently precise for the probationer to know

what is required of him, and for the court to determine whether the condition has been

violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A

probation condition that imposes limitations on a person’s constitutional rights must

closely tailor those limitations to the purpose of the condition to avoid being invalidated

as unconstitutionally overbroad.” (In re Sheena K., supra, 40 Cal.4th at p. 890.)

       Condition No. 22 is not vague or overbroad. The condition clearly conveys what

constitutes a violation, that is, association with a child under the age of 14 without the

supervision of an approved adult who knows the nature of J.P.’s offense. As for the

condition’s breadth, J.P. has not identified a constitutionally protected right that is being

burdened by the condition. J.P. simply argues that his probation terms and conditions

also require him to attend high school and that he is likely to “come into contact” with

children under the age of 14 while at school. This argument is unavailing.

       First, condition No. 22 does not prohibit J.P. from coming into contact with a child

under the age of 14. What the condition prohibits is association, which is a more

substantial and prolonged form of interaction. Second, depending on J.P.’s academic

status, his concern is either moot or unfounded. J.P. is currently 18 years old. When the

court imposed the probation conditions in March 2015, he was a high school senior. If

J.P. graduated from high school in 2015, his concern about violating the condition at



                                              16
school is moot. And if he has not graduated, it is difficult to imagine a scenario where a

high school senior would be unable to avoid associating with children 13 years old or

younger while on campus.

       We also reject the argument that condition No. 22’s adult supervision requirement

violates the Welfare and Institutions Code. J.P. cites to Welfare and Institutions Code

section 676, claiming it “provides that [his] name and offense remain confidential.” In

fact, Welfare and Institutions Code section 676 simply sets forth the general rule that

juvenile court hearings are not open to the public (with exceptions for certain offenses

and certain interested persons), and provides that only certain juvenile court records may

be disclosed to the public. (Welf. & Inst. Code, § 676, subds. (a), (c).) Indeed, as the

People point out, Welfare and Institutions Code section 204.5 allows a minor’s name to

be disclosed to the public if the minor is 14 or older and found by the juvenile court to

have committed certain offenses, including violations of Penal Code section 288,

subdivision (a). (Welf. & Inst. Code, § 204.5; see also Pen. Code, §§ 667.5, subd. (c)(6),

1192.7, subd. (c)(6).)

       In any event, even if the Welfare and Institutions Code requires J.P.’s name and

offense to remain confidential, condition No. 22 does not require him to divulge that

information to anyone. J.P. can choose not to associate with children under the age of 14

or he can choose to do so under the supervision of an adult who is already aware of his

offense, such as his mother. The requirement that the adult be aware of the offense is

necessary to ensure the adult is appropriately vigilant while supervising J.P. around



                                             17
young children. Condition No. 22 allows J.P. to associate with young children while also

providing the supervision necessary to prevent future violations of Penal Code section

288, subdivision (a). We therefore uphold condition No. 22 as a reasonable condition

intended to prevent recidivism and promote “reformation and rehabilitation.” (In re

Sheena K., supra, 40 Cal.4th at p. 889.)

                                           III

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS.


                                                              SLOUGH
                                                                                         J.

We concur:


MILLER
                Acting P. J.


CODRINGTON
                          J.




                                           18
