Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC806838
Premo, J.
A jury convicted defendant Jose DeJesus Machorrosalas of 30 sex offenses against three victims, two of whom were 10 years of age or younger and the third under 14 years of age. Nine counts involving the under-14 victim were for lewd conduct upon a child by means of force, duress, menace, or fear (counts 21-22, 24-30). The trial court sentenced defendant to 450 years to life. On appeal, defendant contends that (1) no substantial evidence supports the element of force, etc., as to eight counts involving the under-14 victim, and (2) the prosecutor engaged in misconduct during argument by misstating the evidence. We affirm the judgment.
Background
Defendant was married to the victim’s grandmother and lived with the grandmother, the victim’s mother, the victim, and the victim’s younger siblings. During 2006 when the victim was 11 years old, the family lived in San Jose (the “green apartments”) and close to Campbell (the “pink house”). During 2007, the family lived in San Jose on 19th Street.
The grandmother babysat the children while the mother worked the 3:00 p.m. to 11:30 p.m. shift as a hospital nursing assistant. Defendant babysat the children when the grandmother had appointments outside the home. During these times, the victim felt that she had to listen to defendant and do what he said--that he was the “boss of the house.”
In the green apartments, defendant touched the victim’s breasts in his bedroom on separate days “Maybe like five times.” He moved his hands “all over the place, ” “squeezing, ” sometimes over the “skin, sometimes, and sometime... over the shirt.” He also put his finger in the victim’s vagina on one occasion. In the pink house, defendant touched the victim’s breasts in his bedroom on separate days “More than five times.” At 19th street, defendant touched the victim’s breasts in his bedroom, the basement, and the garage on separate days “More than five times.”
The touching made the victim feel “Bad and scared.” When defendant touched the victim, he told her “to be quiet and don’t tell nobody.” “He used to cover [her] mouth” and tell her “If you tell, you know what’s gonna happen, ” having before told her that her “grandma’s gonna kick [her] outta the house, and also, also that he’s gonna kick [her] outta the house, you’re gonna be living in the streets.” When defendant touched the victim, the victim “used to scream” for her grandmother but defendant covered her mouth and told her “to be quiet.” When the victim’s grandmother was present in the house and attended to the screams, defendant “stop[ped] and pretend[ed] to do something else.”
EVIDENCE OF FORCE, DURESS, MENACE, OR FEAR
In any challenge to a conviction based on the insufficiency of the evidence, our review is highly deferential. We determine “ ‘ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Moon (2005) 37 Cal.4th 1, 22.) Thus, “[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends.” (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) And so “if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (Ibid.)
“However, ‘[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]’ [Citation.] ‘Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.’ ” (People v. Tripp (2007) 151 Cal.App.4th 951, 955-956; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
In child molestation cases, “generic testimony” is sometimes presented, in which a victim describes multiple incidents that are not differentiated by dates, times, or places. Such testimony may be presented in cases where the molester has resided in the victim’s home and molested the victim repeatedly, so that “[a] young victim... may have no practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even any such incidents.” (Jones, supra, 51 Cal.3d at p. 305.) This can create certain issues of proof in molestation cases. In Jones, the court reconciled the tensions between a defendant’s due process rights with society’s need “to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time.” (Ibid.) It held that generic testimony can support a conviction if certain minimum requirements are met.
“The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade, ’ or ‘during each Sunday morning after he came to live with us’), to assure the acts were committed within the applicable limitation period.” (Jones, supra, 51 Cal.3d at p. 316.)
The information in this case alleged a violation of Penal Code section 288, subdivision (b), which provides that a person commits an aggravated lewd act on a child “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury....”
Defendant argues that eight of the nine convictions for counts 21-22 and 24-30 should be reduced to simple lewd acts upon a child (Pen. Code, § 288, subd. (a)) because there is no substantial evidence of force, fear, or duress. He urges that the victim “did not describe any physical force ‘substantially different from or substantially greater than that necessary to accomplish the lewd act[s] themselves.’ ” He claims that the “boss of the house” evidence does not establish duress because psychological coercion without more does not establish duress. He claims that the pressure against reporting the sexual acts does not constitute duress. And he states that the victim’s subjective fear does not establish duress and there is no evidence that he used the victim’s fear of immediate bodily injury as a means of molesting her.
We focus on the element of duress and disagree with defendant.
Duress is defined as 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.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).) Physical control can create duress without constituting force. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) “ ‘[D]uress [also] involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes.... “Where the defendant is a family member and the victim is young, ... the position of dominance and authority of the defendant and his continuous exploitation of the victim” [are] relevant to the existence of duress.’ ” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320 (Espinoza).) However, as this court made clear in Espinoza, duress can be established only if “there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat.’ ” (Id. at p. 1321.) Duress used in a prior molestation can be evidence supporting duress for later molestations. (People v. Senior (1992) 3 Cal.App.4th 765, 775-776.)
Here, defendant was a family member and authority figure. He imposed himself upon an 11- and 12-year old victim in bedrooms, a basement, and a garage. He scared the victim by covering her mouth, telling her to be quiet, and telling her that she would be kicked out of the house into the street if she told anyone what he was doing to her. The victim demonstrated that she did not want to engage with defendant by screaming for her grandmother when defendant touched her. In the ninth incident that defendant does not challenge, defendant put his finger in the victim’s vagina. This shows physical and psychological coercion and is ample evidence of duress to support the convictions.
Defendant points out that his psychological coercion was pressure directed against reporting the molestations rather than pressure directed against refusing to acquiesce to the sex acts. But we disagree with the assertion in People v. Hecker (1990) 219 Cal.App.3d 1238, 1251, footnote 7, that an admonition against disclosing the molestation cannot support a finding of duress. As this court observed in an earlier case, young victims of child molestation are unlikely to perceive the subtle distinction “between warnings enjoining nondisclosure and noncompliance”: “A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.” (People v. Senior, supra, 3 Cal.App.4th at p. 775.)
This case bears some similarity to Cochran, supra, 103 Cal.App.4th 8. In that case, the nine-year-old victim testified that she was not scared of the defendant, her father, but the court nevertheless found that the circumstances evidenced duress. (Id. at pp. 15-16.) In finding sufficient evidence of duress, the Cochran court noted that the defendant outweighed the victim by over 100 pounds, the sexual acts occurred in the family home, the defendant told her not to tell anyone because he would get into trouble and go to jail, and the evidence showed that the victim was reluctant to engage in the activities, but did so to comply with her father and avoid breaking up the family.
This court’s opinion in Espinoza, supra, 95 Cal.App.4th 1287, on the other hand, is distinguishable. In Espinoza, the victim was the defendant’s 12-year-old daughter. On several occasions during a one to two week period, defendant came into the victim’s bedroom at night while her sisters were asleep in the other room. The defendant sat on the edge of her bed and fondled her and on the last occasion attempted to rape her before she moved to prevent him. The victim reported that she was scared, and, on one occasion, defendant asked her whether she still loved him, said “[p]lease love me” and may have cried. (Id. at pp. 1292-1295.) We concluded that there was no evidence that the defendant’s lewd acts were accompanied by a direct or implied threat of any kind. We explained: “The only way that we could say that defendant’s lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.’s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress.... Duress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat.’ ” (Id. at p. 1321.)
Espinoza is similar to the present case in that both defendants held positions of trust and authority in the victims’ lives. But there are two important differences. Not only does the instant case present evidence of a threat (physical and psychological coercion), the essential element missing in Espinoza, but the surrounding circumstances in Espinoza were significantly less coercive than in the present case. In Espinoza, the defendant behaved as if he were crying and asked the victim if she still loved him while he was molesting her. The defendant’s demeanor itself was evidence that he did not use duress to coerce his victim’s acquiescence. (Espinoza, supra, 95 Cal.App.4th 1287.)
The absence of a threat also distinguishes People v. Hecker, supra, 219 Cal.App.3d at page 1250, in which the court found no evidence that the defendant had ever threatened the 12-year-old victim, who said that she was never afraid that defendant would hurt her.
Defendant nevertheless disagrees that his admonition against disclosing the molestation should be a factor supporting that he used psychological coercion. He asserts such an admonition applies only to a young-child victim: “Perhaps eighteen years ago, when Senior was written, an eleven year old girl was considered a ‘young child.’ That description does not ring true today. An eleven year old is a ‘pre-teen, ’ less likely to be confused and coerced by [the] statement than a seven year old.”
But defendant’s point simply raises a matter of fact. Defendant was free to argue to the jury that, for purposes of finding duress, no significance should be placed on his admonition against disclosure in light of the victim’s age.
Defendant also argues that there is no evidence that he admonished the victim against disclosing the molestation during the first molestation, which “set the stage” for the victim’s continuing compliance. We disagree.
If one accepts the evidence that defendant admonished the victim against disclosing the molestation, it is reasonable to infer that defendant did so at the outset--overlooking an admonition at the outset might risk that the victim would disclose the molestation at the outset. Defendant was free to cross-examine the victim for the purpose of pinning down the timing of the admonition so as to argue, if it indeed occurred later than the first molestation, that the admonition did not factor into the duress analysis for offenses committed before the admonition.
PROSECUTORIAL MISCONDUCT DURING ARGUMENT
Defendant contends that the prosecutor engaged in misconduct during argument by misstating the evidence as follows: “What we have here, you know, is the defendant saying, ‘If you don’t do what I’m saying, you know, you disobey, then your mom will get mad. If you tell, your mom will get mad. Grandma will get mad. Don’t tell anyone. Bad things will happen to you.’ That’s the duress that’s implied, and we’re talking about duress for counts--the lewd act counts, which would be the counts on [the victim]--21, 22, and then 24 through 30.”
Defendant asserts that the victim “never said that [he] had told her if she disobeyed him or did not do what he was saying, her mom would get mad” but instead testified that he “told her to be quiet and not tell anyone, or her grandmother and mother would get mad.” He concludes: “Thus her testimony went to what [he] told her would happen if she disclosed the lewd acts--not, as the prosecutor said, what would happen if she did not allow them.”
We reject the point on procedural grounds. To preserve a misconduct claim a defendant must make a timely objection and request an admonition; only if an objection would have been futile and admonition would not have cured the harm is the misconduct claim preserved for review. (People v. Cook (2006) 39 Cal.4th 566, 598.) In the absence of timely objection, the claim is forfeited. (Ibid.; see also People v. Noguera (1992) 4 Cal.4th 599, 638-639.)
Here, defendant concedes that he did not object and request admonitions. And he does not argue that an admonition would not have cured the harm. Nor could he. It is conceivable that, if asked, the trial court could have admonished the jury to disregard the prosecutor’s supposed evidentiary mischaracterizations and rely on the evidence, rather than the prosecutor’s statements, for the facts. Had defendant so requested, we would be in a position to review the effect of a grant or denial of the request.
Defendant’s alternate claim of ineffective assistance of counsel fails because he does not show prejudice from counsel’s failure to object, i.e., he has not established a reasonable probability of a more favorable verdict if defense counsel had objected to the prosecutor’s remarks. (Strickland v. Washington (1984) 466 U.S. 668, 697 [when an ineffective assistance of counsel claim can be resolved on lack of prejudice, a reviewing court need not determine whether counsel’s performance was deficient].)
The essence of defendant’s point is that the victim testified that defendant admonished her against reporting the molestation but the prosecutor argued that the victim testified that defendant admonished her to acquiesce to the sex acts. From there, defendant reasons that “The difference between the prosecutor’s manufactured evidence and what [the victim] said is the difference between guilt and acquittal” because he “never exerted any psychological pressure on [the victim] to perform or acquiesce to lewd acts.”
But defendant’s point rests upon there being a distinction between admonishing against reporting and admonishing to acquiesce. As we have explained, there is no legal distinction for purposes of duress. Thus, had the prosecutor argued that the victim had testified that defendant admonished her against reporting the molestation and the admonishment supported a finding of duress, the jury would have been justified in finding duress. In short, the supposed misstatement did not make the difference between guilt and acquittal. There is therefore no reasonable probability that, but for the supposed misstatement, the result of the trial would have been more favorable to defendant.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.