Opinion
E066866
09-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON HOLLAND, Defendant and Appellant.
Victoria H. Stafford, 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, Collette C. Cavalier and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1501456) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed with directions. Victoria H. Stafford, 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, Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jason Holland repeatedly molested his daughter (Doe) for several years until she finally told her mother about the abuse at age 16. On appeal, he argues we must reverse his three convictions for aggravated sexual assault of a child, committed when Doe was 12 and 13 years old, because there was insufficient evidence he "used force or duress to accomplish the penetrations." We conclude the record contains sufficient evidence of both force and duress, and affirm the challenged convictions.
Holland also argues the trial court violated Penal Code section 1203.1b by setting a maximum, instead of exact, amount of presentence probation costs. As we explain in part II.B, post, he forfeited this argument by failing to raise it below. (People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo).)
I
FACTUAL BACKGROUND
Holland, Doe's father, began molesting Doe when she was 12 or 13 years old and in middle school. Holland was in his 30s at the time and lived with his parents. The abuse occurred when Doe would visit him on weekends. Holland would come home late after drinking and start groping and humping her, then he would put his fingers in her vagina. This continued for about a year, at which point the assaults escalated. When Doe was 14 years old, Holland began making her orally copulate him and have sex with him. Holland had sex with Doe countless times over the next two years. On some nights, Doe was able to avoid her father's advances by sleeping on the living room couch or in her grandparents' bed while her grandfather was working a night shift. But on other nights, he would catch her when she was coming out of the bathroom in the middle of the night, pull her into his room, and molest her. The abuse finally stopped when Doe was 16 years old and her mother found out about it.
Doe testified about the specific counts of sexual abuse as follows.
A. Aggravated Sexual Assault of a Child (Counts 1 Through 3), the Challenged Convictions
When Doe was in the eighth grade and was 12 or 13 years old, she would stay at her grandparents' house on the weekends and, because the guest room was too cluttered, sleep on the couch or in her father's room if he had gone out for the night. On the nights he went out, Holland would come home in the early hours of the morning, smelling of marijuana and alcohol, and slide into bed with Doe. He would begin by rubbing her arm and back, at which point she would turn to face the wall and "get into the fetal position, like a child." Holland would grab her arm, turn her over, and "move my legs to open them." He would then put his fingers in her vagina. Doe said sometimes her father "would start, like, kissing on me, trying to make me feel, you know, like, willing, and then he would pull his penis out of his pants and then sometimes he would dry hump me before actual penetration." When the prosecutor asked if "dry humping" meant "grinding on you with his penis," Doe said yes. Doe testified she told Holland to stop on multiple occasions, but he would say things like, "I'm sorry. I know this is wrong," and that it "wouldn't hurt" if she relaxed. Doe said the digital penetration occurred infrequently at first, but as time progressed became "an . . . every night thing."
B. Lewd Act Against a Child (Count 4)
Holland began having sex with Doe when she was 14 years old. It started the same way the digital penetration had. He would come home late after he had been out smoking and drinking, get into bed with her, and grind his body on hers. Doe said he would then "move me into a position" and put his penis inside her vagina. As he was having sex with her he would tell her "it feels so good." During this period, Holland also orally copulated Doe "a couple of times" and forced her to fellate him. Doe recalled two occasions when he forced his penis into her mouth. She said she tried to move her head to avoid him but he was sitting on her chest and restraining her arms. She recalled being too scared to resist any further.
Although she told her father to stop, he never did. The abuse continued until she moved to North Carolina with her mother at age 16.
C. Incest (Count 5)
The first summer after she moved to North Carolina, Doe and her mother came back to California for a two-week vacation. Doe was still 16 at the time. During the trip she spent a few nights at her grandparents' house. The first night, Holland came home late again smelling of alcohol. Doe tried to leave the room, but he grabbed her by the arm and led her back to the bed. Doe turned "facing towards the wall in fetal position and [] laid there while he rubbed on me." Holland took off Doe's pajama pants, told her "I missed you," then proceeded to orally copulate her and have sex with her.
Holland had sex with Doe multiple times each night during that trip. When the prosecutor asked why she continued to sleep in her father's bedroom, Doe replied, "Because it was normal . . . My grandparents, they knew I was in there. You know, if I slept on the couch or, you know, went somewhere else, they would have been like . . . . What's going on? . . . [S]o I didn't—I didn't do anything." Doe said she had told her father to stop numerous times. She also said he had promised her on multiple occasions that if she came back to visit him "he wouldn't do it again."
D. Disclosure of the Abuse
When Doe got back to North Carolina, she saw a doctor because her vaginal area was swollen and irritated. She was diagnosed with trichomonas, a sexually transmitted disease. Doe's mother found out about the diagnosis and asked her who she was having sex with. Doe was worried if she revealed it was Holland, her mother would "freak out" and become "really upset." She testified she vomited a couple times before finally telling her mother the truth.
The prosecutor asked Doe why she hadn't immediately reported the abuse years earlier when it began. While Doe described the abuse as "rape" and said her father's actions made her feel "terrible" and "ashamed," she felt it would have been too awkward to tell her mother the truth. She also worried if she disclosed the abuse she would be judged by "[a]nybody who knew." Her family relationships, particularly the one she was trying to build with her father, also played a role in her fear of disclosure. She said she loved her father and grandparents and "just liked being around them, the company." She believed the visits to her grandparents' home were helping her relationship with her father "get[] better." She had always lived with her mother and "didn't know what it was like to be around [her dad]." "We didn't always, you know, have a really strong relationship like I wanted to, but we were trying to get better so that I can have that relationship with him." When she stayed at her grandparents' house she was "able to communicate and talk to him and just, you know, do different things, go to the movies and just hang out." Back when she was in middle school and first started visiting her dad, she thought he was "nice" and "cool." She recalled being "really excited and happy" to finally be able to spend more time with him. She said she had thought at the time the molestation "was a way for—I mean, in his eyes—for us to connect maybe" and was worried disclosure would undo all the progress she had made in her relationship with him. (Italics added.)
The prosecution showed the jury a series of text messages exchanged between Doe and Holland after she told her mother about the molestation. Doe apologized for telling and asked Holland, "Are you mad at me?" to which he responded, "IDK," meaning "I don't know." Doe responded, "I just find it hard now to move on from all of this without you not feeling some type of way about what you have done or even the slightest remorse." Ultimately, Holland texted Doe, "I feel horrible," and she wrote back, "Do you really[?]" and he responded, "Sorry." Doe testified at trial that telling her mother had been difficult and had "hurt," but afterward "it felt like a relief." She said she had loved her father back then despite the molestation. She added, "I still love him." "I'm mad and I hurt sometimes," but "[h]e's still my father."
Dr. Laura Brodie, a clinical and forensic psychologist and the prosecution's expert on child sexual abuse, testified about Child Sexual Abuse Accommodation Syndrome to explain the differences between how children and adults respond to molestation. Dr. Brodie said about 85 percent of children who are molested do not report the abuse until adulthood. She explained child victims will often have "mixed feelings" about the abuser when that person is a family member. "They can love [the abuser] at the same time that they don't like what's going on," and as a result, "they may not tell right away or they may develop certain symptoms and difficulties in functioning because of—the[y're], basically, in a relationship that they can't get out of." (Italics added.)
II
DISCUSSION
A. Sufficiency of the Evidence on Counts 1, 2, and 3
In challenging his aggravated assault convictions for insufficient evidence of force and duress, Holland "bears an enormous burden." (People v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale).) "Our review . . . of the evidence is limited . . . '[W]e review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.] Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].""' (Id. at p. 45.) "If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves." (Id. at p. 46.)
1. Force
Holland argues there was insufficient evidence he accomplished the digital penetration by force because Doe described it as happening "gradually" after he stroked her body. He points out Doe never said she was afraid of him and had in fact testified she thought he was "nice" and "cool." Holland misunderstands the definition of forcible penetration. There is no requirement the force be violent or the victim be afraid of the abuser. The amount of force required to support a conviction for aggravated sexual assault of a child is "'enough physical force to overcome the other person's will,'" or force above and beyond what is necessary to accomplish the act. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
"'Force' includes circumstances where the victim did not want to engage in the act and the evidence does not otherwise establish the victim's positive cooperation in act or attitude. [Citation.] It also includes the force used to accomplish 'the penetration and the physical movement and positioning of [the victim's] body in accomplishing the act.'" (People v. Thomas, supra, 15 Cal.App.5th at p. 1071, citing & quoting People v. Young (1987) 190 Cal.App.3d 248, 258.) A defendant's act of positioning the victim's body to accomplish the penetration or of grabbing or holding a victim who is trying to move away is sufficient to constitute a "use of physical force above and beyond that needed to accomplish the act." (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran); see also People v. Pitmon (1985) 170 Cal.App.3d 38, 44 [defendant used victim's hand to rub his genitals]; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1307 [defendant pulled victim's head forward to get her to perform oral copulation]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 154 [defendant continued to orally copulate victim despite her attempt to push his head away]; Young, at p. 258 [defendant placed victim on top of his body and pulled her underwear down before digitally penetrating her vagina]; In re Asencio (2008) 166 Cal.App.4th 1195, 1205-1206 [defendant pulled down victim's underwear and "rolled over onto her" before digitally penetrating her vagina]; Thomas, at p. 1072 [defendant led victim by the hand into the bathroom and sat her on the sink before digitally penetrating her vagina].)
Here, Doe testified she would turn away from Holland and curl into a fetal position when he got into bed with her and started touching her. Holland overcame this resistance by grabbing her arm, turning her over, pushing her legs apart, then lying on top of her and grinding his body onto hers before putting his fingers in her vagina. "Although resistance is not required to prove forcible sexual assault, the jury could reasonably have considered [the victim's] resistance in assessing whether defendant used force to accomplish the lewd act." (People v. Babcock (1993) 14 Cal.App.4th 383, 387 [finding the victim resisted when she "attempted to pull her hand away from his crotch"].) From Doe's testimony, the jury could easily conclude Holland's acts of pulling her out of fetal position, moving her legs apart, lying on top of her, and grinding his body on hers constituted more force than necessary to insert his fingers into her vagina.
2. Duress
Holland argues there is insufficient evidence he used duress to accomplish the assaults because Doe didn't testify he engaged in any threatening conduct. He argues the People's theory of duress rested entirely on the existence of the father-daughter relationship, which on its own is insufficient to constitute duress. We disagree. As we explain, the record contains substantial evidence of duress above and beyond the fact of the father-daughter relationship.
The definition of duress in the context of an aggravated sexual assault on a child is well established. Duress can be committed by use of threats, psychological pressure, or intimidation 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.'" (People v. Soto (2011) 51 Cal.4th 229, 246.)
"[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes." (People v. Schulz (1992) 2 Cal.App.4th 999, 1005; see also Cochran, supra, 103 Cal.App.4th at p. 15 ["The very nature of duress is psychological coercion"].) Where the defendant is a family member and the victim is young, the psychological coercion or intimidation comes from "the position of dominance and authority of the defendant and his continuous exploitation of the victim." (Schulz, at p. 1005, italics added.) Duress can also be shown by "a defendant's attempt to isolate the victim and increase or maintain her vulnerability to his assaults." (Cochran, at p. 15.) "Other relevant factors include . . . physically controlling the victim when the victim attempts to resist. . . ." (Id. at p. 14.)
As the California Supreme Court has explained, "[D]uress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior." (People v. Soto, supra, 51 Cal.4th at p. 246.) It does not matter that the victim did not fight back or even consented to the molestation. "[T]he focus must be on the defendant's wrongful act, not the victim's response to it." (Ibid.)
In this case, there is no doubt Holland exercised physical control over and continually exploited his daughter. As discussed above, when Doe attempted to resist his advances he would uncurl her from the fetal position, kiss her, move her legs apart, and grind his body on hers. (People v. Schulz, supra, 2 Cal.App.4th at p. 1005 ["Physical control can create 'duress' without constituting 'force'"].) She would tell him to stop and he would tell her to relax. Doe said she believed this was her father's way of trying to make her feel "willing." All of these advances happened late at night or early in the morning when she was isolated in his room and her grandparents were asleep. (Cochran, supra, 103 Cal.App.4th at p. 15 [isolating the victim is evidence of an intent to increase the victim's vulnerability].) Sometimes Holland himself would ensure the isolation by pulling Doe into his room as she came out of the bathroom in the middle of the night. Holland continued this predatory behavior until it became an "every night thing."
Doe did not give any dates for the occasions when Holland pulled her into his room. Reviewing the record in the light most favorable to the verdict, her testimony on the issue supports an inference that Holland was doing this throughout his molestation of Doe, and as a result the behavior could inform the jury's analysis of the aggravated assaults (digital penetration). The same goes for Doe's testimony that she told Holland to stop multiple times and he would tell her to relax.
In addition to Holland's aggressive and isolating behavior, the nature of his relationship with his daughter supports a finding of duress. Doe testified she didn't report the abuse because she still loved her dad and wanted a better relationship with him. She also liked being around him and her grandparents, and didn't want the visits to end. She believed he viewed the sexual activity as "a way for [them] to connect." On this point, Dr. Brodie explained that child victims can dislike the abuse but still love their abusers, to the point where they feel as though they're "in a relationship that they can't get out of." (Italics added.) From this evidence, the jury could reasonably conclude Holland was aware of his daughter's desire for a closer relationship and her vulnerability in his presence, and used those factors to his advantage to "continuous[ly] exploit[]" her and gratify his own sexual urges. (People v. Schulz, supra, 2 Cal.App.4th at p. 1005.) This is the essence of psychological coercion.
Holland's reliance on People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza) does not persuade us otherwise. In Espinoza, the defendant molested his then 12-year-old daughter on several occasions, and at trial she testified she was "too scared to do anything" while her father was molesting her and was afraid to report the molestation because she thought he "would come and do something." (Id. at pp. 1293-1294.) The Espinoza court concluded there was insufficient evidence of duress because the victim never testified the defendant used "any 'direct or implied threat' of any kind." (Id. at p. 1321.) To reach this conclusion, the court relied on People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), which held that "'Psychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger, hardship or retribution.'" (Id. at pp. 1250-1251.)
The reasoning in Espinoza and Hecker has been questioned and undermined by subsequent decisions. After Espinoza was decided, the same appellate court that decided Hecker called its earlier decision into doubt, explaining, "We believe th[e] language in Hecker is overly broad. The very nature of duress is psychological coercion." (Cochran, supra, 103 Cal.App.4th at p. 15.) The Cochran court found duress where the evidence supported finding the victim's compliance in the sexual acts was derived from the "psychological control [her father] exercised over her and was not the result of freely given consent." (Id. at pp. 15-16.) The court emphasized, "The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress. . . ." (Id. at p. 14.) In addition, years after Hecker and Espinoza, the California Supreme Court employed an understanding of duress and coercion in child molestation that parallels Cochran, not Hecker and Espinoza, describing the conduct as "us[ing] some form of psychological coercion to get someone else to do something." (People v. Soto, supra, 51 Cal.4th at p. 243.) By relying on Espinoza, Holland overemphasizes the use of threats and overlooks the evidence of psychological coercion in this case. We believe Cochran, not Espinoza, should inform our analysis of the evidence and, as in Cochran, Doe's testimony about her relationship with her father supports a finding that her compliance was derived from the psychological control he exercised over her "and was not the result of freely given consent." (Cochran, at pp. 15-16.)
We also reject Holland's contention that, at age 12, Doe was too old to have suffered duress by virtue of her age and the fact the perpetrator was her father. Courts have held that when a "young" victim is molested "by her father 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 [nine-year-old victim]; accord, Veale, supra, 160 Cal.App.4th at p. 48 [nine-year-old victim].) Holland points out that the victims in most of the cases applying this rationale are closer to nine or 10 years old, which is younger than Doe was when the abuse began. We decline the invitation to create a bright line distinction between nine and 12 year olds. (See, e.g., People v. Perez (2010) 182 Cal.App.4th 231, 243 [concluding that "molesting acts" are not activities a 10-year-old child "would ordinarily wish to participate in"].) The proper inquiry is whether the victim is at "an age at which adults are commonly viewed as authority figures" and is therefore "'susceptib[le] . . . to intimidation by an adult.'" (Veale, at p. 50, quoting People v. Pitmon, supra, 170 Cal.App.3d at p. 51, italics added.) At 12, a child typically still views her parents as authority figures. This is especially true in this case, where Doe testified she looked up to her father and yearned for a closer relationship with him, at devastating costs.
Applying the rationale articulated in Cochran and Veale to children who are older than nine or 10 years but still younger than 14 does not threaten to remove the distinction between forcible and nonforcible sexual assaults against children. Instead, it protects children from those who are most able to harm them (family members), if so inclined. As the Cochran court explained, children "molested by [their] father[s] in the family home" are a subset of child sexual assault victims, and the statutes criminalizing nonforcible assaults on children are violated "by persons other than the child's parent or one having parental authority and under circumstances where the victim truly consents, e.g., a 13-year-old girl consenting to engage in sexual acts with her boyfriend." (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6, italics added.) Duress will be present, on the other hand, in those cases where the perpetrator is a father figure and the child is young and susceptible to the perpetrator's dominance.
We believe a strict age rule is inappropriate in this context. There is no reason to say that as a matter of law a nine year old is susceptible to psychological coercion but a 12 year old is not. The question is factual—given what we know of the child and the child's relationship with the abuser, was the child susceptible to intimidation? This isn't a legal question and it certainly isn't a question of math.
In any event, there is no reason for Doe's age to be a deciding factor in this case. There is sufficient evidence of psychological coercion above and beyond the existence of the father-daughter relationship, as well as sufficient evidence of force.
The parties point out that the minute order dated June 8, 2016 incorrectly states Holland was convicted of three counts of violating Penal Code section 269, subdivision (a)(2). We will therefore direct the trial court to amend the minute order to reflect convictions under Penal Code section 269, subdivision (a)(5). (People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court should direct trial court to correct evidence discrepancies between the trial court's oral pronouncement of judgment and an order meant to contain that judgment].)
B. Probation Costs
At sentencing, the trial court imposed various fees and exercised its discretion not to impose fees under Penal Code section 290.3. As to presentence probation costs authorized under Penal Code section 1203.1b, the court followed the recommendation in the probation report and ordered Holland to "pay a cost of a presentence probation report in the amount of—to be determined by Probation, that amount not to exceed $1,095." Holland did not object to the probation report fee at the sentencing hearing, but on appeal he argues the trial court violated Penal Code section 1203.1b's requirement that the court determine "the amount to be reimbursed" and then order the defendant to pay "that sum." (Pen. Code, § 1203.1b, subd. (b)(2), italics added.) He argues the word "amount" refers to a determinate amount, not a maximum amount or a range, and by setting an upper limit for the fee, the trial court delegated determining the determinate amount to probation.
Penal Code section 1203.1b sets out how to determine a defendant's ability to pay the probation department's reasonable costs of conducting a presentencing investigation and preparing a presentence report. "The statute directs the trial court to order the defendant to appear before the probation officer for a determination of the amount and manner of payments based on the defendant's ability to pay. [(Pen. Code, § 1203.1b, subd. (a).)] 'The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.' (Ibid.) 'When the defendant fails to waive the right . . . to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made.' (Id., subd. (b).) The court orders the defendant to pay the reasonable costs if it finds, based on the probation officer's report, he or she has the ability to pay them. (Ibid.)" (Trujillo, supra, 60 Cal.4th at p. 855.)
We need not decide the issue of statutory interpretation Holland raises, because he forfeited it by failing to raise it with the trial court. (Trujillo, supra, 60 Cal.4th 850.) In Trujillo, the California Supreme Court held that a defendant forfeits any claimed violations of Penal Code section 1203.1b by failing to raise them with the trial court. In that case, the trial court had ordered the defendant to pay a presentence investigation fee "not to exceed $300" and a probation supervision fee "not to exceed $110 per month," and the defendant did not object. (Trujillo, at p. 854.) On appeal, however, she argued the trial court violated Penal Code section 1203.1b by failing to hold a hearing to determine her ability to pay the probation fees. (Trujillo, at p. 854.) Concluding that it was "appropriate" to "place the burden on the defendant to assert noncompliance with [Penal Code] section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal," the Trujillo Court held that the defendant forfeited her challenge. (Id. at p. 858.) In connection with its holding, the Court expressly approved People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), where the appellate court held the defendant had forfeited his claim of various Penal Code section 1203.1b violations by failing to object below. (Trujillo, at p. 860; see also Valtakis, at pp. 1070-1071.) In that case, the defendant had argued his probation fee was improper under Penal Code section 1203.1b because probation never made an express finding of his ability to pay or informed him of his right to have the court do so, and because the court did not hold a separate hearing or make its own determination of the amount due and his ability to pay it. (Valtakis, at pp. 1070-1071.)
It appears to be an open question whether Penal Code section 1203.1b allows a trial court to set a maximum fee. The cases Holland cites for the proposition that a court cannot delegate the cost determination to the probation department did not involve upper limits; instead, the courts left the entire determination up to probation. (See People v. Bennett (1987) 196 Cal.App.3d 1054 [ordering defendant to pay probation costs in an amount to be determined by probation]; People v. Wilson (1982) 130 Cal.App.3d 264 [same].)
We note that, for purposes of dealing with the defendant's claim she could not afford the fees, the Trujillo Court assumed the imposed amount would be the maximum amount ($300 and $110 per month, respectively), but in doing so, did not consider the issue of whether Penal Code section 1203.1b authorizes maximum amounts.
Holland argues his case is different from Trujillo and Valtakis because they did not involve his precise challenge, i.e., that Penal Code section 1203.1b requires an exact, not maximum, amount. But we fail to see why his claim of statutory violation should fare any differently than the—arguably more egregious—alleged violations in those cases. Rather than raise notice or hearing issues, Holland argues his fee is improper because it was stated as an upper limit as opposed to a fixed amount. Notably, he does not argue he cannot afford to pay $1,095 or any lower amount probation might later select. If losing the statutory right to a hearing on ability to pay does not implicate "core autonomy interests or constitutional rights" (Trujillo, supra, 60 Cal.4th at p. 859), we do not see how Holland's claimed violation does.
In any event, our application of the forfeiture doctrine does not leave Holland "wholly without recourse." (Trujillo, supra, 60 Cal.4th at p. 860.) "[D]uring the pendency of the judgment rendered under [Penal Code] section 1203.1b, the defendant 'may petition the probation officer for a review of [his or her] financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant's ability to pay the judgment.' ([Pen. Code, § 1203.1b,] subd. (f).) . . . Although the sentencing hearing is, in general, the proper time for a defendant to assert all available procedural and factual contentions relating to the trial court's sentencing choices, in an appropriate case a defendant's discovery of trial counsel's failure properly to advise the defendant, before the sentencing hearing, of [Penal Code section 1203.1b's requirements] . . . may constitute a change of circumstances supporting a postsentencing request for such a hearing." (Trujillo, at pp. 860-861.)
III
DISPOSITION
We affirm the judgment. We also direct the trial court to modify the minute order dated June 8, 2016 to reflect that Holland's convictions on counts 1, 2, and 3 are for violations of Penal Code section 269, subdivision (a)(5).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. I concur: RAMIREZ
P. J.
McKINSTER, J. Dissenting and concurring.
I respectfully dissent from the majority's conclusion that there is substantial evidence in the record that defendant used force and duress to accomplish his vile acts of sexual penetration of a child, and that his convictions on counts 1 through 3 for aggravated sexual assault (Pen. Code, § 269, subd. (a)(5)) should stand. Defendant's molestation of his biological daughter is utterly reprehensible and appalling but, unlike the majority, I have reluctantly concluded the People have not produced substantial evidence he accomplished those acts through force or duress, such that they are punishable as aggravated sexual assault. Because I would reverse the convictions on counts 1 through 3, I must respectfully dissent from that part of the majority opinion. In all other respects, I concur.
I.
Jane Doe (Doe) was in the eighth grade and around 13 years old when her father started molesting her at her paternal grandparents' house, where defendant lived. Doe regularly visited her father and grandparents, but did not have a usable room of her own at her grandparents' house because the spare room "had stuff everywhere." At first, she would sleep on a couch in the living room; later, she would sleep in defendant's room after defendant had gone out for the evening. Doe testified that defendant started touching her when he would come home. At first, defendant would lie down on the bed with Doe and, as she was in a fetal position, he would rub her arm or back. As time went by, defendant "would gradually just move [Doe's] legs to open them." On more than five occasions, defendant inserted his fingers in Doe's vagina.
Things continued to get worse as more time went by. When Doe was 14 years old, defendant would come home smelling of alcohol or "weed." After defendant would rub and touch Doe's vagina, he would "kind of grab on [her] arm a little bit to kind of turn [her] over." Doe testified defendant would then kiss her "to make [her] feel, you know, like, willing." Defendant would then pull his penis out of his pants and "dry hump" Doe. After "dry humping" Doe, defendant "would move [Doe] into a position and then he would put his penis inside [her] vagina."
Defendant would tell Doe he was sorry, and that he knew what he was doing was wrong. But on other occasions, he said, "Damn, you're so wet," and told her to relax, that it would not hurt. He also said, "It feels good," and told her that she "had a grown woman pussy." Defendant had sexual intercourse with Doe more than five times and oral sex with her a couple times.
The People's crime charging decision, in my view, is simply inexplicable.
Doe testified that twice defendant sat on her chest and held her arms down as he placed his penis in her mouth. The People did not charge defendant with aggravated sexual assault by oral copulation. (Pen. Code, §§ 269, subd. (a)(4), 288a, subds. (c)(2)(3), (d); all additional statutory references are to the Penal Code unless otherwise indicated.)
Equally baffling to me is the failure of the People to charge other lesser related offenses for which there is an abundance of substantial evidence in the record to support numerous other convictions if they had been charged. If there were a failure of proof as to force and duress, the jury would be left with an allornothing choice, i.e., guilty or not guilty of the three aggravated sex offenses, with no optional lesser included offenses or lesser related offenses for which it could convict. Indeed, that is the choice that is left to us on appeal.
Doe tried to tell defendant to stop doing those things to her, but he would tell her to relax and that "it wouldn't hurt." When asked why she continued to visit her father even after he started having sex with her, Doe testified that she feared things would get "awkward" with her mother if she said she did not want to visit her father anymore, and she enjoyed visiting her grandparents. She also loved her father and felt their relationship was improving. Doe explained, "We didn't always, you know, have a really strong relationship like I wanted to, but we were trying to get better so that I can have a relationship with him." Doe thought that perhaps defendant believed having sex with her was one way for them to connect. Doe also testified she never told anyone at the time about what defendant was doing to her sexually because she feared she would be judged. She felt "terrible" and ashamed about the sexual abuse. The abuse stopped when the spare room at her grandparent's house was cleaned up, and she could lock the door when she went to sleep. However, the abuse continued once the room was no longer available, and she was "back in [her] father's room."
At age 16, Doe moved to another state with her mother. Before Doe traveled back to California to visit family during the summer when she was 16 or 17 years old, defendant "assured [her] that these things wouldn't happen again if [she] came out at some point for a visit." However, during a visit at her grandparents' house in July 2014, defendant had sex with her multiple times. Doe testified her vaginal area was swollen and red afterward. After the visit, and upon returning to her mother's house, Doe had swelling, redness, irritation, and a discharge in her vagina. A doctor diagnosed Doe with trichomonas, a very common sexually transmitted disease. When her mother asked who she "had been with," Doe was at first reluctant to say defendant had been having sex with her. Doe was afraid her mother would "freak out" and get "really upset." At first, Doe denied that she had had sex with anyone. Eventually, she told her mother that defendant had been having sex with her. Doe felt relieved after finally telling someone about what had happened to her. A couple days later, Doe's mother contacted the police in her home state to report the abuse.
See Centers for Disease Control and Prevention fact sheet at <https://www.cdc.gov/std/trichomonas/stdfact-trichomoniasis.htm> (as of Sept. 13, 2018).
Sometime later, Doe communicated with defendant by text message. Doe told defendant that she had to tell her mother about the sexual abuse. Doe thought defendant would be mad at her, so she apologized for telling her mother what had happened. Defendant texted Doe that he felt "horrible" and that he was "sorry," but he did not expressly admit having sex with her.
A clinical and forensic psychologist testified about child sexual abuse accommodation syndrome. About 85 percent of persons who are sexually molested as a child do not disclose the abuse until they are adults. A child may have more difficultly reporting sexual abuse by a relative with whom they share a strong bond, for fear of losing that relationship, or with whom the child wants to have a closer relationship in the future. The expert also testified that victims of child sexual abuse may have feelings of shame and guilt if they experienced pleasure from a sexual encounter with a family member, such as a biological father.
The parties stipulated that defendant's urine was tested for trichomonas vaginalis, and the result was negative. They also stipulated that a registered nurse would testify that urine tests are less accurate in men; that no test for trichomonas is 100 percent accurate; that the test may result in a false negative; and that the disease is treated with a course of antibiotics, which lasts up to two weeks.
Relevant here, a jury found defendant guilty of three counts of aggravated sexual penetration in violation of section 269, subdivision (a)(5), and the trial court sentenced defendant to three consecutive prison terms of 15 years to life.
II.
"'The law is clear and well settled. "On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]"'" (People v. Jones (2013) 57 Cal.4th 899, 960.) "In conducting such a review, we '"presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citations.]'" (People v. Lee (2011) 51 Cal.4th 620, 632.)
Section 269 provides in relevant part: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] . . . [¶] (5) Sexual penetration in violation of subdivision (a) of Section 289." (§ 269, subd. (a)(5).) Violation of section 269 is punishable by imprisonment in state prison for 15 years to life, and multiple convictions under that section for separate acts against the same victim on separate occasions shall be punished by consecutive sentences. (Id., subds. (b)-(c).) In turn, section 289 criminalizes sexual penetration "accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim of another person . . . ." (§ 289, subd. (a)(1)(A).)
As relevant here, "'Sexual penetration'" is defined as "the act of causing the penetration, however slight, of the genital or anal opening . . . by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) "'Foreign object'" includes "any part of the body, except a sexual organ," and "'[u]nknown object'" includes a penis only "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." (Id., subd. (k)(2), (k)(3).)
A. Force.
The majority concludes the record contains substantial evidence that defendant used force to accomplish aggravated sexual penetration. "Force, in this context, means physical force that is '"substantially different from or substantially greater than that necessary to accomplish the lewd act itself."'" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004 (Alvarez), quoting People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).) "According to the majority of courts, this includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves. [Citations.]" (Alvarez, at p. 1005.)
First, I am not convinced that a reasonable lay jury would have considered whether defendant accomplished the charged crime of aggravated sexual penetration by means of force, such that the convictions should be affirmed on that basis. True, the first amended information alleged that defendant committed counts 1 through 3 by means of force, violence, duress, menace, or fear. Also true, the trial court instructed the jury with CALCRIM No. 1045 that the crimes of aggravated sexual assault as alleged in counts 1 through 3 included the element that "the defendant accomplished the act [of sexual penetration] by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to another person," and the court properly instructed the jury on the meaning of force.
But during closing arguments, the prosecutor essentially told the jury to ignore the theory of force and to focus on duress. After telling the jury that the crimes charged in counts 1 through 3 "can be accomplished by duress, force, violence, fear, intimidation, and so forth," the prosecutor informed the jury, "It's the People's theory in this case that [the sexual penetration] was under duress, that's what led her to submit to these acts." (Italics added.) The prosecutor explained the elements of the crime to the jury, then reiterated his argument that "[t]he defendant accomplished these acts by duress."
On appeal, the People essentially concede there is insufficient evidence that defendant accomplished his acts of aggravated sexual penetration by force and, instead, the People defend the convictions on those counts solely on the theory of duress.
The prosecutor also told the jury that, when deciding whether the evidence established duress, it should consider Doe's and defendant's relative ages and sizes, as well as "the relationship between a biological father and a biological daughter, where a daughter loves her father dearly and trusts [him], and you can think about the type of trust that they have." Although Doe was an 18-year-old woman when she testified, the prosecutor asked the jury to remember that the alleged abuse occurred when she was much younger and when she was almost 20 years younger than defendant. "[S]he was not an adult at the time these things were occurring. She was a 12- or 13-year-old girl. This was five to six years ago. There's an entirely different person, an entirely different time of life and mind-set. You can think about those things when considering whether or not she was subjected to a certain level of duress that made her submit to these things that no normal person would submit to." The prosecutor also told the jury to consider all of the circumstances of the alleged abuse. "You think about the nighttime, when it occurred. There's no one around. There's no one to ask for help. You think about her age at the time."
As this court recently noted, "Ordinarily, for purposes of substantial evidence review, 'the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury.'" (People v. Brown (2017) 11 Cal.App.5th 332, 341, quoting People v. Perez (1992) 2 Cal.4th 1117, 1126.) That rule is complimentary to the rule that "[w]e may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented. [Citation.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529, italics added.) In most, if not almost all cases, it makes perfect sense to not be bound by the prosecutor's articulated theory when determining whether the judgment is supported by substantial evidence. But, although technically the theory of aggravated sexual penetration by force was "presented" to the jury here, I am skeptical that any reasonable lay jury, having been told by a professional prosecutor to focus solely on the theory of duress, would have ignored the prosecutor and found defendant guilty based on the evidence of force. Legal fictions may have their place, but sometimes practical reality should counsel against their application. (Cf. In re Lawanda L. (1986) 178 Cal.App.3d 423, 431 [observing that the fact a juvenile offender is not deemed to have been convicted of a crime "'is a legal fiction, presenting a challenge to credulity and doing violence to reason'"].)
In any event, Doe's testimony does not, in my view, establish defendant used force for purposes of aggravated sexual penetration. The majority conclude, "Holland overcame [Doe's] resistance by grabbing her arm, turning her over, pushing her legs apart, then lying on top of her and grinding his body onto hers before putting his fingers in her vagina." (Italics added.) I do not believe the record supports that statement.
Doe testified that, when defendant would come home and lie in bed next to her, she "would just face the wall and get into a fetal position" if he "touched me or, like, you know, rubbed me." She did not testify that she got into a fetal position as an act of resistance. And even if that is a fair inference to be drawn from Doe's testimony, her testimony about what defendant did to overcome that resistance was far more tentative than suggested by the majority. Doe testified defendant "gradually" "move[d]" her legs apart before rubbing her vagina and digitally penetrating her, not that he pushed her legs apart. And I do not believe the record supports the majority's conclusion that defendant got on top of Doe and dry humped her before accomplishing the acts of digital penetration. Instead, Doe testified that, after defendant would digitally penetrate her, he would grab her arm "a little bit," "kind of" turn her over, get on top of her, and dry hump her before penetrating her vagina with his penis. Defendant's use of force after he digitally penetrated Doe, to accomplish his acts of penetration with his penis, does not in my opinion constitute substantial evidence that he used force to accomplish the crimes charged in counts 1 through 3, to wit, digital sexual penetration. (§§ 269, subd. (a)(5), 289, subd. (a)(1)(A); see § 289, subd. (k)(1)-(3).)
On this record, I am not convinced that the People introduced substantial evidence that defendant used force that was "'"substantially different from or substantially greater than that necessary to accomplish the lewd act itself."'" (Alvarez, supra, 178 Cal.App.4th at p. 1004, italics added.)
B. Duress.
The majority also concludes the convictions are supported by substantial evidence of duress. In People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitmon), the court interpreted the term "duress," as it is used in the context of lewd and lascivious conduct in violation of section 288, subdivision (b)(1), "to mean a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or (2) acquiesce in an act to which one otherwise would not have submitted." (Pitmon, at p. 50, fn. omitted, disapproved on another ground by People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 (Soto).) The court in Cochran, supra, 103 Cal.App.4th 8 adopted that definition of "duress" for purposes of aggravated sexual assault. (Id. at p. 13, disapproved on another ground by Soto, at p. 248, fn. 12; see People v. Leal (2004) 33 Cal.4th 999, 1005 (Leal) [citing with approval Cochran's adoption of Pitmon's definition of "duress"].)
"'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.]" (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) "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.' [Citation.] . . . [D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] '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' is relevant to the existence of duress. [Citation.]" (People v. Schultz (1992) 2 Cal.App.4th 999, 1005.)
The People do not argue duress was present in this case because defendant threated to harm Doe, that he had previously harmed her, or that she submitted out of fear of future harm. Instead, they contend the evidence in this case established duress "based primarily on the nature of Doe's relationship with [defendant]." The People argue the jury could infer from the evidence that, because Doe wanted a closer relationship with her father, she felt pressure to submit to him or risk losing her relationship with him. In addition, the People contend the jury could infer that defendant took advantage of Doe's desire for a closer relationship and coerced her to engage in sexual penetration.
As this court recently concluded, the nature of a relationship between a young girl and her father or stepfather will often be sufficient to prove that sexual assault was accomplished by duress. "The fact that the victim testifies the defendant did not use force or threats does not preclude a finding of duress. [Citation.] When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases. [Citations.]" (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072-1073.) In Thomas, the sexual abuse began when the victim was four years old and continued until she was 14 years old. (Id. at pp. 1067-1068, 1073.) In People v. Veale (2008) 160 Cal.App.4th 40, the victim was six or seven years old when the abuse began. (Id. at pp. 42-43, 46.) We noted that the victims' very young ages made them especially susceptible to coercion. (Thomas, at p. 1073; Veale, at pp. 48-50.) But, in both cases, the evidence of duress was in large part based on the victims' fear of physical harm to themselves or to their mothers. (Thomas, at pp. 1067-1068; Veale, at pp. 44, 47.) For example, in Thomas we concluded, "[t]he jury could reasonably have found that [the defendant's] continual beatings constituted an implied threat of violence or danger if [the victim] did not submit to his sexual abuse." (Thomas, at p. 1073.)
Doe was 12 or 13 years old when defendant started sexually molesting her, which is substantially older than the victims in Thomas and Veale. And there is no evidence in the record that defendant ever harmed or threatened to harm Doe physically, and Doe did not testify that she feared for her or someone else's safety unless she submitted to the sexual abuse. The mere fact of the father-daughter relationship in this case is insufficient to establish duress.
In no way do I endorse a hard and fast rule that a girl of 12 years is not susceptible to duress by her biological father. But the cases where the inherent nature of the relationship was found to support a finding of duress involved girls who were much younger than the victim in our case, and they also involved much stronger evidence of force and duress than was presented here.
When a child victim is older and there is no evidence of an express threat, duress is only found when "there is evidence that 'the victim['s] participation was impelled, at least partly, by an implied threat . . . .' [Citation.]" (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321 (Espinoza) [victim was 12 years old].) The implied threat to the victim need not be a threat of physical violence to constitute "duress." "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. . . . [S]uch a threat also represents a defendant's attempt to isolate the victim and increase or maintain her vulnerability to his assaults." (Cochran, supra, 103 Cal.App.4th at p. 15.) For example, the defendant in Cochran told his victim "not to tell anyone because he would get in trouble and could go to jail." (Ibid.) In addition, a threat to withhold something from the child may constitute duress. (Leal, supra, 33 Cal.4th at p. 1012 ["A threat to withhold a child's promised allowance might well fall within these definitions, as would innumerable other threats."].)
Doe did not testify defendant ever threatened, expressly or impliedly, to withhold his love from her or that she would lose her relationship with him unless she submitted to his sexual advances. Nor did Doe testify that defendant warned her not to tell anyone what he had done to her because he would get in trouble. At most, Doe testified that she wanted a closer relationship with defendant, that she believed defendant had sex with her as a means of getting closer, and defendant told her not to worry and that sex would not hurt. This case is similar to Espinoza, where the court concluded "[n]o evidence was adduced that defendant's lewd act and attempt at intercourse were accompanied by any 'direct or implied threat' of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Espinoza, supra, 95 Cal.App.4th at p. 1321.)
During oral argument, the People acknowledged that Espinoza is the "key case," and that the judgment here may be affirmed only if we can distinguish Espinoza. For the reasons stated infra, I do not believe Espinoza is distinguishable.
The majority question the continued validity of Espinoza. As the majority states, Espinoza quoted (with apparent approval) the decision in People v. Hecker (1990) 219 Cal.App.3d 1238 (disapproved on another ground by Soto, supra, 51 Cal.4th at p. 248, fn. 12). Hecker stated, "'Psychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger, hardship or retribution.'" (Hecker, at pp. 1250-1251.) Later, the court in Cochran (the same court that decided Hecker) concluded the language from Hecker that Espinoza quoted was "overly broad." (Cochran, supra, 103 Cal.App.4th at p. 15.) As Cochran stated, "The very nature of duress is psychological coercion. 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." (Cochran, at p. 15.)
Cochran and Espinoza are consistent. Cochran did not hold that duress may be present in the absence of a direct or implied threat. To the contrary, the test of duress that it adopted expressly requires such a threat. (Cochran, supra, 103 Cal.App.4th at p. 13.) I read Cochran to merely hold that when an abuser's direct or implied threat of harm, retribution, or hardship results in a child's psychological coercion, a sufficient showing of duress has been made. The child in Espinoza testified she was scared during the molestation, and that she did not report what happened because she "was afraid that defendant 'would come and do something'" to her. (Espinoza, supra, 95 Cal.App.4th at p. 1293.) But the child never testified to an express or implied threat of harm, retribution, or hardship that caused her to have such a fear, and the prosecutor in that case, as here, relied on the father's age, size, and other factors such as the nature of the father-daughter relationship to establish duress. (Id. at p. 1319.) Because the prosecutor introduced no evidence of a direct or implied threat, the court found there was no showing of duress. (Id. at p. 1321.) In other words, the prosecutor failed to establish that a direct or implied threat resulted in the child's psychological coercion. In my view, the same is true in this case.
Because I would reverse defendant's convictions on counts 1 through 3 for aggravated sexual assault, I would remand for the trial court to enter a judgment of conviction on those counts for the only lesser included offense that was presented to the jury, assault in violation of section 240, and to resentence defendant. (People v. Howard (2002) 100 Cal.App.4th 94, 99 ["[A]n appellate court may reduce a conviction to a lesser included offense if the evidence supports the lesser included offense but not the charged offense."]; see § 1181, subd. 6.)
In the respondent's brief, the People conceded that, if this court were to reverse the convictions for aggravated sexual assault, retrial on those offenses and any lesser included offenses that were not presented to the jury would be barred by statutory and constitutional double jeopardy principles. (§ 1023; People v. Eroshevich (2014) 60 Cal.4th 583, 591.) During oral argument, the People also conceded that a retrial of lesser related offenses, such as lewd and lascivious acts (§ 288), would be barred by section 654. (People v. Goolsby (2015) 62 Cal.4th 360, 365-366.) --------
III.
As I stated at the outset, defendant's conduct in this case is vile and reprehensible. Had the People argued and proven defendant accomplished his acts of sexual penetration by force or duress, I would join the majority and vote to affirm defendant's convictions on counts 1 through 3. Because I conclude the People did not prove their case, I must respectfully dissent from that portion of its opinion. In all other respects, I concur in the majority opinion.
McKINSTER
J.