Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF016964 Kelly L. Hansen, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI Acting P.J.
OPINION
A jury found defendant and appellant Eric Dee Bassett guilty of aggravated sexual assault of a child by rape (Pen. Code, § 269, subd. (a)(1)) (count 1), continuous sexual abuse of a child (§ 288.5) (count 2), and aggravated sexual assault of a child by sexual penetration (§ 269, subd. (a)(5)) (count 3). As a result, defendant was sentenced to a total indeterminate term of 30 years to life and a total determinate term of six years with credit for time served.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction for aggravated sexual assault of a child by sexual penetration (count 3), and (2) his conviction for continuous sexual abuse (count 2) should be reversed because that offense and aggravated sexual assault by sexual penetration (count 3) temporally overlapped and were not charged in the alternative. We will vacate defendant’s conviction for continuous sexual abuse, as conviction on both that count and on the count of aggravated sexual assault by sexual penetration violates section 288.5, subdivision (c). We find his remaining contention lacking in merit and will otherwise affirm his conviction.
I
FACTUAL BACKGROUND
Jane Doe was 18 at the time of the trial. Between the ages of six and 14, Jane’s stepfather (defendant) molested her approximately one to four times a week while her mother was away. Jane did not want defendant touching her and did not consent to the acts. Jane’s siblings and mother were apparently unaware of the abuse.
At trial, Jane recalled several specific incidents. The first incident occurred when Jane was six. Jane was almost asleep on her mother’s bed when defendant got on top of her. He then held down Jane’s wrists with his hands and her feet with his legs, placed his penis on her vagina, “mov[ed] around, ” and made “grunting sounds....”
Subsequently, defendant continued to molest Jane by holding her down and rubbing his penis against her vaginal area. Defendant also inserted his fingers into Jane’s vagina at times, causing her pain and, on one occasion, being so forceful that it made her bleed. Specifically, defendant would lie on top of her body, stroke her body, rub his penis around her vaginal area, and then insert his fingers into her vagina. Most of the times, it was skin-to-skin contact. At other times, defendant also tried to orally copulate Jane. The frequency of the abuse varied. Sometimes defendant molested Jane once or twice a week and at other times three or four times a week.
On one occasion, after Jane’s younger siblings had fallen asleep, defendant entered her mother’s bedroom while Jane was lying on the bed. Shock and fear overcame Jane because she knew something was going to happen. Defendant grabbed her and pulled her leg toward him. He then tried to insert his penis into her vagina. As he attempted to penetrate Jane, her mother called on the telephone and interrupted the abuse.
Jane did not protest or resist because she was in shock and “dumfounded”; she viewed defendant as her father. She also testified that she did not tell anyone about the incidents because she was afraid of defendant and believed he might kill her. Jane thought defendant was crazy. She explained that defendant was “[u]p and down” – “sometimes he would be normal, and then other times he would be... really weird and talk about outrageous things.” In addition, she did not tell her mother or siblings because her mother loved defendant and was happy with him. Essentially, she did not want to destroy her family or devastate her mother.
Jane acknowledged that defendant did not say anything to her during the molestations; he did not threaten her or ask her not to tell anyone. However, she repeatedly testified that she was “scared” of defendant. She explained that she was “so afraid” of defendant because he “had such a hold of [her] life.” Defendant was the disciplinarian in the house when her mother was away. Jane also stated that she woke up with “night terrors” because of defendant’s abuse; when she was between the ages of 12 and 14, she tried to stay away from the house to avoid defendant.
When Jane was 14 years old, she finally disclosed the molestations to her mother and aunt. Jane told her mother that she was “scared for [her] life” and that defendant scared her. Jane’s mother then made defendant leave the house. The following day her mother packed up and moved the family to Oregon.
In March 2006, Jane was interviewed in Oregon by the police in regard to the sexual abuse. Jane told the police that she did not report the sexual abuse because she was afraid defendant would kill her. Jane also told the police that defendant ejaculated each time for the last month and a half of the sexual abuse.
In June 2006, a Riverside County Sheriff’s Department senior investigator interviewed defendant. Defendant admitted touching Jane’s vagina, inserting his finger into her vagina, and sliding his penis between the lips of her vagina. He initially denied ejaculating but later admitted it. He claimed the abuse occurred from the time she was 13 years old until she turned 14.
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends there was insufficient evidence to support the jury’s verdict that he committed aggravated sexual assault of a child by means of sexual penetration (count 3). Specifically, he claims there was insubstantial evidence of force, duress, or fear to accomplish the penetration. We disagree.
Our review of any claim of insufficiency of the evidence is limited. “‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine 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.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Further, before we may set aside a judgment for insufficiency of evidence, it must clearly appear that there is no hypothesis under which we could find sufficient evidence. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (Young, at p. 1181.) This standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for aggravated sexual assault by means of sexual penetration based on the evidence not demonstrating he used force, dress, or fear to accomplish the penetration.
Aggravated sexual assault of a child (sexual penetration) occurs when any person commits an act of sexual penetration “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” (§ 289, subd. (a)(1)), and the victim is a child under the age of 14 (§ 269, subd. (a)(5)). “[T]he definition of the word ‘force’ in sexual offense statutes depends on the offense involved. To convict for committing a forcible lewd act against a child in violation of section 288, subdivision (b), the prosecution must prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. [Citation.] In contrast, the requisite amount of force for a rape conviction is the amount sufficient to overcome the victim’s will. [Citation.] This level of force also applies for convictions of aggravated sexual assault of a child by rape and by forcible oral copulation [citation]. [Citation.]” (In re Asencio (2008) 166 Cal.App.4th 1195, 1200, fn. omitted.)
Asencio held that forcible sexual penetration, within the meaning of section 289, subdivision (a)(1), like the crimes of forcible oral copulation and rape, requires evidence that the defendant “accomplished an act of sexual penetration by the use of force sufficient to overcome the victim’s will.” (In re Asencio, supra, 166 Cal.App.4th at p. 1205.) Defendant maintains that this is the proper test but argues that there is insufficient evidence that he used force to accomplish the digital penetrations. We find substantial evidence of force to overcome the will of the victim in this case.
Jane testified that she did not want defendant touching her, and she did not consent to the acts defendant performed. She described how the molestations began when she was six years old and continued until she was 14 years old. She explained that defendant pulled her underwear down or moved it to the side. He then held her down with his hands and legs, got on top of her body, rubbed his penis around her vaginal area, and then inserted his fingers into her vagina. At times, defendant’s digital penetration caused Jane to be in pain; on one occasion, he was so forceful that it made her bleed. This is sufficient evidence that defendant forced Jane to submit to the act against her will.
Furthermore, contrary to defendant’s assertions, the evidence also demonstrates that the sexual penetration was accomplished by means of duress. Duress in this context is “‘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.]” (People v. Leal (2004) 33 Cal.4th 999, 1004.) All of the circumstances should be considered in determining the existence of duress, including the age of the victim, the victim’s relationship to defendant, threats to harm the victim, physically controlling a resisting victim, and warnings that revealing the molestation could jeopardize the family. (People v. Veale (2008) 160 Cal.App.4th 40, 46-47 [Fourth Dist., Div. Two].) Even when a victim testifies that no force or threats were involved, it has been held that sufficient evidence of duress existed where the victim was eight years old at the time of the offenses; at that age “‘adults are commonly viewed as authority figures’” and “‘[t]he disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of his [or her] relative physical vulnerability.’” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579.) In addition, “when the victim is as young as [six years old] and is molested by her father [or stepfather] in the family home, in all but the rarest cases duress will be present.” (People v. Cochran (2002) 103 Cal.App.4th 8, 16, fn. 6.)
Jane was six years old when defendant began molesting her. Defendant was her stepfather and filled a parental role. He primarily cared for Jane and her siblings while her mother worked. Jane looked at defendant as her “father.” In fact, she called him “dad.” Jane did not say anything to stop the abuse because she was “shocked” and “dumbfounded” that her stepfather would do what he did to her. Additionally, she did not tell her mother because her mother loved defendant and was happy with him. She did not want to destroy her family or devastate her mother. Given the relationship between defendant and Jane and their age and size differences, a rational juror could conclude that defendant accomplished the sexual penetration by duress.
A reasonable juror could also conclude that the sexual penetration was accomplished by means of fear. “[T]hreats need not be express, but may be inferred from conduct. [Citation.] Silent threats, of course, generate fear.” (People v. Reyes (1984) 153 Cal.App.3d 803, 811.) Here, Jane repeatedly testified that she did not disclose the sexual abuse because she was afraid of defendant. She explained that she was afraid of defendant because he “had such a hold of [her] life.” Defendant was the disciplinarian in the house when her mother was away. Jane also said that she woke up with “night terrors” because of defendant’s abuse and, when she was between the ages of 12 and 14, she tried to stay away from the house to avoid defendant. Jane thought defendant was crazy, and explained that defendant was at times “normal” and at other times spoke about odd things.
Based on the foregoing, as viewed in the light most favorable to the judgment, we conclude there was sufficient evidence that defendant accomplished the aggravated sexual assault of a child by means of sexual penetration (count 3) by force, fear, or duress.
B. Defendant’s Conviction for Continuous Sexual Abuse
Defendant also contends, and the People correctly concede, that his conviction for continuous sexual abuse (count 2) should be reversed because the People failed to charge that offense and the aggravated sexual assault by sexual penetration (count 3) in the alternative, and those two offenses temporally overlapped.
Section 288.5, subdivision (c) provides: “No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.” Accordingly, continuous sexual abuse in violation of section 288.5 and any discrete sexual offense against the same victim that occurred within the period of the continuous sexual abuse must be charged in the alternative, and a defendant may be convicted of either offense but not both. (People v. Johnson (2002) 28 Cal.4th 240, 244-248 (Johnson).)
Here, defendant was charged with one count of continuous sexual abuse of a child between October 1998 and September 2005 in violation of section 288.5 and one count of aggravated sexual assault of a child occurring between September 1997 and September 2005. The jury convicted defendant on both counts, and the court imposed sentence on both counts. Our Supreme Court, however, as noted above, has held that because section 288.5, subdivision (c) “clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative, ” prosecutors “may not obtain multiple convictions” in such a circumstance. (Johnson, supra, 28 Cal.4th at p. 248.) The pleading in this case failed to allege the continuous sexual abuse count and the aggravated sexual assault count in the alternative. Therefore, defendant cannot stand convicted of both. (Ibid.)
When there have been such multiple convictions, “either the continuous abuse conviction or the convictions on the specific offenses must be vacated.” (Johnson, supra, 28 Cal.4th at p. 245.) “[S]ection 288.5, subdivision (c) gives the prosecutor maximum flexibility to allege and prove not only a continuous sexual abuse count, but also specific felony offenses commensurate with the defendant’s culpability, subject only to the limitation that the defendant may not be convicted of both continuous sexual abuse and specific felony sex offenses committed in the same period. It therefore is also appropriate, in deciding which convictions to vacate as the remedy for a violation of the proscription against multiple convictions set forth in section 288.5, subdivision (c), that we leave appellant standing convicted of the alternative offenses that are most commensurate with his culpability.” (People v. Torres (2002) 102 Cal.App.4th 1053, 1059, italics in original.)
In Torres, the trial court imposed a longer aggregate sentence for the specific offenses and stayed execution of sentence on the section 288.5 violation; thus, the appellate court concluded the appropriate remedy was to reverse the conviction for violating section 288.5, which carried the lower sentence. (People v. Torres, supra, 102 Cal.App.4th at pp. 1060-1061; see also People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177 [trial court properly granted prosecution’s motion to dismiss continuing sexual abuse charge rather than the individual counts of lewd conduct, which carried a longer sentence].) In other words, the court must, as a matter of law, uphold the conviction for the most serious offense found by the jury.
Here, the aggravated sexual assault of a child by sexual penetration carries a greater penalty, specifically, 15 years to life in prison (§ 269, subd. (b)), as opposed to the continuous sexual abuse offense, which carries a penalty of 6, 12, or 16 years (§ 288.5, subd. (a)). The Legislature has clearly determined that aggravated sexual assault of a child is a far more egregious offense than continuous sexual abuse. Therefore, defendant’s conviction for continuous sexual abuse (§ 288.5) (count 2) should be reversed. However, because the trial court deemed the continuous sexual abuse count as the principal count, and it was therefore an integral part of defendant’s sentence, we conclude the appropriate remedy is to remand the matter for resentencing.
Here, the trial court sentenced defendant to six years for the continuous sexual abuse offense.
III
DISPOSITION
Defendant’s conviction for continuous sexual abuse (§ 288.5; count 2) is reversed. The sentence is vacated, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: KING J., MILLER J.