Opinion
H035341
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE IGNACIO CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC828804
I. INTRODUCTIONDefendant Jose Ignacio Chavez is the father of the two victims in this sex crimes case, his daughter M. and her daughter P. After a jury trial, defendant was convicted of 10 felony offenses in which M. was the victim, including five counts of forcible rape (former Pen. Code, § 261, subd. (2); counts 1-5) and five counts of forcible sexual penetration (former § 289, subd. (a); counts 6-10).
It is undisputed that defendant is the biological father of P. as well as the biological father of M.
All statutory references hereafter are to the Penal Code unless otherwise indicated.
Defendant was also convicted of seven felony offenses in which P. was the victim, including three counts of aggravated sexual assault of a child under 14 and 10 or more years younger than defendant (count 11: rape, §§ 269, 261, subd. (a)(2); count 12: sexual penetration by foreign object, §§ 269, 289, subd. (a); count 13: oral copulation, §§ 269, 288, subd. (a)) and four counts of forcible lewd and lascivious acts on a child by force or fear (§ 288, subd. (b)(1); counts 14-17). Defendant was sentenced to a total term of 165 years to life in the state prison.
On appeal, defendant contends that the convictions should be reversed because (1) the evidence of force or fear was insufficient to support the convictions of forcible rape of victim M. (counts 1-5); (2) the evidence of force or duress was insufficient to support the convictions of forcible sexual penetration of victim M. (counts 6-10); (3) since the evidence was insufficient to support the convictions on counts 1 through 10, the evidence is also insufficient to sustain the multiple victim allegation and therefore his sentence may not be enhanced under section 667.61, the "one-strike law"; (4) the evidence of force, violence, duress, menace, or threat of bodily injury was insufficient to support the convictions for forcible lewd conduct on a child (counts 14-17); (5) the jury instruction given on count 11, aggravated sexual assault on a child by rape, was erroneous because the instruction included the word "hardship" in the definition of duress; (6) counts 6 through 17 must be reversed because including "hardship" in the definition of duress makes the word "duress" unconstitutionally vague for purposes of the charged offenses; and (7) the consecutive sentence on each count violates due process because it cannot be inferred beyond a reasonable doubt that the jurors found that each offense occurred on a separate occasion within the meaning of section 667.6, subdivision (d).
For the reasons stated below, we find no merit in defendant's contentions and therefore we will affirm the judgment.
II. FACTUAL BACKGROUND
Our summary of the factual background is taken from the testimony given during the 2009 jury trial. A. Victim M.
M. was born in 1971 and was 38 years old at the time of trial in November 2009. Defendant, born in 1949, is M.'s father. He is approximately five feet, seven inches tall and weighs 165 pounds. Defendant began touching M. in ways she did not like when she was six years old. The first time occurred when defendant took M. to a building at his job site and told her that they were going to play a little game. After pulling her panties down, defendant took out his penis and stroked it against M.'s vagina. M. felt that she could not walk away because "it would be like not being obedient and not doing . . . what [her] elder said to do."
When they were in the car after the first incident, defendant told M. that the game they played was something normal that all fathers and daughters did. He also told her that nobody talked about it and she was not supposed to tell anyone. Defendant continued to touch M. in ways she did not like about once a month until she was eight years old.
When M. reached the age of eight, defendant began having full intercourse with her at least once per week. He would also touch her vagina and breasts and kiss her on the neck. M. recalled that when defendant first tried to insert his penis in her vagina, she squirmed and cried because it hurt. She was lying on her back on the bed and defendant held her legs open with his legs.
When M. was nine or ten years old, on two or three occasions defendant took her to his nighttime job of turning on the sprinklers for a golf course. M. did not want to go because she knew what was going to happen there. Defendant had her look at pornographic magazines in the workers' rest area and then had sex with her while she was hunched over a car seat. She knew that if she did not agree to have sex, defendant "was just going to keep insisting and insisting until [she] did."
M. never said she did not want to go to the golf course with defendant because it was her strategy over the years to act like nothing was wrong. M. explained that although intercourse with defendant was still uncomfortable at the ages of nine and ten, she wanted to "protect everybody because he was the sole provider for the family." Her mother did not work and M. was afraid that if she said anything, defendant would be put in jail, there would be no one to pay the bills, and her family would become homeless.
The pattern of weekly sexual intercourse with defendant continued until M. was 12 years old, then increased in frequency until she was 14 years old and began to menstruate. At age 14, M. began using the excuse that she was menstruating to avoid having sex with defendant and the frequency of their sexual encounters returned to once per week.
When M. was 16 years old, she became pregnant with P. Defendant stipulated at trial that the DNA evidence showed that he is the biological father of P. About a month after P. was born in 1987, defendant began having sex with M. two to three times per week. When M. was 17 years old, during the February 1988 to December 1988 time period, he continued to have sex with her regularly.
This pattern continued until December 1988, when M.'s mother went to Mexico and took P. with her. M., now age 17, was left at home with defendant and her three brothers. While M.'s mother was away, defendant had sex with M. every day. After M.'s mother returned, defendant returned to having sex with M. two to three times per week. Defendant had sexual intercourse with M. "way over five times" between her 17th birthday and her 18th birthday.
M. gave birth to her son E. when she was 21 years old. During the trial, defendant stipulated that the DNA evidence showed that he is the biological father of E. Between the time P. was born and E. was born, M. had approximately four abortions after being impregnated by defendant.
While M. was pregnant with E., defendant took advantage of the fact that M. could not get pregnant to have sex with her at every opportunity, approximately two to four times per week. After E. was born, M. had her "tubes tied" so that she would not have any more children by her father. When M. reached the age of 24, she told her father that she was not "willing to let it happen anymore" and their sexual encounters ceased.
M. and defendant concealed the fact that he was the father of P. and E. When P. was born, they told M.'s mother and other family members that M. had been raped by a stranger. As to E., by the time he was born M. had a boyfriend, so she told her mother than her boyfriend was E.'s father.
Defendant had a routine for most of his sexual encounters with M., which generally occurred in the bathroom or M.'s bedroom. Defendant would tell M. he was going to take a shower and she should wait five minutes, then go in. Once M. was in the shower, defendant would have her bend over and then hold her in place with his hands on her buttocks while performing sexual intercourse.
M. usually complied when defendant told her to get in the shower with him because if she did not, defendant would make her feel guilty or find a way to have sex with her later on after her mother had gone to sleep. She felt it was easier "to get it over with" rather than "be interrupted in the middle of the night and risk . . . people finding out."
When defendant had sex with M. in a bedroom after everyone was asleep, he had another routine. He would get in bed with M., pull up her nightgown and turn her over so she was on her back. Defendant would then touch her vagina with his fingers. He would also put his fingers in and out of M.'s vagina and kiss her breasts. After moving her legs apart, he would get on top of M. and have intercourse. During sex, M. was constantly fearful that they would be caught because without him she would not able to take care of herself or her children.
On one occasion, defendant took M.'s hand and placed it on his penis and testicles, but she tried to take her hand away. M. did not recall her age at that time. On two or three other occasions, when M. was between 13 and 20 years old, defendant put his tongue in her vaginal area. When M. was younger, defendant would sometimes bribe her to have sex by promising to give her money. M. accepted the money because she believed that he was going to have sex with her anyway.
M. did not reveal that defendant had been molesting her until December 16, 2008, after learning that defendant had also molested P. She told her husband about the molestations and then went to the police the next day. The reason that M. kept the molestations a secret for so long was that she did not want to shatter the family image that defendant was a good provider who did not drink and worked hard. She was willing to sacrifice herself so that no one else in the family would be hurt. Although defendant never told M. not to reveal the molestations to her mother because that would break up the family, telling M. was not necessary because she was aware that defendant was her family's sole provider. By December 2008, M. had determined that she could provide a home and support for her mother by herself. M. also realized that the children had married and moved on with their lives.
Defendant did not testify at trial. However, during his police interview of December 17, 2008, which was played for the jury, defendant admitted that he had sex with M. many times—about once or twice a week—starting when she was 13 years old. He also admitted that P. and E. were his children.
B. Victim P.
P. was born in 1987 and was 21 years old at the time of trial. Until 2008, she believed that defendant was her grandfather. He began touching her in a way she did not like when she was four years old. Her earliest exact memory is from the age of six, when defendant would ask her to do him a favor, then take off her clothes and try to slip his tongue into her vagina.
P. recalled three separate occasions involving defendant when she was eight. Defendant's routine on those occasions began with making P. sit down and watch pornographic videos, then asking her to perform the acts seen on the videos. He would take her clothing off, put his mouth on her vagina, digitally penetrate her, and try to put his penis inside her. P. protested loudly and told defendant to stop because the penetrations hurt. Defendant would then return to oral copulation and try to put his penis in her for the second time. During the molestations, defendant hovered over P. between her legs while supporting himself with his hands. P. tried to get away by twisting her body and flailing with her hands. During oral copulation, defendant pulled her legs.
When P. was between the ages of seven and 12, defendant's most frequent inappropriate touching was oral copulation. When P. was 12, defendant asked her for another sexual favor. He performed oral copulation and in exchange gave her the video game that she wanted. The trial court took judicial notice that the release date for the video game described by P. was November 2000.
Defendant also asked P. to perform oral sex on him, starting when she was seven years old. P. did not want to do it, so she did no more than touch the tip of her tongue to the tip of his penis. Defendant asked P. to perform oral sex on him a second time when she was eight years old, but she could not make herself comply.
P. never thought that sexual relations between a grandfather and his granddaughter were normal. She recalled that a police officer had talked to her class at school about bad touch. She also thought it did not make sense to keep a secret from other family members. However, P. felt guilty about refusing to do what defendant asked her to do. She explained that she was "generally asked as a child to not deny your family seniors, to always be obedient . . . ."
When P. was around nine years old, her grandmother almost discovered defendant in the act of molesting P. P. was on the bed in her grandparents' bedroom after defendant had asked her to come in for more sexual favors. While defendant was fondling her, P. heard her grandmother trying to open the locked bedroom door. P. jumped off while naked to the waist and hid under the bed. She was afraid that her grandmother would find out and then P. would have to go the police, which would cause P.'s grandmother to hate her and P. to become "an orphan so to speak." P.'s grandmother dragged her out from under the bed. When she asked P. what defendant had done to her, P. insisted that he had done nothing. P. denied defendant's molestation because she did not want to be separated from her mother, her family members, and her friends.
Defendant did not molest P. after the age of 12. When P. was 18 years old, she told a friend that she had been molested by her grandfather. A couple of years later, P. told her brother that their grandfather had molested her, but she asked him not to tell their mother. Then, during a conversation with her employer about their childhoods, P. admitted that she had been molested. A friend of P.'s family was employed in the same place, and learned of the molestations through their mutual employer. After having a conversation with the family friend, P. told her mother about the molestations. Two days later, on December 17, 2008, M. and P. went to the police station. During the car ride, M. revealed to P. that defendant was her biological father.
P. had several reasons for keeping the molestations a secret for so long. She felt shame and was afraid that her mother and her entire family would abandon her if they knew, leaving her with no place to go. P. was also afraid that no one would believe her. Additionally, whenever P. began to protest too loudly at being molested, defendant would tell her to be quiet because if her grandmother found out, it would kill her. P. really believed that her grandmother would have a heart attack if she found out. Defendant also told P. not to tell her mother.
Expert witness Carl Lewis testified regarding child sexual abuse accommodation syndrome. A former police officer now employed as a consultant, Lewis was found by the trial court to be qualified to give his opinions on that subject. Lewis testified that child sexual abuse accommodation syndrome provides a general explanation as to why the responses of a sexually abused child may be unexpected or counterintuitive. In Lewis's opinion, child abuse accommodation syndrome in a child who has disclosed sexual abuse may include one or more of several characteristics: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) unconvincing disclosure; or (5) retraction. Lewis explained that "when it comes to children reporting sexual abuse, it's so full of additional emotion, and fear, and shame and embarrassment that we can't necessarily apply that same adult standard to a child who is making a late report."
In his police interview of December 17, 2008, defendant admitted that P. touched his penis, but claimed that she initiated the contact by coming into his room and touching him. He also admitted that he touched P.'s vagina, including putting his mouth on her vagina one time when she was seven or eight years old, and that she touched his penis once with her mouth. Additionally, defendant admitted that he tried to have sex with P. on three or four occasions, but she was too small. Defendant acknowledged, however, that having sex with his daughters was wrong.
III. PROCEDURAL BACKGROUND
The second amended information, filed during the jury trial on November 17, 2009, charged defendant with 10 felony offenses in which M. was the victim. The charged offenses included five counts of forcible rape on or about or between January 1, 1988, and February 17, 1989 (former § 261, subd. (2); counts 1-5) and five counts of forcible sexual penetration on or about and between January 1, 1988, and February 17, 1989 (§ 289, subd. (a); counts 6-10).
Defendant was also charged in the second amended information with seven felony offenses in which P. was the victim. These charges included three counts of aggravated sexual assault of a child under 14 and 10 or more years younger than defendant on or about and between November 30, 1994, and December 20, 2000 (count 11: rape, §§ 269, 261, subd. (a)(2); count 12: sexual penetration by foreign object, §§ 269, 289, subd. (a); count 13: oral copulation, §§ 269, 288, subd. (a)), three counts of forcible lewd and lascivious acts on a child on or about and between November 30, 1994, and December 16, 1998 (§ 288, subd. (b)(1); counts 14-16), and one count of forcible lewd and lascivious conduct on a child on or about or between May 22, 1999, and December 20, 2001 (§ 288, subd. (b)(1); count 17). The second amended information also included a multiple victim allegation as to counts 14-17, which stated that defendant had been "convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim, within the meaning of [sections] 667.61[, subd.] (b) and 667.61[, subd.] (e)."
The jury trial was held in November 2009. The jury verdict rendered on November 16, 2009, found defendant guilty on all counts and also found true the multiple victim allegation. At the sentencing hearing held on February 26, 2010, the trial court imposed consecutive sentences of the middle term of six years on counts 1-10 and consecutive sentences of 15 years to life on counts 11-17, for a total term of 165 years to life in the state prison (105 years to life consecutive to the base term of 60 years).
Defendant filed a timely notice of appeal on February 26, 2010. He raises seven issues on appeal, which we will discuss in turn.
IV. DISCUSSION
A. Sufficiency of the Evidence—Forcible Rape of M.
Defendant contends that the evidence of force or fear was insufficient to support the convictions of forcible rape of victim M. (former § 261, subd. (2)); counts 1-5). He urges that force within the meaning of former section 261, subdivision (2) is limited to physical force, and asserts that the evidence shows that defendant did not use any physical force during the charged rapes that occurred in the January 1, 1988, to February 17, 1989, period when M. was 17 years old. Defendant also argues that there was no evidence to show that defendant did anything to incite M.'s fear of immediate bodily injury.
The People disagree. Relying on People v. Griffin (2004) 33 Cal.4th 1015 (Griffin),they argue that the only force required under former section 261, subdivision (2) for a rape conviction is the force necessary to insure that an act of intercourse was taken against the victim's will. Because M. testified that she did not willingly engage in sex acts with defendant, the People maintain that M.'s testimony was sufficient to prove the use of force alleged in counts 1-5.
We evaluate defendant's contention under a well-established standard of review: "In considering a challenge to the sufficiency of the evidence . . . we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
At the time of the alleged rapes of M. in 1988 and 1989, former section 261, subdivision (2) provided, "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, or fear of immediate and unlawful bodily injury on the person or another." (Stats. 1986, ch. 1299, § 1, italics added.) The definition of the word "force" in former section 261, subdivision (2) is therefore key to our determination of whether the convictions for forcible rape of M. are supported by sufficient evidence of force.
"Decisional law makes clear that the definition of the word 'force' in sexual offense statutes depends on the offense involved." (People v. Asencio (2008) 166 Cal.App.4th 1195, 1200 (Asencio).) As the People point out, the California Supreme Court addressed the definition of force in section 261 in Griffin, supra, 33 Cal.4th 1015. Noting that section 261 did not expressly define the term "force," the court stated, "A plain reading of section 261 in its entirety supports a conclusion that the Legislature did not intend the term 'force,' as used in the rape statute, to be given any specialized legal definition. [Citation.] In 1990, the Legislature added 'duress' and 'menace' to section 261 as further means by which rape could be accomplished against a victim's will, and added subdivisions (b) and (c) to specifically define those terms. (Stats. 1990, ch. 630, § 1, p. 3096.)" (Griffin, supra, 33 Cal.4th at p. 1023.)
Our Supreme Court further determined that "it has long been recognized that 'in order to establish force within the meaning of [former] section 261, subdivision (2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]. [Citation.]" (Griffin, supra, 33 Cal.4th at pp. 1023-1024.) " ' " 'The kind of physical force is immaterial; . . . it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.' " ' [Citations.]" (Id. at p. 1024.) Thus, "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." (Id. at p. 1027; see also People v. Mejia (2007) 155 Cal.App.4th 86, 99-100.)
In Griffin, our Supreme Court accordingly determined that the evidence was sufficient to support a conviction of forcible rape under section 261 where the defendant pinned the victim's arms to the floor "as he penetrated her vagina with his penis. The victim unequivocally testified she did not consent to the act of intercourse and it was accomplished against her will." (Griffin, supra, 33 Cal.4th at p. 1029.) The court also noted that "[i]n evaluating the credibility of both the victim's and the defendant's testimony, the jury had before it evidence of defendant's longstanding history of sexually molesting [the victim] as a minor." (Ibid.)
In the present case, the jury similarly had before it evidence showing that defendant had a longstanding history of sexually molesting M. as a minor from the age of six through adulthood to the age of 24. The evidence further showed that defendant had a usual routine for his sexual molestations of M. in the bedroom and bathroom, as she stated during her trial testimony:
"[THE PROSECUTOR]: Okay. This might sound odd, but I'm going to ask it this way: I haven't added it up, all of the different times he had sex with you given what you have told us about two or three times a week . . . during this year and one time a week, I haven't added it all up, but there is a whole lot of them, right?
"[M.]: Yes.
"[THE PROSECUTOR]: When it happened . . . in your bedroom, was there a -for lack of a better word -- a routine, something that usually happened every time and sort of in this order.
"[M.]: Yes.
"[THE PROSECUTOR]: Can you tell us what that is?
"[M.]: Yeah. He would get into bed with me and he would start touching my vagina, caressing it and then eventually insert his fingers into my vagina and kind of pull them in and out, you know, to moisten the area, and he would kiss and stuff on my breasts and then he would get on top and have sex. [¶] . . . [¶]
"[THE PROSECUTOR]: That happened every time?
"[M.]: Pretty much. [¶]. . . [¶]
"[THE PROSECUTOR]: When he would come into your room, was this a typical time of day?
"[M.]: It was at night once everybody was asleep. [¶] . . . [¶] "[THE PROSECUTOR]: And you're sleeping. How would he get your attention?
"[M.]: He would start touching me. If I was turned around, he would, you know, turn me over so that I would be on my back. [¶] . . [¶]
"[THE PROSECUTOR]: And then he would move to full-on sex?
"[M.]: Yes.
"[THE PROSECUTOR]: And in order to accomplish that, would he position you in some way or how did he do that? [¶] . . . [¶]
"[M.]: Yeah.
"[THE PROSECUTOR]: What would he do?
"[M.]: Touch my legs, move them.
"[THE PROSCUTOR]: Did he frequently do that as part of the routine?
"[M.]: Yeah." [¶] . . . [¶] . .
"[THE PROSECUTOR]: Did you feel like you could just get out from underneath him and walk away?
"[M.]: No."
Regarding what occurred in the bathroom, M. testified as follows:
"[M.]: Yeah, most of the time it was in my bedroom or in the bathroom.
"[THE PROSECUTOR]: Did most of the time similar acts occur in both of those rooms?
"[M.]: Yes.
"[THE PROSECUTOR]: Okay. And when you're in the bathroom, would he have sexual intercourse with you as well?
"[M.] Yes. [¶] . . . [¶]
"[THE PROSECUTOR]: So without a bed in the bathroom, how did this happen?
"[M.]: He would open the shower curtain, you know, put the shower head off to the side so it wouldn't wet me. He would have me bend over and he would just have sex with me.
"[THE PROSECUTOR]: Did he use his hands to kind of hold you in place?
"[M.]: Yeah. He would. He would kind of hold my buttocks thigh area to kind of support himself and do what he had to do or do what he felt he wanted to do.
"[THE PROSECUTOR]: Did you feel like when he was doing that, you could just kind of interrupt him and walk off while he was holding you like that?
"[M.]: No. No."
Having reviewed M.'s testimony and the other trial evidence in its entirety, we determine that the evidence of defendant's usual routine in raping M. from the ages of eight to 24 was sufficient for a reasonable inference that defendant continued his routine during the 1988 and 1989 period charged in counts 1-5. Consequently, we further determine that the evidence of routine is sufficient to show that defendant used "physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will" of M. (Griffin, supra, 33 Cal.4th at p. 1024.) We therefore find no merit in defendant's contention that the convictions in counts 1 -5 must be reversed due to insufficient evidence.
B. Sufficiency of the Evidence—Forcible Sexual Penetration of M.
Defendant argues that the evidence of force or duress was insufficient to support the convictions of forcible sexual penetration (former § 289, subd. (a)) of victim M. in counts 6-10. He urges, for the same reasons that he argued with respect to the forcible rape charged in counts 1-5, there was no evidence of force. Alternatively, defendant argues that there was no evidence of duress in the absence of any showing that defendant exploited M.'s fear of the "loss of the breadwinner."
According to the People, the evidence of force was sufficient due to defendant's routine of getting into bed with M., inserting his fingers into her vagina to moisten the area, and then getting on top of her to have intercourse. The People also argue that the evidence of duress was sufficient because defendant incited feelings of guilt in M. if she made excuses to avoid sex and also bribed her with money. Additionally, the People point to defendant's longstanding history of molesting M.
We begin our evaluation of defendant's argument with the relevant statutory language. At the time of the offenses charged in counts 6-10, former section 289, subdivision (a) provided, "Every person who causes the penetration, however slight, of the genital or anal openings of any person or causes another person to so penetrate the defendant's or another person's genital or anal openings for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device 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 or where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years." (Stats. 1988, ch. 404, § 1, italics added.)
Most recently, the definition of the term "force" in the forcible sexual penetration statute has been based on the definition of "force" that was established by the California Supreme Court in Griffin for the forcible rape statute. (Asencio, supra, 166 Cal.App.4th at p. 1205.) "The gravamen of the crime of forcible sexual penetration is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or the fear of immediate and unlawful bodily injury on the victim or another person, just as forcible rape under section 261, subdivision (a)(2) is sexual intercourse accomplished against the victim's will by force or other listed coercive means. [Citation.]" (Asencio, supra, 166 Cal.App.4th at p. 1205.) Thus, there is no "reasoned basis to apply a different concept of the term 'force' to forcible rape and forcible oral copulation on the one hand . . . and to forcible sexual penetration on the other." (Ibid.)
The Asencio court therefore determined that "forcible sexual penetration within the meaning of section 289, subdivision (a)(1) is proven when the 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.]" (Asencio, supra, 166 Cal.App.4th at p. 1205.) We observe that the current version of the forcible sexual penetration statute, section 289, subdivision (a)(1), and the version of the statute in effect at the time of the offense charged in counts 6-10, former section 289, subdivision (a), both provide that the offense may be proven by a showing that the sexual penetration was accomplished by force. We therefore believe that the definition of "force" established in Asencio for section 289, subdivision (a)(1) is equally applicable to the term "force" in former section 289, subdivision (a).
Accordingly, the issue before us is whether the evidence was sufficient to show that defendant used physical force of a degree sufficient to support a finding that the act of forcible sexual penetration was against the will of M. (Asencio, 166 Cal.App.4th at p. 1205; Griffin, supra, 33 Cal.4th at pp. 1023-1024.) As shown by M.'s testimony regarding defendant's usual routine (quoted ante, in Part IV A.), defendant's routine for his sexual penetration of M., throughout his longstanding history of molesting her from the ages of eight to 24, was to get in bed with her and turn her over so she was on her back. Defendant would then touch her vagina with his fingers. He would also put his fingers in and out of M.'s vagina and kiss her breasts. After moving her legs apart, he would get on top of M. and have intercourse. This evidence was sufficient to support a finding that the acts of sexual penetration during the 1988 and 1989 period charged in counts 6-10 were accomplished with sufficient physical force to show that the acts were against M.'s will.
Having determined that the evidence of force was sufficient to support the convictions in counts 6-10, we need not address defendant's alternative contention that the evidence of duress was insufficient for a conviction of forcible sexual penetration.
C. Multiple Victim Allegations
Defendant challenges the jury's finding that the multiple victim allegations in counts 14-17 were true. Those allegations state that defendant "has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim, within the meaning of [sections] 667.61[, subd.] (b)[] and 667.61[, subd.] (e)." We understand defendant to claim that since the evidence was insufficient for all of the counts involving victim M. (counts 1-10), the evidence is necessarily insufficient to support the multiple victim allegations in counts 14-17 and thus defendant's sentence cannot be enhanced under multiple victim provisions of section 667.61, the "one strike law."
At the time defendant was sentenced on February 26, 2010, former section 667.61, subdivision (b) provided, "Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life."
At the time defendant was sentenced on February 26, 2010, former section 667.61, subdivision (e)(5) provided, "The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."
Subdivision (c)(4) of former section 667.61 provided, " This section shall apply to any of the following offenses: [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288."
The People argue that sufficient evidence supports the convictions in counts 1-10 and therefore defendant's objection to an enhanced sentence under the multiple victim provisions of section 667.61 lacks merit. We agree. As have discussed, we find that sufficient evidence supports the convictions in counts 1-10 in which M. was the victim. The trial court was therefore not precluded from sentencing defendant under section 667.61 on the ground that the evidence of multiple victims was insufficient.
D. Sufficiency of the Evidence—Forcible Lewd and Lascivious Acts on a Child
Defendant argues that the evidence of force, violence, duress, menace, or threat of bodily injury was insufficient to support the convictions in counts 14-17 for forcible lewd conduct on a child (§ 288, subdivision (b)(1)) involving victim P. According to defendant, the evidence of force was insufficient because there was no showing of force beyond "the normal physical force to effect the touching under the circumstances of a young girl who had never had intercourse." He also contends that there was no evidence whatsoever of violence, menace, retribution, or fear of bodily injury, and no evidence to support a finding of duress since defendant did not exploit P.'s fears for her grandmother and her family.
The People acknowledge that a conviction of forcible lewd and lascivious acts on a child under section 288, subdivision (b)(1) requires evidence of physical force substantially different from or substantially greater than that necessary to accomplish the lewd act. (Griffin, supra, 33 Cal.4th at p. 1026.) They argue that the jurors could infer the requisite physical force from the evidence showing that when P. was six years old and defendant attempted to insert his finger or penis in her vagina while lying on top of her, she protested loudly while flailing and twisting her body in an attempt to escape.
The People also argue that there was sufficient evidence of duress, consisting of the evidence showing that P. felt it was her duty to obey defendant when he began to molest her because he was the head of the household and an authority figure. They also emphasize P.'s testimony that defendant told her that it would kill her grandmother if she knew about the molestations, which the People interpret as a threat of hardship sufficient to coerce a person of ordinary susceptibility.
The California Supreme Court recently instructed that "[s]ection 288(a) prohibits the commission of a lewd or lascivious act on a child under age 14 done with the intent to arouse or satisfy the sexual desires of the perpetrator or the child. Section 288(b)(1)[] further prohibits the commission of such an act 'by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. . . ." (People v. Soto (2011) 51 Cal.4th 229, 237 (Soto).) The degree of force required for a conviction under section 288, subdivision (b)(1) is force that is "substantially different from or substantially greater than the physical force inherently necessary to commit a lewd act proscribed under subdivision (a)." (Griffin, supra, 33 Cal.4th at p. 1027; Soto, supra, 51 Cal.4th at p. 244, fn. 8.)
Section 288, subdivision (b)(1) provides, "Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."
In evaluating defendant's claim that the evidence is insufficient to show the requisite force for a conviction under section 288, subdivision (b)(1), we are again guided by the substantial evidence standard of review. We must "presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." [Citation.]' (People v. Albillar, supra, 51 Cal.4th at p. 60.)
Applying this standard, we find that P.'s testimony provided sufficient evidence that defendant used force that was substantially different from or substantially greater than the physical force necessary to commit the lewd acts charged in counts 14-16 that occurred in the November 30, 1994, to December 16, 1998 period. P. recalled that when she was about eight years old, on at least three occasions defendant took off her clothing off, put his mouth on her vagina, digitally penetrated her, and tried to put his penis inside her. She protested loudly and told defendant to stop because the penetrations hurt. While he performed these sex acts, defendant would hover over P. between her legs while supporting himself with his hands. P. would try to get away by twisting her body and flailing with her hands. During oral copulation, defendant would pull her legs. From this evidence, we believe that the jurors could reasonably infer that defendant prevented P. from getting away from him while he was molesting her by using force that was substantially different from or greater than that inherently necessary to commit the lewd acts.
We also determine that there was sufficient evidence of duress to support the conviction in count 17 of forcible lewd and lascivious conduct on a child on or about or between May 22, 1999, and December 20, 2001, which we understand to involve the incident in which defendant gave P., age 12, a video game in exchange for allowing him to perform oral copulation. In Soto, the California Supreme Court instructed that duress, as used in section 288, subdivision (b)(1), means " ' "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed; or, (2) acquiesce in an act to which one otherwise would not have submitted." ' [Citation.]" (Soto, supra, 51 Cal.4th at p. 246, italics omitted.)
Our Supreme Court further instructed that an unbroken line of cases "clearly establish that 'duress' and its associated terms 'menace' and 'fear of . . . bodily injury' are used in section 288(b)(1) in their ordinary meanings, and that to commit a lewd act 'by use of one of these means, as prohibited in section 288(b)(1), is to coerce the victim, by direct or implied threat or by exploiting the victim's fear, into performing or acquiescing in the lewd act against his or her will. To coerce an act by duress, menace or fear 'is to avoid or vitiate consent to [the] act, so that the act cannot be said to constitute an exercise of free will.' [Citation.] Such coercion is thus inconsistent with the exercise of the victim's 'freely given consent.' [Citation.]" (Soto, supra, 51 Cal.4th at p. 251.)
This court has recognized that " ' "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.' [Citation.]" (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320; People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
Here, the evidence showed that defendant had a position of dominance and authority in the household as P.'s grandfather and the family provider, and that defendant continuously exploited P. from the ages of four to 12. The evidence also showed that defendant would customarily tell P. to be quiet whenever she began to protest too loudly at being molested because if her grandmother found out, it would kill her. We find that this evidence is sufficient to support the conviction in count 17 because the evidence shows that defendant coerced P., by exploiting both his position of dominance and authority and P.'s fear for her grandmother, into performing or acquiescing in the lewd act against her will and without her consent. (Soto, supra, 51 Cal.4th at p. 251.)
E. Instructional Error—Count 11
Defendant argues that the trial court erred in instructing the jurors on count 11, aggravated sexual assault (rape) of P., a child under 14 and 10 or more years younger than defendant (§§ 269, 261, subd. (a)(2)) on or about and between November 30, 1994, and December 20, 2000, by instructing that the definition of "duress" includes "hardship." In defendant's view, this is an error of federal constitutional magnitude because the instruction "broadens the scope of culpable duress [and] lightens the prosecution's burden of proof on the coercive element of the crime of rape." Defendant further asserts that the error was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 23-24 (Chapman), because the jurors could find that "the intercourse with P. was accomplished by duress predicated on her fear of 'hardship.' "
The trial court instructed the jurors as follows on count 11: "The defendant is charged in count eleven with aggravated sexual assault of a child who is under the age of fourteen years and at least ten years younger than the defendant in violation of [section] 269[,subdivision (a)]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] The defendant had sexual intercourse with [P.]. [¶] Two, the defendant and [P.] were not married to each other at the time of the intercourse. Three, [P.] did not consent to intercourse. [¶] Four, the defendant accomplished the intercourse by force, duress, menace, violence or fear of immediate and unlawful bodily injury, and five, at the time of the act [P.] was under the age of fourteen years and ten or more years younger than the defendant. [¶] Sexual intercourse means any penetration no matter how slight of the vagina or genitalia by the penis. Ejaculation is not required. [P.] must have acted freely and voluntarily and knew the nature of the act. Intercourse is accomplished by force if the defendant used enough physical force to overcome [P.'s] will. The defendant is not guilty if he actually and reasonably believed that [P.] consented to the intercourse. [¶] The People have the burden of proving beyond a reasonable doubt the defendant did not actually reasonably believe that [P.] consented. If the People have not met this burden, you must find the defendant not guilty. [¶] Duress means a direct or [implied] threat of force, violence, danger, hardship or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. [¶] In deciding whether the act was accomplished by duress, consider all of the circumstances including the age of the child, her relation to the defendant. [¶] Menace means a threat, statement or act showing intent to injure someone. An act is accomplished by fear if the child is actually and reasonably afraid or she's actually but unreasonably afraid and defendant knows her fear and takes advantage of it."
The People concede that the jury instruction on count 11 should not have included the word "hardship" in the definition of "duress." However, they argue that the instructional error is harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), since there is no reasonable possibility that defendant would have obtained a more favorable verdict on count 11 absent the error. According to the People, the jurors could infer, from the evidence showing that defendant used force to commit the rape of P., that the intercourse was against her will and without her consent. The People also note that the prosecutor did not rely on a hardship theory in arguing for a conviction on count 11.
We find the parties correctly agree that the statutory definition of "duress" in section 261 does not include "hardship." The California Supreme Court has discussed the pertinent legislative history: "Before 1990, the crime of rape differed from [other] sexual crimes . . . in that it could not be committed by means of duress. Former section 261, subdivision (2), defined rape as sexual intercourse with a person not the spouse of the perpetrator '[w]here it is accomplished against a person's will by means of force, violence, or fear of immediate and unlawful bodily injury on the person or another.' (Stats. 1986, ch. 1299, § 1, p. 4592.) In 1989, the Court of Appeal in People v. Bergschneider [(1989)] 211 Cal.App.3d 144, 152, pointed out this anomaly, stating: 'For reasons which escape us, rape is the only major sexual assault crime which cannot be committed by means of duress. [Citations.]' [¶] The Legislature quickly responded, amending section 261 in 1990 to renumber former subdivision (2) as subdivision (a)(2) and adding the terms 'duress' and 'menace' to expand the definition of rape to include acts accomplished 'by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.' (Stats. 1990, ch. 630, § 1, p. 3096.)" (People v. Leal (2004) 33 Cal.4th 999, 1005-1006 (Leal).)
"The Legislature further amended section 261 to include definitions of the terms 'duress' and 'menace,' adopting the same definition of the term 'duress' as stated by the court in Pitmon[]: 'As used in this section, "duress" means a direct or implied threat of force, violence, danger, hardship, 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 . . . .' (Stats. 1990, ch. 630, § 1, p. 3097, italics added.)" (Leal, supra, 33 Cal.4th at p. 1005.) However, as the People note, in 1993 the Legislature amended the definition of "duress" in section 261, subdivision (a)(2) to delete the term "hardship." (Sen. Amend. to Assem. Bill No. 187 (1993-1994 Reg. Sess.) §§ 1, 2, July 14, 1993; Leal, supra, 33 Cal.4th at p. 1006.)
People v. Pitmon (1985) 170 Cal.App.3d 38, disapproved on another point in Soto, supra, 51 Cal.4th at p. 248, fn. 12.
The term "hardship" remains deleted from the definition of "duress" in section 261. 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."
However, even assuming that the trial court erred in including the term "hardship" in the jury instruction for count 11, we find that the error is harmless under either the Watson standard or the Chapman standard. Under Watson, instructional error is harmless if, "[u]pon examining the entire cause, including the evidence (Cal. Const., art. VI, § 13), it is not 'reasonably probable' defendant would have obtained a 'more favorable' outcome had the instructional error not occurred. [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 541.) Under Chapman, an instructional error is harmless where "it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.' [Citation.]" (People v. Anderson (2011) 51 Cal.4th 989, 1004.)
Here, there was ample evidence from which the jurors could reasonably infer that defendant used force when he raped P., that she did not consent to the act, and it was accomplished against her will. (Griffin, supra, 33 Cal.4th at pp. 1023-1024.) P. testified that when defendant attempted to insert his penis in her vagina, she protested loudly and unsuccessfully attempted to escape by twisting her body and flailing with her hands. During closing argument, the prosecutor emphasized that the evidence showed that defendant had used sufficient force to overcome P.'s will, and did not mention hardship in discussing the alternative theory of duress. We therefore determine that it is clear beyond a reasonable doubt that a rational jury would have found defendant guilty on count 11, aggravated sexual assault (rape) of a child under 14 and 10 or more years younger than defendant (§§ 269, 261, subd. (a)(2)), absent the instructional error.
F. Instructional Error—Counts 6-17
Defendant contends that including the term "hardship" in the statutory definition of "duress" as an element of a sex offense is unconstitutionally vague, and therefore the convictions must be reversed on counts 6-10 (forcible sexual penetration of M., § 289, subd. (a)), count 12 (sexual penetration of P. by foreign object, §§ 269, 289, subd. (a)), count 13 (oral copulation of P., §§ 269, 288, subd. (a)), and counts 14-17 (forcible lewd acts on P., § 288, subd. (b)). Defendant acknowledges that his argument relies on Justice Kennard's dissent in Leal, supra, 33 Cal.4th at page 1012, in which she states, " 'Hardship' is a vague and amorphous concept." However, defendant contends that this court is not barred from consideration of his constitutional claim because Justice Kennard's statement about hardship was made in response to an issue raised by amicus curiae.
The People argue that defendant's constitutional claim lacks merit because an argument identical to defendant's was rejected by the majority in Leal. We agree.
In Leal, our Supreme Court stated, "[Section] 288, subdivision (b)(1) makes it a felony for any person to commit a lewd act upon a child under the age of 14 years 'by use of force, violence, duress, menace, or fear of immediate and bodily injury.' The quoted phrase also appears in the definitions of three other sexual offenses: forcible sodomy in violation of section 286, subdivision (c)(2), forcible oral copulation in violation of section 288a, subdivision (c)(2), and forcible acts of sexual penetration in violation of section 289, subdivision (a)(1)." (Leal, supra, 33 Cal.4th at pp. 1004, fns. omitted.)
The Leal court ruled that the statutory definition of the term "duress" in the quoted phrase (" 'by use of force, violence, duress, menace, or fear of immediate and bodily injury' ") includes "hardship," as established in Pitmon, supra, 170 Cal.App.3d at page 50. In so ruling, the court rejected the argument of amicus curiae California Attorneys for Criminal Justice "that including 'hardship' in the definition of 'duress' would make 'duress' overly vague." (Leal, supra, 33 Cal.4th at pp. 1009-1010.) The court determined that "long application of the Pitmon definition has not demonstrated this to be the case." (Id. at p. 1009.) Accordingly, the court disapproved the decision in People v. Valentine (2001) 93 Cal.App.4th 1241, which had held that the trial court erred by including the threat of hardship in its jury instructions defining the term "duress" for purposes of forcible oral copulation and forcible sexual penetration. (Leal, supra, 33 Cal.4th at p. 1010.)
As an intermediate appellate court, we must follow the decisions of the California Supreme Court, which are binding upon all the state courts of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Lessie (2010) 47 Cal.4th 1152, 1168, fn. 8.) Since the California Supreme Court in Leal rejected the argument that including "hardship" in the statutory definition of "duress" renders the term "duress" unconstitutionally vague (Leal, supra, 33 Cal.4th at pp. 1009-1010), we accordingly find no merit in defendant's identical argument.
G. Sentencing Error
Finally, defendant argues that the trial court committed sentencing error by imposing seven consecutive terms of 15 years to life on counts 11-17 and six consecutive middle terms of six years on counts 1-10, for total term of 165 years to life. Although defendant acknowledges that section 667.6, subdivision (d) requires mandatory consecutive sentences for the sex offenses enumerated in subdivision (e), where "the crimes involve separate victims or involve the same victim on separate occasions," defendant maintains that consecutive sentencing is not authorized in the present case.
Section 667.6, subdivision (d) provides, "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. [¶] The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison."
Subdivision (e) of section 667.6 provides in pertinent part, "This section shall apply to the following offenses: [¶] (1) Rape, in violation of paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261. [¶] . . . [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] . . . [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289."
According to defendant, "there is nothing in the jury verdict that allows for a clear conclusion that the jurors in fact found separate occasions . . . ." Defendant therefore claims that the consecutive sentences violated the due process rule established in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),where the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.)
The People argue that consecutive sentencing did not violate defendant's due process rights under Apprendi because a jury finding beyond a reasonable doubt that the sex offenses occurred on separate occasions is not required before consecutive sentences may be imposed under section 667.6, subdivision (d). The People also argue that the evidence showed that defendant's sex crimes involving victims M. and P. occurred on numerous separate occasions.
We determine that defendant's claim of sentencing error is not well taken. As the California Supreme Court has recognized, the United States Supreme Court held in Oregon v. Ice (2009) 555 U.S. 160, 169, that "Apprendi does not govern the decision whether to impose concurrent or consecutive sentences . . . ." (Porter v. Superior Court (2009) 47 Cal.4th 125, 137.) A jury finding of multiple offenses committed at different times is not required for the imposition of consecutive sentences because "[t]he decision to impose sentences consecutively is not within the jury function that 'extends down centuries into the common law.' [Citation.]" (Oregon v. Ice, supra, 555 U.S. at p. 168.)
In California, section 667.6, subdivision (d) provides in part, "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions."
Therefore, "[o]nce the trial court has found, under section 667.6, subdivision (d), that a defendant committed the sex crimes on separate occasions, we will reverse 'only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his [or her] assaultive behavior.' [Citation.]" (People v. King (2010) 183 Cal.App.4th 1281, 1325.)
In the present case, the trial court followed the recommendation of the probation officer that consecutive sentencing be imposed under section 667.6, subdivision (d) because all of sex offenses charged in counts 1-17 occurred on separate occasions. Having reviewed all of the trial evidence, we find that no reasonable trier of fact could have decided that defendant did not have reasonable opportunities for reflection, after completing his numerous offenses involving victims M. and P. over a period of years, before resuming his assaultive behavior on them. (People v. King, supra, 183 Cal.App.4th at p. 1325.) We therefore determine that the trial court did not err in finding that the sex offenses charged in counts 1-17 occurred on separate occasions. For that reason, we also determine that the court did not err in sentencing defendant to consecutive terms.
V. DISPOSITION
The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J. I CONCUR: LUCAS, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Mihara, J., Concurring in the Judgment
While I agree with my colleagues that the judgment should be affirmed, my analysis differs from that of my colleagues with regard to defendant's challenge to the sufficiency of the evidence to support counts 1 through 5 and the instructional error contention regarding count 11.
I. Evidence Presented At Trial
A. M.'s Testimony
M. is defendant's daughter and P.'s mother. She was born in 1971. Defendant began molesting M. when she was six years old and continued to do so until she was 24 years old. On the very first occasion, defendant told her "we're going to play a game . . . ." He lifted up her skirt, pulled down her underwear, "put his hand on my back so that I could bend over," and "stroked" his penis against her vagina. M. felt that she had to comply because defendant was her "elder." After this first occasion, defendant told her that "[t]he game that we had played, that that is something that is played by every father and daughter, . . . but that nobody talks about it. You're not supposed to tell anybody." Defendant continued to molest her on a monthly basis for the next two years. M. felt that she had to keep these activities secret "[t]o protect everybody because he was the sole provider for the family." M. felt she had no choice "because if I didn't agree, he was just going to keep insisting and insisting until I did." M. "felt like I couldn't say no. . . . I felt like I couldn't, you know, just scream and say stop for fear that somebody would know what was going to happen . . . basically we would be homeless." When M. was young, defendant would offer to give her money for engaging in these activities.
When M. was eight years old, defendant began to have sexual intercourse with M. on a weekly basis. On one early occasion, when defendant was trying to put his penis in her vagina, M. cried and told defendant "I was squirming because it was hurting." He told her to "relax, hold on a little bit." Defendant was positioned between her legs "to kind of keep them open."
These activities continued until she was 14 years old, when they became slightly less frequent. M. became pregnant with P. when she was 16 years old. After P. was born, defendant continued to have sex with M., but he began using condoms some of the time. The frequency increased to multiple times a week. Most of the events occurred in M.'s bedroom, but some occurred in the bathroom. In the bathroom, defendant "would have me bend over," and he "would kind of hold my buttocks thigh area" while he had sex with her in the shower. When the events occurred in M.'s bedroom, defendant would routinely begin by putting his fingers in her vagina and would proceed to "get on top and have sex." Sometimes, "[i]f I was turned around [sleeping on her side], he would, you know, turn me over so that I would be on my back." Defendant would pull up her nightgown and pull down her underwear. He would "[t]ouch my legs, move them." He "laid on top of M. while he "had intercourse" with her. The events in M.'s bedroom occurred at night when everybody else was asleep.
In December 1988, when M. was 17 years old, M.'s mother went away for a month and took P. with her. During their absence, defendant had sex with M. every day. After M.'s mother and P. returned, the frequency returned to two or three times a week. When M. was 24 years old, she "finally worked up the courage to tell him that I couldn't do it anymore." She was "afraid to tell anybody" because she thought she "would be rejected" and "called a liar." When she told defendant "that I wasn't willing to let it happen anymore," he "was like okay."
Defendant admitted that he had sex with his daughter M. "[a] lot of times."
B. P.'s Testimony
P. was born in 1987. Defendant, her grandfather (and also, unbeknownst to her, her father), began touching her inappropriately when she was four years old and continued to do so until she was 12 years old. He usually "prefaced" the molestations "with pornographic videos." "He would make me sit down and watch them and afterwards he would ask me to perform the acts that those people were performing on each other . . . ." P. complied with defendant's requests because she had been taught to "be obedient" to her "family seniors." Defendant was the "main provider" for P.'s family. P. was afraid that, if she revealed the molestations, her relatives would not believe her, they would hate her and abandon her, and she "would be an orphan so to speak."
The first molestation P. could remember was when defendant orally copulated her at the age of six. When she was seven years old, defendant asked her to orally copulate him. She made "the barest effort to try" but "I just couldn't do it." She touched the tip of her tongue to his penis but did no more. He "[t]ried to persuade" her "to do it," "but nothing going. It wasn't happening." Defendant again asked her to orally copulate him when she was eight years old, but she refused.
When P. was less than eight years old and "started talking about not wanting to do any of those sexual favors," defendant told P. "that if I told my grandmother, it would kill her." This "terrified" P. Defendant continued to tell her this on subsequent occasions whenever she "began to [dissent] a little bit too loudly."
The year that P. was eight years old, there were three occasions when defendant asked P. "to do him a [sexual] favor." The same thing happened on each of these three occasions. Defendant asked her to take off her clothes, but she did not want to do so. He therefore removed her clothing. He began by orally copulating her. P. was lying on defendant's bed, and defendant was "hovering over" P. "between [her] legs." After orally copulating her, defendant tried to put his finger in her vagina. P. "strongly protest[ed] [the digital penetration] loudly" because it was painful, and defendant stopped. "I would say no, stop. That hurts." "I feel like I must have flailed or tried to draw away." Defendant said "okay, quiet down," stopped, and returned to orally copulating her. He also tried, and failed, on each of these three occasions to put his penis in her vagina. "I don't think he even got the tip of his penis" into P.'s vagina. When defendant tried to put his penis in her vagina, P. made "rapid motions with my hands, twisting my body, trying to get away." "If I recall inaccurately [sic],if I'm recalling inaccurately [sic], he might have pulled my legs in one more time" to "keep me in place" so that he could return to orally copulating her. On all three of these occasions, the events occurred in defendant's bedroom with the door locked.
The remainder of the molestations were limited to oral copulation. P. testified that there was "a great amount" of time between the molestations, and the period of time between them "may have been a year." "I remember it happening at least once a year if not more than that until I was ten, and then I think eleven I was home-free and then twelve not so much." When she was 12, she wanted a video game, and defendant said he would purchase the video game "if I let him do those things to me again . . . ." Defendant bought her the video game, and he subsequently orally copulated her.
Defendant admitted that he and P. had touched each other's sexual parts and orally copulated each other.
II. Discussion
A. Substantial Evidence Of Force Supports Rape Counts
Defendant claims that there is not substantial evidence that his acts of sexual intercourse with M. in 1988 and 1989 were accomplished by force or fear. At the time of these events, the crime of rape required force or fear and could not be committed by means of duress.
"In considering defendant's claim of insufficiency of the evidence of force necessary to affirm his conviction of forcible rape, we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028 (Griffin).)
"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 . . . ." (Griffin, supra, 33 Cal.4th at pp. 1027-1028.)
M.'s description of the acts of intercourse in her bedroom reflected that defendant utilized force to overcome her will. He manipulated her body so that she was on her back, moved her legs into position, and pulled her clothing out of the way before lying on top her and having intercourse with her. Because M. played no role in these activities, the jury could have reasonably concluded that defendant's movement of M.'s body and clothing served to overcome her unwillingness to engage in sexual intercourse with him. This is all that is required under Griffin. Hence, there was sufficient evidence of force to support the rape convictions.
B. Instructional Issue
The Attorney General concedes that the trial court erred when it included "hardship" in its definition of duress in the instruction to the jury on count 11, the aggravated sexual assault count based on rape. Defendant argues that this error was prejudicial federal constitutional error and requires reversal. The Attorney General contends that this was merely state law error and was harmless.
1. Background
The trial court instructed the jury with CALCRIM No. 1123 on count 11. This instruction correctly told the jury that an element of this offense was that "defendant accomplished the intercourse by force, duress, menace, violence or fear of immediate and unlawful bodily injury." The instruction proceeded to define both force and duress. "Intercourse is accomplished by force if the defendant used enough physical force to overcome P[.]'s will." "Duress means a direct or imp[lied] threat of force, violence, danger, hardship or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. [¶] In deciding whether the act was accomplished by duress, consider all the circumstances including the age of the child, her relationship to defendant." (Bold and italics added.)
In his argument to the jury, the prosecutor relied on both force and duress to support all of the counts except for the rape counts involving M. The prosecutor argued that defendant "accomplish[ed] all of those acts by overcoming M[.] and P[.]'s will by a combination of force and duress over many years." He told them: "Now force and duress as you have already heard has a special definition that you will need to follow in this particular case." "[T]his case is about force and duress in the home . . . ."
The prosecutor then tried to explain why some counts required force and could not be satisfied with duress. "For instance, rape by force. . . . [T]his is for a 1988 period of time charge for M[.] when she was seventeen years old. [¶] It wasn't until a few years later that the Legislature added duress to the rape charge and we will see that come into play later . . . ." He explained that the rape counts against M. required proof that defendant "accomplished the intercourse by force." When the prosecutor moved on to the sexual penetration counts against M., he noted that duress could satisfy these counts, and he characterized duress as "psychological coercion."
The prosecutor thereafter turned to the charges involving P. and argued that defendant had tried to "force" his penis into P.'s vagina. However, he also argued: "[S]o count eleven, the 269, with the sexual intercourse, again the elements look the same as when we talked about M[.]'s except for the duress part: force or duress. Two different theories that can be used to find that element true beyond a reasonable doubt: force or duress." "There is the duress definition that we already talked about." "Again, force or duress. Keep that in mind. Alternate theories . . . I think force and duress, the easiest and most obvious theories that apply on the facts of this case . . . ."
"[S]o let's talk about evidence of force. It has to do with evidence of force as it has to do with these three counts of aggravated sexual assault." "Evidence of force. He takes her clothes off. . . . He pulls her legs in the position to orally copulate her. Tries to force his finger into her vagina. There is pain. Forces his penis into her vagina. She is too small, causing pain. [¶] Sufficient evidence of force that he is overcoming her will to resist. She is saying no. She is squirming. Evidence of duress. It is force or duress. Remember, the defendant is a family member. He has a position of dominance and authority to P[.] in relationship to P[.] He's her grandfather. He is bigger and stronger than her. Talk about a coercive environment. [¶] There is [sic] multiple acts of sexual exploitation that envelops [sic] what's happening to her particularly when she is eight years old. [¶] It starts when she was very young. She talks about being four -- being six. It is inside the household, alone in the bedroom, behind a locked door. P[.] must not have felt like she had many options in that household. That is part of the duress. [¶] Showing her pornography, and this is what really got to her: 'If you tell your grandmother, it will kill her,' and she believed it, and she took it to heart, and she kept her mouth shut. [¶] She learned that the defendant doesn't take no for an answer particularly when she was eight years old. She told him no. She told him stop. He would for a little bit do something else and come back."
2. Analysis
The trial court instructed on a theory, duress by means of a threat of "hardship," that was legally invalid as to count 11. It also instructed on legally valid theories as to this count. " 'When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.' " (People v. Guiton (1993) 4 Cal.4th 1116, 1122 (Guiton).) "One way of finding this kind of error harmless has long been recognized. Sometimes it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory." (Guiton, at p. 1130.)
Here, the jury's verdicts on the rape counts against M. reflect that it "necessarily found" defendant guilty of count 11 on the basis of force rather than duress. The jury concluded beyond a reasonable doubt that defendant's acts of sexual intercourse with M. were forcible. M.'s testimony regarding force was that defendant manipulated her body so that she was on her back, moved her legs into position, and pulled her clothing out of the way before lying on top her and having intercourse with her. P.'s testimony regarding the force that defendant used to accomplish count 11 was significantly stronger. Defendant himself removed P.'s clothing after she refused to do so herself. P. loudly and explicitly protested defendant's attempts to place his finger in her vagina, but defendant nevertheless proceeded to place his penis in her vagina even as she made "rapid motions with [her] hands, twist[ed] [her] body, [and] tr[ied] to get away." There was no basis in the record for believing M. but not believing P. with regard to their testimony about defendant's use of force. If the jury concluded beyond a reasonable doubt that defendant had sexual intercourse with P., there was no basis to doubt her credibility about defendant's use of force.
Because the force used by defendant against P. was greater than the force used by defendant against M., and the jury found beyond a reasonable doubt that defendant used sufficient force against M. to support the rape counts, it is inconceivable that the jury did not also base its verdict on count 11 on force rather than duress. It follows that the trial court's instructional error regarding the definition of duress played no role in the jury's verdict on count 11.
Mihara, J.