People v. A.B. CA2/6

Filed 8/2/21 P. v. A.B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304819
(Super. Ct. No. YJ39981)
Plaintiff and Respondent, (Los Angeles County)
v.
A.B.,
Defendant and Appellant.
The juvenile court found true allegations that,
between 2015 and 2018, A.B. forcibly raped N.B. when she was
under 14 years old (Pen. Code,1 § 261, subd. (a)(2)), forcibly
sodomized her when she was under 14 (§ 286, subd. (c)(2)(B)),
and continuously sexually abused her (§ 288.5, subd. (a)). The
court also found true allegations that, during the same period,
A.B. forcibly raped K.J. when she was under 14 and that he
continuously sexually abused her. It declared A.B. a ward of the
1 Unlabeled statutory references are to the Penal Code.
court, and ordered him placed at home on probation. The court
calculated his maximum term of confinement to be 31 years.
A.B. contends: (1) there was insufficient evidence
that he forcibly sodomized N.B., (2) there was insufficient
evidence that he forcibly raped K.J., (3) the juvenile court erred
in finding that he committed both discrete and continuous sexual
offenses during the same time period, and (4) his maximum term
of confinement should be stricken. We strike the maximum term
of confinement, and otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
A.B., his victims, and their family
A.B. and his sister, An.B., were born in 2001 and
2003, respectively. Their mother was in a relationship with
another woman with two daughters, N.B. (born in 2005) and K.J.
(born in 2007). The six of them shared a house together.
Initially, An.B., N.B., and K.J. shared one bedroom, their
mothers shared another, and A.B. had his own. When N.B. was
in sixth grade, A.B. and An.B. switched bedrooms so that A.B.
shared a room with N.B. and K.J. while An.B. had her own.
A.B. sexually abuses N.B.
When N.B. was in fourth or fifth grade, A.B. began to
enter her bedroom at night and molest her. The first time N.B.
awoke to A.B. squeezing her breasts. He left when An.B. asked
him what he was doing in their room. N.B. did not tell anyone
what had happened.
A few months later, A.B. touched N.B.’s breasts or
buttocks. Another time N.B. awoke when A.B. took off her
shorts, turned her over, and touched her buttocks. N.B. again did
not tell anyone.
2
A.B. repeatedly touched the area around N.B.’s
vagina. Sometimes he took off her clothes, while other times he
put his hands down her pants.
A.B.’s molestations subsided when N.B.’s mother
checked the girls’ bedroom more frequently. They resumed when
he moved into the bedroom with N.B. and K.J. Twice A.B.
grabbed N.B.’s wrist and forced her to touch his erect penis.
Several times each week he penetrated her vagina with his
fingers. N.B. was too scared to do anything because she feared
A.B.
A.B. once put his penis inside N.B.’s anus and moved
it from side to side, making the bed shake and causing N.B. to
feel pressure and pain.2 He stopped only when An.B. entered the
room and told him to leave. He later sodomized N.B. on at least
three more occasions. He sometimes made threats as he did so.
When N.B. was in sixth or seventh grade, A.B. raped
her. Once, when N.B. was asleep on the floor, she awoke to A.B.
pulling down her pants and then lying on top of her as he forced
his penis into her vagina. She could not move due to A.B.’s
bodyweight. He subsequently raped her several more times.
A.B. orally copulated N.B. when she was in middle
school. After K.J. witnessed one of these incidents, A.B. told her
that he would give her something if she did not tell anyone. N.B.
later told An.B. what had happened, who in turn told A.B. that
she would tell their mother if it happened again.
2 When asked whether A.B.’s penis touched her buttocks or
“where we poo from,” N.B. said that “[i]t was in between where
we—in be—the butt cheeks.” She also said that “it hurted
because—he was pushing hard” and that his penis felt “wet.”
3
At some point N.B. told An.B. that A.B. had touched
her. Around the same time N.B. asked K.J. if A.B. had ever
touched her. K.J. said that she did not know.
A.B. stopped molesting N.B. in 2018. In December of
that year N.B., K.J., and their mother moved out of the house.
N.B. later told a friend what A.B. had done to her.
A.B. sexually abuses K.J.
A.B. began molesting K.J. when she was in fourth
grade. K.J. recalled awakening to A.B. touching her buttocks.
He touched her buttocks on several more occasions over the next
two years. The touching continued when he moved into her room.
During the same period, A.B. took K.J.’s hand and
put it on his penis. K.J. moved her hand away, but A.B. grabbed
her with a tighter grip. After K.J. stood up, A.B. put a blanket
over himself. K.J. then left the room.
Sometimes A.B. touched K.J.’s vaginal area. Once
when she was lying in bed she awoke to A.B. touching the area.
She moved away from him and pulled a blanket over herself.
A.B. also touched K.J.’s buttocks with his penis, but did not
penetrate her anus.
When she was in fifth grade, K.J. woke up feeling
pain in her vaginal area. Her shorts and underwear were pulled
down to her knees. A.B. was behind her, touching her with his
penis. K.J. kicked A.B. in the face and moved away.
A.B. stopped molesting K.J. when she was in sixth
grade, a few months before she moved out of the house with N.B.
and their mother. K.J. told N.B. that A.B. was molesting her, but
they never discussed the abuse in detail. She also told a friend
that she had been raped, but did not identify A.B. as her rapist.
4
N.B. and K.J. report the abuse
In February 2019, K.J. wrote a note to a friend that
said, “I got raped.” A school counselor saw the note and asked
K.J. if she knew what rape was. She said that she did. He then
asked if she had been raped. K.J. did not want the counselor to
know, so she said she had not.
K.J.’s mother and N.B. went to the counselor’s office.
K.J.’s mother asked K.J. if she had been raped, but K.J. did not
want her to know so she again said no. K.J.’s mother then had
everyone leave the office, and K.J. told her she had been raped by
A.B. She also said that A.B. had touched N.B., which N.B. later
confirmed. The three then left the counselor’s office and went to
the police station, where N.B. and K.J. told police details about
the molestations.
The following month, a nurse practitioner examined
N.B. and K.J. The practitioner found no evidence of injury to
N.B., but because she had begun menstruating several years
earlier she could have been abused as she described without
showing residual signs of injury. K.J. similarly showed no signs
of injury, but she, too, had begun menstruating.
The jurisdictional hearing
Prosecutors alleged that A.B. forcibly raped N.B.
when she was under 14 years old, forcibly sodomized her when
she was under 14, and continuously sexually abused her. They
also alleged that A.B. forcibly raped K.J. when she was under 14
and that he continuously sexually abused her. All of the offenses
allegedly occurred between January 1, 2015, and December 31,
2018.
At the jurisdictional hearing N.B. testified A.B.
touched her “butt” with his penis when she was in middle school.
5
The prosecutor asked N.B. which area of her buttocks A.B. had
touched, but N.B. did not understand the question. The
prosecutor clarified: “Was it on the outside skin of your butt, or
was it the area where you poo from?” N.B. replied, “It was the
area where I poop from.”
N.B. also said that she felt A.B.’s penis when he
pulled down her pants. The prosecutor asked where she felt his
penis. N.B. replied, “In my butt.” The prosecutor again asked if
that was where N.B. “poo[ed] from.” N.B. said that it was.
The discussion continued:
“[Prosecutor]: When you were talking about the
pressure, do you know what was
causing the pressure? Do you know
what an anus is, the area that you
poo from, did you notice what was
causing the pressure? Did you feel
something?
“[N.B.]: Yes.
“[Prosecutor]: What is it that you felt in that
area?
“[N.B.]: His—[A.B.]’s penis.
“[Prosecutor]: Did you feel it going—you said
there was movement, or was there
movement?
“[N.B.]: Yes, there was.
6
“[Prosecutor]: And did you feel that movement?
“[N.B.]: Yes.
“[Prosecutor]: The area that you felt that
movement was the area that you
poo from?
“[N.B.]: Yes.”
Later, when N.B. was testifying about A.B.’s threats,
the prosecutor asked, “So when he did that act of inserting his
penis into the area where you poo from, you had already, in your
mind, heard him make statements that you understood in that
time period as threats?” N.B. said, “Yes.”
On cross-examination, defense counsel asked, “And
today, you said that you felt [A.B.’s penis] go inside the area that
we called the area that you poo from. Do you remember that?”
N.B. said that she did. Defense counsel then clarified: “And you
said it went inside, right?” N.B. replied, “Yes.”
A retired obstetrician opined that the forensic exam
indicated that N.B.’s hymen had not been penetrated. He also
said that it was likely that she would show signs of injury given
when the abuse allegedly started. But he also admitted that her
lack of injuries was consistent with the abuse she alleged.
As to K.J., the obstetrician opined that there would
have been evidence of trauma to her hymen had she been
vaginally penetrated. If only the outer lips of her vagina had
been penetrated, however, she could have experienced the pain
she described without residual signs of injury.
7
At the conclusion of the hearing, the juvenile court
found the allegations against A.B. true, and declared him a ward
of the court. It ordered him placed at home on probation, with a
maximum period of confinement of 31 years.
DISCUSSION
Forcible sodomy
A.B. first contends we should reverse the juvenile
court’s finding that he forcibly sodomized N.B. because her
statements and testimony about whether his penis entered her
anus were not sufficiently specific. We disagree.
Sodomy is “sexual conduct consisting of contact
between the penis of one person and the anus of another person.”
(§ 286.) “Any sexual penetration, however slight, is sufficient to
complete the crime of sodomy.” (Ibid.) But the penetration must
be of at least the perianal area; penetration of the space between
the buttocks is insufficient. (People v. Paz (2017) 10 Cal.App.5th
1023, 1038.) Penetration of the anal canal is not required,
however. (Ibid.)
We review the juvenile court’s finding that A.B.
committed sodomy using the same standards we use to assess the
sufficiency of the evidence to support an adult criminal
conviction. (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
Specifically, the evidence is sufficient if “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319;
People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) While we must
ensure the evidence supporting the juvenile court’s finding is
reasonable, credible, and of solid value, we will not reweigh
evidence, reappraise the credibility of witnesses, or resolve
conflicts in the evidence. (Ochoa, at p. 1206.) Reversal is
8
permitted only if “it appears ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [that finding].’”
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
N.B.’s testimony was sufficiently specific to uphold
the juvenile court’s finding that A.B. committed forcible sodomy.
At the jurisdictional hearing N.B. testified that A.B.’s penis was
in “the area where I poop from.” She said that she felt his penis
“in [her] butt,” where she “poo[ed] from.” She said that his penis
caused pressure inside her anus. And she clarified to defense
counsel that A.B.’s penis was “inside the area that [she] poo[s]
from.” (Italics added.)
The juvenile court credited N.B.’s testimony over her
prior statement to investigators when it determined that A.B.’s
penis entered N.B.’s perianal area and/or anal canal. That
determination is binding on this court. (People v. Zamudio (2008)
43 Cal.4th 327, 357.) And it provides substantial evidence that
A.B. committed sodomy. (People v. Hart (1999) 20 Cal.4th 546,
611.) A.B.’s speculation to the contrary—that N.B. could have
meant that his penis only penetrated her buttocks—was an
argument to be made to the court below, not on appeal. (People v.
Young (2005) 34 Cal.4th 1149, 1181 [appellate court does not
resolve evidentiary conflicts].) Reversal is unwarranted. (People
v. Lindberg (2008) 45 Cal.4th 1, 27 [reversal not warranted
“simply because the circumstances might also reasonably be
reconciled with a contrary finding”].)
Forcible rape
A.B. next contends there was insufficient evidence to
support the juvenile court’s finding that he used force or duress to
rape K.J. We again disagree.
9
Forcible rape may be accomplished by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury.
(§ 261, subd. (a)(2).) To find that a rape was accomplished by
force, the trier of fact must conclude only that “the use of force
served to overcome the will of the victim to thwart or resist the
attack,” not that it “physically facilitated sexual penetration or
prevented the victim from physically resisting her attacker.”
(People v. Griffin (2004) 33 Cal.4th 1015, 1027 (Griffin).) But the
amount of force used need not be “‘substantially different from or
substantially greater than’ the physical force normally inherent
in an act of consensual sexual intercourse.” (Id. at p. 1023, italics
omitted.) And the victim need not resist, nor be prevented from
resisting, for force to be found. (Id. at p. 1028.)
“Duress” means “‘a direct or implied threat of force,
violence, danger, hardship[,] or retribution sufficient to coerce a
reasonable person of ordinary susceptibilities to (1) perform an
act which otherwise would not have been performed, or (2)
acquiesce in an act to which one otherwise would not have
submitted.’ [Citation.]”3 (People v. Leal (2004) 33 Cal.4th 999,
1004.) In determining whether a rape was accomplished by
duress, the trier of fact must consider the totality of the
circumstances, including the victim’s age and relationship to the
defendant, the defendant’s position of dominance over the victim,
and the defendant’s continuous exploitation of the victim. (People
3 Inin his reply brief A.B. asserts that we cannot uphold
the finding that he forcibly raped K.J. based on a theory of duress
because prosecutors did not argue that theory in the proceedings
below. He is wrong: Prosecutors repeatedly referenced duress in
their arguments, and the juvenile court cited those arguments
when making its findings.
10
v. Barton (2020) 56 Cal.App.5th 496, 518.) “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.” (People v. Cochran (2002) 103
Cal.App.4th 8, 14 (Cochran), disapproved on another ground in
People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.) “[A]s a factual
matter,” when the victim is young and is molested by an older
family member in the family home, “in all but the rarest cases
duress will be present.” (Cochran, at p. 16, fn. 6.)
Substantial evidence supports the juvenile court’s
finding that A.B. raped K.J. using force or duress. When she was
in fifth grade, K.J. awoke feeling pain in her vagina. Her shorts
and underwear had been pulled down to her knees. To stop the
rape, K.J. had to kick A.B. in the face and move away from him.
Based on this evidence the juvenile court could reasonably
conclude that A.B. overcame K.J.’s will by force. (See In re
Asencio (2008) 166 Cal.App.4th 1195, 1205-1206 [pulling down
child’s underwear and rolling onto her was sufficient evidence of
force].)
A.B. cites People v. Jimenez (2019) 35 Cal.App.5th
373 as support for his contention that the force used must be
substantially different from or greater than that necessary to
accomplish the underlying rape. But Jimenez discusses the
standards for committing lewd acts by force. (Id. at p. 391.) The
standard for committing forcible rape is different: It must simply
be sufficient to overcome the will of the victim. (Griffin, supra, 33
Cal.4th at pp. 1026-1028.) K.J.’s testimony that A.B. pulled down
her shorts and underwear and then put his penis inside her
meets that standard.
11
A.B.’s citation to In re John Z. (2003) 29 Cal.4th 756is similarly misplaced. In John Z., our Supreme Court had to
determine “whether the crime of forcible rape . . . is committed if
the female victim consents to an initial penetration by her male
companion, and then withdraws her consent during an act of
intercourse, but the male continues against her will.” (Id. at pp.
757-758.) There was no evidence that K.J. initially consented to
intercourse with A.B. and then withdrew that consent.
The totality of the circumstances also provides
substantial evidence that A.B. used duress to rape K.J. K.J. was
just nine or 10 years old when the rape occurred, and had lived in
the same house as A.B. for her entire life. A.B. was 15 or 16, and
physically larger than her. He molested K.J. for some time prior
to the rape, beginning each instance when she was asleep. K.J.
thus felt afraid and unsafe in her home, especially when she was
sleeping. Considered together, these circumstances provide
substantial evidence to support the finding that A.B. employed
duress to rape K.J. (Cochran, supra, 103 Cal.App.4th at p. 14.)
Discrete and continuous offenses
A.B. contends the juvenile court’s true findings on the
continuous sexual abuse allegations must be vacated because
both those offenses and the discrete offenses found true by the
court—the forcible rapes and forcible sodomy—occurred between
January 2015 and December 2018. (See People v. Johnson (2002)
28 Cal.4th 240, 245, 248 [convictions for both continuous sexual
abuse and discrete sexual offenses that occur during same time
period are prohibited].) But A.B. did not demur to the Welfare
and Institutions Code section 602 petition based on the
overlapping time periods of the continuous and discrete offenses.
12
His contention is therefore forfeited. (People v. Goldman (2014)
225 Cal.App.4th 950, 956-957.)
Maximum term of confinement
Finally, A.B. contends, and the Attorney General
concedes, that the juvenile court erred when it calculated his
maximum term of confinement. We agree. (In re G.C. (2020) 8
Cal.5th 1119, 1129 [juvenile court cannot specify maximum term
of confinement when minor is not removed from physical custody
of parents].) The calculated term has no legal effect (In re Ali A.
(2006) 139 Cal.App.4th 569, 574) and must be stricken (In re A.C.
(2014) 224 Cal.App.4th 590, 592).
DISPOSITION
The juvenile court is directed to strike the maximum
term of confinement from the disposition order entered January
14, 2020. In all other respects, the order is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
13
Irma J. Brown, Judge
Superior Court County of Los Angeles
______________________________
Elana Goldstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, William H. Shin and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.