In re Byron C.

Filed 7/26/07 In re Byron C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. Introduction

This is an appeal from a Solano County Juvenile Court ruling sustaining the allegations of the Peoples jurisdictional petition by finding that appellant, age 12 at the time, had committed numerous acts of both anal and vaginal intercourse with his sister, then age eight, in violation of Penal Code sections 288.5, subdivision (a), 288, subdivision (a), and 286, subdivision (b)(1).^[1] The court ordered appellant placed in a residential sex offender program for a maximum period of 16 years. We affirm the juvenile courts orders.

II. Factual and Procedural Background

In April 2006,^[2] appellant, then age 12, lived with his parents and his brothers and one sister, eight-year old D.C., in an apartment in Vallejo. According to testimony given by D.C later, on April 17, she went into a bedroom appellant shared with a brother without wearing underpants. Appellant told her to bend over and then inserted his weenie in D.C.s butt. D.C. left the room, told her mother what had happened and got dressed. The mother and father called the police and had appellant arrested.

The following day, April 18, D.C. was examined by a sexual assault response team nurse, but that nurse could find no specific evidence of recent anal penetration, and thus could neither confirm nor negate D.C.s allegations. However, she continued, because a person can be sodomized without any consequent visible trauma, it was possible that such occurred in this case.

The same day, two Vallejo detectives interviewed appellant and, initially, advised him of his constitutional rights. Appellants several versions of the interaction between he and his sister will be detailed below. In any event, on April 19, the Solano County District Attorney filed a petition with that countys juvenile court alleging that appellant came within the provisions of Welfare and Institutions Code section 602 and charging that (1) he had committed continuous sexual abuse upon his sister in violation of section 288.5, subdivision (a), (2) performed a lewd and lascivious act upon a child under the age of 14 in violation of section 288, subdivision (a), and (3) committed sodomy upon a person under the age of 18 in violation of section 286, subdivision (b)(1).

On April 20, appellant filed a denial of the charges.

A jurisdictional hearing was held on June 28; both D.C. and one of the Vallejo police officers who had questioned appellant testified. Also testifying were D.C.s mother and the sexual assault response team nurse who had examined D.C. We will summarize the testimony of D.C. and the officer.

D.C. testified that appellant had inserted his penis into her anus on 10 different occasions, some when the family lived in Fairfield and some after they returned to Vallejo.

As indicated earlier, Vallejo Police Detectives Pucci and Cheatham interviewed appellant at the police station on April 18. According to Puccis testimony, after appellant was read his Miranda rights, he agreed to talk to them about his relations with his sister. The interview between appellant and the two detectives lasted between 45 minutes and a little over an hour. At no time during it did appellant either request an attorney or refuse to answer any questions. However, again according to Puccis testimony, in the course of this interview, appellant related several different versions of his contacts with D.C.

Initially, appellant denied he had ever inappropriately touched her. Then, he admitted such a contact when, two or three months earlier, he had wrapped a bed sheet around her when she was naked from the waist down. Then, by way of a third version, appellant admitted that, on the previous day, i.e., April 17, D.C. came into his room wearing only a bed sheet, removed it, and permitted appellant to have vaginal intercourse with her. He then conceded that he had had similar intercourse with her approximately ten times over the preceding year, five of those occasions in Fairfield and five in Vallejo, with the first act occurring about one year previously.

After the hearing, the court sustained all three allegations of the petition.

On July 17, the court adjudged appellant a ward of the court, placed him on probation regarding the first count, and ordered him placed in a residential sex offender program, deeming the maximum period of confinement to be 16 years. The court dismissed the other two counts.

On August 2, appellant filed a notice of appeal.

III. Discussion

Appellant raises four issues on appeal, namely: (1) appellant did not voluntarily waive his Miranda rights and confess to molesting his sister; (2) there was insufficient evidence to rebut the section 26 presumption that a child under the age of 14 does not understand the wrongfulness of his acts; (3) there was insufficient evidence of a violation of section 288.5, i.e., regarding continuous sexual abuse; and (4) there was insufficient evidence that appellant committed the charged offenses within the time frames alleged.

We reject each of these contentions.

A. The Miranda Issue.

Detectives Pucci and Cheatham interviewed appellant in a room at the Vallejo Police Department on April 18. The interview was taped and defense counsel provided a copy of the transcript of the interview. However, that transcript was not, apparently, ever offered into evidence. Prior to asking appellant any questions about his relations with his sister, Pucci testified that he advised appellant of his rights under Miranda. According to Puccis testimony, this advisement was given by separately stating the various rights appellant had (i.e., to remain silent, that anything you say may be used against you, etc.) and, after being satisfied with the answers that he clearly understood each and every one of his rights, obtained an expressed waiver from appellant as to each of those rights.

Pucci then asked appellant a series of seven questions off a questionnaire he referred to at the hearing as a Gladys R. questionnaire designed to ascertain whether appellant knew the difference between right and wrong, etc. (See In re Gladys R. (1970) 1 Cal.3d 855, 862-867.) Following appellants answers to these questions and the several separate Miranda admonishments given him, Pucci testified that he concluded that it was appropriate to continue to question appellant about the case and did so.

Appellant does not contend that the Miranda warnings given appellant were incorrect or otherwise lacking, but that appellant, just a few days short of 13 at the time, was frightened during the interview and may have suffered from a learning disability^[3] and, hence, his responses to the Miranda warnings cannot be considered voluntary. Appellant also argues that Pucci misled appellant during the interrogation by stating that D.C.s underwear was being tested for DNA, and that this is scarcely exemplary conduct for a police officer interrogating a frightened child.^[4]

First of all, at the hearing before the juvenile court, appellants counsel never argued, or even suggested, that appellant waived his Miranda rights involuntarily. Therefore, that argument may be deemed waived. (See, e.g., People v. Bonin (1989) 47 Cal.3d 808, 845.)

But even assuming there was no waiver, an appellate court must defer, regarding both the voluntariness of a confession and the validity of the proffered Miranda warnings, to the findings of the lower court. Here, although that court made no explicit findings regarding either of those issues (because, as noted, neither was raised at the hearing before it), the court did find that appellant understood the nature of this act and distinguishes the difference between right and wrong, basing that finding on both the Gladys R. interview conducted by the officer and the minors conduct in that interview. Clearly implicit in that statement is a finding of voluntariness of the responses of appellant in the interview conducted by Detective Pucci, a finding to which we should and do defer. (See, e.g., People v. Whitson (1998) 17 Cal.4th 229, 248-250.)

We note again that appellants counsel had, prior to the hearing, a copy of the transcript of the interview of appellant by Pucci. But, as noted earlier, that transcript is not in the record before us. Further, no argument was made thenor is made nowthat Puccis serial and separate Miranda admonishments to appellant were flawed or that anything in appellants responses to them suggests that he did not understand them. Appellants arguments are, as noted earlier, only that at the time of the interview by Pucci, he was young, frightened, and possibly suffered a learning disability. But, even to the extent these premises are correct, it does not follow that appellants confession was involuntary under Miranda.

B. The Section 26 Issue.

Appellants second argument is that there was insufficient evidence to rebut the presumption, posited by section 26, that a child under the age of 14 does not understand the wrongfulness of his or her acts.

Section 26 provides, in pertinent part: All persons are capable of committing crimes except those belonging to the following classes: [] OneChildren under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. ( 26.)

Our Supreme Court has held that this section applies to proceedings involving juveniles brought under Welfare and Institutions Code section 602. (In re Manuel L. (1994) 7 Cal.4th 229, 232-239; In re Gladys R., supra, 1 Cal.3d at pp. 862-867.) The understanding of wrongfulness must be shown by clear and convincing evidence (ibid.), but we review a juvenile courts affirmative finding that there was an understanding of wrongfulness under a substantial evidence standard of review. (See, e.g., In re Jerry M. (1997) 59 Cal.App.4th 289, 297-298; In re Paul C. (1990) 221 Cal.App.3d 43, 52.)

The juvenile court here made an explicit finding that appellant understood the wrongfulness of his acts, stating: Parenthetically, the [c]ourt is also finding that the minor does understand the nature of this act and distinguishes the difference between right and wrong. I make that finding based on both the Gladys R. interview conducted by the officer and the minors conduct in that interview in that he initially denied the conduct and then acknowledged some portion of the conduct and then continued to acknowledge more portions of the conduct over the period of time, which in the [c]ourts mind is evidence of the fact that he knew the wrongfulness of the behavior and did not initially acknowledge it but then ultimately did acknowledge that wrongful conduct. [] Therefore, thats an additional factor that the [c]ourt relies on in finding that the minor did understand the nature of the contact, the wrongfulness of the contact and could distinguish between right and wrong.

There was clearly substantial evidence supporting this finding, namely the testimony of Detective Pucci regarding his interview with appellant, and particularly that part of the interview where Pucci asked the seven Gladys R. questions. Indeed, because the transcript of the interview of appellant was never introduced into evidence, the only evidence on the record of the substance of that interview was and is Detective Puccis testimony. If that testimony was inaccurate in any material respect regarding eitherthe Miranda warnings or the Gladys R. queries provided by Detective Pucci, we assume appellants counsel would have noted that via the transcript provided her. Because she did not, we assume she had no substantive problem with Puccis testimony in either regard.

C. The Section 288.5 Issue.

Appellants third argument is that the record does not contain sufficient evidence that appellant violated section 288.5 with respect to his actions with D.C. More specifically, appellant contends that the record does not contain sufficient evidence that, as required by that statute, the abuse consisted of at least three or more acts of substantial sexual conduct with a child under the age of 14 years engaged in over a period of time not less than three months in duration. ( 288.5, subd. (a).) Again, our standard of review is substantial evidence. (See, e.g., People v. Vasquez (1996) 51 Cal.App.4th 1277, 1287.) And, again, there was such substantial evidence here, specifically the testimony of D.C. at the juvenile court hearing and the testimony of Detective Pucci regarding appellants ultimate admission of 10 acts of sexual intercourse with D.C. over the prior year, some of those acts in the familys Vallejo home and some in their Fairfield home.

D. The Time Factor Issue.

Appellants fourth, final, and very brief argument is that the evidence adduced at the hearing did not satisfy the allegations in the Welfare and Institutions Code section 602 petition that the charged offenses occurred during the charged time period, i.e., April 1, 2005, through April 17, 2006. Once again, we disagree with appellants argument because, principally, according to Detective Puccis testimony, appellant admitted that he had sexual intercourse with his sister on five separate occasions while in Fairfield, California which was the first city where such occurred, and the same number after the family moved back to Vallejo.

According to the testimony of the mother, the family lived in Fairfield from February until November 2005, and then returned to Vallejo. These two items of testimony, taken together, easily satisfy the allegations regarding the relevant time period set forth in the petition.

IV. Disposition

The orders appealed from are affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P. J.

_________________________

Richman, J.

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^[1] All further statutory references are to the Penal Code unless otherwise noted.

^[2] All further dates noted are in 2006.

^[3] The learning disability argument has scant support in the record. At only one point in her cross-examination of Detective Pucci did appellants counsel bring up this issue, asking him if he was aware, at the time of the interview if Byron had any learning disabilities? Pucci replied: I dont remember if I knew thatI think I might have learned that after. As far as we can determine, no other evidence regarding any learning disability was presented to the juvenile court, and the point was not even mentioned in appellants counsels argument to that court. The pre-hearing report to the court by a psychologist does not mention any learning disabilities, although an Agreed Joint Assessment Report submitted to that court by several Solano County agencies notes that appellant has performed poorly in school, receiving Ds and Fs on most progress reports and report cards. Appellant, according to the same report, attributed this to the material being too difficult and his lack of asking for additional assistance.

^[4] This argument is based on Puccis admission, during cross-examination, that he had told appellant that underwear had been retrieved from the scene and was going to be tested for DNA which could potentially match that of appellant. Appellant argues to us that this constituted trickery and a ruse, but nothing in the record supports this characterization. As far as the record before us discloses, a DNA analysis might or could have been done. In any event, the court sustained the Peoples objection to defense counsels questions to Pucci on that subject on the ground that the police are permitted to use ruses, false statements, and truthful statements in interviewing individuals . . . . This was and is a correct statement of the law. (See, e.g., People v. Jones (1998) 17 Cal.4th 279, 299.)