Opinion
G055117
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO DEDIOS GONZALES, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF0496) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
Gonzales repeatedly molested his stepdaughter for nearly eight years, beginning when she was eight years old, and admitted his conduct to her in a pretextual telephone call. A jury convicted him of three counts of sexual intercourse or sodomy with a child 10 years or younger (Penal Code § 288.7, subd. (a); counts 1, 2, and 3), two counts of forcible rape (§ 261, subd. (a)(2); counts 4 and 8), two counts of aggravated sexual assault of a child (§ 269, subd. (a)(1); counts 5 and 6), and one count of forcible oral copulation of a minor under 14 years of age (§ 288a, subd. (c)(2)(C); count 7). The trial court sentenced Gonzales to state prison for a determinate sentence of 21 years followed by an indeterminate sentence of 105 years to life.
All further statutory references are to the Penal Code.
Gonzales challenges his convictions for counts 4, 5, and 6. First, he contends there was no substantial evidence he committed the crimes by means of force or duress. Second, Gonzales claims because there was insufficient evidence of force or duress in counts 4, 5, and 6, the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of unlawful sexual intercourse with a minor. His contentions lack merit and therefore we affirm the judgment.
I
FACTS
Jane Doe's biological parents divorced when she was eight years old. Shortly thereafter, Gonzales became Jane Doe's stepfather.
The assaults began when Gonzales told eight-year-old Jane Doe to kiss him. When she was between eight and 10 years old he began having intercourse with her, making several attempts before fully penetrating her. When Jane Doe was nine or 10, Gonzales sodomized her. Jane Doe told him it hurt and to stop. Gonzales never attempted anal sex with her again. When Jane Doe was nine, Gonzales licked her vagina.
Initially, Gonzales hid the assaults from Jane Doe's mother by molesting Jane Doe while her mother was working. When Jane Doe was 10, the family moved from Santa Ana to Moreno Valley. At that time, Jane Doe's mother changed jobs and was home in the afternoons. This change limited Gonzales's opportunity to abuse Jane Doe, but they would have sex "really quickly" in the bedroom when her mother was showering, or he would take her in the car to a store and have sex with her in the parking lot. Jane Doe would try to avoid going with him to the store and would hide or try to go with her aunt or uncle. Gonzales became upset when Jane Doe refused to go to the store, and he would be mad at her and would make "a really mean face." Jane Doe testified she never wanted to have sex with Gonzales, but she felt she had no other option.
During this same time frame, Jane Doe witnessed Gonzales hit her older brother hard enough to cause him to bleed. In addition, Gonzales limited Jane Doe's ability to go outside with her cousins and attempted to isolate Jane Doe from her mother by telling her that if she told anyone, her mother would not like her any more. Gonzales told Jane Doe many times not to tell anyone.
This abuse would have occurred during the time Jane Doe lived in Moreno Valley, as her older brother stayed in Moreno Valley with his father when Jane Doe moved back to Santa Ana.
When Jane Doe was 13, the family moved back to Santa Ana. Gonzales would have sex with Jane Doe approximately every other day, while her mother was at work. If Jane Doe told Gonzales "no," he would smack her and have sex with her anyway. When Jane Doe was between 13 and 15 years old, Gonzales made her perform oral sex on him. He would grab her head and pull it down. Gonzales also took pictures of her and videos of them having sex when she was 14 and 15 years old. Gonzales used his hands, a belt, or a sandal to hit Jane Doe "a lot," beginning when she was 14. Jane Doe estimated she had sex with Gonzales a total of 80 times.
Gonzales continued to physically abuse Jane Doe's brothers. Jane Doe described one event in Santa Ana where Gonzales put a knife against her younger brother's throat and told him, "'[i]f you ever tell anyone of like me and [Jane Doe] having sex and stuff, this could happen to you . . . This is going to go all through your throat and you'll die if you tell anyone.'"
Jane Doe eventually told a school counselor about the abuse, who reported it to police. A Santa Ana police officer had Jane Doe make a recorded call to Gonzales to obtain evidence. During the call, Jane Doe told Gonzales she might be pregnant because he did not use a condom, but Gonzales replied that he did use one. Jane Doe asked where he put the video of their sexual encounters and Gonzales replied that he erased it. Toward the end of the call, Gonzales asked Jane Doe if she was with the police.
A Santa Ana police officer apprehended Gonzales in front of his house. Officers recovered a smart phone, which contained several photos of Jane Doe, including two where her breasts were exposed. One picture showed Gonzales grabbing her buttocks. Another picture showed Jane Doe frowning with her breasts exposed. Based on Jane Doe's information that Gonzales kept condoms in the family van, police searched the van and recovered the condoms.
An amended information charged Gonzales with counts 1 through 8. Count 4 further alleged the victim was under 14 and that Gonzales kidnapped the victim to commit the offenses. As pertinent to this appeal, counts 4 and 5 were denoted "in vehicle," count 6 was denoted "in bedroom," and counts 4 through 6 alleged acts that took place when Jane Doe was 11 to 13 years old.
The jury found Gonzales guilty on all counts. On the forcible rape counts (counts 4 & 8), the jury found the victim was under the age of 14 when Gonzales committed the offenses. The jury could not reach a verdict as to the kidnapping charge and it was dismissed after the court declared a mistrial.
The trial court sentenced Gonzales to state prison for a determinate sentence of 21 years followed by an indeterminate sentence of 105 years to life. The determinate sentence consisted of the upper term of 11 years on count 8 and the upper term of 10 years on count 7 to run consecutively. The indeterminate sentence consisted of 25 years to life on counts 1, 2, and 3 and 15 years to life on counts 5 and 6, all to run consecutively. The sentence on count 4 was stayed under Penal Code section 654.
II
DISCUSSION
A. Substantial Evidence of Force or Duress
Gonzales challenges the sufficiency of the evidence to support the force or duress element for forcible rape (count 4), and aggravated sexual assault of a child (counts 5 & 6). Viewing the evidence in the light most favorable to the verdict, there was substantial evidence that Gonzales's intimidating and controlling behaviors coerced Jane Doe into acquiescence. We find no error.
In assessing the sufficiency of the evidence, we review the entire record to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (Ibid.) In applying this test, we review the evidence in the light most favorable to the judgment and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh the evidence or resolve evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) When applying the substantial evidence test, "[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) Accordingly, this court may not reverse for insufficient evidence unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The crimes of forcible rape (count 4) and aggravated sexual assault of a child by rape (counts 5 and 6) all require that the sexual intercourse be "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).) Duress is defined as "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress." (§ 261, subd. (b).) Other relevant circumstances include threats of harm to the victim, physically controlling the victim, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the physical vulnerability of the child. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072.) "The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran).)
The crimes charged in counts 4, 5, and 6 occurred between August 23, 2011 and August 22, 2014. During this time, Jane Doe was 11 to 13 years old and living with her family in Moreno Valley. Because her mother was not working during this time, Gonzales would have sex with Jane Doe "really quickly" in a locked bedroom while her mother was in the bathroom. He also took Jane Doe to the store, park the car, and have sex with her in the backseat. Jane Doe testified she would try to avoid going to the store with Gonzales by hiding or going with her aunt or uncle. She also stated Gonzales would make a "mean face" when she did not go to the store with him. Jane Doe testified she never wanted to have sex with Gonzales, but she felt she had no other option. Jane Doe was aware of Gonzales's propensity for violence as she had seen him hit her older brother hard enough to cause him to bleed.
To show an absence of duress, Gonzales attempts to distinguish People v. Veale (2008) 160 Cal.App.4th 40 (Veale) and Cochran. In Cochran, the defendant videotaped himself directing his nine-year-old daughter to engage in a variety of sex acts in front of the camera. (Cochran, supra, 103 Cal.App.4th at pp. 11-12, 15.) The tape also showed the defendant engaged in similar sex acts with the daughter. (Ibid.) The daughter was not afraid of her father and when she told him it hurt, he would stop. (Id. at p. 12.) The court determined the videotape demonstrated the defendant used duress. (Id. at p. 15.) It noted the young age of the child, the fact that she lived with her father, as well as their physical differences. (Ibid.) The court found these facts, in addition to the disparity in size and the exercise of parental authority, were sufficient to constitute duress. (Ibid.) The court distinguished another case in which the victim was slightly older, 12, and where the defendant was a stepfather rather than a father. (Id. at p. 15.)
Gonzales contends his small statute, he is 5'3" and 134 pounds, means he was not an imposing physical figure like the Cochran defendant, who outweighed the victim by 100 pounds. The parties do not direct us to evidence of Jane Doe's size. We decline to make a factual determination that Gonzales, a full-grown man, was not physically imposing to a young girl. --------
In Veale, the court found duress where the defendant was the victim's stepfather. (Veale, supra, 160 Cal.App.4th at pp. 43, 47.) The court noted in particular, however, that in addition to the defendant's position of authority and the disparity in his and the victim's age and size, an inference also could be made that the defendant "made an implied threat" based on evidence that the victim feared the defendant, and was afraid that he would harm or kill her, her mother, or someone else. (Id. at p. 47.) The court noted that the 6- or 7-year-old victim was "even younger" than the victim in Cochran. (Id. at p. 49.)
Here, Jane Doe was between 11 and 13 when the rape and aggravated sexual assaults occurred, slightly older than the victims in both Cochran and Veale. The abuse by Gonzales, however, began when Gonzales was just 8 years old, even younger than the Cochran victim. The fact that Gonzales started the abuse and broke down Jane Doe's barriers to this conduct at a young age is a relevant factor the jury could weigh in favor of finding Gonzales accomplished the later sexual abuse by psychological coercion. Furthermore, while Gonzales was Jane Doe's stepfather, rather than her biological father as in Cochran, the evidence showed Jane Doe viewed Gonzales as a father figure and referred to him as "dad." He cared for Jane Doe while her mother was at work, and was the only father she ever really knew, since she never lived with her biological father.
While Gonzales did not make overt threats or physically restrain Jane Doe, he made a "really mean face" when she refused to go on car rides with him to have sex. Gonzales discounts Jane Doe's testimony regarding his facial gestures. We may not, however, reweigh evidence or credibility on appeal. As in Veale, the jury here could properly infer Gonzales "made an implied threat" based on testimony regarding Gonzales's "mean face." (Veale, supra, 160 Cal.App.4th at p. 47.) Furthermore, Gonzales was a father figure to Jane Doe who started trying to have sex with her in the family residence before she was even physically capable of the act. He displayed a propensity for violence in the family residence through his abuse of Jane Doe's older brother and displayed strong displeasure when Jane Doe would not travel to the store to have sex with him. Jane Doe testified that the intercourse was against her will and that she did not believe she had an option to decline Gonzales's advances. Additionally, Gonzales used his authority to limit Jane Doe's ability to go outside with her cousins and isolate her from her family. As one court observed, when a parental father figure molests a young victim in the family home, "in all but the rarest cases duress will be present." (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) Sufficient evidence of duress supported the convictions in counts 4, 5, and 6. We find no error. B. The Court Did Not Err When it Failed to Instruct the Jury Sua Sponte Regarding Unlawful Sexual Intercourse as to Counts 4, 5, and 6
Gonzales next claims the trial court erred by failing to instruct the jury on unlawful sexual intercourse as a lesser included offense as to counts 4, 5, and 6. We find no error.
Gonzales did not request an instruction on unlawful sexual intercourse as a lesser included offense of counts 4 through 6. A court must, however, "'instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense."'" (People v. Moon (2005) 37 Cal.4th 1, 25.)
Forcible rape is defined by Penal Code section 261, subdivision (a)(2) which, in relevant part, provides: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: . . . [¶] (2) Where 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." Section 269, subdivision (a)(1) provides that any person who commits a violation of section 261, subdivision (a)(2) on a child under the age of 14 and seven or more years younger than the person is guilty of aggravated sexual assault of a child.
On the other hand, Penal Code section 261.5, subdivision (a), provides that "[u]nlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a 'minor' is a person who is under the age of 18 years and an 'adult' is a person who is at least 18 years of age."
Section 261.5, subdivision (a), does not by itself define a substantive offense. (People v. Woods (2015) 241 Cal.App.4th 461, 478 (Woods).) Rather, it acts in concert with subdivisions (b), (c), or (d), to set out substantive offenses. (Ibid.) Proving the offense of unlawful sexual intercourse with a minor requires evidence the defendant had sexual intercourse with another person, the defendant and the other person were not married to each other at the time of the intercourse, and at the time of the intercourse, the defendant was more than three years older than the victim and the victim was under the age 18. (Ibid.)
1. Unlawful Sexual Intercourse with a Minor Was Not a Lesser Included Offense of Forcible Rape as Alleged in Count 4
Count 4 did not allege Jane Doe was a minor and did not reference her age or Gonzales's age at the time of the intercourse. Gonzales looks to a separate allegation under Penal Code section 264, subdivision (c)(1), relating to a sentencing enhancement based upon the age of the victim, for the necessary factual allegation that Jane Doe was a minor at the time of the intercourse. However, we do not look to enhancement allegations to determine whether an accusatory pleading describes the offense in such a way that if the offense is committed as specified, then a lesser included offense is necessarily also committed. (People v. Wolcott (1983) 34 Cal.3d 92, 96-101 [an "enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses"]; Woods, supra, 241 Cal.App.4th at pp. 480-482.) Because count 4 makes no reference to age, it does not encompass the lesser offense of unlawful sexual intercourse with a minor.
Gonzales cites People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega) for the proposition that this court should expand the accusatory pleading test to include consideration of facts adduced at the preliminary hearing. Because Ortega conflicts with the California Supreme Court's guidance in People v. Montoya (2004) 33 Cal.4th 1031 (Montoya), we decline to do so. In Montoya, the Supreme Court instructed when applying the accusatory pleading test, a court considers "only the pleading for the greater offense." (Montoya, supra, 33 Cal.4th at p. 1036.) The Montoya court expressly disapproved People v. Rush (1993) 16 Cal.App.4th 20 which, like Ortega, relied on preliminary hearing evidence to apply the accusatory pleading test. (Montoya, supra, 33 Cal. 4th at p. 1036, fn. 4.) Under Montoya, we must not consider evidence from the preliminary hearing. The trial court did not err in failing to instruct regarding unlawful intercourse with a minor as a lesser included offense in count 4. 2. Substantial Evidence Did Not Support Instructing the Jury Regarding Unlawful Sexual Intercourse as to Counts 4, 5, and 6
The trial court was not required to instruct the jury sua sponte on unlawful sexual intercourse (§ 261.5) as a lesser included offense of counts 4, 5, and 6 because the instruction was not supported by substantial evidence. A criminal defendant is entitled to an instruction on a lesser offense only if there is evidence from which, if accepted by the trier of fact, would absolve the defendant from guilt on the greater offense, but not the lesser. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
Both greater offenses (forcible rape and aggravated sexual assault of a child by rape) are different from unlawful sexual intercourse in that the greater offenses requires the sexual intercourse to consist of rape "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).) As discussed above, the jury determined Gonzales used duress to coerce Jane Doe to have sex with him.
Furthermore, the record is devoid of evidence that, if accepted by the jury, would absolve Gonzales of guilt on the greater offense. A reasonable jury could not conclude, based on the evidence, that the lesser offense, but not the greater offense was committed. (See People v. Breverman (1998) 19 Cal.4th 142, 162.) Thus, the trial court was not required to instruct the jury on unlawful sexual intercourse as a lesser included offense of forcible rape or aggravated sexual assault of a child by rape.
Even assuming the trial court erred by failing to instruct the jury on unlawful sexual intercourse as a lesser included offense, any error was harmless. Under the harmless error standard, reversal is only required if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. (People v. Rogers (2006) 39 Cal.4th 826, 867-868.) Here, it is not reasonably probable Gonzales would have obtained a different result. As described above, the evidence supported the conclusion that Gonzales had sexual intercourse with Jane Doe against her will by means of duress. The evidence did not support the conclusion that Gonzales committed only statutory rape. Given Jane Doe's age and Gonzales's authoritative status and coercion, because the jury believed Gonzales sexually assaulted Jane Doe in the manner described, it was not reasonably probable the jury would have found that Gonzales did not do so through means of duress. Consequently, any error in failing to give instructions on unlawful sexual intercourse as lesser included offense of counts 4, 5, and 6 was harmless.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.