Opinion
H043462
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MELITON RUALIZO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1358833)
A jury found defendant Meliton Rualizo guilty on 13 counts for multiple acts of sexual molestation and attempted molestation of a child aged 10 years or younger. (Pen. Code, §§ 288.7, subds. (a) & (b), 288, subd. (b)(1).) The trial court imposed a total term of 100 years to life consecutive to 60 years four months.
Subsequent undesignated statutory references are to the Penal Code.
Defendant raises numerous claims on appeal. First, he contends the trial court erred by admitting evidence of domestic violence to show he used force or fear in committing forcible lewd acts against the victim. Defendant contends his trial counsel's failure to request a limiting instruction concerning this evidence constituted ineffective assistance of counsel. Second, defendant contends the evidence was insufficient to support a finding that he used force or fear in committing the forcible lewd acts. Third, he contends the trial court erred in imposing consecutive terms on six counts of forcible lewd acts. Fourth, he contends the trial court abused its discretion by imposing consecutive terms on the remaining counts.
We conclude these claims are without merit. We will affirm the judgment.
I. Factual and Procedural Background
A. Facts of the Offenses
Defendant maintained a long term relationship with his girlfriend Delilah Doe. Defendant lived with Delilah and her two daughters in San Jose at various times around 2011. Delilah's daughter C.D. was five to seven years old at the time. M.D., C.D.'s half sister, was 15 to 17 at the time. The prosecution charged defendant with sexually molesting C.D. 13 times during this period.
We refer to Delilah Doe by her first name to avoid confusion. --------
1. Testimony of Delilah Doe
Delilah testified as follows. She met defendant in the late 1990's. They broke up and got back together multiple times over the years. At the time of the offenses, Delilah and her two daughters lived in a two-story townhouse on Permata Court in San Jose. Around 2011, defendant had been living with them off and on at Permata Court for about a year. He was around 34 years old at the time. C.D. started kindergarten a few months after defendant moved in. She was around five years old at the time.
Delilah and defendant both smoked methamphetamine at the Permata Court residence in 2011. Defendant would stay awake for days at a time. The longer he went without sleep, the more erratic he became, sometimes turning violent. Delilah recalled four instances in which C.D. saw defendant hit, punch, or choke Delilah. On one occasion, C.D. saw defendant choke Delilah in the garage. Delilah tried to tell C.D. that she and defendant had simply fallen, but C.D. responded, "No, he had his hands around your neck." C.D. was upset and scared of defendant. On another occasion, C.D. saw defendant hit Delilah in their room upstairs. C.D. tried to jump on defendant's back and told him to leave Delilah alone. C.D. was frightened and crying. The neighbors called the police.
On May 5, 2011, Delilah went into custody for three months on a prior felony conviction she had suffered for conspiracy to commit identity theft in 2003. She left defendant at Permata Court to take care of C.D. and M.D. After about a week in custody, M.D. told Delilah that defendant was not taking care of them. Delilah wrote a letter to her sister to get defendant removed from the residence. She never talked to defendant again. When she got out of custody, Delilah moved her belongings out of Permata Court and moved in with her sister.
A few months later, Delilah was talking about defendant when C.D. told her, "I never want to see him." Delilah asked why, and C.D. responded, "I just don't want to." C.D. later told Delilah, "[Defendant] touched me, Mom, and he was doing stuff to me when you were -- weren't around." C.D., who was scared at the time, said defendant touched her in her "private parts." C.D. said she did not want him to do it at first, but then she liked it. C.D. did not tell Delilah in detail what defendant had done. Delilah took C.D. to the police soon thereafter.
2. Testimony of C.D.
C.D. was 11 years old at trial. She testified as follows. Defendant lived with C.D. at the Permata Court residence. Sometimes he was nice, and sometimes he was not nice. He would watch C.D. and M.D. when Delilah was gone. Defendant was bigger and stronger than C.D., and sometimes she was scared of him. C.D. saw defendant hit Delilah "a few times." He would get mad, screaming and yelling. Once when they were in the garage, defendant slapped Delilah and grabbed her by the throat. C.D. recalled defendant hitting Delilah in the living room on another occasion. Defendant once hit C.D. in her room. C.D. was scared and sad. C.D. thought she had to listen to defendant and do what he said. Sometimes when Delilah would leave, she would tell C.D. to "[b]e good and listen."
Defendant touched her in her "private parts," meaning her vagina and buttocks. It happened when Delilah was gone or asleep. They were living at Permata Court at the time. When defendant touched C.D., he always told her, "Don't tell anybody." He also told her to be quiet while he was doing things to her. C.D. did not want defendant to touch her private parts. Defendant touched C.D. both over her underwear and under her underwear. It made C.D. feel sad and scared. Defendant smoked cigarettes, and C.D. could smell the smoke on his hands when he touched her.
C.D. said defendant touched her privates lots of different times on lots of different days. It started when she was in kindergarten. She described numerous specific incidents. One night, defendant and C.D. were outside on the sidewalk waiting for Delilah to arrive when defendant touched C.D.'s vagina. C.D. described two occasions when defendant tried to put his privates inside her privates. It happened once in the garage, and a second time on the floor of Delilah's bedroom. The incident on the bedroom floor happened when C.D. was in kindergarten. Defendant was behind C.D. He tried to put his penis into her butt, but he stopped because she told him it hurt. When she told him it hurt, he did not stop; he did it "again in the same spot." On another occasion, defendant tried to put his penis in C.D.'s vagina. Defendant was sitting in a chair with his pants off. He told C.D. to sit down. Afterward, he told C.D. not to tell anyone.
Defendant would kiss C.D. on the mouth and put his tongue in her mouth. C.D. testified that he did this "[e]very time he would do stuff to me." It happened more than once—"[m]aybe, like, four or five times." She did not want him to do this, and it made her scared. Once, she told him to stop but he did not stop. Sometimes she could taste cigarette smoke. Sometimes when he was kissing C.D., defendant would touch her "front private."
C.D. recalled an occasion on her birthday when defendant picked her up on a bicycle after school. He told her, "I'm gonna give you a birthday S-E-X."
C.D. recalled multiple occasions when defendant rubbed his "private" on her vagina. When asked where it occurred, she responded, "In the room and in the garage. A few times in both." She clarified that "the room" referred to the bedroom at Permata Court, and she said defendant's penis was touching her vagina. She added that it happened in the washroom as well. The incidents in the bedroom and bathroom occurred on two different days.
Defendant touched C.D.'s buttocks with his penis and fingers. Twice he tried to put his fingers in her anus. C.D. testified that it hurt when he did this. He rubbed his penis on her buttocks more than once. These incidents occurred on different days.
Sometimes defendant made C.D. put her mouth on his private. He told her where to put her mouth on and told her to "[s]uck on this" or "[s]uck on it." She did not want to do this because it tasted gross, but she put her mouth on his penis. Defendant used his hand to put her head on it. This happened more than five times, and it happened on different days. It happened in the garage, the bedroom, and elsewhere. Sometimes his penis would be hard, and sometimes it was soft. White stuff would come out, and defendant would tell C.D. to touch it. C.D. once tried to push away because he forced her head onto his penis very hard and caused her to choke.
C.D. described a television in Delilah's bedroom. Defendant would put "nasty videos" on the television while he did things to C.D. The videos showed "the girls privates and the boys privates and everything on the girl and the boy." Sometimes defendant rubbed lotion on his private. Sometimes "[m]ore stuff would come out of his private," and defendant would tell C.D. to touch it. He told her to catch it with her hands and mouth, but she refused, making him mad. This happened more than once.
C.D. recalled times when defendant put his mouth on her vagina. She testified that he "[p]ut his tongue all over my private. My front private." This happened more than once, and it happened on "lots of different days." C.D. would tell defendant to stop, or "[d]on't do that." Defendant did stop once, but C.D. did not know why. C.D. described how defendant would position their bodies to get access to her vagina.
Defendant touched C.D.'s "front private" with his hands in the bedroom, the garage, and the living room at Permata Court. It happened both under and over her clothing. C.D. demonstrated how defendant touched her with his fingers and moved his hand up and down. Defendant once tried to put his fingers in her vagina when they were in the bedroom. C.D. could not see his finger inside her, but she could feel him trying to put his finger in "the hole where I go pee from in my front private." She told him to stop, but he did not. Another time, in the garage, he put his fingers in the part beneath her lips. Defendant touched her vagina lots of times on different days.
C.D. testified that she did not tell anyone about the incidents because she was afraid defendant would hit Delilah or "hurt one of us." After defendant and Delilah were no longer living together, C.D. and Delilah moved in with Delilah's sister. Delilah told C.D. she wouldn't see defendant anymore, which made C.D. happy because he would never touch her again. C.D. felt safer then. She finally told Delilah about defendant touching her because by then she knew "he wasn't gonna hurt my mommy anymore or hurt none of us." Still, she was scared to tell Delilah because she was "scared he was gonna find out I told her then he was gonna find her and hurt us."
3. C.D.'s Prior Statements
A San Jose police officer interviewed Delilah and C.D. in November 2011. C.D. told the officer defendant had put his tongue inside her. When the officer asked where defendant had put his tongue, C.D. pointed to her buttocks and the vagina area between her legs. She also said defendant had put his private part inside her. The officer asked her where, and again C.D. pointed to her vagina and buttocks. When the officer asked her where defendant's private part was located, she pointed to an Elmo doll in the area where a penis would be. She clarified that she was referring to the private part that only a male would have. When the officer asked how far defendant's penis had gone inside her, she used her thumb and index finger to make a gap approximately one-eighth of an inch. She said defendant told her not to tell anyone. When the officer asked how many times defendant put his tongue on her, she responded, "A lot," but she could not give a specific number.
In December 2011, the police interviewed C.D. at the Children's Interview Center in San Jose. She was seven years old at the time. The prosecution played a video recording of the interview for the jury. C.D. stated the following. Defendant did "bad" and "nasty stuff" to her. When asked how many times defendant did something bad to her, C.D. used crayons to indicate it occurred 21 or more times. They happened in her mother's bedroom, the garage, and the wash room. In her mother's room, defendant tried "putting his privates in me one time." She used a drawing of a girl to indicate what body areas she was talking about. Defendant told her not to tell her mother. She did tell her mother, but not until after he moved out because she didn't want him to hurt her.
Defendant once tried putting his privates in her in the garage. He also wanted C.D. to "suck on his privates." This happened more than 10 times. She actually did so on more than five occasions. He used both hands to push her head closer. She tried to push away because it was going in her throat, and it tasted gross. Sometimes defendant put on "nasty videos." He would put lotion on his privates, move his hand up and down, and "lotion would squirt out." He told C.D. to catch it with her hands.
Defendant also licked her privates with his tongue. He did this more than 10 times. He also tried putting his finger in her privates. He tried this "lots of times." It occurred almost every day. He wouldn't stop even when she told him it hurt. Finally, he would put his tongue in her mouth almost every day.
4. Testimony of M.D.
M.D., C.D.'s older half sister, was 20 years old at trial. She testified as follows. She was 16 or 17 in 2011. In May 2011, she was living at Permata Court with Delilah, C.D., and defendant. She would go out with friends during the day, but she slept at the residence. C.D. was at home with Delilah and defendant. M.D. had known defendant since she was about one. He helped to raise her, and she considered him to be like a father.
In May, Delilah had to go to jail to serve a sentence while M.D. and C.D. stayed at Permata Court with defendant. Defendant was supposed to buy food and take care of the children, but he did not. He would just "chill in the garage" and invite lots of people over to party. At one point M.D. tried to talk to defendant about paying the bills, but "he wasn't all there in his head." He appeared to be on drugs. He "looked out of it, and all dazed and stuff." While they were talking, defendant pulled his shorts to the side and exposed his genitals to M.D. M.D. asked him what he was doing, but defendant did not answer. M.D. called the police the same day. When she told defendant the police were coming, "he grabbed all his bongs and stuff and pipes and whatever and left, and then he came back when the cops were there."
Two days before exposing himself to M.D., defendant hit her. He pushed her onto the bed, held her down, and told her, "Don't talk to me that way." He did this in front of one of M.D.'s friends and a baby.
In November 2011, after they had moved out of Permata Court, Delilah called M.D. and told her defendant had touched C.D. M.D. testified that defendant never touched her, and she never saw him touch C.D. However, when C.D. was around three or four years old, C.D. came out of a room with defendant and told M.D., "[Defendant] tried to touch me and lick me." Defendant responded, "Oh, she's just saying nonsense. I wouldn't do that." M.D. believed him; she thought, "Little kids say crazy things."
5. Defendant's Testimony
Defendant testified in his defense as follows. He was 37 years old at trial. When he found out about the charges in this case, he was already in jail for drug possession. He had also suffered prior convictions for second degree robbery, auto theft, and evasion of arrest, but he had never been convicted of any type of child molestation crime.
Defendant met Delilah when he was 18. In the beginning, their relationship was just a "drinking, getting high, doing drugs together kind of relationship." They "hooked up sexually" on the first night out, but they "officially hooked up" on M.D.'s second birthday. Defendant met Delilah's family, and they decided to "go steady." Defendant moved in with Delilah when M.D. was about three years old. After about five months, defendant got incarcerated. They broke up and reunited several times afterwards.
Around 2010, defendant lived with Delilah and her family for "no more than a year." He worked as a painter for about seven months out of that year. Defendant took C.D. to and from a school bus stop a few times. He admitted he had been alone with C.D. sometimes.
Defendant recalled the incident in which C.D. told M.D. defendant had touched and licked her. He had come home from work and got into a fight with Delilah. He explained, "I was high and I snapped, and I was yelling at her, telling her stuff, and it got physical so I left." When he returned, Delilah told him C.D. had said he touched her in her privates. He denied it. C.D. hugged him and apologized.
Defendant admitted hitting Delilah in front of C.D. It would usually happen when he and Delilah were both on drugs or "drinking here or there." Defendant admitted he used drugs on a daily basis that year. He also got into arguments with M.D. He once backhanded M.D. in the face when she was about 14. However, he denied ever exposing his genitals to her.
Defendant admitted that he hit C.D. "once or twice," but he explained that he had only spanked her on her bottom when she threw a tantrum. He denied ever touching C.D. sexually or doing anything sexually inappropriate to her. He testified that he never touched her vagina; never exposed his penis to her; never tried to put his penis in her mouth; never tried to put his mouth on her vagina; never tried to kiss her inappropriately; and never tried to put his penis in her anus.
Defendant admitted that he had lied to the police. He falsely told them he did not live with Delilah because he was scared she was pressing domestic violence charges against him. On cross-examination, he agreed that he did not want to admit to the police that he had lived with C.D. He told them he had only seen C.D. once. In his testimony, he explained, "I thought about the charge where she told her mom I touched her, and I got scared and I back peddled."
B. Procedural Background
The prosecution charged defendant with 13 counts: count 1—sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)); counts 2 through 7—lewd or lascivious act on a child by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)); counts 8 through 13—oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)).
The jury found defendant guilty on counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 12. On counts 5 and 13, the jury found defendant not guilty as charged, but guilty of the lesser included offenses of attempted lewd or lascivious acts by force (count 5) and attempted oral copulation or sexual penetration (count 13).
The trial court imposed a total term of 100 years to life consecutive to 60 years four months. The indeterminate term consisted of 25 years to life on count 1, and 15 years to life on each of counts 8 through 12. The determinate term consisted of nine years on count 13, one year four months on count 5, and 10 years each on counts 2, 3, 4, 6, and 7.
II. Discussion
A. Admission of Domestic Violence Evidence
Defendant contends the trial court erred by admitting evidence that he had slapped, hit, and choked Delilah in front of C.D. He concedes the evidence was relevant to C.D.'s delayed reporting, but he argues the evidence should not have been admitted for the purpose of showing he used force, fear, or duress in molesting C.D. He contends his trial counsel provided ineffective assistance by failing to request a limiting instruction to this effect. The Attorney General contends the evidence was admissible to show defendant used duress to commit lewd acts on C.D.
1. Background
The prosecution charged defendant with six counts of lewd or lascivious acts by force, fear, menace, or duress. Apart from the alleged molestations, C.D. and Delilah testified to multiple incidents in which defendant slapped, hit, or choked Delilah in front of C.D. Defendant moved pretrial to exclude this evidence on the grounds that its admission would violate his constitutional rights to a fair trial and due process. Defendant also argued the prejudicial effect of the evidence outweighed its probative value under Evidence Code section 352. The prosecution argued the evidence was relevant to show C.D.'s fear of defendant and therefore to show he used force, fear, or duress in committing the lewd acts. The prosecution also argued C.D.'s fear of defendant was relevant to explain her delay in reporting the molestations.
The trial court found the domestic violence evidence "highly probative" to the issue of delayed reporting, outweighing any prejudicial effect. Defense counsel asked the court to limit the prosecution's questioning of Delilah about the domestic violence incidents and requested a hearing under Evidence Code section 402 to question Delilah about them. The court ruled that the questioning of Delilah about the domestic violence incidents would depend on whether C.D. testified to witnessing the incidents. The court ruled that if C.D. testified to witnessing violence by defendant, then Delilah could testify to the incidents to corroborate C.D.'s testimony.
As set forth above in section I.A.2., C.D. testified at trial that she saw defendant hit Delilah on multiple occasions. For example, C.D. saw him slap Delilah and grab her by the throat in the garage. On another occasion, C.D. saw defendant hit Delilah in the living room. C.D. testified that she witnessed defendant screaming and yelling, and she was scared of him.
After C.D. testified, the trial court held the requested hearing under Evidence Code section 402 for questioning of Delilah about the incidents. Delilah testified that defendant's methamphetamine use caused him to stay away for days, whereupon he would become violent, mad, and "crazy." Defendant would choke, punch, slap, and hit Delilah, including punching her in the head. He was "a big guy," and he got mean. Delilah estimated that it happened four times "or maybe more" in front of C.D. C.D. cried and tried to hit defendant or push him off Deliliah. When asked how C.D. reacted, Delilah testified, "She knew once he would get mad what was going to happen."
After the hearing, defense counsel argued that Delilah's testimony should be limited only to the incidents that C.D. witnessed: "The only relevance here is the effect that it had on [C.D.]. So I think the Court's ruling should be limited to how many times did [C.D.] ever witness domestic violence and what the nature of those incidents were, which I doubt that Delilah will be able to provide us specifics, and the effect that she noticed on [C.D.]." The prosecution agreed to this limitation. Defense counsel then reiterated his original objection to the admission of any such evidence.
The trial court admitted Delilah's testimony about the incidents C.D. witnessed. The court found it relevant and probative to the force and fear element: "I think it's appropriate. It's based upon the allegations of force or fear. [C.D.] had testified that one of the bases of her being fearful was not only her own safety, but the safety of her mother. So I think it's relevant. And I think it's substantial and more probative than prejudicial. That's why the Court is using its [Evidence Code section] 352 discretion to allow it to come in with the limitations that both counsel have -- have agreed to." Defense counsel did not request any limiting instruction regarding this evidence.
2. Legal Principles
Section 288 prohibits, among other things, lewd or lascivious acts on a child under 14 "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim . . . ." (§ 288, subd. (b)(1).) Duress 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. Garcia (2016) 247 Cal.App.4th 1013, 1023 (Garcia), quoting People v. Leal (2004) 33 Cal.4th 999, 1004.) "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.) "[T]he legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim." (People v. Soto (2011) 51 Cal.4th 229, 246.)
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) "Evidence is relevant if it has any tendency to prove or disprove a contested fact at issue." (People v. Harris (2013) 57 Cal.4th 804, 842-843.) But a court may exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) " '[P]rejudice' does not mean damage to a party's case that flows from relevant, probative evidence. Rather, it means the tendency of evidence to evoke an emotional bias against a party because of extraneous factors unrelated to the issues." (People v. Cortez (2016) 63 Cal.4th 101, 128.) Such evidence should be excluded " 'when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 439.) "An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion." (People v. Merriman (2014) 60 Cal.4th 1, 74.) We will not reverse such a ruling unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.)
To demonstrate ineffective assistance of counsel, a defendant must first show trial counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, the defendant must show prejudice flowing from counsel's performance or lack thereof. (Id. at pp. 691-692.) "Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington, at pp. 687-688, 693-694.) The defendant has the burden on appeal to show by a preponderance of the evidence that he or she was denied effective assistance of counsel and is entitled to relief. (People v. Dowdell (2014) 227 Cal.App.4th 1388.)
3. The Trial Court Did Not Abuse Its Discretion, and Trial Counsel Did Not
Provide Ineffective Assistance
Defendant concedes that testimony about C.D. witnessing his acts of domestic violence against Delilah was "arguably relevant" to C.D.'s delayed reporting of the molestations, and hence relevant to her credibility as a witness. Nonetheless, defendant contends the trial court erred in admitting the testimony to show the element of force or fear.
As a general matter, a trial court has no sua sponte duty to instruct the jury on limited uses of relevant, admissible evidence. "Although the trial court may in an appropriate case instruct sua sponte on the limited admissibility of evidence of past criminal conduct, we have consistently held that it is under no duty to do so." (People v. Collie (1981) 30 Cal.3d 43, 63.) And defendant cites no authority for the proposition that the court had such a duty in this instance; to the contrary, he acknowledges the court had no sua sponte duty to issue a limiting instruction. Accordingly, defendant frames his claim as ineffective assistance of counsel based on his trial counsel's failure to request one.
The trial court found the challenged testimony more probative than prejudicial, and admissible as to the element of force or fear. The record supports this finding. Defendant was bigger and stronger than C.D. She testified that she became scared of him when he hit Delilah. C.D. described in detail witnessing incidents in which defendant grabbed Delilah by the throat, hit or slapped her, and screamed and yelled at her.
Defendant contends these incidents were irrelevant to the force or fear element because there was no evidence connecting the domestic violence to the molestations. He points out there was no evidence the incidents of violence occurred "immediately before or after" the sexual assaults. But defendant cites no authority for the proposition that duress may only be caused by conduct immediately before or after the defendant commits the lewd act. Duress could be shown by any conduct that would cause C.D. to " ' "acquiesce in an act to which [she] otherwise would not have submitted." ' " (Garcia, supra, 247 Cal.App.4th at p. 1023.) The domestic violence testimony was relevant to the charged offenses if it had a "tendency to prove" the existence of this duress. (People v. Harris, supra, 57 Cal.4th at pp. 842-843.) Evidence that C.D. witnessed defendant acting violently toward her mother would tend to prove that the violence caused her to acquiesce in defendant's lewd acts at other times. (See Garcia, at p. 1024 [after defendant had repeatedly threatened to harm victim's mother, all of his subsequent acts of abuse were facilitated by the duress engendered by these threats].) The evidence was therefore relevant and probative to the element of duress. The trial court did not abuse its discretion in admitting the evidence for this purpose. Even if trial counsel had sought the limiting instruction defendant now contends was required, the court properly would have denied it. Trial counsel's performance was therefore not deficient, and defendant suffered no ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].)
As to whether the evidence was substantially more prejudicial than probative, defendant concedes the testimony was admissible to explain C.D.'s delayed reporting. Here, an argument under Evidence Code section 352 is no different than the claim that a limiting instruction was necessary. While a trial court may consider a limiting instruction to ameliorate the potential for prejudice under Evidence Code section 352, People v. Hendrix (2013) 214 Cal.App.4th 216, 247, nothing here compelled the court to do so sua sponte. This was not the "occasional extraordinary case" in which the testimony was "a dominant part of the evidence" and "minimally relevant to any legitimate purpose." (People v. Collie, supra, 30 Cal.3d at p. 64.) We conclude the court did not abuse its discretion by admitting the evidence under Evidence Code section 352 without a limiting instruction, and trial counsel did not provide deficient performance by failing to request such an instruction.
Finally, defendant contends the admission of the domestic violence evidence violated his constitutional due process rights. (See Payne v. Tennessee (1991) 501 U.S. 808, 825 ["In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."]; People v. Bean (1988) 46 Cal.3d 919, 940 [we look to the evidence actually introduced at trial to determine whether a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law].) However, "as a general matter, the federal Constitution does not mandate particular rules concerning the admission of evidence." (People v. Fuiava (2012) 53 Cal.4th 622, 697 [rejecting claim that admission of evidence of defendant's violent character violated due process].) "Ordinarily, proper application of the statutory rules of evidence does not impermissibly infringe upon a defendant's due process rights." (People v. Ardoin (2011) 196 Cal.App.4th 102, 119.) "[A]s the United States Supreme Court recently stated, '[o]nly when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," [citation], [has the court] imposed a constraint tied to the Due Process Clause.' " (People v. Fuiava, at p. 696, quoting Perry v. New Hampshire (2012) 565 U.S. 228, 237.) Given that the evidence here was relevant and probative to two material issues—the victim's credibility, and the element of force or fear—we conclude its admission did not render the trial unconstitutionally unfair.
B. Sufficiency of the Evidence on the Element of Force or Fear
Defendant contends the prosecution failed to present sufficient evidence to prove the element of force or fear for the lewd acts charged in counts 2 through 7. The Attorney General contends the record holds sufficient evidence to show the defendant used duress in the commission of all six lewd acts.
1. Legal Standard
"In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question . . . is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) The California Constitution requires the same standard. (People v. Rowland, at p. 269.) This standard applies even when the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—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.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
The legal definition of duress is set forth above in section II.A.2.
2. Sufficient Evidence Supports the Convictions on Counts 2 Through 7
The prosecution charged defendant in counts 2 through 7 with committing lewd acts "by force, violence duress menace and fear." (Capitalization omitted.) The trial court instructed the jury, "Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to. [¶] When deciding the act was accomplished by duress, consider all the circumstances, including the age of the child and her relationship to the Defendant." In closing argument, the prosecution focused on defendant's use of duress and fear to obtain C.D.'s acquiescence.
Defendant contends the evidence was insufficient because there was no evidence of any correlation between the domestic violence and the sexual assaults. He points out that C.D. never specifically testified that she submitted to defendant's assaults because she was afraid he would hit her or Delilah. Nor did C.D. testify that defendant threatened her or Delilah with harm before committing any of the lewd acts. But defendant cites no authority for the proposition that conduct constituting duress must occur in direct correlation with the lewd acts, or that the victim must testify to his or her state of mind. To the contrary, "[t]he fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 14.) Furthermore, circumstantial evidence may be sufficient to support a jury's inference beyond a reasonable doubt. (People v. Maury, supra, 30 Cal.4th at p. 396.)
C.D. was extremely young at the time, and the evidence showed defendant exercised his authority in the family residence at times. "[A]s a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present." (People v. Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) The same is true when the defendant is not the father, but holds a position of father-like authority. (People v. Veale (2008) 160 Cal.App.4th 40, 49.) Defendant was also bigger and stronger than C.D., and she testified that she was sometimes scared of him. She repeatedly testified that she did not want defendant to touch her or engage in the various sex acts with her. She believed she had to listen to defendant and do what he said. She testified that she did not tell anyone about the molestation because she was afraid defendant would hurt her or Delilah, showing that she exhibited fear and modified her behavior apart from those occasions on which she witnessed the violence. Together with the domestic violence testimony, a jury could reasonably infer from this evidence that defendant's conduct instilled in C.D. a pervasive fear that caused her to acquiesce in the lewd acts when she otherwise would not have done so. (See Garcia, supra, 247 Cal.App.4th at p. 1024 [after defendant had repeatedly threatened to harm victim's mother, all of his subsequent acts of abuse were facilitated by the duress engendered by these threats].)
We conclude the record holds sufficient evidence from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
C. Imposition of Consecutive Sentences on Counts 2 Through 7
Defendant contends the trial court erred by imposing consecutive terms on counts 2 through 7 because there was no evidence the offenses occurred on separate occasions. The Attorney General contends the record supports a finding that each offense took place on a separate occasion.
1. Background
Count 2 charged defendant with a forcible lewd act for "the first time the defendant put his tongue in [C.D.]'s mouth." Count 3 charged defendant with a forcible lewd act for "the last time the defendant put his tongue in [C.D.]'s mouth." Similarly, counts 4 and 5 charged defendant for "the first time" and "the last time" he rubbed his penis on C.D.'s vagina, respectively. Counts 6 and 7 charged defendant for the first time and the last time he touched C.D.'s buttocks, respectively.
The probation report stated, "[G]iven the nature of the Counts Two through Seven, full term consecutive sentencing is mandated for these sexually violent crimes committed, or attempted to be committed, upon the same victim on separate occasions pursuant to Section 667.6(d) of the Penal Code."
The trial court imposed consecutive terms on all six counts. On count 5, the court imposed the midterm of one year four months under section 1170.1. As to counts 2, 3, 4, 6, and 7, the court imposed aggravated terms and stated, "The reason that the Court selects the aggravated term is that it's the same victim in separate acts, and these are mandatory full term, consecutive."
2. Legal Principles
Section 667.6, subdivision (d), mandates full consecutive sentences for certain enumerated offenses if they involved the same victim on separate occasions. "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).) "Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
3. The Trial Court Did Not Err by Imposing Full Consecutive Separate
Sentences
As defendant concedes, the verdicts imply the jury found that some of the offenses occurred on separate occasions. Because the jury found defendant guilty on both counts 2 and 3, which charged defendant for an act committed for "the first time" and "the last time" respectively, this implies the jury found two separate offenses. Similarly, the jury found defendant guilty of committing the lewd acts in counts 6 and 7, as well as the act in count 4 and the attempted act in count 5, for both "the first time" and "the last time" as to each pair of counts. The record supports such findings. C.D. testified that defendant rubbed his penis against her vagina on two different days in two different locations. She estimated that he put his tongue in her mouth "[m]aybe, like, four or five times," or "maybe once like every other day." She testified that he tried to put his fingers in her anus twice, and he rubbed his penis on her buttocks more than once. These incidents happened on different days.
However, defendant contends there was no evidence that each of the acts occurred separately from all the others—e.g., that each time defendant put his tongue in C.D.'s mouth occurred separately from the times when he rubbed his penis on her vagina or touched her buttocks. We are not persuaded. First, the overall course of conduct took place over an extended period of time on "lots of different days" and at "lots of different times," starting in kindergarten and continuing to first grade. C.D. estimated that he committed 21 or more acts. The last time it happened was when M.D. called the police on defendant.
It is true that C.D. testified that defendant put his tongue in her mouth "[e]very time he would do stuff to me." But the record supports a finding that it was not always simultaneous. For example, when the prosecutor asked C.D. in direct examination if defendant was "doing other nasty stuff" when he was kissing C.D., she answered "[n]o." Similarly, in her statement at the Children's Interview Center, C.D. stated defendant put his tongue in her mouth almost every day. When the interviewer then asked if defendant did anything else to C.D., she answered "uh uh." While some of these statements were contradictory, we defer to the trial court's resolution of conflicting evidence. Even if the incidents occurred on the same day, a quick change in conduct that occurs within "a few minutes," People v. Plaza (1995) 41 Cal.App.4th 377, 380, or a "momentar[y] pause[]," People v. King (2010) 183 Cal.App.4th 1281, 1325, may provide a reasonable opportunity for reflection. Viewing the record in this light, a reasonable trier of fact could find defendant had a reasonable opportunity to reflect in between each act before resuming his conduct.
Even assuming the trial court erred in finding the offenses were committed on separate occasions, subdivision (c) of section 667.6 granted the trial court discretion to impose full, separate, consecutive terms for each the convictions in counts 2 through 7. While a sentencing court must state its reasons for doing so, error under this subdivision is harmless if it is not reasonably probable a more favorable sentence would have been imposed absent the error. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The trial court here made numerous statements on the record concerning the aggravating circumstances surrounding the offenses. We see no reasonable probability the court would not have imposed full, separate, consecutive terms had it sentenced defendant under its discretionary powers. We conclude this claim is without merit and no resentencing is required.
D. Imposition of Consecutive Sentences on Counts 1 and 8 through 13
Defendant contends the trial court abused its discretion by imposing consecutive terms on counts 1 and counts 8 through 13 because the aggravating factors did not warrant them and there was no finding each count was a separate and distinct act. Defendant further contends the sentence constitutes cruel and unusual punishment under the Eighth Amendment. The Attorney General contends the trial court did not abuse its discretion. As to cruel and unusual punishment, the Attorney General contends defendant forfeited this claim by failing to object below, but that the claim is meritless in any event.
1. Background
On count 1, defendant was convicted of sexual intercourse. (§ 288.7, subd. (a).) On counts 8 through 12, defendant was convicted of oral copulation or sexual penetration for: the first time and the last time defendant made C.D. orally copulate him (counts 8 and 9, respectively); the first time and the last time defendant orally copulated C.D. (counts 10 and 11, respectively); and the first time defendant put his finger in C.D.'s vagina (count 12). (§ 288.7, subd. (b).) On count 13, defendant was convicted of attempted penetration as a lesser offense for the charged offense of penetration for the last time he allegedly put his finger in C.D.'s vagina.
After imposing the aggravated term on count 13, the court stated, "The reason why the Court has selected that term is age and vulnerability of the victim, and the Defendant was in a position of trust, and the violent nature of the offense itself . . . ." After imposing consecutive terms on count 1 and counts 8 through 12, the court stated that "the reason that the Court has selected consecutive terms is because the Defendant's convictions are both numerous and increasing in seriousness; and the impact of these crimes, not only the harm on the victim -- the impact of these crimes not only on the victim in this case but also the victim's family . . . ."
2. Legal Standards
Generally, section 669 grants the trial court discretion to impose concurrent or consecutive terms. "It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Rule 4.425 of the California Rules of Court sets forth factors affecting this sentencing decision, including "whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a).) Furthermore, any circumstances in aggravation may be considered in imposing consecutive terms except a fact used to impose the upper term, a fact used to enhance the sentence under section 1170, subdivision (h), and a fact that is an element of the crime. (Cal. Rules of Court, rule 4.425(b).) Only a single aggravating factor is required to impose consecutive sentences. (People v. Osband, supra, 13 Cal.4th at pp. 728-729.) " '[T]here is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. . . . Factual findings are not required.' " (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1324.) " '[T]he reasons given for imposing a consecutive sentence need only refer to the "primary factor or factors" that support the decision to impose such a sentence. [Citations.]' " (Id. at p. 1325.)
3. Imposition of Consecutive Sentences Was Not an Abuse of Discretion
Defendant first contends the trial court abused its discretion because there was no finding the offenses were "distinct acts with independent objectives." But as defendant acknowledges, the jury found defendant guilty of committing certain acts for both "the first time" and "the last time," implying that, at least as to those pairs of offenses, defendant committed them at different times. The record supports such findings. For example, C.D. testified that defendant forced her to orally copulate him more than five times, and that it happened on different days. Similarly, she testified that defendant orally copulated her more than once, and it happened on "lots of different days." She also testified that he touched her vagina with his fingers in different locations at Permata Court. She alleged he touched her vagina lots of times on different days. She specifically described one incident in the bedroom during which she could not see his finger inside her, but she could feel him trying to put his finger in "the hole where I go pee from in my front private." She described a second incident in the garage during which he put his fingers between the lips of her vulva. This testimony supports a finding that these acts constituted distinct offenses committed at different times.
Defendant contends the offenses charged in counts 1 (intercourse), 8 (oral copulation of defendant for the first time), 10 (oral copulation of C.D. for the first time), and 12 (digital penetration) all could have been committed at the same time and place with a single objective, constituting "a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a).) C.D. described an overall course of conduct inconsistent with that description, but even assuming it was the case, the trial court did not state it was relying on a finding of distinct offenses to impose consecutive sentences. Rather, the court cited the nature of defendant's prior convictions, and the harm to the victim and her family caused by the offenses in this case. The record supports the court's reliance on these factors. According to the probation report, defendant suffered eight prior felony convictions, including attempted vehicle theft, vehicle theft, vehicle theft with priors (twice), reckless evasion during flight from a peace officer (twice), possession of a controlled substance, and robbery. He also suffered 10 misdemeanor convictions for second degree burglary, resisting arrest, giving a false name to an officer, hit and run driving, trespassing, and five Health and Safety Code violations. As the Attorney General points out, defense counsel lodged no objection on these grounds, forfeiting the claim on appeal. In response, defendant contends his trial counsel was ineffective by failing to object. Regardless of whether the claim is waived, the sentence did not constitute cruel and unusual punishment, and any objection by trial counsel would have been futile.
The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ' "the evolving standards of decency that mark the progress of a maturing society." ' " (Graham v. Florida (2010) 560 U.S. 48, 58, quoting Estelle v. Gamble (1976) 429 U.S. 97, 102.) "The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' " (Graham v. Florida, at p. 59, quoting Weems v. United States (1910) 217 U.S. 349, 367.) Similarly, under state law, "Defendant must overcome a 'considerable burden' to show the sentence is disproportionate to his level of culpability." (People v. Em (2009) 171 Cal.App.4th 964, 972, citing People v. Wingo (1975) 14 Cal.3d 169, 174.) Because the claim concerns a mixed question of fact and law, we exercise independent review. (People v. Meeks (2004) 123 Cal.App.4th 695, 707.)
Defendant repeatedly molested his girlfriend's young daughter over an extended period while she was entrusted to his care. The sentence imposed here, while harsh, is comparable to those imposed in similar cases, and it is proportionate to the level of culpability. Defendant cites no binding authority for his argument that the sentence is cruel and unusual because it exceeds his remaining life span. Rather, he relies on arguments put forth by Justice Stanley Mosk. (See Mosk, State's Rights—and Wrongs (1997) 72 N.Y.U. L.Rev. 552; People v. Deloza (1998) 18 Cal.4th 585, 600-601 [a sentence that is impossible for a human being to serve violates the cruel and unusual punishments clause of the Eighth Amendment] (conc. opn. of Mosk, J.).) But law review articles and concurrences do not constitute binding authority. "[N]o opinion has value as a precedent on points as to which there is no agreement of a majority of the court." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) California courts have declined to adopt Justice Mosk's position. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [it is immaterial that defendant cannot serve his sentence during his lifetime].) A sentence longer than a defendant's life span "serves valid penological purposes: it unmistakably reflects society's condemnation of defendant's conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future." (Ibid.)
We conclude the sentence imposed does not constitute cruel and unusual punishment under state or federal law, and trial counsel did not provide deficient performance by failing to object on this ground. Accordingly, this claim is without merit.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.