Opinion
H024686.
10-16-2003
THE PEOPLE, Plaintiff and Respondent, v. LIEM THANH DANG, Defendant and Appellant.
A.
INTRODUCTION
A jury convicted defendant Liem Thanh Dang of one count of forcible lewd or lascivious act upon a child. (Pen. Code, § 288, subd. (b).) The jury found him not guilty of aggravated sexual assault (rape) of a child under 14 (§ 269, subd. (a)(2)) and could not reach a verdict on the only remaining count, which charged him with digital penetration of the victim. (& sect; 269, subd. (a).)
Hereafter, all statutory references are to the Penal Code.
The trial court determined that defendant was ineligible for probation pursuant to section 1203.066, subdivision (a)(1) and sentenced him to the aggravated term of eight years in prison.
On appeal defendant contends: (1) the prosecutor engaged in misconduct during closing argument; (2) the jury was improperly allowed to consider threat of "hardship" as a form of duress; (3) the evidence is insufficient to support a finding of duress; and (4) the trial court failed to exercise its discretion in denying probation. We reject these arguments and affirm.
B.
FACTS
At the time of the events alleged in the information (July through October 1998) the victim was six years old. Victims father and mother were divorced. Victim lived with her mother during the week and stayed with her father on the weekends.
Defendant was victims fathers cousins husband, although victim referred to him as her uncle. During the relevant time period defendant and his wife lived in the second-floor bedroom of a two-story house. They rented the rest of the house to other people. Victims father rented the converted garage. Defendant moved out of the upstairs bedroom in 1999 and thereafter stayed at the house off and on, sleeping on the couch in the living room whenever he did so.
On January 6, 2000 victim told her mother that sometimes when she visited her fathers house defendant would try to put his "weewee" in her "weewee." Victim said that she was really scared and did not want to go to her fathers house because "she was threatened." Victims mother called the police department and Officer Cassondra Lansberry arrived and interviewed victim.
Victim explained to Lansberry that sometimes when she was visiting her father he would be called in to work. On those occasions he left victim in the care of defendant. Victim said that whenever this happened defendant "tricked" her by calling her upstairs to his bedroom to play a video game but when she went upstairs defendant would put a "suck movie" in the video player. Victim explained that a suck movie was one where the boy did "bad things" and put his "dick" on the girls "thingy." After the movie defendant would put his "dick" on victims "thingy" then in her "thingy." Sometimes he would touch her genitals with his fingers. Sometimes the touching was over the clothes, sometimes on her bare skin. She reported that the touching hurt, that it was hot and it burned, like hot water.
Officer James Hunt interviewed victim at the childrens interview center. The jury viewed the taped interview during trial. In the course of the interview victim repeated her allegation that defendant "put the dick on me" after he showed her the "suck" movie. Victim again reported that her uncle had "tricked" her into coming up to his room and that this happened when nobody else was home. Victim said she asked defendant, "Uncle Liem, what the heck are you doing on me?" She said that these things happened "a lot." Each time Hunt encouraged victim to explain what her uncle had done to her she cried. When Hunt first asked victim to tell him what defendant had done she began to sob and said she did not want to talk about it. She then said "If I dont, if I dont get my mom back from me, how can I, uh, what do, I want your umm, people to get my uncle, because hes a bad bu-, guy." When Hunt asked victim why she was afraid of defendant victim responded, "Hes gonna do the suck thing on me."
Victim gave similar testimony at trial. She said that when her father left her in defendants care defendant would call her up to his room to play video games, that he would put "[b]ad movies" in the video player, and that he would touch her "private." The touching hurt and she did not like it. When defendant played the video she covered her eyes and ran downstairs and locked herself in her fathers room.
Defendant told victim "[a] lot of times" not to tell anybody about what he did to her. Victim was unable to say what, if anything, would happen if she did tell. However, victim also testified that she did not reveal defendants conduct any sooner than she did because she was "scared that I was going to go away from my mom and I cannot see her." The reason victim finally chose to reveal the conduct was because "I couldnt stand it and my head was like getting exploded and my face was getting red. And when I tried to do my math I cant do it and I keep on getting it wrong. [¶] . . . [¶] I always hear my teacher say when you have something that what happened you cannot hold it you have to tell an adult."
Victims fathers testimony established that he indeed had left victim in defendants care on several occasions between July and October 1998. The sexual assault examiner conducted a physical examination of victim on January 10, 2000, a few days after victim first disclosed the molestation and over a year after the conduct is believed to have occurred. The examiner could not find any definite physical evidence of penetrating trauma but could not rule out the possibility of sexual contact in the past.
C.
ISSUES
1. Did the prosecutor engage in misconduct during closing argument?
2. Did the trial court err in defining duress as including the threat of "hardship?"
3. Was there sufficient evidence to support a finding that defendant accomplished the lewd act by means of duress?
4. Did the trial court have discretion to grant probation?
D.
DISCUSSION
1. Prosecutorial Misconduct
Defendant contends that the prosecutor engaged in misconduct during closing argument. Because the remarks in question were made during rebuttal we first quote the relevant portion of defense counsels argument:
"[Defense Counsel]: The officers had access to the house [in which defendant had been living at the time of the molestation]. One thing that you should consider is the fact that we have no testimony that any pornographic material was ever found in that house. . . . [¶] . . . [¶]
"So when we look at [victims] narrative about these pornographic materials, again theres a question about that. . . . No testimony from [victims father] who has absolutely no reason to protect [defendant]. He had access to [defendants] things, he lived in the home with [defendant] for some period of time. When [defendant] moved out of the home he left many of his belongings behind. No testimony that any pornography was ever found. No testimony from any police officer that the house was searched and pornography was recovered.
"And just to go ahead and cut off the argument, well, maybe he hid it when he found out about it. The police officers went to [victims] house on January 5th [sic], no charges had been filed on January 5th [sic], police officers made contact with [victims father], he said the police came and told him your daughter makes these allegations, so police officers know where to go and what to do relatively quickly. Theres no evidence that [defendant] would have even had any time to do anything with these movies. And Im just saying that because I want to cut off that argument in case its made. No evidence of a search and the finding of any materials. No evidence that in 1998, 1999 or 2000, before the allegations were made, that any pornographic material was ever found in the home."
In rebuttal, the prosecutor responded:
"[Prosecutor]: [Defense counsel] argued there was no pornography in the house where the molestation occurred. The police cant go out and just randomly search the houses. She knows that they need a search warrant. And for an officer to get a search warrant one of the requirements-[whereupon defense counsel interposed an objection that was overruled]- . . . One of the requirements, I dont presume to be an expert in search warrants, one of the requirements for an officer to get a search warrant is they have to have relatively recent knowledge. They have to say, gee, within typically about the last 10 days, fresh knowledge, we have reason to believe we might find pornography there. In this case my recollection of the evidence, and again if Im wrong overrule me, but my recollection is that the evidence is that the defendant had long since moved out of the house. And he may have left some belongings behind, but chances are he knew what hed been doing, he wasnt going to leave behind pornography. Its the kind of things you dont go advertise to other members of the household. You dont leave it out in a public place. When he left he probably would have taken it."
Defendant argues that the prosecutors remarks were misconduct because they suggested personal knowledge, they misrepresented the truth, they improperly vouched for victims credibility, and they involved speculation as to what an uncalled witness would have said. We disagree.
The "`"`prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature."" (People v. Hill (1998) 17 Cal.4th 800, 819.) "What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant. [Citation.] When, as here, the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (People v. Benson (1990) 52 Cal.3d 754, 793.)
To determine how the remarks may have affected the jury we must consider the remarks in the context in which they were made. (People v. Hill (1967) 66 Cal.2d 536, 560.) Here it is important that defense counsel first raised the question of why no pornographic videotapes were introduced into evidence. In fact, defense counsel made quite a point of it during her closing argument. Our Supreme Court has held that a prosecutor is justified in making comments in rebuttal so long as the comments are fairly responsive to argument of defense counsel and are based on the record. (Ibid.) For example, it is proper for a prosecutor to explain to a jury why the state had not brought earlier criminal charges where his remarks were made to refute a defense argument that the state had not done so because it felt that it could not substantiate them. (Id. at pp. 560-561 citing People v. Rosoto (1962) 58 Cal.2d 304, 364-365.)
In the present case the prosecutor was entitled to counter defense counsels efforts to implant in the jurors minds the impression that either there was no videotape or that the police investigation was shoddy. It was not misconduct to explain that defendant was no longer living in the house by the time victim made her disclosure, which could explain why there was no search warrant or why, if there was one, no videotapes were found. The prosecutors discussion of the requirements for a search warrant was not impermissible comment on a subject outside the record. The fact that a search warrant may only be obtained under specific circumstances is common knowledge even if the specific circumstances are not. Nor can the remarks fairly be construed as implying that the prosecutor had personal knowledge of evidence that was not produced at trial. Finally, the record does not support the contention that the prosecutor speculated about what the testimony of any other witness might have been or that she improperly vouched for victims credibility.
The prosecutors rebuttal argument provided the jury with an alternative explanation based upon the record for the fact that no pornographic videotapes had been produced. Viewing the comments in context we are unable to find any undue advantage to the prosecution or disadvantage to defendant resulting from the argument. There was no prosecutorial misconduct.
2. Inclusion of "Hardship" in Definition of "Duress"
The trial court instructed the jury in the language of CALJIC No. 10.42, which defines duress in part as "the implied threat of force, hardship or retribution." Relying upon People v. Valentine (2001) 93 Cal.App.4th 1241 (Valentine), defendant argues that threatened "hardship" is not a form of "duress" justifying a conviction for forcible lewd act upon a child (§ 288, subd. (b)(1)). Valentine pointed out that in 1993 the Legislature amended the definition of duress in sections 261 (forcible rape) and 262 (spousal rape) to exclude the term "hardship." Although Valentine acknowledged that the Legislature did not amend sections 288a or 289, subdivision (a), "or any other major sex crime statutes," to incorporate the statutory definition of duress crafted into the forcible rape and spousal rape statutes, the court nevertheless concluded, "it appears absurd to interpret the statutory scheme as allowing a threat of hardship to justify a conviction for forcible digital penetration or oral copulation but not for forcible rape or spousal rape." (Valentine, supra , 93 Cal.App.4th at p. 1248.) Applying the reasoning of Valentine, defendant argues that the Legislature also intended to exclude threat of "hardship" from the definition of duress for purposes of section 288. We respectfully disagree with Valentine.
The issue is presently pending before our state Supreme Court. (People v. Edmonton (2002) 103 Cal.App.4th 557, rev. granted Jan. 22, 2003 (S112168); People v. Leal (2003) 105 Cal.App.4th 833 (S114399) rev. granted Apr. 23, 2003.)
"`There is order in the most fundamental rules of statutory interpretation . . . . The key is applying those rules in the proper sequence. [Citation.] `First, a court should examine the actual language of the statute. [Citations.] . . . [¶] In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself specifically defines those words to give them a special meaning [citations]. [¶] If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.] There is nothing to "interpret" or "construe." [Citations.] [¶] But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history. [Citations.] [¶] The final step-and one which we believe should only be taken when the first two steps have failed to reveal clear meaning-is to apply reason, practicality, and common sense to the language at hand. [Citation.]" (U.D. Registry, Inc. v. Municipal Court (1996) 50 Cal.App.4th 671, 674.)
The 1993 legislation to which Valentine refers amended sections 261 and 262. Section 261, subdivision (b), states, "As used in this section , `duress means . . . ." (Italics added.) Section 262, subdivision (c), similarly states, "As used in this section, `duress means . . . ." (Italics added.) These plain words limit those definitions of duress to sections 261 and 262.
Section 288 does not define duress. At the time the Legislature amended sections 261 and 262 the case law applicable to section 288 defined duress to include a threat of "hardship." (People v. Pitmon (1985) 170 Cal.App.3d 38, 50 (Pitmon).) Repeals by implication are not favored. (Scott Co. v. Workers Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 105.) Rather, we assume that when the Legislature amended the definitions of "duress" included in sections 261 and 262 it was aware of the existing case law that defined "duress" differently for section 288 and that it chose to leave the section 288 definition as it has been judicially defined. (Scott Co. v. Workers Comp. Appeals Bd., supra, 139 Cal.App.3d at p. 105.)
The rape statutes define "duress" for purposes of those statutes only. There is no ambiguity, doubt, or uncertainty in the language of those statutes that require us to consult the legislative history. Moreover, there is nothing absurd about the differing definitions of "duress" as the concurring opinion in Valentine acknowledges: "The Legislature may very well have had good reason to retain `threat of hardship as inclusive in the term `menace [sic should be duress] under the aforementioned Penal Code sections." (Valentine, supra , 93 Cal.App.4th at p. 1255 conc. opn. of Woods, J.) We conclude that the trial court did not err by including threat of "hardship" in the instruction defining duress.
3. Evidence of Duress
Defendant contends that there is insufficient evidence to support a conviction under section 288, subdivision (b). He asks us to modify the judgment to reflect no more than a violation of section 288, subdivision (a), and to remand for resentencing.
In considering whether there is sufficient evidence to support a conviction the appellate court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.)
Section 288, subdivision (a) makes it a crime to commit a lewd or lascivious act upon a child under the age of 14. Violation of section 288, subdivision (b) occurs when the lewd act is accomplished "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b).) The prosecution tried the present case on the theory that defendant accomplished the lewd acts by means of duress or fear of injury. Since there is no evidence that victim acquiesced in the conduct because she feared bodily injury, we shall concentrate upon evidence of duress.
The definition of duress that the jury received was this: "[D]uress means the implied threat of force, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce to [sic] an act which one otherwise would not have submitted." (See Pitmon, supra, 170 Cal.App.3d at p. 50.) Such an implied threat may arise in various circumstances. (Id. at p. 51.) In considering whether the evidence supports a finding of duress we consider the totality of the circumstances including psychological coercion, the age of the victim, the relationship between the victim and the defendant, the disparity in physical size between them, and the isolation of the location of the assault. (People v. Senior (1992) 3 Cal.App.4th 765, 775.)
Defendant relies upon People v. Espinoza (2002) 95 Cal.App.4th 1287, 1318 (Espinoza) in which a panel of this court concluded that the evidence was insufficient to establish duress. In Espinoza, the victim was the defendants 12-year-old daughter. On five occasions during a one to two week period defendant came into the victims bedroom at night while her sisters were asleep in the other room. The defendant sat on the edge of her bed and fondled her and on the last occasion attempted to rape her before she moved to prevent him. The victim reported that she was scared. (Id. at pp. 1292-1293.) During one of the molestations defendant said: "Do you still love me" and "Please love me." He may have cried. (Id. at p. 1295.) The court concluded that because there was no evidence that defendants lewd acts were accompanied by a direct or implied threat of any kind the evidence was insufficient to support a conviction of section 288, subdivision (b). (Espinoza, supra, 95 Cal.App.4th at p. 1321.)
Espinoza is similar to the present case in that both defendants held positions of trust and authority in the victims lives. And it is probably true that in both cases the defendants were larger than their victims. However, Espinoza differs from this case in several important respects, not the least of which is that the victim in that case was fully twice the age of the victim here. In our view, circumstances such as the defendants familial relationship or his position of authority would generally be more coercive to a child of six than they would be to a pre-teen.
In addition to the difference in the age of the victims, the surrounding circumstances in Espinoza were significantly less coercive than in the present case. There the victims sisters were in the bedroom next door. And while the defendant was molesting the victim he behaved as if he were crying and asked the victim if she still loved him. The defendants demeanor itself is evidence that he did not use duress to coerce his victims acquiescence. Here, defendant tricked victim into coming into his bedroom when nobody else was home and he showed her an adult movie she plainly did not want to see. He warned her "[a] lot of times" not to tell anyone what he did. At least one time victim ran away and locked herself in her fathers room. That defendant used some force is supported by evidence that the touching hurt her. This is in contrast to Espinoza where the victim was able to avoid being raped merely by moving away from her assailant on the bed.
We conclude that what was missing in Espinoza is present here in the totality of the circumstances. It is reasonable to infer from the available facts that defendant used his physical and psychological dominance over victim to cause her to fear force, hardship, or retribution of some kind if she did not submit to the molestation. This qualifies as duress. (See People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
4. Probation
Defendant argues that section 1203.066, subdivision (d) requires that the information specifically allege that defendant would be ineligible for probation if convicted and that the trial court incorrectly determined it had no discretion to grant probation. We disagree with defendants interpretation of the statute.
Subdivision (a)(1) of section 1203.066 states in its entirety: "(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for any of the following persons: [& para;] (1) A person who is convicted of violating Section 288 or 288.5 when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person."
Section 1203.066, subdivision (d) provides: "The existence of any fact that would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the jury trying the issue of guilt . . . ."
People v. Superior Court (Frietag) (1988) 204 Cal.App.3d 247 involved section 1203.066, subdivision (a)(2), which makes a defendant ineligible for probation upon a finding that the defendant caused bodily injury in the course of violating section 288. The court held that section 1203.066, subdivision (d) required only that the "fact" making a defendant ineligible for probation be alleged in the accusatory pleading. In that case, the fact of bodily injury had been alleged as an enhancement that was ultimately dismissed because it was inapplicable. Nevertheless, the fact had been alleged in the information and the jury found it to be true before the enhancement was dismissed. Given that factual finding, section 1203.066, subdivision (a)(2) deprived the trial court of authority to grant probation. (Frietag , supra, 204 Cal.App.3d at p. 250.)
In People v. Karaman (1992) 4 Cal.4th 335, 340, footnote 3, the Supreme Court observed that section 1203.06, subdivision (b) requires the accusatory pleading to allege " ` any fact " that makes the defendant ineligible for probation under that section. This is the same requirement that appears in section 1203.066, subdivision (d). Under section 1203.06 personal use of a firearm in the commission of certain crimes is a fact that would make a defendant ineligible for probation. Since the information alleged personal use in connection with a section 12022.5 enhancement allegation, the Supreme Court held that was enough to invoke the section 1203.06 restriction on probation.
Applying the foregoing reasoning to this case we conclude that the factual allegations in the instant information were sufficient to invoke section 1203.066, subdivision (a)(1) even though the information did not specifically refer to the statute or state that a conviction would make defendant ineligible for probation. Conviction of a violation of section 288, subdivision (b) is the fact that made defendant ineligible for probation. If proved, the crime as charged ipso facto precluded a grant of probation under section 1203.066, subdivision (a)(1). It was unnecessary to prove any additional facts to trigger its application. Therefore, the trial court had no discretion. Section 1203.066, subdivision (a)(1) required that probation be denied.
E.
DISPOSITION
The judgment is affirmed.
WE CONCUR Rushing, P.J. and Bamattre-Manoukian, J.