Opinion
E049953
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. J. LEE BARNARD, Defendant and Appellant.
Eric R. Larson, 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, Lilia Garcia, and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF025350)
OPINION
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.
Eric R. Larson, 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, Lilia Garcia, and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant J. Lee Barnard (defendant) guilty of 24 counts of violating Penal Code section 288, subdivision (a) by committing a lewd act on a child under 14 years of age (counts 1 through 24), as lesser included offenses to the charged crime of violating Penal Code section 288, subdivision (b)(1), and 12 counts of committing a lewd act on a child under 14 years of age by means of force, violence, or duress in violation of Penal Code section 288, subdivision (b)(1) (counts 25 through 36). The trial court sentenced defendant to serve a total term of 36 years in prison. Defendant appeals from the judgment, contending first that the evidence is insufficient to support his convictions on counts 25 through 36 because as a matter of law the evidence does not establish duress. Next, defendant contends the term "hardship" used in the definition of duress is unconstitutionally vague. Finally defendant contends the trial court erred by instructing the jury that consent is not a defense to the charge that defendant committed a lewd act on a child under the age of 14 by force and duress.
We conclude, as we explain below, that defendant's claims are meritless. Therefore we will affirm.
FACTS
The facts are undisputed. Jane Doe I, the victim of all 36 counts, is defendant's daughter, born in June 1990. When Jane Doe I was about nine years old, defendant would ask her to give him a massage. Defendant would lie face down on the floor and Jane Doe I would sit on his back to rub his shoulders. Sometimes defendant would roll over during the massage and place his hands on Jane Doe I's buttocks. The massages took place at various locations in the house, but usually in the living room of the family home. Jane Doe I testified that although she and defendant wore clothes during the massages, on numerous occasions defendant would ask her to remove all of her clothing except for her underwear, or to put on a bathing suit, before giving him a massage.
Jane Doe I was 11 or 12 years old when she and her family, including defendant, moved to Temecula where they lived for three years. During this time defendant retired from his job and regularly stayed at home. Jane Doe I testified that after defendant retired, he asked her at least two times a week to give him a massage when she returned home from school. Defendant would be clothed during the massages. He would start out lying face down on the floor. After Jane Doe I massaged his shoulders, defendant would turn over on to his back, grab her hips, and grind his penis, which sometimes was hard, against her vagina. During the time the family lived in Temecula, defendant engaged in this conduct with Jane Doe I more than once each week and at least once a month. Jane Doe I also testified that once defendant tried to kiss her after he had her sit on the washing machine and another time defendant came into her bedroom naked, got into bed with her, and lay on top of her for a few minutes before he left the room.
Jane Doe I eventually told her sisters and mother what defendant was doing. Jane Doe I's half sister, Jane Doe II, is defendant's daughter. Jane Doe II, who is 17 years older than Jane Doe I, testified at trial that when she was about six years old, defendant had her touch his penis over and under his clothes. When she was eight or nine years old, defendant had her massage his back, front torso, and penis. Sometimes defendant would position Jane Doe II over his penis and rotate his hips against her. Defendant was in United States military service at the time. When Jane Doe II was 12 years old, defendant divorced her mother and moved to the Philippine Islands with Jane Doe II and her siblings. During the time she lived with defendant in the Philippines, defendant "dry humped" Jane Doe II by lying on top of her when she and he both were fully clothed and then moving his body as if he were having sex with her. Another time defendant took his clothes off and partially inserted his penis into her before Jane Doe II pushed him away. Jane Doe II reported defendant to the military police which resulted in a court martial to which defendant eventually entered a guilty plea.
Defendant testified at trial. He stated that he could not recall asking Jane Doe I to give him a massage before the family moved to Temecula. After moving to Temecula but before he retired, i.e., between June 2001 and June 2003, he only asked Jane Doe I a few times to give him a massage. After June 2003 when he retired, defendant more frequently asked Jane Doe I for a massage. Defendant offered explanations for why during those massages after June 2003 he would roll on to his back (so Jane Doe I could more easily rub the top of his shoulders), why he would ask her to remove her clothes (because what she was wearing, such as pants with metal studs, caused him pain), and why he would grab her hips or buttocks (to move her off the incision from his 1995 abdominal hernia surgery). Defendant also did not deny the incident in which he was naked and lay on top of Jane Doe I in her bed. Defendant told the jury that he woke up in bed naked with Jane Doe I and immediately left the room. Defendant claimed he did not know how the incident occurred and explained that he had experienced incidents of sleep walking before the incident in question. Defendant testified that he never did anything with Jane Doe I with the intent of sexually arousing himself or her, and he denied sexually molesting her.
Additional facts pertinent to our resolution of the issues defendant raises on appeal will be recounted below.
DISCUSSION
We first address defendant's challenge to the sufficiency of the evidence.
1.
SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence was insufficient to prove he committed the lewd acts alleged in counts 25 through 36 by force, violence, duress, menace, or fear of immediate and unlawful injury, and therefore the evidence does not support the jury's verdicts finding him guilty on those counts of violating Penal Code section 288, subdivision (b)(1). Defendant acknowledges that the pertinent evidence is undisputed and urges us to conclude the evidence is insufficient as a matter of law. We decline. Instead we conclude, as we explain below, that the evidence supports the jury's verdicts.
Unless indicated otherwise all further statutory references are to the Penal Code.
A. Standard of Review
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence— evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
B. Analysis
To prove a violation of section 288, subdivision (b)(1), the evidence must show that the defendant committed a lewd act on a child under 14 years of age by "use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." The prosecutor's theory in this case, as disclosed in his closing argument, was that defendant committed each of the charged acts by the use of duress. The prosecutor told the jury during closing argument, that duress is a "direct or implied threat of force, violence, danger, hardship, or retribution that causes someone to do or submit to something that they would not otherwise do." More particularly, as set out in CALCRIM No. 1111, and as the trial court instructed the jury, the direct or implied threat must be such as to cause "a reasonable person to do or submit to something that he or she would not otherwise do or 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." Duress in this context is "'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.' [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1004 (Leal), italics omitted.)
The evidence in this case consists of Jane Doe I's testimony that she agreed to give defendant massages and submit to his acts of pelvis grinding because if she refused defendant would give her extra chores, not allow her to watch television, and deny permission for her to see her friends. Jane Doe I also testified that although she did not want to give defendant massages, she did so because she "always did what [her] dad told [her]. He -- just growing up, he was pretty much just the boss of everything. Like whatever he said went. And that's just the way it was . . . ." One time Jane Doe I said no when defendant asked her to give him a massage and she "did get grounded for it, and [she] didn't do anything for a couple weeks." Jane Doe I testified that, although she did not understand why, she was afraid of defendant, in part because of his size. When asked if she felt that if she did not go along with "these massages" she would get in trouble, Jane Doe I answered, "Of course."
Defendant apparently is six feet three inches tall and weighs about 185 pounds.
The noted evidence is sufficient to support the jury's implied finding that defendant committed the acts charged in counts 25 through 36 by the use of duress, namely an implied threat of hardship or retribution if Jane Doe did not capitulate. Defendant, as Jane Doe I's father, was in a position to punish her by grounding her, which he had done once in the past when she declined his request for a massage. Counts 25 through 36 pertain to the months in which Jane Doe was 13 years old. We cannot say as a matter of law that a reasonable young teenager in Jane Doe I's place would not capitulate when faced by an express or implied threat of retribution or punishment, in the form of being grounded, from her father who is much larger than she in physical stature, and has established himself in the family as "the boss of everything," a person who must be obeyed. From that evidence the jury could find that Jane Doe suffered hardship and feared retribution from her father. That evidence not only supports the jury's verdicts on the noted counts but also explains why the jury distinguished those counts from counts 1 through 24 on which they found defendant guilty of the lesser offense of committing a lewd act on a child under the age of 14 in violation of section 288, subdivision (a).
2.
CONSTITUTIONALITY OF STATUTE
Defendant contends the term "hardship" used in the definition of duress is vague and ambiguous and renders section 288, subdivision (b)(1) unconstitutional. We disagree.
The term "hardship" is not included in the statute, as the Attorney General points out. Instead, "hardship" appears in the jury instruction that defines the statutory term "duress." We agree with the Attorney General's assertion that defendant's issue is with the jury instruction, not the statute. Because defendant did not object to the jury instruction in the trial court, he has forfeited the claim on appeal. (People v. Valdez (2004) 32 Cal.4th 73, 113.) Defendant's claim also fails on the merits.
In Leal, the Supreme Court effectively addressed and rejected the claim defendant asserts in this appeal. As noted in Leal, "The term 'duress' as used in section 288, subdivision (b)(1), was first defined in People v. Pitmon [(1985)] 170 Cal.App.3d 38, 48. The Court of Appeal in Pitmon observed: 'Duress, as an element of a criminal offense has not been previously given legal definition.' [Citation.] The court in Pitmon rejected the argument that it should adopt the definition used for 'duress' as a defense to a criminal charge, which 'is established only if one acted out of fear of imminent death or great bodily harm,' noting that 'the purpose served by the concept of "duress" as a defense is manifestly different from that served by inclusion of the term as an element of a sex offense against minors.' [Citation.] Instead, the court relied in part on the dictionary definition of 'duress' and found 'duress as used in the context of section 288 to mean 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.' [Citation.]" (Leal, supra, 33 Cal.4th at p. 1004, italics omitted.)
The Pitmon definition of "duress" "has been consistently used and has been incorporated in the standard jury instruction for section 288, subdivision (b)(1). [Citation.]" (Leal, supra, 33 Cal.4th at p. 1009.) "In order to define 'duress' for purposes of section 288, subdivision (b)(1), the court in Pitmon recognized that 'courts are bound to give effect to statutes according to the usual, ordinary import of the language used' [citations], and consulted Webster's Third New International Dictionary, which currently includes the following definition of duress: 'restraint or check by force . . . stringent compulsion by threat of danger, hardship, or retribution . . . .' (Webster's 3d New Internal Dict. (2002) p. 703, italics added.) We agree. 'Courts frequently consult dictionaries to determine the usual meaning of words.' [Citation.]" (Ibid.)
In Leal, amicus curiae argued "that including 'hardship' in the definition of 'duress' would make 'duress' overly vague. But the long application of the Pitmon definition has not demonstrated this to be the case. Only one published decision has applied the term 'hardship' in this context and no issue was raised that the term was vague. In People v. Bergschneider [(1989)] 211 Cal.App.3d 144, the defendant forced his 14-year-old, 'slightly mentally retarded' [citation] stepdaughter to have sex with him in part by threatening to put her 'on restriction' if she refused, which meant to the victim that 'she couldn't go anywhere or spend the night with anyone.' [Citation.] The Court of Appeal held: 'The threatened restriction constitutes "hardship or retribution" within the meaning of Pitmon. It was for the jury to determine whether a reasonable adolescent in [the victim's] position would have been coerced.' [Citation.]" (Leal, supra, 33 Cal.4th at pp. 1009-1010.)
To support his claim that the term "hardship" renders the definition of duress unconstitutionally vague defendant relies on the dissenting opinion of Justice Kennard in Leal, supra, 33 Cal.4th at pages 1012-1013. We are not at liberty to adopt the dissenting view. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions of California Supreme Court "are binding upon and must be followed by all the state courts of California"].) Instead we are bound by the majority opinion in which six justices of the California Supreme Court rejected the claim, asserted by amicus curiae, that inclusion of the term "hardship" would render the definition of "duress" vague. Accordingly, we reject defendant's constitutional challenge in this appeal. (Ibid.)
3.
INSTRUCTIONAL ERROR
Defendant's final claim is that the trial court erred by instructing the jury that consent is not a defense to a violation of section 288, subdivision (b)(1). The consent language is included in CALCRIM No. 1111, which as given by the trial court in this case, told the jury with respect to the crime of violating section 288, subdivision (b)(1), "It is not a defense that the child may have consented to the act."
The Supreme Court resolved this issue in People v. Soto (2011) 51 Cal.4th 229 in which it held that the victim's consent is not a defense to the crime of violating section 288, subdivision (b)(1) by committing a lewd act on a child under the age of 14 by use of force, violence, duress, menace, or fear of immediate and unlawful injury on the victim. (Soto, at p. 233.) Accordingly, we must reject defendant's challenge to the trial court's jury instruction to that effect in this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Hollenhorst
Acting P.J.
King
J.