In re Robert B. CA2/6 ( 2013 )

Filed 11/21/13 In re Robert B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re ROBERT B., a Person Coming Under 2d Juv. No. B245719
the Juvenile Court Law. (Super. Ct. No. J1286154)
(Santa Barbara County)
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT B.,
Defendant and Appellant.
Robert B. appeals from an order of the juvenile court committing him to
the Department of Corrections, Division of Juvenile Facilities, for a maximum term of
12 years 10 months, based on offenses found true in multiple sustained juvenile
wardship petitions. (Welf. & Inst. Code, § 602, subd. (a).) His recent offenses include
a misdemeanor sexual battery. (Pen. Code, § 243.4, subd. (e)((1).)1 His sole
contention on appeal is that there is not sufficient evidence he committed a
misdemeanor sexual battery.2 We affirm.
1
All statutory references are to the Penal Code unless otherwise stated.
2
Appellant's recent offenses also include a felony sexual battery (§ 243.4, subd.
(a)); forcible sexual penetration by foreign object (§ 289, subd. (a)(1)(A)); attempted
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
On March 14, 2012, 16-year-old C.M. walked toward her mother's car,
in the high school parking lot. As C.M. opened the car's rear right door, she felt
someone grabbing her buttocks. That made her "feel horrible." She turned and saw
appellant, who was 15 years old. He entered the passenger side of the adjacent car,
and left with its driver. C.M. and her family reported the incident. At school the next
morning, appellant admitted he touched C.M.'s buttocks. He also told Santa Barbara
County Sheriff Deputy Paul Weirum that he "slapped" C.M.'s buttocks but "it was not
sexual in nature." He said he wanted help, and was trying to get suspended from
school.
Defense Evidence
Appellant admitted he touched C.M.'s buttocks. He denied he had any
purpose in doing so. C.M. turned, tried to elbow him, and kicked at him.
DISCUSSION
Appellant contends the juvenile court's finding that he committed a
misdemeanor sexual battery is not supported by substantial evidence. We disagree.
In deciding the sufficiency of the evidence, we review the record in the
light most favorable to the judgment. (In re Sylvester C. (2006) 137 Cal. App. 4th 601,
605.) We do not weigh the evidence or decide the credibility of the witnesses.
"'"Before the judgment of the trial court can be set aside for insufficiency of the
evidence . . . , it must clearly appear that upon no hypothesis whatever is there
sufficient substantial evidence to support it."'" (In re Cesar V. (2011) 192 Cal. App. 4th
989, 995.)
forcible oral copulation (§§ 664, 288a, subd. (c)(2)(A)); and attempted forcible rape
(§§ 664, 261, subd. (a)(2)). His past offenses include burglary (§ 459) and battery
(§ 242).
2
Section 243.4, the misdemeanor sexual battery statute, provides in
relevant part as follows: "Any person who touches an intimate part of another person,
if the touching is against the will of the person touched, and is for the specific purpose
of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor
sexual battery . . . ." (Id., subd. (e)(1).) "As used in this section, ‘touches’ means
physical contact with another person, whether accomplished directly, through the
clothing of the person committing the offense, or through the clothing of the victim."
(Id., subd. (e)(2).) "Intimate part" means "the sexual organ, anus, groin, or buttocks of
any person." (Id., subd. (g)(1).)
In challenging the sufficiency of the evidence that he committed a
misdemeanor sexual battery, appellant argues there is no evidence he touched C.M. for
any sexual purpose. In so arguing, he relies upon In re Jerry M. (1997) 59
Cal. App. 4th 289. His reliance is misplaced. Jerry M. concerns the sufficiency of the
evidence to support a distinct crime (felony lewd touching of victim under 14 years in
violation of section 288). Further, as the Jerry M. court stressed, the minor "was 11
years old and there [was] no evidence he had reached puberty." (Id. at p. 300.)
The juvenile court found that appellant touched C.M.'s buttocks for the
purpose of sexual abuse. As used in section 243.4, subdivision (e)(1), "'[S]exual
abuse' includes the touching of a woman's breast [or buttocks], without consent, for the
purpose of insulting, humiliating, or intimidating the woman, even if the touching does
not result in actual physical injury." (In re Shannon T. (2006) 144 Cal. App. 4th 618,
622.) The manner of touching is relevant, in that the trier of fact "'looks to all the
circumstances, including the charged act, to determine whether it was performed with
the required specific intent.'" (People v. Martinez (1995) 11 Cal. 4th 434, 445.) The
perpetrator's "purpose in [assaulting the victim] can be inferred from the act itself
together with its surrounding circumstances." (In re Shannon T., at p. 622.) The court
below rejected appellant’s claim that his sole intent in touching C.M.’s buttocks was to
get suspended. "Assum[ing that was his intent], he could have chosen other things, but
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[he] chose to commit a sexual battery." His action made C.M. feel horrible. Under the
circumstances, the court reasonably inferred C.M. "was humiliated by this, as
evidenced by [her] . . . trying to strike [and kick] him for doing it." Substantial
evidence supports its finding that appellant committed a misdemeanor sexual battery.
(Id. at p. 621.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
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Arthur A. Garcia, Judge
Rick Brown, Judge
Roger Piquet
Superior Court County of Santa Barbara
_____________________________
Esther R. Sorkin, 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, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney
General, for Plaintiff and Respondent.
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