Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 07SF0614 of Orange County, Gary S. Paer, Judge.
Richard Power, 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, Robin Derman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Richard Doyle Alread was convicted of multiple counts arising from acts of sexual abuse against Janice M. and Teresa M., who were the daughters of defendant’s former live in girlfriend. Defendant challenges his convictions for forcible rape, aggravated sexual assault of a child, and forcible oral copulation, all on the ground that these crimes were not committed by use of force or duress. We conclude there was substantial evidence that each of these crimes was committed by the use of force or duress, or both, and we therefore affirm.
Statement of Facts and Procedural History
In 1991 or 1992, defendant moved into the home shared by then six year old Janice, three year old Teresa, their mother, and their grandparents. The girls’ grandparents moved out one or two years later. Defendant then assumed the role of primary authority figure in the home. Defendant asserted himself as “the main source of punishment and authority in the house,” and Janice and Teresa’s mother gave him that authority. Janice and Teresa’s mother told them, “[Defendant] is your authority figure now. You have to answer to him.” Janice felt “[p]retty helpless most of the time,” and never disobeyed defendant. Teresa was scared of defendant. Janice did what defendant told her to do because he was a big, scary man. Defendant controlled all facets of the girls’ lives, including what time they should go to bed, who could call them on the telephone, and whether they could wear makeup.
After the grandparents moved out of the house, when Janice was in the first or second grade, defendant began walking around the house while naked, and leaving pornographic materials where the girls would find them. Defendant soon began molesting Janice on a regular basis; the molestation continued in various forms over a period of about five years. Janice did not consent to those acts, did not want to perform them, and felt as though she were being made to do them: “I never felt like I had a choice in any of this. I actually felt really helpless-as a kid, I felt really helpless.” On at least one occasion, she “never moved or resisted or anything, but I was-I guess held down by fear.” Janice was never specifically threatened by defendant if she failed to do what he asked, but he told her something bad might happen to her mother, or it would upset the family if she disclosed what was happening.
During the summer before Janice entered the eighth grade, her mother and Teresa travelled to the Philippines for two weeks, leaving Janice home alone with defendant. On one occasion, after orally copulating her, defendant got on top of Janice on his bed; she was much smaller than defendant and could not move under his weight. Defendant penetrated Janice, saying, “oh, look at this. Janice is having sex,” and “yeah, I like it.” Janice did not consent to engaging in sexual intercourse with defendant; the act was against her will, but she was too scared to question him and felt she could not resist. The act of penetration caused Janice pain; defendant continued the act although she told him he was hurting her. Defendant raped Janice a second time in a similar manner while her mother and Teresa were still in the Philippines. Defendant moved out of the house a few months later.
Defendant began molesting Teresa when she was four or five years old. Defendant’s molestation of Teresa also continued regularly for several years. He caused Teresa to orally copulate him on multiple occasions. Defendant would put his hand on top of Teresa’s head and tell her how fast to move her head. Those acts were against Teresa’s will, but she felt she had no choice because defendant had total control over her as a young child. Although defendant did not physically force her, Teresa felt compelled or coerced to orally copulate him.
Janice never disclosed the abuse while she and defendant lived in the same home. Defendant told her to consider how upset her mother and family would be if anyone ever found out. Both Janice and Teresa denied any abuse had occurred when their mother asked.
At trial, a clinical and forensic psychologist testified generally regarding child abuse accommodation syndrome. The psychologist identified five factors that typically occur in cases of child sexual abuse: (1) feelings of helplessness; (2) secrecy; (3) entrapment and accommodation; (4) partial or delayed disclosures; and (5) recanting. She testified that children process and disclose sexual abuse differently than adults do, especially when there is an ongoing relationship between the child and the perpetrator, where the child is somewhat dependent on the perpetrator. It is more common for a child victim of sexual abuse to delay reporting the abuse for many years.
Defendant was charged with, and convicted of, 11 counts of committing lewd acts upon a child under age 14 (Pen. Code, § 288, subd. (a) [counts 1 10, 15]); two counts of forcible rape (id., § 261, subd. (a)(2) [counts 11 & 12]); two counts of aggravated sexual assault of a child (id., § 269, subd. (a)(1) [counts 13 & 14]); and two counts of forcible oral copulation (id., § 288a, subd. (c)(2) [counts 16 & 17]). The jury also found true that in committing counts 1 through 10, and 15, defendant had substantial sexual conduct with the victims (id., § 1203.066, subd. (a)(8)), that counts 1 through 12 and 15 through 17 were committed within the statute of limitations applicable to those counts (id., § 803, subd. (f)), that in committing counts 11, 12, and 15 through 17, defendant committed those offenses against more than one victim (id., § 667.61, subds. (b), (e)), and that in committing all counts, the lewd acts were committed against multiple victims (id., § 1203.066, subd. (a)(7)).
The trial court sentenced defendant to an indeterminate term of 75 years to life, plus a determinate term of three years in prison. Defendant timely appealed.
Discussion
I.
Standard of Review
“‘In assessing the sufficiency of the evidence, we review 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.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
II.
Counts Involving Janice – Rape and Aggravated Sexual Assault Against a Child
Defendant was convicted of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), and two counts of aggravated sexual assault against a child (id., § 269, subd. (a)(1)), based on acts of sexual intercourse with Janice. Defendant argues that there was insufficient evidence the acts of rape were accomplished against Janice’s will by means of force or duress, and that his convictions must therefore be reversed.
“Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]... [¶]... 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 or another.” (Pen. Code, § 261, subd. (a)(2).) “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.” (Id., § 269, subd. (a)(1).)
“Force,” as used in Penal Code section 261, subdivision (a)(2), is not a statutorily defined term. (People v. Griffin (2004) 33 Cal.4th 1015, 1022.) What constitutes force depends in large part on the underpinnings of the rape laws: “‘[T]he fundamental wrong at which the law of rape is aimed is not the application of physical force that causes physical harm. Rather, the law of rape primarily guards the integrity of a woman’s will and the privacy of her sexuality from an act of intercourse undertaken without her consent. Because the fundamental wrong is the violation of a woman’s will and sexuality, the law of rape does not require that “force” cause physical harm. Rather, in this scenario, “force” plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim’s will.’ [Citation.]” (Id. at p. 1025.) “The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. The Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will, can support a forcible rape conviction. [Citation.] Nor has the rape law ever sought to quantify the amount of force necessary to establish the crime of forcible rape.... [¶] The question for the jury in this case was simply whether defendant used force to accomplish intercourse with [the victim] against her will, not whether the force he used overcame [the victim]’s physical strength or ability to resist him. As we explained in [People v.] Barnes [(1986) 42 Cal.3d 284, 304], ‘Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction [of forcible rape].’ [Citation.]” (Id. at pp. 1027 1028, original italics.)
In In re Jose P. (2005) 131 Cal.App.4th 110, 116, the victim testified the defendant, who was twice her size, was on top of her when he penetrated her, and “she could not ‘pull away’ because [the defendant] was on top of her, [although] there is no evidence that [the defendant] used his weight as a means to achieve his end.” The victim also testified she told the defendant she did not want to be penetrated, and the penetration was against her will and was physically painful. (Id. at p. 117.) The appellate court concluded there was substantial evidence to support the conviction for forcible rape because “in the circumstances of this case, the force inherently involved in the penetration itself was sufficient.” (Id. at p. 116.)
In In re Asencio (2008) 166 Cal.App.4th 1195, 1204, the defendant was convicted of aggravated sexual assault of a child by means of forcible sexual penetration, in violation of Penal Code section 269, subdivision (a)(5). The appellate court determined that the force necessary to commit that crime was the same as the force necessary to commit forcible rape: “We conclude that forcible sexual penetration... is proven when a jury finds beyond a reasonable doubt that the defendant accomplished an act of sexual penetration by the use of force sufficient to overcome the victim’s will. [Citations.]” (In re Asencio, supra, 166 Cal.App.4th at p. 1205.) The court further concluded substantial evidence supported the defendant’s conviction because “[the defendant]’s act of pulling down [the victim]’s underwear and rolling his adult body on top of this six year old child-a move that a reasonable jury could have concluded immobilized her and pinned her to the bed-are sufficient acts of force to support the jury’s findings.” (Id. at pp. 1205 1206.)
The following evidence was presented to the jury in this case. Defendant was the authority figure in the house. Defendant had been molesting Janice for several years, since she was in first or second grade. While Janice’s mother was in the Philippines for two weeks, defendant took Janice to the master bedroom, laid her on the bed, and orally copulated her. He then got on top of her; Janice, who was small for her age, could not move under defendant’s weight. He then penetrated her. The act caused Janice pain, and she told defendant so, but he continued. Janice did not consent; the act of penetration was against her will, but she felt she could not resist defendant. Defendant raped Janice a second time in a similar manner while Janice’s mother was out of the country. Under the rule of People v. Griffin, as interpreted by In re Jose P. and In re Asencio, and given the longstanding history of defendant’s molestation of Janice, and Janice’s testimony that she told defendant he was causing her pain but defendant continued with the rape, the jury could reasonably find defendant used force sufficient to overcome Janice’s will by using his own body weight to immobilize her and prevent her from resisting or objecting.
There was also substantial evidence before the jury that defendant engaged in sexual intercourse with Janice against her will by means of duress. “As used in this section, ‘duress’ means 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.” (Pen. Code, § 261, subd. (b).)
In People v. Cochran (2002) 103 Cal.App.4th 8, 15, the victim was nine years old. The defendant was the victim’s father. The defendant was one and one half feet taller than the victim, and outweighed her by about 100 pounds. (Ibid.) The acts of aggravated sexual assault and forcible lewd acts on a child under 14 years old occurred in the family home where both the defendant and the victim lived. (Ibid.) A videotape of the sexual abuse showed the victim, at most, acquiesced in the conduct as directed and coached by the defendant, complained that the defendant was hurting her, and expressed concern that her mother would return home. (Ibid.) At trial, the victim testified she was not afraid of the defendant and he did not beat her, punish her, grab her, or force her to participate. (Ibid.) She also testified that she was mad or sad about what the defendant did to her, he gave her money and gifts when they were alone, and he told her not to tell anyone what he was doing to her because he could get in trouble and be sent to jail. (Ibid.) The appellate court concluded the totality of the circumstances established the victim’s will had been overcome by duress. “The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent. We also note that such a threat also represents a defendant’s attempt to isolate the victim and increase or maintain her vulnerability to his assaults.... [¶]... [¶] This record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress.” (Id. at pp. 15 16, fn. omitted.)
In the present case, defendant was the authority figure in the house, and the primary source of punishment. He controlled every facet of Janice and Teresa’s lives. Janice did what defendant told her to do because he was big and scary. Defendant’s molestation of Janice began when she was in the first or second grade. Janice did not want to participate in those acts with defendant, but felt helpless against him, and wanted to protect her sister. Defendant used his body weight to immobilize Janice while raping her. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319 [physical control not constituting force can still create duress].) The rapes occurred in the master bedroom of the home in which both Janice and defendant lived. Although Janice was older than the victim in People v. Cochran when the rapes occurred, she was younger than that victim when the period of molestation began. Under the totality of the circumstances, the jury could reasonably have found that defendant engaged in sexual intercourse with Janice against her will by means of duress.
III.
Counts Involving Teresa – Forcible Oral Copulation
Defendant also claims there was not substantial evidence he forced Teresa to orally copulate him, as charged in counts 16 and 17. As with the crime of rape, there is no statutory definition of “force” for purposes of forcible oral copulation. (People v. Guido (2005) 125 Cal.App.4th 566, 576.) Teresa’s testimony that defendant placed his hand on her head during the act, alone, constitutes sufficient evidence of the use of force. (See People v. Pitmon (1985) 170 Cal.App.3d 38, 48 [pushing on victim’s back during oral copulation establishes force even under Penal Code section 288, subdivision (b), which sets a higher standard for force].) Additionally, for the same reasons set forth ante, there was sufficient evidence that defendant used duress to overcome Teresa’s will to accomplish the forcible oral copulation. In fact, the evidence is even stronger with respect to the crimes committed against Teresa because she was even younger than Janice when the acts of molestation against her began-about four or five years old. Teresa also testified she felt compelled or coerced into participating in the acts of molestation.
“Any person who commits an act of oral copulation when the act is accomplished 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 shall be punished by imprisonment in the state prison for three, six, or eight years.” (Pen. Code, § 288a, subd. (c)(2).)
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., O’LEARY, J.