Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF137467. Christian F. Thierbach, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P.J.
A jury convicted defendant, Martin Adame, of two counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)) and one count of committing forcible lewd and lascivious acts on a minor (§ 288, subd. (b)) and found true an allegation that his crimes involved more than one victim (§ 667.61, subd. (e)(5)). He was sentenced to prison for 15 years to life plus 10 years. He appeals, claiming insufficient evidence supports his conviction of committing forcible lewd and lascivious acts on a minor and the jury was misinstructed. We reject his contentions and affirm, while directing the trial court to correct some errors in the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
In about 1992, in 1997, and in 1999 or 2000, defendant molested three young females in his family. Testimony about another molestation involving the victim of one of the charged lewd and lascivious acts was also introduced, as was evidence of molestations defendant had perpetrated on four other young females in his family. The facts surrounding defendant’s convictions will be described as they relate to the issues discussed.
Issues and Discussion
1. Sufficient Evidence of Forcible Lewd and Lascivious Acts
A conviction will not be set aside for insufficiency of the evidence unless it is clearly shown there is no basis on which the evidence can support the jury’s conclusion. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the verdict is supported by substantial evidence, we give due deference to the trier of fact. (People v. Davis (1995) 10 Cal.4th 463, 509.) Thus, defendant bears an enormous burden in claiming there was insufficient evidence.
In his opening brief, defendant contends the evidence was insufficient to establish the force element of forcible lewd and lascivious acts on Jane Doe No. 6, the victim of Count 4, but in so doing, he cites not her trial testimony, but that of Jane Doe No. 4, whose testimony was introduced under Evidence Code sections 1101, subdivision (b) and 1108, and not to directly prove a charged offense. In his reply brief, he corrects his mistake and contends that the testimony of Jane Doe No. 6 was insufficient to establish the force element for this crime.
Additionally, defendant mischaracterizes the record by asserting that “The jury asked a question about” whether “the amount of force... [was] sufficient to meet the definition for the crimes [sic]....” What appears at CT 297 has nothing whatsoever to do with Count 4. On CT 298 appears the jury’s note to the court, “We request the transcript reading for [Jane Doe No. 6]... re Count 4[.]” On CT 299 appears the following note from the jury, “For clarification. On count 4, in regarding [sic] to force or fear. Is it just fear... just of immediate and unlawful bodily injury to the child or someone else? Because the second section does not mention bodily injury in any way.” Thus, the question addressed not the amount of force required but the nature of the threat to the victim. However, no threat was made to Jane Doe No. 6. Moreover, the jury returned its guilty verdict as to all the counts before the trial court had an opportunity to deliver to it its answer to the question.
Jane Doe No. 6 testified that when she was six years old in 1997, she was in the backyard of her aunt’s home playing with her four-or five-year-old cousin. The about 30 year old defendant, a relative, arrived and picked both children up and put one on each of his knees as he sat. Jane Doe No. 6 was facing away from defendant and her feet were not touching the ground. Defendant put his hand inside the shorts and underwear of Jane Doe No. 6 and on the top outside of her vagina. He moved his hand, almost rubbing her vagina for one minute. While this was occurring, she was thinking that she knew it was not right for him to be doing this. She testified that she, “tr[ied] to pull away from him... [¶]... [¶]... [by] using [my] hand... to push off his leg[, ]” “but he kept on holding on to me tighter” after removing his hand from her pants and underwear in order to hold onto her. After ten seconds of pushing, she was able to get off defendant’s knee. Defendant did not put his hand down Jane Doe No. 6’s pants again after removing it to hold on to her. She said she was upset and thereafter tried to forget the incident.
Defendant contends that because he did not put his hand down Jane Doe No. 6’s pants a second time, after he had restrained her, he did not use force to commit the touching. The People, forced to anticipate defendant’s contention, because defendant did not assert it until his reply brief, cite cases in which the defendant grabbed or held the victim who was trying to pull away, but in each case, the act of molestation either occurred or continued to occur after the grabbing/holding. (People v. Bolander (1994) 23 Cal.App.4th 155, 158-159, 160-161 [Defendant pulled the victim’s pants down, the victim tried to pull them back up and defendant pulled them down again, then bent the victim over and pulled the victim’s waist towards him before performing the act that constituted the offense and “in order to accomplish [it].”]; People v. Babcock (1993) 14 Cal.App.4th 383, 385-387 [Defendant took one victim’s hand and made her touch him and after the other victim refused to touch defendant, he grabbed her hand and touched his genitals with it, then when she tried to pull away, he pulled it back.]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 150, 153-154 (Bergschneider), disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1028 [The victim placed her hands in front of her vagina to resist defendant, but he pushed them aside and had intercourse with her and she “unsuccessfully” attempted to push his head away when he attempted to orally copulate her.]; People v. Pitmon (1985) 170 Cal.App.3d 38, 44, 46, 48 (Pitmon) [Defendant grabbed the victim’s hand, placed it on his genitals and rubbed himself with the victim’s hand and pushed the victim’s back while the victim was orally copulating him.].) No doubt realizing the significance of the factual differences between those cases and this one, the People simply assert, “[T]his court may conclude that based on [Jane] Doe [No.] 6’s testimony that [defendant] resisted her escape efforts, substantial evidence supports the conclusion of the jury’s guilty verdict....” They cite no authority for us doing so.
In dicta, the Bergschneider court stated that if defendant had forcibly removed the victim’s hands only during an act of oral copulation that preceded the rape, and both were part of one continuous incident, evidence of force during the first sexual act would suffice to support a finding of force during the second. (Bergschneider, supra, 211 Cal.App.3d at p. 153, fn. 7.)
The case they do cite, People v. Arcega (1982) 32 Cal.3d 504, 518, offers no support for their position.
However, the instruction given this jury on this crime required that “[i]n committing the act [of touching Jane Doe No. 6], the defendant used force....” This clearly implies that the force must accompany the act, not come after it is completed, while the victim is attempting to escape. Thus, during argument to the jury, the prosecutor did not assert that defendant’s attempts to overcome Jane Doe No. 6 pulling away from him after he touched her constituted the force necessary for a conviction of forcible lewd and lascivious acts. Rather, he said, “Picking the child up and placing her on [his] knee, that’s sufficient force... for a 288(b)” Because the parties here are either unaware of this or concluded that it is irrelevant to our analysis, we must decide whether, as a matter of law, this is sufficient evidence of force, without input on the issue from the People.
People v. Neel (1993) 19 Cal.App.4th 1784 held, “[T]he element of force in subdivision (b) is intended as a requirement that the lewd act be undertaken... by means of ‘physical force’.... [Citation.]” (Neel at p. 1790, italics added.) People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero) held that, “the defendant [must] use physical force... to accomplish the lewd act itself.” (Cicero at p. 474, italics added.)
Neither appellate counsel for defendant nor the People mention this in their briefs. Either they failed to read the prosecutor’s argument to the jury, or they concluded that it had no significance to this issue. If it is the latter, they were wrong.
See footnote 6, ante, p. 6.
As luck would have it, in discussing the testimony of the wrong victim, i.e., Jane Doe No. 4, appellate counsel for defendant accidentally zeroed in on the issue in his opening brief, although he did so not on the facts surrounding the charged crime. However, both the charged crime and the testimony of Jane Doe No. 4 involved the defendant picking the victim up and placing her on his leg or lap. The differences arose in other circumstances-Jane Doe No. 4 was about seven years old at the time defendant molested her, she jumped off defendant’s leg after he rubbed her thigh and vagina and her father and sister were in the same room with them. Although defendant relies on these facts in discussing the insufficiency of the evidence, we have not relied on them.
Defendant contends that the evidence is insufficient because the facts here are different from those in cases in which the appellate court have upheld convictions for violations of section 288, subdivision (b). (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1381 [In rejecting defendant’s assertion that the force he applied to the victim was not substantially greater than that necessary to accomplish the lewd acts, the appellate court ignored the facts that defendant straddled the victim and turned her over onto her back in order to perform the acts, and focused on the facts that he pushed her back when she tried to move and kept his forearm over her mouth so she could not cry out, both during the acts.]; People v. Bolander, supra, 23 Cal.App.4th 155 [facts are described in the text of this opinion at p. 4]; Bergscheider, supra, 211 Cal.App.3d 144 [facts are discussed in the text of this opinion at p. 5].)
In Cicero, supra, 157 Cal.App.3d 465 which defendant also cites, the victims, during what they thought at the time was play, were picked up by the defendant and carried along as he felt their crotches. (Id. at p. 470.) The appellate court concluded that this constituted the application of force substantially different from and substantially greater than that necessary to accomplish the lewd act. (Id. at p. 474.) Defendant asserts because Jane Doe No. 6 was not carried along, there was insufficient evidence of force. He claims that the victims in Cicero were carried “for a considerable distance[.]” In fact, the 11-and 12-year-old victims in Cicero had been carried for 15 to 20 feet during about nine seconds. (Id. at p. 470.) We do not deem this “considerable” and the Cicero court never mentioned it in concluding that it established force for purposes of section 288, subdivision (b). Defendant offers no persuasive argument how picking the victims in Cicero up and carrying them for 15 to 20 feet for nine seconds is, as a matter of law, sufficient evidence of force, but defendant picking this younger victim up and holding her on his knee with her feet off the ground while he rubbed her vagina is not. Therefore, defendant has not carried his heavy burden in regard to the force element of section 288, subdivision (b).
The Cicero court went on to hold that where the victim is not physically injured, the People must prove that the lewd act was accomplished against the will of the victim. (Id. at pp. 478, 485.) The court concluded that because the victims had been deceived as to defendant’s intent when he picked them up, they had been picked up and carried along against their will. (Id. at pp. 485-486.)
We note that the other two charged offenses here were distinguishable factually from this one in that in the former, defendant sat down next to the victims and reached across, put his hands into their pants and rubbed their vaginas.
Our research has unearthed no cases closer to the facts here than Cicero.
In his opening brief, defendant did not assert that there was insufficient evidence of duress. However, because the People in their brief asserted that even if there was insufficient evidence of force, there was sufficient evidence of duress, defendant made the assertion for the first time in his reply brief. Defendant acknowledges that “‘“[w]here the defendant is a family member and the victim is young, ... the position of dominance and authority of the defendant” [citation]... [are] relevant to the existence of duress.’ [Citation.]” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320.)
Jane Doe No. 6 testified that she was alone with defendant, except for the presence of her younger cousin, at the time of the offense. She was at the home of her aunt, and she did not otherwise describe the nature of her relationship with the aunt except to say that the aunt babysat her. Jane Doe No. 6 said at the time defendant was rubbing her vagina, she “knew it wasn’t right” and she felt uncomfortable and was upset. When asked why she did not report it afterwards, she testified she was afraid of how her parents would react if she told them and she was afraid of what her family might do or that this would break up her family. She explained, “[Defendant] was close to everybody in my family, and I thought, ... my family would stop talking to my aunts because every day they see him....”
The prosecutor argued to the jury that there was duress and menace based on the relative ages of defendant and Jane Doe No. 6 and defendant’s position in her family and the fact that she trusted him. The jury was instructed that duress is a “direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to... submit to something she would not otherwise... submit to. [¶] When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and her relationship to the defendant.”
There was no direct evidence that Jane Doe No. 6 trusted defendant and although she described a close relationship between him and her aunts, she did not testify that he and she were close or that she considered him to be an authority figure.
Defendant points out that he did not threaten Jane Doe No. 6 and there was no testimony that he was any type of father figure to her. However, “[t]he fact that the victim testifies the defendant did not use... threats does not require a finding of no duress....” (People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran); Accord, Pitmon, supra, 170 Cal.App.3d at pp. 47-48, 51.) Additionally, while Jane Doe No. 6 did not describe defendant as a father figure, she testified that he was close to everyone in her family and she was aware that if she reported what happened, it would cause a rift in her family. This suggests that he was in a position of authority over her. Moreover, in Pitmon, the appellate court held, “at the time of the offenses, [the victim] was eight years old, an age at which adults are commonly viewed as authority figures.” (Id. at p. 51.) Finally, as Pitmon observed, “The disparity in physical size between an eight-year-old [child] and an adult also contributes to a youngster’s sense of [her] relative physical vulnerability.” (Ibid.)
Defendant relies on language in People v. Hecker (1990) 219 Cal.App.3d 1238, which the same court that authored it later declared to be overly broad. (Cochran, supra, 103 Cal.App.4th at pp. 8, 15.) In Cochran, the appellate court said, “A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family... if she reports... may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young....” (Id. at p. 15.)
In regard to the duress aspect of section 288, subdivision (b), then, defendant has failed to carry his heavy burden of showing that the evidence was insufficient to support the verdict.
2. Unanimity Instruction
Defendant contends that because the victim of Count 3, Jane Doe No. 3 testified to two molestations defendant perpetrated on her-the first, at her grandmother’s house in 1989 or 1990 when she was five or six years old and the other in her parents’ van approximately in 1992 when she was “eight-ish”-the jury should have been given a unanimity instruction as to this count. Once again, appellate counsel’s failure to either read or attach any significance to the prosecutor’s argument at trial is his downfall. The prosecutor told the jury, “So what’s Count 3?... [¶]... [T]his will go to the time she was in the van.” As defendant himself concedes, when the prosecutor makes an election as to which of more than one act constitutes the crime, the unanimity instruction is not appropriate. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
See footnote 6, ante, page 6.
But, once again in his reply brief, therefore, giving the People no opportunity to reply, defendant asserts that despite the clear statement by the prosecutor that Count 3 related to the van incident, other things the prosecutor said during argument suggested to the jury that it could convict him of Count 3 based on the earlier incident at Jane Doe No. 3’s grandmother’s house.
The first to which defendant calls our attention occurred just after the above quoted statement, when the prosecutor discussed the evidence that showed defendant’s intent at the time he committed the molestation in the van. The prosecutor said, “His intent? I’m not going to go over that again, but... use all the evidence, not just [Jane Doe No. 3]’s.... [Y]ou saw her emotion.... [S]he said she was about seven or eight at that time. That was around, I believe, the dates of ’89 and ’92, I think she said.” Defendant appears to suggest that because the prosecutor referred to 1989, which is about when the molestation at the grandmother’s house occurred, he was somehow inviting the jury to convict him of Count 3 on the basis of that incident. Wrong! Not only would such a suggestion directly contradict what he had just told the jury, i.e., to base Count 3 on the van molestation, but it was clear that by referring to the 1989 incident, he was suggesting that the jury consider it, along with all the other acts of molestation the other victims testified to, in determining defendant’s intent at the time of the Count 3 molestation.
Next, the defendant points to a remark made by the prosecutor while discussing with the jury the People’s obligation to prove that prosecution of this count occurred within the Statute of Limitations established by section 803, subdivision(f)(1) in that Jane Doe No. 3 reported the abuse in June 2007, the complaint was filed within one year of the report, sections 800 and 801 Statutes of Limitations had expired, the charged crime involved substantial sexual conduct and there was independent evidence clearly and convincingly corroborating Jane Doe No. 3’s allegations. At the time, section 800 provided for a six year statute of limitations for offenses punishable by a prison term of eight years or more and 801 provided for a three year limitations period for all other crimes. Section 801.1, subdivision (b) provided a limitations period of 10 years for this charged crime. The prosecutor said, “The Complaint was not filed within three, six or ten years of the crime. You remember [Jane Doe No. 3] talked about it, ’89 and ’92. Again, she was about seven or eight.... [I]t was not filed within three, six or ten years, and the[re is] independent evidence that clearly and convincingly corroborates the [Jane Doe No. 3’s] allegations.” While the prosecutor reference to 1989 and his use of the word, “and” may have been somewhat ambiguous, he probably included it because he wanted the jury to consider Jane Doe No. 3’s testimony about the molestation at her grandmother’s house to corroborate her testimony about the charged offense. The prosecutor’s reference to the facts that the victim was seven or eight at the time, and his use of the word “it” implying a single crime and not two, made clear that he was referring to the van incident. In no reasonable interpretation of this remark can it be said that the prosecutor was inviting the jury to convict defendant of Count 3 on the basis of the earlier molestation.
In his argument to the jury, defense counsel did not address this count, or Count 1, making it appear as though he was conceding defendant’s guilt of these two offenses. As a consequence, the prosecutor had no reason to address Count 3 further in his final argument.
Disposition
The trial court is directed to amend the determinate abstract of judgment to show that the term for Count One is the upper term and the term for Count 3 is one-third the midterm, not a consecutive full term as that abstract currently states. The court is further directed to check the box for section 667.61 at the bottom of the indeterminate abstract of judgment. In all other respects, the judgment is affirmed.
We concur: McKINSTER J., MILLER J.
Defendant mentions a number of other facts involved in Cicero which he asserts distinguishes it from this case, i.e., that Cicero later held the girls at the waist when he sat them down, asked both for a kiss, then tried to “French kiss” one of them. However, these facts followed the charged feeling of the girls’ crotches and were, therefore, not relevant to changes at issue and thus were not discussed by the appellate court in connection with the sufficiency of the evidence of force.