THE PEOPLE v. A.B.
| Decision Date | 20 January 2011 |
| Docket Number | No. DL035776,No. G043493,G043493,DL035776 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re A.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.B., Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court declared A.B. a ward of the court after it found he committed misdemeanor sexual battery. (Pen. Code, § 243.4, subd. (e)(1), all statutory citations are to the Penal Code unless otherwise noted; Welf. & Inst. Code, § 602.) He challenges the sufficiency of the evidence to support the court's finding, arguing he did not touch the victim for the purpose of "sexual abuse." For the reasons expressed below, we affirm.
On the morning of December 4, 2008, 14-year-old M.R. stood on the track at her Santa Ana intermediate school with two other girls. She wore gym shorts and a T-shirt, and had just completed a run with her second period physical education (PE) class. While the girls chatted about weekend plans, M.R. had her back turned to other students, who continued to run around the track. She felt someone poke her bottom. She described it as quick, hard poke with a finger to the center of her buttocks, penetrating about an inch. She turned and saw 13-year-old A.B. standing with other boys about a foot away. She did not know A.B. well, but their PE classes ran together weekly.
Angry, she asked him why he jabbed her. A.B. walked away laughing with his companions. She followed, said something she did not recall, and A.B. responded by her calling her a "bitch." She responded with another comment, and walked away. A.B. then exclaimed he "fucked [her] mother." She replied, "'What you say?'", and took a step toward him. He pushed her, and she pushed him back. A.B. spit at her. She walked toward him, and he grabbed her arms and spit at her again. She pulled away and then tripped him to the ground. M.R. also fell and began hitting A.B. in the face. He pulled her hair and slapped her. They rolled on the ground and grappled until a teacher separated them. During the fracas, M.R. scratched A.B.'s face and bit his shoulder.
One of the girls with M.R. testified A.B. lined up for an activity about 18 inches behind M.R. Stretching out his arm, he poked her rear end and started laughing. The witness described the poke as quick but not hard. Her account of the fracas differed in some respects from M.R.'s.
A.B. told the school police officer he "accidentally" touched M.R. in the "butt area." He testified he accidentally bumped into M.R. and her friend while racing around the track. He apologized and kept running, but M.R. came after him and started hitting him. He grabbed her hands, she bit him on the shoulder, and they fell to the ground. He denied laughing, making the statements about her and her mother, pulling her hair or hitting her. After serving a five-day school suspension, he returned to class, he testified, and M.R. apologized to him for lying. A.B. explained he did not tell the school police officer "everything" because he was nervous and scared.
Following a jurisdictional hearing concluding in February 2010, the juvenile court found A.B. committed sexual battery. The court declared him to be a ward and placed him on probation subject to various terms and conditions including counseling, 40 hours of community service and preparation of a written apology letter to M.R.
A.B. challenges the sufficiency of the evidence to support the finding he committed sexual battery. Specifically, he asserts the evidence shows he touched the victim only to annoy or irritate her and not for the purposes of sexual abuse. We agree with A.B. the evidence does not show he touched the victim for sexual arousal or gratification. The issue therefore is whether his conduct constituted sexual abuse undersection 243.4. Section 243.4 provides: "(e)(1) Any person who touches 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, is guilty of misdemeanor sexual battery...." A "touch" is defined as "physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim." (§ 243.4, subd. (f).) "'Intimate part' means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (§ 243.4, subd. (g)(1).)
In re Shannon T. (2006) 144 Cal.App.4th 618 (Shannon T.) supports the juvenile court's finding. There, the appellate court concluded the term "sexual abuse" in section 243.4 encompassed "a purpose of insulting, humiliating, intimidating, or physically harming a person sexually by touching an 'intimate part' of the person...." (Shannon T., supra, 144 Cal.App.4th at p. 621.) In Shannon T., a 14-year-old boy approached a 16-year-old girl at school and said, " " The girl responded "'whatever, '" and continued to talk on her cell phone, but the minor pursued her, complaining, "'Don't talk to me like that.'" He slapped her face, grabbed her arm, and pinched her breast, causing her to cry. The pinch resulted in a small bruise above her left nipple. The victim acknowledged she and the minor had been friends and had previously engaged in playful hitting. (Id. at p. 620.)
The minor challenged the finding he committed sexual battery, arguing the evidence showed he did not touch the victim's breast for the purpose of "sexual arousal, sexual gratification, or sexual abuse." The appellate court disagreed, concluding the term "sexual abuse" was (Shannon T., supra, 144 Cal.App.4th at p. 622.) The court stated, "The lesson learned is that, in a civilized society, mature people ordinarily do not touch the intimate parts of other people withoutconsent, and that a person who does so acts at his or her peril of being found to have committed sexual battery." (Id. at p. 623.)
A.B. contends Shannon T. was wrongly decided. He complains the court "cherry-pick[ed]" definitions of "abuse," erred by defining the term "abuse" rather than interpreting the statute's reference to "sexual abuse," and ignored other definitions of "sexual abuse." He also asserts "abuse" has several meanings, and Shannon T. should have applied the rule of lenity and narrowly construed the term to require an intent to cause pain, injury or physical discomfort.
In construing section 243.4's proscription against unconsented touching of a person's intimate parts "for the specific purpose of sexual arousal, sexual gratification, or sexual abuse," we must, if possible, give significance to all the words in a statute; therefore, we must avoid constructions that would render some words surplusage. (People v. Black (1982) 32 Cal.3d 1, 5.) Accordingly, the Legislature must have intended the term "sexual abuse" in section 243.4 to cover conduct other than an unconsented touching solely for sexual arousal or gratification.
Relying on People v. White (1986) 179 Cal.App.3d 193 (White), A.B. contends the Legislature inserted the word "sexual" before the words "gratification" and "abuse" to proscribe conduct intended to cause injury or pain. In White, the defendant physically injured an infant when he inserted his finger in the child's anus. The defendant was convicted of violating section 289, which prohibited sexual penetration "for the purpose of sexual arousal, gratification or abuse." The appellate court rejected the defendant's argument that the term "sexual abuse" in section 289 required the perpetrator to act with a lewd or sexual motive, explaining that "[t]he term 'abuse' imports an intent to injure or hurt badly, not lewdness." (White, supra, 179 Cal.App.3d at p. 205.) Following White, A.B. concludes the evidence is insufficient to support his conviction because his touching annoyed but did not injure the victim.
As the Attorney General notes, there is a significant difference between section 289, the statute considered in White, and sexual battery. With sexual penetration, the act must be accomplished against the victim's will "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury...." (§ 289.) But a battery is committed by any touching of an intimate part of another person against the person's will. (§ 243.4, subd. (e)(1).) Considering the different evils each statute addresses, it is not incongruous to define sexual abuse under section 289 as conduct intended to cause pain or injury, while broadly defining sexual abuse to establish sexual battery. Indeed, Shannon T. discussed White in comparing the two statutes and concluded the sexual battery statute did not require the perpetrator to inflict the same type of harm that must be shown under the statute prohibiting sexual penetration.
A.B. has failed to cite any legislative materials or case law...
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