Filed 10/2/13 In re Garrett W. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re GARRETT W., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
G046999
Plaintiff and Respondent,
(Super. Ct. No. DL040237)
v.
ORDER MODIFYING OPINION
GARRETT W., AND DENYING PETITION FOR
REHEARING; NO CHANGE IN
Defendant and Appellant. JUDGMENT
The opinion filed in this case on September 5, 2013, is ordered modified as
follows:
1. On page 3, delete the last full paragraph on the page: “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.”
2. On page 3, in place of the deleted paragraph, insert the following
paragraph: “Minor’s admission that he touched the victim’s 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 breast. That act violated the statute.
Accordingly, minor’s admission supports the judge’s ruling declaring him a ward of the
court.”
The modification does not change the judgment. The petition for rehearing
is DENIED.
MOORE, J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
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Filed 9/5/13 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re GARRETT W., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
G046999
Plaintiff and Respondent,
(Super. Ct. No. DL040237)
v.
OPINION
GARRETT W.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange 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 Code1 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
1 All undesignated statutory references are to the Penal Code.
2
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.
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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.
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