Opinion
E051390
11-04-2011
THE PEOPLE, Plaintiff and Respondent, v. PAUL ANTHONY ROBLEDO, Defendant and Appellant.
Richard de la Sota, 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, Mike Murphy and James D. Dutton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF152776)
OPINION
APPEAL from the Superior Court of Riverside County. H. A. Staley, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard de la Sota, 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, Mike Murphy and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Paul Anthony Robledo guilty of 12 counts of committing lewd acts upon a person under the age of 14 by the use of force or duress. (Pen. Code, § 288, subd. (b)(1).) Defendant was sentenced to a total term of 36 years in state prison with credit for time served. Defendant's sole contention on appeal is that seven of the 12 counts should be reduced to a violation of section 288, subdivision (a), because there was insufficient evidence to support the jury's verdict that those counts were committed by the use of force or duress. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Defendant sexually abused the victim from the time she was 9 or 10 years old until November 2004, when she was 11 years old, while she was living in the same house with defendant. He repeatedly sodomized her, forcibly made her orally copulate him, and forcibly orally copulated her and fondled her more than 30 times. At the time of trial, the victim was 16 years old. Defendant was the victim's uncle. The victim liked defendant before the molestations occurred.
Up until November 2004, the victim lived with her siblings, her parents, and numerous other relatives, including defendant, in her grandparents' house. The first incident occurred when defendant went upstairs to the victim's bedroom and shut the door. The victim was sitting on her bed when defendant came up to her, placed his hand on the her leg, and told her, "What I'm going to do to you is fine. It's normal. You don't have to tell anyone, but if you do, you're going to go to hell." Defendant then took the victim by her wrist with his hand to his bedroom and shut the door. He undid the victim's pants, put his hand down her pants, and touched her vagina, skin to skin. Defendant repeatedly told the victim that it was okay and that she did not need to tell anybody "because it was normal."
The victim recalled that another incident occurred when she, defendant, and the victim's two siblings were playing hide and seek in the house. Defendant said that he and the victim can count upstairs and sent the victim's siblings downstairs to hide. Defendant then took the victim to her grandmother's closet, placed his hands on her, took her pants off, leaned her on to her stomach, and inserted his penis into her buttocks. The victim told defendant they needed to go find her siblings, and the incident eventually stopped.
On another occasion, the victim recalled one of the first times that defendant tried to make her kiss him while in his bedroom. Defendant said to the victim, "That's not how you do it." Defendant then stuck his tongue into the victim's mouth and said, "That's how you're supposed to do it." Defendant kissed the victim in her mouth "[e]very time" he touched her.
Defendant also put his mouth on the victim's vagina and afterward tried to make the victim orally copulate him by grabbing her head and putting her mouth to his penis. When the victim resisted, defendant repeatedly said, "It's my turn, you have to do it." He also held the victim's head down to his penis as the victim tried to lift her head up. The victim did not want to orally copulate defendant. Defendant made the victim put her mouth on his penis around five different times in his bedroom, and he put his mouth on the her vagina more than five times.
The victim recalled that defendant inserted his erect penis into her buttocks "almost" every time he touched her. Specifically, she remembered that it occurred more than five times. She also remembered defendant trying to insert his penis into her vagina on more than two occasions. One time, it hurt and the victim told him no. Defendant covered her mouth and held her down. The victim did not want to engage in vaginal intercourse at all; she would not stop moving and repeatedly told him to stop. The victim also tried to get out from underneath defendant, but defendant was bigger.
The victim also recalled an incident that occurred while driving in her parents' vehicle. The victim's parents were in the front seat and she, her siblings, and defendant were in the back seat. Defendant was on one side of the victim, while her siblings were on the other side. The victim had a blanket over her and defendant put his hand inside the victim's pants, touching her vagina, skin to skin.
Defendant molested the victim more than 30 times. Most of the molestations occurred at night, after dinnertime. The victim's mother worked at night, and her father would be busy around the house. The victim's grandmother would not get home until after 8:00 p.m. when she got off work.
The victim repeatedly tried to get away from defendant and told him to stop. However, defendant would stand in front of the door, talk her out of it, and say "nothing was wrong, everything was okay," and that she did not have to worry. In addition, most of the times the molestations occurred, defendant told the victim that she would go to hell if she told anybody. The victim believed defendant because "he was [her] uncle," and she "was supposed to believe him." During this time period, the victim went to church every Sunday with her immediate family, and she learned about heaven, hell, and God. The victim also explained that she did not tell anyone because she was scared of defendant and of people not believing her. The victim did not know what defendant would do to her if she disclosed the molestations. The victim explained, "He wouldn't hit me or threaten me, but he was bigger than me. If he would force me to stay there while he did things to me, I didn't doubt he would do things to me if I did tell."
The victim's mother first noticed distress signs when the victim was eight or nine years old. The victim would say that God did not love her and that everyone hated her. The victim also did not want to be touched or breathed upon. The victim's mother also noticed changes in the victim's behavior after the molestations ceased. The victim did not want to attend defendant's wedding, she did not attend defendant's rehearsal dinner, and she did not want to be around defendant.
The victim eventually disclosed the molestations to her friend in 2009. She told her friend that her uncle had raped her. The following month, when the victim and her friend were texting about the molestations, her mother saw the texts and questioned the victim about it. She eventually disclosed the molestations to her mother and began seeing a therapist. She told the therapist that the sexual abuse began when she was nine years old and ceased when she was 11 years old. The therapist reported the sexual abuse to authorities. The victim spoke with Riverside County Sheriff's Deputy Joel Ramos in May 2009.
An audiotape of the interview with Deputy Ramos was played for the jury, and a copy of the transcript of the interview was admitted into evidence.
Defendant's defense was essentially that the molestations never occurred and that the victim was lying. In support, he attempted to discredit the victim's testimony and brought in several of his relatives and his wife to testify that they never saw defendant alone with the victim. Some of the relatives also testified as to the victim's conduct after the molestations stopped and how the victim did not avoid defendant and considered defendant to be her favorite uncle.
Defendant, who was 18 and 19 years old in 2003 and 2004, also testified. He denied all the allegations made by the victim. He claimed that he never told her she was going to hell and he never touched her inappropriately. He further maintained that after he and his wife moved to Santa Maria, he had continued to play online video games with members of his family, including the victim.
In rebuttal, the victim testified that after defendant moved she did not interact with him directly and that she did not want to see defendant at his wedding. An expert on the child sexual abuse accommodation syndrome (CSAAS) also testified in rebuttal. The expert explained certain types of behaviors that are common in children who have been molested by a person in a position of trust, such as a family member, a teacher, or a coach. The expert noted that the biggest misconception about a child's behavior is that the child will disclose the molestation. She also discussed the elements of CSAAS.
II
DISCUSSION
Defendant contends there was insufficient evidence to support the jury's verdict that seven of the 12 counts were committed by force or duress, and thus they should be reduced to violations of section 288, subdivision (a). In a related claim of error, defendant challenges the body of evidence introduced by the prosecution consisting of nonspecific or "generic" testimony of indistinguishable incidents, lacking details regarding the time, place, and circumstances of various alleged assaults. Specifically, he contends that the generic testimony of the victim was insufficient to support his convictions "as to any particular count." We disagree.
Defendant appears to concede that the five incidents involving defendant forcing the victim to orally copulate him are based on sufficient evidence of force or duress.
"We often address claims of insufficient evidence, and the standard of review is settled. 'A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows 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." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citations.]" (People v. Moon (2005) 37 Cal.4th 1, 22.) Before we may set aside a judgment for insufficiency of evidence, it must clearly appear that there is no hypothesis under which we could find sufficient evidence. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (Young, at p. 1181.)
Initially, we address defendant's claim that the victim's testimony was too generic to support the jury's verdict. Similar claims were carefully considered and rejected by the California Supreme Court in People v. Jones (1990) 51 Cal.3d 294 (Jones), which affirmed four convictions of lewd and lascivious acts on children under the age of 14 based on evidence not particularized as to time or place. For such cases, the court in Jones set forth three requirements to satisfy the above challenges: (1) the victim must describe the kind of act or acts committed with sufficient specificity; (2) the victim must describe the number of acts with sufficient certainty to support the alleged counts; and (3) the victim must be able to describe the general time period in which the acts occurred. (Id. at p. 316.) In this case, each of these requirements were met by the victim's testimony, coupled with other evidence of where she and defendant lived and when they lived there.
The fulfillment of these three requirements satisfies any due process concern regarding defendant's right to a unanimous jury: "[E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation. . . . The unanimity instruction assists in focusing the jury's attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act, providing the three minimum prerequisites heretofore discussed are satisfied." (Jones, supra, 51 Cal.3d at p. 321.) The Jones court "reject[ed] the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described." (Jones, at p. 321.)
We note an instruction on unanimity, CALCRIM No. 3501, was given here.
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As the Jones court pointed out, in residential child molestation cases such as the one before us, an alibi defense is rarely raised: "Usually, the trial centers on a basic credibility issue—the victim testifies to a long series of molestations and the defendant denies that any wrongful touching occurred." (Jones, supra, 51 Cal.3d at p. 319.) Nonetheless, if a defendant in such a case presents an alibi defense as to some of the alleged acts, the credibility of the victim as to the entirety of the allegations may be undermined. Furthermore, a defendant may achieve the same objective through cross-examination of the victim, as he did in this case, and supporting witnesses, and through the presentation of his own witnesses, expert and otherwise, with a view to undermining the victim's credibility. (Id. at pp. 319-320.) It cannot be said on this record that defendant was denied an opportunity to defend himself.
We now turn to whether there was insufficient evidence defendant committed the lewd acts with force or duress as to the challenged counts. The term "duress," as used in the offenses here, has long been described as a "'direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have been submitted.'" (People v. Cochran (2002) 103 Cal.App.4th 8, 14, italics added; see also People v. Leal (2004) 33 Cal.4th 999, 1004-1005.) The total circumstances should be considered, including the ages of the defendant and the victim, their relative sizes, and the nature of their relationship. (Cochran, at p. 14; People v. Senior (1992) 3 Cal.App.4th 765, 775.) "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." (Cochran, at p. 14.) Duress cannot be established without evidence the victim's participation was impelled, at least in part, by a direct or implied threat. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.)
We find the analysis in our case of People v. Veale (2008) 160 Cal.App.4th 40 [Fourth Dist., Div. Two] to be dispositive on the question of whether the evidence showed that duress was used to accomplish the lewd or lascivious act. In Veale, the defendant moved in with the mother and shortly thereafter married the mother. The mother's seven-year-old daughter, Brianna, was molested by the defendant beginning shortly after he moved in with the mother. The defendant touched Brianna's genital area with his penis and his hand on several occasions. Although the incidents did not hurt, Brianna did not like what the defendant was doing and "felt bad." (Id. at p. 43.) This court found sufficient evidence of duress when the defendant molested his stepdaughter even though there was no evidence the defendant actually threatened her. (Id. at p. 47.) We explained, "A reasonable inference could be made that defendant made an implied threat sufficient to support a finding of duress, based on evidence that Brianna feared defendant and was afraid that if she told anyone about the molestation, defendant would harm or kill Brianna, her mother or someone else. Additional factors supporting a finding of duress include Brianna's young age when she was molested; the disparity between Brianna and defendant's age and size; and defendant's position of authority in the family." (Ibid.)
In People v. Cochran, supra, 103 Cal.App.4th 8, the defendant was a foot and a half taller than the nine-year-old victim and outweighed her by about 100 pounds. (Id. at p. 15; see also People v. Pitmon (1985) 170 Cal. App.3d 38, 51 [finding the evidence sufficient to establish duress, even though the victim testified the defendant did not use force, violence, or threats when the victim "was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of [her] relative physical vulnerability"].)
Here, as in Cochran and Veale, the molestation took place in the family home at night mainly in defendant's bedroom when no family member was nearby. The victim was 9 or 10 years old when the molestations began. Defendant was 18 and 19 years old during the incidents. Defendant was also the victim's uncle who resided in the same family home. While not filling a parental role, defendant still possessed the authority of an adult, and there was an inherent physical disparity. The probation report indicates that defendant is six feet two inches tall and weighs 220 pounds. Although the record does not indicate the victim's size, she was only 9 or 10 years old when the molestations occurred, and it is reasonable to infer a considerable disparity in size between her and defendant.
In addition, defendant had threatened the victim that she would go to hell if she told anyone. The victim believed defendant's threat, because he was her uncle and because she was devout, going to church every Sunday and learning about heaven, hell, and God. The victim was also afraid to tell anyone because she was afraid of defendant and did not know what he would do if she told. Moreover, the record shows that oftentimes the victim attempted to resist defendant by trying to get away or telling him to stop; however, defendant would stop the victim from getting away by standing in front of the door and talking her out of it. At times, when the victim told defendant to stop, he failed to stop. Defendant also covered the victim's mouth and held her down during an incident when he tried to engage in vaginal intercourse. A reasonable juror could find that defendant committed the offenses through the use of duress or force.
Defendant's reliance on People v. Hecker (1990) 219 Cal.App.3d 1238 is misplaced. In Hecker, the court concluded there was insufficient evidence of duress and therefore reduced the defendant's section 288, subdivision (b) conviction to a section 288, subdivision (a) conviction. The Hecker court explained that psychological coercion without more was insufficient to establish duress. (Hecker, at p. 1250.) However, the same court in People v. Cochran, supra, 103 Cal.App.4th 8 disagreed, finding the language in Hecker "overly broad" and explaining: "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. We also note that such a threat also represents a defendant's attempt to isolate the victim and increase or maintain her vulnerability to his assaults." (Cochran, at p. 15.)
The Cochran court further stated that, "Additionally, there was the victim's trial testimony. Although she testified she was not afraid of Cochran, that he did not beat or punish her and never grabbed or forced her, she also testified she was mad or sad about what he was doing to her, that he gave her money or gifts when they were alone together, and that he told her not to tell anyone because he would get in trouble and could go to jail. [¶] This record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress." (People v. Cochran, supra, 103 Cal.App.4th at pp. 15-16, fn. omitted.)
As noted in People v. Schulz (1992) 2 Cal.App.4th 999, 1005, "duress 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' [are] relevant to the existence of duress. [Citation.]"
Defendant's reliance on People v. Espinoza, supra, 95 Cal.App.4th 1287, in which the defendant molested his 12-year-old daughter, is also misplaced. In Espinoza, which was decided before Cochran, the court held there was insufficient evidence of duress, reasoning: "The only way that we could say that defendant's lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.'s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that 'the victim['s] participation was impelled, at least partly, by an implied threat . . . .' [Citation.] No 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 L. 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, at p. 1321.)
Espinoza is distinguishable in that the victim in Espinoza was older than the victim here. Because of our victim's young age, she was more susceptible to being coerced through fear and due to defendant's position of authority. Furthermore, in the instant case, the victim feared what defendant might do. In addition, defendant had threatened the victim that she would go to hell is she told, and the victim reasonably believed defendant. While this case is somewhat similar to Espinoza, we conclude based on Cochran that there was sufficient evidence of an implied threat and thus duress.
Here, the totality of the evidence supports a finding that defendant committed 12 counts of lewd acts with force or duress. As in People v. Cochran, supra, 103 Cal.App.4th at pages 15 through 16, the evidence showed that the victim was a young and vulnerable child who engaged in sex acts only in response to defendant's position of authority and physical authority. Her compliance was derived from force, intimidation, or the psychological control defendant exercised over her and was not the result of freely given consent. Viewing the evidence in its totality and assuming the trier of fact resolved all conflicting inferences in favor of the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 576), we conclude there was sufficient evidence to support defendant's convictions for 12 counts of lewd acts upon a child by force or duress.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
CODRINGTON
J.