Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF123182. Elisabeth Sichel, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Heather F. Crawford and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of five sexual offenses against S.M., his stepdaughter: two counts of lewd acts upon a child (§ 288, subd. (b)(1)); two counts of aggravated sexual assault (§ 269, subd. (a)(5)); and one count of rape (§ 269, subd. (a)(1)). The court sentenced defendant to 12 years plus 45 years to life in state prison.
On appeal, defendant argues the trial court erred by excluding exculpatory impeachment evidence. Defendant also challenges his convictions on counts 1 and 2. We reject his contentions and affirm the judgment.
2. Evidence Code Section 782 Hearing
The court granted defendant’s motion for a pretrial hearing under Evidence Code section 782, concerning the sexual conduct of the complaining witness.
The victim’s mother, C.W., testified that her daughter, S.M., ran away in December 2004. S.M. was upset and told her mother she had been sexually active twice. About a week later, S.M. made allegations against defendant.
S.M. testified she ran away in December 2004 and then confessed to her mother she had sex with two boys. But she also testified she had actually had sexual contact with three boys, one when she was 15 years old.
Both C.W. and S.M testified that S.M. was punished for running away but not for having sex. The court ruled that S.M.’s sexual conduct could not be presented as evidence.
3. Trial Evidence
S.M. was born in January 1989. Her mother, C.W., met defendant in 1993 and they began living together in 1994 and had a baby. They married in 1995 and had a second baby. Defendant was born in 1968.
S.M. called defendant “Dad.” Both C.W. and defendant disciplined S.M. Defendant hit S.M. frequently.
The first incident, and the basis for the first count, occurred one day when S.M. was six years old and in kindergarten. When C.W. was gone, defendant came into S.M.’s bedroom and rubbed her chest over her clothing. Neither of them said anything. C.W. noticed that S.M. began talking less and seemed more angry.
Later, a second incident occurred when S.M. was about seven years old. Defendant put his hands under her clothes and rubbed her external genitalia. They did not speak to one another. She was scared and did not understand what was happening. A third incident, and the basis for count 2, occurred when she was eight or nine. Defendant again touched her chest and genitalia under her clothing.
On one occasion, and the basis for count 3, defendant grabbed her hand and placed it on his penis, moving the hand up and down. On another occasion, and the basis for count 4, he inserted his fingers in her vagina. She was scared but it did not hurt.
Count 5 for rape occurred when S.M. was about 10 or 11 (or younger). Defendant called her into his room and removed their lower clothing. First, he climbed on top of her and digitally penetrated her vagina. Then he inserted his penis, causing her pain. After moving back and forth, he got off her and warned her not to tell her mother or she would be in trouble. She fled to her room and noticed blood dripping down her leg. Defendant did not touch her again but she was scared to tell anyone what had happened.
After this incident, defendant hit S.M. with a paddle, injuring her left little finger. Her mother noticed an injury to S.M.’s finger when she was about eight or nine years old. Defendant, an X-ray technician, took an X-ray of the finger and said it was okay. C.W. noticed S.M.’s emotions seemed to fluctuate and her grades worsened in the fifth or sixth grade.
Under cross-examination, S.M. acknowledged she was six not five years old during the first incident. She also had previously stated she had kicked and resisted defendant when he raped her. She testified inconsistently at the preliminary hearing and the trial about whether the rape occurred when she was six or seven and living in a house near a Kmart or whether it occurred later when she was 10 or 11 years old.
Defendant and C.W. separated in 2002 and she and the children moved out of the house.
In December 2004, S.M. ran away from home for a few hours until her mother found her in a local park. C.W. punished her by taking away her cell phone and grounding her for a week or two. C.W. asked S.M. if “anyone ever messed with you” and S.M. answered that defendant had raped her. C.W. called the police and brought S.M. to the police station to make a report.
A forensic psychologist testified generally about child sexual abuse accommodation syndrome and how an abused child may conceal the abuse for a long period of time. S.M. testified she never mentioned defendant’s conduct before telling her mother in December 2004 because she was afraid defendant would punish her or harm her or her mother.
Defendant’s mother, sister, and aunt all testified they had a lot of contact with his family and babysat the children and never observed any signs of a problem with S.M.
4. Exculpatory Impeachment Evidence
Defense counsel wanted to establish that, after S.M. ran away, she fabricated the allegations against defendant to deflect her mother’s anger. At trial, C.W. testified that, after she found S.M., C.W. was no longer upset and was mostly relieved. C.W. did not scold S.M. or yell at her. Defense counsel wanted to impeach C.W.’s testimony using her prior statements during the Evidence Code section 782 hearing that she had been upset but not visibly so. She did not yell or scream and she was relieved to find her daughter. The court would not permit any impeachment based on the sealed transcript. Defendant contends the court committed prejudicial error.
We disagree because we do not perceive any inconsistency in C.W.’s statements. In both instances, C.W. admitted she was upset and then relieved but she did not express her distress overtly to her daughter. She did not yell or scold or scream at her. C.W.’s testimony to the jury was essentially the same as her testimony during the Evidence Code section 782 hearing. She did not contradict herself. Therefore, there could be no abuse of discretion in the trial court’s ruling. (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
5. Sufficiency of Evidence
The jury convicted defendant of counts 1 and 2 for violating section 288:
“(a) Any 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 and shall be punished by imprisonment in the state prison for three, six, or eight years.
“(b)(1) 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 and shall be punished by imprisonment in the state prison for three, six, or eight years.”
The prosecutor argued that the evidence supporting counts 1 and 2 was the first incident of defendant touching S.M.’s chest when she was five or six years old and the third incident of touching her chest and genitalia when she was eight or nine years old. The People assert that the physical disparity between defendant and S.M. and his role as a parental authority figure and a disciplinarian supplied sufficient evidence of duress.
In the respondent’s brief, the People incorrectly cite the two instances in which defendant touched S.M.’s chest and genitalia when she was seven and eight or nine years old. The record shows the prosecutor relied on the earlier incident when she was five or six years old and the later incident when she was eight or nine years old but not the incident when she was seven years old. But we use the same analysis notwithstanding this error.
Defendant asserts there was no substantial evidence of force or duress as required by the statute, citing People v. Pitmon (1985) 170 Cal.App.3d 38, 51 (Pitmon):
“The total circumstances, including the age of the victim, and his relationship to defendant are factors to be considered in appraising the existence of duress. We note that at the time of the offenses, Ronald 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 his relative physical vulnerability. . . . These factors all bear upon the susceptibility of a typical eight-year-old to intimidation by an adult.”
Defendant also cites cases holding: “‘“[p]sychological coercion” without more does not establish duress’” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321); and “‘duress’ has been defined as ‘a direct or implied threat of force, violence, danger, hardship or retribution . . . .’” (People v. Senior (1992) 3 Cal.App.4th 765, 775.)
In reviewing a jury verdict, we apply a deferential standard of review. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Thomas (1992) 2 Cal.4th 489, 514.) As noted in Pitmon and many other cases, a child victim’s age, size, and relationship to the defendant are significant factors in establishing duress. (Pitmon, supra, 170 Cal.App.3d at p. 52; People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran); People v. Schulz (1992) 2 Cal.App.4th 999, 1005 (Schulz); People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748 (Sanchez).)
In Cochran, supra, 103 Cal.App.4th 8, the court stated: “The very nature of duress is psychological coercion.” (Id. at p. 15.) Likewise, in Schultz, supra, 2 Cal.App.4th at page 1005, the court explained: “[D]uress involves psychological coercion. [Citations.] 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.” (Ibid.)
Pitmon, supra, 170 Cal.App.3d 38, of course, involved an eight-year-old boy who was kidnapped by a stranger, who molested him by exercising some degree of physical control. In Cochran, the victim was nine years old and the defendant was her biological father. The court commented about her 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, . . .” (Cochran, supra, 103 Cal.App.4th at p. 15.) In Schulz, the victim was nine years old when her adult uncle “took advantage not only of his psychological dominance as an adult authority figure, but also of his physical dominance to overcome her resistance to molestation. This qualifies as duress.” (Schulz, supra, 2 Cal.App.4th at p. 1005.) In Sanchez, defendant’s status as a father figure in the mind of the victim, his eight-year-old granddaughter, contributed to a finding of substantial evidence of duress supporting the convictions of child molesting by duress. (Sanchez, supra, 208 Cal.App.3d at p. 748.)
Here defendant was S.M.’s stepfather whom she regarded as her father. He was an adult authority figure who often punished her. He committed counts 1 and 2 when she was between the ages of five or six and eight or nine. The record included evidence of other uncharged offenses indicating repeated, ongoing molestations against S.M. His conduct scared her and she testified she was afraid to report it because she or her mother might suffer retribution. Taking all the circumstances together, we conclude there was sufficient evidence of duress, manifested as an implied threat of force or retribution, for a reasonable jury to find a violation of two counts of section 288, subdivision (b)(1).
We also reject defendant’s related final argument that the trial court’s “interpretation” of the meaning of duress, as used in section 288, subdivision (b)(1), is unconstitutionally vague. Defendant bases his argument on the trial court’s question to the prosecutor about whether “any sexual assault upon a child by an adult” would constitute duress, an exchange which occurred during the defense motion to dismiss counts 1 and 2. (§ 1118.) The jury did not hear the court’s question. The jury was instructed on the meaning of duress based on the standard instruction, Judicial Council of California Criminal Jury Instructions (2003-2004) CALCRIM No. 1111. Defendant does not challenge the constitutionality of section 288, subdivision (b)(1), except as he asserts it was wrongly interpreted by the trial court, or the appropriateness of the jury instruction. Defendant’s reliance on People v. Mirmirani (1981) 30 Cal.3d 375, a case involving the unconstitutional vagueness of the phrase “to achieve social or political goals” in former sections 422 and 422.5, does not have any bearing on the meaning of duress as used in section 288.
6. Disposition
We affirm the judgment.
We concur: Hollenhorst, Acting P. J., McKinster, J.