Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV103660
DAVIS, Acting P. J.
The juvenile court found that defendant D.F. committed 10 sexual offenses against five children: four counts of forcible lewd act; four counts of nonforcible lewd act; and two counts of sodomy of an unconscious person. (Pen. Code, §§ 288, subd. (b)(1), 288, subd. (a), 286, subd. (f), respectively.)
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends the evidence is insufficient to support the force/duress element of one of the forcible lewd act counts (count five). We disagree and affirm the adjudication. We will set forth the facts of count five in the discussion that follows.
Discussion
In reviewing the sufficiency of the evidence to support a juvenile adjudication, we review the record in the light most favorable to the adjudication to see whether that record contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the offense true beyond a reasonable doubt. (See People v. Cochran (2002) 103 Cal.App.4th 8, 12-13 (Cochran).)
The offense comprising the challenged count here (count five)--i.e., forcible lewd act on a child (under 14 years old)--requires proof that “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” was used. (§ 288, subd. (b)(1); Cochran, supra, 103 Cal.App.4th at p. 13.)
“Duress,” in this context, “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.’” (Cochran, supra, 103 Cal.App.4th at p. 13, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 50 (Pitmon); see People v. Leal (2004) 33 Cal.4th 999, 1004-1005, 1008-1010 (Leal).)
Duress involves psychological coercion and cannot be established unless there is evidence that the victim’s participation was impelled, at least partly, by a direct or implied threat. (People v. Senior (1992) 3 Cal.App.4th 765, 775; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321 (Espinoza).) “The total circumstances” are to be considered in appraising the existence of duress. (Pitmon, supra, 170 Cal.App.3d at p. 51.) These circumstances include the relationship between the defendant and the victim, their relative sizes and ages, whether the defendant is a family member, whether the victim is young, the position of dominance and authority of the defendant, and whether the defendant has continuously exploited, physically controlled, or ever used force against the victim. (Pitmon, supra, 170 Cal.App.3d at pp. 51, 48; Senior, supra, 3 Cal.App.4th at p. 775; Espinoza, supra, 95 Cal.App.4th at p. 1320; Leal, supra, 33 Cal.4th at p. 1009.)
Defendant contends the evidence is insufficient to show duress or force with respect to count five. The evidence for count five came primarily from the testimony of the victim, L.S.
L.S. testified that defendant is his cousin. When L.S. was around seven or eight years old (he was nearly 14 at the time of trial), defendant lived with L.S.’s family for around a year and a half. During this period, L.S. said that defendant molested him more than 25 times.
Count five was the final time that defendant molested L.S. At this point, L.S. was a “skinny” eight-year-old while defendant was 14 or 15, a foot taller, and much heavier. L.S.’s parents had gone out for the evening, apparently leaving L.S. and his younger brother in defendant’s care. The incident transpired when L.S. was in his father’s home office watching defendant play a video game on the computer. Defendant threatened to tell L.S.’s father that he had stayed up too late, unless L.S. let defendant “do [him].” (L.S.’s brother was asleep at this point.) L.S. did not know what defendant meant by this comment, but matters became clear when defendant took him into the living room/dining area and proceeded to pull down both of their pants. L.S. looked at defendant, and defendant again threatened to tell on him. L.S. relented and “just let [defendant].” Defendant sodomized L.S. while holding both of his arms around L.S.’s chest. L.S. did not tell anyone about the incident “[b]ecause [defendant] threatened [him].”
From this testimony, we conclude there is substantial evidence of duress.
The catalyst for the incident was a direct threat from defendant to get L.S. in trouble with his father. While this direct threat was not sufficient in itself to coerce an average eight-year-old into sodomy, it was accompanied by an implied threat arising from several circumstances. L.S. was but a skinny, eight-year-old boy. Defendant, although a boy himself, was nearly twice L.S.’s age and much bigger. Defendant was part of L.S.’s extended family, had lived with L.S. for an extended period, and on the night of the incident, presumably occupied a position of dominance and authority over L.S. as his babysitter. Defendant physically controlled L.S. during the incident, and restrained him with what amounted to a backside bear hug. Furthermore, defendant had continuously exploited L.S. while living with L.S.’s family, and was found to have engaged in other forcible and nonforcible lewd acts with L.S. In considering the “total circumstances” here, duress was adequately shown. (Pitmon, supra, 170 Cal.App.3d at p. 51.)
Defendant’s reliance on Espinoza is of no avail. Espinoza found insufficient evidence of duress, but did so where there was no evidence of “any ‘direct or implied threat’ of any kind,” or of any physical restraint as to the offense. (Espinoza, supra, 95 Cal.App.4th at p. 1321, see id. at p. 1320.) The same cannot be said here. Since we have found the element of duress adequately supported, we need not discuss whether force was also present. (Cochran, supra, 103 Cal.App.4th at p. 16.)
Disposition
The juvenile adjudication is affirmed.
We concur: HULL, J. CANTIL-SAKAUYE, J.