People v. John L.

Opinion

FRANSON, P. J.

The juvenile court declared John L. a ward of the court (Welf. & Inst. Code, § 602) after finding that he had committed lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)).

1

John, 15 years old, and a neighbor girl, who was 11 and 12 years old at the time, engaged in voluntary consensual sexual activity on at least 3 occasions. John was released to the custody of his parents under terms of probation which included a 90-day commitment to juvenile hall with 60 days suspended.

The primary issue on appeal is whether a minor age 14 or older violates section 288, subdivision (a) when he engages in sexual conduct with a willing partner who is under 14 years of age. We answer in the affirmative.

[1139]

Facts

R, whose birthday is June 25, 1974, met appellant, a friend of her older brother P., when she was in the fifth or sixth grade. Appellant, whose birthday is February 23, 1971, was two years ahead of her in school.

At some time during the first six months of 1986, while B. was eleven years old and in the sixth grade, appellant, B. and P. were playing in an inoperable car in B.’s garage. B. and appellant climbed into the back seat and engaged in various sex acts. B. testified at first she participated willingly because she wanted appellant to be her friend. However, while they were having intercourse, B. asked appellant to stop.

During the summer of 1986, B., P., appellant and T., a girlfriend of B.’s, were swimming at night in B.’s swimming pool. B. and appellant orally copulated each other. During this time, P. and T. engaged in similar activity in the pool. B. agreed to the activity because she “really liked” appellant and “would do anything” to have his friendship.

Later in 1986, appellant spent the night with P. He and P. were in P.’s room reading a pornographic magazine. B. came in and sat beside appellant. She orally copulated appellant because he told her to and she wanted to be his friend.