Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC635203
Premo, J.
A jury convicted defendant Roberto Arredondo Ramirez of one count of aggravated sexual assault of a child under 14 years of age. (Pen. Code, § 269.) On appeal, defendant argues, among other things, that there was insufficient evidence of duress to convict him of that crime. We agree and reverse the judgment.
Hereafter all unspecified statutory references are to the Penal Code.
I. Procedural Background
Defendant was charged by information with one count of aggravated sexual assault of a child (count 1) and one count of lewd acts in violation of section 288, subdivision (a) (count 2). Count 2 carried the enhancement allegation that defendant had had substantial sexual conduct with the victim within the meaning of section 1203.066, subdivision (a)(8). The jury was instructed that if it found defendant guilty of count 1 it had to find him not guilty of count 2.
The jury returned a verdict of guilty as to count 1 and, consistent with its instructions, found him not guilty of count 2. The trial court sentenced defendant to the mandatory 15 years to life in prison. (§ 269, subd. (b).)
II. FACTS
A. The People’s Case
On or about the evening of July 8, 2006, six-year-old Fatima Doe was with her mother in her mother’s bedroom when Fatima decided to go say good night to defendant and defendant’s wife Rachel. Defendant, who was 59 years old at the time of the alleged incident and weighed about 190 pounds, lived with Rachel in the house where Fatima and her parents lived. Defendant and Rachel were going to be Fatima’s godparents. Defendant had no close familial relationship with Fatima’s family. (Fatima’s mother was defendant’s son’s sister-in-law.)
Fatima knocked on the bedroom door and defendant let her in, leaving the door open a few inches. Defendant returned to the bed and lay face down, watching television. Rachel was lying on the bed next to him. Fatima first said good night to Rachel, then to defendant. She stayed for a while and watched television, sitting on the bed next to defendant with her legs hanging off the side of the bed. Rachel was on the other side of defendant. Fatima did not look to see if Rachel was sleeping. Rachel said that she was dozing off and on during the time Fatima was in the room.
Fatima testified that while they were watching television defendant started grabbing” her. Her testimony proceeded as follows:
[Prosecutor:] Where did he start grabbing you?
[Fatima:] Where I go to the bathroom. [¶] . . . [¶]
[Prosecutor:] Where you go pee or where you go poo?
[Fatima:] Pee.
[Prosecutor:] And how did he grab you where you go pee?
[Fatima:] With his finger.
[Prosecutor:] Which finger?
[Fatima:] The middle one.
[Prosecutor:] Okay. Can you tell me what he did with his middle finger?
[Fatima:] He grabbed me.
[Prosecutor:] Did he just touch you--let me ask you this. How did he grab you with his middle finger?
[Fatima:] I don’t remember.
[Prosecutor:] Did he put his middle finger inside, or just on the outside?
[Fatima:] Inside.
[Prosecutor:] Where you go pee?
[Fatima:] Yes.”
Using a doll for demonstration, the prosecutor asked Fatima, Can you show me how [defendant] touched you, using the doll? And if he touched you over your clothes, tell me it was over your clothes. And if he touched you on your skin or inside your skin where you go pee, tell me that, so I understand.” Fatima stated, Inside of the skin.” She then pulled off the doll’s pants. The doll had two holes between her legs. Fatima placed her finger inside the hole in the front.
Fatima stated that the touching hurt and that in her mind she was saying ow.” She told defendant that she didn’t like it.” She did not immediately recall how defendant responded when she told him she did not like it but he did not stop the touching. Fatima then agreed that defendant had told her she did like it.
Fatima had been gone about 10 minutes when her mother decided to go find her. Her mother came to the door of defendant’s room and saw through the opening that Fatima was sitting on the bed facing away from the door with defendant’s arm draped around her. Her mother could not see defendant’s hand. Fatima’s mother called to Fatima and Fatima immediately got up and went with her. Fatima appeared upset and scared. She then told her mother that defendant had been grabbing her. She pulled down her pants and underwear to show her and her mother found a big hair” on her skin Inside where I go pee.” Fatima was scared because of what defendant had done to her but did not want him to go to jail. Fatima’s father then learned about what had happened and the three of them went into defendant’s room to confront him. Rachel had figures of the Virgin Mary and Jesus and Fatima told the figures that defendant had touched her down there” and that it was true, not a lie.
Fatima testified that she was scared of defendant because I think he’s gonna grab me again.” She was scared of him when he had his finger inside because she thought that he was gonna always do that. But then--no.” On cross examination Fatima admitted that defendant had never touched her there before and that he had not forced her to do anything before he touched her. She disagreed, however, when defense counsel asked her, Prior to that night you weren’t scared of [defendant], were you?” Fatima said, yes, she had been scared of him but she did not know why, although she had earlier said she had not liked defendant because he hugged her too hard. Fatima admitted that defendant had never gotten angry with her or scolded her. Fatima’s father testified that prior to the touching incident, Fatima seemed to like defendant. According to her mother, Fatima loved defendant and always wanted to do nice things for him.
After the family reported the incident to the police, defendant was interviewed by the police investigators. Defendant initially denied intentionally touching Fatima in the way she had described. He said that he had tapped her and pushed her and told her to go back to her room and that he was not looking where he touched her. The police took a DNA sample from defendant and told him they would test Fatima. Defendant admitted that he was afraid they might find his DNA in the child’s vagina because I didn’t know where I was touching her.”
B. The Defense
Defendant denied that he had touched Fatima in any way other than to push her or tap her, repeatedly urging her to go back to her room. Defendant implied that the story had been concocted or embellished by Fatima’s parents who wanted to discredit him to avoid having to repay money he had lent them to help purchase their house. Defendant claimed that Fatima’s parents had promised to put his name on the title but they never did. Although his statements to the police investigators suggested that he admitted touching the child’s genitals, at trial defendant insisted that the officers’ repeated re-asking of the same questions had pressured him into saying things that were misunderstood.
III. Discussion
A. Evidence of Duress
Defendant was convicted of aggravated sexual assault by sexual penetration with a foreign object. That offense must be accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . .” (§§ 289, subd. (a), 269, subd. (a)(5).) It is undisputed that the charged act was not accomplished by force, violence, menace, or fear of bodily injury. Rather, the prosecutor relied on a theory that defendant’s act was accomplished by means of duress. Defendant argues that there was insufficient evidence to support a finding of duress. We agree that the evidence is insufficient.
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.) ‘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).) 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.) Physical control can create duress without constituting force. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) 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 a direct or implied threat of some kind. (Espinoza, supra, 95 Cal.App.4th at p. 1321.)
In Espinoza, supra,95 Cal.App.4that page 1318, a panel of this court concluded that the evidence was insufficient to establish the element of duress. In that case, the defendant was convicted of forcible lewd conduct on a child pursuant to section 288, subdivision (b), which, like section 289, subdivision (a), requires proof that the act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (Espinoza, supra, 95 Cal.App.4th at p. 1295.) The evidence was that on five occasions over a one to two-week period the defendant came into the 12-year-old 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, who was the defendant’s daughter, reported that she was scared. (Id. at pp. 1292-1293.) During one of the molestations defendant said: ‘Do you still love me’ ” and ‘Please love me.’ ” He may have cried. (Id. at p. 1295.) The trial court found the evidence sufficient to establish duress based upon the daughter’s dependence on the defendant, the disparity in their size and age, the daughter’s limited intellectual ability, and her fear of the defendant. (Id. at p. 1319.) This court determined that because there was no evidence that defendant’s lewd acts were accompanied by a direct or implied threat of any kind the evidence was not sufficient to support a conviction of section 288, subdivision (b). (Espinoza, supra, 95 Cal.App.4that pp. 1321-1322.) In this case, there is even less evidence from which one could infer that defendant’s touching of Fatima was accomplished by duress.
There is evidence that defendant held a position of trust in the victim’s life and he was certainly bigger than she. Also, Fatima was only six years old, compared to the 12-year-old victim in Espinoza, which might make her more vulnerable to coercion. But the circumstances as a whole do not reflect anything coercive. Defendant did not come to her in her room, isolate her, verbally threaten her, or hold her against her will. Fatima came to him, the door was left open, and Rachel was present on the bed next to defendant. There is no evidence of any prior molestation that might have provided psychological coercion. Fatima did say that defendant tended to hug her too tightly, suggesting that his hugs had made her uncomfortable in the past. She also stated that she had feared defendant, although she could not say why. But whatever fear or reticence Fatima might have recalled having had in the past, her conduct just prior to the incident does not reflect any lingering fear. She came to defendant on her own initiative and voluntarily got up on the bed to watch television with him. Fatima was crying and fearful after the incident but was obviously not fearful before it happened. At most, the evidence supports the conclusion that defendant took advantage of an unsolicited opportunity. There is no evidence that he used duress.
B. Evidentiary Rulings
Defendant makes several claims of error pertaining to the trial court’s evidentiary rulings. He claims that the trial court sustained objections to question about threats to the minor witness” and confronting about lying.” These arguments contain no citation to the record and no description of the questions defendants believes should have been allowed. This leaves the court to search the record for the errors he describes so vaguely. It is well established that any statement in an appellate brief concerning matters in the record must be supported by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16.) The Attorney General urges us to treat those points as having been waived and to disregard the accompanying arguments. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Defendant has filed no reply brief to explain or cure the deficiencies in his opening brief. We conclude that defendant’s inadequate briefing, coupled with his failure to reply to the People’s challenge, has forfeited the arguments on appeal.
Defendant also charges that the trial court erred in allowing the prosecutor and the prosecution witnesses to refer to vagina” or vaginal area” when they probably meant genitalia or labia. He maintains that the court erred in refusing to admit diagrams of female genitalia taken from an anatomy book. He also argues that the doll the prosecutor used for Fatima to demonstrate where she was touched was misleading because it had only two openings on the pelvic floor rather than the three (urethra, vagina, and anus) that a normal female has. All of these objections relate to defendant’s argument that there was no evidence of vaginal penetration. Indeed, Fatima’s own description was that she was touched where she goes pee.” The issue of vaginal versus sexual penetration pertains only to the enhancement alleged in connection with count 2. Accordingly, it is pertinent to our disposition.
The jury was instructed that in order to find defendant guilty of count 1 it had to find that there was sexual penetration. Sexual penetration within the meaning of section 289 is the act of causing the penetration, however slight, of the genital or anal opening . . . .” (§ 289, subd. (k)(1).) A genital” opening is not synonymous with a vaginal” opening. The vagina is only one part of the female genitalia, which also include inter alia the labia majora, labia minora, and the clitoris.” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1367.) Thus, when the jury found defendant guilty of count 1, it did not necessarily find that there was vaginal penetration.
Defendant was charged in count 2 with lewd touching in violation of section 288, subdivision (a). Lewd touching requires only a touching of the body of a child under the age of 14, with the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused. [Citations.] Touching of a sexual organ is not required.” (People v. Raley (1992) 2 Cal.4th 870, 907.) Duress is not element of this crime. Thus, the jury’s verdict would support a conviction of lewd touching and we could modify the judgment to reduce the conviction to the lesser included offense alleged in count 2. (See §§ 1181, subd. 6, 1260; People v. Navarro (2007) 40 Cal.4th 668, 676-678.) However, count 2, as charged, carried a section 1203.066 enhancement, which precludes the possibility of probation. (§ 1203.066, subd. (a).) The enhancement allegation was that defendant had substantial sexual conduct” with the victim. (Id. at subd. (b).) Substantial sexual conduct is penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (Ibid., italics added.) The jury had no opportunity to make the specific finding required to support the enhancement since it was instructed that if it found defendant guilty of count 1 it had to find him not guilty of count 2. And Fatima’s description was not anatomically specific enough that we can decide the point as a matter of law.
We conclude that the most efficient course is to allow the prosecution the opportunity to retry count 2 with the enhancement as alleged in the information. If the prosecution elects not to do so, the judgment shall be modified to reflect a conviction of lewd touching under section 288, subdivision (a) without the enhancement and the trial court shall resentence defendant accordingly.
IV. Disposition
The judgment is reversed and the matter is remanded for further proceedings. Unless the prosecution elects to retry count 2, the conviction on count 1 is reduced to the lesser offense of lewd touching (§ 288, subd. (a)) and the trial court shall resentence defendant accordingly.
We Concur: Rushing, P.J., Elia, J.