In re F.M. CA6

Filed 5/2/14 In re F.M. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re F. M., a Person Coming Under the H039667 Juvenile Court Law. (Santa Clara County Super. Ct. No. JV39443)

THE PEOPLE,

Plaintiff and Respondent,

v.

F. M.,

Defendant and Appellant.

1. INTRODUCTION After a contested jurisdictional hearing, the juvenile court found that minor F. M. (Minor) had lewd contact with her younger brother involving force. (Pen. Code, § 288, subd. (b)(1).)1 At the dispositional hearing, the court declared Minor a ward of the court, ordered out-of-home placement, and imposed a number of probation conditions as recommended in a supplemental probation report. The only issue presented by this appeal is whether an express knowledge element should be added to the following probation condition: “That said minor not be within her arm’s reach of any minor twelve years of age or under in any non-public place unless she

1 Unspecified section references are to the Penal Code.

is under competent adult supervision and is within the sight or hearing range of that adult.” The Attorney General argues that no knowledge element is required, as a reasonable mistake about age is no defense to a section 288 charge. We would accept this argument if the probation condition was intended to reiterate section 288, but it instead regulates conduct that is not criminal. For the reasons stated below, we will conclude the condition should be modified to include a knowledge element and will affirm the dispositional order as so modified. 2. TRIAL COURT PROCEEDINGS A. JURISDICTIONAL HEARING A wardship petition (Welf. & Inst. Code, § 602, subd. (a)) filed August 6, 2012, alleged Minor, a female born in 1997, had committed fornication (§ 285) in late 2011 and early 2012 with her biological younger brother before he turned 14. An amended petition filed March 5, 2013, alleged Minor had committed lewd conduct on a child under 14 by force or duress. (§ 288, subd. (b)(1).) Evidence was presented during a three-day jurisdictional hearing in March 2013 that Minor and her brother, who is younger by sixteen months, had sexual intercourse three times, ending either in the summer of 2011 (according to the brother’s trial testimony), or three to four weeks before his February 8, 2012 interview by San Jose Police Detective John Lynch (according to what he told the detective). Minor’s mother explained that Minor had come from Mexico to live with them in the middle of 2011. Minor’s brother told Detective Lynch and the court they had sexual intercourse three times. At trial he explained it first occurred in his bedroom. They had been watching television on his bed and started hugging. They removed their clothes. It was the first time he had sex. It lasted less than a minute. He pulled his penis out of her vagina before he ejaculated. They did not talk about what happened. The second time took place in their mother’s bed. At Minor’s request, he used a condom he had obtained from a community center.