Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JW09-6461
Dondero, J.
Following a contested jurisdictional hearing, the juvenile court sustained three allegations of lewd and lascivious conduct upon a minor (Pen. Code, § 288, subd. (a)), one count of lewd and lascivious conduct upon a minor by force or fear (§ 288, subd. (b)(1)), and one count of providing false identification to a law enforcement officer (§ 148.9, subd. (a)) against defendant Evan P. Defendant appeals, claiming there was insufficient evidence to support the finding that he committed molestation by means of force or fear. We affirm.
All further statutory references are to the Penal Code except as otherwise indicated.
FACTUAL BACKGROUND
On July 28, 2009, a wardship petition (Welf. & Inst. Code, § 602) was filed alleging that defendant committed one count of lewd and lascivious conduct upon a minor by use of force or fear, three counts of lewd and lascivious conduct upon a minor, and one count of providing false identification to a law enforcement officer. The testimony at his contested jurisdictional hearing is described below.
A. The Prosecution
L.P., the victim, is defendant’s niece. L.P.’s father is one of defendant’s older brothers. During the summer of 2009, 10-year-old L.P. would go to her grandmother’s house on weekday mornings and would sometimes stay overnight. At the time, defendant, then 14 years old, was living in his grandmother’s house, along with his parents, his two older sisters, and two of his older brothers.
L.P. testified that one evening in the month of July, she was sitting in a chair in the living room as she watched television. Defendant came up from behind, reached over her shoulder, and touched her breast. She told him to stop. Defendant said “okay” and told her not to say anything about what he had done. She left the room and went upstairs.
A second incident occurred when L.P. and defendant were watching television together in the living room. He was seated on his bed (he regularly slept in the living room) and she was seated on a chair. Defendant grabbed a condom and went into the bathroom to put it on. When he came out of the bathroom, he pulled his pants down enough for her to see the condom on his penis, saying “this is for you.” L.P. left the living room and went upstairs.
A third incident occurred when L.P and defendant again were watching television in the living room. Defendant was lying on his bed and, when he and L.P. were alone, he pulled down his shorts and showed her his penis. He covered himself quickly with a blanket when one of his sisters came into the room.
On another occasion, L.P. was playing a video game in her grandmother’s bedroom. She was sitting at the foot of the bed. Defendant came in the room and they played the game for awhile, both while sitting on the bed. At some point, he quickly grabbed her right breast. She told him to stop. He then pushed her down on the bed and tried to get on top of her, saying “please.” She thought he was trying to “hump” her. This made her feel angry and she pushed him off. At that point, one of defendant’s sisters came in and told her to go upstairs.
The final incident occurred when defendant quickly put his hand down the front of L.P.’s pants. After he did this, he again told her not to tell anyone.
Initially, L.P. did not reveal what defendant had done to her. She felt scared and did not want to talk about it. At trial, she stated that she “didn’t feel safe... because he was always touching [her].” She also felt scared because he had told her not to tell. Finally, she decided to tell her mother because she “just didn’t feel like going through anything anymore.”
After L.P.’s father was informed of defendant’s actions he notified his (and defendant’s) older brother S.P. S.P. went to his grandmother’s house and met with defendant. Defendant admitted that he had touched L.P. inappropriately and that this behavior had been going on for at least a month. Specifically, he admitted to touching her breasts on more than one occasion and to putting his hand down her pants. Defendant also said he had placed his penis near L.T.’s anal region, though it was unclear when or where this had occurred. He also confessed to having put a condom on in her presence. S.P. testified defendant appeared ashamed when he made these disclosures but did not have a sincere demeanor.
On July 23, 2009, Gloria Samoyoa, a coordinator for the Child and Adolescent Sexual Abuse Resource Center (CASARC) at San Francisco General Hospital, interviewed L.P. During the interview, L.P. described incidents when defendant had touched her breasts and had exposed his penis while lying on his bed. She also described the time when he tried to “hump” her, and when he showed her his penis with a condom on it. As to the later incident, she also stated that she had tried to run upstairs after he put on the condom, but he chased after her, caught her leg, and brought her back downstairs. She refused to discuss what happened after that, referring Samoyoa to her mother. She did state that she did not feel safe when she was with defendant because he would touch her.
On July 27, 2009, two police officers approached defendant on the street near his home and asked for his name. Instead of providing his real name, he gave the name of one of his brothers. He later told them his real name.
B. The Defense
Defendant’s sister J.P. testified that she talked with him after it first was reported that he had inappropriately touched L.P. He looked “a little depressed” and said he and L.P. had kissed and touched each other for more than one month. He stated that L.P. was the “aggressor.”
Defendant testified and admitted he had touched his niece’s breasts four times that summer, but stated that she never told him to stop. He also stated that he did put his hand down her pants on one occasion. He denied showing L.P. his erect penis with a condom on it, though he admitted he had put a condom on in the bathroom to masturbate and she might have seen it when he threw it in the garbage afterwards. He also denied that he ever tried to “hump” L.P. or that he asked her not to tell anyone. He stated he told the police that he was his brother because he was being sarcastic and initially did not think the officers were serious.
C. The Decision
On October 27, 2009, the juvenile court found all of the counts against defendant to be true. As to the count for lewd and lascivious conduct upon a minor by use of force or fear, the court found it true based on the element of fear, and not force. The court found L.P.’s testimony was very credible, and also credited the videotaped CASARC interview with Samoyoa. The court found L.P.’s demeanor during the interview conveyed a level of fear, noting that she chose to keep the hood of her jacket over her head while being questioned. This evidence, combined with her testimony in court, was sufficient for the court to satisfy the element of fear within the meaning of section 288, subdivision (b)(1).
At the dispositional hearing on November 10, 2009, the juvenile court ordered defendant placed in a sex offender program. This appeal followed.
DISCUSSION
When asked to decide the sufficiency of evidence, an appellate court reviews the entire record and determines whether there is substantial evidence that could lead a reasonable trier of fact to find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value....” (Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) The appellate court does not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.) This standard applies to juvenile adjudications as well as criminal convictions. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
Defendant contends the evidence was insufficient to support the finding that he committed molestation by means of fear. He notes L.P. never testified she feared immediate and unlawful bodily injury to herself or to another person, as required under section 288, subdivision (b)(1).
At the time of the incidents at issue here, former section 288 provided, in part:
“(a) Any person who willfully and lewdly commits any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
“(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Citing to People v. Jeff (1988) 204 Cal.App.3d 309, defendant correctly notes that the element of “fear” in section 288, subdivision (b)(1) requires more than a showing that that the victim was afraid generally. In Jeff, a case involving a similarly worded provision in former section 261, subdivision (2), the appellate court stated: “[I]t is not enough for the prosecution to show sexual intercourse was accomplished against the will of the victim by means of fear. There is a further requirement the victim fear ‘immediate and unlawful bodily injury.’ ” (Jeff, supra, at p. 324.)
It is true that L.P. did not explicitly articulate a fear of bodily injury. On several occasions when asked why she did not tell her mother about defendant’s acts, she stated that she was scared. When pressed as to what she was scared of, she said “nothing” and denied that she was afraid defendant would do “something bad” to her or anyone else. Nevertheless, a trier of fact could reasonably infer from all the circumstances that L.P. did, in fact, harbor a fear of bodily injury. In particular, we note that during the CASARC interview, she specifically stated that when she ran away from defendant after he showed her the condom on his penis, he chased after her, caught her by her leg, and pulled her back downstairs. While she testified at the jurisdictional hearing that she had fabricated defendant’s use of force under pressure from Samoyao, the court could reasonably have given credence to the statements she made in the CASARC interview. As noted above, under the standard of review applicable here, it is not our function to reweigh the evidence. (In re Frederick G., supra, 96 Cal.App.3d 353, 367.)
We disagree with defendant’s contention that because the court found the element of force had not been established it must have believed L.P.’s testimony that she lied to Samoyao when she said he had forced her down the stairs.
We note that our task is made somewhat more difficult because the record does not reveal exactly which incident formed the basis for the section 288 (b)(1) count. We also note that while L.P. testified to only three incidents in which defendant touched her in a lewd manner (the other incidents apparently only involving defendant exposing himself), he himself admitted to touching L.P.’s breasts four times and touching her inside her pants one time. In any event, based on L.P.’s testimony it appears that at least two molestations occurred after the incident in which he chased her up the stairs and brought her back to the living room. Substantial evidence would support a finding that L.P., having already been forcefully restrained by defendant, would have experienced a fear of imminent bodily injury in conjunction with the subsequent molestations.
Additionally, although not raised by either party, we conclude that even if the evidence does not support a finding that defendant placed L.P. in fear of bodily injury, the juvenile court’s finding that defendant violated section 288, subdivision (b)(1) is supportable on the ground that the molestation was accomplished by means of duress. The term “duress” as used in section 288, subdivision (b)(1), has been defined as “ ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1004, italics omitted, citing to People v. Pitmon (1985) 170 Cal.App.3d 38, 50.) “ ‘ “The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” [Citation.]’ [Citations.] ‘Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ [Citations.]” (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
In People v. Senior (1992) 3 Cal.App.4th 765, a case involving the element of duress, the appellate court held that a “simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.” (Id. at p. 775; see also People v. Veale, supra, 160 Cal.App.4th 40, 47 [although stepfather who molested seven-year-old girl did not use violence or explicit threats, evidence supported a finding of duress based on “the disparity between [the victim’s] and defendant’s age and size, ” the “defendant’s position of authority in the family, ” and the fact that victim feared defendant and believed he would kill her or her mother if she told about the molestation].)
Here, defendant was older and larger than L.P., was her uncle and therefore held a higher position of authority in the family, molested her in his family home, told her several times that she should not report the molestations, and restrained her on one occasion when she tried to flee. Viewing the totality of the evidence in the light most favorable to the judgment, we conclude the trier of fact could reasonably have inferred the sexual acts defendant committed against the victim were carried out under circumstances constituting duress.
As noted in People v. Schulz (1992) 2 Cal.App.4th 999, 1005, “[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] ‘Where the defendant is a family member and the victim is young, ... the position of dominance and authority of the defendant and his continuous exploitation of the victim’ [are] relevant to the existence of duress. [Citation.]”
In sum, the totality of this evidence is sufficient to support a finding that defendant molested L.P. either by causing fear of immediate bodily injury or by duress, in violation of section 288, subdivision (b)(1).
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: Margulies, Acting P. J., Banke, J.