In re Marco B.

Filed 7/6/06 In re Marco B. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Q. Clay, III, Judge and Cynthia Loo, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, reversed in part, and remanded.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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Marco B. appeals from a judgment sustaining a petition under Welfare and Institutions Code section 602 alleging commission of forcible rape while acting in concert (Pen. Code, § 264.1) and forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)). He challenges the sufficiency of the evidence of rape, and raises several issues as to his commitment to the California Youth Authority. We find substantial evidence to support the rape count, but remand the case with respect to disposition, for the reasons we shall explain.

FACTUAL AND PROCEDURAL SUMMARY

Marco and his brother Sergio were friends with their next door neighbor, 12-year-old J.S. The petition is based on events that occurred one night in 2004 when J.S.'s mother, father, and brother were away from home, leaving her with her grandmother and ill grandfather. At the time, Marco was 15 years old. (We reserve the details of the offenses for our discussion of Marco's evidentiary challenge.) After luring J.S. outside her home, Marco and Sergio took turns sexually assaulting J.S. in the side yard. J.S. did not report the attacks immediately because she was afraid. Eventually she spoke with her aunt about it and made a police report.

Marco and Sergio were detained by the police. In an interview with Officer Lemus, J.S. did not report sexual contact with Marco. Marco told Detective Ruthie Daily that he kissed J.S., put his fingers inside her, and licked her vaginal area. He admitted that he attempted to rape her, but was unable to do so because they were standing up. Marco admitted that he tried to get J.S. to rub his penis. Sergio acted as lookout during this attack. Marco also said that when he was done with J.S., Sergio was with her, but Marco could not see what they were doing. Marco wrote a letter of apology to J.S. in which he admitted attempted rape, oral sex, and making J.S. rub his penis.

In his interview with Detective Daily, Sergio admitted forcibly assaulting J.S., putting his fingers insider her and kissing her. Sergio also wrote a letter of apology to J.S. at Detective Daily's urging. In it he apologized for putting his fingers inside J.S., kissing her, and not letting her go. The court indicated that it would not use Sergio's statement against appellant.

A petition was filed under Welfare and Institutions Code section 602, alleging that Marco committed one count of rape while acting in concert (Pen. Code, § 264.1) and four counts of forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)). Marco denied the allegations and was detained pending disposition. After a contested adjudication, the juvenile court sustained the petition, finding all counts true and that Marco was a person described by Welfare and Institutions Code section 602. After a contested disposition hearing, Marco was declared a ward of the court and committed to the California Youth Authority. The maximum period of confinement was calculated to be 17 years: nine years for the high term on count 1; plus the high term on count 2. Counts 3 through 5 were to run concurrent to count 2 because jurisdiction would expire when Marco reaches age 25. There was a predisposition credit of 110 days. The trial court declared each of the offenses to be a felony, and a Welfare and Institutions Code section 707, subdivision (b) offense. Marco filed a timely appeal.

DISCUSSION

I

Marco challenges the sufficiency of the evidence of rape in concert on the ground that there was no proof of penetration. â€