In re Edward R.
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re EDWARD R. et al., Persons Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. EDWARD R. et al., Defendants and Appellants. | E039792 (Super.Ct.Nos. J198509 & J198510) OPINION |
APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant Edward R.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Evan R.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Edward R., aged 16, and his brother, Evan R., aged 14, (hereafter referred to individually by first name or collectively as the minors) were continued as wards of the juvenile court after each admitted the allegations of a subsequent petition filed pursuant to Welfare and Institutions Code section 602. The petitions alleged that each minor committed a lewd and lascivious act on a child under the age of 14 by inserting his penis into the vagina of a 12-year-old girl, in violation of Penal Code section 288, subdivision (a) (hereafter section 288(a)). (All further statutory citations refer to the Penal Code unless another code is specified.)
Edward contends that the district attorney violated his right to due process by charging him with a violation of section 288(a) rather than with unlawful sexual intercourse in violation of section 261.5, thereby depriving him of the defense that he reasonably believed that the victim was 14. He also contends that the juvenile court violated his right to due process by failing to order the most appropriate disposition. Evan joins in these arguments, and also contends that the juvenile court erred by ordering him placed in a facility for sex offenders. In the alternative, Evan contends that we must remand the matter to permit the court to state his maximum potential term of confinement.[1]
PROCEDURAL HISTORY
The current petitions were filed on
Evan had three prior sustained petitions: for second degree burglary (§ 459), filed in December 2004; for misdemeanor assault and battery (§ 242), filed in June 2005; and for misdemeanor possession of weapons (a BB gun) on school grounds (§ 626.10, subd. (a)), filed in September 2005. Edward also had three prior sustained petitions: for second degree burglary (§ 459), filed in December 2004; and for probation violations (school suspension resulting from altercation with female student, associating with probationer and curfew violations), filed in September 2005.
Each minor admitted the allegation in the current petition. The court found a factual basis for the admissions, and found the allegation true as each minor. As to each minor, the court found that the offense would have been a felony if committed by an adult. The court ordered psychological evaluations to assist in the determination of an appropriate placement for each minor.
At the disposition hearing, the court continued each minor as a ward of the court and placed them in the custody of the probation department, to be housed in juvenile hall while awaiting placement in a suitable foster care facility. At a subsequent special hearing, the court determined that no residential facility, except one specializing in sex offender treatment, would accept the minors because the underlying crime was a sex offense. The court ordered both minors placed in residential sex offender treatment programs.
Each minor filed a timely notice of appeal.
FACTUAL BACKGROUND
The 12-year-old victim reported to her mother, and then to police, that Edward and Evan had forcibly raped her at their residence on the evening of
Edward threw the victim onto the bed on her back. Evan held her arms behind her head while Edward removed her pants. Edward had intercourse with her for about 45 minutes. He did not ejaculate. When Edward withdrew, he and Evan changed places. Edward held the victim's arms while Evan had sexual intercourse with her. The victim stated that Evan did not have an erection and inserted his penis into her vagina three or four times, then left the bedroom. During the incident, the victim struggled and demanded that they stop. When she became tired, she stopped struggling but continued to tell them to stop. She told officers that she never consented to sexual intercourse with either minor.
Both minors told police that the incident was consensual. Evan stated that he had dated the victim for about five days the month before the incident. He believed that she was 13 or 14 years old. Edward believed that she was between nine and 15 years old.
LEGAL ANALYSIS
THE PROSECUTOR PROPERLY EXERCISED HIS CHARGING DISCRETION
The minors contend that the prosecutor violated their state and federal right to due process by charging them with a violation of section 288(a) rather than with unlawful sexual intercourse in violation of section 261.5 because, by doing so, the prosecutor deprived them of the opportunity to assert a mistake-of-fact defense as to the victim's age.
Section 261.5 penalizes unlawful sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person (i.e., the victim) is a minor. The statute defines â€
