Opinion
E066202
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL TREJO, Defendant and Appellant.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1400754) OPINION APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Daniel Trejo raped and molested his stepdaughter Jane Doe from the time she was six years old until she was 13 years old.
Defendant was found guilty of aggravated sexual assault of a child under 14 years of age (Pen. Code, § 269, subd. (a)(1); count 1) and two counts of forcible lewd conduct on a child under the age of 14 years (§ 288, subd. (b)(1); counts 2 & 3) committed between November 3, 2008, and November 2, 2010. Defendant was sentenced to 15 years to life plus a determinative term of 12 years to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims on appeal that the trial court breached its sua sponte instructional duty and violated his federal due process rights by failing to instruct the jury (1) with the lesser included offense of unlawful sexual intercourse with a minor three years younger (§ 261.5, subd. (c)) for count 1; and (2) with the lesser included offense of non-aggravated lewd act (§ 288, subd. (a)) for counts 2 and 3.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
Doe was born in November 1997. C.T. (Mother) was Doe's mother. Defendant, who was born in January 1970, was Doe's stepfather. Defendant was the father of Mother's other three children.
Mother met defendant in 2000 and moved in with him in 2001. Mother and defendant were married in 2001. They moved to Riverside in 2004. Defendant was a father figure to Doe.
One morning, when Doe was around 11 years old, Mother had made breakfast for defendant but he had not come downstairs. She called for him and he responded from what sounded like Doe's bedroom. She confronted Doe later but Doe denied that anything had happened with defendant.
In February 2014, Mother pulled Doe out of school early; Mother had a feeling that defendant had been touching Doe although she had no proof. Mother also had been told that defendant had abused two of his nieces; Mother told Doe. Mother asked Doe to please tell her if defendant had touched her. Doe responded, "Yes." Doe had fear on her face and started crying. She hugged Mother for a long time.
Doe told Mother the first time defendant touched her was when Mother went to Mexico for a funeral when Doe was five years old. Doe provided no further details. Mother spoke with the police the following day.
Doe was 17 years old at the time of trial. Between November 3, 2008, and November 2, 2010, she would have been 11 and 12 years old. She had always known defendant as her father. Doe recalled the first time that defendant touched her was when her mother went to Mexico while they still lived in Bellflower; she would have been five or six years old. He got on top of her and "lightly" touched her over her clothes. He touched her breasts.
When they moved to Riverside, she was seven years old. She had her own room. Whenever Mother left the house, defendant would come to her bedroom and try to take her pants off. She would tell him no but she could not stop him. Once he took off her pants, he would put his penis or finger in her vagina. He would move his hand or penis in and out. She tried to move his hand, but she could not move it. He would tell her not to tell anyone. She would be sore for a few hours afterward.
While Doe was in elementary school, defendant would put his finger inside her vagina approximately one time per week. On occasion, he would stop when she told him to but would leave the room mad.
Defendant put his penis in her vagina multiple times. This usually occurred while they were in her bedroom. The touching occurred during the day and at night. She would tell him to leave her alone. When she was nine or 10, she would "freeze" until it was over. When she was 11 years old, she would tell him no and try to fight him.
When she was 12 years old, Mother went to the store and Doe was in her room playing video games. Defendant came into the room and tried to take her pants off. He tried to get on top of her but she started fighting him. She kept moving his hands and pulling up her pants. He finally gave up and walked out.
The last time that defendant put his penis in her vagina was when she was in sixth grade. She would have been 11 or 12 years old. She had been in her brother's room. Defendant pulled her pants down and put his penis in her vagina while they were standing up. Doe was faced away from defendant. She said it hurt. She tried to get away but he held her arms so that she could not move. Defendant instructed her to be quiet. No one else was at home. He eventually pulled his penis out of her and walked away. She saw something white on his penis. She was sore for one day. When she was in sixth grade, he put his penis in her vagina once or twice each week.
When Doe was in sixth grade, defendant came into her room. He grabbed her arm and put Doe's hand in his pants; he put her hand on his penis. At the same time, he put his finger in her vagina. He used his other hand to move Doe's hand up and down on his penis. This lasted a few minutes and then he walked out. She did not say anything to defendant because she knew he would not listen.
When she was in sixth grade, defendant would touch her breasts under her bra. Prior to sixth grade, defendant had touched her breasts several times. When she was in elementary school, defendant had touched his mouth to her breasts and vagina. On one occasion, she had been in the shower while no one else was home. When she got out, he instructed her to lay down in a large closet. He put his mouth on her vagina. She wanted to run but she knew she would not get away.
On another occasion, when she was in sixth grade, he told her to go inside the closet. He told her to get on her knees and he put his penis in her mouth. He held her head and moved it back and forth on his penis. She got him to stop by backing away from him and shaking her head. She refused to open her mouth. He put his penis to her lips and told her to open her mouth. He did not ejaculate.
When she was younger she would not fight back as much because she was confused. She did not scream or hit him. She started to fight back more as she got older.
Defendant told her not to tell anyone. She did not tell Mother while this was happening. Doe eventually told her friends when she was in high school. Defendant told her not to tell but never threatened her. Doe still loved defendant as her dad despite what he was doing to her.
She felt horrible when she eventually told Mother. She blamed herself that she did not say something sooner. She had not said something in the past because she was worried that her family would be broken apart. She finally told Mother because she could no longer keep it a secret.
A pretext phone call was made to defendant from Doe. Doe told defendant that she was in the counselor's office at school because the school was concerned she had been upset. She told him that she needed to talk to him. Doe told defendant a friend had talked to Doe about her friend's uncle touching her friend, "just how you did to me." Defendant responded that "if you say anything . . . our whole future is over." He said it was behind them and he had apologized. He told her she should just move on.
Doe continued to tell defendant that she needed to talk to someone about it. He repeatedly told her that the family would lose their house and he would lose his workshop. Defendant also told Doe that it was her fault and that she had a lot to do with "this." She asked him to apologize. He responded, "I'm—I'm sorry, okay? This happened and . . . I'm sorry, you know? For—for whatever might have happened, but you know that you're more to blame than I am." Defendant refused to go into detail about what had happened.
Each time Doe accused him of touching her, he responded that she would destroy their lives if she told anyone. He promised that if she gave him time, he would sell everything and put it in Mother's name and then she could tell someone. He continued to blame Doe and told her that Mother would be mad at her. He accused Doe of recording the conversation. He told her to make up something as to why she was upset to tell the counselor.
L.S. was one of Doe's best friends throughout middle school and high school. When L.S. was 14 or 15 years old, when she was a sophomore and Doe was a freshman, Doe told her that defendant had raped her. Doe had fear in her eyes and appeared to need help. L.S. kept it a secret. E.S. was L.S.'s sister. She was also best friends with Doe during middle and high school. When E.S. was a freshman or sophomore in high school, Doe told her that defendant had raped her between the ages of six and 12. Doe was crying. E.S. told Doe to tell Doe's mother. Doe did not want to tell because she did not want to ruin their marriage. E.S. kept it a secret.
Riverside Police Detective Laura Ellefson interviewed Doe on February 11, 2014. Doe was very reluctant to talk and it was clear she did not want to talk about the incidents with defendant. At one point, after talking about defendant putting his penis in her vagina, she started to shut down. Doe indicated he laid her down on the bed and tried to insert his penis in her vagina three or four times; defendant achieved insertion twice and it hurt. The interview ended; Doe never told Ellefson about Doe touching his penis with her mouth or defendant touching her vagina with his mouth. Doe did not tell her about any other incidents. Doe described the incident when defendant penetrated her vagina that he used one hand to hold her down.
In Detective Ellefson's experience, most incidents of sexual abuse were late-reported. It was very rare that a child reported the incidents when they happened. Further, in situations involving continuous sexual abuse, it was common for the victim to only partially disclose the abuse at first and then reveal further details. A sexual assault exam was not performed on Doe because it was unlikely to show any evidence of trauma since the last incident had occurred four years prior.
Mother denied that she ever contacted defendant's family and asked for money to have Doe recant her allegations. She did not e-mail defendant's sister and tell her if she paid Mother $100,000, she would have Doe say that defendant never touched her. The e-mail had Doe's name spelled incorrectly. Mother suspected defendant had her e-mail password because he told her he was tracking her phone.
Defendant had filed for divorce in 2010 because he thought Mother was cheating on him; he dismissed it. In January 2014, he again filed for divorce and threatened to take everything. In July 2011, Mother filed a restraining order against defendant claiming that he threatened to shoot her. She removed the restraining order because defendant promised to change. No charges were brought against defendant for the nieces Mother had heard he molested. Mother had always been afraid of defendant throughout their marriage.
B. DEFENSE
Defendant called Riverside Police Officer Shadee Hunt, who wrote a police report in the case on February 4, 2014, based on speaking with Doe in Doe's home. Doe never said that defendant had threatened her. Doe never told her that defendant penetrated her vagina with his penis every week. She never spoke about forcible oral copulation. Doe did tell Officer Hunt that the abuse started when she six years old and each time he told her not to tell Mother.
Riverside Police Investigator Susan Zappia confirmed the e-mail regarding recanting Doe's testimony in exchange for money came from Mother's e-mail address. It was sent on April 27, 2014.
Defendant's niece testified; she had spoken with Doe in 2013. Doe had told her that Doe did not like defendant because he tried to act like Doe's dad and punish her.
Defendant testified on his own behalf. He denied he ever touched Doe inappropriately or tried to have sex with her. When asked why he said in the pretext phone call that if she said anything their future was over, defendant responded he apologized to Doe because he had accused her in 2010 of knowing that Mother was having an affair with their neighbor and Doe never told him. He had gotten angry with her. Defendant also got mad at Doe in 2014 for failing to tell him that Mother was having another affair. He blamed Doe for not telling him and for the divorce. Defendant admitted that he had been spying on Mother's phone; he denied he had access to her e-mail. Defendant filed for divorce in 2014 because of the second affair.
Defendant claimed that even though Doe talked about inappropriate touching in the pretext phone call, he was only apologizing for the arguments they had in the past. Defendant believed that he would go to jail because of their arguments.
DISCUSSION
A. INSTRUCTIONAL ERROR
Defendant claims the trial court breached its sua sponte instructional duty and violated his federal due process rights by failing to instruct the jury (1) with the lesser included offense of unlawful sexual intercourse with a minor three years younger (§ 261.5, subd. (c)) for count 1; and (2) with the lesser included offense of non-aggravated lewd act (§ 288, subd. (a)) for counts 2 and 3.
1. ADDITIONAL FACTUAL HISTORY
The information charged defendant in count 1 as follows: "The District Attorney of the County of Riverside hereby accuses DANIEL TREJO of a violation of Penal Code section 269, subdivision (a), subsection (1), a felony, in that on or about November 3, 2008, through and including November 2, 2010, in the County of Riverside, State of California, he did willfully and unlawfully commit a violation of Penal Code section 261, subdivision (a), subsection (2) or (6), RAPE, upon JANE DOE, a child who was under 14 years of age and seven or more years younger than the defendant." Counts 2 and 3 charged violations of section 288, subdivision (b)(1), which were alleged to have occurred between November 3, 2008, and November 2, 2010, and defined as "willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of JANE DOE, a child under the age of fourteen years, by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child."
During the discussion of the instructions, the trial court noted that a lesser included offense to count 1 would be rape if the jury did not find that Doe was under 14 years of age at the time of the charge of forcible rape. Defense counsel responded, "Since the defense theory is not that [defendant] had a sexual relationship with (Jane Doe) when she was older, but it's that he did not engage in sexual conduct at all, I do not believe that one will be necessary." Defense counsel later confirmed he was not asking for an instruction on rape. Defense counsel wanted the jury instructed on simple assault on all counts. Defense counsel had no opinion on the possibility of section 288.7, subdivision (a) being a lesser included offense; he only requested that simple assault be given.
The jury was instructed regarding aggravated sexual assault, which was based on defendant raping Doe, who was under the age of 14, and was at least seven years younger than defendant. The sexual assault was based on rape. The jury was instructed that it had to find that "defendant accomplished the intercourse by force, violence, duress, menace or fear of immediate or unlawful bodily injury."
The jury was also instructed on lewd and lascivious conduct by the use of force or violence. Such conduct consisted of either touching of the child's body or willfully causing the child to touch the defendant's body. Further, "[i]n committing the act, the defendant used force, violence, duress, menace, or . . . fear of immediate and unlawful bodily injury of the child or someone else." The jury was also instructed on the lesser offense of simple assault for all counts, which only required a slight touching.
Finally, the jury was given an unanimity instruction that as to all counts, they could decide the People had proved defendant committed at least one act, and the jury agreed as to that one act; or they could agree that he committed all of the acts alleged during the time period. The People did not argue a specific act.
2. INVITED ERROR
The People contend defendant's counsel invited the error by the trial court. The People insist that defendant's counsel advised the trial court that defendant's counsel did not want any lesser included instructions given. However, the record does not clearly show that trial counsel sought to have the jury ignore all lesser included offenses. Defense counsel did not dispute the age difference so defense counsel stated an instruction on rape was not necessary. However, defendant's counsel sought to have the jury instructed with simple assault. The record does not support invited error.
3. ANALYSIS
The trial court must instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154; see also People v. Lopez (1998) 19 Cal.4th 282, 287-288.) This obligation includes instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (Breverman, at p. 154.) Whenever evidence that the defendant is guilty only of the lesser offense "is 'substantial enough to merit consideration' by the jury," instructions on the lesser included offense are required. (Id. at p. 162.) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Ibid.)
"We employ two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime." (People v. Moon (2005) 37 Cal.4th 1, 25-26.)
We review the failure to instruct on a lesser included offense de novo, viewing the evidence in the light most favorable to defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
a. Forcible Rape
Section 269 provides: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261." Section 261 provides: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person o[f] another." "The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (People v. Griffin (2004) 33 Cal.4th 1015, 1027.)
Section 261.5, subdivision (a) defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor." It further provides that a " 'minor' " is a person under the age of 18 years and an " 'adult' " is anyone over the age of 18. Subdivision (c) provides that "any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony."
We need not decide whether the charged offense of aggravated sexual assault necessarily includes the lesser offense of unlawful sexual intercourse. A court is not required to instruct on a lesser included offense "when there is no evidence the offense was less than that charged." (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) Here, there is no evidence that defendant did not use force or duress to accomplish an act of sexual intercourse against Doe.
"Force" requires that the sexual intercourse be accomplished against the victim's will. (People v. Griffin, supra, 33 Cal.4th at pp. 1027-1028.) Subdivision (b) of section 261 provides that "duress" is "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress."
Here, the evidence consisted of Doe's testimony that defendant had raped her several times. She described one incident when she was in sixth grade, and either 11 or 12 years old, when she was in her brother's room. Defendant pulled down her pants and inserted his penis into her vagina while they were standing up. She tried to get away but he held down her arms so that she could not move. Defendant also instructed her to be quiet.
Doe told Detective Ellefson that when she was 11 or 12 years old, defendant entered her bedroom. He "pushed" her down on the bed and took her pants and underwear down. He tried to insert his penis in her vagina several times but it only entered two times.
Doe further testified that when defendant tried to take her pants off (she did not give a date), she would tell him no; she could not stop him. She also testified that while in elementary school, when defendant put his penis in her vagina, she would tell him to leave her alone. Although she testified that when she was nine or 10 she would "freeze" until it was over, when she turned 11 years old, she would try to fight him.
Hence, during the time period alleged in the information, when she was 11 and 12 years old, Doe testified that she fought back and tried to stop defendant. There was no evidence of lack of force when defendant had sexual intercourse with her.
Moreover, even if the use of force was not clear for all of the incidents, the evidence showed the acts of sexual intercourse were committed by duress. Here, defendant had been Doe's stepfather since she was the age of three and she considered him her father. Defendant would wait until the house was empty to assault Doe. Doe explained that when she was younger, she was confused by what defendant was doing to her. Doe also testified there were times she did nothing because she knew he would not listen to her. Defendant told her not to tell anyone.
Although there were no direct threats of violence, the jury could reasonably conclude that Doe was afraid of defendant. Defendant held her down during one sexual encounter and she was sore after the incident. Further, Doe could reasonably conclude that if Mother found out, Mother would be upset. This was corroborated by the pretext phone call. Defendant continually threatened her during the call that if she told she would lose everything and that she was to blame for the incidents. Defendant had a special relationship with Doe as the only father she ever knew, and Doe admitted she still loved defendant despite what he had done to her. Doe clearly engaged in sexual intercourse under duress.
Defendant contends that Doe described, generically, incidents of vaginal intercourse when she was in sixth grade but there was no mention of any type of force used. Further, there were no implied threats. In the pretext phone call, Doe never described that defendant used force or threats. As set forth ante, Doe consistently testified that she would fight defendant and try to push him off of her during the time period alleged. She explained that defendant told her not to tell anyone. The acts against Doe were committed with force or duress.
Defendant argues that Doe testified regarding an incident of defendant's penis penetrating her vagina while she tried to push him away as occurring in sixth grade. Defendant argues that since school "usually" starts in August or September, the abuse could have occurred prior to the time period alleged, which was November 3, 2008. However, Doe affirmatively responded that this event occurred when she was 11 or 12 years old. Doe would have turned the age of 11 in November 2008. Also, defendant only speculates that Doe's sixth grade started in August or September but no evidence supports this claim. The record reasonably supports that the incidents of defendant putting his penis in her vagina while she tried to fight him off occurred during the alleged time period.
The evidence that defendant did not use force or duress was not substantial enough to merit consideration by the jury.
b. Lewd And Lascivious Acts
Section 288, subdivision (b)(1), provides that it is a crime to willfully and lewdly commit any lewd or lascivious act upon a child who is under the age of 14 years with the intent of arousing the sexual desires of the actor or the child "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person."
Section 288, subdivision (a), provides that it is a felony for a person to willfully and lewdly commit any lewd or lascivious act upon the body of a child who was under the age of 14 years with the intent of arousing the sexual desires of the actor or the child. Numerous courts have concluded that section 288, subdivision (a) is a lesser included offense of section 288, subdivision (b)(1). (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1318-1319; People v. Ward (1986) 188 Cal.App.3d 459, 472.)
"For purposes of section 288, subdivision (b), 'duress' 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.]' [Citation.] ' "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." [Citation.]' [Citations.] '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.' " (People v. Veale (2008) 160 Cal.App.4th 40, 46, italics omitted.) "[A]s a factual matter, when the victim is as young as this victim and is molested by her father 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, overruled on other grounds as stated in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
As used in section 288, subdivision (b)(1), the term "force" means " 'physical force substantially different from or substantially in excess of that required for the lewd act.' " (People v. Quinones (1988) 202 Cal.App.3d 1154, 1158, overruled on other grounds in People v. Soto, supra, 51 Cal.4th 229.)
As for the lewd acts committed against Doe, there were several. She described that he would put his finger in her vagina approximately one time each week while she was in elementary school. She would tell him to stop and on occasion he would stop. She described an incident when she was 12 years old and defendant entered her room while she was lying on her bed. Defendant forced her hand into his pants and held it against his penis. She did not say anything because she knew he would not listen.
She indicated that defendant touched her breasts several times over and under her clothes. She described an incident when she had just gotten out of the shower and he instructed her to lay down on the floor. He put his mouth on her vagina. She wanted to run, but she knew she would not get away. She would wonder why he was doing this to her. In sixth grade, he forced his penis into her mouth and moved her head back and forth. She pushed away and closed her mouth. He put his penis on her lips and demanded she open her mouth.
Although not all of the incidents described by Doe involved the use of force, the evidence still established duress. Doe was only 11 and 12 years old and defendant was essentially her father. When she had tried to stop defendant, he would not listen. She indicated either that she was confused by what he was doing because he was her father, or she wanted to tell him to stop, or run away, but she knew it would not work. Defendant would threaten her that the family would be destroyed. Doe loved defendant as a father. These circumstances, that she tried to stop him but he refused, and that he held a position of authority in her life, contributed to her feeling of duress. No evidence supported that the lewd acts were committed without duress.
4. PREJUDICE
The failure to instruct on a lesser included offense is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 165-166.) Here, any error in failing to give the lesser included offenses was harmless.
As for count 1, defendant contends that any evidence of duress was "not strong." Moreover, Doe's testimony was not compelling evidence of use of force. As for counts 2 and 3, there was no duress. Doe testified that defendant did not physically hurt her or threaten her. He continues that even though the pretext phone call may have shown some contact, it did not establish it was through use of force or violence.
As set forth, ante, the evidence of duress for all counts was strong. Further, as to count 1, Doe consistently testified the acts were committed by force. Had the jury been instructed with the lesser offenses, it is not reasonably probable the jury would have found defendant guilty of the lesser offenses.
Defendant also contends that the jury was faced with an "all-or-nothing" choice between the greater offenses and acquitting defendant. This is simply not true. If the jury had doubt as to the extent of the force or violence, or the extent of the sexual assault, it could have convicted defendant of simple assault. Based on the foregoing, defendant cannot show prejudice.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.