Opinion
A143508
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. RICARDO VAZQUEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH51379)
INTRODUCTION
A jury convicted defendant Vazquez of various sex crimes accomplished by force or duress against his niece, Jane Doe, when she was 11 or 12. On appeal, he does not contest the sexual acts occurred, but argues the evidence of force or duress is insufficient to sustain the convictions for forcible acts of penetration upon a child under the age 14 under Penal Code section 269. He also argues his convictions for multiple sex crimes cannot be upheld because, as a resident child molester, the prosecutor was required to prosecute him in a single count under section 288.5. Finally, he argues that permitting the victim, now an adult, to testify with a support person at her side, without first holding a hearing to determine whether she needed support, violated his constitutional rights to confrontation and due process. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
STATEMENT OF THE CASE
In 2014, a first amended information was filed in Alameda County charging defendant Vazquez, in count 1, with committing a lewd and lascivious act upon a child under 14 (§ 288, subd. (a)); in count 2, with aggravated sexual assault (digital penetration) of a child under 14 by a person more than 10 years older (§ 269, subd. (a)(5)); in counts 3 through 6, with aggravated sexual assault (oral copulation) of child under 14 by a person 10 or more years older, committed by force, violence, duress, menace, and fear of immediate bodily injury (§§ 269, subd. (a)(4), 288a); and in count 7 with aggravated sexual assault (rape) on a child under 14 by a person 10 or more years older. (§§ 269, subd. (a)(1), 261, subd. (a)(2)). All seven counts were alleged to have occurred between October 2001 and October 2004. A jury convicted defendant of violating section 288, subdivision (a) in count 1, but could not agree on verdicts in the remaining six counts.
The original information had charged, in addition, an eighth alternative count of continuous sexual abuse. (§ 288.5.)
A second amended information charged defendant with the seven counts alleged in the prior information. Count 2 was charged under section 289, subdivision (a) as well as section 269, subdivision (a)(5). Count 1 was not read to the jury and only counts 2 through 7 were submitted to the jury. The second jury found defendant guilty of counts 2 through 7.
The trial court sentenced defendant to 93 years to life in state prison.
Defendant timely appeals.
STATEMENT OF FACTS
The Prosecution's Case
Jane Doe was 23 years old at the time of trial. Defendant is Jane's maternal uncle. He is over 15 years older than Jane. He was her mother's favorite brother.
When Jane was 10 years old, she lived with her mother, two older brothers, defendant, his girlfriend Diana, and their baby in an apartment on Gading Road in Hayward. Jane was nine years old when the baby was born. Jane's father no longer lived with the family. Jane had a good relationship with defendant. She and her brothers viewed him as a "fatherly figure" because "[h]e was always really nice, really funny, helped my mom with money when she needed money." He was the cool uncle. He took Jane and her family camping. According to Jane, her brother "used to look up to my uncle. He wanted to be just like him. [¶] . . .[¶] He would even try to laugh like him." Other family members also testified about the close relationships within the extended family. Aleandro is a first cousin to Jane's mother, Carmen, and her brothers, including defendant. Growing up, he spent time with Carmen's family every day. He was especially close to Carmen's brothers. At least once a month, 15 to 20 relatives would gather for birthdays, barbecues, and special events such as Christmas, Thanksgiving, and Easter at defendant's parents' home or Carmen's, after she bought a house. Defendant often did the barbecuing and cooking for these gatherings.
After defendant and his family moved to Center Street in Castro Valley, Jane's mother would sometimes drop her off at their place or Diana would pick her up. Jane spent the night there a few times.
The first time defendant was sexually inappropriate with Jane occurred in the Gading Road apartment. Jane was coming out of the downstairs bathroom when defendant forcefully pulled her into the room and kissed her in the mouth with his tongue. She was shocked and his tongue felt "really nasty." Defendant told her not to say anything and he walked out. She did not tell anyone "[b]ecause I was told not to say anything." She did not know what she thought would happen if she said anything.
The next time occurred at his apartment on Center Street. She was 10 or 11, and she was watching cartoons with defendant and her cousin in the living room of defendant's apartment, the morning after having spent the previous night there. Diana had gone to the store. Defendant opened his robe and showed Jane his penis. She did not know what was going on. Then he told Jane to sit on his lap facing him and move her hips in a circle. He put his hands on her hips to show her how. She had no idea what she was doing when she moved her hips around and "wouldn't have done it if he wouldn't have told me to." Defendant said "that the night before I was dancing and that I was being a tease, and that I wanted what he was doing to me." She did not want it, and "didn't . . . really know what he was doing to me." The night before, she and her cousin were dancing to the beat of a music video of a song by Paulina Rubio that she really liked.
At some point, Jane found herself off the couch and on the living room floor with defendant. He took off her pajamas and touched her vagina with his fingers. He also touched Jane's vagina with his tongue. While he was doing this to her, Jane turned her head and tried to focus on the cartoon; somehow that helped. Jane was trying to mentally take herself somewhere else; that is the way she dealt with all of defendant's assaults. What defendant did to her did not hurt, but it made her feel uncomfortable. She did not want defendant to touch her vagina with his fingers or tongue. She did not say anything to defendant while he was touching her, and she did not recall if he said anything. She was 11 and in the sixth grade when this occurred.
Later that same morning, when they were in the kitchen, defendant opened his robe and flashed her again. He told Jane to put her mouth on his penis. Because Jane did not want to do it, defendant pulled her towards him with his hands on her shoulder, placed his hand on the back of her head, and "he made [her] give him oral sex." Jane "wanted to puke." She was trying to pull back but defendant "was pushing [her] head into his penis." He told her to use her teeth. She did not know what he meant and did not use her teeth. Jane saw her cousin running around the living room; she told defendant that her cousin "was right there." Defendant said, "It doesn't matter because she can't say anything," and "pushed [her] face" back into his penis. Jane remembered gagging because of the pubic hair and trying to pull her head back, but defendant's hand on the back of her head prevented her from pulling her head away. She tried to pull her body away but defendant prevented her from moving away. "I was trying to pull myself back and I couldn't." Then he ejaculated in her mouth and told her to swallow it. She "listened to him" but almost threw up, and ran to the sink to try to wash her mouth out. Then defendant sat down at the kitchen table and started to read the Bible. When Diana returned from the store, Jane did not say anything to her; she did not know why.
Jane did not want any of the things that had just happened to her to happen. She did not know why she did not tell anyone in the following days. "[H]e told me not to say anything, so I listened to him." She listened to him because she was "stupid," and because she was "scared to say anything because [she] didn't know what was going to happen."
Jane did not remember "dates or timing structure" but she recalled a family day trip to Lake Del Valle. Jane was playing in the water with her maternal aunt, her brother, and defendant. Jane stayed in the water after the others got out. Defendant stayed in the water too. She was standing shoulder deep in the water when defendant swam by her underwater and put his hand in her bathing suit pants. He touched her vagina with his fingers. Then he surfaced and winked at her. Jane got out of the water. Jane did not tell other family members what had occurred.
On another occasion, Jane went on a family camping trip to Lassen Volcanic National Park with Diana, defendant, and her brother. Everyone got out of the van except Jane. Defendant made as if he was going to help Jane out of the van, but instead he "stuck his finger up my shorts, and it hurt [her vagina] really bad." She did not remember exactly what she said, but she told him about the pain she experienced. On direct examination, Jane did not remember what, if anything, defendant responded. On cross-examination, she agreed he said "sorry" and stopped. Jane did not tell anyone what he did to her.
Another incident occurred in an apartment near Castro Valley Boulevard in Castro Valley, where defendant lived with Diana and their daughter, Jane's cousin. Jane was changing into her pajamas in her cousin's room. As she walked out of the room, defendant touched her breast with his hands over and under her pajama shirt and undershirt. Then defendant pulled Jane's pants down and touched her vagina with his lips and tongue. She did not want him to do that to her. Diana was in the shower at the time.
Jane did not recall how old she was when this occurred, except that it occurred after the incidents at the Center Street apartment. She was 13 when she graduated from eighth grade. She did not get her period until she was in high school, and defendant did not molest her after she started her period. He often asked her if she had gotten her period yet, and she told him she had not.
The last occasion on which defendant molested Jane occurred in the living room of the same apartment. Defendant pulled out his penis, put it in Jane's face and told her to suck it. She did not want to do it but she complied because she "didn't really have a choice." Next defendant took off Jane's pants and underwear, touched her vagina with his fingers and mouth and put his penis in her vagina. It was painful. Defendant told Jane whomever she was having sex with "had a small dick because [her] vagina was still really tight." Jane had never had sex with anyone. Jane said nothing to defendant during the entire time. Defendant ejaculated into his hand and told her to wash herself in the bathroom. Jane did not want her clothes to come off, and did not want to have sex with her uncle.
Once Jane realized what had happened to her, she avoided situations where she might be alone with defendant. She was concerned something might happen without warning again.
For a long time, Jane did not tell anyone what defendant had done to her. She did not tell anyone because she was "[a]fraid of many stupid things." She was afraid someone in the family would hurt her or her mom. She was afraid no one would believe her.
Jane also testified she feared defendant because he was a hunter and owned guns. Although he had never said or done anything directly to suggest he would ever hurt her, "just knowing that he had the guns and he knew how to use them was enough for me to be scared." He brought home the deer he hunted and she once saw a deer's head that had been chopped off its body.
Defendant's size and age also contributed to her fear of him. Although he was younger than her mother, when Jane was growing up she always looked at him as "older." Also, at that time defendant was "very masculine and into working out. He was a lot bigger than I was." She also feared him because of the things he did to her, i.e., kissing her with his tongue, putting his penis in her mouth, and touching her vagina with his mouth and fingers. He told her not to say anything to anyone, to keep it between themselves. Jane agreed "[h]e said things to try to make [her] believe that she wanted it . . . [¶] . . . [¶] [b]ut [she] didn't."
When Jane was 17 and a senior in high school, she finally told her mother. She was in her room, "completely drunk" and crying because she hated her life. Her mother kept asking her what was wrong, if someone had hurt her. Finally, Jane said her mother's brother had done something to her, but she did not say what he had done. Jane's mother was shocked; she got angry at defendant and wanted to call him. Jane told her mother that if she said anything, Jane would kill herself. Jane did not recall if her mother talked about calling the police. Jane "kind of" wanted her mother to tell someone, but she told her mother not to tell because Jane was scared. Jane's mother did not tell anyone. After the disclosure, Jane once found her mother crying because she wanted to spend the holidays with her family but she could not, she told Jane, "because of you." About a year later, Jane disclosed the sexual abuse to a friend who was going to school to be a counselor for rape victims. Nothing came of it.
In early 2011, when Jane was pregnant, she told a counselor about the abuse. She did so then because she was feeling extremely guilty that defendant might be molesting her cousins or the 10-year-olds on the soccer team he was coaching, and it would be her fault if anything happened because she had not said anything. The counselor said she would have to notify Child Protective Services. At first, Jane did not want to involve the police, because she was "scared and confused, and was afraid I was going to tear my family apart, which I did." Eventually, she gave a statement to the police and, with their help, placed a pretext phone call to defendant. Prior to that phone call, during her high school years and after, there were lots of family gatherings and the family was close. Since that phone call, Jane has had no contact with Diana, her cousins, or her other uncle, and only minimal contact with her grandparents.
Defendant's Admissions
On February 16, 2011, with police assistance, Jane placed a pretext phone call to defendant, which was recorded. Jane said she wanted an apology for what happened when she was younger. Defendant "deeply sincerely apologize[d] for what happened when we were younger." Jane said: "I was 12 when you took my virginity." Defendant replied: "I took it? [¶] . . .[¶] Um, wow. Very very very deeply sorry for that. And who told you that?" Jane replied, "Well nobody told me I . . . just haven't been able to sleep and I—I'm afraid to see you sometimes I just—it's just always in the back of my head . . . . ." Defendant said he sensed that and stayed away from her "not because I was scared about what was happening I mean I can deal with any consequences you know I did what I did."
Jane asked defendant what made him think she wanted to have sex with him when she was so young. Defendant explained that "a guy is a guy . . . . You're always looking to have sex whether you're young or you're old." He blamed his behavior on being "perverted" by a friend and the friend's mother when he was six years old and "I just never grew out of it I guess."
Jane told defendant he was the first person who gave her oral sex when she was 12. Defendant agreed: "Exactly. Yeah. And . . . it's not right by any means." He said he was willing to do whatever it took to make Jane better: "I mean if this is something we need to bring out and tell the whole family I mean it's just gonna affect me, I'm going to jail—I'll tell you that right now—if all this comes out and like I said I'm . . . willing to do whatever it takes you know—I mean if that's what['s] gonna make you happy that's—and that's what's gonna take for you to forgive me—like I said my intentions were not to hurt you like I don't know what the hell I was thinking . . . ." Defendant said he would love for Jane to trust him: "[T]hat be my, probably one of my biggest accomplishes in life is to make you trust me knowing that I will never hurt you or anybody in the family ever again. And that's not the kind of person I am. I—I like to give—I like to satisfy people especially in food-wise, you know, to cook for people. I like to see people happy you know I—I don't like to make people mad—I don't want to argue with people I, just it's not in my nature." Defendant also said, "[F]or awhile there I felt like a father to you guys taking you guys camping and Great America and all that kinda stuff like during the time where your—your dad left."
Jane said he stole her virginity and did hurt her and made her give him oral sex; she asked, "[W]hy would you do that?" Defendant responded it was "just plain stupid. I mean there is no explanation, other than just complete evil." He could say he was sorry and mean it from the bottom of his heart but "I can't turn back what happened." Defendant said he was always on drugs back then, but he admitted he still knew it was wrong.
Jane asked defendant if he remembered the camping trip to Lassen when he stuck his finger in her and it hurt her. Defendant said that he did remember and he apologized for that "but you knew it was wrong too right?" Jane said she didn't really know; she was 12 or 13. Defendant then added: "I know you didn't. I'm not putting no blame on you whatsoever." Defendant said his greatest fear was that something like that was going to happen to his daughters "and I'm not even gonna know it, just like it happened to you." Knowing what he did, he could not trust any of his male relatives.
After the pretext phone call, defendant was arrested and wrote a letter of apology to Jane, which was read at trial.
The Defense Case
Dr. Mitchell Eisen testified as an expert in child and adolescent memory and disclosures of abuse. He explained the Child Sexual Abuse Accommodation Syndrome as developed by Dr. Roland Summit. Dr. Summit found disclosures were often delayed, and it is not uncommon for a child not to tell anyone about the abuse. Dr. Summit also noted that many children felt that "if they told, that could blast the family apart." Dr. Summit and other researchers noted that some children were rejected when they told, and the "rejection of the other caretaker who is supposed to take care of them when they finally disclose what's happening to them or dismiss it or tell them not to tell anyone else because it will tear the family apart, that is more traumatic than the actions themselves. Participating in the abuse may be uncomfortable and difficult for many kids, but being rejected by a caretaker when you're seeking protection is often the deeper wound . . . ."
Dr. Eisen defined trauma as "something that threatens the life or safety of yourself or the people around you." He opined that most child molestation is not traumatic to the child at the time it is happening. "[I]t may be experienced as weird or awkward or uncomfortable or yucky, but it's not trauma." However, when these children grow up and become adolescents and adults, they rethink these experiences and find them extremely disturbing and disrupting to their life and sense of self. Dr. Eisen agreed that some sexual abuse, like forcible rape, is traumatic, and that forcing an adult penis into the mouth of a 12-year-old could be traumatic.
Dr. Eisen also discussed how memory works. He opined that when people have repeated similar experiences in their lives, it is hard to remember specific details "because they run together. We have a broad schema, a broad mental model of classes of similar experiences in our lives. When we're asked to repeat details of any single one, it's often an amalgam. They're often mixed up together." In addition, he opined "all memory is malleable." And, research showed there is no way to tell the difference between a real memory and a false memory.
Dr. Eisen described helplessness in children. "Children look to adults for all guidance. They don't realize they have any power at all. . . . The natural state of affairs is the children feel helpless in the face of adult authority."
Dr. Eisen did not interview any witnesses in the case, nor would it have been useful since his role was limited to describing the research and case literature that may be outside common knowledge.
Defendant's cousin, Aleandro, testified that despite having listened to defendant's admissions during the pretext phone call, and despite knowing what defendant did was wrong, he believed defendant was still a good person and Aleandro did not want to turn his back on defendant.
Diana testified she began dating defendant in high school, when she was 16. They lived together uninterrupted until defendant was arrested, and have two daughters, but never married. Diana and defendant have never broken up, although she now had mixed feelings. She loved defendant and she loved Jane.
According to Diana, when they lived on Center Street, Jane came over two or three times. Jane came over and spent the night three times a year when they were living on Wisteria Street. Jane liked to come over to their house. At family gatherings, Jane was very friendly toward defendant. When she was in high school, Jane always attended family gatherings. Diana confirmed that defendant hunted deer and brought one home butchered one year.
Diana's opinion of defendant had not changed since hearing parts of the pretext phone call. What happened was wrong, and she wished she had known what was going on, because she would have done something to stop it. Looking back, she had no idea what was going on.
It was stipulated that on February 6, 2014, defendant was convicted of, in count 1 related to this case, a violation of section 288, subdivision (a), lewd and lascivious conduct on Jane Doe, a child under 14.
DISCUSSION
Substantial Evidence Supports the Convictions in Counts 2 Through 7.
Defendant was convicted in count 2 of forcible digital penetration (§§ 269, subd. (a)(5)/289, subd. (a)(1)(A)), in counts 3 through 6 of forcible oral copulation (§ 269, subd. (a)(4)) and in count 7 with forcible rape (§ 269, subd. (a)(1)). Convictions under these statutes require findings that the proscribed act was accomplished by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury.
The prosecutor's theory was that defendant used duress, force, and fear to gain Jane Doe's submission. Defendant acknowledges Jane testified she was afraid of defendant because he owned guns and was a hunter, because he "put [his] penis in her mouth, . . . [¶] . . . his fingers in . . . [her] vagina . . . [¶] . . . [and] kissed [her] with his tongue," and because of defendant's size, age, and position as a respected and beloved member of the family. He argues these facts fall short of establishing the requisite element of force or duress. We disagree.
In reviewing a claim of insufficiency of the evidence on appeal, our role is limited. " '[T]he relevant 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. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) "Evidence is sufficient to support a conviction only if it is substantial, that is, if it ' "reasonably inspires confidence" ' [citation] and is 'credible and of solid value.' " (People v. Raley (1992) 2 Cal.4th 870, 891.)
People v. Cochran (2002) 103 Cal.App.4th 8 (Cochran), overruled on another point in People v. Soto (2011) 51 Cal.4th 229, 248, footnote 12, rejected a similar claim the evidence of force and duress before it was insufficient to support convictions for aggravated assault under section 269. The Cochran court defined "force" as " 'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (Id. at p. 13.) The Cochran court observed that "[a] number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act. (See People v. Babcock (1993) 14 Cal.App.4th 383, 386-388, and cases cited therein; but see People v. Schulz (1992) 2 Cal.App.4th 999, 1004 [force not found when defendant grabbed victim's arm and held her while fondling her]; People v. Senior (1992) 3 Cal.App.4th 765, 774 [force not found when defendant pulled the victim back when she tried to pull away from oral copulations].)" (Ibid.) Because the Cochran court found ample evidence of duress, it did not discuss whether force was used.
Here, Jane Doe testified that when defendant told her to put her mouth on his penis, she did not want to do it. He overcame her resistance by pulling her towards him with his hands on her shoulders, placing his hands on the back of her head, and making her do it. Having his penis in her mouth made Jane want to vomit and she tried to pull back, but defendant pushed her head into his penis. When she stopped to alert defendant that his child was in the living room, defendant pushed her face back into his penis. When she tried to pull her head back because she was gagging on defendant's pubic hair, he prevented her from pulling her head away by putting his hand on the back of her head. On the final occasion of abuse, defendant put his hand on back of her head as he placed his penis in her mouth and told her to suck it. She testified she did so because she had no choice.
In our view, each act of oral copulation to which Jane Doe testified was accomplished by means of " 'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (Cochran, supra, 103 Cal.App.4th at p. 13.) We join People v. Babcock, supra, 14 Cal.App.4th at pages 386-388 in rejecting the reasoning of People v. Senior, supra, 3 Cal.App.4th at page 774 and People v. Shulz, supra, 2 Cal.App.4th at page 1004 on this point. The element of force is satisfied here by evidence the defendant applied force as defined above in order to accomplish the lewd act. Substantial evidence supports a finding that defendant used force to accomplish all acts of oral copulation.
The Cochran court defined "duress" 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 submitted.' " (Cochran, supra, 103 Cal.App.4th at p. 13.) The court observed: " 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' " (Id. at pp. 13-14.) "[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] 'Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress." (People v. Schulz, supra, 2 Cal.App.4th at p. 1005.) "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.) "Where the defendant is a family member and the victim is young, other courts have also looked to factors such as the position of dominance and authority of the defendant and his continuous exploitation of the victim in determining the existence of force or fear." (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239.)
Defendant argues this case is similar to People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), overruled in part in People v. Soto, supra, 51 Cal.4th at page 248, footnote 12, and People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), where the appellate courts found insufficient evidence of duress. In Hecker, the victim was the defendant's 12- or 13-year-old stepdaughter. (Id. at p. 1241.) She testified the sex acts included touching and licking her breasts and vagina, and forcing her to orally copulate him until he ejaculated. They also included acts of sexual intercourse and sodomy, which hurt her. (Ibid.) He told her repeatedly not to worry about getting pregnant because he had had a vasectomy. (Id. at p. 1242.) He also told her he was doing these things because guys did not like girls who were very tight and he wanted to loosen her up for her future husband so he would not get mad at her. He also said it would ruin his marriage and his career and he would be put in jail for a long time if she reported the incidents to anyone. The victim testified she remained silent because she did not want to be responsible for breaking up the marriage. She also testified she never willingly engaged in sex acts with the defendant and that he forced her, by following her around the house if she tried to leave the room, but never used physical force. She said she felt pressured psychologically and was subconsciously afraid. (Ibid.)
The Hecker court rejected this evidence of coercion because there was no evidence the defendant threatened the victim; she admitted she was never consciously afraid the defendant would harm her and, with the exception of pushing the victim's head down during the act of oral copulation, the defendant never used physical force. In addition, there was no evidence the defendant was aware of and took advantage of the victim's subconscious fear and, in any event " '[p]sychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger, hardship or retribution.' " (Hecker, supra, 219 Cal.App.3d at pp. 1250-1251.)
Defendant Hecker was charged under section 288, subdivision (b), and the Hecker court's holding must be understood in the context of its statutory interpretation of then current section 288. In the Hecker court's view, the fact that both subdivisions (a) and (b) of section 288 at that time ascribed the same punishment for forcible and nonforcible sex acts against children under 14 manifested the Legislature's "understanding of the ambiguous role played by force in the commission of sex crimes against children." (Hecker, supra, 219 Cal.App.3d at p. 1249.) Unlike rape, in which the common law viewed force "as playing 'merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim's will,' " under section 288 "the concept of force is not necessary to prove a lack of consent; instead it simply serves to distinguish certain more culpable nonconsensual sex acts from others." (Ibid.) However, defendant here was prosecuted under section 269, which punishes forcible sex crimes against children even more severely when the child is 10 years younger than the adult. To the extent the Hecker court's holding on insufficiency of the evidence is tied to its statutory interpretation, it has no traction in this case. Furthermore, subsequent courts have undermined if not outright rejected Hecker's restrictive view of the interplay between psychological coercion and duress. (See, e.g., Cochran, supra, 103 Cal.App.4th at p. 15 ["The very nature of duress is psychological coercion."]; People v. Veale (2008) 160 Cal.App.4th 40, 49, quoting from People v. Shulz, supra, 2 Cal.App.4th at p. 1005 [" '[D]uress involves psychological coercion.' "]; People v. Mejia (2007) 155 Cal.App.4th 86, 101 [warning victim not to report incidents "bespeaks psychological coercion, not normal sexual relations."].)
Violation of section 269 is punishable by 15 years to life. (Stats. 1993-1994, 1st Ex. Sess., ch. 48, § 1, p. 8761.)
In Espinoza, supra, 95 Cal.App.4th 1287, the defendant molested his 12-year-old learning disabled daughter shortly after she moved from Nebraska to Salinas to live with him. (Id. at p. 1292.) Over a two-week period, the defendant came into her bedroom in the wee hours of the morning when it was dark and rubbed her breasts and vagina underneath her clothes. (Id. at pp. 1292-1293.) The victim knew her father had previously molested an older half sister. (Id. at p. 1292.) The victim testified she was " 'too scared to do anything' " when her father was molesting her. She told two friends about the molestations, and they urged her to report her father to the police, but the victim said she was afraid he would do something to her if she told. (Id. at p. 1293.) The final time defendant molested the victim, he put his tongue in her mouth, licked her vagina and attempted to put his penis in her vagina, but the victim " 'moved' " to prevent him. (Id. at p. 1293.) Even so, it hurt. (Id. at p. 1295.) She reported the molestations to her school counselor the next day. (Id. at p. 1293.) Following a court trial, the defendant was convicted of four counts under section 288, subdivision (a), one count under section 288, subdivision (b), and one count of attempted rape. (Id. at p. 1291.)
Espinoza found no evidence of any direct or implied threat by the defendant. (Espinoza, supra, 95 Cal.App.4th at p. 1321.) "Defendant did not grab, restrain or corner L. during the final incident out of which the Penal Code section 288, subdivision (b) count and the attempted rape count arose. L. did not cry, and she offered no resistance. Instead, defendant simply lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts." (Id. at p. 1320.) Relying largely on Hecker's view of psychological coercion, the Espinoza court concluded: "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 [she] 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." (Id. at p. 1321.)
Espinoza, supra, 116 Cal.App.4th 1287, relied on the same statutory interpretation of section 288 (Espinoza, at pp. 1318-1319) and view of psychological coercion as Hecker and to that extent is not germane here for the same reasons discussed above. Furthermore, both Hecker and Espinoza are factually distinguishable.
The record here established that defendant was a central person, highly esteemed and much loved, in this extended family. He was also an important father figure to Jane and her brothers after their father left. Defendant acknowledged as much in the pretext phone call. Compared to Jane, he was much larger and much older than she was, and she did not think or dare to challenge his adult authority. He was a hunter and gun owner. He worked out. He had demonstrated his strength by butchering a deer. As she repeatedly testified, she did what he told her to do because he told her to do it.
The first assault occurred in Jane's home, where she should have been safe. He took her by surprise and physically controlled her by grabbing her as she walked out of the bathroom and pulling her back into the room in order to tongue-kiss her in the mouth. Then he told her not to say anything. He repeated that injunction after other sex acts. He often badgered her about whether she had gotten her period yet.
The second time defendant assaulted Jane, he again physically controlled her movements as she acquiesced in straddling him because she was scared and confused. "Physical control can create 'duress' without constituting 'force.' " (Shulz, supra, 2 Cal.App.4th at p. 1005.) After having forced Jane to orally copulate him, he demonstrated how helpless she was in the face of his control over her by putting his finger in her vagina while they were swimming on one occasion and putting his fingers up her pants and into her vagina on another occasion. Jane testified he physically hurt her twice. Under these circumstances, we see nothing circular in reasoning that Jane's fear of being molested at any moment by defendant was engendered by the fact that he had previously molested her, sometimes by force. Moreover, on the totality of this record, a jury could rationally infer that Jane feared if she tried to stop the abuse by telling on defendant, her worst fears would be realized: she would not be believed, and she would tear apart her family. Defendant's position within the family was such that Jane testified she feared someone in the family would hurt her or her mother if she disclosed the abuse. Jane also testified her mother cried because Jane's disclosure meant she could not spend the holidays with her family. Defendant played on that fear when he told her in the pretext phone call that "if this is something we need to bring out and tell the whole family," he would go to jail.
On this record, we have no trouble concluding that defendant won Jane's acquiescence by conduct and words that instilled in her a fear and dread of hardship for her family and unknowable consequences that amounted to duress. Defendant emphasizes that Jane told police defendant made her believe that she "wanted it." However, "consent is not a defense when the victim of a sex crime is a child under age 14" and the focus is on "the defendant's wrongful act, not the victim's response to it." (People v. Soto, supra, 51 Cal.4th at pp. 246-247.) In any event, in the context of the family dynamic evident here, a rational jury would be entitled to find that any such belief on Jane's part was the product of psychological coercion. Substantial evidence supports the jury's verdict that defendant committed the charged offenses by force and/or duress. Section 288.5 Does Not Bar Charges or Convictions of Individual Counts Under Other Statues.
Defendant argues section 288.5 is a special statute which exclusively governs child molesters like him who reside with or have recurring access to the children they molest. Therefore, he cannot be prosecuted under general statutes proscribing child molestation, such as sections 288, 269 and 289, and his convictions in counts 2 through 7 for forcible digital penetration, oral copulation, and rape must be reversed. Variations on defendant's argument have been rejected many times before. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1581-1582; People v. Hord (1993) 15 Cal.App.4th 711, 716-721; People v. Johnson (1995) 40 Cal.App.4th 24; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177-1178; People v. Torres (2002) 102 Cal.App.4th 1053, 1056-1061; People v. Johnson (2002) 28 Cal.4th 240, 242-246.)
At the time defendant committed the offenses, section 288.5 provided: "(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. [¶] (b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number. [¶] (c) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim." (Stats. 1989, ch. 1402, § 4, p. 6140, italics added.)
At that time, section 1203.066 subdivision (b) defined substantial sexual conduct as "penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender by the penis of the other." (Stats. 1989, ch. 1402, § 12, p. 6168, as amended by Stats. 1993-1994 1st Ex. Sess., ch. 60.)
" 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.' " (In re Williamson (1954) 43 Cal.2d 651, 654 (Williamson).) In Williamson, the defendant was prosecuted under section 182, the general conspiracy statute, for conspiring to commit the crime of contracting without a license in violation of Business and Professions Code section 7028, a felony. (Id. at pp. 652-653.) Business and Professions Code section 7030 punished a violation of section 7028 as a misdemeanor. (Id. at pp. 653-654.) The Williamson court concluded that punishing a violation of section 7028 as a felony under the general conspiracy statute was contrary to the legislative objective stated in the statutory predecessor of section 7030 to treat contractor licensing violations as misdemeanors. (Id. at p. 654.) "The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent." (People v. Jenkins (1980) 28 Cal.3d 494, 505.)
In People v. Johnson, supra, 28 Cal.4th 240, our Supreme Court examined the legislative intent behind the enactment of section 288.5 in 1989. The statute "was aimed at solving a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense's ability to respond to specific charges arguably was impaired." (Id. at p. 242.) People v. Van Hoek (1988) 200 Cal.App.3d 811, disapproved by People v. Jones (1990) 51 Cal.3d 294, 322, and other cases reversed convictions based on such generic testimony citing constitutional grounds involving due process and jury unanimity. The enactment of section 288.5 was a legislative response to the Van Hoek line of cases. (Johnson, at p. 243.) Section 288.5 requires jury unanimity as to the requisite number of acts that occurred, but not as to the specific acts that comprise that number. It also imposes "certain limits on the prosecution's power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding." (Ibid.) These are: (1) only one count of continuous sexual abuse may be charged per victim; and (2) no other felony sex offense involving the same victim and occurring during the same time period may be charged in the same proceeding, unless the other offense is charged in the alternative. (Ibid.) Citing Williamson's rule of general versus specific statutes, the Johnson court held that section 288.5, subdivision (c)'s explicit alternative charging provision "essentially carves out an exception to section 954's general rule permitting joinder of related charges" and "differentiates section 288.5 from other offenses as far as the operation of section 954 is concerned." (Johnson, at p. 246.) The court expressly stated nothing in its conclusion was inconsistent with the holding in People v. Hord, supra, 15 Cal.App.4th 711, 720 that "the Legislature's purpose in passing section 288.5 was not to enact a specific statute in order to preclude prosecution for other generally applicable sexual offenses." (Johnson, at p. 246, fn. 5.)
"(a) The Legislature finds and declares that because of the court's decision in People v. Van Hoek, 200 Cal. App. 3d 811, there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as 'resident child molesters.' These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another in terms of time, place, or other particulars, and as a consequence prosecutors are unable to provide the specificity of charges necessary to overcome the constitutional due process problems raised in the Van Hoek case within the framework of existing statutory law. As a consequence, some of our most vulnerable children continue to be at risk and some of our worst offenders continue to go unpunished. [¶] (b) It is the intent of the Legislature in enacting this act to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as 'resident child molesters' by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child. It is the further intent of the Legislature that the penalty for this crime shall be greater than the maximum penalty under existing law for any single felony sex offense." (Stats. 1989, ch. 1402, § 1, p. 6138, italics added.)
In Johnson, the prosecutor joined one count of violating of section 288.5 with five other counts of specific sexual crimes against the same minor during the same time period, but did not allege the specific crimes in the alternative to the section 288.5 charge. (Johnson, supra, 28 Cal.4th at p. 243.) The Court of Appeal cured the violation of section 288.5, subdivision (c) by reversing the individual counts, and our Supreme Court affirmed the Court of Appeal's judgment. (Id. at p. 244.) However, in conclusion, the Johnson court observed that "[p]rosecutors in sexual abuse cases possess a variety of means to seek convictions and severe punishments in cases involving sexual offenses against vulnerable young victims" including, among other things, pleading and proving discrete sexual offenses. (Id. at p. 248.)
In People v. Torres, supra, 102 Cal.App.4th at pages 1060-1061 and People v. Alvarez, supra, 100 Cal.App.4th at pages 1177-1178, the appellate courts determined it was proper and consistent with the legislative intent to prevent child molesters from evading convictions to vacate the section 288.5 conviction and leave standing the individual counts of child molestation when the proscription against multiple convictions in section 288.5, subdivision (c) is violated.
In People v. Wilkerson, supra, 6 Cal.App.4th 1571, the defendant pleaded guilty to multiple counts of child molestation. On appeal, he argued the prosecutor was required to charge him as a resident child molester solely under section 288.5. (People v. Wilkerson, at pp. 1574, 1581.) Rejecting that contention, the Wilkerson court observed that section 288.5 "provides a vehicle for prosecuting resident child molesters if specific acts of sexual abuse at a particular time cannot be proven. [Citations.] It is not, nor was it intended to be, a limit on prosecutorial discretion in determining how a particular defendant is to be charged. It was certainly not intended, as appellant contends, to reduce the punishment for the acts to which appellant pleaded. Moreover, section 288.5 does not supplant all of the requirements of the general criminal statutes governing sexual molestation of children. [Citations.] Thus, the general child molestation statutes remain viable charging options for prosecutors in cases such as this." (People v. Wilkerson, at p. 1581.) In our view, the Wilkerson court's observation is equally apt where, as here, the defendant is charged solely with multiple individual counts of child molestation and is convicted after a trial. We therefore reject defendant's contention. Permitting the Victim to Testify with a Support Person , Without a Prior Necessity Hearing , Did Not Deprive Defendant of a Fair Trial.
Over objection, Jane Doe testified with a support person by her side, without a prior judicial determination that she needed a support person. Defendant maintains she did not need one, because she was an adult and a mother when she testified. Defendant argues Jane's testimony with a support person by her side compromised his constitutional rights because the presence of a support person unfairly bolstered her credibility, making it more likely the jury would believe the alleged conduct occurred, and violated his right to confront her testimony fully and fairly. He further asserts the court's failure to hold a necessity hearing prior to her testimony was reversible error because several case-specific factors suggested the use of a support person would present a substantial risk to defendant's constitutional rights. We disagree.
Jane Doe testified with a support person pursuant to section 868.5, which provides in relevant part that "a prosecuting witness in a case involving a violation or attempted violation of Section[s] . . . 261, . . . 269, . . . 288a . . . [or] 289 . . . shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, or at a juvenile court proceeding, during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness' testimony. . . . [¶] . . . [¶] . . . In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness."
The statute specifically permits one support person to accompany the victim witness to the witness stand. No showing of necessity is required. Several cases have considered the constitutional implications of this practice. To date, none—including our Supreme Court—has found the practice of permitting a support person to accompany the victim-witness to the witness stand violates the defendant's constitutional rights. "It is established that a support person's mere presence with a witness on the stand, pursuant to section 868.5, does not infringe upon a defendant's due process and confrontation clause rights, unless the support person improperly interferes with the witness's testimony, so as to adversely influence the jury's ability to assess the testimony." (People v. Spence (2012) 212 Cal.App.4th 478, 514; see also People v. Valenti (2016) 243 Cal.App.4th 1140, 1171; People v. Myles (2012) 53 Cal.4th 1181, 1214-1215 (Myles); People v. Ybarra (2008) 166 Cal.App.4th 1069, 1077, disapproved on another ground in People v. Gutierrez (2014) 58 Cal.4th 1354, 1370-1372; People v. Johns (1997) 56 Cal.App.4th 550, 555-556; People v. Adams (1993) 19 Cal.App.4th 412, 442-443; People v. Patten (1992) 9 Cal.App.4th 1718, 1727 (Patten).) "[N]o decision supports the proposition that defendant advances here, that the support person's mere presence infringes his due process and confrontation clause rights. ' "The presence of a second person at the stand does not require the jury to infer that the support person believes and endorses the witness's testimony, so it does not necessarily bolster the witness's testimony.' ' " (Myles, at p. 1214.) In his opening brief, defendant acknowledges these cases, while maintaining that section 868.5 is unconstitutional because it sanctions an inherently prejudicial practice. We reject that argument on the basis of precedent.
Defendant next argues that based on case-specific factors, the court should have held a Patten hearing (Patten, supra, 9 Cal.App.4th 1718) before allowing a support person to accompany Jane Doe to the witness stand. In Patten, an adult mother of two was raped and forced to orally copulate the defendant. (Id. at p. 1721.) At trial, she had two support persons present when she testified. (Id. at p. 1724.) One of the support persons was the victim's sister, and also a witness. The jury was not informed that two support persons were present, and the record did not reflect where the support persons were situated. (Id. at p. 1724.) The defendant there argued "[u]tilization of this procedure without a case-specific inquiry. . . renders the procedure itself unconstitutional." (Id. at p. 1725.) The Patten court disagreed: "[U]nder the California statute, the absence of a requirement of a case-specific showing of necessity does not . . . make this statute unconstitutional per se . . . because procedures available to utilize support persons pursuant to the statute would not infringe any constitutional rights." (Id. at p. 1727.) However, the court went on to consider "whether the specific circumstances of the instant case required a showing of necessity, even if not required by the statute." (Ibid.) Although the Patten court ultimately concluded such a showing was not necessary in the case before it, in dicta the court proposed a nonexclusive list of pertinent factors to be considered, which it gleaned from out-of-state cases. These include: (1) the relationship of the support person to the victim-witness; (2) the location of the support person in relation to the victim-witness; (3) "whether the support person does anything that the jury could see that might interject an influence on the victim-witness or the jury such as crying, nodding the head, hand motions, etc. The list of possibilities that might generate an improper influence is limitless." (Id. at pp. 1731-1732.)
On the question of "degree of possible prejudice," the court considered whether the nature of the defense implicated the victim-witness's credibility, and whether the defense had other tactical considerations, such as wanting to portray the victim-witness as emotionally unstable. (Patten, supra, 9 Cal.App.4th at p. 1732.) It also considered the actions taken by the court: "[T]he court might admonish the jury to disregard the presence of the support person as a collateral matter unrelated to the process of the determination of guilt. In some cases an admonishment might not be desirable because it would draw undue attention to the presence of an otherwise unobtrusive support person. The court has the duty to use its good judgment to curtail any unnecessary actions by the support person which might sway or influence the victim-witness or jury." (Ibid.)
Finally, the Patten court stressed the importance of making a record: "It is critical that the appellate record reflect as clearly as possible all the factors bearing on the issue. At the least, the record should reflect who the support person is, the precise location of the support person during the witness's testimony, and any activities of the support person during the testimony. . . . Without a record detailing how the procedure was carried out, we can find no particular factors demonstrating that the jury may have been unfairly influenced by the presence of support persons." (Patten, supra, 9 Cal.App.4th at p. 1733.)
Viewing this case through the lens of Patten's considerations, we are not persuaded a necessity hearing was required here. Jane Doe's age and motherhood are not especially pertinent. The victim in Patten was an adult and a mother. Section 868.5 applies to a long list of offenses, including murder and assault, most of which do not involve children specifically, but often do involve adult victims, some of whom may be parents. Similarly, the fact that the support person here was identified as a "victim/witness advocate," like the fact that one of the support persons in Patten was the victim's sister who testified in her favor, mitigates the possibility of prejudice because the jury is well aware that the support person is not neutral. Here, the support person accompanied Jane to the witness stand — which is permitted under the statute—but the record is silent as to how near or far the support person sat or stood during her testimony. We can only presume the support person did not touch Jane or otherwise do anything to influence the jurors because defense counsel made no objection to his actions or to his demeanor and the court did not admonish him in any way.
It is true the court did not admonish the jury that the support person was not a witness, and that Jane was entitled by law to have his support when she testified. But it was obvious the support person was not a witness: he did not testify. Moreover, the court has no sua sponte duty to so instruct, and defense counsel did not request an admonition. As the Patten court observed, admonitions can be a two-edged sword: "In some cases an admonishment might not be desirable because it would draw undue attention to the presence of an otherwise unobtrusive support person." (People v. Patten, supra, 9 Cal.App.4th at p. 1732.)
It is also true that Jane Doe's credibility was implicated to some degree by the defense presented: although defendant admitted he committed the sex acts, he denied he used force or duress. Nevertheless, there was ample "other evidence from which the jury [could] evaluate the credibility of a witness . . . [which] can lessen the level of possible prejudice to the defendant." (People v. Patten, supra, 9 Cal.App.4th at p. 1732.) In sum, the court was not required on these facts to hold a Patten hearing on the necessity of Jane's request for a support person.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.