Opinion
E032388.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. JESUS CEDENO CURIEL, Defendant and Appellant.
Kristine M. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and James D. Dutton, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of forcible sodomy on a child under the age of 14 and more than 10 years younger (Pen. Code, § 269, subd. (a)(3)) (count 1); lewd and lascivious act, by force, upon a child under the age of 14 (§ 288, subd. (b)(1)) (count 2); and lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a)) (count 3). The jury also found true that in the commission of count 2 defendant had caused bodily injury to the victim (§ 1203.066, subd. (a)(2)) and that defendant had engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). As a result, defendant was sentenced to a total term of 15 years to life in state prison. On appeal, defendant contends (1) there was insufficient evidence of force to sustain his convictions on counts 1 and 2, and (2) the trial court erred in instructing the jury with CALJIC No. 17.41.1. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Defendant and Stephanie C., the victims mother, were lovers for about seven years. They lived together along with Stephanies four children and two brothers. The victim, who was seven at the time of the incidents, referred to defendant as "Dad."
On August 31, 2001, about 7:30 to 8:00 p.m., Stephanie left the residence to go to a bachelorette party at a nightclub. The victim, her brothers, her uncle, and defendant stayed at home.
After Stephanie left, the victim watched television in the living room, laying on the sofa with her head on defendants lap. When she fell asleep, defendant carried her lengthwise from the living room, down the hallway, to his and Stephanies bedroom. He placed the victim on her stomach on top of the covers on the bed. The victim was wearing a nightgown and underwear. Defendant initially watched wrestling on the television in the bedroom. He then lowered the back of the victims underwear, got up on his knees, and put his penis inside the victims rectum. Defendant then moved the middle of his body for about a minute. He then "pulled it out" and "put his hands up." The victim explained that he put his "thing" in the hole of her butt, inside for a minute, and it hurt. During this time, defendant was on his knees and the victim was pretending to be asleep.
At trial, the victim testified that defendant did not put his penis inside her anus, but rather placed it "on her butt." She also stated that defendants penis was soft; that he placed it against her bottom for "ten or 30 seconds," and that the incident was not painful.
After the sexual assault, the victim got up from the bed and went to use the bedroom bathroom. Her bottom was still hurting. The victim did not see any substance on the toilet paper when she wiped and did not believe anything came out of defendants penis. Defendant, meanwhile, put on his shorts, sat on the front of the bed, and watched television. When the victim exited the bathroom, defendant asked her to give him a hug. She complied, even though she did not want to after what defendant had done to her. The victim then unlocked the door to the bedroom, opened it, and returned to the living room on the sofa bed. The victim eventually fell asleep on the sofa bed in the living room.
Stephanie returned from her bachelorette party at 1:00 a.m. on September 1, 2001. When she went to bed, she saw defendant sleeping there and noticed a strong odor of alcohol emanating from him.
The victim reported the molestation to her mother the morning of September 1. As her mother was leaving for work, the victim stated, "My dad put . . . his thing in my butt." Stephanie asked the victim to go inside the house and then spoke to defendant outside by the car. Later that day, Stephanie took the victim to the hospital. She also called defendant and told him to pack his things and get out.
Shortly after 3:00 p.m. on September 1, 2001, at the Riverside County Regional Medical Center, forensic sexual assault nurse, Patricia Forst, examined the victim. The victim reported to Nurse Forst and Deputy James Peters that her dad had put his "thing" in her "butt." The medical examination revealed abrasions and small lacerations around the anterior and posterior portions of the victims rectum. Nurse Forst opined that the injuries, which could have been caused by "[f]riction and sheer force," were consistent with the victims claim of anal penetration.
The victim also reported that on a previous occasion, about two weeks before the sodomy incident, defendant had placed his hand on her bottom, while the two of them were awake and laying on the sofa bed. Specifically, defendant put his hand inside her underwear and squeezed her bottom. The victim felt "[f]unny" when defendant squeezed her and reported the incident to her mother. When Stephanie talked to defendant about the incident, he claimed that he did not remember. At trial, he stated that he thought it was Stephanies bottom and accidentally grabbed it over the victims clothing.
On October 29, 2001, after defendant was advised of and waived his constitutional rights, defendant informed the police that he was drinking heavily on the night of the incident and that he did not remember many of the events of the evening. He also stated that "if something had happened, it did . . . ."
At trial, defendant testified on his own behalf and claimed that his memory was "black[ed ]out" from consuming an enormous amount of alcohol. He stated that by 10:00 p.m. he had consumed approximately 25 to 30 beers and that, after the victim and her brothers went to bed about 10:30 or 11:00 p.m., he continued to drink more beer with Stephanies brother and his friend. He remembered walking into his and Stephanies bedroom, falling on the bed and passing out.
He also testified that "I know that something might have happened, but I dont remember what." He did not believe he penetrated the victims anus; however, he could not be certain because he could not remember. He also claimed that when he drank, it was difficult for him to get an erection; and that he had never been alone with the victim, even when babysitting.
After the defense called Stephanie as a witness, Stephanie testified that Nurse Forst told her that the small abrasions could have been caused by anything, like playing too rough, riding a bike, or wiping herself. On cross-examination, during the Peoples case-in-chief, Nurse Forst stated that she did not recall telling Stephanie that the abrasions could have been caused by toilet paper.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant argues the forcible sodomy (count 1) and forcible lewd act (count 2) convictions cannot be sustained because there is insufficient evidence that defendant used more force than necessary to accomplish the acts themselves. We disagree.
In connection with those counts, the trial court instructed the jury according to CALJIC Nos. 10.42 [Lewd Act With a Child Under Fourteen Years - Force or Fear] and 10.55 [Aggravated Sexual Assault of a Child]. The trial court further instructed the jury that "[t]he term force means physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself."
CALJIC No. 10.42, as given to the jury in this case, states: "Every person who willfully commits any lewd or lascivious act upon the body or any part or member thereof of a child under the age of 14 years, by the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the child or another person and with the specific intent of arousing, appealing to or gratifying the lust or passions or sexual desires of that person or the child, is guilty of the crime of a lewd act with a child by force or fear in violation of Penal Code Section 288(b)(1)."
CALJIC No. 10.55 as given in this case states: "Every person who commits any of the following acts upon a child whos under 14 years of age and ten or more years younger than the person is guilty of the crime of aggravated sexual assault . . . . [¶] In order to commit this crime, each of the following elements must be proved: One, a person committed an act of sodomy by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the alleged victim. . . ."
In the trial court, defendant challenged the sufficiency of the evidence to support a finding of force by moving to set aside the verdicts or to reduce the offenses to the lesser included offenses. At the sentencing hearing on September 11, 2002, after the trial court heard arguments from counsel, the court denied the motions, finding sufficient evidence of force. Defendant once again claims on appeal that the evidence was insufficient to support the force element as to counts 1 and 2.
Our review of any claim of insufficiency of the evidence is limited. "In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, 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." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Bolin (1998) 18 Cal.4th 297, 331.)
Given this courts limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence of force to sustain his convictions on counts 1 and 2. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U. S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.) The standard of review applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Here, the record discloses ample evidence to support the jurys verdict that defendant used force to accomplish counts 1 and 2.
In People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), the Court of Appeal held, "[I]t is incumbent upon the People to prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. [Citation.] In the instant case, that requirement is doubly met: defendants acts of picking the girls up and carrying them along were applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches. [¶] . . . [¶] . . . [The requirement of] `force plays merely a supporting evidentiary role, as necessary only to insure an act of [molestation] been undertaken against a victims will . [¶] . . . `[F]orce should be defined as a method of obtaining a childs participation in a lewd act in violation of a childs will . . . ." (Id. at pp. 474-476.)
In the years since Cicero, force has been found in many circumstances. In People v. Pitmon (1985) 170 Cal.App.3d 38, the Court of Appeal found sufficient evidence of force where the defendant held an eight year olds hand to his penis while moving the hand to masturbate himself and slightly shoving the victims back while having the latter orally copulate him. (Id. at p. 48.) In People v. Mendibles (1988) 199 Cal.App.3d 1277, force was found when the victims tried to get away from the defendant but were pulled back, and their heads were pulled forward so they could orally copulate him. (Id. at p. 1307.) In People v. Bergschneider (1989) 211 Cal.App.3d 144, Division One of this court found force when the defendant pushed away the hands of the slightly retarded 14-year-old victim when she placed them at her vagina to prevent the defendant from having intercourse with her. It was also found when she unsuccessfully tried to push the defendants head away while he was orally copulating her. (Id. at p. 153.) In People v. Babcock (1993) 14 Cal.App.4th 383, the Court of Appeal upheld the jurys finding of force where the defendant took the seven-year-old victims hand and "made [her] touch him"; after the eight-year-old victim said no to the defendants request that she touch his penis, he grabbed her hand and put it on his penis, and when she tried to pull away, he pulled it back. (Id. at p. 385, 388.) In People v. Bolander (1994) 23 Cal.App.4th 155, the defendant pulled the victims shorts down. The victim tried to pull them back up, but the defendant bent him over, inserted his penis in the victims anus, and pulled the victim toward him by the waist. (Id. at p. 158.) The appellate court held: "[D]efendants acts of inhibiting Ryan from pulling his shorts back up, bending Ryan over, and pulling Ryan towards him constitute force within the meaning of subdivision (b) of section 288, in that `. . . defendant applied force in order to accomplish the lewd acts without the victims consent. [Citation.]" (Id. at p. 159, quoting People v. Neel (1993) 19 Cal.App.4th 1784, 1790.) In People v. Young (1987) 190 Cal.App.3d 248, the defendant told his daughter to get in bed. He put her on top of him, pulled down her pants, and penetrated her with his finger and with his penis. (Id. at pp. 252, 258.) The court held: "[S]ubstantial evidence was presented . . . which would support a finding by the jury that defendant accomplished an act of sexual intercourse with [the victim] by means of force and against her will." (Id. at p. 258.) "[S]ome force was used by defendant in both the penetration and the physical movement and positioning of [the victim]s body in accomplishing the act." (Ibid.)
We note, however, the Young court nevertheless went on to reverse the rape charge. It reasoned that, although there was sufficient evidence of force, there was insufficient evidence of fear. (People v. Young, supra, 190 Cal.App.3d at pp. 258-259.) "From this record, we are unable to state with any degree of certainty which theory the jury may have used to find defendant guilty of rape. Reversal is therefore required." (Id. at p. 259, fn. omitted.)
Under these cases, there was ample evidence of force here. Defendant carried the victim lengthwise in his arms from the living room, down the hall, into his bedroom. Thereafter, before or after he placed the victim on his bed, stomach down, on top of the covers, he closed and locked the bedroom door. He then lowered the victims underwear and inserted his penis into her rectum. The physical act of carrying the victim, closing and locking the bedroom door, placing her stomach down on the bed, and lowering her underwear enabled defendant to perform his sexual act on the victim. Furthermore, it is reasonable to infer that defendant took further actions to maneuver the victim into the proper position to effectuate the sexual act. Defendant was in a kneeling position, and at the time he withdrew his penis from the victims rectum, he raised his hands. From these facts, the jury could have reasonably inferred that defendant had to manipulate the victims body to accomplish the sodomy. (See, e.g., People v. Alvarez (2002) 27 Cal.4th 1161, 1182.)
We reject defendants contention that there was no evidence that defendant carried the victim into the bedroom. The victim clearly stated in her videotaped interview, which was played for the jury, that defendant carried her lengthwise into the bedroom.
Defendant relies on People v. Kusumoto (1985) 169 Cal.App.3d 487 to support his position that the facts of this case do not support his convictions for forcible sodomy (§ 269, subd. (a)(3)) and lewd act by force (§ 288, subd. (b)). In Kusomoto, the victim was asleep when the defendant put his hand into her shorts and placed his finger into her vagina. A jury convicted the defendant of rape by foreign object, which required in part that the act be "`accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." (Id . at p. 490, italics omitted, quoting § 289, subd. (a)(1).) Applying the statutory language, the court concluded that, although the defendant unquestionably perpetrated an act to which the victim did not consent, the requirement of "force" was not met because the victim was asleep, and the force used by the defendant was only that necessary to accomplish the act itself. (Id. at p. 494.)
Defendant argues by analogy that, because the victim pretended to be asleep when he touched her, he did not have to use a force other than that necessary to accomplish the lewd act to overcome her will. However, Kusumoto is factually distinguishable from this case. There the victim was actually asleep, and thus there was no basis for a reasonable jury to conclude that the defendant overcame her will. By contrast, the fact that the victim pretended to be asleep (rather than willingly participating in the encounter) supports a reasonable inference that defendant in fact overcame her will. Further, defendants manipulation of the victims underwear and body involved a greater degree of force than that necessary to accomplish a lewd touching, which was all that was involved in Kusumoto.
Although the victim stated that she was asleep when defendant carried her to the bedroom, it was apparent that she was not actually asleep, because she demonstrated twice during the videotaped interview the manner in which defendant carried her.
Based on the foregoing, we conclude substantial evidence in the record supports the jurys finding that defendant committed a forcible lewd act and forcible sodomy on the victim. Defendant here carried the victim, while she pretended to be asleep, into his bedroom, closed and locked the door, lowered her underwear, and inserted his penis into her rectum. After being properly instructed on the definition of force, the jury convicted defendant of counts 1 and 2, implicitly concluding that his conduct involved force substantially different than that necessary to commit the lewd act of a mere touching and sufficient to overcome the victims will. Whether a defendant used substantially different force than that required for the lewd act itself is generally an issue for the jury to resolve. (People v. Babcock, supra, 14 Cal.App.4th at pp. 386, 388.) Under these circumstances, we must uphold the jurys findings on appeal. (Id. at p. 388.)
B. CALJIC No. 17.41.1
Defendant also contends the trial court erred in instructing the jury with CALJIC No. 17.41.1 because it violates his right to a fair trial, it threatens the privacy and impartiality of jury deliberations, it impinges on his right to a unanimous verdict, it has a chilling effect on the jurors, and it is essentially an antinullification instruction which violates his right to an impartial jury.
CALJIC No. 17.41.1, as given to the jury in the instant case, states as follows: "The integrity of a trial requires that the jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the court of the situation."
We reject defendants contentions. Substantially similar and related arguments were considered and rejected by our Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, 442-445 (Engelman). Accordingly, we reject defendants constitutional challenges.
We observe, however, that the Supreme Court, exercising its supervisory powers, directed that the instruction not be given in future trials. (Engelman, supra, 28 Cal.4th at p. 449.) It reasoned that the instruction creates an inadvisable and unnecessary risk "of intrusion upon the secrecy of deliberations or of an adverse impact on the course of deliberations." (Id. at p. 445.) But here, as in Engelman, there is no indication that CALJIC No. 17.41.1 affected the jurors deliberations in any way. Thus, defendant has not shown that the instruction violated his constitutional rights in any of the claimed respects.
We note that defendants trial preceded the decision in Engelman, which was decided on July 18, 2002. Defendants jury trial commenced on June 11, 2002, and the jury returned its guilty verdicts on all three counts on June 18, 2002.
Defendant also argues that the instruction violated the jurors freedom of expression. We may assume, without deciding, that defendant has standing to raise this argument. (Cf. Powers v. Ohio (1991) 499 U.S. 400, 410-415.) The jurors right to freedom of speech, however, must be balanced against the right to a fair trial. (Allegrezza v. Superior Court (1975) 47 Cal.App.3d 948, 951-952; Younger v. Smith (1973) 30 Cal.App.3d 138, 159-164; see San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 510, fn. 12.) For example, jurors do not have the right, as a matter of freedom of speech or otherwise, to inject outside influences into their deliberations. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 351.) Jurors likewise do not have the right in their deliberations to disregard the law. (See People v. Cline (1998) 60 Cal.App.4th 1327, 1335 .) CALJIC No. 17.41.1 substantially promotes the right to a fair trial, which outweighs any incidental chilling effect on the jurors already restricted freedom of speech during deliberations.
We conclude the trial court did not err by giving CALJIC No. 17.41.1.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J. and McKINSTER J.