Filed 4/28/22 In re G.C. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

After a contested jurisdictional hearing, the juvenile court found G.C. committed acts that, if committed by an adult, would constitute sending harmful matter to a minor, sexual battery, and false imprisonment. G.C. was adjudged a ward of the juvenile court.

G.C. raises four claims on appeal. First, he contends insufficient evidence rebutted the presumption he lacked capacity. Second, he contends the image he sent did not constitute “harmful matter” under Penal Code section 288.2.[1] Third, he contends section 288.2 was not intended to target minors who engage in age-appropriate sexual contact. Fourth, he argues section 288.2 as applied to him violated his equal protection rights.

For the reasons below, we conclude these claims are without merit. We will affirm the judgment.

1. Factual and Procedural Background

1. Procedural Background

A wardship petition alleged seven counts involving three victims: count 1—sending harmful material to a minor, Jane Doe 1 (§ 288.2, subd. (a)(2)); count 2—sexual battery against Jane Doe 1 (§ 243.4, subd. (e)(1)); count 3—sending harmful material to a minor, Jane Doe 2 (§ 288.2, subd. (a)(2)); count 4—knowingly possessing, publishing, or producing matter depicting a person under age 18 engaging in or simulating sexual conduct (§ 311.1, subd. (a)); count 5—false imprisonment of Jane Doe 2 (§ 236); count 6—sexual battery against Jane Doe 3 (§ 243.4, subd. (e)(1)); and count 7—battery against Jane Doe 3 (§ 243, subd. (a)).

After a contested jurisdictional hearing, the juvenile court found beyond a reasonable doubt that G.C. committed the acts alleged in counts 1, 2, and 5. The court found counts 3 and 4 not true, and found counts 6 and 7 barred by the statute of limitations.

2. Facts of the Allegations

1. Counts 1 and 2 (Jane Doe 1)

Jane Doe 1 testified that G.C. grabbed her “behind” repeatedly during P.E. class. She froze and did not say anything. This occurred in May 2019. Three of Jane Doe 1’s friends testified that she told them about the incident soon after it happened.

G.C. had previously sent a picture of his penis to Jane Doe 1 on Snapchat, and he asked her to send nude pictures of herself to him. This occurred when they were in the eighth grade.

2. Counts 3 and 5 (Jane Doe 2)

G.C. and Jane Doe 2 became friends in the sixth grade, and they were in a “dating-type relationship” for around three days in the seventh grade. He asked her to send “sex texts” to him, and she did on one occasion. She denied doing so when she spoke with the police because she felt that she was “going to get into trouble.”

At the end of sixth grade, around the summer of 2017, G.C. sent a picture of his penis to Jane Doe 2 on social media. Over the period from then until the second semester of seventh grade in 2018, he sent her around 10 to 11 pictures of his penis. She did not want to receive the pictures, and she asked him five or six times to stop sending them. He asked her to send nude photos of herself, but she did not.

In the seventh grade, G.C. pushed Jane Doe 2 into a corner, pulled down his pants to expose his penis, and told her to “[g]ive him head.” She said no, pushed him, and tried to leave, but he pulled her back. He pushed her down onto her knees, but she refused and got away. On numerous other occasions, he asked her to touch his penis or “jerk him off.”

3. (Counts 6 and 7) Jane Doe 3

Jane Doe 3 testified that in the seventh grade G.C. put his hands in between her legs, touched her thighs, and touched her “behind.” She estimated that he touched her around every other week during this period. She asked him not to do it, but he responded, “I know you like it.” He later apologized. On one occasion, G.C. touched her vagina over her underwear. She pushed his hand away and told him to stop. He did the same thing again a few months later. She again pushed his hand away and told him to stop.

2. Discussion

1. Sufficiency of the Evidence Supporting Counts 1 and 5

G.C. contends the evidence for counts 1 and 5 was insufficient to rebut the presumption he lacked capacity under section 26. The Attorney General contends the evidence showed G.C. knew the wrongfulness of his actions.

1. Legal Principles

“All persons are capable of committing crimes except those belonging to the following classes: One—Children 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.) “[T]he People must prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed.” (In re Manuel L. (1994) 7 Cal.4th 229, 232 (Manuel L.).) “The juvenile court ‘must consider the child’s age, experience, and understanding. [Citation.] A minor’s knowledge of his [or her] act’s wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment. [Citation.]’ ” (In re Marven C. (1995) 33 Cal.App.4th 482, 487.)

“The test on appeal is whether substantial evidence supports the conclusion of the trier of fact. [Citation.] We review the entire record in the light most favorable to the judgment and affirm the trial court’s findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. [Citation.]” (In re Joseph H. (2015) 237 Cal.App.4th 517, 538.)

2. Substantial Evidence Supported a Finding of Capacity

G.C. entered the eighth grade in August 2018 and turned 14 in October 2018. The conduct charged in count 5 (false imprisonment of Jane Doe 2) occurred when G.C. was in the seventh grade, before he turned 14. The petition alleges the conduct charged in count 1 (sending a picture of his penis to Jane Doe 1 in the eighth grade) occurred between January 2019 and May 2019, but the record does not clearly show whether it occurred before G.C. turned 14. G.C. argues the presumption of incapacity applies to these counts, and that the record fails to rebut the presumption. The Attorney General does not dispute that the presumption applies to those counts, but he contends the evidence is sufficient to support a finding of capacity.

As to the minor’s capacity, the juvenile court found, “I believe [G.C.] knows the difference between right and wrong. I believe he has enough experience in life and people telling him things are right or not right to fall in that category. I don’t think that is a significant issue in this case.”

G.C. argues the record does not support this finding. He points to the girls’ “mixed reactions whenever he would make sexual overtures.” He points out that they sometimes did not say or do anything in response, and that Jane Doe 2 continued dating him, even sending him a “racy text” of her own. He notes that when the conduct came to light, he asked Jane Doe 2 to “vouch for his character,” showing he was unaware he had done anything wrong.

We are not persuaded. To the extent the juvenile court’s formulation suggested a misapprehension of the conduct-specific nature of the Manuel L. capacity analysis, G.C. raises no claim of error on this ground and challenges only the sufficiency of the evidence to rebut the presumption of capacity. “[W]hen presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) “Knowledge of wrongfulness cannot be inferred from the offense itself, but the court may consider ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment.’ [Citation.]” (In re J.E. (2020) 54 Cal.App.5th 309, 314.)

Assuming G.C. engaged in the conduct charged in count 1 before he turned 14, it occurred in the eighth grade, so he was at least 13 years and nine months old. “Generally, the older a child gets and the closer he approaches the age of 14, the more likely it is that he appreciates the wrongfulness of his acts.” (In re James B. (2003) 109 Cal.App.4th 862, 872-873.) As to count 1, it is certainly plausible that by eighth grade, G.C. and any of his peers could have understood the unsolicited texting of the photograph to be harmful or wrongful, whatever the relationship he might have had (or believed he had) with the recipient. “But age alone cannot decide the question. Applying the Penal Code section 26 presumption is not like horseshoes, where close is good enough. If it sufficed to rebut the presumption that a minor is about to turn 14, the legislatively determined cutoff of age 14 would be meaningless. . . . [S]ome other factor must be present in addition to the child’s age. [Citation.]” (In re J.E., supra, 54 Cal.App.5th 309, 320 (conc. & dis. opn. of Streeter, J.).) The prosecution did not admit the text exchange itself and relied instead on Jane Doe 1’s testimony that G.C. had asked her to send him nude photos of herself, offered to send her corresponding nude photos of himself, and then sent her one such photo. The record is silent as to what if any communications they shared before this text exchange, other than that the two were friends. The record is likewise silent as to how much time elapsed between G.C.’s texts or whether Jane Doe responded in any way to his solicitation of photographs from her.

But we need not decide whether the immediate context of G.C.’s transmission of the photo of his genitalia to Jane Doe 1 while the two were in the eighth grade intrinsically suggested any appreciation by G.C. of the wrongfulness of that communication between two minors of similar age. The limited evidence as to this particular exchange with Jane Doe 1 is supplemented by abundant evidence that G.C. had actual notice that the exchange of intimate photos among his age group was in fact harmful. Jane Doe 2 testified that before and after her three-day “dating” relationship with G.C., she had repeatedly told G.C. to stop sending her photos of his penis, which he did from the end of sixth grade into the second semester of seventh grade. G.C. therefore was aware that his unsolicited photos were at least objectionable even to someone with whom he shared a greater measure of intimacy. Moreover, Jane Doe 2 also confided in G.C. that another male student with whom she had been involved was threatening to circulate a photo or video showing a girl’s breasts and to identify her as its putative subject. G.C. responded by expressing support and encouraging Jane Doe 2 to “report it.” G.C. was accordingly on notice of the potential harm threatened by association of Jane Doe 2 with the nude image; in fact, G.C. later exploited that potential for harm by threatening to expose Jane Doe 2 himself as the subject of the now-circulating nude image—in an effort to coerce her to engage in sexual activity As Jane Doe 2 later testified, her identification with the photo “ruined my social life, and people called me a ho, and they’re still calling me a ho to this day.”

To be sure, G.C. may have understood or believed himself to be immune to equivalent reputational harm from transmission of photos of himself. But he was by his own words deploying the photo transactionally, to persuade Jane Doe 1 to reciprocate. He also knew at the time that if she did, she would be vulnerable to the same harms, threatened and real, that Jane Doe 2 had endured. His stated objective in sending his own photo would, if achieved, expose her to the same risk that Jane Doe 2 had disclosed to him and that he thereafter exploited. Sufficient evidence accordingly supports the juvenile court’s finding of capacity as to count 1 as well.

As to count 5, G.C. was at least 12 years and nine months old in the seventh grade, when he engaged in the charged conduct. In that incident, he pushed Jane 2 into a corner when they were alone—suggesting he wanted to conceal his actions—and he used physical force on another occasion as well. She said “no” to him on both occasions. As the Attorney General points out, the history of G.C.’s conduct towards Jane Doe 3 demonstrated a similar disregard for her expressed desires not to be subjected to his advances. And while the record does not clearly establish when it happened, G.C. apologized to her at some point, suggesting he understood he conduct was wrong. G.C. argues that his interactions with the girls were “fraught with apparent contradictions,” causing him to be confused about whether his conduct was wrong, but the stronger inference is that he simply ignored their protestations.

For the reasons above, we conclude sufficient evidence supports the juvenile court’s finding of capacity.

2. Whether the Minor Sent “Harmful Matter” Under Penal Code Section 288.2

Jane Doe 1 testified that G.C. sent her a picture of “[h]is area” and “[h]is private part” on Snapchat, which she reluctantly confirmed to be a picture of his penis. G.C. contends this evidence is insufficient to show he sent “harmful matter” as prohibited by section 288.2 (count 1).[2] The Attorney General contends the sending of a photo of an exposed penis on social media constitutes harmful matter under the statute.

“ ‘Harmful matter’ means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” (§ 313.) This is similar to the three-prong test for obscenity set forth in Miller v. California (1973) 413 U.S. 15, except “the relevant community standard by which the material is evaluated is ‘statewide’ and, in context, the work must lack serious literary, artistic, political, or scientific value for minors.” (People v. Dyke (2009) 172 Cal.App.4th 1377, 1383 (Dyke).)

G.C. does not dispute the juvenile court’s finding that the image lacked any serious literary, artistic, political, or scientific value. He argues that an image of an exposed penis does not constitute harmful material under the statute as construed by the courts in Dyke, supra, and People v. Powell (2011) 194 Cal.App.4th 1268, 1291 [nudity does not by itself make a movie obscene]. But the context of the imagery is relevant, and we consider the material as a whole. (Kois v. Wisconsin (1972) 408 U.S. 229, 231; Roth v. United States (1957) 354 U.S. 476, 490.) As the Attorney General points out, G.C. sent an unsolicited image of himself after unsuccessfully attempting to get the victim to send nude pictures of herself, and the overall context of his behavior was substantially sexualized. Viewing the evidence as a whole, we conclude substantial evidence supports the juvenile court’s finding of harmful material.

3. Whether Penal Code Section 288.2 Was Intended to Apply to Minors

G.C. contends his violation of section 288.2 runs contrary to the statute’s legislative intent because the legislative history shows it was not intended to apply to minors who engage in age-appropriate sexual contact.

“Issues of statutory interpretation are questions of law subject to de novo review. [Citation.] ‘Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ ” (People v. Simmons (2012) 210 Cal.App.4th 778, 790.)

In construing section 288.2, we need not resort to legislative history. The plain language of the statute, which applies to “every person,” draws no distinction between adults and minors, and we perceive no ambiguities in that language. G.C. argues this literal reading of the statute renders it absurd, but we are not persuaded. We conclude this claim is without merit.

4. Constitutionality of Penal Code Section 288.2

G.C. contends section 288.2 as applied to him violates his equal protection rights because a similarly situated adult who engaged in the same conduct would not have been prosecuted. G.C. compares himself to “an adult who sends sexual material to an age-appropriate peer” and argues that sexting between adults is not criminally prosecuted. But section 288.2 prohibits the sending of harmful material to a minor, and an adult who sent an exposed picture of his penis to a girl the same age as Jane Doe 1 would generally fall within the scope of the statute. “The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.) Here, the purpose of the law is to protect minors—not adults—from receiving harmful material. With respect to the purpose of the law, G.C. is not “similarly situated” to someone who sends a picture to an adult. We conclude this claim is without merit.

For all the reasons above, we will affirm the judgment.

3. Disposition

The judgment is affirmed.

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Greenwood, P. J.

WE CONCUR:

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Grover, J.

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Lie, J.

In re G.C.

No. H047965

[1] Subsequent undesignated statutory references are to the Penal Code.

[2] The standard of review for a claim of insufficient evidence is set forth above in section A.1.