People v. Rodriguez CA6

Filed 1/25/23 P. v. Rodriguez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047311
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1638561)
v.
LEONCIO CORONA RODRIGUEZ,
Defendant and Appellant.
I. INTRODUCTION
Defendant Leoncio Corona Rodriguez1 was convicted by jury of five counts of
committing a forcible lewd or lascivious act on a child under the age of 14 (Pen.
Code, 288, subd. (b)(1)),2 one count of aggravated sexual assault of a child under the age
of 14 by sexual penetration (§§ 269, 289, subd. (a)), one count of oral copulation with a
child aged 10 or younger (§ 288.7, subd. (b)), and 10 counts of aggravated sexual assault
of a child under the age of 14 by oral copulation (§ 269; former § 288a). As to each of
the forcible lewd act counts, the jury found true the allegation that the offense was
Defendant’s first name is variously spelled in the record as “Leoncio” and
1
“Leonicio.” At trial, he testified that his first name is spelled “Leoncio.”
2
All further statutory references are to the Penal Code unless otherwise indicated.
committed against more than one victim (§ 667.61, subds. (b) & (e)). The trial court
sentenced defendant to an aggregate term of 255 years to life.
On appeal, defendant raises issues only as to the five forcible lewd act counts.
First, defendant contends that the unanimity instruction given by the trial court misled the
jury regarding the forcible lewd act counts. Second, he argues that section 667.61, which
requires consecutive sentencing upon certain judicial findings, violated his Sixth
Amendment right to a jury trial. Third, defendant contends that there was insufficient
evidence that he used force or duress to commit two of the forcible lewd act counts
against one of the victims.3
For reasons that we will explain, we will affirm the judgment but order clerical
errors in the abstract of judgment corrected.
II. BACKGROUND
A. The Prosecution’s Case
Defendant, who was born in 1963, dated and lived with the victims’ mother for
several years. The mother had three daughters from a prior relationship: victim G. Doe,
who was the youngest daughter; victim H. Doe, who was four years older than G.; and
K., who was eight years older than H. Defendant was a “father figure” to both G. and H.,
and their mother told the girls that they had to listen to him and respect him.
Defendant was a construction worker who worked from approximately 8:00 a.m.
to 5:00 p.m., but he was able to “come and go” during the day. The victims’ mother
worked parttime and was usually not working in the afternoon. At times, she left G. and
H. in defendant’s care.
3
Defendant also argued in his opening brief on appeal that there was insufficient
evidence to support the multiple victim finding as to three of the five forcible lewd act
counts. In his reply brief, defendant has withdrawn this argument.
2
1. Defendant’s sexual abuse of H.
At the time of trial in early 2019, H. was 20 years old. H. testified that defendant
started touching her when she was 10 or 11 years old and in the fifth grade. The first
time it occurred, they were in bed and defendant was tickling her stomach when he
“suddenly” put his hands on her breast under her shirt. After a few seconds he removed
his hands and told her, “Do not tell anyone.” H. felt scared.
At the end of sixth grade for H., the family moved to a different residence. H.
testified that at the new residence, defendant kissed her, touched her breasts, and touched
her vagina more than once. She testified that she did not want defendant to touch her
body.
Regarding kissing by defendant, one night when H. was 12 or 13 years old and in
the seventh grade, defendant tried to tell H. to go downstairs. H. woke up G., who shared
the same bed, “to scare [defendant] away.” After G. fell back asleep, defendant returned
and again told H. to go downstairs. H. pretended to be asleep, but defendant knew she
was awake and told her to stop pretending. H. complied because defendant was upset,
and she was scared that he would hurt her. She testified that defendant “was scary.”
After H. went downstairs, defendant told her to get on the couch. Defendant then pulled
down his pants and underwear and got on top of H. Defendant “kept on trying to make
out with” her by kissing her lips. H. did not want to kiss him and did not kiss back,
“[b]ut he still kept . . . kissing [her].” When someone else came down the stairs,
defendant pulled up his pants and H. went back upstairs. H. testified that defendant
kissed her another time while she was still in seventh grade.
Regarding defendant touching her breasts, H. testified that it occurred more than
two times. She did not know whether it occurred more than five times.
Regarding defendant touching her vagina, H. testified that the first occasion
occurred when she was 12 or 13 years old and in the seventh grade. Defendant told her
to go to the garage. H. “had . . . an idea of what was going on” because defendant had
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previously touched her inappropriately. H. still “listened to him” because he was her
mother’s boyfriend, he was an adult, and her mother had taught her to listen to adults.
Defendant took her to his truck. While she was in the passenger seat and he was standing
outside the truck, he pulled down her pants and underwear and put his fingers in her
vagina. This was the first time he had put his fingers inside her vagina. Defendant got
mad because she did not bleed. He repeatedly accused H. of already having sex, which
she denied. H. wanted to leave, but defendant told her that she could not. He threatened
to “do something to [her] with his [construction] tools,” which were in the back of his
truck. The incident ended when defendant received a cell phone call from H.’s mother,
who needed a ride.
Defendant touched H.’s vagina on a second occasion when she was in seventh
grade. He pulled off her pants and underwear, and then he licked her vagina. The first
time that H. ever disclosed this incident was at trial.
At trial, immediately after being asked about defendant touching her breasts and
vagina, H. was asked whether “[d]uring these incidents, as he was touching you, do you
remember him saying anything else to you?” H. testified in response, “He would just get
through and tell me not to tell anyone.” When asked how she felt about being told not to
tell anyone, H. testified, “I wanted to, but I just felt like I couldn’t. There was too many
threats going on, or that he had told me to be scared enough to not tell anyone.” H.
further testified that she believed her mother loved defendant and that her mother seemed
happy with defendant.
2. Defendant’s sexual abuse of G.
At the time of trial in early 2019, G. was 15 years old and in the 10th grade. G.
testified that defendant started touching her when she was around eight years old and in
the third grade, which would have been around the time that defendant apparently
stopped touching H. G. testified that at the time defendant touched her, he was
considered a “stepdad figure” to her.
4
Defendant touched her with his hands, mouth, and tongue. Defendant would take
off G.’s clothes, and he used his hands and mouth to touch her breasts and vagina. G.
told him to stop, and she tried to fight back and leave. However, defendant was bigger
and stronger than her. The touching happened at least twice a month while she was in
third grade. He put his mouth on her vagina at least 10 times that year. Defendant also
rubbed his penis against her thighs and vagina one time when she was in the third grade.
G. testified that defendant continued to touch her vagina with his hands and his
mouth beyond third grade. When she was nine years old and in fourth grade, he put his
mouth on her vagina at least 10 times, with the incidents occurring at least three times a
month. When she was 10 years old and in fifth grade, he put his mouth on her vagina at
least once a month for at least 10 times that year. Similarly, when she was 11 years old
and in sixth grade, he put his mouth on her vagina at least once a month for at least
10 times that year.
G. testified that the touching incidents always happened after she came home from
school. G. testified that during the summer months between each of the grade levels, the
touching seemed to happen more frequently. Specifically, defendant would put his
mouth on her vagina and use his hands to touch her breasts almost every day during the
summer.
During each of the 10 incidents at each grade level, G. would tell him, “No,” but
defendant did not listen to her. It made G. feel powerless.
The touching incidents occurred in different rooms, including in G.’s room,
defendant’s room, and in the living room. One time, G. was downstairs and defendant
carried her upstairs to his room. She tried to hold on to the stair railing, but defendant
pulled her, carried her upstairs, and touched her. Another incident occurred in
defendant’s truck in the garage when he put his mouth on her vagina and touched her
breasts. In a separate incident, defendant, who was a construction worker, took her to a
house that he was working on and touched her with his mouth. After one incident in
5
which defendant touched her vagina with his mouth, defendant told G. to look at him as
he masturbated. At times when defendant touched G.’s body, he asked whether she liked
it.
G. testified that the touching occurred when no one else was home. Although she
testified that the touching usually occurred when defendant came home from work, she
told the police in May 2016, that the touching usually occurred in the morning.
Defendant threatened G. in relation to the touching, and she felt scared. Although
she initially testified that she could not remember what he said, she later testified that he
threatened to hit her if she refused to let him touch her. H. testified that defendant would
make this threat when she was “fighting back really hard.” He also told her not to tell
anyone. G. felt she had to listen to him. Defendant’s threats to hurt her, and his demand
that she not tell anyone, occurred throughout the timeframe from third to sixth grade.
Defendant’s statements occurred before or after the touching. More than twice defendant
also told G. that “no one would probably believe” her. G. did not tell her mother about
the touching because she was scared her mother would not believe her.
At trial, G. did not remember testifying at the preliminary hearing that she never
saw defendant’s penis and that she never saw him masturbate. G. testified that each time
she talked about defendant’s touching—to the police, at the preliminary hearing, and at
trial—she tried to remember everything that happened and she told the truth about what
she remembered. At trial, she admitted that she did not remember a lot of the details
about defendant touching her. G. testified that she could not remember the details of the
very first touching.
Defendant stopped touching G. when she was around 11 or 12 years old and in
sixth grade or before she started seventh grade. At some point during sixth grade, she
tried to avoid defendant by talking to him less, thinking he would stop.
6
3. Events prior to H.’s and G.’s disclosures
About two months before H. and G. disclosed defendant’s sexual abuse, the
victims’ mother noticed changes in G. G. had always been a quiet child, but in sixth
grade she “got even more quiet” and would not respond sometimes when defendant
talked to her. The mother asked G. why she was always quiet and whether defendant was
scolding her, yelling at her, hitting her, or touching her inappropriately. G. said, “No.”
Also around this time, an individual, who defendant presented as his daughter,
lived with the family. Defendant’s daughter was given her own room, while G., H., their
older sister K., and K.’s young daughter shared a room. G. and H. both testified that they
were not angry or upset about the living arrangements. H. admitted she was jealous that
she did not have her own room, “but it wasn’t a big deal” and she did not mind sharing a
room with her sisters and niece.
Shortly before the disclosure of sexual abuse, defendant found H. and her
boyfriend in her bedroom when they were supposed to be at school. H. was 17 years old
and a junior in high school. Defendant was upset and pushed the boyfriend down the
stairs. Defendant told H. that he did not want her to be in a relationship and that he was
going to tell her mother about it. H. testified that defendant also told her that “when [she]
turned 18, [she] was supposed to be his.” H. felt really scared. She was also worried that
she would be forbidden from spending time with her boyfriend. At some later point, her
mother disciplined her by telling her that she could not “bring the boyfriend again.”
4. H.’s and G.’s disclosures of the sexual abuse
Immediately after the incident in which defendant found H. and her boyfriend in a
bedroom, H. left the residence and told her boyfriend what defendant had said about her
turning 18 and belonging to defendant. The boyfriend, in turn, told H.’s oldest sister, K.,
that defendant had been touching H. When K. asked H. about it, H. indicated that she
had been scared to disclose the conduct.
7
K. confronted their mother. Their mother was surprised, did not want to believe
the allegations, and called H. a liar. At the same time, their mother did not believe H.
was capable of lying about something so serious. The mother did not kick defendant out
of the house.
K. testified that she asked G. whether defendant had touched her. G. responded,
“Yes” and started crying.
K. felt “betrayed” by defendant and thereafter “avoided him.” K. testified that she
did not call the police, however, because she did not know what to say and “had no
proof.”
H. and her boyfriend decided to call the police a few days after the incident in
which defendant had found the boyfriend in her room. The disclosure occurred on
May 23, 2016, when H. was in 11th grade and G. was in seventh grade. H. talked to the
police dispatcher for a couple of minutes. H. reported that someone had been touching
her. When asked where it occurred, H. reported that it happened at her prior residence,
not her current residence. She also indicated that it was her “dad” who had touched her,
and she provided defendant’s name.
At trial, H. explained that she was “a little distracted” during the call because her
boyfriend was talking to her at the same time. She also felt the call to 911 was
“overwhelming.” H. denied that she had made up allegations against defendant because
she was worried that he had found her at home with her boyfriend or because she was
jealous of defendant’s daughter having her own room.
After H. called 911, a police officer talked to her that same day at school in a
private room. She reported being touched at her prior residence but indicated that most
of the incidents happened at her current residence.
When H. talked to the police, she was worried that her mother would get mad and
scared that her mother would get in trouble. H. also did not think her mother would
believe her. H. testified that she decided to call the police with her boyfriend after
8
learning that G. had also been touched by defendant. H. “wasn’t really worried about
[herself]” and was “worried more for [G.].”
When G. was interviewed by the police, she referred to defendant as her stepdad.
G. was initially candid and open when talking about school and similar topics, but she
became more reluctant as they started discussing more traumatic points. She hunched
over, looked down, and her speech was lower. At one point when the police left the
room, G. started crying.
The victims’ mother was in the car with defendant when he drove to the police
station. Before they went inside, the mother received a call from H. who explained that
she had told the police that defendant touched her inappropriately. The mother accused
H. of “ripping up our family.”
5. Expert testimony
A psychologist testified as an expert witness regarding child psychology and
specifically in the area of myths and misconceptions regarding child sexual abuse
victims. Common myths include that sexual abuse tends to be perpetrated by a stranger,
that children will report abuse immediately, and that the child will include a lot of details
when disclosing. The expert also testified that it is not unusual for a child victim to show
affection to the abuser.
B. The Defense Case
Defendant’s friend, who was also a former coworker, testified that defendant was
an honest person. Defendant had asked the friend if he could borrow $2,000. The friend
provided $200 but defendant had not paid it back. The friend denied that he was
motivated to testify about defendant’s character or to lie in order to have the loan repaid.
Defendant had five children with his first wife. At time of trial, defendant’s
children—three daughters and two sons—were in their late 20’s to mid-30’s. The second
oldest son testified that he never saw defendant “do anything inappropriately” with any of
his sisters. The adult son had two daughters who were under eight years old at the time.
9
He never saw defendant “do[] anything to make [the son] believe that [defendant] would
be inappropriate with them.” The son believed defendant to be an honest person.
The wife of defendant’s second oldest son testified that she had known defendant
for about 10 years. She had never seen him “do[] something that appeared inappropriate”
with her daughters, and she never felt worried about him being alone with them. She
found G. and H. to be timid, shy, well-behaved girls who never showed any animosity
towards defendant.
One of defendant’s granddaughters, who was 17 years old at the time of trial,
testified that she lived with him from January to May 2016. Defendant referred to her
and introduced her as his daughter to other people. She testified that she initially slept in
the living room and later moved into her own room while staying with defendant. G., H.,
K., and K.’s daughter all slept in one room. The granddaughter never heard G. or H.
talking about her in a bad way. Defendant never said or did anything to the
granddaughter that made her feel uncomfortable, and he never touched her
inappropriately. According to the granddaughter, H. seemed happy and comfortable
being in the same room as defendant. The granddaughter described G. as a quiet person
who did not show any expressions although she was very respectful to defendant.
Defendant testified in his own behalf. At the time of trial, he was almost 56 years
old. Defendant had always been heavier and taller than G. and H.
Defendant worked in construction and also had his own businesses. He usually
left the house in the morning and returned in the evening around 5:30 or 6:00 p.m. He
worked on weekends, too. When he came home in the evening, the victims’ mother was
always home with dinner ready. Defendant testified that he was very happy in his
relationship with the victims’ mother. He loved her daughters, G. and H., as his own. On
two occasions, he took G. and H. with him to construction jobs.
Regarding the incident in which he found H. and her boyfriend in the bedroom,
defendant testified that both were in their “intimate clothes.” He testified that the only
10
thing he said was that “it was not right what they were doing” and that the only thing he
demanded was respect. Defendant testified that he told the boyfriend to leave and that he
did not touch him. When asked about his statement to the police that he had pushed the
boyfriend, defendant at trial stated that he “touch[ed]” the boyfriend but did not push
him. After the boyfriend left the residence, defendant told H. that “what she was doing
was not right” and that when she turned 18 years old “she could do whatever she
wanted.” Defendant denied telling H. that she would be his when she turned 18.
Defendant was interviewed by the police on May 23, 2016. Defendant initially
believed that he and the victims’ mother were going to the police station to pick up G.
and H. Before entering the police station, defendant and the victims’ mother received a
phone call from H. H. asked defendant what she should tell the police about him
touching her. Defendant responded, “Tell them whatever you want. I didn’t do it,” and
then he hung up on her. During the police interview, defendant stated that G. was very
close to him, but at trial he testified that she was never close to him. In response to the
police accusations, he denied raping the girls.
Defendant testified that he was never sexually interested in children and that he
would never touch a child for sexual pleasure. When asked why anyone should believe
him, he testified that he had been raped by two uncles when he was eight years old and
that he was sexually abused by an aunt when he was around nine years old. Defendant
never told the victims’ mother about what happened to him and he did not recall if he
disclosed it during the police interview. At trial, defendant testified that, because of what
happened to him, he “hate[d] those things about sexual abuse.” Defendant denied being
sexually attracted to G. or H. and denied touching any part of their bodies for sexual
pleasure. He testified that he loved them like daughters when he lived with them and that
the charges against him were “like treason.”
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C. The Prosecution’s Rebuttal Case
K. first learned about defendant’s sexual abuse of H. and G. on Thursday,
May 19, 2016. H. and her boyfriend called the police on May 23, 2016. The police
interviewed H. and G. that same day, and then interviewed defendant that night. G.
reported that defendant’s penis had touched her vagina and that he tried to put it in.
When defendant was interviewed by the police, he denied touching or raping the victims.
However, he never stated, “I would never do this because I know how it feels because I
was raped as well.” The police also initially only mentioned H. When the police
informed defendant that there were two people making accusations, defendant brought up
G.’s name.
D. The Charges, Verdicts, and Sentencing
Defendant was charged by information with five counts of committing a forcible
lewd or lascivious act on a child under the age of 14 (§ 288, subd. (b)(1); counts 1-3 &
16-17), one count of aggravated sexual assault of a child under the age of 14 by sexual
penetration (§§ 269, 289, subd. (a); count 4), one count of oral copulation with a child
aged 10 or younger (§ 288.7, subd. (b); count 5), and 10 counts of aggravated sexual
assault of a child under the age of 14 by oral copulation (§ 269; former § 288a; counts 6-
15). Counts 1 through 4 pertained to H., and counts 5 through 17 pertained to G. As to
each of the lewd act counts (counts 1-3 & 16-17), the information alleged that the offense
was committed against more than one victim (§ 667.61, subds. (b) & (e)).
On March 6, 2019, the jury convicted defendant on all counts and found true the
allegation as to each of the forcible lewd act counts that the offense was committed
against more than one victim (§ 667.61, subds. (b) & (e); counts 1-3 & 16-17).4 On
4
The abstract of judgment incorrectly indicates that defendant was convicted on
March 9, 2019, regarding counts 11 through 15. We will order the abstract of judgment
corrected to reflect that he was convicted of these counts on March 6, 2019.
12
May 10, 2019, the trial court sentenced defendant to consecutive terms of 15 years to life
on each count, for an aggregate term of 255 years to life.
III. DISCUSSION
A. Unanimity Instruction
Defendant contends that the jury instruction regarding unanimity “likely misled”
the jury regarding the forcible lewd act counts, that is, counts 1 through 3 regarding H.
and counts 16 and 17 regarding G. Defendant contends that the prosecutor argued that
multiple acts could support these counts, but the unanimity instruction given by the court
“failed to connect the different approaches to specific offenses, making the instruction
ambiguous.” Defendant contends that his claim of instructional error is not forfeited by
his failure to raise it below. To the extent the claim has been forfeited, he argues that his
trial counsel rendered ineffective assistance of counsel.
The Attorney General contends defendant forfeited the claim by failing to raise it
below, the unanimity instruction was proper, and any error was harmless.
1. Background
The trial court instructed the jury regarding unanimity based on CALCRIM
No. 3501 as follows:
“The defendant is charged in Counts 1 – 3 with crimes that occurred during the
period of June 1, 2009 through September 1, 2012; in Count 4, with a crime that occurred
from June 1, 2009 through September 1, 2012; in Count 5 with a crime that occurred
from June 1, 2011 through September 1, 2012; and in Counts 6 – 17 with crimes that
occurred from June 1, 2011 through September 1, 2015:
“The People have produced evidence of more than one act to prove that the
defendant committed this offense. You must not find the defendant guilty unless:
“l. You all agree that the People have proved that the defendant committed at least
one of these acts and you all agree on which act he committed;
“OR
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“2. You all agree that the People have proved that the defendant committed all the
acts alleged to have occurred during this time period and have proved that the defendant
committed at least the number of offenses charged.” (See CALCRIM No. 3501.)
The jury was also instructed that it “must consider each [c]ount separately” and
that the People had the burden of proving their case beyond a reasonable doubt.
During argument to the jury, the prosecutor stated that counts 1, 2, and 3 regarding
a forcible lewd act on H. were based on defendant kissing her, touching her breasts, or
touching her vagina. For counts 16 and 17, regarding a forcible lewd act on G., the
prosecutor stated that those counts were based on defendant touching G.’s breast or her
vagina. The prosecutor indicated that count 4, aggravated sexual assault, was based on
defendant putting his finger in H.’s vagina and that all the remaining counts (counts 5
through 15) pertained to oral copulation of G.
The prosecutor referred to the unanimity instruction and stated the following:
“There’s an instruction that the Court read. And it basically explains, because we have a
lot of generic testimony and a lot of multiple acts alleged here, that we have more acts
that were discussed than what’s actually charged. [¶] You can use that evidence in one
of two ways: You can all agree that he committed at least one of those acts, . . . and you
can all agree which acts he committed. [¶] And this would be applicable, for instance, to
the touching. Because there was multiple testimony of touching. There was breast touch,
vagina touch, and it was over the course of several years.” In contrast, the prosecutor
explained that for oral copulation in counts 6 through 15, “if you can all agree that he
committed all of the acts alleged to have occurred during that time frame, and
he committed at least a number of offenses charged, you can return guilty verdicts.
[¶] Basically what that means is that we have evidence that it happened at least []96
times. We only charged 10 times. 96 is more than 10. But if you believe [G.’s]
testimony that it happened more than 10 times, you can return guilty verdicts on each of
those 10 times.”
14
The prosecutor later reiterated that counts 1 through 3 pertained to defendant
kissing H., using his hand to touch her breast, or using his hand to touch her vagina. The
prosecutor stated, “So you can find three hands on the breast if you wanted to, because
she testified that it happened at least three different times. Or you can find one hand on
the breast, one on the vagina, and one kiss.” Likewise, counts 16 and 17 were “just for
the touching” of G. on her breast or her vagina.
The prosecutor further argued that when defendant “touched their body parts,” he
“used force, violence, duress, menace, or fear.” The prosecutor explained that the jury
did not need to agree on whether it was force or duress, for example, as long as they
found one of the options. As an example of force, the prosecutor referred to G. being
picked up and carried to a different location. Regarding express or implied duress, the
prosecutor referred to defendant’s threats of harm if the victim disclosed the abuse or did
not let him engage in the abuse; the age and size difference between the victims and
defendant; defendant was an “authority figure; and the fact that both girls “couldn’t really
say no” because “[i]t was going to happen anyway.”
Defense counsel argued to the jury that there were problems with the testimony by
H. and G. that created reasonable doubt and that defendant denied the accusations and
should be found not guilty on all the charges.
2. Forfeiture and ineffective assistance of counsel
Defendant contends that his claim of instructional error is not forfeited by his
failure to raise it below. To the extent the claim has been forfeited, he argues that his trial
counsel rendered ineffective assistance of counsel.
The Attorney General contends that defendant’s claim of instructional error has
been forfeited and that he fails to establish ineffective assistance of counsel.
“In general, a defendant may raise for the first time on appeal instructional error
affecting his or her substantial rights. (Pen. Code, § 1259; . . .) But ‘[a] party may not
argue on appeal that an instruction correct in law was too general or incomplete, and thus
15
needed clarification, without first requesting such clarification at trial.’ [Citation.]”
(People v. Buenrostro (2018) 6 Cal.5th 367, 428 (Buenrostro).)
In this case, defendant acknowledges that the “instruction on unanimity was
technically correct.” He contends, however, that the trial court’s “failure to connect the
instruction or its different components to specific charges made the instruction
ambiguous” and that counts 1 through 3, 16, and 17 must be retried as a result.
Defendant’s contention is essentially that the unanimity “instruction correct in law
was too general or incomplete, and thus needed clarification.” (Buenrostro, supra, 6
Cal.5th at p. 428.) However, he “was obligated to request a clarifying instruction and
failed to do so, thereby forfeiting [his] appellate challenge.” (Ibid.) We therefore
consider defendant’s claim of instructional error within the context of whether he has
established ineffective assistance of counsel based on trial counsel’s failure to raise the
claim below.
3. Unanimity
“In a criminal case, a jury verdict must be unanimous. . . . Additionally, the jury
must agree unanimously the defendant is guilty of a specific crime. [Citation.]” (People
v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) “As a general rule, when violation of a
criminal statute is charged and the evidence establishes several acts, any one of which
could constitute the crime charged, either the state must select the particular act upon
which it relied for the allegation of the information, or the jury must be instructed that it
must agree unanimously upon which act to base a verdict of guilty. [Citation.]” (People
v. Jennings (2010) 50 Cal.4th 616, 679.) “This requirement of unanimity as to the
criminal act ‘is intended to eliminate the danger that the defendant will be convicted even
though there is no single offense which all the jurors agree the defendant committed.’
[Citation.]” (Russo, supra, at p. 1132.)
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The unanimity instruction given in this case was based on CALCRIM No. 3501.5
“CALCRIM No. 3501 is an alternative instruction to CALCRIM No. 3500.[6]” (People v.
Fernandez (2013) 216 Cal.App.4th 540, 556.) “ ‘In a case in which the evidence
indicates the jurors might disagree as to the particular act defendant committed, the
standard unanimity instruction [(e.g., CALCRIM No. 3500)] should be given. [Citation.]
But when there is no reasonable likelihood of juror disagreement as to particular acts, and
the only question is whether or not the defendant in fact committed all of them, the jury
should be given a modified unanimity instruction [(e.g., CALCRIM 3501)] which, in
addition to allowing a conviction if the jurors unanimously agree on specific acts, also
allows a conviction if the jury unanimously agrees the defendant committed all the acts
described by the victim.’ ” (Id. at pp. 555-556, quoting People v. Jones (1990) 51 Cal.3d
294, 321-322 (Jones).)
Regarding the “sufficiency of generic testimony,” the California Supreme Court
has explained that the victim “must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed has occurred and to
differentiate between the various types of proscribed conduct (e.g., lewd conduct,
5
CALCRIM No. 3501 states: “The defendant is charged with [in Count[s] ___ ] sometime during the period of
___ to ___. [¶] The People have presented evidence of more than one act to prove that
the defendant committed (this/these) offense[s]. You must not find the defendant guilty
unless: [¶] 1. You all agree that the People have proved that the defendant committed at
least one of these acts and you all agree on which act (he/she) committed [for each
offense]; [¶] OR [¶] 2. You all agree that the People have proved that the defendant
committed all the acts alleged to have occurred during this time period [and have proved
that the defendant committed at least the number of offenses charged].”
6
CALCRIM No. 3500 states: “The defendant is charged with [in Count ___ ] [sometime during the period of ___ to ___ ]. [¶] The
People have presented evidence of more than one act to prove that the defendant
committed this offense. You must not find the defendant guilty unless you all agree that
the People have proved that the defendant committed at least one of these acts and you all
agree on which act (he/she) committed.”
17
intercourse, oral copulation or sodomy). Moreover, the victim must describe the number
of acts committed with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’).
Finally, the victim must be able to describe the general time period in which these acts
occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning
after he came to live with us’), to assure the acts were committed within the applicable
limitation period.” (Jones, supra, 51 Cal.3d at pp. 315-316.) With respect to the
requirement of unanimity, the California Supreme Court has explained that “even generic
testimony describes a repeated series of specific, though indistinguishable, acts of
molestation. [Citation.] The unanimity instruction assists in focusing the jury’s attention
on each such act related by the victim and charged by the People. We see no
constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of
more than one indistinguishable act, providing the three minimum prerequisites
heretofore discussed are satisfied.” (Id. at p. 321.)
“ ‘ “A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]” [Citation.]
“ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a particular
instruction.’ ” ’ [Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 433.) “ ‘Also, “ ‘ “we must assume that jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” [Citation].’ ” ’
[Citation.]” (People v. Landry (2016) 2 Cal.5th 52, 95 (Landry).)
4. Analysis
Defendant contends that the unanimity instruction, although “technically correct,”
was “ambiguous” because it “failed to connect the different approaches to specific
offenses.” He argues that with respect to the forcible lewd act counts (counts 1 through 3
18
regarding H., and counts 16 and 17 regarding G.), some of the testimony was “specific”
and some was “generic.” Because the jurors could “disagree as to which act supported
each charge,” defendant contends that the “[t]he jurors were required to agree on distinct
acts to support counts 1, 2, 3, 16, and 17” pursuant to the standard unanimity instruction.
He argues that the unanimity instruction given, however, did not make clear which
instruction – standard unanimity or modified unanimity – applied to which counts and
thus “[t]he most logical interpretation would be that either method applied to all
17 counts.” Based on the instruction and the fact that the jurors did not need to agree on
the same theory of force for the forcible lewd act counts, defendant contends that the jury
was “permit[ed] . . . to convict on all five counts if they found five separate lewd acts and
any type of force, even if the testimony did not link force or duress to any particular lewd
event, and they did not necessarily agree on which five acts supported the charges.”
Defendant argues that the error was not harmless as to counts 1, 2, 3, 16, and 17 “because
the evidence did not support a finding of force for some of the incidents on which these
counts could be based.”
The Attorney General contends that defendant fails to show a reasonable
likelihood that the jury misapplied the instruction. The Attorney General contends that
the unanimity instruction given to the jury (CALCRIM No. 3501) “required the jurors to
either unanimously agree on the five specific acts supporting counts 1, 2, 3, 16, and 17, or
in the alternative to unanimously agree that [defendant] ‘committed all of the acts alleged
to have occurred during this time period, and have proved that the defendant committed
at least the number of offenses charged.’ [Citation.] If the jurors disagreed about what
five acts [defendant] committed, then the instruction correctly informed them to acquit
[him], as such disagreement necessarily meant the jurors also did not unanimously agree
that he had committed ‘all’ the acts.” Regarding the element of force or duress, the
Attorney General argues that the “unanimity instruction did not excuse the prosecution
19
from its burden of proving every element of every offense beyond a reasonable doubt,”
“including the force or duress element for the lewd acts.”
Having reviewed the unanimity instruction given by the trial court, we determine
it is not reasonably likely the jury would interpret the instruction to allow them to find
defendant guilty on each of the forcible lewd act counts—counts 1, 2, 3, 16, and 17—
without unanimity on the particular act for each count. The jury was expressly instructed,
based on CALCRIM No. 3501, that as to each “offense,” “[t]he People have produced
evidence of more than one act,” and that the jurors “must not find the defendant guilty
unless: [¶] . . . You all agree that the People have proved that the defendant committed
at least one of these acts and you all agree on which act he committed.” (Italics added.)
The jury also received the alternative unanimity instruction, which also was based on
CALCRIM No. 3501 and which stated, “You must not find the defendant guilty unless:
[¶] . . . [¶] . . . You all agree that the People have proved that the defendant committed all
the acts alleged to have occurred during this time period and have proved that the
defendant committed at least the number of offenses alleged.” (Italics added.) Under this
alternative unanimity instruction, “ ‘if the jury believes the defendant committed all the
acts it necessarily believes he committed each specific act [citations].’ ” (Jones, supra,
51 Cal.3d at p. 322.)
Defendant contends that, although the prosecutor “correctly argued” that jurors did
not need to agree on the same theory of force used, the prosecutor’s argument
nevertheless “likely added to the confusion on unanimity regarding the acts, particularly
in light of the prosecutor’s later argument that it ‘doesn’t matter’ which act the jurors find
true.”
We are not persuaded by defendant’s argument. The jury was instructed regarding
the forcible lewd act counts – counts 1, 2, 3, 16, and 17 – that the People had to prove
four elements, including (1) defendant willfully touched part of a child’s body; (2) in
committing the act, defendant used force, violence, duress, menace, or fear; (3) defendant
20
acted with the requisite intent; and (4) the child was under 14 years old. The separate
unanimity instruction only addressed the first element regarding defendant’s act of
touching a child’s body. The unanimity instruction required jurors to all agree on the
specific act forming the basis for each count, or all agree that defendant committed all the
acts. Pursuant to the instruction regarding the forcible lewd act counts, however, the jury
still had to consider whether the People had proved the other three elements, including
whether defendant used force or duress, had the requisite intent, and the age of the child.
The jury was further instructed that the People had the burden of proving their case
beyond a reasonable doubt, and that the jury “must consider each count separately.” In
view of these instructions, we do not believe there is a reasonable likelihood that the jury
understood they could take a “fluid approach to the evidence” as argued by defendant and
find guilt without unanimous agreement on the act for each count and without finding
force or duress for each count. (See Landry, supra, 2 Cal.5th at p. 95. [court “ ‘ “ ‘ “must
assume that jurors are intelligent persons and capable of understanding and correlating all
jury instructions which are given” ’ ” ’ ”].)
Likewise, we are unpersuaded by defendant’s reliance on People v. Ngo (2014)
225 Cal.App.4th 126 (Ngo). Defendant refers to the prosecutor’s argument in Ngo, in
which the jury was told that it could “ ‘take the facts and apply them to any of the crimes
as long as you all agree what act you are talking about,’ and ‘you can apply the acts to the
different crimes if you wish . . . .’ ” (Id. at p. 153.) In Ngo, unlike in this case, an
erroneous unanimity instruction told the jury that it could consider criminal conduct
through 2010, for a count that was charged as occurring only in 2009. (Ibid.; see also id.
at pp. 130, 147.) In view of, among other things, the erroneous instruction and the
prosecutor’s argument, this court determined that the defendant was prejudiced by the
erroneous instruction concerning the expanded time period forming the basis for the
count. (Id. at pp. 153-155.) No such instructional error occurred in this case, and indeed
21
defendant acknowledges that the unanimity instruction in this case was “technically
correct.”
Accordingly, we find no merit in defendant’s claim of error regarding the
unanimity instruction that was based on CALCRIM No. 3501, and we also find no merit
in defendant’s claim of ineffective assistance of counsel based on the failure to object
(see People v. Lopez (2008) 42 Cal.4th 960, 966 [ineffective assistance of counsel claim
requires a showing of prejudice]).
B. Consecutive Sentencing under Section 667.61
In convicting defendant of forcible lewd acts against H. (counts 1-3) and G.
(counts 16-17), the jury also found true the allegation as to each count that the offense
was committed against more than one victim (§ 667.61, subds. (b) & (e)). Relevant to
this appeal, section 667.61, subdivision (i) provides that a trial court “shall impose a
consecutive sentence for each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on separate occasions as
defined in subdivision (d) of Section 667.6.”7 The probation report recommended
consecutive sentences “[g]iven each count involved a separate victim or the same victim
on separate occasions.” At sentencing, the trial court stated that it was adopting the
recommendations in the probation report and imposed consecutive terms for counts 1, 2,
3, 16, and 17.
7
Section 667.6, subdivision (d) states in part: “(d)(1) A full, separate, and
consecutive term shall be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims or involve the same victim on
separate occasions. [¶] (2) In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court shall consider whether,
between the commission of one sex crime and another, the defendant had a reasonable
opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between crimes, nor whether or not the
defendant lost or abandoned the opportunity to attack, shall be, in and of itself,
determinative on the issue of whether the crimes in question occurred on separate
occasions.”
22
On appeal, defendant contends that “it is impossible to determine whether the jury
based the verdicts on acts that occurred on separate occasions,” and therefore the “court’s
imposition of mandatory consecutive sentences . . . rested on a judicial finding of fact.”
He argues that the Sixth Amendment prohibits increasing a sentence based on facts not
admitted by a defendant or found true by a jury, citing Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi), where the United States Supreme Court held that “[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490.) As H. was the victim in counts 1 through 3, and G.
was the victim in counts 16 and 17, defendant acknowledges that at least two of the
counts – counts 1 and 16 – were, as the jury found, committed against more than one
victim (§ 667.61, subds. (b) & (e)). He contends that the remaining three counts—
counts 2, 3, and 17—could have been based on the same occasion as counts 1 or 16.
Because counts 2, 3, and 17 may have been based on acts that occurred during the same
occasion as counts 1 and 16, defendant contends that the trial court had the discretion to
impose concurrent sentences for these counts. According to defendant, remand is
required because the record reflects that the trial court did not understand that it had the
discretion to impose concurrent sentences on these counts.
The Attorney General contends that “[j]udicial factfinding of the type required by
section 667.61 to determine whether consecutive terms are mandatory does not violate
the Sixth Amendment.”
As the California Supreme Court has recognized, the United States Supreme Court
in Oregon v. Ice (2009) 555 U.S. 160 (Ice) held that “Apprendi does not govern the
decision whether to impose concurrent or consecutive sentences . . . .” (Porter v.
Superior Court (2009) 47 Cal.4th 125, 137.) A jury finding of multiple offenses
committed at different times is not required for the imposition of consecutive sentences
because “[t]he decision to impose sentences consecutively is not within the jury function
23
that ‘extends down centuries into the common law.’ [Citation.]” (Ice, supra, at p. 168.)
The United States Supreme Court explained that the “twin considerations” of “historical
practice and respect for state sovereignty . . . counsel against extending Apprendi’s rule to
the imposition of sentences for discrete crimes. . . . [S]pecification of the regime for
administering multiple sentences has long been considered the prerogative of state
legislatures.” (Ibid.)
Defendant acknowledges that California courts, including the California Supreme
Court, have rejected the contention that the Sixth Amendment applies to consecutive
sentencing to preclude a trial court from relying on facts that were not admitted by the
defendant or found true by the jury. (See, e.g., People v. Wilson (2008) 44 Cal.4th 758,
809, 813 (Wilson) [rejecting claim that trial court violated Sixth Amendment by ordering
consecutive terms under § 667.6, subd. (d) based on factors neither admitted by the
defendant nor found true by the jury beyond a reasonable doubt]; People v. Scott (2015)
61 Cal.4th 363, 403, 405 [“ ‘the Sixth Amendment’s restriction on judge-found facts’ is
‘inapplicable’ when a trial judge makes factual findings necessary to the imposition of
consecutive terms”]; People v. Wandrey (2022) 80 Cal.App.5th 962, 978-980 (Wandrey)
[trial court’s factual determination that offenses were committed on separate occasions
for purposes of consecutive sentencing under § 667.6, subd. (d) did not violate the
constitutional right to a jury trial], review granted Sept. 28, 2022, S275942; People v.
King (2010) 183 Cal.App.4th 1281, 1324 [same].)8
Defendant nevertheless seeks to distinguish the United States Supreme Court’s
opinion in Ice on the ground that the Oregon sentencing provision at issue in that case
gave the trial court the discretion to impose a consecutive sentence if the trial court found
8
The California Supreme Court is currently considering whether the requirement
of mandatory consecutive sentencing in section 667.6, subdivision (d) complies with the
Sixth Amendment. (People v. Catarino (Oct. 14, 2021, D078832) [nonpub. opn.], review
granted Jan. 19, 2022, S271828.)
24
a particular fact true (see Ice, supra, 555 U.S. at p. 165), whereas in this case,
section 667.61, subdivision (i) requires the imposition of a consecutive sentence if a
particular fact is found by the court. We are not persuaded by defendant’s argument
about a purported distinction between discretionary and mandatory consecutive
sentences. As the appellate court in Wandrey explained, “This distinction is irrelevant:
Ice did not turn on the fact that the statute at issue permitted, but did not require, judges
to impose consecutive sentences. Rather, the court explained that ‘twin considerations—
historical practice and respect for state sovereignty—counsel against extending
Apprendi’s rule to the imposition of sentences for discrete crimes. The decision to
impose sentences consecutively is not within the jury function that “extends down
centuries into the common law.” [Citation.] Instead, specification of the regime for
administering multiple sentences has long been considered the prerogative of state
legislatures.’ (Ice, supra, 555 U.S. at p. 168.)” (Wandrey, supra, 80 Cal.App.5th at
p. 980, fn. omitted, review granted.)
Defendant also contends that the sentencing provisions found in section 667.61,
not section 667.6, apply in this case. Nevertheless, he acknowledges that section 667.61,
subdivision (i)’s “mandatory consecutive sentencing requirement is identical to that in
section 667.6, subdivision (d).” (See §§ 667.61, subd. (i) [for specified offenses, “the
court shall impose a consecutive sentence for each offense that results in a conviction
under this section if the crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6”], 667.6, subd. (d)(1)
[“A full, separate, and consecutive term shall be imposed for each violation of an offense
specified in subdivision (e) if the crimes involve separate victims or involve the same
victim on separate occasions”].) In view of defendant’s acknowledgement that
section 667.61, subdivision (i) and section 667.6, subdivision (d) contain similar,
mandatory consecutive sentencing requirements, and in view of the fact that the
California Supreme Court has rejected the Sixth Amendment claim in the context of
25
section 667.6, subdivision (d) (Wilson, supra, 44 Cal.4th at pp. 809, 813), we likewise
reject defendant’s Sixth Amendment claim in the context of section 667.61,
subdivision (i). (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455; see also Ice, supra, 555 U.S. 160.)
Defendant seeks to rely on this court’s decision in People v. Coelho (2001) 89
Cal.App.4th 861 (Coelho), in which this court (as summarized by the California Supreme
Court) “rel[ied] upon the principles underlying the Apprendi line of decisions, [and]
concluded that the provision of the Three Strikes law that requires a trial court to impose
a consecutive Three Strikes sentence for each current offense of which a defendant is
convicted that is ‘not committed on the same occasion, and not arising from the same set
of operative facts’ as another current offense (§§ 667, subd. (c)(6), (7), 1170.12,
subd. (a)(6), (7)) should be interpreted to require a trial court to impose consecutive
sentences only where the jury expressly found (or, in light of the record, must have
found) beyond a reasonable doubt that its separate convictions were based on offenses
that were not committed on the same occasion and did not arise from the same set of
operative facts. (Coelho, supra, 89 Cal.App.4th at pp. 874-884.) In the absence of such
an explicit or implied jury finding, the court in Coelho held, a trial court is not required
to impose consecutive Three Strike sentences, and must exercise its ordinary discretion in
determining whether to impose consecutive or concurrent sentences. (Id. at pp. 884-
886.)” (In re Coley (2012) 55 Cal.4th 524, 557, fn. omitted (Coley).)
As the California Supreme Court observed, our court’s “decision in Coelho, supra,
89 Cal.App.4th 861, preceded the United States Supreme Court decision in Oregon v. Ice
(2009) 555 U.S. 160, where the high court held the Apprendi line of decisions does not
apply to factual findings that bear on the question whether multiple sentences are to be
imposed consecutively or concurrently.” (Coley, supra, 55 Cal.4th at p. 557, fn. 18.)
The California Supreme Court in Coley noted that “[b]ecause the issue [was] not
presented [in the case before it], [it] express[ed] no view on the validity of the holding in
26
Coelho in light of the high court’s subsequent decision in Ice.” (Coley, supra, at p. 557,
fn. 18)
In this case, as we have explained, in view of the binding decisions on this court
by the California Supreme Court in Wilson, supra, 44 Cal.4th at pages 809 and 813, and
the United States Supreme Court in Ice, supra, 555 U.S. 160, both of which were decided
subsequent to Coelho, defendant fails to demonstrate a Sixth Amendment violation based
on the trial court’s determination that counts 1 through 3, 16, and 17 involved “separate
victims or involve[d] the same victim on separate occasions as defined in subdivision (d)
of Section 667.6.” (§ 667.61, subd. (i).)
Accordingly, we determine that defendant fails to demonstrate error in the
imposition of consecutive terms on counts 1 through 3, 16, and 17.
C. Substantial Evidence
At trial, the prosecutor argued that defendant used force, duress, or fear to commit
three lewd acts against H. by kissing her lips, touching her breasts with his hand, and/or
touching her vagina with his hand (§ 288, subd. (b)(1); counts 1-3).9 On appeal,
defendant contends that there is insufficient evidence of force or duress as to two of the
three counts, and therefore two of the three counts must be reduced to a lewd act without
force under section 288, subdivision (a). The Attorney General contends that there is
substantial evidence of duress.
We determine that substantial evidence supports the finding that defendant used
duress to commit three lewd acts against H.
1. The standard of review
“In evaluating a claim regarding the sufficiency of the evidence, we review the
record ‘in the light most favorable to the judgment below to determine whether it
9
The prosecutor argued that count 4, aggravated sexual assault, pertained to
defendant inserting his finger inside H.’s vagina.
27
discloses substantial evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.] . . . ‘We presume in support of the judgment the existence
of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the
circumstances reasonably justify the trier of fact's findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be reconciled with
a contrary finding.’ [Citation.]” (People v. Westerfield (2019) 6 Cal.5th 632, 713.)
2. Duress
Section 288 makes it a crime to commit a lewd or lascivious act on a child under
the age of 14 years. (§ 288, subd. (a).) Under subdivision (b)(1) of section 288, there are
additional penal consequences if the act is committed “by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim.” (See People v.
Soto (2011) 51 Cal.4th 229, 233 (Soto).)
The “force” necessary to support a conviction under section 288,
subdivision (b)(1) must be “ ‘substantially different from or substantially greater than that
necessary to accomplish the lewd act itself.’ [Citation.]” (Soto, supra, 51 Cal.4th at
p. 242.)
Duress as used in section 288, subdivision (b)(1) means “ ‘ “a direct or implied
threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable
person of ordinary susceptibilities to (1) perform an act which otherwise would not have
been performed or, (2) acquiesce in an act to which one otherwise would not have
submitted.” ’ [Citation.]” (Soto, supra, 51 Cal.4th at p. 246, italics & fn. omitted.)
“ ‘ “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.” [Citation.]’
[Citations.] ‘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.’ [Citations.]” (People
28
v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale).) “A simple warning to a child not to
report a molestation reasonably implies the child should not otherwise protest or resist the
sexual imposition.” (People v. Senior (1992) 3 Cal.App.4th 765, 775 (Senior).)
3. Analysis
Defendant admits that there is substantial evidence of duress and of force
regarding the incident in which he kissed H. while she was on the couch. In addition to
this incident, we determine that there is substantial evidence that defendant used duress to
touch H.’s breast on at least two occasions. H. testified that after the first incident of him
touching her breast, he told her, “Do not tell anyone.” H. felt scared. She did not want
defendant to touch her breasts. However, he subsequently touched her breast more than
two times when she was 12 or 13 years old. During the subsequent touching, he repeated
his admonition not to tell anyone and apparently made threats, causing H. to be scared.
H. was still a child at the time, and defendant was more than 35 years older, as well as
taller and heavier. Defendant was also the boyfriend of H.’s mother, lived with them,
was a “father figure” to H., and was someone who H. had been taught to listen to. H.
found defendant “scary.” Based on “ ‘ “[t]he total circumstances” ’ ” (Veale, supra, 160
Cal.App.4th at p. 46), including defendant’s specific command to H. not to tell anyone
after each touching—which “reasonably implie[d] the child should not otherwise protest
or resist the sexual imposition” (Senior, supra, 3 Cal.App.4th at p. 775)—and the threats
which caused H. to be scared, her young age and smaller size in relation to him, and his
“father figure” status as the live-in boyfriend of her mother, we determine that there is
substantial evidence from which a rational jury could infer that defendant’s actions
constituted an implied threat of force, violence, danger, hardship, or retribution that
prompted H. to acquiesce in at least two incidents that she otherwise would not have
submitted in which defendant touched her breast (subsequent to the first touching of her
breast). (See Soto, supra, 51 Cal.4th at p. 246; Veale, supra, at p. 46.)
Defendant contends that “the relevant difference in age, size and authority are
29
the only factors that support a finding of duress in this case. These general
circumstances, which exist in virtually every incidence of molest, cannot support a
finding of duress. Just as physical force must be ‘ “ ‘substantially different from or
substantially in excess of that required for the lewd act’ ” ’ [citation], so must duress.”
We are not persuaded by defendant’s contention. First, courts have recognized
that when a victim is young “and is molested by her father in the family home, in all but
the rarest cases duress will be present. This conclusion does not eliminate the distinction
between subdivisions (a) and (b) of section 288; those subdivisions may be violated by
persons other than the child’s parent or one having parental authority . . . , e.g., a 13-year-
old girl . . . engag[ing] in sexual acts with her boyfriend.” (People v. Cochran (2002) 103
Cal.App.4th 8, 15, 16, fn. 6 [nine-year-old victim], disapproved on another ground in
People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12; accord, People v. Thomas (2017) 15
Cal.App.5th 1063, 1072-1073 [victim between the ages of four and 14 years old]; Veale,
supra, 160 Cal.App.4th at pp. 46, 49 [seven-year-old victim].) Further, as we have
explained, there is evidence beyond the age and size difference and authority status of
defendant in this case, specifically defendant’s directive to H. not to tell anyone after
each touching and the threats which caused H. to be scared.
In sum, we conclude that there is substantial evidence of duress to support
defendant’s three convictions for violating section 288, subdivision (b)(1) regarding H.
(counts 1-3).
IV. DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered corrected to state
that defendant was convicted on March 6, 2019, regarding counts 11 through 15. The
trial court is directed to send a copy of the corrected abstract of judgment to the
Department of Corrections and Rehabilitation.
30
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
GROVER, J.
LIE, J.
People v. Rodriguez
H047311