Paul C., In re

• Court: California Court of Appeals
• Writing for the Court: SIMS
• Citation: Paul C., In re, 270 Cal.Rptr. 369, 221 Cal.App.3d 43 (Cal. App. 1990)
• Decision Date: 08 June 1990
• Docket Number: No. C005635,C005635
• Parties: In re PAUL C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. PAUL C., Defendant and Appellant.

Page 369

270 Cal.Rptr. 369

221 Cal.App.3d 43

In re PAUL C., a Person Coming Under the Juvenile Court Law The PEOPLE, Plaintiff and Respondent, v. PAUL C., Defendant and Appellant.

No. C005635.

Court of Appeal, Third District, California.

June 8, 1990.

Certified for Partial Publication.

Review Denied Sept. 19, 1990.

[221 Cal.App.3d 46] Thea Offenbacher, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Shirley A. Nelson and Laura I. Heidt, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Acting Presiding Justice.

In this case arising out of proceedings conducted in the juvenile court pursuant to Welfare and Institutions Code section 602, we hold that a minor under age 14 may be adjudged responsible for violating Penal Code sections 288, subdivision (a) ¹ and 288a, subdivision (b)(1). ² (Undesignated statutory references are to the Penal Code.)

The juvenile court sustained a petition charging 13-year-old Paul C. with committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) and participating in oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1)). ³

Paul appeals, contending (1) as a matter of law, a minor under age 14 cannot be a perpetrator of the adjudicated offenses; (2) the findings of the juvenile court are not supported by substantial evidence; (3) Paul's statements to investigating officers were improperly admitted; (4) evidence of the complainant's prior sex behavior was improperly excluded; (5) charging two offenses for the same act was duplicative; and (6) the offense should be reduced to a violation of section 272, contributing to the delinquency of a minor.

In this published portion of the opinion, ⁴ we consider and reject the minor's first two contentions. In an unpublished portion, we reject the minor's remaining contentions. We shall order that the Penal Code section number in the dispositional order be corrected and otherwise affirm the judgment.

FACTS

In February 1988, Paul (then age 13) and complainant Darren L. (then age nine) were playing "ditch the cops" near the Rocklin railroad tracks with three other boys. During the course of the game, Paul told Darren to meet him behind some bushes. When Darren arrived there, Paul asked Darren to give him "head." Darren said "no." Paul kept asking and at one point touched the back of Darren's head and pulled it forward a bit. Darren testified he finally got the courage to do it. He squatted slightly and sucked Paul's "ding dong," which was long and hard, for about a second. Darren then pulled his head away; as he walked off, Paul called him a whore.

On a later date, Paul and Darren were looking for a fishing spot. Paul cut his arm on a bush and asked Darren to help him. Darren refused, explaining to another boy, Guy H., his fear that Paul would "make him give head again." Guy reported this conversation to Darren's family.

When interviewed by investigating officers, Paul initially denied any sex act occurred but later admitted that he had placed his penis in Darren's mouth for two or three seconds before Darren pulled away.

Paul's mother testified she had instructed Paul on "good" and "bad" touches. Paul would have known it was bad to touch a younger child in a sexual manner or to force someone to touch him in a sexual manner.

DISCUSSION

I

A Minor Under Age 14 May Be Adjudged Responsible For Violating Sections 288, Subdivision (a) and 288a, Subdivision (b)(1).

Paul contends a minor under the age of 14 cannot be found responsible for violating section 288, subdivision (a) or section 288a, subdivision (b)(1), because there is no perpetrator for purposes of those sections where both parties are under 14. However, none of the cases he cites so holds.

Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 226 Cal.Rptr. 361 held the Child Abuse Reporting Act (§ 11165 et seq.) [Reporting Act], as then written, did not require health care, educational, and other professionals to report a minor as a child abuse victim solely because the minor is under the age of 14 and indicates that he or she had engaged in voluntary, consensual sexual activity with another minor of similar age. (Id. at p. 255, 226 Cal.Rptr. 361.) Planned Parenthood is ambivalent on the question whether a minor under age 14 may be found responsible for violating section 288 or 288a. Thus, on the one hand, the court remarks "It does not appear that a minor under 14 may be found delinquent for violating section 288" (id. at p. 274, 226 Cal.Rptr. 361) and "a 13-year-old can generally only be a victim of section 288, not a perpetrator" (id. at p. 275, 226 Cal.Rptr. 361). On the other hand, the court notes: "We can conceive of a hypothetical, sexually sophisticated 13-year-old who abuses a much younger child with the requisite criminal intent to exploit his or her sexual naivete. Under these circumstances, section 26 ⁵ may well invoke section 288 notwithstanding our foregoing analysis." (Id. at p. 276, fn. 14, 226 Cal.Rptr. 361.) Planned Parenthood thus does not categorically preclude minors under age 14 from being held responsible for violations of section 288.

In People ex rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203 Cal.App.3d 225, 249 Cal.Rptr. 762, we held the Reporting Act does not require the reporting of voluntary sexual conduct between minors under age 14 where both are of a similar age but does require reporting of voluntary sexual conduct between a minor under age 14 and a person of disparate age. We noted the Legislature amended the Reporting Act after the opinion in Planned Parenthood became final and was therefore presumed to have approved that decision's interpretation of the Reporting Act. (Id. at p. 234, 249 Cal.Rptr. 762.) As Presiding Justice Puglia made clear in his concurring opinion, we did not decide the question whether a minor under the age of 14 can be found responsible for violating section 288, since the Reporting Act does not concern itself with fixing such responsibility. (Id. at pp. 246-247, 249 Cal.Rptr. 762 (conc. opn. of Puglia, P.J.).)

The third case cited by Paul, In re John L. (1989) 209 Cal.App.3d 1137, 257 Cal.Rptr. 682, affirmed a juvenile court's finding that a 15-year-old had violated section 288. The court noted the statute's unambiguous proscription of lewd acts by "any person" does not exclude minors. (Id. at pp. 1140-1141, 257 Cal.Rptr. 682.) This hardly supports Paul's position. Paul cites this case for the court's comment that: "Whether the age of 14 remains the appropriate line of demarcation is for the Legislature to determine." (Id. at p. 1141, 257 Cal.Rptr. 682.) This comment, however, referred to the appropriate line of demarcation for the victim, not the perpetrator.

Therefore, the question tendered by Paul has not been decided in prior cases. We conclude a minor under age 14 may be adjudged responsible for having committed the subject offenses upon clear proof of the minor's knowledge of wrongfulness as required by section 26.

Our conclusion is dictated by the analysis of our Supreme Court in In re Gladys R. (1970) 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127. There the court confronted the question whether a 12-year-old child could be declared a ward under Welfare and Institutions Code section 602 for violation of former section 647a (now section 647.6) which then provided in pertinent part, " 'Every person who annoys or molests any child under the age of 18 is a vagrant....' " (Id. at p. 867, 83 Cal.Rptr. 671, 464 P.2d 127.) The court said, "Clearly, the words '[e]very person' include a minor as well as an adult. We believe, therefore, that a juvenile court may declare a juvenile to be a ward of the court under section 602 for an act violative of Penal Code section 647a." (Ibid.)

The same reasoning applies to the statutes at issue here, each of which prohibits "any person" from committing the described offense. (Fns. 1 and 2, ante.) There is no material difference between "every person" and "any person." The subject statutes thus unambiguously apply to minors under age 14. (See In re Gladys R., supra, 1 Cal.3d at p. 867, 83 Cal.Rptr. 671, 464 P.2d 127; In re John L., supra, 209 Cal.App.3d at pp. 1140-1141, 257 Cal.Rptr. 682; In re James P. (1981) 115 Cal.App.3d 681, 685, 171 Cal.Rptr. 466.)

Gladys R. also concluded section 26 applied to proceedings under Welfare and Institutions Code section 602, so "that in order to become a ward of the court ... clear proof must show that a child under the age of 14 years at the time of committing the act appreciated its wrongfulness." (Gladys R., supra, 1 Cal.3d at p. 862, 83 Cal.Rptr. 671, 464 P.2d 127.) "California ... rebuttably presumes all minors under the age of 14 incapable of committing a crime, but does not totally exclude any child from criminal responsibility." (Id. at pp. 863-864, 83 Cal.Rptr. 671, 464 P.2d 127; Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 616-618, 198 Cal.Rptr. 749; see generally Walkover, The Infancy Defense In The New Juvenile Court (1984) 31 UCLA L.Rev. 503.) "Section 26 stands to protect ... young people ... from the harsh strictures of [Welfare and Institutions Code] section 602." (Gladys R., supra, at p. 867, 83 Cal.Rptr. 671, 464 P.2d 127.)

Thus, under Gladys R., a minor under age 14 may be held responsible for conduct in violation of sections 288, subdivision (a) or 288a, subdivision (b)(1), provided the state clearly proves the minor knew the wrongfulness of his or her conduct as required by section 26. To the extent Planned Parenthood Affiliates v. Van de Kamp, supra, 181 Cal.App.3d 245, 226 Cal.Rptr. 361 contains suggestions to the contrary, we must respectfully disagree with them.

In remarking, "Under a strict legal analysis, a 13-year-old can generally only be a victim of ...