In re J.M. CA3

Filed 2/22/24 In re J.M. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

In re J.M., a Person Coming Under the Juvenile Court C098401 Law.

THE PEOPLE, (Super. Ct. No. JV141426)

Plaintiff and Respondent,

v.

J.M.,

Defendant and Appellant.

This is an appeal from the juvenile court’s finding that the minor J.M. committed lewd and lascivious acts upon a child under 14 by force or fear, in violation of Penal Code section 288, subdivision (b)(1). On appeal, J.M. argues the finding was not supported by sufficient evidence because the victim’s testimony was inherently improbable. We affirm.

1

BACKGROUND On September 24, 2021, the Sacramento County District Attorney filed a petition alleging that J.M. (the minor), committed lewd and lascivious acts against C.D., a 10- year-old victim (the victim), in violation of Penal Code section 288, subdivision (b)(1). The victim was friends with the minor’s stepbrother, Z.B., who lived in the minor’s home.1 The victim and Z.B. met when they were in the same class at school. Sometime between February 14, 2017, and June 2017—when the minor was 13 years old—the victim’s mother dropped him off at the minor’s home for a sleepover. The victim, the minor, and Z.B. played video games and ate dinner, before going upstairs to the bedroom that Z.B. and the minor shared. Upstairs, Z.B. and the minor began to smoke marijuana, blowing it in the victim’s face, despite him asking them to stop. After shutting the bedroom door, the minor and Z.B. tried to convince the victim to have sex with them. The victim described the minor’s behavior as “threatening” and “aggressive,” causing him to eventually give in. Z.B. and the minor told the victim to get on the ground, where Z.B. removed the victim’s clothes. They threatened to “beat the crap” out of the victim and kill him and his mom if he ever told anyone. Then, the minor sat on the bed, watching as Z.B. sodomized the victim. About three-quarters of the way through, Z.B. told the minor to go in the closet and the victim would be there in a minute. After 20 or 25 minutes, Z.B. ejaculated in the victim’s anus. Feeling sad, scared, and humiliated, the victim used a shirt to wipe himself off. Z.B. then pushed the victim into the closet with the minor. The victim described the closet as average size—about three feet deep and five or six feet wide— with shirts on the floor. Once inside the closet, the minor pushed the victim’s head down and held his arms, forcing the victim to orally copulate him.