In re Garrett W.
Filed 9/5/13 In re Garrett W. CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
In re GARRETT W., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
GARRETT W.,
Defendant and Appellant.
G046999
(Super. Ct. No.
DL040237)
O P I
N I O N
Appeal from a judgment
of the Superior Court
of
County, Jacki C. Brown, Judge.
Affirmed.
Michael P. Goldstein,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton, Donald W. Ostertag and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Minor
Garrett W. admitted he violated Penal Code
section 243.4, subdivision (e)(1), sexual battery and the juvenile court judge
declared him a ward of the court pursuant to Welfare and Institution Code
section 602. He contends on appeal the
facts underlying the charge are different than those he admitted and do not
fall within the scope of section 243.4, subdivision (3)(1). We affirm.
I
FACTS
On
May 24, 2011, the Orange County District Attorney filed a petition in the
juvenile court pursuant to Welfare and Institutions Code section 602 alleging
minor violated section 243.4, subdivision (e)(1). Minor appeared with retained counsel on June 6, 2011, and entered a denial to
the petition. Minor later filed a brief
arguing his conduct did not violate the statute because his intention in
touching the victim’s breasts was to get her to “back away†and thus there was
no sexual abuse as required by the statute, but he apparently did not obtain a
ruling on the issue. Minor eventually
admitted a violation of section 243.4, subdivision (e)(1), after being advised
of his constitutional rights and filing a written advisement and waiver of
rights form. The form contained the
following factual basis for minor’s admission:
“On March 24, 2011, in Orange County, I willfully and unlawfully touched
the breasts of Jane Doe against her will and for the purpose of annoying,
harassing, intimidating, or inflicting discomfort on Jane Doe, as those acts
can be sexual abuse.†The court advised
minor that under current law he would not have to register as a sex offender
upon turning 18 years of age.
The
court found minor knowingly, intelligently, and voluntarily waived his
constitutional rights, found a factual basis for the admission, and sustained
the petition. The court declared minor a
ward of the court and placed him on supervised probation, ordering him to
complete 15 days on the court work program, and other terms and conditions of
probation, including completion of a 12-week youth sexual health and protection
program. Minor appeals and contends he
did not violate section 243.4, subdivision (e)(1) because his intent was to get
the victim to “back away†and that such an intent does not qualify as sexual
abuse under the statute.
II
DISCUSSION
Unlike
an analogous appeal by an adult from a guilty plea, a minor need not obtain a
certificate of probable cause (§ 1237.5) to appeal the judgment of the juvenile
court finding the minor to be a ward of the court based on the minor’s
admission of the allegations in the petition.
(In re Joseph B. (1983) 34
Cal.3d 952, 959-960.) Notwithstanding
his admission that he touched the victim’s breasts “for the purpose of
annoying, harassing, intimidating, or inflicting discomfort, as those acts can
be sexual abuse,†minor argues he did not touch the victim’s breast for the
purpose of inflicting sexual abuse.
Rather, he argues he put his hand down the victim’s blouse to make her
“back away.†The factual basis he
submitted to the juvenile court in conjunction with his admission, however, did
not contain any reference to such an intent.
Section
243.4, subdivision (e)(1) makes it a misdemeanor for “[a]ny person [to] touch[]
an intimate part of another person, if the touching is against the will of the
person touched, and is for the specific purpose of sexual arousal, sexual
gratification, or sexual abuse.†A
female’s breasts are specifically included in section 243.4’s definition of
“intimate part.†(§ 243.4, subd. (g)(1).)
Minor’s admission that he touched the victim’s bare breast
“for the purpose of annoying, harassing, intimidating, or inflicting
discomfort†on the victim, supports a determination that he acted for the
purpose of abusing her. The area of her
body he specifically chose to inflict this abuse on was her bare breast. That act violated the statute. Accordingly, minor’s admission supports the
judge’s ruling declaring him a ward of the court.
We
cannot properly consider minor’s version of the incident set forth in his
opening brief, as those facts were not submitted to the juvenile court judge
for a determination as to whether the allegation in the petition should be
sustained. Having admitted the
allegation in the petition and specifically admitting the touching of the
victim’s breast was “for the purpose of annoying, harassing, intimidating, or
inflicting discomfort†on the victim, minor cannot argue on appeal the facts
were otherwise. If minor wanted to
contest whether his conduct violated the statute, he should have gone to trial
(see People v. Martin (1973) 9 Cal.3d
687, 693-694 [submission of issue of guilt on preliminary examination
transcript preserves issue of the sufficiency of the evidence for appeal]) or
submitted his admission on a different set of facts (see Cal. Rules of Court,
rule 5.778(f)(6) [juvenile court must find a factual basis for an admission].)
III
DISPOSITION
The
judgment is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
name="_ftn1" title=""> [1] All undesignated statutory references are to
the Penal Code.
