Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Del Norte County Super. Ct. No. JDSQ066224
Pollak, J.
Defendant Zachary C. appeals from the juvenile court’s jurisdictional order finding, among other things, that he forcibly sodomized an 11-year-old boy. Zachary contends that the findings are not supported by substantial evidence. We affirm.
Background
Zachary was charged by petition under Welfare and Institutions Code section 602 with one count of forcible sodomy (Pen. Code, § 286, subd. (b)(2)), two counts of forcible lewd acts upon a child (§ 288, subd. (b)(1)) and one count of sodomy of a minor (§ 286, subd. (b)(1)).
All statutory references are to the Penal Code unless otherwise noted.
Evidence of the following facts was presented at the contested jurisdiction hearing:
Zachary was 14 years old at the time of the offenses. The victim was the 11-year-old brother of Zachary’s classmate. Zachary and the victim’s older brother had been friends for about a year. During that time, Zachary would often come over to the victim’s house.
Early one morning in June 2005, Zachary and the victim were asleep in the same bed. When the victim awoke, Zachary was rubbing his chest with his hands. The victim said “no,” but Zachary said that if he didn’t “do it” he was going to tell the victim’s parents that they had done this before and they would take away his X-box. Zachary pulled down the victim’s pants and began “poking” his penis into the victim’s “butt.” He continued for seven to ten minutes and then ejaculated inside the victim. The victim tried to get away but Zachary held him to the bed by pushing on his arm and back. The victim repeatedly told Zachary to stop. This incident forms the basis of count one of the petition.
In August 2005, Zachary spent another night at the victim’s house. Zachary and the victim again were sleeping in the same bed when in the middle of the night the victim felt his pants being pulled down and Zachary began “poking” him until he “got in.” Although on this occasion Zachary did not say anything to the victim or restrain him from leaving the bed, the victim testified that he was still afraid that Zachary would tell his parents. The victim “pulled off” and left the room. This incident forms the basis of counts two and three of the petition.
In October 2005, Zachary was again spending the night at the victim’s house. The boys were supposed to be sleeping in different rooms, but about 20 minutes after the victim had gone to bed, Zachary entered his room and laid down on his bed. Zachary pulled down his own shorts and the victim’s pants and began “poking” his penis in the victim’s rectum. Zachary’s penis went in “a little bit.” As the victim got off the bed, Zachary held onto his hand and said, “Don’t go.” The victim said, “No, let go, get off of me” and then the victim’s father entered the room. At some point, Zachary ejaculated onto the blanket. This incident forms the basis of count four of the petition.
After his father came into the room, the victim told his parents what had happened and they called the police. During the police investigation, the victim gave an almost identical report to a forensic specialist with experience interviewing children under 14 years of age. The victim was also examined by a forensic nurse who observed “no objective findings” of sexual assault on the victim’s rectum. Testing of the victim’s blanket indicated that the stains contained spermatozoa with DNA identical to Zachary’s DNA.
Zachary denied that there was any “physical misconduct” or sexual conduct between him and the victim. He claimed that the victim’s father had fabricated the story because the father had asked to orally copulate him and Zachary had refused. When Zachary said no, the father told him he “could make bad things happen.” Zachary testified that his semen was found on the blanket because he had masturbated in the victim’s room while watching pornography on television.
The juvenile court sustained all four counts. Zachary was declared a ward of the court and placed on probation. Zachary filed a timely notice of appeal.
Discussion
Zachary contends that there is insufficient evidence to support the court’s findings that he committed the offenses alleged in counts one and two by means of duress or menace and the offense alleged in count four by means of force.
“When an appellant challenges the sufficiency of the evidence to support a conviction, the appellate court reviews the entire record to see ‘ “whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” ’ [Citation.] We view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. [Citations.] We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. [Citations.] The test on appeal is not whether we believe the evidence established the defendant's guilt beyond a reasonable doubt, but whether ‘ “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” ’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 12-13.)
1. Count one: Sodomy by means of force, duress or menace
Section 286, subdivision (a) defines the crime of sodomy as “sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” Under subdivision (c)(2) of section 286, “Any person who commits an act of sodomy when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.” “ ‘Force’ as used in this context means ‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ ” (People v. Cochran, supra, 103 Cal.App.4th at p. 13.) “ ‘Duress’ as used 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.’ ” (Ibid.)
The juvenile court found that Zachary had committed an act of sodomy against the victim’s will by means of force and duress. The court found that Zachary had used force based on the victim’s testimony that after Zachary inserted his penis into his anus, he “tried to move away, but Zachary held him down on the bed by pushing on [his] back.” Zachary does not challenge the sufficiency of the evidence to support the finding with regard to his use of force nor does he argue that the amount of force was insufficient as a matter of law. Therefore, on this basis the court properly found that Zachary committed the offense alleged in count one.
The court’s finding that Zachary accomplished the sodomy by means of duress is also supported by the record. The court found duress based on the victim’s testimony that Zachary told him that if he did not permit Zachary to engage in the sexual contact with him, he would tell his parents and they would take away his X-box. The court explained that “[a]lthough to adults, that may not be a significant threat, to the age of this child, that could have been perceived as a substantial threat. Because it is the circumstances that the court must look at, including the age of the child. And, in this instance . . . the minor . . . was young.”
Zachary contends that the fact that the victim “thought that, at some later time, he would ‘get in trouble’ with his parents is not legally sufficient to establish the aggravating element of duress.” He argues, “Even if this court should find that [the victim’s] testimony as to what Zachary said he would do, which was only to tell [the victim’s] parents, amounts to some type of ‘psychological coercion,’ ‘without more [this] does not establish duress. At a minimum there must be an implied threat of “force, violence, danger, hardship or retribution.” ’ ” However, the court reasonably concluded that the threat to tell the victim’s parents and that he would lose his X-box was sufficient to make the victim submit to an act to which he otherwise would not have submitted. (See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321 [duress requires only that “ ‘the victim[’s] participation was impelled, at least partly, by an implied threat’ ”].)
People v. Hecker (1990) 219 Cal.App.3d 1238, relied on by Zachary, is distinguishable. In Hecker the defendant molested his 12-year-old stepdaughter. She testified she was never consciously afraid the defendant would harm her and that, with the exception of one incident where he held her head down during oral copulation, he never used physical force. (Id. at p. 1250.) In a footnote, the court rejected the People’s argument that duress was established by the victim’s testimony that the defendant urged her not to report the molestations because it would ruin his marriage and naval career. The court explained that “such testimony establishes merely the threat of hardship directed at ‘later disclosure of the sex acts and not [the failure to perform] the sex acts themselves.’ ” (Id. at p. 1251, fn. 7.) In contrast, in the present case Zachary’s threat was made to induce the performance of the act itself, not to prevent subsequent disclosure.
Accordingly, the court properly sustained the allegations in count one.
2. Count Two: Lewd act by means of duress or menace
Under section 288, subdivision (b)(1) “Any person who commits an act described in subdivision (a) [lewd or lascivious act with a child under the age of 14] by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
The trial court found that the second incident was “accomplished using, essentially, the same force and duress and menace as before. Because [the victim] testified credibly that he was afraid that Zachary would tell his parents. That was the threat that had been delivered in the first instance, and that continued to be a concern to [the victim].” As the court noted, the victim testified that at the time of the second incident, he did not call out to his parents because he was still afraid that Zachary would tell his parents that he was “doing this stuff with him.” The victim explained that he fell asleep with Zachary in the same room because he “didn’t think he’d do it again.” When Zachary started pulling down his pants, he was shocked and embarrassed that it was happening to him again. Contrary to Zachary’s argument, it was not necessary for him to repeat his threat prior to each incident. (See People v. Senior (1992) 3 Cal.App.4th 765, 775-776 [Duress used in a prior molestation can be evidence supporting duress for later molestations].) Likewise, the fact that the forensic nurse noted during her examination that “force or threats” were not used during the incidents does not require a finding of no duress. (People v. Cochran, supra, 103 Cal.App.4th at p. 14 [“The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress”].) As the trial court noted, “The victim is a child and was traumatized by the incident. He was sexually assaulted by someone he believed was a friend.” His shock, embarrassment and fear resulting from the force and duress used during the first incident continued to cause him to acquiesce to the later incidents. Accordingly, substantial evidence supports the court’s finding of duress with regard to count two of the petition.
The court also found that Zachary committed the offenses alleged in counts one and two by means of menace. Although sections 286 and 288 do not include a definition of menace, menace is defined in the rape statute (§ 261, subd. (c)) as “any threat, declaration, or act which shows an intention to inflict an injury upon another.” The Attorney General does not challenge Zachary’s contention that the court’s finding is not supported by substantial evidence. We need not decide the matter as counts one and two are properly sustained based on the allegations of force and duress.
3. Count Four: Lewd act by means of force or duress
The trial court found that Zachary violated section 288, subdivision (b)(1) by means of force and duress during the October incident. As discussed above, all three incidents took place over a period of at most three months and the trial court reasonably concluded that the duress that was present during the prior incidents continued at the time of the third incident. In addition, the victim testified that when Zachary started to “poke” him with his penis, he was afraid and got up. Zachary grabbed his hand to stop him from leaving and said “don’t go.” Zachary was stronger than the victim, who was unable to escape his grip until his father entered the room. Thus, substantial evidence supports the court’s finding with respect to count four.
Disposition
The jurisdictional order is affirmed.
We concur: McGuiness, P. J., Siggins, J.