Opinion
B160771.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ISABEL DIAZ, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and William H. Davis, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Isabel Diaz appeals from judgment entered following a jury trial in which he was convicted of one count of committing lewd acts upon a child (count 1) (Pen. Code, § 288, subd. (a)) and two counts of forcible lewd acts upon a child (counts 2 and 3) (Pen. Code, § 288, subd. (b)(1)) and the true finding with regard to count 2 that he inflicted great bodily injury within the meaning of Penal Code sections 12022.8 and 667.61, subdivision (b). Sentenced to prison for a term of 27 years to life, he contends his convictions in counts 2 and 3 must be reversed as there was insufficient evidence of force or duress. For reasons explained in this opinion, we affirm the judgment.
FACTUAL SUMMARY
Appellant was nine-year-old Saras "uncle." In the year 2000, Sara and her sisters would sometimes spend the night at appellants house, and sometimes Sara would go to his house just to visit and not spend the night.
Appellant was actually the husband of Saras fathers cousin. These cousins were referred to by the family as "aunt" and "uncle."
On "more than one day" appellant touched Sara. He touched her "in herprivate" while she was on the bed in the bedroom. Sara uses her "private" to "go potty." Sara pointed to the genital area on a diagram of a female child and described it as her "private."
One Saturday, Sara went to appellants house to sleep over. In the morning "he touched [her] in [her] private." She was on the "little couch" and appellant told her to come and lie down. She laid down beside him and he touched her in her "private" with his hand. She was on her back and he was on his side and he touched her under her clothes. She then took a bath and he called her over again. "But he didnt do the same thing." He told her not to tell her doctor, her mom, her dad, her aunt or her teacher. Thereafter, she went to McDonalds to eat with her sisters, her aunt, and appellant.
On a different occasion, on a Monday, appellant touched her "in [her] private over [her] clothes" while she sat next to him on a couch. Her sister was also sitting on the couch. Appellant wrapped Sara in a red blanket, putting the blanket on her lap. When Saras mother telephoned "[they] had to go home."
Count 3
On another occasion, she was sitting on the "big couch" with her sister Paola while her sister Hilda was in the kitchen with their aunt Mabel. When Paola went to the kitchen, appellant, who was standing by some curtains, called to Sara. Sara did not want to go to him, because she knew he was "going to do something to [her]" and nodded her head from side to side, indicating she did not want to go. Sara continued to watch television and appellant "peeked" in the direction of the kitchen and then carried her to the bedroom. He cradled her like a baby and took her to the bed. Appellant pulled down her underwear and Sara pulled them backup. She then "closed herlegs really tight" so he could not pull her underwear back down, but he did and started touching her; he told her not to tell anyone. He said if she told someone, he was "going to jail." At first Sara was "sad, because [she] didnt want him to go to jail." Then when he came to court, she was mad because she "didnt want this to happen." Appellant touched her with "his private part on [her] "like, he had to go to the bathroom." She felt "a little drop" that felt like "grease" on her private. After she felt the grease, "he peed on the bed." He told her that her aunt would make him wash the clothes and he then went to the bathroom. When he returned from the bathroom, her aunt Mabel walked in. When Saras mother called, Sara went home.
When appellant touched her it hurt, she thought he was "poking "her. After appellant touched her, it hurt her to go to the bathroom.
The first time appellant touched Sara, she was eight years old and was on vacation from school. The last time he touched her, she was nine years old and it was while she was in school. When appellant would touch her, she would tell him, "stop it." She told him she did not like it when he touched her in her "private." Sometimes he would stop touching her and other times he would not.
Saras "private" was hurting, "like, when you put alcohol on your cut, but it was kind of worse than that." Saras mother checked her and saw a blister and took her to the doctor. The blister hurt and itched. Sara took medication and the blisters would go away, but kept coming back. Her doctor told her she had to take a pill for a year, which she was doing at the time of trial. Sara was diagnosed with herpes simplex II, a sexually-transmitted disease.
On October 10, 2000, Los Angeles Police Detective William Dunn was present during Saras interview at the Stewart House She described the last incident that occurred on the Monday "prior to the one . . . that wed just had," which would have been October 2, 2000. Sara described the incident when appellant picked her up like "a baby." He laid Sara down on the bed face down; she covered her eyes and did not react when he told her to come. She felt him running his hand over her genital area, above her clothing. He began to undo her pants and pull her pants down; she verbally protested saying no, and then she also tried to stop him from pulling her pants down. He succeeded in pulling her pants down and he then began to run his hand over her genital area. She stated she "felt something funny inside of her, and also [made] the comment that although she didnt visibly look at him that she could tell he seemed to be manipulating his genitals with his hand."
Stewart House is an organization that provides support to victims of abuse.
Count 2
Sara described a prior incident which occurred on either September 15th or September 22, 2000 after she had spent the night with her sisters at appellants house. She and appellant were on the bed and her aunt and sisters were on a mattress on the floor next to the bed. They were all awake and playing. Sara and appellant were under the covers and "he was playing like he was a mole going under the covers with her." At some point they were face-to-face and he removed his underwear and "grabbed her hair to position her" face down. He attempted to pull her underpants down and she pulled them back up. He positioned himself on top of her and then "put his private part against her private part. She then felt water and grease, and at that point she then pulled her panties back up . . . once he released her, and she got water and grease into her panties."
DISCUSSION
Appellant contends his two convictions for forcible lewd acts must be reversed as there was insufficient evidence of force or duress. "In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Kraft (2000) 23 Cal. 4th 978, 1053.)
Penal Code section 288, subdivision (a) provides: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
Subdivision (b)(1) of Penal Code, section 288 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 three, six or eight years."
A conviction of Penal Code, section 288, subdivision (b)(1) and the finding of great bodily injury within the meaning of Penal Code, sections 12022.7 or 12022.8, calls into play sentencing pursuant to Penal Code, section 667.61.
"In order to establish `force within the meaning of section 288, subdivision (b), the People must show `defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. [Citation.]" (People v. Pitmon (1985) 170 Cal. App. 3d 38, 46, 216 Cal. Rptr. 221.)
Here, there was evidence of direct physical force. In count 3, when Sara and her sisters were at appellants house, appellant stood by curtains near the bathroom and motioned for Sara to come to him. Sara knew what appellant was going to do and did not want to go to him. When she indicated she did not want to go to him, he physically picked her up, carried her to the bedroom and put her on the bed. He twice pulled down her underwear and Sara struggled to pull them back up. He then touched her vagina with his hand, pressed his penis into her vagina and ejaculated in her against her will. In count 2, while appellant and Sara were in bed, appellant grabbed her hair, positioned her face down on the bed and got on top of her; he forced her underpants down as Sara tried to pull them back up and pushed his penis into her and ejaculated. There was more than sufficient evidence to support the jurys finding that appellant used physical force substantially different from or greater than that necessary to accomplish the lewd act itself. (See People v. Bolander (1994) 23 Cal.App.4th 155, 159; People v. Cicero (1984) 157 Cal. App. 3d 465, 474, 204 Cal. Rptr. 582.)
"Duress as used in the context of section 288 [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." (People v. Pitmon, supra, 170 Cal. App. 3d 38, 50, fn. omitted.)
"There is some overlap between what constitutes duress and what constitutes force. This is because duress is often associated with the use of physical force, which may, but need not be present to have duress. However . . . the terms cannot be treated synonymously. . . . Force, as used in the context of section 288, subdivision (b), refers only to physical force. To extend the meaning of that word to cover psychological coercion would be tantamount to rendering the word `duress meaningless in that statute." (People v. Pitmon, supra, 170 Cal. App. 3d 38, 50, fn. 9.)
Appellant subjected Sara to psychological pressures related to these molestations. Sara was only eight or nine years old when these crimes were committed and appellant continuously exploited her. Appellant was an older relative, who occupied a position of dominance. He and his wife would baby sit for Sara and her sisters and he warned Sara if she told anyone he would be jailed, implying she would be jeopardizing the family. There was substantial evidence of duress. (See People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Montero (1986) 185 Cal. App. 3d 415, 424, 229 Cal. Rptr. 750; People v. Pitmon, supra, 170 Cal. App. 3d 38, 51.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J., HASTINGS, J.