Opinion
E051157 Super.Ct.No. RIF150134
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO CASTILLO-CID, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Jennifer A. Jadovitz, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed in part; reversed in part with directions.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Guillermo Castillo-Cid appeals after he was convicted of six counts involving various sex offenses against the victim, R.G. Defendant contends that the evidence was insufficient to support his conviction in counts 1 and 2 of aggravated sexual assault, because there was no substantial evidence that he used force, duress, fear, menace or violence to commit the acts of sodomy on which those counts were based. He also contends that his conviction in count 6, for continuous sexual abuse of a minor, must be vacated because that count duplicates the time period during which the specifically charged sex offense felonies took place. Finally, he asks that the abstract of judgment be amended to reflect concurrent sentences on counts 3 through 5. The People concede the latter two points. Accordingly, we reverse the conviction as to count 6, because it was not charged in the alternative to the other offenses, and we order the abstract of judgment amended to reflect concurrent sentences on counts 3, 4 and 5. Otherwise, however, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant and his long-time girlfriend had known one another for 13 years, and lived together for about eight years. R.G. was five years old when defendant moved in with the family.
When R.G. was 10 years old, defendant began molesting her. He told her that they were going to play a game, and that she could not say anything. He proceeded to touch her all over her body, over her clothes, particularly in her private areas.
Defendant belonged to a local gym, which he would attend two or three times a week. When R.G. was 12 or 13 years old, she began accompanying him on his trips to the gym. R.G. would work out on the stationary bicycle or the treadmill. R.G. and defendant would usually spend a couple of hours in the evening at the gym, starting at 6:00 or 7:00
p.m., and leaving at 9:00 p.m. R.G. had been going to the gym with defendant for a few weeks when he again started molesting her. Defendant and R.G. would get into the van after their workout. R.G. sat in the middle row of seats; defendant would get into the van beside her in the passenger row, rather than the driver's seat where he normally sat. Defendant would lock the van doors and begin touching R.G. The first time, defendant touched R.G.'s breasts, both over and under her clothes. Defendant proceeded to grab and touch R.G. "everywhere," and began kissing her. He took off his pants and rubbed against her. Eventually, he took R.G.'s shirt off and touched her all over her upper body. After a while, he decided that they should leave, and he drove them home.
Soon after, defendant repeated this performance. After a workout at the gym, he got into the middle seat of the van with R.G., took off her clothes, and rubbed against her. This time, he removed both his pants and his underwear and rubbed his penis against her. He told R.G. to turn around, and she complied. Then he "put his [penis] in [her] butt." Defendant did this for a few minutes, after which he drove them home.
R.G. testified that, the next day they went to the gym, "he did practically the same thing." He got R.G. into the van, took off her clothes, removed his own clothes, told her to turn around, and he sodomized her.
Defendant would do other things also when they were in the van. Defendant grabbed R.G.'s breasts while he sodomized her. Then he would turn her around and lick her breasts. He also rubbed her vagina with his hand. At times he would also put his mouth on her vagina and start licking.
Sometimes defendant would tell R.G. to turn around, and she would comply. Other times, he physically grabbed her arms to turn her body. When he grabbed her to turn her, he gripped her "not that hard," but with sufficient force to turn her.
R.G. testified that, the first few times defendant sodomized her, it was painful. She reacted audibly, saying "ow." Defendant would pause, and then continue but more slowly. R.G. also cried quietly the first time defendant sodomized her. After defendant had sodomized R.G. a number of times, it no longer hurt. She estimated that defendant had sodomized her at least 20 or 30 times. On one occasion when defendant tried to sodomize R.G., she pushed him away. On that occasion, he desisted, and they went home.
Not all the molestation incidents took place in the van. A few times, defendant would molest R.G. in the bedroom of the apartment. Defendant would start touching R.G. "everywhere," and try to pull down her pants. He would then masturbate to climax.
Shortly after R.G.'s 13th birthday, her mother began to suspect improprieties. R.G. told her mother what had been going on, so her mother called the police. In defendant's van, police found R.G.'s bra, a tube of personal lubricant and a box of tissues defendant would use to clean himself after sodomizing R.G. Semen was found on the floor in the rear of the van.
Defendant agreed to accompany officers to the police station, and agreed to talk to them, waiving his constitutional rights. At first, defendant denied molesting R.G. and was very calm, but when one of the officers advised defendant that a medical examination would be conducted on the victim, defendant became visibly more nervous. Eventually, he admitted that he had touched R.G. inappropriately, and that he had both oral and anal sex with her. He had kissed various parts of her body and groped her breasts. He admitted sodomizing R.G. five times, and said that he had ejaculated each time. Defendant stated that the acts had occurred both in the van, at the gym parking lot, and at home.
As a result of the investigation, defendant was charged with two counts of forcible sodomy (counts 1 & 2) (Pen. Code, § 269, subd. (a)(3)), committing a lewd and lascivious act on a child under age 14 (count 3) (Pen. Code, § 288, subd. (a)), committing a lewd and lascivious act on a child under age 16 (count 4) (Pen. Code, § 288, subd. (c)(1)), penetration with a foreign object of a child under age 14 (count 5) (Pen. Code, § 289, subd. (j)), and continuous sexual abuse of a child under age 14 (count 6) (Pen. Code, § 288.5, subd. (a)).
Defendant did not present any witnesses in his defense at trial, but relied on portions of both the victim's and his own statements to police. For example, defendant had told police that R.G. was a willing participant in the acts, and he had displaced his own responsibility, saying that she had "come on to" him. He claimed that she had asked to have sex with him, and that she had grabbed his penis and performed oral sex on him. He also attempted to mitigate his actions, saying that he had used lubricant, and that he had elected to have anal rather than vaginal sex with her because he "did not want to take her innocence away." In addition, counsel argued that R.G. had said nothing in her police interview to indicate that defendant had used force or had threatened her, and also pointed out that R.G. continued to accompany defendant to the gym even after the sexual acts began. In essence, the defense did not dispute defendant's guilt of counts 3 through 6, but contended there was a reasonable doubt whether defendant was guilty of the aggravated assaults alleged in counts 1 and 2, which required proof of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim. Counsel argued, as to counts 1 and 2, that defendant was guilty only of the lesser offense of sodomy with a person under age 18.
The jury, however, found defendant guilty as charged on all counts.
The court imposed a sentence of 15 years to life on count 1, a consecutive term of 15 years to life on count 2, and stayed sentence on the remaining counts pursuant to Penal Code section 654.
Defendant filed a notice of appeal on June 18, 2010.
ANALYSIS
I. The Evidence of Force Was Sufficient to Support Defendant's Conviction in Counts 1
and 2
Defendant contends that the evidence was insufficient to show that he accomplished the acts of sodomy, alleged in counts 1 and 2, by means of force, violence, duress, menace or fear within the meaning of Penal Code section 269, subdivision (a)(3).
We review this claim under the deferential substantial evidence standard of review. "When an appellant challenges the sufficiency of the evidence to support a conviction, the appellate court reviews the entire record to see „ "whether it contains substantial evidence— i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' [Citation.] We view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. [Citations.] We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. [Citations.] The test on appeal is not whether we believe the evidence established the defendant's guilt beyond a reasonable doubt, but whether ' " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " ' [Citations.]" (People v. Cochran (2002) 103 Cal.App.4th 8, 12-13.)
The offense of aggravated sexual assault on a child under the age of 14 years requires proof that "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" was used. (Pen. Code, § 286, subd. (c)(2)(A), see also § 269, subd. (a)(3).)
"Force, in this context, means physical force that is ' "substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " [Citation.]" (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.) More specifically, "the force requirement will be deemed satisfied when the defendant uses any force that is 'different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victim's consent.' [Citation.]" (Id. at p. 1005.)
Defendant relies on such cases as People v. Senior (1992) 3 Cal.App.4th 765 and People v. Gilbert (1992) 5 Cal.App.4th 1372, to argue that the force defendant used, in grabbing the victim's arms and turning her body so that he could sodomize her, or, on at least one occasion, pushing her from the middle of the van to the back seat area, was insufficient to satisfy the statutory definition of force. Senior and Gilbert however, which follow a similar case of similar vintage, People v. Schulz (1992) 2 Cal.App.4th 999, are outdated on the issue of the force required to accomplish aggravated sexual assault on a child under 14 years of age.
In People v. Alvarez, supra, 178 Cal.App.4th 999, for example, the Court of Appeal stated, "Appellant . . . here invokes People v. Schulz (1992) 2 Cal.App.4th 999 to support his argument the crimes he committed were not accomplished by force. We reject the argument and add our voices to what we perceive to be a chorus of disapproval of the Schulz holding." (Id. at p. 1002.) The defendant in Alvarez relied on People v. Schulz, supra, 2 Cal.App.4th 999, to support his argument that, "although he used some force against [the victim] in molesting her, it did not rise to this level. The most direct response to this argument is that Schulz is wrong." (Id. at p. 1004.)
The Alvarez court explained, "In Schulz, the court ruled, 'Since ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive "force." ' [Citation.] However, the court acknowledged this ruling was contrary to established precedent [citation], and since Schulz was decided, it has been criticized for attempting 'to merge the lewd acts and the force by which they were accomplished as a matter of law' [citation]. [¶] More particularly, it has been noted the Schulz rule fails to recognize a 'defendant may fondle a child's genitals without having to grab the child by the arm and hold the crying victim in order to accomplish the act. Likewise, an assailant may achieve oral copulation without having to grab the victim's head to prevent the victim from resisting.' [Citation.] Lewd conduct of this sort is punishable in and of itself. [Citation.] Therefore, it stands to reason that the force requirement will be deemed satisfied when the defendant uses any force that is 'different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victim's consent.' [Citation.] [¶] According to the majority of courts, this includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves. (See, e.g., People v. Bolander (1994) 23 Cal.App.4th 155, 160-161 ['defendant's acts of overcoming the victim's resistance to having his pants pulled down, bending the victim over, and pulling the victim's waist towards him' constituted forcible lewd conduct]; People v. Neel [(1993)] 19 Cal.App.4th [1784] 1790 ['defendant's acts of forcing the victim's head down on his penis when she tried to pull away and grabbing her wrist, placing her hand on his penis, and then "making it go up and down" ' constituted forcible lewd conduct]; People v. Babcock [(1993)] 14 Cal.App.4th [383] 388 [force element met where the defendant grabbed the victims' hands and made them touch his genital area].) [¶] We agree with these decisions and find sufficient evidence of force in this case." (People v. Alvarez, supra, 178 Cal.App.4th at pp. 1004-1005.)
In Alvarez, the acts constituting force consisted, in one incident, of carrying the victim to the couch and kissing her, while resisting her attempts to push him away and, in another incident, of pulling her onto his lap and preventing her from leaving while he inserted his finger in her vagina. He also held her hands and made her touch his penis. (People v. Alvarez, supra, 178 Cal.App.4th at p. 1005.)
Here, although defendant sometimes accomplished what he wanted by ordering R.G. to turn herself around so he could assault her, he also sometimes physically grabbed her by her arms and turned her body so that he could sodomize her. He physically removed her clothes. He wanted her to take off her shirt, and she "was . . . tugging against him." Eventually, he got his way, and took off her clothes, as well as his own. He at least once pushed her into the back of the van so that he could assault her. Defendant was an adult, the victim was between 10 and 13 years old at the time of the assaults. He positioned himself behind her in a small, enclosed space, and he not only fixed her by penetration from behind, but also grabbed her around the torso, fondling her breasts, as he did so. Although the victim described one time when she pushed defendant away, and he stopped the assault, she also described other times when she complained of pain, and he did not stop; he would pause, but would resume, more slowly. She told defendant once or twice that she did not want defendant to sodomize her, but he did so anyway. As to the incidents which took place in the bedroom of the apartment, the victim said that defendant would try to pull down her pants.
In addition, force was not the only means by which defendant accomplished the offense. " 'Duress' as used in this context 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.] '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.] 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. [Citations.] [¶] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant. Thus, in People v. Pitmon [(1985)] 170 Cal.App.3d 38, 47-48, 51, the court found sufficient evidence of duress despite the victim's testimony the defendant did not use force or violence and never threatened to hurt her. The court stated that 'at the time of the offenses, [the victim] was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of [her] relative physical vulnerability.' (Id. at p. 51; see also People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748 [duress found where defendant molested eight-year-old granddaughter repeatedly over a three-year period and victim viewed defendant as a father figure]; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239 ['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' is relevant to determining duress].)" (People v. Cochran, supra, 103 Cal.App.4th at pp. 13-14.)
Here, the victim had known defendant for virtually her entire life, and he had been the primary father figure at least since she was five years old. She had a vulnerable body image as she testified that she wanted to go to the gym with defendant because she had been criticized for her weight. Defendant took advantage of his relationship with her, and her physical and psychological vulnerabilities. She was dependent on him for transportation to and from the gym; he would make her get into the back of the van and lock the doors, preventing both escape and discovery.
Even though the victim did say that defendant grabbed her "not that hard," when he
turned her around, that testimony is not fatal to a finding of either force or duress. The victim also indicated that, at least once or twice, she had told defendant she did not want him to touch her or do sexual things to her, but he did them anyway. She also had, albeit somewhat vague, fears that if she reported what defendant was doing, that something might happen to her mother. Of course, from the beginning when R.G. was 10 years old, defendant had warned her that she should not say anything about the "game" he played with her.
Considering the totality of the circumstances, and viewing the evidence, as we must, in the light most favorable to the prosecution, the evidence was sufficient to support a finding that defendant accomplished the sexual assaults on the victim by force and duress. Thus, his convictions in counts 1 and 2 for aggravated sexual assault were proper.
II. Defendant's Conviction for Continuous Sexual Abuse Should Be Reversed Defendant was convicted in count 6 of continuous sexual abuse in violation of Penal Code section 288.5, subdivision (a). Penal Code section 288.5, subdivision (c), provides that when a defendant is charged with that offense, he or she may not also be charged with specific sex offenses occurring within the same time period, unless those counts are alleged in the alternative. Here, count 6, the continuous sexual abuse count, was not alleged in the alternative. Defendant urges, therefore, that his conviction on count 6 must be vacated.
Penal Code section 288.5 provides:
"(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
"(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.
"(c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim."
In People v. Johnson (2002) 28 Cal.4th 240, the California Supreme Court held that Penal Code section 288.5, subdivision (c), means what it says; that such sexual abuse charges, covering the same time period as specifically charged sex offenses, must be made in the alternative. Where the offenses were not charged in the alternative, "either the continuous abuse conviction or the convictions on the specific offenses must be vacated." (Id. at p. 245.) Compliance with the statutory requirement may not be satisfied simply by staying one of the convictions. (Id. at p. 248, fn. 6.)
The People concede defendant's argument as to count 6. Accordingly, in compliance with Penal Code section 288.5, subdivision (c), and Johnson, supra, 28 Cal.4th 240, we order defendant's conviction on count 6 vacated.
III. Corrections Should Be Made to the Abstract of Judgment
Finally, defendant contends that the abstract of judgment contains errors that should be corrected to reflect the proper sentence.
As noted, the setting aside of his conviction on count 6 will require an amendment to the abstract of judgment. In addition, the abstract of judgment fails to state whether the sentences on counts 3, 4 and 5 (which were stayed under Pen. Code, § 654) are consecutive or concurrent. As defendant notes, the court imposed the full aggravated term (not one-third of the middle term) on each of these counts, and also failed to state reasons for imposing consecutive sentences, which would be required under Penal Code section 1170, subdivision (c), and California Rules of Court, rule 4.406(b)(5), to have imposed consecutive sentences. (See People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638.) The context of the court's remarks thus clearly indicates the court's intent to impose concurrent sentences.
The abstract also omits the numerical statement of the terms imposed as to each count. For the sake of clarity and, because the trial court erred in its recitation at sentencing of the aggravated term on count 4, the abstract of judgment should be amended to provide that an upper term of eight years was imposed on count 3, an upper term of three years was imposed on count 4, and an upper term of eight years was imposed on count 5.
The People agree with defendant's contentions and agree that the abstract of judgment should be amended and corrected in the suggested ways.
We therefore order the abstract of judgment amended and corrected as follows: to strike the conviction on count 6; to indicate imposition of concurrent terms on counts 3, 4 and 5; and to indicate imposition of the upper term of eight years on count 3, the upper term of three years on count 4, and the upper term of eight years on count 5.
DISPOSITION
We direct the trial court to vacate defendant's conviction on count 6, continuous sexual abuse of a minor. We order the abstract of judgment amended and corrected as follows: to strike the conviction on count 6; to indicate imposition of concurrent terms on counts 3, 4 and 5; and to indicate imposition of the upper term of eight years on count 3, the upper term of three years on count 4, and the upper term of eight years on count 5. In all other respects, however, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur: MILLER_
J.
CODRINGTON_
J.