Opinion
E052599
09-28-2012
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO ORTEGA MORENO, Defendant and Appellant.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Emily R. Hanks, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. RIF149279)
OPINION
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
Jane Does 1 and 2 disclosed to their mother that they had been touched inappropriately by their grandfather, defendant Humberto Ortega Moreno, in 2009. During an interview by the Riverside County Assessment Team (RCAT), Jane Doe 1 described several incidents. Jane Doe 2, the sister of Jane Doe 1, denied any actual touching, despite numerous attempts by defendant, explaining she had gotten away. At trial, both girls testified to numerous incidents of molestation. Defendant was convicted of committing two counts of lewd and lascivious acts by duress (Pen. Code, § 288, subd. (b)(1)) against Jane Doe 1, and two counts of lewd and lascivious acts (§ 288, subd. (a)) against Jane Doe 2, following a trial by jury. The jury also found that defendant committed the offenses against multiple victims. (§ 667.61, subd. (e)(5) ["one strike law"].) Defendant was subsequently sentenced to an aggregate term of 30 years to life, and appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that (a) there is insufficient evidence of duress to support the convictions for violations of section 288, subdivision (b)(1) in counts 1 and 2, and (b) the sentence under the one-strike (§ 667.61, subd. (e)(5)) violates ex post facto principles. We modify the convictions for counts 1 and 2 to reflect convictions for the lesser included offense of section 288, subdivision (a) and remand for resentencing.
BACKGROUND
T.M. is the mother of Jane Doe 1, who was born in 2000, and Jane Doe 2, born in 1999. T.M. is married to the defendant's son, J.M. T.M. has three children by J.M., Jane Doe 1, Jane Doe 2, and J., and three other children. The defendant is the grandfather of Jane Does 1 and 2.
Between 2006 and 2007, T.M. and J.M. lived in Fontana. At some point in 2008, they lived with the defendant and his wife. They stayed with the defendant's family because T.M.'s then teenage daughter R. had been raped; R.'s boss, who knew where the family lived, had followed her home and raped her. R. suffered from anxiety attacks as a result and the family moved from San Bernardino County to T.M.'s mother's house for a time, then to the defendant's home, and in approximately June 2008, they moved to their own residence. Between 2006 and 2009, T.M. left Jane Does 1 and 2 with defendant while she was at work, or the defendant would pick them up and take them to his house.
On January 23, 2009, as T.M. drove with her daughters to her sister's house, Jane Doe 1 talked about a teacher who warned students of a person who was impersonating a police officer to pull people over. In response to these comments, T.M. talked to her daughters about strangers and asked if anyone ever touched them in a way that made them feel uncomfortable. T.M. gave an example of an inappropriate touching by a stranger pretending to be a friend, and rubbed Jane Doe 1's leg. When T.M. did this, Jane Doe 1's eyes got big, alarming T.M. Jane Doe 1 then disclosed that her grandfather (the defendant) touches her.
After further questioning, Jane Doe 1 disclosed that defendant had touched her on her "twinkie," the word she used to describe her vagina, that he put his hands in his pants and made her squeeze his "twinkie", and that while she was at her grandparents' house on a previous weekend, he had put her on her belly, pulled down her pants, and put his "twinkie" on her butt. When they arrived at T.M.'s sister's house, T.M. contacted the police to make a report. After T.M. obtained a restraining order against defendant, Jane Doe 2 disclosed to her older sister R. and her mother that she, too, had been inappropriately touched by defendant.
On February 10, 2009, both Jane Doe 1 and Jane Doe 2 were interviewed by Sara Walker, a Child Protective Services (CPS) interviewer for RCAT. During the interview, Jane Doe 1 described multiple incidents in which defendant touched her vaginal area with his hands, squeezed her "twinkie" inside her pants, and licked her ear. The first incident occurred at Jane Doe's house in Fontana. Defendant brought donuts to the house in the morning, sat Jane Doe 1 on his lap, and touched her "twinkie." A few weeks later, he fondled her again and licked her ear. On one occasion, he lay down on a couch with Jane Doe 1, pulled his pants down and made her squeeze his penis. Jane Doe 1 could not get away because he was strong, but she said she had to use the restroom and moved away.
The videotapes of the interviews were played for the jury.
On another occasion, in the bedroom of one of his sons, defendant put Jane Doe 1 on her tummy on the bed, pulled his penis out, and rubbed his penis against her buttocks. He stopped when Jane Doe 2 entered the room. Defendant never said anything to Jane Doe 1 about not telling anyone. Jane Doe 2 disclosed to Jane Doe 1 that something had happened to her also.
Jane Doe 2 was also interviewed by the CPS worker. Jane Doe 2 informed Walker that defendant would attempt to touch her, but she would make up a reason to get away. Jane Doe 2 described how defendant would try to stick his hands down her pants, but indicated that she always got away. Defendant's hands got inside her pants only once.
Defendant was charged with two counts of lewd and lascivious acts by force or duress upon a child under the age of 14, respecting Jane Doe 1 (§ 288, subd. (b)(1), counts 1, 2), and two counts of lewd and lascivious acts upon a child under the age of 14, respecting Jane Doe 2. (§ 288, subd. (a), counts 3, 4.) The information further alleged that defendant committed the sexual offenses against more than one victim, within the meaning of section 667.61, subdivision (e)(5).
Defendant was tried by a jury. During the trial, Jane Doe 2 described at least 80 incidents of molestation commencing when she was seven and lived in Fontana. She testified that he would touch her private parts while others were in another part of the house, and he would touch her both over the clothes and under her clothes. Defendant used his mouth to touch her mouth and "the part where you go pee." Jane Doe 2 indicated that four incidents occurred in the bathroom of their house in Fontana and other incidents occurred in the garage. Defendant's mouth touched Jane Doe 2's "pee part" approximately eight or nine times.
Defendant also touched Jane Doe 2's "pee part" with his penis in his bedroom when she was eight years old, approximately nine times. Jane Doe 2 was afraid that if she did not go with her grandfather, her mother would tell her to listen to him, and she felt she could not disobey him. However, defendant never said anything to her during the incidents. Jane Doe 2 did not tell RCAT interviewer Walker about these incidents because she was scared, she is "new to this" and is shy. She denied making different statements during the recorded RCAT interview.
At trial, Jody Ward, a clinical forensic psychologist, explained that victims of molest frequently give delayed unconvincing reports, which are a part of a pattern of behaviors described as Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Ward described a perpetrator's statement to a child not to tell or the perpetrator might get into trouble could be viewed as a threat to a child to keep the secret. She also testified that a child will accommodate the sexual abuse just because that is what the child feels the need to do. However, the theory represents a pattern of behaviors that many children who have been abused exhibit, which helps to understand why children do what they do after being sexually abused. The patterns are not present in every case. Dr. Ward could not give any opinion about whether child sexual abuse actually occurred in this case.
During the defense case in chief, several character witnesses testified that they had never seen the defendant doing anything inappropriate with either of the victims, had never seen the defendant take either victim into a room.
The jury returned guilty verdicts on all counts and made a true finding on the multiple victim allegation. Defendant was sentenced to an aggregate state prison term of 30 years to life and timely appealed the convictions.
DISCUSSION
1. Sufficiency of Evidence of Duress
Defendant was convicted in counts 1 and 2 of lewd and lascivious acts upon a child under the age of 14 by force, violence, duress, menace, and fear of immediate and unlawful bodily injury. During summation, the prosecutor argued that the People relied on the theory that the acts were committed by duress. Jane Doe 1 had testified that defendant never said anything to her during any of the incidents, but she had never told anyone about the molestations because she was afraid of him. Defendant argues that there is insufficient evidence of duress to support the convictions for counts 1 and 2. We agree.
We assess the sufficiency of evidence by reviewing the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781, 61 L.Ed.2d 560].) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Veale (2008) 160 Cal.App.4th 40, 46 [Fourth Dist., Div. Two], citing People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 288, subdivision (b)(1) prohibits the commission of lewd and lascivious acts upon a child under 14 by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person. "Duress," as used in section 288(b)(1), 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. (People v. Leal (2004) 33 Cal.4th 999, 1004.) The legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim. (People v. Soto (2011) 51 Cal.4th 229, 246.)
Because duress is measured by an objective standard, a jury could find a defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to the behavior. (People v. Soto, supra, 51 Cal.4th at p. 246.) In the context of lewd acts with a child under 14, it is the defendant's menacing behavior that aggravates the crime and brings it under section 288, subdivision (b). (Soto, at p. 243.) Thus, the focus must be on the defendant's wrongful act, not the victim's response to it. (Id. at p. 246.)
Duress involves psychological coercion. (People v. Senior (1992) 3 Cal.App.4th 765, 775; see also People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238.) Physical control can create "duress" without constituting force. (Senior, at p. 775; People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) Although there is some overlap between what constitutes duress and what constitutes force, the terms are not synonymous. (People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. 9 [disapproved by People v. Soto, supra, 51 Cal.4th at p. 248, to the extent it suggested that consent of a victim is a defense to the charge].) Duress can be established only if there is evidence that the victim's participation was impelled, at least partly, by an implied threat. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.)
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, supra, 95 Cal.App.4th at pp. 1319-1320.) The total circumstances, including the age of the victim, and her relationship to defendant are factors to be considered in appraising the existence of duress. (People v. Veale, supra, 160 Cal.App.4th at p. 46.) Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. (Ibid.) However, the victim's fear of the defendant alone does not establish duress. (People v. Espinoza, supra, 95 Cal.App.4th at p. 1321.)
In Espinoza, supra, the victim was too scared to do anything when the defendant molested her, and was reluctant to report the offenses because she was afraid he would come and do something if she reported the crimes. (People v. Espinoza, supra, 95 Cal.App.4th at p. 1293.) On appeal, the reviewing court in Espinoza concluded that the mere fact defendant was the victim's father and was larger than she, combined with her fear and limited intellectual level, were insufficient to support a determination that the acts of molestation were accomplished by duress. (Id. at pp. 1321-1322.) The court's conclusion was based on the absence of any direct or implied threat of force, violence, danger, hardship or retribution. (Id. at p. 1321.) As the court observed, "While it was clear that L. was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her." (Ibid.)
We have found only one case holding that there is sufficient evidence of duress without evidence of an express or implied threat, based solely on evidence that victims were alone with defendant in his house, and without any external source of aid or defense. However, that case has been depublished upon a grant of review on instructional issue. (People v. Rouse (2012) 203 Cal.App.4th 1246, review granted May 23, 2012, S201479.) In all other published decisions we have found, there have been threats—direct or implied—or coercion, in addition to the victim's vulnerable circumstances and the defendant's relationship to the victim, to justify the conviction of the aggravated offense.
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While the conduct of the defendant in this case is somewhat similar to that of the defendant in Espinoza, the victim in that case was 12 years old, whereas Jane Doe 1 was between six and nine years old. As the court acknowledged in Espinoza, 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, 95 Cal.App.4th at p. 1320, quoting People v. Schulz, supra, 2 Cal.App.4th at p. 1005.)
In People v. Veale, supra, 160 Cal.App.4th 40, the victim was six or seven years of age when the defendant, her stepfather, began molesting her. The victim was subjected to acts similar to those committed against Jane Doe 1 in the current case. The victim in Veale testified that she did not tell her mother about the molestation because she thought her mother would not believe her, and the victim was afraid something might happen to her or her mother if she disclosed the molestation, although he never made such threats to the victim. This court concluded there was sufficient evidence of duress to support convictions under section 288, subdivision (b)(1), because on at least one occasion the bedroom door was locked, the defendant was an authority figure in the household, and the victim feared that if she told anyone about the molestations the defendant would kill her or her mother. (Veale, at p. 47.)
The present case is quite similar to Veale. The victim was quite young, much younger than the victim in Espinoza, supra. Her age and the disparity of physical size between Jane Doe 1 and the defendant made Jane Doe 1 more susceptible to coercion due to the defendant's position of authority in the family. And while the defendant may not have locked the bedroom door, he did take steps to isolate her from others, making her more vulnerable to his unlawful acts. Jane Doe 1 testified that on more than one occasion, the defendant sent Jane Doe 2 out of the room to either check the time or take the dog outside, which isolated Jane Doe 1 and made her more vulnerable. One such occasion occurred on a bed in the bedroom of the girls' uncle, the defendant's other son, while watching television. The defendant sent Jane Doe 2 out of the room, isolating Jane Doe 1, and pulled her over to him, pulled down her pants, touched her vaginal area with his hand and pressed his penis against her butt. Jane Doe 1 also testified that he made her grab his penis.
This physical control, while not sufficient to constitute "force," is sufficient to constitute duress, where the defendant "took advantage not only of his psychological dominance as an adult authority figure, but also of his physical dominance to overcome her resistance to molestation. This qualifies as duress." (People v. Schulz, supra, 2 Cal.App.4th at p. 1005.)
There is substantial evidence to support the convictions under section 288, subdivision (b)(1). 2. Appellant's Sentence Does Not Violate Ex Post Facto Principles.
Because the jury made a true finding that the defendant committed sexual offenses against more than one victim (§ 667.61, subd. (e)(5) [multiple victim enhancement]), defendant was sentenced to mandatory consecutive terms of 15 years to life for counts 1 and 2. (§ 667.61, subd. (i).) Defendant argues that because the testimony regarding the Fontana incidents were not proven to have occurred after November 8, 2006, the effective date of Proposition 83, his sentence violates ex post facto principles. We disagree.
Proposition 83 was passed on November 7, 2006, and became effective on November 8, 2006. Among other changes, the initiative amended subdivision (i) of the one strike law by providing for mandatory consecutive sentences for offense that results in a conviction if the crimes involve separate victims or involve the same victim on separate occasions. (§ 667.61, subd. (i).) That provision expressly applies "[f]or any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c)." Section 667.61, subdivision (c)(4), relates to lewd or lascivious acts in violation of subdivision (b) of section 288. The convictions for counts 1 and 2, relating to Jane Doe 1, were the convictions which made defendant eligible for mandatory consecutive terms of 15 years to life.
Both the California and United States Constitutions proscribe ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) These ex post facto prohibitions apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42-43 [110 S.Ct. 2715, 111 L.Ed.2d 30]; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)
In Alvarez, supra, the defendant was charged with multiple offenses, committed both before and after the enactment of section 667.61, subdivision (e)(5). (People v. Alvarez, supra, 100 Cal.App.4th at p. 1173.) The reviewing court held that application of the section to a crime that preceded its enactment was ex post facto. (Id. at p. 1178.) However, it concluded that use of that crime as part of the multiple offenses finding under section 667.61, subdivision (e)(5), did not violate ex post facto, because at the time of the offense which followed the enactment of the statute, the provision was in effect. (Alvarez, at p. 1178; see also People v. Acosta (2009) 176 Cal.App.4th 472, 476-477 [Fourth Dist., Div. Two].) The appellate court in Alvarez reasoned that because the defendant raped the second victim after the effective date of section 667.61, subdivision (e)(5), the law was not applied to conduct occurring before its adoption. (Alvarez, supra, 100 Cal.App.4th at p. 1179.) We agree with this reasoning.
The sexual offenses against Jane Doe 1spanned several years between 2006 and 2009, while all the offenses committed against Jane Doe 2 were alleged to have been committed between January 2008 and February 2009. Although the Fontana incidents involving Jane Doe 1 are asserted to have predated the enactment of Proposition 83, all of the offenses committed against Jane Doe 2 were committed after the enactment of Proposition 83. The multiple victim allegation arose when the crimes against the second victim were committed, not when the crimes against the first victim were committed. Because all of the offenses against the second victim were committed after the enactment of the amendment to section 667.61, subdivision (e)(5), there is no violation of ex post facto principles.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: RICHLI
J.
CODRINGTON
J.