Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC616044
McAdams, J.
A jury convicted defendant of two counts of aggravated sexual assault of a child under the age of 14 by a person 10 years older, by means of sodomy and penetration with a foreign object. (Pen. Code §§ 269, 286, 289, subd. (a).) The court sentenced defendant to prison for a term of 30 years to life. On appeal, defendant contends that the evidence of force and duress was insufficient to support the verdicts; Evidence Code section 1108 is unconstitutional; evidence of uncharged offenses was erroneously admitted in violation of Evidence Code section 352; the court’s instruction on the uncharged offenses was unconstitutional; the court’s instruction on reasonable doubt was unconstitutional; the court’s instruction on the fear element of forcible sodomy was inadequate; and the prosecutor committed misconduct. We affirm.
Unless otherwise indicated, all statutory references are to the Penal Code and all references to Penal Code sections 269, 286 and 289 are to the statutes in effect at the time defendant committed his crimes.
STATEMENT OF FACTS
Charged Offenses Against Jasmine
Fourteen-year-old Jasmine testified that when she was between five and six years old defendant molested her.
Jasmine was born in October 1991. Jasmine’s mother met defendant in 1993 when they were both taking an art class at San Jose City College and became friends. Defendant lived with his mother, and Jasmine’s mother also became friends with defendant’s mother. At that time, defendant weighed between 400 and 500 pounds.
Jasmine recalled first meeting defendant when she was four years old or younger, before she started kindergarten. Jasmine went to defendant’s house only with her mother. Jasmine’s mother would take Jasmine to visit defendant and his mother every week during the summer. Defendant was always there. His mother, her mother, Jasmine, and defendant went to church together and sometimes went out to eat. The two mothers often went out together; defendant’s mother did not have a car, so Jasmine’s mother would take defendant’s mother shopping. These outings never lasted more than one and a half to two hours, and defendant would babysit her. Jasmine’s mother stopped visiting defendant and his mother after Jasmine’s mother married her stepfather in October 1998, one week before Jasmine’s seventh birthday.
Defendant had a little dog, some cats, and some fish in an aquarium in his room. He also had a “Hot Wheels” car collection in his room. She would go to his room to play with them.
Even before the first time defendant molested Jasmine, he would touch her in minor ways that made her uncomfortable. When he tickled or hugged her, his hands would touch her “butt” or her chest area. This type of touching occurred in the living room, the kitchen and defendant’s room, even when the two mothers were at home, but never “when they were right there to see.” Jasmine did not say anything to defendant; she would just look at him, or turn around and do something else, or act as if nothing had happened. Defendant would always act nice, “like he didn’t do anything.”
Jasmine recalled that the first time defendant molested her, she was in his bedroom playing next to the bed with the cat called Begerra. Defendant came into the room and closed the door. No one else was at home. At first, defendant talked to her in a normal tone of voice and played with her and the cat. Then his tone of voice changed to a way he had never used with her before. He told her in this tone of voice to take off her pants. Jasmine was confused and at first she didn’t listen, but then he told her again to take off her pants so she “just did it.” She was wearing underpants under her pants and defendant told her to take those off, too. She complied. The next thing he told her was to get on the bed; she did. Then he told her to lie on her stomach.
After Jasmine got on her stomach, defendant gave her a pillow and told her to scream into it if she had to scream. She took the pillow. She didn’t know what to do. She was confused. No one had ever told her to do anything like that before and she could not understand why he was doing so. Next, defendant got on the bed and leaned over her. He was on his knees, straddling her body, with one knee on one side of her leg and the other knee on the other side. He moved her body a little bit towards the bedroom wall with his hand on her hip. She also felt his arm rub against the side of her stomach.
She heard a zipper and tried to look back, but defendant told her to turn around. When she turned around she started to feel his penis go into her “butt.” She believed it was his penis because of the position of his body and the sound of the zipper. The object that entered her anus was hard and wet and it hurt her. She once more tried to turn around to see what was causing her pain but defendant yelled at her again and told her not to look. So she put her head into the pillow and screamed because it hurt.
Before she buried her head in the pillow, she saw that defendant’s hand was close to her shoulder on the side of the bed. Sometimes she could feel the weight of defendant’s body rubbing against her back. At times she also felt his knees on her legs. Defendant was fully dressed; he was in the same shirt and dress pants that he had worn to church earlier that day.
The ordeal lasted about l0 minutes. After defendant stopped, Jasmine heard the zipper again. Her bottom hurt and felt wet. Defendant told her to pull up her pants and underpants. She did, and then tried to go out the door. But defendant pulled her back and said that if she ever told anybody what had just happened, she would get into trouble for letting him do that to her, and he would get into trouble, too. He said this to her in that strict and mean tone of voice that he had never used with her before, “and it scared me.” She did not know what kind of trouble she would be in, but she was afraid of what her mom would do.
At some point thereafter, Jasmine’s mother and defendant’s mother returned home. She did not tell her mother what had just happened because she believed defendant and was scared that she would get into trouble for “letting it happen.” She did go to the bathroom to cry.
Defendant sodomized her between two and five more times during a one- to two- month time period. She could not explain in detail each molestation incident, but “the same thing happened every single time” and she clearly remembered the first and last times he molested her.
Jasmine recalled that the last time defendant molested her, she and her mother and defendant and his mother had gone to church and then left them alone together. As usual, she went into his room to play with the cats or the Hot Wheels. She testified: “I felt like there was no way I could say no. [¶] … [¶] Because every time we would go to church, he would have me go to his room. He would have me go to his room and that’s when he would do that to me.” This time, as on all the other occasions, defendant “had [her] lie on [her] stomach facing the window.” She used the pillow and never actually saw defendant putting his penis inside of her, only felt it. On that last occasion, the two mothers came home earlier than usual. They heard defendant’s mother knocking on the front door to come in, because she had forgotten her keys. Defendant got up really fast, zippered his pants and told her to hurry up, pull her pants up and go into the living room. He again told her that “if I did tell anybody, I was going to get in trouble” because “it was partially my fault.” In the living room, defendant told her to get on the couch and act as if she were watching a movie, which she did. Then he went to the door and opened it, and came back and sat on the couch next to her.
Jasmine’s mother also recalled an occasion when the screen door was locked from the inside when she and defendant’s mother returned to the house.
The visits to defendant’s house – and the molestations – stopped after Jasmine’s mother got married. Jasmine saw defendant only a few times between second grade and seventh grade. Whenever she saw him, she would avoid him, and he “would look at me like don’t tell anybody and just the look in his eyes seemed like he was warning me.”
Jasmine’s Disclosures
The first person Jasmine told about the molestations was her friend Jeanette when Jasmine was 12 years old and in the seventh grade. Jasmine said she was raped by one of her mother’s close friends when she was little. Jasmine said that this friend treated her like she “was his daughter, that’s how close [a friend] he was.” She did not tell Jeannette specifically what defendant did to her, but she told Jeannette not to tell anybody. Jasmine still did not want her mom to know what had happened, “[b]ecause I still felt that I … could have told him no and that I was partially at fault and that I still could have gotten in trouble for what I did. And even if I didn’t, I felt that people would look at me differently.”
During that school year or the summer right after seventh grade, Jasmine also told her three cousins, Karen, Suzanne, and Yvette, about the molestations; she trusted them and “needed to tell somebody because it was all building up inside of me.” She told them that one of her mom’s friends, who was “built big,” touched her “butt” with his penis. She told them not to tell anybody because she didn’t want her mom to find out.
Jeanette, Suzanne and Karen testified at trial consistently with Jasmine’s testimony about the disclosures.
A short time later, defendant happened to stop by her house to say “hi” when Jasmine’s cousin Suzanne was there also. Suzanne asked Jasmine if “that was him.” Jasmine denied it, because her mom and dad and defendant were all there and Jasmine was afraid that Suzanne “would go and figure that was the perfect time to tell my mom and she would go and tell my mom.” However, that day, Jasmine did tell her mother that she felt uncomfortable when defendant was around.
In December of 2004, defendant visited Jasmine and her mother. They were watching television, and when Jasmine got up to do something, defendant “smacked [her] on [her] butt.” Jasmine turned around and hit him. Another time, Jasmine and her mother visited defendant’s mother’s home. When defendant hugged her, he touched her and tried to kiss her.
In January of 2005, Jasmine’s mother asked Jasmine if she had ever been touched inappropriately by anyone. This led to a conversation in which Jasmine finally disclosed her molestation by defendant to her mother. Jasmine was relieved: she had “always wanted to tell my mom. I just didn’t know how to tell her. And I didn’t know how she would feel about it. But the way that she was asking me, I felt that it would be okay, that I wouldn’t get in trouble, that she was fine and she would be there to help me.”
Jasmine expressed concern about STDs (sexually transmitted diseases) and worry that she had lost her virginity as a result of her contact with defendant. Jasmine’s mother contacted an on-duty Kaiser nurse and the police. The Kaiser nurse also called the police. At her mother’s suggestion, Jasmine called defendant and told him that she needed to talk to him about something but she couldn’t talk to him about it in front of her mother, and she would call the next day when her mother was not around. The next day, January 13, 2005, Jasmine was interviewed by Detective Kepler.
The Pretext Phone Calls
During the interview, Jasmine placed two pretext calls to defendant while Detective Kepler was present. In the first call, Jasmine asked defendant if he remembered what happened when “it would just be me and you at the house and you’d take me to your room,” because she could not remember. Defendant repeatedly and emphatically denied that anything happened between them, but his answers suggested that he understood she was alluding to sexual conduct, and he posited that it happened with someone else. (“[W]hatever you remember, you know, something that’s going on in your head, maybe, I don’t know. Maybe, you know, it’s, like I said, maybe it wasn’t me. Maybe it was someone else, I don’t know. I can’t remember that kind of stuff. I mean, I don’t remember, I mean I could if it was real. But, you know, that’s kind of crazy.”) When Jasmine asked him if he remembered that she screamed into a pillow, defendant said: “No. … Are you kidding?” After Jasmine repeated that she remembered “it being you,” defendant ended the conversation.
The phone calls were recorded in their entirety and the CDs were played to the jury. Transcripts of the recording were distributed to the jury as well.
Sometime later, Jasmine again called defendant. Defendant denied that he would ever have hurt her, and said that her accusation was preposterous and “very hurtful.” He told her not to call again, because he was sorry about her “issues” with what happened to her but he didn’t do it and he could not help her. He advised her to “let it go.”
Medical Evidence
Jasmine was examined by Kaiser pediatrician Padmaja Padalkar on January 28, 2005. Jasmine told Dr. Padalkar that five or six years earlier, a penis had been put in her “butt.” Dr. Padalkar also ordered testing of Jasmine for STDs. Jasmine denied that she had had any pain or difficulty defecating after the acts occurred, but she did say the act of penetration hurt. Dr. Padalkar did not note any irregularities in Jasmine’s anus.
On March 30, 2005, Jasmine was examined by Mary Lou Ritter, a physician’s assistant at the Center for Child Protection at Valley Medical Center. Jasmine described penile-anal penetration with pain but no bleeding when she was six or seven years old. Ritter looked for scars or evidence of injury with a lighted colposcope that has a camera. Ritter did not see anything unusual. Given that the penetration had occurred six or seven years earlier, the lack of evidence of penetrating trauma was not unusual and, in her opinion, did not mean that nothing had happened.
Child Sexual Abuse Accommodation Syndrome
District Attorney Investigator Carl Lewis testified as an expert on the Child Sexual Abuse Accommodation Syndrome (CSAAS). Lewis testified that among researchers of child sexual abuse there is a consensus that children under the age of 14 “often … delay” before disclosing sexual abuse. The research shows that there are many reasons why children delay disclosure, including the fact that the offender is usually alone with the child when the abuse occurs, and this secrecy creates the idea in the child’s mind that the sexual behavior is bad or wrong. In addition, after the sexual behavior has occurred, the offender often communicates either verbally or non-verbally (as with a look, or an expression) the message that if the child discloses, something bad will happen.
The research also debunks the following myths about the behaviors of an abused child: (1) the child will do something to stop the abuse; (2) the child will immediately fight back while the abuse is taking place; and (3) the child will immediately run to a parent, family member, teacher or other authority figure to report the abuse. Other myths are: (4) when the child discloses, he or she does so in a clear and chronological order, and (5) mothers always know when a child is being sexually abused by another relative or person known to the child.
The research also identifies as a factor contributing to delayed disclosure a child’s sense of helplessness, betrayal, and confusion when a trusted adult, on whom the child must depend for emotional and physical sustenance, commits the abuse. Finally, the research shows that children who are repeatedly abused accommodate to the abuse by trying to make the best of a bad situation. They often act as if nothing is wrong, and may even excel in school or sports in order to cover up anything suspicious. Other children may become rebellious, harm themselves, or engage in substance abuse as a way of accommodating. Dr. Roland Summit, the psychiatrist who pioneered the study of CSAAS, believes that most children never disclose during childhood. Instead, they disclose the abuse many years later in ways that appear conflicted or unconvincing.
The trial court interrupted Lewis’s testimony to instruct the jury as follows. “Testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant in this case committed any of the crimes charged against him. [¶] You can consider evidence of Child Sexual Abuse Accommodation Syndrome only in deciding whether or not conduct that you have heard described of the alleged victim in this case is consistent or not consistent with the conduct of someone who has been molested for evaluating the believability of her testimony and for no other purpose.”
On cross-examination, investigator Lewis admitted that the CSAAS is not designed to determine whether a child in a particular case is telling the truth, and that “an appropriate use,” though not the appropriate use of the syndrome, is for the clinical assessment and treatment of a child. (Italics added.)
Defendant’s Physical Attributes
Santos Hernandez, a friend of defendant, testified that he met defendant in the early 1990s at a gym where they both worked out. Until Hernandez married in 1997, he and defendant regularly worked out together, three or four times a week. Hernandez identified a photo of defendant taken at his 1997 wedding. Defendant was six feet, one or two inches tall and weighed 250 to 300 pounds. At this time, he had lost some weight and was strong, but not muscular. His belly was flabby and his skin hung a few inches over his underwear. He could leg press 1,000 pounds and bench press 400 pounds. However, Hernandez opined that when a person kneels on all fours he or she does not use his or her quadriceps or chest muscles, which are developed by leg and bench presses. At trial, defendant stood up so that Hernandez could appraise defendant’s physique. Hernandez opined that defendant had weighed more in the 1990s.
Uncharged Sexual Misconduct
Sonya M., defendant’s cousin, testified at trial pursuant to Evidence Code section 1108. She was born in 1973 and was 33 years old at the time of trial. Defendant is older than she is, but she was not sure how much older. When she was three years old, her mother would leave Sonya and her siblings at defendant’s mother’s house to be babysat by defendant. During that time, she would wake up to find defendant touching her vagina with his hand. This happened every time she went to his house, in his bedroom. She would move his hand and tell him to stop because he was hurting her, but defendant was overpowering. She did not tell anyone.
During Sonya’s testimony, the court gave the following limiting instruction. “Ladies and gentlemen, the People are about to introduce evidence of uncharged offenses, that is, offenses not charged in this complaint. [¶] Now if you decide that the defendant did commit the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed to commit sexual offenses. [¶] However, if you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all of the other evidence in the case. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses.”
The inappropriate touching continued. When she was 11 years old, defendant would touch her with his mouth as well as his hands. That occurred more than once. When Sonya was 12 years old defendant started having sexual intercourse with her. At the time, she and her mother were living with defendant and his mother. He had intercourse with her “[a]s often as possible for him,” once or twice a week. At that time, defendant was tall and heavyset, weighing over 300 pounds. His weight never impeded his ability to complete the sex act with her. She would tell him to stop, leave her alone, because she didn’t like it. He would come home on drugs and be very violent, demanding her at knife point. He told her not to tell anyone because he did not want to get into trouble, and if he got into trouble he would kill her and her family. At one point he tried to penetrate her anus with his penis. She “freaked out” and he stopped.
The abuse continued until she was 17 years old, in 1990. At that point, she “had some sort of mini meltdown” and reported the abuse to a counselor. At the time, she had been arrested and was in juvenile hall. After that, she spoke with the police, but charges were never brought. At the time this made her mad, but she was not testifying at trial to anything untruthful because she was upset at the way her case was handled in 1998.
Sonya had never met Jasmine.
The Defense Case
Shirley Ann Hanson, John Krause, and James Thompson are friends of defendant who testified on defendant’s behalf as character witnesses. All three of them had seen defendant working or playing with and around children at various times. None of them thought that defendant harbored any sexual desire for children. None of them would change his or her good opinion of defendant on the basis of accusations of inappropriate sexual conduct by two individuals.
Abygail Mendoza, age 18, is defendant’s next-door neighbor. She had never been in his house. From the time she was 12 until she was 15, she often ate at fast-food restaurants with defendant and he occasionally gave her a ride to school. When she was 15, she started dating someone and so saw defendant less often. She had never had a conversation with defendant that made her feel uncomfortable and she never saw him demonstrate any sexual interest in her younger relatives.
Richard Carrillo, Jr., defendant’s brother, testified that from 1996 to 1998 defendant weighed approximately 450 to 500 pounds, and his belly hung 3 to 4 inches over his underwear. However, defendant was capable of urinating without lifting up the fat. Their mother had found some of defendant’s underwear from that era, and Carrillo brought it to court. It was sized XXXX, 54-56.
Dr. David Noller, an urologist, examined defendant at the jail in May 2006. He observed defendant “on all fours.” Defendant’s penis was not visible. It was retracted into the fatty tissue under the suprapubic fat where the pubic hair and scrotum are located. He pulled out defendant’s penis, but it was still in the fat. However, he agreed that even morbidly obese individuals are able to engage in sexual intercourse on their hands and knees, and that it may be easier for some people to engage in anal intercourse than vaginal intercourse in that position.
Dr. Phillip Esplin, a forensic psychologist, testified as an expert on the CSAAS and on interview techniques and protocols for interviewing children about their memories in sexual assault and abuse cases. Dr. Esplin was familiar with studies and writings regarding the CSAAS. He considered them helpful in understanding how children react and accommodate to incest, but noted that the CSAAS was not accepted in the scientific community as a diagnostic tool for determining when abuse has occurred, or as a syndrome.
Dr. Esplin recommends that child interviews be videotaped to reduce the number of times a child is interviewed and to record the circumstances in which the child is interviewed, to see if the child was improperly influenced. He noted that the child usually makes the first report to family or friends, who are untrained and who may contaminate the child’s report with their reactions or questions.
Dr. Esplin testified it was not appropriate for a forensic investigator to tell a child that he or she will be believed and that the investigator knows the child will tell the truth. Nor are leading questions, such as asking the child whether it hurt, proper. However, he found that overall Kepler seemed to make an effort to elicit information from Jasmine with appropriate questions.
He confirmed that in the majority of cases there is a delay in reporting abuse; that it is not uncommon for children to report that the abuser said there would be negative consequences if the child tells anyone; that children often have feelings of self-blame; and that children often have better memories of the first and last time sexual abuse occurred, especially if the other occurrences tended to be the same.
DISCUSSION
1. Insufficient Evidence of Force or Duress
Defendant argues that the evidence adduced at trial is insufficient as a matter of law to support defendant’s convictions for aggravated sexual assault of a child under former section 269. He asserts the evidence did not establish the use of “force” or “duress” to sodomize or sexually penetrate Jasmine.
At the time defendant committed these crimes, former Section 269 provided in relevant part: “(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] … [¶] (3) Sodomy, in violation of Section 286, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [¶] … [¶] (5) A violation of subdivision (a) of Section 289. [¶] (b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.” (Italics added; added by Stats. 1994, c. 878, § 1, p. 4434; Stats 1993-1994, 1st Ex.Sess., c. 48, § 1, p 8761.)
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in the light most favorable to respondent and 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; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
“The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation]…. An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
The terms “force” and “duress” are used in the disjunctive in former sections 269, 286 and 289. Thus, the evidence must disclose substantial evidence of either force or duress, but not both. Citing People v. Cicero (1984) 157 Cal.App.3d 465, defendant argues that we must review the record for evidence that defendant accomplished the act of sodomy or anal penetration by a foreign object by means of physical force that is substantially greater than or different from the force that is necessary to accomplish the sexual act itself. In People v. Griffin (2004) 33 Cal.4th 1015 (Griffin), our Supreme Court held that the foregoing definition of force developed by the Cicero court for application in forcible lewd conduct prosecutions did not apply to forcible rape charges. (Id. at p. 1028.)
In People v. Guido (2005) 125 Cal.App.4th 566, the Court of Appeal that decided Cicero applied the reasoning of Griffin to the forcible oral copulation component of an aggravated sexual assault on a child less than 14 years old under section 269, the statute under which defendant was charged and convicted here. The Guido court concluded that the term “force” as used in this cognate context likewise did not have the specialized meaning ascribed to it in the Cicero opinion. The Guido court reasoned as follows.
“After the court’s decision in Cicero, a number of California cases held, or suggested, that the term ‘force’ as it is used in statutes defining sexual offenses other than violations of section 288, subdivision (b)(1) requires proof that the defendant used physical force substantially different from or substantially greater than the force inherent in the sexual act itself. Citations. Such decisions need to be reassessed in light of Griffin. ¶ Restricting our discussion to the crime we consider here, forcible oral copulation, we must decide whether oral copulation committed by force in violation of section 288a, subdivision (c)(2) requires physical force substantially different from or substantially greater than that amount of force inherent in the act of oral copulation. If it does, the term ‘force’ carries a specialized legal meaning and the court erred when it failed to instruct the jury, sua sponte, of that meaning. [Citation.] [¶] As Griffin recognized, the term ‘force’ as used by the Legislature in sexual offense statutes does not have a constant meaning; the meaning changes depending on the crime to which the term is applied. [¶] As Griffin found, unlike the crime of lewd and lascivious acts with a child accomplished by force, ‘[t]he element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact….’ [Citation.] Rather, ‘[w]hen two adults engage in consensual sexual intercourse, with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. … [I]n a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.’ [Citation.] [¶] These concepts apply equally to the crime of forcible oral copulation. Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person’s will that an otherwise lawful act becomes unlawful. [¶] Unlike sexual abuse of a child by use of force, a specialized definition of force is not necessary to the crime of forcible oral copulation because a different concept of force is not needed to distinguish between two crimes or to give substance to the Legislature’s use of the term ‘force,’ such as it is in section 288, subdivision (b)(1). [¶] We note, too, the statutory language, ‘accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury,’ [citation] is the same language that makes two otherwise lawful acts criminal. [¶] In all, there is no reasoned basis to apply a different concept of the term ‘force’ to forcible rape and forcible oral copulation and we hold oral copulation by force within the meaning of section 288a, subdivision (c)(2) is proven when a jury finds beyond a reasonable doubt that defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim’s will. The term does not carry a specialized legal definition and the trial court was not required to give the jury a definition of the word ‘force.’ Thus, there was no error.” (People v. Guido, supra, 125 Cal.App.4th at pp. 575-576.)
Defendant does not cite, nor has our independent research found, any published case applying either Cicero’s reasoning or Griffin’s in the context of the sodomy or sexual penetration components of section 269. He urges us to find that Guido was wrongly decided. He argues that analytically, the sodomy and sexual penetration statutes are more similar to section 288, the lewd act statute interpreted in Cicero, because forcible sodomy and sexual penetration are punished more severely than non-forcible sodomy and sexual penetration. Conversely, he argues that the statutes penalizing forcible sodomy and forcible sexual penetration, former sections 269, 286, and 289, are unlike the rape statute interpreted in Griffin, because “the element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288.” (Griffin, supra, 33 Cal.4th at p. 1027.)
The sexual acts at issue in People v. Bolander (1994) 23 Cal.App.4th 155 did include sodomy, but the defendant in that case was charged with forcible lewd acts under section 288, subdivision (b) and this court applied the Cicero test. (Bolander, at pp.158-159.)
We reject defendant’s statutory interpretation arguments for the following reasons. Former section 269, the aggravated sexual assault statute under which defendant was charged and convicted, does not differentiate between forcible and non-forcible acts of sodomy; rather, it punishes only forcible sex acts, including forcible sodomy and forcible sexual penetration with a foreign object on a child under 14 by a person at least 10 years older than the child.
Furthermore, the language used by former section 269 to define the act of aggravated sexual assault by means of forcible sodomy is virtually identical to the language of the forcible rape statute construed by the Griffin court: “Forcible rape is defined as ‘an act of sexual intercourse accomplished with a person not the spouse of the perpetrator ... [¶] ... [¶] (2) [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).)” (Griffin, supra, 33 Cal.4th at p. 1022.) This language is also identical to the language used to define the act of forcible sexual penetration under former section 289, as well as the act of forcible sodomy under former section 286. On the other hand, the phrase “accomplished against the person’s will” is absent from the definition of forcible lewd acts used in former section 288, subdivision (b)(1).
The version of Penal Code section 288 construed in Cicero provides, in relevant part: “(a) Any person who shall willfully and lewdly commit any lewd or lascivious act … upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of 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 threat of great bodily harm, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.” (Cicero, supra, 157 Cal.App.3d at p. 472, fn. 5, italics added.)
Similarly, former section 286, the sodomy statute, does not necessarily prescribe different punishment on the basis of forcible versus non-forcible acts. Instead, the statute differentiates between various circumstances that make criminal an otherwise legal act between consenting adults, and punishes according to the Legislature’s perception of the seriousness of the criminalizing circumstance. For example, the least serious circumstance – sodomy with a person under 18 years of age, except as provided in section 288 – is punishable by just a year in the county jail. (Former § 286, subd. (b)(1).) The most serious circumstance – forcible sodomy while acting in concert with another – is punishable by five, seven, or nine years in prison. (Former § 286, subd. (d).) However, the statute punishes sodomy under a variety of circumstances, both forcible and non-forcible, equally, by three, six, or eight years in prison. Thus, for example, an act of sodomy upon a child under the age of 14 by a person 10 or more years older than the child is punished to the same extent as an act of sodomy “when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (See former § 286, subd. (c).) As noted above, when both of these criminalizing circumstances are present, the act of sodomy is punished most severely, by a sentence of 15 years to life in prison, under former section 269.
The same holds true under former section 289, the sexual penetration statute. Sexual penetration is punishable by three, six, or eight years in prison under a number of criminalizing circumstances, both forcible and non-forcible, including when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, and when the victim is a child under the age of 14 and the perpetrator is 10 years older than the child. (Former § 289, subds. (a) & (j).) As is true with respect to the crime of sodomy, the convergence of these two circumstances is punished more severely under former section 269, the aggravated sexual assault statute.
In our view, former sections 269, 286 and 289 are structurally and linguistically more akin to the rape statute construed in Griffin than to the lewd act statute construed in Cicero, leading us to conclude that the Legislature intended that the word “force” as used in the phrase “accomplished against the person’s will by means of force,” has no specialized meaning. Accordingly, we agree with both the reasoning and conclusion of the Guido court and apply Griffin to our review of the sufficiency of the evidence of force used to accomplish the acts of forcible sodomy or sexual penetration found true by the jury. Paraphrasing Griffin, we note that “[t]he question for the jury in this case was simply whether defendant used force to accomplish [an aggravated sexual assault on Jasmine] against her will, not whether the force he used overcame [Jasmine’s] physical strength or ability to resist him.” (Griffin, supra, 33 Cal.4th at p. 1028.) “ ‘Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction [of aggravated sexual assault].’ ” (Ibid.)
In Griffin, the evidence that the defendant pinned the victim’s arms to the floor while he accomplished the sex act was deemed sufficient. Likewise, here, the evidence showed that defendant (1) warned Jasmine that if she had to scream she was to do it in a pillow, which he handed to her; (2) put his hand on her hip and moved her body; (3) let his arm brush the side of her stomach and his stomach press down on her back; and (4) with his tremendous girth and strength straddled a five year old. From this evidence, a rational jury was entitled to conclude that defendant used force to move Jasmine’s small body in an effort to better accommodate it for his own comfort, and to gain Jasmine’s submission to his will. This is sufficient evidence of force within the meaning of Griffin.
Duress
Defendant also argues that the evidence is insufficient to prove duress. Although we need not reach this issue because we have already found sufficient evidence of force, we reject this argument as well.
In People v. Espinoza (2002) 95 Cal.App.4th 1287 this court observed: “Physical control can create ‘duress’ without constituting ‘force.’ ‘Duress’ would be redundant in the cited statutes if its meaning were no different than ‘force,’ ‘violence,’ ‘menace,’ or ‘fear of immediate and unlawful bodily injury.’ … ‘Duress’ 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.’ … [D]uress involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes…. ‘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.’ ” (Id. at pp. 1319-1320, quoting from People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) This definition of duress applies to the offense of aggravated sexual assault of a child in violation of section 269. (People v. Leal (2004) 33 Cal.4th 999, 1005.)
“Duress cannot be established unless there is evidence that the ‘victim[’s] participation was impelled, at least partly, by an implied threat….’ ” (People v. Espinoza, supra, 95 Cal.App.4th at p. 1321.) “A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent.” (People v. Cochran (2002) 103 Cal.App.4th 8, 15.)
In this case, Jasmine was five years old and defendant was more than 10 years her senior. During the crucial period of time, he was a trusted member of her extended family circle, even though he was not a blood relative. When no other adult was present to protect her, defendant took advantage of her solitude and trust. He ordered her to take off her clothing. He ordered her to get on the bed. With his great bulk he straddled her and penetrated her anus, causing her to scream in pain.
We think that a rational jury was entitled to infer from the totality of the circumstances that defendant took advantage of his position of authority as a trusted friend of the victim’s mother and a member of the extended family circle, his superior size and heft, the age difference, and the victim’s vulnerability in being left alone without anyone to come to her aid, to intimidate her into submission. We add to this the physical and psychological force of looming over this small child in a straddle, and defendant’s warning her not to speak out, instilling in her the fear of punishment and shame for submitting to defendant’s actions, and we have no trouble finding sufficient evidence of an implied threat of danger sufficient to constitute duress.
2. Instructional Errors
Defendant asserts that the trial court committed three instructional errors. First, he asserts that the court’s instruction on the fear element of sodomy was inadequate because “it did not include the requirement that Jasmine fear bodily injury.” Second, he argues that CALCRIM instruction number 1191, on uncharged sex offenses, is unconstitutional. (Judicial Council of California Jury Instruction (2006), CALCRIM No. 1191.) Finally, defendant also challenges the constitutionality of CALCRIM instruction number 220, on reasonable doubt. (Judicial Council of California Jury Instruction (2006), CALCRIM No. 220.) As we explain below, we find no instructional error.
At the outset, we note that certain general principles guide our review of defendant’s claims of instructional error. As to all of his assertions, our primary task is to determine “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution” or California law. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Clair (1992) 2 Cal.4th 629, 662-663.) We determine the correctness of the challenged instruction “in the context of the instructions as a whole and the trial record,” and not “ ‘in artificial isolation.’ ” (Estelle v. McGuire, at p. 72; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Furthermore, “[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.” (Musselwhite, at p. 1248, internal quotation marks omitted.) Finally, “[w]e conduct independent review of issues pertaining to instructions.” (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411, citing People v. Waidla (2000) 22 Cal.4th 690, 733, 737 [lesser included offense instructions].)
With these principles in mind, we now turn to defendant’s specific claims of instructional error.
a. Fear
The trial court instructed the jury no fewer than four times that the fear at issue in the trial was the “fear of immediate and unlawful bodily injury upon Jasmine Doe….” The court used this definition when it read the two charges to the jury. It used that definition again when it instructed on the elements of the crimes. The court also defined fear as the “fear of immediate and unlawful bodily injury to the child or to someone else” in connection with the uncharged offenses to which Sonya M. testified. As we understand defendant’s argument, the instruction on fear was inadequate because, when defining fear in connection with the elements of the offenses, the court said only: “An act is accomplished by fear if the child is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.” Defendant’s contention, we presume, is that the court should have said: “An act is accomplished by fear of immediate and unlawful bodily injury if the child is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear of immediate and unlawful bodily injury and takes advantage of it.”
Viewed in light of the instructions as a whole, we see no reasonable likelihood that the jury applied the challenged instruction in any way that could have misled them into thinking that the fear at issue in the trial was the fear of something other than fear of bodily injury. No other form of fear was ever suggested by the instructions. We simply see no way for the jury to misconstrue the instruction. No error, much less constitutional error, appears.
b. CALCRIM No. 1191
In view of Sonya M.’s testimony, the court instructed the jury on uncharged offenses as follows: “The People presented evidence that the defendant committed the crimes of aggravated sexual assault of a child based on rape and oral copulation of a child upon Sonya [M.] which are not charged in this case. The definitions of these crimes are set forth in the instructions which follow. [¶] Now you may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit aggravated sexual assault of a child as charged here, or the lesser offense of sodomy on a child or sexual penetration of a child. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of aggravated sexual assault of a child or any lesser crime. The People must still prove each element of the charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose.” (CALCRIM No. 1191.)
Defendant contends that this instruction deprived him of his constitutional rights to due process and proof beyond a reasonable doubt because it allowed the jury to infer defendant’s guilt of the charged offenses from uncharged offenses that need be found true only by a preponderance of the evidence. Defendant recognizes that this very argument, aimed at a cognate predecessor instruction, CALJIC 2.50.01, was rejected by our Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007. Two recent Court of Appeal opinions have also rejected contentions identical to defendant’s. (People v. Schnabel (2007) 150 Cal.App.4th 83, 87; People v. Cromp (2007) 153 Cal.App.4th 476, 479-480.) However, he raises the claim in this court to preserve the argument for review in the federal courts. As he also recognizes, this court is bound to follow Reliford as binding precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Accordingly, we reject defendant’s contention.
c. CALCRIM No. 220
Defendant asserts that CALCRIM No. 220, to which he objected, “is a constitutionally defective reasonable doubt instruction requiring reversal” of defendant’s convictions.
CALCRIM No. 220 provides: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt…. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Defendant argues that “CALCRIM [No.] 220 is constitutionally defective because it required the jury to ‘compare’ the evidence ‘received’ at trial. The jury could have only interpreted this as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense. This language allowed the jury to hold against [defendant] his failure to present as much evidence on his behalf as the prosecution presented against him, or to present sufficient evidence to prove his innocence. This had the effect of impermissibly shifting the burden of proof to [defendant].” Defendant contends the error in giving this instruction is “structural” and requires reversal without consideration of prejudice.
Defendant acknowledges in his briefs that his arguments have been rejected in People v. Rios (2007) 151 Cal.App.4th 1154 (review den. Sept. 12, 2007), People v. Westbrooks (2007) 151 Cal.App.4th 1500 (review den. Sept. 12, 2007), and People v. Flores (2007) 153 Cal.App.4th 1088 (review den. October 31, 2007), but he argues that “[a]ll three cases are poorly reasoned and should not be followed.” We disagree.
Other recent cases that have rejected challenges to CALCRIM No. 220 include People v. Anderson (2007) 152 Cal.App.4th 919, People v. Ibarra (2007) 156 Cal.App.4th 1174, People v. Campos (2007) 156 Cal.App.4th 1228, and this court’s recent opinion in People v. Garelick (2008) 161 Cal.App.4th 1107.)
In Rios, the court considered essentially the same argument that defendant raises here. The court noted that CALJIC No. 2.90 contained similar language referring to the “comparison and consideration of all the evidence,” and had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17. (Rios, supra, 151 Cal.App.4th atp. 1157.) As Rios explained, “CALCRIM [No.] 220 uses verbs requiring the jury to ‘compare and consider all the evidence that was received throughout the entire trial.’ CALJIC No. 2.90 uses nouns requiring ‘the entire comparison and consideration of all the evidence’ by the jury.” (Ibid.) The Rios court concluded that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 informs the jury that its decision must be based on the evidence, and it rejected defendant’s claim that the instruction shifted the burden of proof. (Ibid.)
Defendant argues, however, that the Rios court “was not asked to, and did not, address the propriety of the word ‘comparison’ in the instruction.” He points out that CALJIC No. 290 “does not require a comparison, while the CALCRIM instruction tells the jury it ‘must’ compare the evidence … ‘that was received throughout the entire trial.’ ” Defendant continues: “This language not only suggests that the defendant has a duty to produce evidence to be ‘received’ and compared by the jury, but it also excludes from its consideration the evidence not received at trial, that is, the lack of evidence.”
The contention that CALCRIM No. 220 prohibits the jury from considering the lack of physical evidence implicating the defendant in the crime in determining his guilt was rejected in Westbrooks. The court held that the sentence in question “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial.” (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The court determined it would not have been reasonable for the jury to interpret CALCRIM No. 220 as precluding the jury from considering any perceived lack of evidence in determining the defendant’s guilt. (Id. at p. 1510.)
Similarly, in Flores, the court read the language at issue in CALCRIM No. 220 in conjunction with CALCRIM No. 222 and concluded that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.” (People v. Flores, supra, 153 Cal.App.4th at p. 1093.)
We agree with the analyses of Westbrooks, Rios, and Flores, and likewise find that there is no reasonable likelihood that the jury understood CALCRIM No. 220 in the manner suggested by defendant. Therefore, the trial court did not err in giving such instruction to the jury.
3. Prosecutorial Misconduct
According to defendant, in closing argument the prosecutor “equated a finding that the sodomy was not committed by force or duress with a finding that Jasmine consented to the act” and he argues that this misstatement of the law constituted misconduct that deprived him of due process and a fair trial. We highlight below the comments to which defendant objected, and we explain why we do not agree they constitute misconduct.
a. Factual Background
During closing argument, the prosecutor argued: “So if all of you agree that yes, Jasmine was sodomized exactly the way she says, but I don’t really think it was duress, even though she was five and a half, six years old, this guy was 31, I don’t think there was any duress there, I think this is something that she was okay with and she wanted to do it, then you come back on the lesser offense which is yes, he committed the charged sex act without the necessary force and violence.” Defense counsel did not object.
In his rebuttal argument, the prosecutor stated: “[Defense counsel] commented these are difficult cases to try. They are even more difficult cases to defend. And the reason why it’s a difficult case to defend and the defense is in a very difficult posture is because in any criminal case, there are only so many defenses available. [¶] For example, one defense could be identity. … But when she’s identifying her assailant as someone who is known to her, that is a defense that is effectively unavailable…. [¶] Another defense could be that, yes, there was touching but it wasn’t sexual touching. … But that defense doesn’t work here because there can be nothing innocent about the conduct described by Jasmine. [¶] Another defense could be yes, it all happened exactly they way Jasmine said it did, but it was consensual or, in other words, it was non-forcible. … There was no duress. This [child] was a willing participant….”
Defense counsel objected: “Your Honor, in all due respect, that is neither a defense or an element in this case. Consent is not an issue.” The trial court stated: “Counsel, I’m going to overrule the objection. [¶] Once again, ladies and gentlemen, if you believe that any of the comments of counsel are inconsistent with your recollection of the evidence or my instructions on the law, you will follow my instructions and your recollection of the evidence.”
Prior to argument, the court had instructed the jury, in relevant part: “It’s not a defense that the child may have consented to the act. [¶] To prove that the defendant is guilty of sodomy by force and [sic] fear, the People must prove that: One. The defendant participated in an act of sodomy with Jasmine Doe. And two. The defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.” The court gave a similar instruction with respect to sexual penetration. The court then continued: “Now, within the meaning of the two preceding instructions, an act is accomplished by force if a person uses enough physical force to overcome the other person’s will. The force used to commit sodomy or penetration by a foreign object must be substantially different from or substantially greater than the force needed to accomplish the act itself. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] Duress means a direct or implied threat of force, violence, danger, hardship or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. [¶] … [¶] It’s not a defense that Jasmine Doe may have consented to the act.” The court also instructed the jury that sodomy, and sexual penetration, with a person under the age of 14 and at least 10 years younger, were lesser offenses to aggravated sexual assault, and that consent was not a defense to either offense. It also instructed that battery was a lesser offense to sodomy or sexual penetration of a child.
The prosecutor then concluded his argument on this point, saying: “In fact, [defense counsel] has argued that the element of force and duress was missing from this case. But that’s not an appealing defense in and of itself because it may still leave the defendant convicted of having committed sodomy or sexual penetration on a child. In many cases, the only viable defense and logical defense is if it didn’t happen. The defendant is flat-out not guilty of everything. And this child is lying when she says she was sexually assaulted by this person. And that is a very difficult defense to make out.”
Later in his rebuttal, the prosecutor touched again on consent and lack of duress, stating: “If there was no duress to this, if this was just all fine with her, why is she trying to come up with excuses [to her mother] not to be left there [alone with defendant]?” Defense counsel did not object, but the trial court had already overruled his previous objection.
b. Applicable Legal Principles
The applicable federal and state standards regarding prosecutorial misconduct are well established. “A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.” (People v. Lopez (2008) 42 Cal.4th 960, 965.)
“ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970.)
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Valencia (2008) 43 Cal.4th 268.) A defendant will be excused from the necessity of objection and/or request for admonition if either would be futile or would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820-821; People v. Boyette (2002) 29 Cal.4th 381, 432.)
c. Analysis
Under defendant’s interpretation of the prosecutor’s comments, “it was absolutely untrue that a finding that [defendant] did not use the kind of force or duress required to constitute a forcible sodomy was the equivalent of a finding that Jasmine ‘was okay with’ sodomy and that ‘she wanted to do it,’ or that sodomy was ‘all fine’ with Jasmine.” According to defendant, the vice of these comments, and of the trial court’s failure to correct them, was that it left the jury “with the impression that the prosecutor’s argument was not legally incorrect, and that the determination whether the sodomy was forcible or nonforcible turned on the question whether Jasmine consented.” Further, “the prosecutor’s inflammatory argument that rejection of the greater offense and a true finding on the lesser was the same as a finding that Jasmine wanted to be sodomized, and the court’s apparent imprimatur of that argument, virtually guaranteed that the jury would find that the sodomy was committed by force and that would reject a conviction of nonforcible sodomy” because the jury would have recoiled from appearing to endorse the idea that a six-year-old girl wanted to be sodomized. We reject defendant’s interpretation of the prosecutor’s comments.
As noted, our task is to determine whether there is a reasonable likelihood that the jury would understand the prosecutor’s statements as an assertion that the jury could find defendant guilty of the lesser offense of nonforcible sodomy or sexual penetration only if it found that Jasmine consented to the sexual act. We do not think there is a reasonable likelihood that the jury understood the prosecutor’s comments that way. In our view, the prosecutor’s earlier comments were intended only to outline the range of defenses available to a defendant facing sexual assault charges, with a view toward pointing out the circumstances under which those defenses would be implausible or unavailable. That this appears to have been the point the prosecutor was attempting to make is clear from his comments after the objection: he pointed out that even if consent were the proffered defense, it would not be the ideal defense in a case of child sexual abuse because the defendant would still be guilty of a lesser, nonforcible offense. Unspoken but implicit in this argument is the recognition that consent is not a defense to commission of any sexual act upon a child under the age of 14, as the court had clearly instructed the jury. In this respect, then, defense counsel’s objection merely stated the obvious, and the court did not err by deflecting the objection by reminding the jury that just in case a juror saw a conflict between the prosecutor’s comments and the court’s instructions, the court’s instructions governed.
Assuming arguendo either of the prosecutor’s comments could have been interpreted by the jury as equating lack of duress or force with consent, we are convinced the comments could not have affected the outcome of the trial. The comments were brief and oblique and the court’s instructions on consent could not have been clearer. Further, the evidence – from Jasmine, Sonya, and both experts on CSAAS – was compelling on the point that where child sexual abuse is concerned, acquiescence is not the equivalent of “consent,” which cannot be given by a child in any event. Defendant was not prejudiced by the prosecutor’s comments, and defendant’s right to a fair trial was not violated.
4. Admission of Uncharged Offenses
Prior to trial, defendant objected to Sonya M.’s testimony under Evidence Code sections 1108 and 352. On appeal, defendant renews his objections to the admission of Sonya M.’s testimony, arguing that her testimony should have been excluded because Evidence Code section 1108 is unconstitutional, and because her testimony was more prejudicial than probative.
a. Constitutionality of Evidence Code section 1108
Defendant acknowledges that the California Supreme Court has upheld Evidence Code section 1108 against various constitutional challenges in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) and People v. Reliford, but he renews his constitutional objections to preserve them for federal review. As defendant also acknowledges, as an intermediate appellate court we are bound by our Supreme Court’s opinions in Falsetta and Reliford. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450.)
Defendant also argues that the Supreme Court has never ruled on an equal protection challenge to Evidence Code section 1108, and that we are not bound to follow People v. Fitch (1997) 55 Cal.App.4th 172, which rejected such a challenge. However, in Falsetta, our Supreme Court cited Fitch’s reasoning on the equal protection issue with approval and, in any event, we are not convinced by defendant’s arguments that Fitch was wrongly decided. (Falsetta, supra, 21 Cal.4th at p. 918.) We therefore reject all of defendant’s constitutional challenges to Evidence Code section 1108.
b. Abuse of Discretion under Evidence Code section 352
Defendant contends the trial court should have excluded evidence of defendant’s sexual misconduct with Sonya M. because it was “remote, more severe and inflammatory than the charged offense, and because it never resulted in criminal charges.” We review the trial court’s ruling for abuse of discretion. (Falsetta, supra, 21 Cal.4th at p. 919.) “By reason of section 1108, trial courts may no longer deem propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at pp. 916-917.)
Here, the trial court specifically ruled that the prior crimes were not too remote, given that defendant’s sexual assaults on Sonya ceased in 1990, just a few years before he met Jasmine in 1993. Furthermore, the court was particularly struck by the similarity between the two cases in that defendant attempted anal intercourse with Sonya but was rebuffed by her resistance. The record demonstrates other similarities between the sexual assaults on Jasmine and Sonya, as well. Defendant began molesting Sonya when she, like Jasmine, was a very young child, left alone with defendant as her babysitter. The similarities between the two cases are not undermined by the fact that the assaults on Sonya continued into her teenage years, while the assaults on Jasmine did not, because Sonya remained available to defendant as she grew up while Jasmine did not. Even so, Jasmine testified that on the infrequent occasions when she saw defendant as a teenager, defendant would attempt to take liberties with her body.
Nor were the assaults on Sonya as a small child more inflammatory than the assaults on Jasmine. Sonya testified that defendant fondled her vagina with his hands when she was very young, and she told him to stop because it hurt. Jasmine testified that he gave her a pillow to stifle her screams from the pain of the anal penetration.
Finally, the evidence was not confusing or misleading or unduly time consuming. The fact that defendant was not punished for his assaults on Sonya was less prejudicial than it might otherwise have been, given the circumstances surrounding Sonya’s disclosure and her admission that it made her “mad” at the time that the police did not pursue charges, but not so mad that she would testify untruthfully at trial.
In his reply brief, defendant acknowledges that Sonya’s evidence was relevant. In fact, it was “ ‘particularly probative’ ” on defendant’s willingness to commit sexual offenses against very young children. (People v. Callahan (1999) 74 Cal.App.4th 356, 367.) On this record, defendant has not demonstrated that the trial court abused its discretion in finding that the probative value of Sonya’s testimony outweighed its potential for prejudice. No error appears.
CONCLUSION
There is sufficient evidence of force and duress to support the convictions for aggravated assault by sodomy and anal penetration. The court’s instruction on the fear element of aggravated sexual assault adequately informed the jury that the fear at issue is the fear of bodily injury. CALCRIM Nos. 1191 and 220 are not unconstitutional. Evidence Code section 1108 is not unconstitutional. The trial court did not abuse its discretion under Evidence Code section 352 in admitting Sonya M.’s testimony.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
At the time defendant committed these crimes, former Section 286 provided in relevant part: “(a) Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. [¶] (b)(1) Except as provided in Section 288, any person who participates in an act of sodomy with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for not more than one year. [¶] (2) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sodomy with another person who is under 16 years of age shall be guilty of a felony. [¶] (c) Any person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she, or when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat shall be punished by imprisonment in the state prison for three, six, or eight years.” (Italics added.) (Amended by Stats.1993-94, 1st Ex.Sess., c. 40 (A.B.85), § 2.)
At the time defendant committed his crimes, former Section 289 provided in relevant part: “(a) Every person who causes the penetration, however slight, of the genital or anal openings of any person or causes another person to so penetrate the defendant’s or another person's genital or anal openings for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] … [¶] (k) As used in this section: [¶] (1) ‘Foreign object, substance, instrument, or device’ shall include any part of the body, except a sexual organ. [¶] (2) ‘Unknown object’ shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.” (Italics added; amended by Stats.1993-94, 1st Ex.Sess., c. 39, § 1, p. 4434; c. 40, §§ 4, 4.5.)