Filed 10/8/13 In re J.G. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


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

THE PEOPLE,                                                          A137262

         Plaintiff and Respondent,                                   (Solano County
v.                                                                   Super. Ct. No. J38856)
J.G.,
         Defendant and Appellant.


         J.G. (minor) was found to have committed battery on a person with whom he had
a dating relationship largely on the testimony of a witness who saw him beating a
woman. The only evidence of a personal relationship between minor and the victim was
minor‘s own statement to police that the woman was his ―girlfriend.‖ Minor contends the
doctrine of corpus delicti required the prosecution to introduce evidence of the nature of
the relationship independent of his statement. Finding no such requirement, we affirm.
                                               I. BACKGROUND
         In a petition filed pursuant to Welfare and Institutions Code section 602,
subdivision (a) on October 23, 2012, minor was alleged to have committed misdemeanor
battery on a person with whom he had a previous dating relationship (Pen. Code, § 243,
subd. (e)(1)).
         Only two witnesses testified at trial. The first, a bystander, said he was driving in
Fairfield when he spotted minor sitting on top of a female, hitting her with both hands. In
one hand minor held a cell phone, while the other was a closed fist. The witness
estimated minor took from four to six swings at the victim, who was struggling to get out
from beneath him. When the witness stopped his car and approached them, minor ran
off. The ―frantic‖ victim was crying and shaking, had bleeding wounds, and complained
of headaches. The witness called the police.
       The second witness, a police officer, testified she located minor after having been
alerted to the assault. After minor had been detained, he said to the police, ―Why are you
guys stopping me? We were just in a fight. My girlfriend and I were just arguing.‖
       Minor‘s counsel argued that because the victim had not testified, there was no
evidence the contact between them was nonconsensual. He also contended there was
―insufficient evidence to prove beyond a reasonable doubt the nature of the relationship.‖
       The juvenile court found the allegations true. Minor was continued as a ward of
the court and placed in the New Foundations program.
                                     II. DISCUSSION
       Minor contends the jurisdictional allegations are unsupported by the evidence
because there was no independent evidence of the nature of his relationship with the
victim, as required by the doctrine of corpus delicti.
       ―In every criminal trial, the prosecution must prove the corpus delicti, or the body
of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal
agency as its cause. In California, . . . the prosecution cannot satisfy this burden by
relying exclusively upon the extrajudicial statements, confessions, or admissions of the
defendant.‖ (People v. Alvarez (2002) 27 Cal.4th 1161, 1168–1169 (Alvarez).)1 The
purpose of the requirement of evidence independent of the defendant‘s statements is ―to
assure that ‗the accused is not admitting to a crime that never occurred.‘ ‖ (People v.
Jones (1998) 17 Cal.4th 279, 301 (Jones).) ― ‗ ―The independent proof may be by
circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight

       1
          Proof of criminal agency requires evidence from which it might be concluded
that the injury or harm resulted from the intentional act of a human being. (People v.
Culton (1992) 11 Cal.App.4th 363, 367.)


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or prima facie showing, permitting the reasonable inference that a crime was committed,
is sufficient.‖ ‘ ‖ (People v. Gutierrez (2002) 28 Cal.4th 1083, 1127–1128 (Gutierrez).)
       The ―corpus‖ of a crime is not synonymous with the ―elements‖ of the crime.
(People v. Hawkins (2004) 124 Cal.App.4th 675, 680.) The prosecution, for example,
need not prove the identity of the perpetrator by independent evidence, nor is independent
evidence required to demonstrate the degree of a homicide. (Ibid.) ―There is no
requirement of independent evidence ‗of every physical act constituting an element of an
offense,‘ so long as there is some slight or prima facie showing of injury, loss, or harm by
a criminal agency. [Citation.] In every case, once the necessary quantum of independent
evidence is present, the defendant‘s extrajudicial statements may then be considered for
their full value to strengthen the case on all issues.‖ (Alvarez, supra, 27 Cal.4th at
p. 1171.)
       A clear illustration of the distinction between the corpus of a crime and its
elements is found in Jones, supra, 17 Cal.4th 279. The victim in that decision was shot
in the head and left to die by a roadside. Her underclothing had been removed, and
residual semen was found on her genitals and anus. (Id. at p. 291.) Although there was
no physical evidence that the victim had engaged in oral sexual acts, the defendant was
convicted of aiding and abetting forced oral copulation because he had admitted the
crime to police. On appeal, the defendant argued for a reversal of this conviction under
the doctrine of corpus delicti. In affirming the trial court‘s decision to overturn a
magistrate‘s dismissal of the charge, the court held: ―[Penal Code] Section 288a,
subdivision (a), defines this crime as ‗the act of copulating the mouth of one person with
the sexual organ or anus of another person.‘ [¶] Keeping in mind the low threshold of
proof required to satisfy the corpus delicti rule, we conclude that the magistrate erred in
finding this low threshold was not met by the evidence presented at the preliminary
examination. The state of the victim‘s clothing (no underwear or shoes) and the forensic
evidence . . . indicates multiple sexual acts occurred. That the victim was forcibly
abducted, beaten, shot in the head, and left by the side of the road for dead gives rise to
an inference that the sexual activity that occurred was against the victim‘s will. This


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circumstantial evidence of multiple forcible sexual acts sufficiently establishes the
requisite prima facie showing of both (i) an injury, loss or harm, and (ii) the involvement
of a criminal agency. [¶] . . . [¶] . . . [W]e have never interpreted the corpus delicti rule so
strictly that independent evidence of every physical act constituting an element of an
offense is necessary. Instead, there need only be independent evidence establishing a
slight or prima facie showing of some injury, loss or harm, and that a criminal agency
was involved.‖ (Id. at pp. 302, 303.) In short, the court affirmed the conviction despite
the lack of any independent evidence of the primary element of the crime, sexual contact
with the victim‘s mouth. Other cases have similarly held the corpus delicti doctrine does
not require independent evidence of penetration for a conviction of rape (People v.
Jennings (1991) 53 Cal.3d 334, 368–369) or knowledge and intent for a conviction of
aiding and abetting (Gutierrez, supra, 28 Cal.4th at p. 1128).
       The bystander‘s testimony left little doubt minor had committed a crime. He said
minor struck the victim repeatedly as she struggled to escape and appeared to have
inflicted wounds. When the witness approached, minor ran away, suggesting awareness
of the wrongfulness of his conduct. This testimony constituted more than adequate
independent evidence of ―both (i) an injury, loss or harm, and (ii) the involvement of a
criminal agency.‖ (Jones, supra, 17 Cal.4th at p. 302.) The prosecution having provided
independent evidence of the corpus of a crime, ―the [minor‘s] extrajudicial statements
[could] then be considered for their full value to strengthen the case on all issues.‖
(Alvarez, supra, 27 Cal.4th at p. 1171.)
       In considering the requirements of corpus delicti, it is noteworthy that minor‘s
statement to police did not constitute the admission of a crime. He merely told the police
the victim was his girlfriend. As a result, there was no risk minor would be convicted,
solely on the basis of his statement, of a crime that never occurred. Rather, minor‘s
relationship with the victim was criminally material only because it affected the potential




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penalty.2 It was in the nature of a sentencing enhancement, which need not be supported
by independent evidence. (People v. Shoemake (1993) 16 Cal.App.4th 243, 252, 256.)
In effect, the fact of a dating relationship ―does no more than aggravate the penalty for
the underlying offense‖ and therefore required no independent evidence. (People v.
Miranda (2008) 161 Cal.App.4th 98, 102.)
       Minor relies largely on cases discussing the concept of corpus delicti in deciding
which factual issues must be submitted to the jury. (E.g., People v. Henderson (1976)
58 Cal.App.3d 349, 358–359; People v. Jones (1970) 8 Cal.App.3d 710, 716.) Because
the cases were decided prior to virtually all the decisions cited above and employ the
concept of corpus delicti in a different context, we find them unhelpful in determining
which issues must be proven by independent evidence.
       Even if minor‘s contention had substantive merit, we would find it forfeited. As
minor acknowledges, his counsel did not object on grounds of corpus delicti in the
juvenile court. We are persuaded by the reasoning of People v. Martinez (1994)
26 Cal.App.4th 1098 (Martinez) and People v. Sally (1993) 12 Cal.App.4th 1621, 1628
(Sally) that an objection was required to preserve the issue for appeal because ― ‗[i]t may
well be that ―proof of the corpus delicti was available and at hand during the trial, but in
the absence of [a] specific objection calling for such proof it was omitted.‖ ‘ ‖ (Martinez,
at pp. 1104–1105.)
       Minor contends the Supreme Court rejected Martinez and Sally in footnote 8 of
Alvarez, supra, 27 Cal.4th at page 1172. On the contrary, the Alvarez footnote stated
only that the Supreme Court had never addressed the particular forfeiture issue raised
here.3 Further, although the Alvarez footnote claimed that subsequent Court of Appeal

       2
         Under Penal Code section 243, subdivision (a), the penalty for battery is a fine
and six months in jail. When the battery is committed against a person with whom the
defendant has a dating relationship, however, the jail term is increased to a year. (Id.,
subd. (e)(1).)
       3
         In People v. Wright (1990) 52 Cal.3d 367, disapproved on other grounds in
People v. Williams (2010) 49 Cal.4th 405, 459, the court had required an objection in the
trial court to preserve the issue of the improper admission of a defendant‘s statement in

                                              5
decisions addressing forfeiture were ―split,‖ the two decisions addressing the particular
issue raised here, Martinez and Sally, both require an objection in the trial court to
preserve a claim of insufficiency of independent evidence. The differing case cited by
Alvarez, People v. Lara (1994) 30 Cal.App.4th 658, addressed a different issue, the
requirement for an objection to preserve a claim that the court failed to give a corpus
delicti instruction. (Id. at p. 675.) On the issue raised here, the published appellate
decisions are unanimous in requiring objection below.
       Finally, minor contends his trial counsel provided ineffective assistance in failing
to object on grounds of sufficiency of the independent evidence under the corpus delicti
doctrine. ― ‗ ― ‗Reviewing courts will reverse convictions [on direct appeal] on the
ground of inadequate counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for [his or her] act or omission.‘ ‖ [Citation.]‘
[Citation.] If the record on appeal ‗ ― ‗sheds no light on why counsel acted or failed to
act in the manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation,‘ the
claim on appeal must be rejected.‖ ‘ ‖ (People v. Vines (2011) 51 Cal.4th 830, 876.)
       We cannot say on the record before us that there could be no satisfactory
explanation for counsel‘s failure to raise the issue. In particular, we cannot rule out the
possibility that counsel refrained from making the objection because it could have led the
prosecution to introduce additional, more damaging evidence of the assault.
                                    III. DISPOSITION
       The judgment of the trial court is affirmed.




the absence of independent evidence of a crime (id. at p. 404), but it had not addressed
the requirement to preserve an insufficiency argument.


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                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Sepulveda, J.*




       *
        Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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