In re Jerry M.

Filed 10/26/07 In re Jerry M. CA5

Received for posting 10/30/07

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Commissioner.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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INTRODUCTION

On December 7, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Jerry M., committed forcible rape, a felony (Pen. Code,  261, subd. (a)(2)).^[1] At the conclusion of a contested jurisdictional hearing on May 2. 2007, the juvenile court found the allegation true. On June 27, 2007, the juvenile court ordered Jerry committed to the Elkhorn Boot Camp for a term not to exceed 365 days, with credit for time previously served. Upon release from boot camp, Jerry was to complete a sex offender treatment program.

Jerrys appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Jerry was advised he could file his own brief with this court. By letter on September 10, 2007, we invited Jerry to submit additional briefing. To date he has not done so.

FACTS

On November 3, 2006, B. R. and B. M. were waiting after school for a ride prior to an evening football game. Both girls were cheerleaders and were wearing their uniforms. Instead of going to Panda Express, the girls went with Jerry to his residence. The three ended up on Jerrys bed. B. M. was lying on her back and stretching while she talked on her cell phone.

Jerry touched B. R. outside of her clothes on her vagina. B. R. and Jerry mutually decided to kiss. Jerry also touched B. R.s vagina inside her clothes. When Jerry tried to insert his finger into B. R.s vagina, she pulled back. Jerry did not ask for, nor did B. R. give him, permission to do this. They left Jerrys room because Jerrys aunt was stopping by to give the girls a ride.

B. R. went back upstairs to get the rest of her clothes. Jerry followed B. R., walking about 10 feet behind her. B. R. decided to change into pants because when she looked outside, it appeared to be too cold to only wear a skirt. As B. R. removed her skirt and undergarment, Jerry approached from behind her and inserted his penis into her vagina. B. R. did not give, nor did Jerry ask for, permission to do this. B. R. tried to pull away. She fell forward onto the bed. B. R. told Jerry to stop 10 times while she was on the bed. Jerry continued intercourse.

B. R. attempted to change positions and push Jerry off of her. Jerry continued intercourse. Jerry finally stopped when B. R. was on her back and had her hands against Jerrys chest. She pushed him away, put on her pants, and went downstairs. B. R. went upstairs one more time to retrieve her phone and shoes. Jerry was lying on the bed masturbating. Jerry asked B. R. if she liked it. Jerrys aunt arrived and took the Jerry and the two girls to the game.

B. M. testified that she was on Jerrys bed with B. R. but did not see anything happen. Jerrys father entered the room at one point.^[2] B. M. stood up and later went to another room. B. R. went with her, but later left to change into her full uniform. B. M. talked with B. R. after B. R. changed her clothing. B. R. told B. M. that she forgot her shoes and cell phone upstairs. Jerry followed B. R. up the stairs. B. R. and Jerry were upstairs about 15 minutes. B. M. stayed downstairs talking on her cell phone.

B. M. stated that B. R. came back downstairs just before they left for the game. B. R. was by herself. Jerry followed her. Earlier that day, B. R. was outspoken and loud. On the way to the game, she did not speak. According to B. M., B. R. arrived at Jerrys home wearing a skirt. The second time she went upstairs, she came back wearing pants and her skirt, layering them. The third time B. R. went upstairs, she came back wearing her skirt and no pants. B. M. testified that Jerry followed B. R. upstairs both times.

Jerry testified that on November 3, 2006, he was on his way home when he saw

B. R. and B. M. in the parking lot. Because the girls had no where to go other than to stay at school, they took a ride from a friend of Jerrys to Jerrys home. Jerry gave the girls a short tour of his home. The three did not go into Jerrys room because Jerrys little brother was on Jerrys bed playing a game. The three went to the little brothers room. The three were lying on the bed when Jerry kissed B. R. B. R. kissed him back. B. M. was looking out the window as Jerry and B. R. quickly kissed just once.

After the kiss, Jerry rubbed B. R.s back and her butt. The three then went into Jerrys room and were again lying on the bed. While on the bed, Jerry put his finger inside B. R.s vagina. B. R. did not resist him and moved her leg so Jerry could do that. B. R. was not wearing any underwear. Jerry and B. R. then kissed for about five minutes until Jerrys father arrived. Everyone got off the bed.

After Jerrys father left, the girls asked Jerry how they were getting to the stadium. Jerry called his aunt. B. R. and Jerry then went upstairs. B. M. stayed downstairs. B. R. and Jerry were looking for B. R.s cell phone. B. R. went back downstairs.

B. R. and Jerry went upstairs a second time. B. M. stayed downstairs. Jerry was not trying to conceal himself as he followed B. R. B. R. went to Jerrys little brothers room, which is also a loft. B. R. was taking off her skirt to put on her pants. Jerry made eye contact with her. B. R. removed her skirt. She was still not wearing underwear. Jerry pulled his pants down and placed his penis into B. R., who had bent down.

The two continued intercourse, eventually moving over to the bed. B. R. lifted her leg over Jerry so she could face him. The two continued to have intercourse for about ten minutes with B. R. on her back. B. R. did nothing to stop Jerry. B. R. had a climax. They continued sexual intercourse until she said it hurt and they stopped. Jerry sat on the bed masturbating while B. R. watched him until he climaxed. B. R. put on her pants and went to the restroom. Jerry went downstairs and talked to B. M. Jerrys aunt arrived about five minutes later.

On cross-examination, Jerry conceded that he did not ask B. R. for permission, nor did she give him permission, prior to starting intercourse. Jerry denied that

B. R. ever placed her hands on his chest to push him away.

Cynthia Felix was the nurse who examined B. R. on November 4, 2006. Felix found tearing on B. R.s posterior fossa, a part of female anatomy at the bottom of the vagina examined after a complaint of sexual assault. Felix explained that during normal sexual activity, it is unlikely to see a problem with this structure. Tearing is often found in sexual assault cases. Felix conceded that she does not examine people after they have normal sex.

DISCUSSION

After reviewing the record, we find no error. There was conflicting evidence between Jerry and B. R. concerning whether the sexual intercourse in which they engaged was consensual or if Jerry forced himself on B. R. Any conflict in the evidence, however, must be resolved by the juvenile court.^[3] There was substantial evidence based on the victims testimony that Jerry committed forcible rape. The juvenile court believed this testimony.

The juvenile courts disposition was to commit Jerry to boot camp. This was a less restrictive commitment than one to the Department of Corrections and Rehabilitation, Juvenile Justice. The terms and conditions of Jerrys probation also appear to be reasonably related to his offense and rehabilitation.

After independent review of the record, we conclude no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment of the juvenile court is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Kane, J.

^[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

^[2] Jerrys father was not at the residence the entire time.

^[3] In reviewing a challenge to the sufficiency of the evidence in an appeal from a juvenile proceeding, our court reviews the whole record in the light most favorable to the judgment to determine if there is substantial evidence -- evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) We are in no position to weigh conflicts or disputes in the evidence. We consider all evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference which can be drawn from that evidence tending to establish the correctness of the trial courts decision. We resolve all conflicts in favor of the trial courts decision. We view the entire record to find any substantial evidence, contradicted or uncontradicted, which supports the decision of the trier of fact. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)