People v. Maya-Zapata CA1/5 ( 2021 )

Filed 12/15/21 P. v. Maya-Zapata CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A156982
v.
JESUS MAYA-ZAPATA, (Contra Costa County
Super. Ct. No. 51715069)
Defendant and Appellant.
Appellant Jesus Maya-Zapata was tried before a jury and
convicted of 17 sexual offenses arising from his abuse of his
stepdaughter over a period of several years that began when she
was less than ten years old. He appeals from a judgment
sentencing him to prison for 75 years to life plus 40 years,
arguing: (1) the court should have granted his motion to
suppress statements made and evidence seized during his police
interrogation; (2) the prosecutor’s peremptory challenge of a
Latinx woman during voir dire violated Batson v. Kentucky
(1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler); (3) several of the counts were committed
without force, violence, fear or duress, a necessary element of the
crimes charged; (4) the court should have instructed on additional
lesser included offenses as to some of the counts; (5) the court’s
1
instructions lessened the prosecution’s burden to prove certain
elements of certain crimes; (6) appellant’s sentence constitutes
cruel and unusual punishment; and (7) the cumulative effect of
the trial errors requires reversal. We affirm.
I. BACKGROUND
Jane Doe was born in 1999 and her parents divorced when
she was four. Appellant (who was born in 1981) began living
with her mother shortly thereafter. Doe did not like appellant at
first, but they gradually became closer and she came to view him
as a father figure. Appellant was in charge of discipling Doe
when she was younger, which he did by yelling at her or pulling
on her ears.
When she was about nine years old, appellant began to
touch Doe in a sexual way. She remembered her age because she
was still in elementary school and the family lived on Sheryl
Drive, and also because the touching coincided with her
menstrual period, which she began having when she was nine
years old.
Appellant began by touching Doe’s legs, thighs, and vagina
over her clothes. Doe was afraid but did not tell her mother what
was happening because she did not think her mother would
believe her. Appellant always told Doe’s mother that Doe was a
bad person and Doe’s mother would react by hitting her or yelling
at her. The touching progressed and appellant would grab her
hand and put it on his penis. He started putting his fingers
inside her vagina.
2
When Doe was 10 years old, appellant began having sexual
intercourse with her once or twice a week. Doe did not tell her
mother because she believed she would take appellant’s side.
The family moved to Linda Street and appellant continued to
have sexual intercourse with Doe, using a condom for protection.
He initiated the sex by bribing Doe, offering her “money and
stuff,” and “[i]t was either cooperate or get punished for it.” He
told Doe he would tell her mother she was talking back and being
bad to get her in trouble, and he threated to take away her phone
and iPod. When she gave in, appellant would lay her on the bed
and remove her clothes.
Doe began giving appellant oral sex about once a week.
She did not want to but appellant would offer her things and “it
was either that way or no way.” The intercourse and oral sex
continued, with appellant “bribing” Doe by giving her money or
letting her go out with her friends or convincing her mother to let
her go out with her friends.
The family moved to a house on Frances Road, and
appellant began having anal sex with Doe once or twice a month.
It was very painful for Doe and she bled from it; appellant told
her he would use more lubrication.
The sexual contact continued, as did appellant’s efforts to
persuade Doe to participate by taking away her phone and by
threatening to tell Doe’s mother she was acting badly. Appellant
would offer her money in exchange for sexual acts, with the
amount offered dependent on the act, and she came to see that
behavior as “normal.” Doe remembered an incident in which
3
appellant caught her texting a boy and pulled her ears, similar to
how he had done when she was a young child.
Appellant stopped touching Doe when she was 16 or 17.
Her grandmother had come to live with the family, and because
Doe felt her grandmother supported her, she started to refuse
appellant’s demands for sex. On one occasion appellant texted
Doe and offered her $100 for sex, and she refused and threatened
to call the police. Appellant told her she was missing out.
Doe had a boyfriend whom appellant did not like, and in
the summer of 2016 (when Doe was 17), she told him what
appellant had done to her. Doe’s boyfriend gave her the courage
to speak out and she told her grandmother, who told her mother.
Doe ran away to live with her boyfriend’s family and then went to
the police.
Doe first met with a deputy sheriff in a Walgreen’s parking
lot accompanied by her mother because she did not want to meet
appellant at the residence. She told the deputy that appellant
had begun molesting her when she was nine years old and that
they began having sexual intercourse when she was 10 years old.
The deputy passed the information to a detective in the special
victims’ unit, who interviewed her regarding the molestations.
Doe told the detective that appellant had started having
intercourse with her when she was 10, and oral and anal sex
when she was 11. The detective arranged for Doe to participate
in a recorded pretext call, which was played for the jury.
In the call, Doe told appellant she was confused about her
feelings. Appellant told her “You like for me to do it to you,
4
actually.” Appellant offered to help Doe with money and when
Doe asked him if he would want sex, responded “Well, yes, I
would indeed like it. Of course, if—like we say, I beg for it.” He
also told her that if they started having contact again they
wouldn’t have to have anal sex, but later in the call told her
“that’s also part of a couple” when she stated that she would not
want to have sex that way. Appellant acknowledged having
offered and given Doe money for sex and explained that he did it
because he liked her. He estimated they had been having sex
since she was 12 or 13 years old. He stated that Doe had wanted
sex, and denied that she had been only 10 years old when they
started. When Doe mentioned that she had been “little,”
appellant told her, “No, not little, well, you were the one who
wanted it.”
Doe identified a photograph of appellant’s penis that had
been taken from appellant’s phone.
Appellant was charged with sexual intercourse with a child
10 years of age or younger (Pen Code,1 § 288.7, subd. (a); count 1);
oral copulation or sexual penetration of a child 10 years of age or
younger (§ 288.7, subd. (b); count 2); lewd act on a child under 14
(§ 288, subd. (a); count 3); sodomy of a child under 14 with a ten-
year age difference (§ 286, subd. (c)(1); count 4); aggravated
sexual assault (rape) on a child under 14 with a ten-year age
1Further statutory references are to the Penal Code unless
otherwise indicated.
5
difference2 (§ 269, subd. (a)(1)/269, subd. (a)(2) and (a)(6)); counts
5 and 6); two counts of aggravated sexual assault (sodomy) on a
child under 14 (§ 269, subd. (a)(3)/261, subds. (a)(2) and (a)(6);
counts 7 and 8); aggravated sexual assault (oral copulation) on a
child under 14 (§§ 269, subd (a)(4)/former 288a,3 subds. (c)(2),
(c)(3) and (d); count 9); four counts of forcible lewd acts on a child
(§ 288, subd. (b), counts 10 through 13); forcible oral copulation of
a minor 14 years of age or older (§ 288a, subd. (c)(2)(C); count 14);
sodomy of a person under 16 years of age (§ 286, subd. (b)(2));
count 15); and two counts of lewd act on a minor with a ten-year
age difference (§ 288, subd. (c)(1); counts 16 and 17). He was
convicted of all counts following a jury trial.
II. DISCUSSION
A. Motion to Suppress
Appellant argues he was prejudiced because the court
should have granted his in limine motion seeking to suppress
certain evidence on the grounds that it was obtained without a
valid waiver of the right to counsel, in violation of Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda). We reject the claim.
2 Section 269 was amended in 2006 to reduce the 10-year
age difference required for a violation of the statute to seven
years. (Stats. 2006, ch. 337, § 6; Initiative Measure (Prop. 83),
§ 5.) Appellant was more than 10 years older than Doe so the
amendment is immaterial for our purposes.
3Renumbered as § 287 effective January 1, 2019. (Stats.
2018, ch. 423 (SB 1494).)
6
1. Procedural Background.
Appellant was interrogated by two sheriff’s detectives after
the pretext call. He was advised of his Miranda rights, including
the right to speak to an attorney during questioning, and he
indicated that he understood these rights.
The lead interrogating detective then asked appellant some
general questions and stated: “Okay. I’m going to be . . . honest
with you, okay? I’m going to be honest and I’m going to tell you
why we’re here, but I want you to. . . look me in the face, please.
I also want you to be very honest with us. We’re going to ask you
some things but I would like you to be honest; okay? We could
have—" Defendant interjected, “Didn’t you say you were going to
bring a lawyer or something?” The detective replied, “No, it’s just
going to be us right now; okay? There are two sides to
everything. . . .” Appellant proceeded to make incriminating
statements to the detectives and wrote a letter of apology to Doe
at their behest. He also gave the detectives permission to search
his cell phone, which yielded a picture of his penis and text
messages to Doe in which he offered her $100 for sex.
Appellant moved to suppress his incriminating statements
as involuntary, arguing that his question “[d]idn’t you say you
were going to bring a lawyer or something” was an invocation of
the right to counsel and the detectives should have immediately
ceased their questioning at that point or should have at least
clarified what was meant by the statement. He alternatively
argued that notwithstanding his earlier indication that he
understood each of his Miranda rights, his question indicates he
7
had not really understood he had the right to have counsel
present during questioning. Appellant also moved to suppress
the evidence found on his cell phone during the interrogation as
the fruit of the poisonous tree. (See Wong Sun v. United States
(1963) 371 U.S. 471, 485.)
The court denied the motion. Appellant’s statements and
the apology letter were never introduced at trial. The
prosecution did introduce the text message in which appellant
asked Doe for sex in exchange for money and the photograph of
appellant’s penis (which Doe identified at trial).
Appellant now argues that the court should have
suppressed the evidence. He acknowledges that the statements
and apology letter were not introduced at trial, but contends he
was nonetheless prejudiced because they could have been
introduced as impeachment evidence had he testified, and the
knowledge of this possibility discouraged him from testifying and
explaining the circumstances regarding the charges. (See People
v. Jablonski (2006) 37 Cal.4th 774, 813 [defendant did not forfeit
challenge to voluntariness of statement where he failed to testify
and statement was never introduced].) Appellant argues that the
photograph of his penis and text messages to Doe were the
product of the unlawful interrogation and were prejudicial
because they corroborated Doe’s testimony.
2. Validity of Initial Waiver of Miranda Rights.
Appellant claims his initial waiver of Miranda was not
knowing and voluntary. We disagree.
8
“Miranda makes clear that in order for defendant’s
statements to be admissible against him, he must have
knowingly and intelligently waived his rights to remain silent,
and to the presence and assistance of counsel.” (People v. Cruz
(2008) 44 Cal.4th 636, 667 (Cruz).) The prosecution has the
burden of proving that an accused understood a Miranda
advisement. (Berghuis v. Thompkins (2010) 560 U.S. 370, 384.)
A suspect’s “ ‘expressed willingness to answer questions after
acknowledging an understanding of his or her Miranda rights
has itself been held sufficient to constitute an implied waiver of
such rights.’ ” (People v. Sauceda-Contreras (2012) 55 Cal.4th
203, 221.) After a knowing and voluntary waiver, interrogation
may proceed “ ‘ “until and unless the suspect clearly requests an
attorney.” ’ ” (People v. Dykes (2009) 46 Cal.4th 731, 751.)
Although we must independently review the ultimate legal
question of whether a statement was obtained in violation of
Miranda, we accept the trial court’s factual findings if they are
supported by substantial evidence. (People v. Scott (2011) 52
Cal.4th 452, 480.) “[W]hether a particular defendant understood
and knowingly waived his rights is essentially a factual question,
which we review only for substantial evidence.” (People v.
Jenkins (2004) 122 Cal.App.4th 1160, 1173, fn. 2.)
Here, appellant was advised of his Miranda rights,
including the right to have an attorney present during
questioning, and answered without qualification that he
understood his rights. Although appellant did not specifically
indicate that he waived his Miranda rights, his express and
9
unambiguous acknowledgment that he understood them was
sufficient to show a knowing and voluntary waiver. (Cruz, supra,
44 Cal.4th at pp. 667–668.) Substantial evidence supports the
trial court’s determination that appellant initially waived his
rights.
3. Invocation of Right to Counsel
Appellant alternatively argues that after his initial waiver,
he invoked his right to counsel. Again, we disagree.
Upon the assertion of the right to counsel, all questioning
must cease until an attorney is present. (Edwards v. Arizona
(1981) 451 U.S. 477, 484–485; People v. Cunningham (2015) 61
Cal.4th 609, 646 (Cunningham).) However, “[f]or a statement to
qualify as an invocation of the right to an attorney. . . the
defendant ‘must unambiguously request counsel.’ ”
(Cunningham at p. 646.) If a reasonable police officer would not
understand a defendant’s statement to be an unambiguous and
unequivocal request for counsel, officers have no duty to ask
clarifying questions. (Davis v. United States (1994) 512 U.S. 452,
461–462 (Davis).)
“[A] reviewing court—like the trial court in the first
instance—must ask whether, in light of the circumstances, a
reasonable officer would have understood a defendant’s reference
to an attorney to be an unequivocal and unambiguous request for
counsel, without regard to the defendant's subjective ability or
capacity to articulate his or her desire for counsel, and with no
further requirement imposed upon the officers to ask clarifying
10
questions of the defendant.” (People v. Gonzalez (2005) 34
Cal.4th 1111, 1125.)
Appellant’s question as to whether the detective would be
bringing an attorney was not an unambiguous request for
counsel. (See Davis, supra, 512 U.S. at pp. 459, 462 [“ ‘Maybe I
should talk to a lawyer’ ” was not an unambiguous or unequivocal
request for counsel]; People v. Molano (2019) 7 Cal.5th 620, 659
[statement by defendant that he would “ ‘feel more comfortable’ ”
if he spoke to a public defender first was not a “ ‘clear assertion’ ”
of the right to counsel]; Cunningham, supra, 61 Cal.4th at p. 645
[suspect did not unequivocally request counsel by stating,
“ ‘Should I have somebody here talking for me, is this the way it’s
supposed to be?”]; People v. Shamblin (2015) 236 Cal.App.4th 1,
20 [“ ‘I think I probably should change my mind about the lawyer
now. . . I think I need some advice here’ ” did not show clear
intention to invoke right to counsel].) The detectives were not
obligated to stop their interrogation and clarify what appellant
meant by his question.
4. Effect of Question on Initial Waiver/Harmless Error
Appellant argues that his question about whether the
detectives would be bringing an attorney indicates that he did not
subjectively understand in the first place the Miranda
advisement that he was entitled to have an attorney present. He
also argues that the lead detective’s response to his question
about whether they were going to bring a lawyer—"No, it’s just
going to be us right now”—was misleading in that it suggested
appellant did not have a right to have counsel present.
11
Even if we construed appellant’s statement in this way and
assume a Miranda violation, reversal is not required. We review
a Miranda violation under the harmless-beyond-a-reasonable
doubt standard of Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Elizalde (2015) 61 Cal.4th 523, 542.) The People must
show, beyond a reasonable doubt, that the error did not
contribute to the jury's verdict. (Ibid.)
As noted, the incriminating statements to the detectives
and the apology letter to Doe that they elicited during the
interrogation were not introduced into evidence and could not
have directly affected the verdict. Appellant posits that he was
prevented from testifying by the possible use of the statements
and letter as impeachment evidence, but that evidence would
have been admissible for impeachment purposes even if the
detectives had been found to have violated Miranda, so we cannot
attribute his failure to testify to any assumed Miranda violation.
(People v. Nguyen (2015) 61 Cal.4th 1015, 1075–1076
[incriminating statement to police, even if taken in violation of
Miranda, is admissible as impeachment if defendant elects to
testify].) The other evidence was strong: in addition to Doe’s
testimony, appellant acknowledged sexual contact with her
during the recorded pretext call, whose admissibility is not
challenged, and he further acknowledged that the contact
occurred when Doe was 12 or 13 years old. To the extent he
would have denied that Doe was even younger had he testified,
he had claimed as much during the pretext call, telling Doe she
had not been as young as she remembered.
12
Turning to the photograph of appellant’s penis and the text
messages to Doe which were found on his phone, those items
were physical evidence that appellant seeks to suppress as the
fruits of the alleged Miranda violation. “The fruit of the
poisonous tree doctrine does not apply to physical evidence seized
as the result of a noncoercive Miranda violation.” (People v.
Davis (2009) 46 Cal.4th 539, 598; People v. Brewer (2000) 81
Cal.App.4th 442, 454–455; People v. Whitfield (1996) 46
Cal.App.4th 947, 955–957.) Appellant argues that a Miranda
violation renders an interrogation inherently coercive, but courts
have repeatedly held that a violation of the prophylactic rules of
Miranda does not mean a statement was coerced. (E.g., Davis at
p. 598; People v. Bradford (1997) 14 Cal.4th 1005, 1039–1040.)
Even if we assume the photograph and text message should
have been excluded, their admission was patently harmless. The
photograph was relevant only because Doe identified it as
depicting appellant’s penis, but from the other evidence in the
case (including the pretext call, in which appellant admitted
sexual contact with Doe), it was clear Doe was familiar with that
part of appellant’s anatomy. The text message to Doe confirmed
the sexual nature of her relationship with appellant and his
practice of offering her money for sex, but he acknowledged the
same thing in the pretext call.
B. Batson/Wheeler Motion
Appellant contends the court should have granted his
Batson/Wheeler motion because the prosecution’s reasons for
13
excusing a Latinx woman were a pretext for ethnic bias. We
disagree.
1. Background
Prospective Juror Hernandez was a single 23-year-old
server with an Associates of Arts degree who had received
training as an aviation mechanic. She indicated on her
questionnaire that she had had a positive experience with law
enforcement, and she had been “taken in handcuffs for my own
protection from abuse.” This abuse was not sexual in nature, and
she wrote that neither she nor a close family member had ever
been a victim of sexual abuse. She revealed she had been
arrested for assaulting her mother, but that the charges against
her were dropped because of the history of child abuse. She also
indicated that she believed sexual abuse was wrong, but would
not judge another person without having all the facts. She had
sat on another jury in an eviction case.
When Hernandez was questioned during voir dire, she
indicated that despite her positive experiences with law
enforcement, she believed she could judge the credibility of a law
enforcement witness fairly because “[t]hey’re all human.
Everyone makes mistakes.” She explained that she had sat on
the jury in a landlord-tenant case about a rent increase where the
Section 8 tenant claimed insufficient notification of the increase
and the landlord had not kept adequate records. Hernandez had
enjoyed that experience and had learned a lot about tenants’
rights. She stated she did not have an emotional reaction to the
charges in this case and would be able to listen to the evidence
14
and the witnesses. She did not have a husband, boyfriend or
kids, and tended to stay away from jobs involving kids because
she didn’t know how to “communicate with them properly.” In
the event Hernandez saw the evidence differently than the other
jurors, she stated she would reexamine the evidence but could
vote her conscience.
The prosecutor exercised a peremptory challenge against
Hernandez, and defense counsel made a Batson/Wheeler motion.
An unreported sidebar conference was held. In a reported
conference outside the presence of the jury panel, defense counsel
put her reasons for the motion on the record, indicating that
Hernandez was “Latina” and observing that appellant was
“Latino,” and while one of the other prospective jurors (who
ultimately sat on the jury) might be Latina, nothing Hernandez
had said had indicated a bias. The court indicated that it had
asked the prosecutor to respond even though it did not appear
that the challenge to Hernandez had been racially motivated, and
it further stated that the defense had used peremptory challenges
against three Latino jurors.
The prosecutor gave three reasons for excusing prospective
juror Hernandez: (1) Hernandez had been arrested for assaulting
her mother, and even though she had not been charged and
believed the police were kind to her, “for me, having a previous
arrest is a red flag as a juror;” (2) Hernandez had been on a civil
jury and seemed to side with a person who had been on welfare,
indicating a tendency to favor the “underdog;” and (3) Hernandez
was young and came across as less mature than the other jurors
15
The court denied the Batson/Wheeler motion, observing: “I will
say, my observations of her were also that she was very
immature. She was giggling. She took up a lot of time with her
answers and did seem somewhat enthusiastic and anxious to
serve as a juror.”
2. Legal Framework
The state and federal constitutions forbid prosecutors from
using peremptory challenges to remove jurors on account of race,
ethnicity, gender or membership in a similar cognizable class.4
(Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp.
276–277; People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) A
defendant who suspects a juror has been challenged for a
discriminatory reason must bring a motion under
Batson/Wheeler, at which point the trial court will analyze the
claim using a familiar three-prong test. First, it must determine
whether the defendant has made a prima facie showing the
prosecutor exercised a peremptory challenge based on race,
ethnicity or some other impermissible ground. Second, if the
showing is made, the burden then shifts to the prosecutor to
4 Appellant was tried in 2019. In 2020, the Legislature
passed Assembly Bill 3070, which enacts Code of Civil Procedure
section 231.7 and codifies the principle that peremptory
challenges may not be based on membership in a racial, ethnic or
similar group. (Stats. 2020, ch. 318, §§ 1–3.) Among other
things, the changes affect the standard of appellate review and
make certain reasons for peremptory challenges presumptively
invalid. (Code Civ. Proc., § 231.7, subds. (e)–(g), (j).) The changes
are effective for criminal trials in which jury selection begins on
or after January 1, 2022, and the new law does not apply to
appellant’s trial. (See Code Civ. Proc., § 231.7, subd. (i).)
16
demonstrate the challenge was exercised for a neutral reason.
Third, the court determines whether the defendant has proven
purposeful discrimination by evaluating the proffered reasons
and determining whether they are legitimate or pretextual.
(Lenix, at p. 612; see People v. Manibusan (2013) 58 Cal.4th 40,
77.)
In this case, the trial court made no express finding
regarding a prima facie case of discrimination, but asked the
prosecutor to explain her reasons for excusing Hernandez. We
therefore review this as a third-prong case, and review for
substantial evidence the trial court's determination that the
challenge was not discriminatory. (People v. McDermott (2002)
28 Cal.4th 946, 971 [whether opponent of a peremptory challenge
has proved purposeful discrimination is reviewed for substantial
evidence]; People v. Williams (2013) 58 Cal.4th 197, 280–281
[when court ruled on ultimate question of intentional
discrimination, question of whether defendant established a
prima facie case of discrimination is moot].) This standard
requires us to give “great deference to the trial court's ability to
distinguish bona fide reasons from sham excuses,” at least so long
as the court made “a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered.” (People v. Burgener
(2003) 29 Cal.4th 833, 864.)
A prosecutor’s reason for excusing a juror does not need to
be well-founded so long as it is not discriminatory. (Purkett v.
Elem (1995) 514 U.S. 765, 768.) “ ‘[E]valuation of the
prosecutor's state of mind based on demeanor and credibility lies
17
“peculiarly within a trial judge’s province.” ’ ” (People v. Stevens
(2007) 41 Cal.4th 182, 198.) It is presumed an advocate’s use of
peremptory challenges was constitutional. (People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 1009.) The ultimate issue is
“whether it was more likely than not that the challenge was
improperly motivated.” (Johnson v. California (2005) 545 U.S.
162, 170.)
Appellant tries to pick apart the prosecutor’s stated reasons
for excusing prospective juror Hernandez—her criminal arrest,
her apparent sympathy toward the “underdog,” and her maturity
relative to that of the other jurors—but none of these reasons
were “ ‘implausible or fantastic’ ” and they were all unrelated to
race. (People v. Huggins (2006) 38 Cal.4th 175, 227.) We are
required to defer to the trial court so long as it undertook a
“ “ “ ‘sincere and reasoned effort’ to evaluate the prosecutor’s
explanations.” ’ ” (Ibid.) It did so.
Appellant’s attempt to use comparative juror analysis for
the first time on appeal also fails. Appellant focuses on three
seated jurors, noting that Juror No. 57 had friends in law
enforcement and had positive experiences with law enforcement
officers as people; that Juror No. 79 had a former girlfriend who
had been raped as a teenager and followed the “MeToo”
movement in the news; and that Juror No. 90 had sat on a jury in
a manslaughter case that reached a verdict and followed
childhood sex cases because he had an 11-year-old daughter. He
contrasts these responses with prospective jurors whom the
prosecution excused, who had negative feelings about law
18
enforcement or were critical about the prosecution of child sex
abuse cases, and argues that Hernandez’s responses were closer
to those of the seated jurors.
The three seated jurors cited by appellant were mature
men with significant educational and life experience, all of whom
had children, and they had little in common with Hernandez.
Juror 57’s positive experiences with law enforcement were based
on his friendships with officers whereas Hernandez’s arose from
their kind treatment of her during an arrest. And while Juror
Nos. 79 and 90 can be broadly said to have expressed an interest
in or knowledge of childhood sex abuse, Hernandez’s abuse as a
child was not sexual in nature.
Though comparative juror analysis can be done on appeal
even if a comparative review was not conducted below (Lenix,
supra, 44 Cal.4th at p. 622), we agree with appellant’s
acknowledgement that in this case, there was “very little to
compare.” Certainly, there is not enough to infer that the only
reason for excluding Hernandez was her ethnicity.
C. Evidence of Duress
Counts 5 through 14 (two counts of aggravated sexual
assault on a child by means of rape, two counts of aggravated
sexual assault on a child by means of sodomy, one count of
aggravated sexual assault on a child by means of oral copulation,
four counts of forcible lewd conduct, and one count of forcible oral
copulation) each required proof that the sexual act at issue was
accomplished by force, violence, fear or duress. (§§ 269, subd.
(a)/261, subds. (a)(2) & (a)(6)/286, subds. (c)(2), (c)(3)/288a, subds.
19
(c)(2), (c)(3), 288, subd. (b)(1).) Appellant challenges the
sufficiency of the evidence to prove this element. We reject the
claim.
We apply the well-established and “highly deferential”
substantial evidence standard. (People v. Lochtefeld (2000) 77
Cal.App.4th 533, 538.) “The proper test for determining a claim
of insufficiency of evidence in a criminal case is whether, on the
entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.] On appeal, we
must view the evidence in the light most favorable to the People
and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.
[Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
Appellant argues that despite the prosecutor’s suggestion
that force could be proved because of the size disparity between
him and Doe, there was no evidence the acts were committed by
force or violence because he did not use more force than was
necessary to commit the sexual acts. It is not necessary to decide
this issue, because the prosecutor relied on duress and the
evidence was sufficient to support the convictions based on this
theory. (See People v. Perez (2005) 35 Cal.4th 1219, 1232–1233
[court must affirm if jury was instructed on factually valid theory
supported by the evidence, unless it can be demonstrated jury
convicted based on factually invalid ground].)
The jury was instructed that “duress” in the context of
sodomy, oral copulation and lewd conduct is “a direct or implied
threat of force, violence, danger, hardship, or retribution that
20
causes a reasonable person to do or submit to something that he
or she would not otherwise do or submit to. When deciding
whether the act was accomplished by duress, consider all the
circumstances, including the age of the other person and her
relationship to the defendant.” Duress in the context of rape was
similarly defined, but, as the jury was properly instructed, it did
not include a threat of “hardship.” (People v. Leal (2004) 33
Cal.4th 999, 1007–1008.)
To determine whether duress was used, the finder of fact
should consider “various circumstances, including the
relationship between the defendant and the victim, and their
relative ages and sizes (People v. Senior (1992) 3 Cal.App.4th 765,
775.) “ ‘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.” (Ibid., quoting People v.
Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; see
People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 (Cochran),
disapproved on other grounds in People v. Soto (2011) 51 Cal.4th
229, 248, fn. 12;5 People v. Schulz (1992) 2 Cal.App.4th 999,
1005.) The victim's testimony must be considered in light of her
age and her relationship to the defendant. (Cochran, supra, at
pp. 13–14.)
5In Soto, supra, 51 Cal.4th at p. 248, footnote 12, the court
disapproved language in Cochran and other cases suggesting the
consent of the victim is a defense to the crime of forcible lewd acts
under section 288, subdivision (b)(1).
21
In this case, the evidence shows that appellant began
molesting Doe when she was only nine years old and he was a
father figure to her. There was a significant disparity in their
age, size and power dynamic. Appellant disciplined Doe by
yelling at her and pulling on her ears, and he threatened to tell
her mother she was bad and used threats and bribery to get her
to comply with his demands for sex. Though the acts underlying
the counts in question occurred when Doe was a little older than
when the sexual abuse first began (12 to 14 years old instead of 9
to 10 years old), the continuing nature of the sexual contact,
fostered by appellant’s bribery, threats and manipulation, were
sufficient to constitute duress when considering the totality of the
circumstances. (Cochran, supra, 103 Cal.App.4th at p. 13–14.)
Appellant argues that psychological coercion is not enough
to establish duress and there must be some kind of direct or
implied threat, citing People v. Hecker (1990) 219 Cal.App.3d
1238 (Hecker) and People v. Espinoza (2002) 95 Cal.App.4th 1287.
The reasoning of those cases has been undermined by Cochran,
supra, 103 Cal.App.4th at page 15 (decided by the same court
that decided Hecker), in which the court found duress where the
evidence supported a finding that the victim’s compliance in the
sexual acts was derived from the “psychological control [her
father] exercised over her and was not the result of freely given
consent.”
Appellant suggests his actions in threatening to take Doe’s
phone away from her or to not allow her to see her friends was
not a threat of hardship, but was simply an exercise of parental
22
authority. Taking a phone from a preteen is an act of parental
authority; threatening to do so in order to have sex is not.
C. Lesser Included Offenses
The court instructed the jury on lesser included offenses as
to several of the counts, most of which contained the element of
force and were distinguishable from the charged crimes due to
the age element of the offense. Appellant contends the court
committed prejudicial error in additionally failing to instruct on
sexual intercourse with a minor (§ 261.5), nonforcible sodomy
with a minor (§ 286, subds. (b) or (c)) and nonforcible oral
copulation with a minor (former § 288a, subds. (b)(1) and (c)(1);
see § 287) as lesser included offenses of counts 5, 6, 7, 8 and 9,
which alleged aggravated sexual assault on a child under 14
under section 261, subdivision (a)(2) & (6), and count 14, which
alleged forcible oral copulation with a minor 14 or older under
section 288, subdivision (a). We reject the claim.
“Under California law, a lesser offense is necessarily
included in a greater offense if either the statutory elements of
the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that
the greater cannot be committed without also committing the
lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117–118.)
“California decisions have held for decades that even absent a
request, and even over the parties’ objections, the trial court must
instruct on a lesser offense necessarily included in the charged
offense if there is substantial evidence the defendant is guilty
only of the lesser.” (Id. at p. 118.) We review the failure to
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instruct on a lesser included offense by asking whether it is
reasonably probable appellant would have obtained a more
favorable outcome had the jury been so instructed. (People v.
Breverman (1998) 19 Cal.4th 142, 177–178 (Breverman).)
We assume for the sake of argument that the nonforcible
offenses were lesser included offenses of the charged crimes
under either the elements or accusatory pleadings test. But
assuming that notwithstanding the lack of a request the court
should have instructed on the nonforcible offenses, the failure to
do so was not prejudicial because it is not reasonably probable
the jury would have reached a result more favorable to appellant
if so instructed. (Breverman, supra, 19 Cal.4th at pp. 177–178.)
The rape underlying counts 5 and 6 was alleged to have
been committed between March 31, 2009 and March 30, 2013; the
sodomy underlying counts 7 and 8 was alleged to have been
committed on March 30, 2011 to March 31, 2013, and from March
31, 2009 to March 31, 2013, respectively; the oral copulation
underlying count 9 was alleged to have been committed between
March 31, 2009 and March 30, 2013; and the oral copulation
underlying count 14 was alleged to have been committed between
March 31, 2013 and March 31, 2016. The jury was instructed on
nonforcible lewd conduct as a lesser included offense for forcible
lewd conduct in counts 10 to 13 (§ 288, subd. (a) and (b)(1)),
alleged to have occurred between March 31, 2008, and March 30,
2013, yet it convicted appellant of the greater crime of forcible
lewd conduct.
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The duress in this case was overarching, born of the
parental relationship between appellant and Doe and the history
of the sexual abuse. It is inconceivable that a jury which, when
faced with the option of nonforcible lewd conduct, nonetheless
convicted appellant of forcible lewd conduct, would have
concluded that the sexual intercourse, sodomy and oral
copulation committed during the same time frame was committed
without duress.
We recognize that count 14 was alleged to have occurred
later than the forcible lewd conduct in counts 10, 11, 12 and 13
(March 31, 2013 to March 31, 2016 versus March 31, 2008 to
March 30, 2013), but given the nature of the duress in this case,
which was based primarily on the parental relationship, it is not
reasonably probable that a jury would have determined it
somehow evaporated during the later years. Remand is not
required.
D. Instructional Error
Although he did not object in the trial court, appellant
argues the trial court’s use of pattern legal instructions were
legally erroneous in several respects. Assuming the error has not
been forfeited, we conclude there was no prejudicial error.
1. Failure to Define “Menace”, “Retaliation” or
“Retribution”
In CALCRIM Nos. 1000, which defined the elements of
forcible rape, “duress” was defined to include a threat of
“retribution.” In CALCRIM Nos. 1015, 1030 and 1111, which
defined the elements of forcible oral copulation, forcible sodomy,
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and forcible lewd acts, the court defined “duress” to include a
threat of “hardship” or “retribution.” Appellant contends these
terms had a specific legal meaning and should have been defined.
We disagree.
The terms used in the jury instructions were the same as
those used in the statutes at issue. “If the jury would have no
difficulty in understanding the statute without guidance, the
court need do no more than instruct in [the] statutory language.”
(People v. Estrada (1995) 11 Cal.4th 568, 574.) Appellant seems
to argue that because the statutes defining the crimes allow for a
conviction if the crimes were committed by “menace,” the
instruction should have defined that term as well. But the
instructions did not include that term and, as the People note,
the prosecution did not argue it as a theory of the case.
2. Specific Intent to Threaten
Appellant next argues that the jury should have been
instructed that “duress” requires a specific intent to threaten.
The requirement that a sexual offense be committed “by ‘force,
violence, duress, menace, or fear of immediate and unlawful
bodily injury’ ” does not require a specific intent. (Senior, supra,
3 Cal.App.4th at p. 776.) “It describes types of intimidating
conduct by the defendant and not any particular state of mind of
the defendant.” (Ibid.) The trial court was not required to
instruct on an element that was not required.
3. Parental Prerogatives
Appellant argues that the court should have instructed the
jurors that they should consider “the legitimate objectives of
26
parenting” in assessing whether appellant used duress to
accomplish his sex crimes. He acknowledges that no case so
holds, and we will not be the first court to say that duress is
somehow less culpable if it is based on the dynamics of a parental
relationship.
We agree with appellant that “all parenting entails a
compulsive environment.” When the goals of that “compulsive”
environment serve the legitimate objectives of parenting—
compelling a child to do her homework or go to bed at a
reasonable hour, for example—that is obviously not duress in the
criminal sense. When, however, the parental relationship is
perverted so that the parent uses the same authority to coerce
the child into performing sexual acts with the parent, that is
another matter entirely, and the defendant is not entitled to hide
behind the veil of “parental prerogatives.”
4. Hardship
With the exception of the charges based on rape, the jury
was instructed on “hardship” as a basis for duress. This was
appropriate. (See Leal, supra, 33 Cal.4th at pp. 1004–1010.)
E. “Hardship” as Component of Duress
Appellant argues that “hardship,” as used to define a basis
of duress in the instructions, was unconstitutionally vague. We
disagree. (Leal, supra, 33 Cal.3d at pp. 1004–1010.)
F. Cruel and Unusual Punishment
Appellant argues that his sentence—which is the practical
equivalent of life without the possibility of parole—constituted
cruel and unusual punishment because it was disproportionate to
27
the offenses in violation of the United States and California
Constitutions. (See U.S. Const., 8th Amend.; Cal. Const., art. I,
§ 17.) We disagree. (People v. Baker (2018) 20 Cal.App.5th 711,
719–734 [life sentence for single count under § 288.7 where
defendant molested niece was not cruel and unusual
punishment]; People v. Retanan (2007) 154 Cal.App.4th 1219,
1231 [sentence of 135 years to life for offender who molested
several children was not disproportionate]; People v. Alvarado
(2001) 87 Cal.App.4th 178, 199–201 [life sentence for single count
of rape during robbery did not violate cruel and unusual
punishment clauses]; People v. Bestelmeyer (1985) 166 Cal.App.3d
520 [sentence of 129 years to life not unconstitutional per se
when defendant was convicted of 25 sex crimes against single
child victim].)
G. Cumulative Error
Appellant argues the cumulative effect of the errors in this
case require reversal even if individually they do not. There is
essentially nothing to cumulate, and we reject the claim. (People
v. Lewis (2001) 25 Cal.4th 610, 635.)
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Maya-Zapata/ A156982
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