In re Eduardo D.

Filed 7/31/07 In re Eduardo D. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from an order of the Superior Court of Los Angeles County. Rudolph A. Diaz, Judge. Affirmed.

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Eduardo D., a minor, appeals from an order declaring him to be a ward of the court pursuant to Welfare and Institutions Code section 602[1]upon findings that he had committed forcible oral copulation (Pen. Code, 288a, subd. (c)(2)). The juvenile court ordered appellant into a short-term camp community placement program with a maximum term of confinement of eight years. Appellant contends that the evidence was insufficient to support the true finding of forcible oral copulation.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 2006, the district attorney filed a section 602 petition alleging that on or about December 8, 2005, 16-year-old appellant committed forcible oral copulation on Jennifer T.

On July 26, 2006, the following evidence was adduced at an adjudication hearing. We review that evidence in accordance with the usual standard of review. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)

According to Jennifer, around 3:30 p.m. on Thursday, December 8, 2005, she was on her way to an after-school, chemistry tutoring class. Appellant came up behind her and grabbed her left arm as she climbed the stairs to the classroom. He then grabbed her hair with both hands. When she turned around, Jennifer recognized appellant from a class they had together. She saw that his pants were on the floor by his ankles and his erect penis was protruding through his boxer shorts. Appellant pulled her toward his penis as she tried to fight him. Appellants penis went past her lips and touched her clenched teeth for less than a minute, but did not enter her mouth all of the way.[2] Jennifer thought that putting a penis in her mouth as far as her clenched teeth constituted oral copulation. But when asked, You didnt actually give him oral sex, did you? she responded, No, because my teeth were closed.

Jennifer broke free of appellant and found her friend, Marta O., and Martas brother, Herbert. Jennifers hair was messed up, she was crying a lot, and she threw up. Martas mother picked up Marta, Herbert and Jennifer and took them home. When they got there, Jennifer told Marta what happened.

Jennifer did not attend school the next day, telling her brother, who was to drive her, of the incident. She had not told her mother about it because her mother arrived home late the prior evening and left early that morning. She informed her mother of the incident that evening, when her mother asked why she had not gone to school. On the following Monday, December 12, 2005, Jennifers mother took her to school to report the incident. Jennifer did not return to school that semester because she was afraid of appellant.

Sergeant Rose Angel-Rummer, the investigating officer, interviewed appellant. He admitted having had oral sex with Jennifer, but said that it was her idea. He told the sergeant that Jennifer took his penis and put it in her mouth. After a short time, she stopped and told him she did not want to do it anymore.

The juvenile court found the allegation of forcible oral copulation to be true beyond a reasonable doubt and declared the offense to be a felony. It declared appellant a ward of the court, removed him from the custody of his parents and placed him in the care, custody and control of the probation officer subject to conditions. He was placed in a short camp community placement program.

DISCUSSION

Appellant contends that there was insufficient evidence to support the forcible oral copulation allegation. He argues that the evidence would only support a finding that he attempted oral copulation as his penis never entered Jennifers mouth. This contention is specious.

Under the substantial evidence standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; In re Jesse L. (1990) 221 Cal.App.3d 161, 165.) The appellate court must presume every fact in support of the judgment that the trier of fact could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.)

Subdivision (a) of Penal Code section 288a provides that, [o]ral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. Penal Code section 288a, subdivision (c)(2) provides: Any person who commits an act of oral copulation when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six or eight years.

Oral copulation is [a]ny contact, however slight, between the mouth of one person and the sexual organ of another person. . . .  Penetration of the mouth is not required. (People v. Grim (1992) 9 Cal.App.4th 1240, 1242-1243 [adopting definition of oral copulation found in the 1988 version of CALJIC No. 10.10, which was substantially the same as the current CALJIC version and CALCRIM No. 1015].) Other cases similarly reflect that mere touching, without penetration, constitutes the offense. (See People v. Catelli (1991) 227 Cal.App.3d 1434, 1447-1448 [licking the scrotum of another constitutes oral copulation under section 288a]; see also People v. Harris (1951) 108 Cal.App.2d 84, 88 [placing mouth on females private parts is oral copulation]; People v. Hesslink (1985) 167 CalApp.3d 781, 791 [oral copulation is oral-genital contact]; People v. Wilson (1971) 20 Cal.App.3d 507, 510 [kiss[ing victim] in the vaginal area with tongue meets definition of oral copulation, which is placing ones mouth on the genital organ of another].)

If the Legislature had intended that something more than mere contact of the mouth and the sex organ was necessary to constitute oral copulation, it certainly knew how to express such a requirement. For example, sodomy is defined in Penal Code section 286, subdivision (a) as contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. Similarly, Penal Code section 263 discussing rape states that, Any sexual penetration, however slight, is sufficient to complete crime. The absence of any reference to penetration in Penal Code section 288a suggests that it is not required.

The Legislature has amended Penal Code section 288a several times without indicating any intention to reject judicial interpretations of what constitutes oral copulation. While the failure of the Legislature to alter the language of defining a crime to correct a judicial interpretation is a weak reed upon which to lean (People v. Escobar (1992) 3 Cal.4th 740, 750-751), courts nonetheless generally indulge in the presumption that the Legislature under those circumstances has ratified a judicial interpretation. (Ibid.)

But even if penetration is required, the facts here are ample to support appellants conviction of oral copulation. The investigating officer testified that appellant admitted that Jennifer took his penis and put it in her mouth, although claiming that it was consensual and at her suggestion. Jennifer testified that appellant inserted his penis past her lips, to her teeth, but was prevented from going further because her teeth were clenched. Once passing between Jennifers lips and touching her teeth, appellants penis had penetrated her mouth.

Appellant claims that the most that occurred was attempted oral copulation. But he presents no supporting authority, relying only on People v. Massey (1955) 137 Cal.App.2d 623 which merely interpreted copulating to mean coupling, without explaining the meaning of the latter term. (Id. at p. 625.) Coupling provides little additional insight into the issue before us. Websters Third New International Dictionary (1961) page 522, simply defines coupling as 1: the act of bringing together; pairing; a coming together . . . . The nature of the coming together is not defined by that term.

DISPOSITION

The juvenile courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________, J.

DOI TODD

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Two defense witnesses testified as to Jennifers earlier descriptions of what appellant had allegedly done to her. Walter Rivers, the presiding officer at appellants school expulsion hearing, testified that he did not recall Jennifer saying at the hearing that appellant attempted to insert his penis in her mouth while she clenched her teeth to prevent his penis from entering. She said she was forced to have oral sex with him. Defense witness, D.V., Jennifers mother, testified that Jennifer told her that a boy grabbed her, pulled her by the hair and put his penis in her mouth.