Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF107735, Bernard Schwartz, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Melissa Mandel and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A jury found defendant and appellant Sergio Alonso Pesqueira guilty of eight counts of forcible lewd acts upon a child under the age of 14 by use of duress, in violation of Penal Code section 288, subdivision (b) (counts 1-8), and eight counts of a lewd act upon a child under 14 in violation of section 288, subdivision (a) (counts 9-16). Defendant was sentenced to a total prison term of 64 years.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant makes three arguments. First, there is insufficient evidence of duress as to counts 1 and 8, which deal with violations of section 288, subdivision (b). Defendant seeks a reduction on those counts to violations of section 288, subdivision (a). Second, this court should strike references in the sentencing minute order and abstract of judgment to fines imposed under section 290.3, because such fines were not imposed during the oral pronouncement of sentence. Third, the trial court misunderstood its discretion with regard to imposing a fine under sections 1202.4 and 1202.45 and the matter should be remanded for further consideration.
We conclude that substantial evidence supports a finding of duress under section 288, subdivision (b). As to the fines imposed under section 290.3, the People concede that the fines should be stricken, and we agree. Relative to the fines imposed under sections 1202.4 and 1202.45, defendant has failed to establish error.
II. FACTS
Defendant was found guilty of eight counts of forcible lewd acts upon A.P., a child under the age of 14, in violation of section 288, subdivision (b). He was also convicted of eight counts of a lewd act upon another child under 14, J.P., in violation of section 288, subdivision (a). Defendant challenges the sufficiency of the evidence as to counts 1 and 8 only. Because these counts concern incidents involving victim A.P., we truncate our recitation of the facts as to the other counts and omit facts concerning J.P.
A.P. is defendant’s daughter. Defendant has numerous children, including J.P., with other women. During the relevant time frame, defendant would go back and forth between the homes of his children, staying at A.P.’s house one to two weeks per month.
At the time of her testimony, A.P. was 25 years old.
Count 1 relates to an incident that occurred when A.P. was six years old. Defendant was lying on the couch; A.P. was on him. Defendant told A.P., “Pretend I’m a horse.” A.P. did not have any bottom clothing on and defendant’s pants were unzipped, exposing his penis. Her vagina was touching his penis.
Count 8 involved an incident in which A.P. was sitting sideways on defendant’s lap facing behind him. Defendant put her hand on his penis and told her to massage it. At the time, A.P. thought she was touching his arm and did not realize that she was doing anything wrong.
A.P. described other sexual acts occurring between the ages of six and eleven. The touching and contact eventually involved actual intercourse around the time she was in the 4th grade, when she was either nine or ten years old. During intercourse, A.P. would tell defendant, “It hurts. It hurts.” Defendant would not say anything and would continue the intercourse. She would cover her head with a pillow so she did not have to see him. After intercourse, defendant would always wipe A.P. with tissues and soap that he kept in his pocket. Defendant would then go into the bathroom and clean himself.
A.P. also testified that the sexual intercourse began when she was six.
During this time period, defendant would vaguely refer to the events. While driving, he would look at A.P. and say, “I’m sorry.” She tried to get defendant to say what he was sorry for, but he would not say why. When A.P. was nine years old, defendant told her, “I’ll never do anything bad to you again. I’m sorry.”
The conduct stopped around the time A.P. was 11 years old. A.P. testified that until the last incident, she never tried to stop defendant because she was afraid. Defendant would tell her that whatever happened in the family should stay in the family. He threatened her by telling her that she did not want to end up on the streets and that she would not survive by herself. Defendant was a very strict parent and was protective of A.P. A.P. was disgusted with defendant and hated him.
A.P. wanted to tell her mother, but thought her mother was happy and A.P. did not want to make her sad. A.P. also thought her mother would not believe her. A.P. thought that if she told anyone she would be taken away from her mother. She did, however, write a letter to a junior high school friend in which she revealed what happened. She instructed the friend not to tell anyone and to immediately rip up the letter. A.P. also separately discussed it with another friend, as well as her half sister.
Defendant denied all allegations against him and testified that he did not molest, rape, or inappropriately touch his daughters. Defendant testified that he made his statement to the police admitting that he committed the alleged acts because he felt pressured and thought that if he admitted the allegations the police would let him go.
Defendant was found guilty on all counts and sentenced to a total term of 64 years.
III. DISCUSSION
A. Sufficiency of the Evidence of Duress in Counts 1 and 8
Defendant asserts there is insufficient evidence that he used duress to overcome the will of A.P. as to count 1, wherein defendant told her to pretend he was a horse, and as to count 8, wherein defendant directed A.P. to masturbate him. He requests this court to reduce the convictions to violations of section 288, subdivision (a). We disagree and hold there is sufficient evidence that he used duress in committing each of the crimes.
In determining whether a judgment should be set aside for insufficiency of the evidence, the court must “review the record in the light most favorable to the judgment ‘“to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004; People v. Davis (2009) 46 Cal.4th 539, 606.)
Section 288, subdivision (a) provides: “[A]ny person who willfully and lewdly commits any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony....” Section 288, subdivision (b)(1) provides: “Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony....”
“Duress, ” as used in section 288, subdivision (b)(1), means “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.” (People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. omitted, disapproved on another point in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12; People v. Leal (2004) 33 Cal.4th 999, 1004.) In determining whether duress was present, “[t]he total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” (People v. Pitmon, supra, at p. 51.) “‘“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.’” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320.) “‘[D]uress involves psychological coercion.’” (Ibid.) “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.” (People v. Cochran (2002) 103 Cal.App.4th 8, 14.) “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.” (Id. at p. 15.)
Defendant accepts the basic premise that the threat to A.P. that she would “be out in the street by [her]self” is sufficient to establish duress. He argues, however, that as to the two incidents in question, the prosecutor did not tie down the duress to the acts themselves. He submits that the evidence is insufficient to place this threat together with the two incidents in light of A.P.’s testimony that she “barely [has] an image” of the horse ride incident and that during the masturbation incident she thought she was touching his arm and did not think anything was wrong with the conduct.
While we agree with defendant that the prosecutor did not specifically tie down the timing of defendant’s comment that A.P. could not survive on the street by herself, there nonetheless is sufficient evidence to support the judgment when the evidence is viewed in the light most favorable to the judgment.
Within this vein, we believe the jury could reasonably infer that defendant’s threat of hardship was made during the time frame when the conduct occurred that forms the basis for counts 1 and 8.
At the time of the horse ride incident, A.P. was six years old. She testified that by the time she was six she understood what sex was. Defendant is her biological father, with whom she resided much of the year. The acts occurred in the family home that A.P. shared with defendant and her mother. They happened when A.P. was alone with defendant and her mother was away at work. A.P. stated that even when she was six years old defendant was a strict disciplinarian whom she did not question. She testified that the sexual conduct occurred between the ages of 6 and 11 and that defendant would “always... have talks” with her about “whatever happens in the family, stays in the family.” She further testified that defendant told her, “‘[y]ou don’t want to be out in the street by yourself, do you?’... ‘What would you do without a family. You won’t survive out there by yourself.’” A.P. took this as a threat that she would be thrown out of the house or be taken away from her mother. A.P. also testified that when she was six or seven she saw a newspaper clipping about three children who were molested by their father and removed from their mother’s custody. She was afraid that if she told anyone about defendant’s conduct, she would have to leave her mother.
Given A.P.’s awareness of sexual conduct at the age of six, her desire not to be taken from her mother, the fact that defendant always had talks with her, and the fact that she did not question his directives, there is sufficient evidence to support the element of duress as to both counts. Lastly, as it relates to the masturbation incident, the evidence demonstrated that defendant physically placed A.P. on his lap, took her hand and placed it on his penis, and told her to massage it. This coercive conduct is further support for a finding of duress relative to count 8.
Defendant relies on People v. Espinoza, supra, 95 Cal.App.4th 1287, a case distinguishable on its facts. In Espinoza, the defendant molested his daughter on numerous occasions. The court held that the daughter’s dependence on the defendant, their size and age disparities, her limited intellectual level, and her fear of the defendant was insufficient to prove duress where there are no threats made to the victim. (Id. at pp. 1291-1293, 1319). The Espinoza court stated that “‘“[p]sychological coercion” without more does not establish duress. At a minimum there must be an implied threat of “force, violence, danger, hardship or retribution.”’ [Citation.]” (Id. at p. 1321.) Further, “[d]uress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat....’” (Ibid.) The court stated that what was lacking in Espinoza was the direct or implied threat “‘“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.”’” (Ibid.)
Espinoza is distinguishable. Here, we have evidence that even at the age of six, A.P. did not question defendant’s directives. Further, defendant “always” indicated to A.P. that whatever happened in the family stayed in the family and warned A.P. that she did not want to find herself separated from the family and out on the streets. This evidence in itself is sufficient to support a conclusion that A.P. was impliedly threatened with a hardship if she did not cooperate. Accordingly, we affirm the convictions as to both counts 1 and 8.
B. References to a $1,700 Fine Pursuant to Section 290.3 in the Minute Order and Abstract of Judgment
Section 290.3, subdivision (a) provides, in part: “Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” This statute “requires the trial court to impose a fine of the prescribed amount, or to impose no fine at all if it determines that the defendant does not have the ability to pay the fine.” (People v. Walz (2008) 160 Cal.App.4th 1364, 1370.)
At defendant’s sentencing hearing, the court pronounced sentence and imposed fines pursuant to sections 1202.4 and 1202.45, but did not mention section 290.3 and did not impose the fine authorized by that statute. The People did not object to the omission. Nevertheless, the court’s minute order for the hearing and the abstract of judgment state that the court imposed a fine pursuant to section 290.3 in the amount of $1,700.
Defendant contends the references to the section 290.3 fine in the minute order and abstract of judgment constitute error. The People do not dispute this point. We agree.
As noted above, the trial court may decline to impose a fine pursuant to section 290.3 if it determines the defendant does not have the ability to pay the fine. (§ 290.3, subd. (a).) The oral pronouncement of judgment in this case includes no mention of a section 290.3 fine. When, as here, the record is silent on this matter, “we presume the trial court determined that defendant did not have the ability to pay and thus should not be compelled to pay the fine. [Citations.] This presumption is a logical extension of the rule ‘concerning the presumption of regularity of judicial exercises of discretion apply[ing] to sentencing issues.’ [Citations.]” (People v. Burnett (2004) 116 Cal.App.4th 257, 261; cf. People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
The oral pronouncement of judgment is the rendition of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) “Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. ‘The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation] it cannot add to or modify the judgment which it purports to digest or summarize.’ [Citation.]” (Ibid.; see also People v. Mitchell (2001) 26 Cal.4th 181, 185.) A court clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order or the abstract of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) Therefore, when, as here, a fine not imposed during the oral pronouncement of judgment is added to a minute order and abstract of judgment, it is contrary to the judgment and must be stricken. (See id. at p. 389.)
The People contend the trial court should be directed to consider the section 290.3 fine following remand. We disagree. The Supreme Court of California addressed a similar issue in People v. Tillman (2000) 22 Cal.4th 300. In Tillman, the prosecutor did not object when the trial court failed to impose restitution fines pursuant to sections 1202.4 and 1202.45. (People v. Tillman, supra, at pp. 301-302.) These statutes require trial courts to impose a restitution fine as part of the judgment of conviction of a criminal defendant unless the sentencing court “‘finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.’” (Id. at p. 302.) The Court of Appeal amended the judgment to add the fines. (Ibid.) The Supreme Court reversed (without directing the matter be considered by the trial court on remand) because the People’s failure to object to the trial court’s omission waived the issue on appeal. (Id. at p. 303.)
Here, the time for raising the issue regarding the court’s omission of the section 290.3 fine was at the sentencing hearing. Under Tillman, the failure to object at that hearing waives the right to challenge the omission on appeal. (See People v. Burnett, supra, 116 Cal.App.4th at p. 262; cf. People v. Sharret, supra, 191 Cal.App.4th at p. 864.) Although Tillman did not involve a request for a new hearing after remand, that should not affect its applicability here. Tillman’s holding was based upon the principle of waiver. A determination that an argument has been waived would have little meaning if a party could simply raise it again in the trial court after remand. Moreover, a primary purpose of the waiver principle is to “‘reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.’ [Citation.]” (People v. Tillman, supra, 22 Cal.4th at p. 303.) Directing the trial court to hold a new sentencing hearing because the People failed to raise an issue the first time would not serve these goals.
The People cite to People v. Zackery, supra, 147 Cal.App.4th 380, as an example of a case in which a Court of Appeal remanded the case to the trial court with directions to consider whether to impose restitution fines that were not addressed at the initial sentencing hearing. (Id. at pp. 389, 394.) Zackery is not controlling on this point. The court set forth a statement of specific issues it was addressing that did not include any question as to whether the People waived the argument concerning the trial court’s failure to impose the fine. (Id. at pp. 384-384.) The trial court’s error is described by the Court of Appeal as “clerical, ” and the court’s remand directions are made without any discussion of waiver and without any mention of Tillman or other authority on the issue. (People v. Zackery, supra, at pp. 386-389.) Decisions are not authority on issues not considered. (People v. Stone (2009) 46 Cal.4th 131, 140.) Accordingly, we reject the People’s reliance on Zackery for this point.
C. Restitution Fines Under Sections 1202.4 and 1202.45
The court imposed a restitution fine under section 1202.4 in the amount of $3,200, and a like amount under section 1202.45. Defendant contends the court misunderstood its discretion in imposing these fines and should be directed to consider the matter again. Because we conclude defendant has failed to establish error, we reject the argument.
Under section 1202.4, subdivision (b): “[T]he court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony....” (Id., subd. (b)(1).) “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (Id., subd. (b)(2).) If an amount over $200 is imposed, the court must also “consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime.” (Id., subd. (d).)
Here, the probation department recommended a section 1202.4 fine in the amount of $6,000. The probation report did not explain how that number was calculated.
At the sentencing hearing, the following colloquy took place:
“THE COURT:... The requested restitution fine... under [section] 1202.4 is $6,000. [¶] Did you wish to be heard on that, [defense counsel]?
“[DEFENSE COUNSEL]: I would ask the Court, if you would be amenable to reducing that.
“THE COURT: Do you have a suggested amount? I can do $200 per count. That would be the minimum and there’s 16 counts. So it would be $3,200.
“[PROSECUTOR]: I would submit, your Honor.
“[DEFENSE COUNSEL]: Thank you, your Honor.
“THE COURT: The Court will reduce the restitution fine under [section] 1202.4 to $3,200, a like fine in the amount of $3,200 to be imposed under [section] 1202.45....”
Defendant argues (and the People do not dispute) that the $200 statutory minimum is the minimum fine that can be imposed per case, not per count. According to defendant, the court erroneously believed the minimum was $200 per count and, based on that belief, imposed a fine of $3,200 (the minimum of $200 per count for each of the 16 counts). If defendant is correct, the trial court misunderstood the law and therefore could not have properly exercised its discretion in imposing the fine. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.)
Defendant’s interpretation of the court’s understanding is plausible, but not the only interpretation. Initially, we note that the court is statutorily permitted to consider “any relevant factors” in determining the amount of the fine, including “the seriousness and gravity of the offense and the circumstances of its commission.” (§ 1202.4, subd. (d).) The court may even determine the amount of the fine by multiplying $200 by the number of years the defendant is sentenced, “multiplied by the number of felony counts of which the defendant is convicted.” (Id., subd. (b)(2).) Clearly, the court was permitted to consider the number of felony counts defendant is convicted of in determining the amount of the fine.
In this light, it is possible, as the People suggest, that the court’s statement, “I can do $200 per count, ” was a manner of saying, “I am willing to impose no less than $200 per count.” That is, “can do $200” does not refer to the statutory minimum, but to the lowest amount, on a per count basis, the court was willing to consider—even though the court knew it could impose as little as $200 for the entire case. If this interpretation is accurate, the court understood the law and the scope of its discretion, and there was no error.
Based on our record, we cannot say with certainty which interpretation is correct. However, we generally must presume the trial court properly followed the law (People v. Diaz (1992) 3 Cal.4th 495, 567), and understood the scope of its discretion in sentencing (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527). It is the defendant’s “burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the defendant.” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) To meet this burden, defendant could have, for example, pointed out to the trial court that he believed the court misunderstood the nature of its sentencing discretion. This would likely have clarified the court’s understanding and provided a clear record for us to determine whether that understanding was correct or not. By leaving us with an ambiguous record, defendant has failed to demonstrate error. Accordingly, we reject his argument.
IV. DISPOSITION
The references to a $1,700 fine imposed pursuant to section 290.3 in the court’s minute order dated April 16, 2010, and in the abstract of judgment, are stricken and the judgment is so modified. The trial court is directed to prepare a minute order reflecting this modification and an amended abstract of judgment that omits any reference to such fine. The trial court is further directed to forward a copy of the minute order reflecting the court’s modification of the judgment and the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKinster, Acting P.J., Miller, J.