Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ06005649
STEIN, J.
By an amended juvenile wardship petition (Welf. & Inst. Code, § 602) filed March 2, 2007, the Alameda County District Attorney alleged that Brandon B., then 15 years old (the minor) had committed a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)), had orally copulated a child under the age of 18 (§ 288a, subd. (b)(1)), and had annoyed or molested a child under the age of 18, a misdemeanor (§ 647.6.)
Further statutory references are to the Penal Code.
A violation of section 647.6, subdivision (a)(1) is a misdemeanor. A violation of subdivision (b) is a felony.
At a contested hearing, the victim’s grandmother testified she had taken the victim and his sister to dinner, bringing them home in the early evening, while it was still light. A neighbor girl came running over to ask if the victim could go over to her house for a little bit. At first the grandmother said no, but after the victim asked if he please could go, and noting the girl’s parents were home, the grandmother agreed, and let the victim go with the girl while she took his sister inside for a quick bath. After about 15 minutes, the grandmother went outside. The victim was running around in the front yard and the minor was riding around on his bicycle. The minor’s parents also were still outside. The grandmother told the victim it was time to go. He asked if he could stay, but she said “no,” and he went into the house with her. He did not appear to be upset or worried. A short time later, the victim told her the minor was his best friend. The grandmother asked him why, and he told her the minor said he would be the victim’s best friend if the minor could stick his “wiener” in the victim’s mouth. The victim indicated the minor had put his penis on the roof of the victim’s mouth. The grandmother told him, “Friends don’t do that,” and made him brush his teeth.
The victim testified at trial, stating he had gone with the neighbor girl, the minor’s sister, to play hide-and-seek with the minor. At some point, the victim and the minor were hiding from the girl. While they were hiding, the minor told the victim to put his mouth on the minor’s “wiener.” The victim thought for a moment, and the minor then said something like, “If you do it, I’ll be your best friend.” The victim stated he complied, putting his mouth on the minor’s penis. The victim went home and told his grandmother what had happened. He did not tell his mother right away because he was afraid she would be mad at him.
On this evidence, the juvenile court found it a “close call” as to whether the minor had orally copulated or committed a lewd or lascivious act on the victim, but found beyond a reasonable doubt that the minor had committed the crime of annoying or molesting a child. The court declared the minor a ward and placed him on probation, to reside in his mother’s home. This appeal followed.
Discussion
The minor points out the juvenile court declined to find the minor had in fact placed his penis in the victim’s mouth. He contends it follows that the court must have concluded he was guilty solely on the evidence he told the victim he would be his best friend if the victim put his mouth on the minor’s penis, contending that evidence, alone, is insufficient to sustain a finding he had violated Penal Code section 647.6.
Section 647.6, subdivision (a)(1) makes it a misdemeanor to annoy or molest a child under the age of 18 years. The crime requires (1) conduct a normal person unhesitatingly would be irritated by, and (2) conduct motivated by an unnatural or abnormal sexual interest in the victim. (People v. Lopez (1998) 19 Cal.4th 282, 289 (Lopez).) It does not require a touching. (Ibid.) For purposes of the crime, “annoy” and “molest” are synonymous, generally referring to conduct designed to disturb, irritate, offend, injure or at least tend to injure another person. (Ibid.) The terms ordinarily relate to offenses against children, with a connotation of abnormal sexual motivation. The forbidden annoyance is not concerned with the child’s state of mind, but rather refers to the defendant’s objectionable acts. (Id. at p. 290.) An objective test, not dependent on whether the child was in fact irritated or disturbed, is used to determine whether the conduct in question would unhesitatingly irritate or disturb a normal person. (Ibid.)
The minor cites a number of cases where a conviction of violating section 647.6, or its predecessor statute, section 647a, was upheld, asserting the evidence in each case was stronger than, or at least different from, the evidence in the present case. The question, however, is not whether the evidence in some other case was sufficient to sustain a verdict, but whether substantial evidence supports the juvenile court’s finding here. It is true that in a number of cases the guilty defendant’s conduct involved continuous or repeated acts that caused the victim or victims to become fearful, irritated or nervous. (E.g., People v. Kongs (1994) 30 Cal.App.4th 1741, 1746-1747 [photographing and videotaping girls, focusing on their crotches]; Ecker v. Raging Waters Group, Inc. (2001) 87 Cal.App.4th 1320, 1324-1326 [videotaping boys at a water park]; People v. Thompson (1988) 206 Cal.App.3d 459, 461-462 [trailing or driving ahead of girl riding bicycle, making hand and facial gestures].) However, nothing in these cases, or in the requirements for the crime, require continuous or repeated acts, particularly when the conduct in question is unambiguous.
There is nothing ambiguous about directing or asking a child to commit an act of oral copulation, and no error in finding such conduct to be objectively annoying or irritating and motivated by an unnatural or abnormal sexual interest in the victim. In People v. Mendoza (2004) 118 Cal.App.4th 571, evidence the defendant had asked a 17-year-old boy if the boy wanted a “blow job” was sufficient to sustain a finding defendant had violated section 647.6. (Id. at pp. 573, 576.) Similarly, in People v. La Fontaine (1978) 79 Cal.App.3d 176, a conviction of violating section 647a was upheld on evidence the defendant told a 14-year-old boy he could make an easy five or ten dollars by allowing the defendant to give him a “blow job,” even though the defendant did not touch the boy or make any motion towards the boy’s body. (Id. at pp. 179-180, 185.) Defendant’s conduct was no less objectively irritating or annoying than the conduct in Mendoza and La Fontaine. The evidence, accordingly, supports the juvenile court’s finding defendant’s conduct violated section 647.6.
Defendant correctly points out La Fontaine, supra, 79 Cal.App.3d 176, was disapproved by the Supreme Court in Lopez. It was not, however, overruled on any point relevant to the present case. Rather, the Supreme Court disapproved the appellate court’s conclusion that section 647.6 is a lesser offense necessarily included in section 288. (Lopez, supra, 19 Cal.4th at p. 292.)
The minor notes the juvenile court, in finding the minor had committed the crime, did not make any express finding as to each of the crime’s elements. None was necessary.
Conclusion
The finding the minor violated section 647.6 is supported by the evidence. The determination of wardship is affirmed.
We concur: MARCHIANO, P. J. MARGULIES, J.