Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORT
APPEAL from the Superior Court of Riverside County. Super. Ct. No. SWF006224 Carl E. Davis, Judge. (Retired judge of the San Bdno. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Robert Eugene Dumire appeals from judgment entered following jury convictions for sexually abusing three teenage sisters. During most of the offenses, defendant, who is 71 years old, was living with the girls’ family. The jury convicted defendant of aggravated sexual assault, oral copulation and rape of a child under the age of 14 (Pen. Code, § 269, subds. (a)(1) and (a)(4); counts 1 and 2); committing a lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a); counts 3, 4, and 10 through 14); and committing a lewd and lascivious act upon a child under the age of 16 (§ 288, subd. (c); counts 5 through 9). The jury also found true the allegations that the offenses were against multiple victims. (§ 667.61, subd. (e)(5).) The trial court sentenced defendant to 48 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support defendant’s convictions for aggravated sexual assault against R-1 (counts 1 and 2). Defendant also argues that the trial court erred in admitting evidence of child sexual abuse accommodation syndrome (CSAAS), and claims the court committed Cunningham error by sentencing him to the upper term on counts 5 through 9.
Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 860 (Cunningham).
We reject defendant’s contentions and affirm the judgment.
1. Facts
Defendant lived with R-1, R-2, and R-3 and the girls’ mother (mother) for many years. He cared for the girls while mother was working and incarcerated. He also provided the family with financial assistance. Mother and the stepfather fought and took drugs. Defendant was not romantically involved with mother. Because defendant was close friends with mother and took care of the girls, the girls considered him their uncle, even though he was not biologically related.
At the time of trial, in July 2007, R-1 was 22 years old, R-2 was 20, and R-3 was 16.
R-1 (Counts 1 through 4)
R-1 had known defendant almost her entire life. While R-1 and her family and defendant lived in Pennsylvania, before moving to California in 1996, defendant began touching R-1 at night. R-1’s mother worked at night at Kmart. Defendant would wake up R-1 and tell her to go to his room. R-1 pretended to fall asleep in his room and then defendant would start touching her chest area and put his fingers in her vagina.
R-1’s family moved to California shortly before R-1 began the sixth grade in 1996. Defendant followed the family to California and moved in with them. R-1 felt uncomfortable around defendant and scared. She felt as if he was buying sex when he took her places and bought her things. She talked to defendant only because she wanted him to continue helping mother. Defendant gave mother money or rides and helped pay the rent.
R-1 did not remember when defendant started touching her after he moved in with her family in California. In California, when R-1 was in the sixth grade, defendant started trying to have sex with her. He tried putting his penis in her vagina but it would not go in. Defendant said her vagina was too small. R-1, however, also testified defendant put his penis inside her vagina but he could not put it in all of the way. She did not think about whether it hurt because she kept moving in an attempt to prevent defendant from continuing.
Defendant also performed oral sex on R-1 more than five times and requested R-1 to perform oral sex on him. R-1 claimed she did not do it. She also testified, however, that, she did not recall telling police investigator Jeff Dill that defendant would make her orally copulate defendant, but if she did tell him that, it was the truth. R-1 testified that defendant never forced her to do anything to him. She never thought defendant would hurt her, but she feared he would get annoyed with her and leave R-1’s mother if she did not cooperate. She also feared that, without defendant’s help, her mother would not be able to make it on her own, and R-1 would end up in foster care.
Defendant would enter R-1’s room in the middle of the night, while R-1 and her siblings were sleeping in the room, and take everyone out but her. She pretended to be asleep. Defendant touched her, inserted his fingers inside her vagina, kissed her, and touched her chest area. R-1 did not tell defendant to stop because she feared he would get mad and leave her mother. Instead, she continually moved around, making it difficult for defendant to touch her. Defendant would eventually get frustrated and leave the room.
In November 1999, R-1 was removed from her mother’s home and placed in a foster home in Hemet. R-1 was in high school. Defendant was living on his own. During this time, there were occasions when defendant stayed with mother. Defendant would pick up R-1 from her foster home and take her to visit mother. Sometimes mother was at work. R-1 testified that defendant resumed sexually abusing R-1. Defendant tried to have sex with R-1 at least once a week when she was between the ages of 12 and 17.
R-1 eventually was placed back with her mother. The last time defendant touched R-1 was in April 2003, when she 17 years old and staying in a motel with her family. Defendant tried to have sex with her but she pretended she was asleep and kept moving around. Defendant got annoyed and left the motel. R-1 told her boyfriend defendant had sexually abused her. Her boyfriend convinced R-1 to tell her stepfather. She also reported the abuse to the police. In August 2003, she told Officer Dill about defendant sexually abusing her.
Dill testified that when he interviewed R-1 in August 2003, she stated that defendant began molesting her when she was seven or eight years old and was living in Pennsylvania. He continued molesting her after moving to California. The molestation included directing her to perform oral sex on him. When R-1 did not want to give defendant oral sex, she told defendant and defendant would not make her do it. Defendant never threatened R-1. R-1 complied with defendant’s demands because she did not want to get defendant in trouble.
Officer Dill testified that R-1 told him that defendant had sexual intercourse with her. One time in Pennsylvania, defendant was on top of R-1 for about 20 minutes, trying to penetrate her vagina with his penis. She said she experienced a great deal of pain and cried. R-1 told Dill that defendant last attempted to have intercourse with her when R-1 was between the fifth and sixth grade.
Defendant attempted intercourse with R-1 approximately once a week and committed other sexual acts with her daily until she was in the sixth grade. R-1 told Dill that she orally copulated defendant 15 times.
R-1 told Dill that the last time defendant molested her was in 1997, but R-1 also told him about another molestation incident in April 2003, at a motel in Hemet, when R-1 was 17 years old.
R-1’s mother and stepfather were arrested in May 2003, and the three girls and their two brothers were removed from their parents’ custody.
R-2 (Counts 5 through 9)
Since defendant is not challenging his convictions for molesting R-2 and R-3, evidence relating to those offenses is only briefly summarized below.
R-2 had known defendant since she was a baby. When R-2 was 14, she lived with her mother, stepfather, brothers, and R-3 in Hemet. R-1 was in foster care. After her stepfather left for awhile, defendant moved in. He also stayed with R-2 and her siblings when her mother and stepfather were in jail. He provided them with food and a place to live.
When R-2 was 14 years old, living in Hemet, defendant began molesting her. At the time, defendant was not living with R-2’s family and R-1 was in foster care. Defendant picked up R-2 and R-1 and took them to his house to spend the night. At nighttime, while the two girls were lying on defendant’s bed, defendant rolled over towards R-1 and she got mad at defendant. Defendant then turned to R-2 and started molesting her. R-2 and R-1 did not discuss the incident until R-2 was 15 years old.
Defendant molested R-2 again when she was 16 years old and her family was staying in a motel in Hemet. Defendant continued to molest R-2 on other occasions. R-2 testified that, other than sexually abusing her, defendant never physically hurt her or was violent towards her. Nevertheless, she was afraid of him. She said she did not know why. The last time R-2 saw defendant was when she was 16 years old.
R-3 (Counts 10 through 14)
R-3 testified that beginning when she was about 12 years old, defendant molested her every week for about a year. Defendant told R-3 not to tell anyone about the molestation and that he would give her a dollar. R-3 testified that she did not tell defendant not to molest her and did not push him away because she was “scared at the time.” She feared he might “do something” because she “was only a little girl” and was alone with him.
Defendant’s Testimony
Defendant denied committing the charged offenses. He denied ever touching the girls sexually.
2. Sufficiency of Evidence of Crimes Against R-1
Defendant contends there was insufficient evidence to support his convictions for aggravated sexual assault based on forcible oral copulation (count 1) and rape (count 2) against R-1. (§ 269, subd. (a)(4) and (a)(1).) Specifically, defendant argues there was no evidence he used force or threats in committing the offenses. R-1 testified defendant molested her when she pretended to be asleep. In addition, defendant asserts there was no proof the penetration required to prove rape occurred as alleged in the amended information, between June 17, 1996, and June 17, 1997, when R-1 was 11 years old. As to the forcible oral copulation conviction, defendant argues R-1 testified it did not occur. Defendant further argues there is no evidence as to whether the crimes alleged in counts 1 and 2 occurred in California or out of state, in Pennsylvania.
Our review of any claim of insufficiency of the evidence is limited. “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there is insufficient evidence to sustain his molestation convictions. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Applying this standard of review, we conclude the record discloses sufficient evidence to support defendant’s count 2 conviction.
Under section 269, subdivision (a), subsections (1) and (4), “[a]ny person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. [¶] . . . [¶] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.”
Defendant’s convictions for committing aggravated sexual assaults on R-1 are based on the acts of oral copulation (count 1) and rape (count 2). Under section 269, in order for these offenses to constitute an aggravated sexual assault, they must be committed against the victim’s will by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another or 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. (§§ 261, subd. (a)(2) & (6), and 288a, subd. (c)(2) & (3) and subd. (d).)
“Force,” in the context of section 269, means “‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’ [Citation.] A number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act. [Citations.]” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).)
“Duress,” as applied to the offense of sexually aggravated assault based on oral copulation, 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.]” (Cochran, supra, 103 Cal.App.4th at p. 13.) “‘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.]” (Id. at pp. 13-14, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 51 (Pitmon); see also People v. Cardenas (1994) 21 Cal.App.4th 927, 940 and People v. Leal (2004) 33 Cal.4th 999, 1001-1002, 1008.) “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.” (Cochran, supra, 103 Cal.App.4th at p. 14, citing People v. Senior (1992) 3 Cal.App.4th 765, 775, and People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
We note the definition of “duress” applied to the offense of sexually aggravated assault based on rape is slightly different in that under the rape provision, section 261, “duress” is expressly defined as “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.”
The threat of “hardship” is not included in the definition of “duress” in section 261, and thus may not be considered in determining whether there was duress in committing rape. (People v. Leal, supra, 33 Cal.4th at p. 1001.) This, however, is not the case with regard to oral copulation because section 288a does not define “duress” with regard to the commission of oral copulation and thus the common law definition, as stated in Pitmon and Cochran,which includes threat of hardship, applies to an oral copulation offense. (People v. Leal, supra, at pp. 1001-1002, 1008.)
Here there was sufficient evidence defendant used force, fear, threats and duress. Counts 1 and 2 allege defendant orally copulated and raped R-1 when she was 11 years old, from June 1996 through June 1997. Evidence establishing that the oral copulation offense was an aggravated sexual assault included R-1’s and Dill’s testimony that defendant orally copulated her numerous times.
Dill further testified that R-1 told him defendant would tell her to orally copulate him and on some occasions would “grab the back of her head and direct her mouth down towards his crotch.” In response, R-1 would pretend she was sleeping and move her head away. On one occasion, when she was awake, she pulled her head away from his penis and defendant said, “Don’t be a brat.” Dill acknowledged that he did not remember if R-1 used the word, “grab” or “force” when describing how defendant directed R-1 to orally copulate him. Dill did not recall the exact words she used, although he remembered her saying, “He put my face down there.”
Dill also testified that R-1 told him defendant performed oral sex on her but did not say how many times. Rather, she said defendant molested her almost daily. R-1 said she complied with defendant’s demands because she did not want to get defendant in trouble.
As to evidence the charged rape offense was a sexually aggravated assault, R-1 testified that after she and her family moved back to California, when R-1 was in sixth grade, defendant first started trying to have sex with her. Initially, R-1 testified defendant tried putting his penis in her vagina but it would not go in. Defendant said her vagina was too small. R-1, however, also testified defendant put his penis inside her vagina but he could not put it in all of the way.
Dill testified that R-1 told him that on one occasion defendant tried to have sex with her and he could not get his penis all the way inside her. Defendant was on top of her, trying for about 20 minutes. R-1 said it was painful and she was crying. Defendant told her it would hurt for only a little while. Although Dill testified R-1 told him the incident occurred in Pennsylvania, R-1 testified to the contrary, that defendant did not start trying to have sex with her until she had moved to California, and that defendant had tried to have sex with her on a weekly basis but had told her her vagina was too small.
The jury could have reasonably inferred the incident in which defendant repeatedly attempted to force his penis into R-1’s vagina, causing her pain, occurred in California, when R-1 was in the sixth grade. According to Dill, R-1 said defendant last molested her when she was in the sixth grade, which would have been during the period of June 1996 through June 1997, as alleged in the amended information. Although R-1 also told Dill defendant molested her once more in 2003, when she was 17 years old, she indicated this was not the incident in which she experienced pain and cried.
There were also additional circumstances supporting defendant’s convictions for aggravated sexual assault as to both the rape and oral copulation offenses. R-1 was a young impressionable child, in the sixth grade, with an extensive history of having been molested by defendant when she was younger, over a three- to four-year period. There was a significant age and size difference between defendant and R-1. Also, when defendant molested R-1, he isolated her from others, usually in his or R-1’s bedroom.
In addition, R-1 said she feared that if she did not cooperate, defendant would leave her mother and this would likely result in the family becoming financially destitute. A reasonable inference could be made that defendant was well aware of R-1’s mother’s financial dependence on him and the girls’ awareness of this. He paid the family’s rent and other bills, and provided mother with transportation. As a consequence, R-1 resisted defendant’s attempts to molest her in an indirect, non confrontational way. A reasonable juror could find that it was apparent to defendant that R-1 was resisting, with her continual movements impeding his ability to molest her, but nevertheless persisted in daily molesting her.
In addition, defendant was the girls’ primary caretaker. He cared for them when mother was working and when mother and the stepfather were incarcerated. Although defendant was not a relative of the girls, his lengthy, close relationship with them was similar to that of a relative or parent. Furthermore, defendant molested R-1 for several years when she was at an age when most children her age still view adults as authority figures. Defendant used his position of dominance and authority over R-1 to exploit her sexually almost daily over a very lengthy period of time. (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238-239) In People v. Schulz, supra, 2 Cal.App.4th at page 1005, the court explained: “‘[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] ‘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.”
Defendant argues the instant case is analogous to People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), a sexual abuse case in which the court held there was insufficient evidence of force or duress. (Id. at pp. 1250-1251.) Defendant further attempts to distinguish Cochran, supra, 103 Cal.App.4th 8, in which the court found there was sufficient evidence of duress to support the defendant’s convictions for aggravated sexual assault and forcible lewd acts. (Id. at p. 12.) Defendant argues that in Cochran, the victim was younger than R-1 and testified she was not afraid of the perpetrator. The victim was nine years old at the time of the abuse and the perpetrator was the victim’s father. In addition, in Cochran, the defendant hurt her and afterwards gave her money, candy or other things. (Ibid.) The defendant also told her not to tell anyone or he would get in trouble and go to jail. (Ibid.) There was a videotape showing the victim orally copulating the defendant, during which the victim complained that the defendant was hurting her.
While Cochran, supra, 103 Cal.App.4th 8, is factually distinguishable, it is nevertheless instructive. Cochran held that “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.’ [Citations.] [¶] [The defendant here] relies on [our holding in another case that] . . . ‘“Psychological coercion” without more does not establish duress. At a minimum there must be an implied threat of “force, violence, danger, hardship or retribution.”’ [Citation.] We rejected the People’s argument that duress was established by the [12-year-old] victim’s testimony that the defendant urged her not to report the molestations because it would ruin his marriage [to her mother] and naval career, stating ‘such testimony establishes merely the threat of hardship directed at “later disclosure of the sex acts and not [the failure to perform] the sex acts themselves.”’ [Citations.] [¶] We believe this language . . . is overly broad. The very nature of duress is psychological coercion. A threat to a child of adverse consequences . . . may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent. We also note that such a threat also represents defendant’s attempt to isolate the victim and increase or maintain her vulnerability to his assaults.” (Cochran, supra, 103 Cal.App.4th 8 at pp. 14-15; italics added.)
Here, the totality of the evidence supports a finding that defendant committed aggravated sexual assaults of oral copulation and rape against R-1. As in Cochran, supra, 103 Cal.App.4th at pages 15-16, the evidence showed that R-1 was a young, vulnerable, and isolated child who engaged in sex acts only in response to defendant’s parental and physical authority. Her compliance was derived from intimidation and the psychological control defendant exercised over her and was not the result of freely given consent. Viewing the evidence in its totality and assuming the trier of fact resolved all conflicting inferences in favor of the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 576), we conclude there was sufficient evidence to support defendant’s counts 1 and 2 convictions for aggravated sexual assault.
3. Admissibility of Evidence of Child Sexual Abuse Accommodation Syndrome
Defendant contends the trial court erred in allowing evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS). Defendant acknowledges that under California law the evidence is admissible for certain limited purposes. Noting that in other states, such evidence is inadmissible, defendant argues that California law should be changed to exclude CSAAS evidence for any purpose. Defendant argues CSAAS evidence should be excluded because CSAAS evidence can be just as consistent with false testimony as with true testimony.
During the trial, defendant objected to Dr. Laura Brodie, a clinical psychologist, testifying to CSAAS in general terms. The court overruled defendant’s objection. Thereafter, Brodie testified to CSAAS, without making any reference to the victims or their particular circumstances. Defendant did not interpose any objections during Brodie’s testimony and does not argue her testimony exceeded the scope of CSAAS evidence permitted under California law.
We reject defendant’s contention the trial court erred in allowing Brodie’s testimony on CSAAS based on the doctrine of stare decisis. Defendant is challenging the CSAAS evidence solely on the ground California law should be overturned to exclude the evidence introduced in the instant case. California courts, such as People v. Housley (1992) 6 Cal.App.4th 947, 955, and People v. Bowker (1988) 203 Cal.App.3d 385, 393-394, have ruled such evidence is admissible and our high court has not overturned such case law.
4. Sentencing Error
Defendant contends the trial court violated Cunningham, supra, 549 U.S. 270, 127 S.Ct. at page 860, by sentencing defendant to upper terms on counts 5 through 9, based on facts that were not found true by the jury or admitted by him.
At the sentencing hearing, the trial court stated that it was imposing the upper term on count 5 on the ground defendant violated a position of trust and because the victims were particularly vulnerable due to their living circumstances. The court also imposed the upper term on counts 6 through 9, with count 5 designated as the principle term.
Since the upper term was based on at least one aggravating factor, defendant was eligible for the upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 812.) During the sentencing hearing, defense counsel acknowledged that the victims’ trust and vulnerability were valid aggravating factors. This, along with defendant’s failure to disagree, constituted an admission of aggravating circumstances.
In addition, there was overwhelming evidence supporting such findings. It is thus likely that the jury would have found true the aggravating factors of victim vulnerability and trust.
Furthermore, the jury found true the aggravating factor that defendant committed his crimes against multiple victims. (People v. Calhoun (2007) 40 Cal.4th 398, 405-408.) Defendant acknowledges that under People v. Sandoval (2007) 41 Cal.4th 825, 840-842 and People v. Black, supra, 41 Cal.4th at page 812, there was no violation of Cunningham but nevertheless raises this contention in order to preserve the issue for federal review.
We conclude the trial court did not violate Cunningham by imposing the upper term on counts 5 through 9.
5. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.