Filed 8/27/18 In re J.P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Joanne Motoike, Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

J.P. appeals from the judgment entered after the juvenile court found true the allegations of a delinquency petition filed under Welfare and Institutions Code section 602, charging him with one misdemeanor count of engaging in lewd conduct. (Pen. Code, § 647, subd. (a).)[1] He contends incriminating statements he made to a police officer should have been suppressed because his implied waiver of his rights (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)), was not voluntary, intelligent, and knowing. We need not decide if the statements should have been suppressed because any error would be harmless beyond a reasonable doubt in light of the overwhelming evidence of his guilt. We affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND[2]

Around 12:45 p.m., several employees at an elementary school saw J.P. walk to an area within view of the school’s playground where children were playing. J.P. loosened his belt, placed his right hand inside his pants, and masturbated while he watched the children play. Thereafter, J.P. walked to the front of the school, took his hand from his pants, wiped his hand on his shirt, lifted his shirt up, and rubbed his nipples.

A school employee called 911 and locked down the school. When the police arrived, J.P. ran between two school buildings and hid behind the electrical panel. Officer Nathan Morton responded and arrested J.P. Morton did not believe J.P. was under the influence of a controlled substance at the time he was arrested. But when Morton tried to book J.P. into juvenile hall, the facility would not accept J.P. because J.P. stated he had ingested drugs before his arrest. As a result, Morton took J.P. to the hospital to be evaluated.

Later that same day, Officer Derek Link, a certified Spanish speaker for the police department, interviewed J.P. in Spanish at the police station’s juvenile detention center. Link read J.P. his Miranda rights in Spanish and J.P. affirmatively indicated he understood each of the rights read to him. J.P. admitted he had his right hand down his pants and was masturbating. He denied exposing himself. J.P. answered “yes” when Link asked if he was aware he was masturbating in front of children. J.P. also answered “yes” when Link asked him if he enjoyed it. J.P. admitted he knew it was wrong. Link often had to repeat himself because J.P. would sometimes simply repeat the question, give one-word or non-responsive answers, speak “gibberish,” or ramble. Link believed there was something mentally wrong with J.P., as opposed to J.P. being under the influence of drugs or alcohol.

Dr. Roberto Flores de Apodaca (Flores), a clinical forensic psychologist, interviewed J.P. several weeks after the incident and testified as an expert for the defense.[3] Flores diagnosed J.P. with substance induced psychotic disorder, meaning J.P. had ingested drugs to such an extent that it had caused him to break from reality and become psychotic. The condition was in partial remission, which meant J.P. was less symptomatic and not actively psychotic. Flores opined it was “clinically probable,” i.e., more likely than not, that J.P. was displaying symptoms of substance induced psychosis at the time he committed the offense. Flores believed this diagnosis was “much more likely than conventional sexual deviance along the lines of exhibitionism, voyeurism, et cetera.”

Flores testified that during the interview, J.P. showed signs of an “impaired mental status” and “cognitive impairment.” For example, J.P. had slow and “somewhat under productive” speech, meaning he “was slow at getting his words out” and “the volume of the sentence was relatively small.” Sometimes he cried inappropriately and not about anything that was being discussed. J.P. also had a “thought blocking expression,” where he would stop talking and stare for 12 to 15 seconds “as if he [was] stuck cognitively and he can’t produce . . . further verbalizations.” He exhibited a flat affect, meaning his face was like a statute having no change in expression.

After hearing all of the evidence, the juvenile court denied J.P.’s motion in limine to exclude his statements to Link. The court concluded Link’s testimony was credible and the prosecution had met its burden of proving by a preponderance of the evidence that J.P.’s waiver of his Miranda rights was voluntary, knowing, and intelligent. Subsequently, the court found the petition’s allegations true. It declared J.P. a ward of the court and placed him on probation, subject to conditions.

DISCUSSION

J.P. challenges the court’s denial of his motion to suppress his statements to Link. He contends his implied waiver of his Miranda rights was not voluntary, intelligent, and knowing because he was probably under the influence of a substance induced psychotic disorder at the time of the offense. We conclude there was no reversible error.

I. General Legal Principles

Evidence from a custodial interrogation may not be used against a defendant unless the defendant has made a knowing and intelligent waiver of the Fifth Amendment right to remain silent and the Sixth Amendment right to the assistance of counsel. (Miranda, supra, 384 U.S. at pp. 478-479.) “[A] suspect who desires to waive his [or her] Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.” (People v. Cruz (2008) 44 Cal.4th 636, 667.) “A suspect’s expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.]” (Ibid.)

The erroneous admission of a defendant’s statements obtained in violation of his Miranda rights is subject to the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) (People v. Sims (1993) 5 Cal.4th 405, 447.) That test requires the prosecution “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.) “To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that [the error] . . . did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error].” (Yates v. Evatt (1991) 500 U.S. 391, 403-404, overruled on other grounds by Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)

II. Analysis

In this case we need not decide if the court should have granted J.P.’s motion to exclude evidence of his statements to Link. Even assuming error, we affirm the judgment because in the absence of J.P.’s admissions, there was overwhelming evidence he committed a violation of section 647, subdivision (a).

Section 647, subdivision (a), provides an individual is guilty of disorderly conduct, a misdemeanor, if he or she “engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” In 1979, our Supreme Court clarified the terms “lewd” and “dissolute” as used in statutory provision are synonymous. (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256.) It determined these terms indicate behavior that “involves the touching of the genitals . . . for sexual arousal, gratification, annoyance, or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct.” (Ibid.)

Thus, to establish J.P. violated section 647, subdivision (a), the prosecution was required to establish the following: (1) J.P. touched his genitals, (2) that he did so with the “specific intent to sexually arouse, gratify, annoy or offend”; (3) that he knew or should have known of the presence of another person who would likely be offended by the touching; and (4) that the conduct occurred “in a public place of a place open to the public or exposed to public view.” (CALJIC No. 16.400.)

As for the first element, three different school employees saw J.P. touch his genitals. One school health aide testified she was in the school’s office and saw J.P. standing in the school’s parking lot between trash bins “peering into the playground” where children were present. She watched him turn away from the playground and walk towards the street in front of the school, where he stood on the sidewalk between some trees. The health aide watched J.P., with one hand inside the front of his pants near his genitals, move his hand left and right, in a back and forth motion. During her telephone call to 911, she watched J.P., change location to the sidewalk in front of the school’s office with his hand still inside his pants. She saw him take his hand out of his pants, wipe his hand on his shirt, and then he lifted his hand up “rubbing his nipples.” She testified J.P. then walked across the parking lot “onto our main sidewalk” where he stood for a moment and placed his hand back inside the front of his pants while looking at the school. He then walked towards the kindergarten playground behind the electrical panels. Shortly thereafter, the police arrived.

Another witness (a substitute school aide) recalled she was inside the school’s office when she saw J.P.’s head because her view of his body was blocked by a car. She said he was facing the school and she saw he “looked over both shoulders like he was looking for somebody or watching out for something.” She watched him walk closer to the school, unbuckle his belt, and put his right hand in his pants near his penis. The school aid observed J.P. was moving his hand around in his pants, and was also “erratic[ally]” moving his body. She stated, “He could not stay in one place. He would move from one area to another. He would turn around like he was constantly looking out for something.” The school aide noted J.P. put his left hand on his chest “and he had hiked [his shirt] up to around his mid-chest where his ribs were.” When J.P removed his right hand from his pants, she saw he wiped this hand on his right thigh.

The third witness, a special education assistant, was watching her students on the playground when she first saw J.P. sitting on a curb in the school’s parking lot. She watched him stand up and walk to the sidewalk in front of the school’s gate. He returned to the parking lot curb, sat down briefly, and then returned to the same spot on the sidewalk. She recalled, “He was acting very nervous.” Next, the assistant saw J.P. roll up his shirt with both hands, loosen his belt, and then place his right hand inside his pants near his genitals. She saw him make “massage” type movements with his hand that indicated he was masturbating. The aide saw J.P. take his hand out of his pants and “swipe[] it across his shirt” and “he smeared like he was cleaning his shirt.” Thereafter, she saw J.P. walk to the front of the school, where the office is located, and where she could no longer see him.

Watching J.P. from three different vantage points, the testimony from these three employees’ provided ample evidence to establish the remaining three elements needed for a section 647, subdivision (a), violation. Touching for sexual arousal or gratification was established by virtue of the fact the three witnesses described J.P.’s hand movements in his pants were actions typically used for masturbation and J.P. attempted to clean off his hand indicating the presence of bodily fluids. It would be reasonable to infer J.P. changed location multiple times, acted very nervous, and looked over his shoulders before engaging in sexual self-gratification because he knew he was in a public place where others would be offended by his touching. J.P. could have but did not attempt to hide by crouching behind the trashcans or cars located in the school parking lot where he was first observed. By changing location and walking into full view of anyone passing by on the street or in front of the school’s main office, he engaged in offensive behavior clearly in public view. Given the nature of the overwhelming evidence of guilt described above, any error in admitting J.P.’s statements was harmless.

DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.