Opinion
E069824
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. CRAIG VINCENT ALDRICH, Defendant and Appellant.
John Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser, Christine Levingston Bergman, and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1601807) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. John Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser, Christine Levingston Bergman, and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Craig Vincent Aldrich, sexually assaulted his stepdaughter, Jane Doe 2, for several years before turning his attention to her younger sister, Jane Doe 1. Defendant was tried by a jury and convicted of four counts of aggravated sexual assault respecting Jane Doe 2, including acts of oral copulation, lewd acts, and forcible rape. He was sentenced to prison for 45 years to life, plus six years, and appealed.
Defendant was acquitted of the count pertaining to Jane Doe 1, and one of the counts pertaining to Jane Doe 2.
On appeal defendant argues (1) there was insufficient evidence of duress to support the jury's verdicts of the aggravated assault offenses charged in counts 3, 4, and 5, (2) the trial court had a duty to sua sponte give lesser included offense instructions on the aggravated assault offenses charged in counts 3, 4, and 5, and (3) defense counsel committed ineffective assistance by not objecting to the prosecutor's closing argument, and by not arguing to the jury that the prosecution had failed to prove the element of duress beyond a reasonable doubt. We affirm.
II.
FACTS AND PROCEDURAL HISTORY
Defendant lived with K.M., her son, and her two daughters, Jane Doe 1 (born April 2000) and Jane Doe 2 (born November 1994). From September 2002 until July 2003, the family lived in Moreno Valley, after which the family moved to Canyon Lake, where they lived until 2016.
At various times, defendant's mother, "Mimi," his son D.A., and K.M.'s friend Julie, lived with the family in the Canyon Lake home.
When Jane Doe 2 was eight years old, she was home alone with defendant in the Moreno Valley home. He took Jane Doe 2 upstairs to his bedroom, closed the door, and told her to lay down on the bed and take off her pants. Defendant told her, "'Let me make you feel good.'" Defendant placed his hands on Jane Doe 2's body, spread her legs apart and orally copulated Jane Doe 2. When Jane Doe 2 indicated that she did not like what defendant was doing to her, he replied, "'[o]h, well, that's okay,'" and stopped and left the room. Jane Doe 2 was confused and kept the incident a secret from her mother because she did not want to get anyone in trouble.
Although defendant was acquitted of count 2, pertaining to this particular incident, as well as count 1, pertaining to the incident involving Jane Doe 1 when she was 8, inclusion of this information is necessary to provide context for and to explain Jane Doe Two's reasons for, and the timing of, the disclosures of the molestations committed against her which resulted in convictions.
After the family moved to the Canyon Lake home, the next sexual assault occurred when defendant instructed Jane Doe 2 to orally copulate him. Defendant led Jane Doe 2 into a bathroom and locked the door. Then defendant told Jane Doe 2 to sit down on the toilet. Defendant unzipped his pants, pulled out his penis, and said that he was going to show her how to kiss it. Then defendant made Jane Doe 2 open her mouth and he put his penis inside of it, making Jane Doe 2 move her mouth back and forth on it. Jane Doe 2 complied for a few minutes but then stopped.
Jane Doe 2 felt uncomfortable, but she complied because defendant had told her to do so, and she felt she had to listen. Because Jane Doe 2 considered him as a father, she did not want to betray his secret or hurt her mother. As with the first incident, Jane Doe 2 was confused and scared and did not tell anyone what defendant had done.
After this incident, defendant often made Jane Doe 2 orally copulate him, either in the bathroom or in his home office. Defendant would lock Jane Doe 2 inside his office or bathroom. The first time defendant made Jane Doe 2 orally copulate him in his office, he locked the door, pulled out his penis, and made her put her mouth on it. Defendant told Jane Doe 2 to swallow his semen, but she spit it out.
While living in the Canyon Lake home, defendant ran his window cleaning business out of a home office.
When Jane Doe 2 was 11 years old, defendant raped her for the first time in the master bedroom. Defendant made Jane Doe 2 get naked from the waist down, and lay on her back at the edge of the bed, and then he undressed himself before having vaginal intercourse with her, which caused her to bleed. Subsequently, defendant raped Jane Doe 2 numerous times either in her bedroom or in the master bedroom. When defendant raped Jane Doe 2 in her bedroom, he would come in at 3:00 or 4:00 a.m., while Jane Doe 2's sister, Jane Doe 1, slept nearby. Defendant would tug at Jane Doe 2's pajamas and penetrate her from behind. Because Doe 2 did not want to wake her younger sister, Jane Doe 2 kept quiet. Defendant usually ejaculated inside Jane Doe 2, but after her monthly period began, he wore a condom during the rapes. On at least two occasions, defendant brought a small white vibrator, with which he penetrated Jane Doe 2 before penetrating her with his penis. The defendant had used the same vibrator with K.M., Jane Doe 2's mother.
By age 14, Jane Doe 2 told defendant she felt uncomfortable and did not want to do this anymore. Defendant asked Jane Doe 2 what he could do to make it worth her while. After that, Jane Doe 2 would find money or small amounts of marijuana in her room after defendant raped her or made her orally copulate him. Soon, defendant stopped assaulting her.
Defendant assaulted Jane Doe 1 when she was about eight years old and the family lived at the Canyon Lake residence. The incident occurred when defendant walked in Jane Doe 1's bedroom, holding a bottle of lotion, while Jane Doe 1's mother was sleeping, and the child was alone. Defendant instructed Jane Doe 1 to change into something more comfortable and left the room. Jane Doe 1 changed into a one-piece footsie pajama that zipped up and covered her entire body.
After defendant returned, he unzipped Jane Doe 1's pajamas and unsnapped her training bra. Defendant began rubbing her back with lotion. Defendant told Jane Doe 1 to relax, reached around her arms, and began rubbing her breasts and nipples. While defendant was rubbing her nipples, he asked Jane Doe 1 if she liked it. Jane Doe 1 told defendant she felt uncomfortable. After about 10 to 15 minutes, defendant stopped touching her breasts and instructed her to keep the incident secret.
Jane Doe 1 did not understand what had happened and immediately called Jane Doe 2, then 14 years old and staying at a friend's house, and asked her to come home. When Jane Doe 2 arrived, Jane Doe 1 was crying and told Jane Doe 2 that defendant had touched her breasts. Jane Doe 2 did not seem surprised, but told Jane Doe 1 to tell her if defendant ever did it again, and advised Jane Doe 1 not to tell their mother, K.M.
The following morning, Jane Doe 2 confronted defendant about touching Jane Doe 1, and threatened to tell on him if he ever touched Jane Doe 1 again. It was at this time that Jane Doe 2 told defendant that she wanted him to stop making her have sex with him.
In March 2016, Jane Doe 2 came home intoxicated one night, crying, and revealed to Jane Doe 1 that defendant had abused her over the years. When Jane Doe 1 heard about the abuse she was angry. Jane Doe 1 wanted to tell the police, but Jane Doe 2 insisted they keep defendant's abuse a secret. The following day, Jane Doe 1 told her mother's best friend, Julie, about defendant's abuse. Julie and Jane Doe 1 then informed K.M. that defendant had sexually assaulted the two girls.
K.M., Jane Doe 1, and Julie then went to the Canyon Lake home to confront defendant about the girls' allegations of abuse. Defendant remained calm and said, "'I don't know why this is all coming up now.'"
Detective Joshua Rhodes from the Riverside County Sheriff's Department began an investigation into the allegations. Jane Doe 2 was initially reluctant to talk with the detective, but Jane Doe 1 told the detective that defendant had touched her breasts.
Detective Rhodes interviewed defendant on March 24, 2016. Defendant brought notes to the interview with him and repeatedly denied any sexual abuse. After interviewing defendant, Detective Rhodes interviewed Jane Doe 2 on April 1, 2016, at which time Jane Doe 2 reported defendant had raped her. Jane Doe 2 also told the detective that defendant had an identifying brown mole located near his penis. The detective then questioned K.M. about the existence of the mole and she corroborated this fact. Upon defendant's arrest, Detective Rhodes also confirmed the existence of the mole as described by Jane Doe 2.
After his arrest, defendant made recorded jail calls to K.M. When confronted by K.M., defendant did not deny the abuse allegations or say Jane Doe 2 was lying about them.
Defendant was charged with committing a lewd act on a child (Jane Doe 1), (Pen. Code, § 288, subd. (a); count 1), aggravated sexual assault/oral copulation (Jane Doe 2), (§ 269, subd. (a)(4); counts 2 & 3), aggravated sexual assault/forcible rape (Jane Doe 2), (§ 269, subd. (a)(1); count 4), aggravated sexual assault/sexual penetration (Jane Doe 2), (§ 269, subd. (a)(5); count 5), and committing lewd acts upon a child (Jane Doe 2) (§ 288, subd. (a); count 6). The information also included a multiple victim enhancement allegation. (§ 667.61, subd. (e)(4).)
Unless otherwise noted, all statutory references are to the Penal Code.
Following a jury trial, defendant was convicted on counts 3 through 6, relating to the aggravated sexual assaults and lewd acts committed against Jane Doe 2, and he was acquitted on counts 1 and 2. The jury also made a not true finding on the multiple victim allegation. (§ 667.61, subd.(c)(5).) The trial court sentenced defendant to 45 years to life, plus six years in prison as follows: The court imposed a determinant term of six years for count 6, and three consecutive indeterminate terms of 15 years to life for counts 3, 4 and 5. Defendant timely appealed.
III.
DISCUSSION
A. Sufficiency of Evidence of Duress for Counts 3, 4, and 5
Defendant contends his convictions for aggravated sexual assault based on forcible oral copulation (count 3), rape (count 4), and sexual penetration (count 5), are not supported by substantial evidence of duress. Instead, defendant claims we must modify the judgment to reflect convictions for nonforcible lesser included offenses. We disagree.
The test to evaluate a sufficiency of evidence claim is "whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "Given this court's limited role on appeal, defendant bears an enormous burden in claiming there is insufficient evidence" to sustain his aggravated assault convictions. (People v. Veale (2006) 160 Cal.App.4th 40, 46.)
Section 269 punishes more severely the commission of certain sexual offenses—rape, rape in concert, sodomy, oral copulation, or sexual penetration—against children under the age of 14. "The offense[] of aggravated sexual assault . . . require[s] proof that 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person' was used." (People v. Cochran (2002) 103 Cal.App.4th 8, 13 overruled on a different point in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
"'[D]uress' 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." [Citations.]'" (People v. Veale, supra, 160 Cal.App.4th at p.46, citing People v. Cochran, supra, 103 Cal.App.4th at p.13.)
However, "'[t]he very nature of duress is psychological coercion.'" (People v. Veale, supra, 160 Cal.App.4th at p. 48; People v. Cochran, supra, 103 Cal.App.4th at p.15.) "'The [totality of] circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.]" (People v. Cochran, supra, at pp. 13-14.) "The totality of the circumstances includes the victim's age, her relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238.)
"The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran, supra, 103 Cal.App.4th at p. 14.) "When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases." (People v. Thomas, supra, 15 Cal.App.5th at pp. 1072-1073 [victim was between ages four and 14 when molested by father], see People v. Veale, supra, 160 Cal.App.4th at p. 49 [seven-year-old victim].)
Here, defendant began sexually abusing Jane Doe 2 at the age of eight and continued until she was 14. The defendant, who occupied a position of authority in the household, variously locked Jane Doe 2 in the bathroom or in his home office when forcing her to commit acts that made her uncomfortable. Defendant told Jane Doe 2 to keep their secret. Defendant directed Jane Doe 2 to remove her clothes, and to orally copulate him, and she felt obliged to comply. Jane Doe 2 was a child, and defendant was a middle-aged man, much larger than she. The totality of the circumstances amply supports a finding of duress.
Defendant contends that Jane Doe 2's testimony "unequivocally shows the sexual acts . . . were not accomplished by duress" because she "passively complied with his unwanted acts" and that there is no evidence that Jane Doe 2's participation was impelled by direct or implied threats. However, a child victim's consent or passiveness is not a defense to aggravated lewd acts. (See People v. Soto, supra, 51 Cal.4th at pp. 245, 247.) Additionally, because "duress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior." (Id. at p. 246.) It does not matter that the victim did not fight back or whether she consented to the molestation. "[T]he focus must be on the defendant's wrongful act, not the victim's response to it." (Ibid.) Considering that defendant occupied a father-figure position of dominance in the household, isolated her in locked rooms, and directed her to participate, duress was established.
Defendant also argues that this case is analogous to that of People v. Espinoza (2002) 95 Cal.App.4th 1287, where the defendant's conviction for forcible lewd conduct (§ 288, subd. (b)), was reversed for lack of duress. The holding of that case is inapposite. In Espinoza, and the prosecution had argued relied solely on duress to prove the force element of the charge, relying on the holding of People v. Schulz (1992) 2 Cal.App.4th 999. In Schulz, the defendant had physically restrained the victim during the molestation, which the reviewing court found to constitute duress. In Espinoza, the court distinguished the Schulz case, finding there was no physical restraint and no other evidence of duress to meet the elements of the crime. Here, defendant restrained Jane Doe 2 by locking doors.
The convictions pursuant to section 269 are supported by substantial evidence.
Since there is substantial evidence to support the jury verdicts, we reject defendant's claims that counts 3, 4, and 5 should be modified to nonforcible lesser included offenses because there is no evidence of duress.
B. Failure to Sua Sponte Instruct/Lesser Included Offenses (Counts 3, 4, and 5)
Defendant contends the trial court had a sua sponte duty to give lesser included offense instructions on counts 3, 4, and 5. Specifically, defendant argues that oral copulation with a person under 18 years of age, pursuant to former section 288a, subdivision (b)(1), is a necessarily included offense in count 3 (§ 269, subd. (a)(4)), unlawful sexual intercourse pursuant to section 261.5, subdivision (c) is a lesser included offense in count 4 (§ 269, subd. (a)(2)); and sexual penetration in violation of section 289, subdivision (h), is a necessarily included offense of count 5 (§ 269, subd. (a)(5)). The People assert defendant invited error, the evidence did not support instructions for lesser included offenses, and if instructions were required, the error was harmless.
"The invited error doctrine bars an appellate challenge to the absence of a lesser included offense instruction if the defendant, for tactical reasons, persuaded the trial court to forgo giving the instruction." (People v. Bell (2019) 7 Cal.5th 70, 109, citing People v. Beames (2007) 40 Cal.4th 907, 927-928; People v. Horning (2004) 34 Cal.4th 871, 905.) However, the doctrine does not apply if defendant merely acquiesced in the absence of an instruction. (People v. Avalos (1984) 37 Cal.3d 216, 229.) "The record must reflect that counsel had a deliberate tactical purpose." (Ibid.)
Here, the trial court initially discussed giving lesser included offense instructions and remarked that the "lesser[] [included offense jury instructions] are usually the attempt." Defense counsel agreed. The prosecutor also agreed, but stated that it was conceivable that the forcible counts might be lesser included offenses. After this discussion took place, counsel was instructed to meet and confer on whether lesser included offense instructions should be given.
During later discussion, the trial court remarked that the evidence established a basic denial to the charges. Defense counsel said, "[w]hether or not, I guess, I could be entitled to attempts or—I mean, I think as a practical matter and a matter of strategy, I would be asking to not have [the lesser included offense instructions]" because the defenses to all counts, other than count 1, were "flat denials." Thereafter, the trial court stated, "consistent with the evidence" it would not give any lesser included offense instructions. After having time to consider the lesser included offense instructions, defense counsel made a deliberate tactical choice to reject the instructions.
"[D]efendant did not want the instructions because they were inconsistent with his defense that he did not commit the crimes at all." (People v. Horning, supra, 34 Cal.4th at p. 905, citing People v. Hardy (1992) 2 Cal.4th 86, 184.) This deliberate tactical motive for encouraging the trial court to proceed with what defendant now characterizes as an erroneous failure to instruct on lesser offenses precludes defendant from asserting this error as a basis for a reversal of his conviction. (People v. Avalos, supra, 37 Cal.3d at p. 228.)
Were we to reach the merits, a different result would not obtain. While a trial court has a sua sponte duty to instruct on all theories of a lesser included offenses which find substantial support in the evidence (People v. Breverman (1998) 19 Cal.4th 142, 162), such instructions are required only when there is substantial evidence to merit consideration by the jury that the defendant is guilty of only the lesser offense. (Ibid.)
Here, Jane Doe 2's testimony satisfied all the elements of aggravated sexual assaults, and her descriptions of being forced to participate in the sex acts after being directed to do so, being taken into his bedroom or being locked in a room, and further directed not to reveal the secret, does not leave room for consideration of any lesser crime. In addition, defendant's all-or-nothing theory meant the jury had no evidence of lesser offenses to consider. The court was not obliged to instruct the jury sua sponte on lesser theories because they lacked evidentiary support. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
C. Ineffective Assistance of Counsel
Defendant argues that his right to effective assistance of counsel was violated because defense counsel did not object to the prosecutor's legally incorrect definition of duress during closing argument and failed to argue that the prosecutor had not proven the element of duress beyond a reasonable doubt. We disagree.
Defendant acknowledges that defense counsel did not object to the prosecutor's closing argument. A defendant may not raise a prosecutorial misconduct claim on appeal unless a timely objection is made in the trial court and the defendant requests the court to admonish the jury to disregard the perceived impropriety. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853; People v. Centeno (2014) 60 Cal.4th 659, 666-667.)
"Recognizing that defense counsel's failure to object to the prosecutor's [argument] at trial forfeited any claim of prosecutorial misconduct on appeal, [defendant] argues that the failure to object constituted ineffective assistance of counsel." (People v. Jackson (2016) 1 Cal.5th 269, 347.) However, to prevail on a claim of ineffectiveness of counsel, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L. Ed. 2d 674, 104 S. Ct. 2052]; accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see also People v. Dowdell (2014) 227 Cal.App.4th 1388, 1406-1407.)
The defendant bears the burden of demonstrating by a preponderance of the evidence that defense counsel's performance was deficient and resulted in prejudice. (People v. Dowdell, supra, 227 Cal.App.4th at pp. 1406-1407; People v. Montero (1986) 185 Cal.App.3d 415, 426.) Where defense counsel relies on a deliberate trial strategy, "'[a] reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]'" (People v. Woodruff (2018) 5 Cal.5th 697, 762.) Additionally, if we can determine an ineffectiveness of counsel claim on the ground of lack of prejudice, we need not decide whether defense counsel's performance was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
To establish ineffectiveness of counsel here, there must have been prosecutorial misconduct warranting an objection. Prosecutorial error occurs under state law when a prosecutor engages in deceptive or reprehensible tactics in order to persuade the jury to convict. (People v. Daveggio and Michaud, supra, 4 Cal.5th at 854.) It is improper for the prosecutor to misstate the law generally (People v. Bell (1989) 49 Cal.3d 502, 538) and particularly to relieve it of its duty to overcome reasonable doubt on all elements. (People v. Gonzalez (1990) 51 Cal.3d. 1179, 1215.) However in the context of the whole argument and the instructions, we see no reasonable likelihood the jury was misled. (People v. Marshall (1996) 13 Cal.4th 799, 831-832.)
Here, the prosecutor started his discussion of duress by telling the jurors to refer to the instructions for the definition of duress, and then recited an almost verbatim definition of duress as it is stated in the jury instructions. Defendant does not complain that the CALCRIM instructions on duress were erroneous, so the prosecutor's use of the language of the instruction in argument and in illustration of the principles cannot be said to be erroneous, much less misconduct. More importantly, because the defense was an "all-or-nothing" theory, whether or not there was duress was inconsistent with the premise that he committed no improper acts with his stepdaughters. There was no prosecutorial misconduct, and thus no reason for defense counsel to object. Defense counsel's representation was not defective.
Finding no misstatement of law, and no ineffectiveness of counsel for failing to object to the prosecutor's argument, we do not need to reach defendant's claims the error impacted his federal constitutional rights.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.