Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Nos. PA060018 c/w PA060822 Shari K. Silver, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Rony Folgar appeals from a conviction entered after a jury found him guilty of three counts of forcible lewd acts on a child under 14 years (Pen. Code, § 288, subd. (b)(1); counts 1 through 3), false imprisonment by violence (§ 236; count 4), misdemeanor molesting a child under the age of 18 years (§ 647.6, subd. (a)(1); count 6), and possession of matter depicting a minor engaging in sexual conduct (§ 311.11, subd. (a); count 7). The trial court sentenced defendant to state prison for 23 years and eight months, as follows: consecutive terms on counts 1, 2 and 3, consisting of the upper term of eight years as to count 1, the midterm of six years each as to counts 2 and 3; consecutive to the foregoing terms, the upper term of three years as to count 4 and then eight months, as one-third of the midterm of 24 months, as to count 7; and, to run concurrently with all other counts, a term of 365 days in county jail as to count 6.
All further statutory references are to the Penal Code.
Defendant contends the evidence was insufficient to support his conviction on one of the counts of forcible lewd acts. As to his conviction of felony false imprisonment, defendant claims insufficiency of the evidence, instructional error and sentencing error. We modify the judgment to stay the sentence on count 4 pursuant to section 654 and affirm the judgment as modified.
FACTS
A. Prosecution Evidence
Eight-year-old Martha L. went to visit her four-year-old friend and neighbor Alexandra, at the house where she lived with her mother and defendant, who was her stepfather. Alexandra and Martha played Disney games on the computer. Defendant was on the couch in the same room. Alexandra went to another room where her mother was.
Martha moved to the couch. Defendant sat next to her. Defendant took Martha’s hand and rubbed the center of her palm with his thumb in a circular motion.
Defendant then took Martha to the computer, asked her to sit on his lap and held her there with one hand across her stomach. He showed her several sexually explicit videos on the computer. When Martha tried to get off defendant’s lap, he tightened his hold on her stomach. Defendant rubbed Martha’s thigh, touched her genitals over her underwear, and then placed his hand inside her underwear and touched her genitals.
Defendant held Martha by the hand, led her into the bathroom and closed and locked the door. Defendant gripped Martha’s shoulders with his hands and asked her to kiss him. She pushed him back and said, “No.” Then she opened the door, left the bathroom, and went to the room where Alexandra and her mother were.
Martha told Alexandra’s mother that she had to go because her mother told her to leave at 4:00 p.m. That was not true, but Martha wanted to leave because she did not want defendant “to do that anymore.”
When Martha arrived at home, her mother thought she looked like something was wrong. Martha initially denied that anything was wrong but eventually told her mother that defendant had touched her. Martha told her mother that defendant offered to teach her how to kiss and kissed her neck. A neighbor called the police to report that Martha had been molested.
Two San Fernando police officers came to Martha’s house and took her to the police station. At the station, Officer Castellon drew a gingerbread person and asked Martha to show him where defendant touched her. She made a rubbing motion in the groin area of the drawing. The results for Martha’s sexual assault exam were negative for evidence of sexual abuse.
Officer Anthony Vairo, the investigating officer, visited at Martha’s house and then went to defendant’s house. Defendant acknowledged that Martha had come that day to play on the computer with Alexandra, but she became upset and left abruptly. Defendant also acknowledged that several young girls came over frequently to play. He told Officer Vairo that he had caught them looking at pornography on his computer and told them to stop. When the officer asked defendant to show him the website, defendant cooperated by opening his laptop and going to a website showing sexually explicit behavior. Officer Vairo seized the laptop and later obtained a search warrant for its contents. Defendant was taken into custody.
Martha had been to defendant’s house one previous time in August 2007 with her 11-year-old sister, Rubi L., and their friends, Jackie and 10-year-old Venus. Defendant took pictures of them. For one photo, he posed Rubi on her hands and knees. Another photo depicted the backside of a girl on her hands and knees with Venus and Jackie.
Defendant showed Rubi, Venus, Jackie and Martha sexually explicit videos on his computer. According to Rubi, defendant showed the girls “ugly things” on his computer. Rubi described a video showing sexually explicit behavior between a naked boy and girl and another video showing similar behavior between men. Both Rubi and Venus said defendant was not by the computer. Rubi testified that apparently defendant heard the sounds from the video and told the girls not to “look at those ugly things.” According to Venus, he did not tell them not to look.
Detective Gary Hartog was employed by the Los Angeles County Sheriff’s Department as a forensic computer examiner. He was trained in investigating child pornography. When Detective Hartog examined defendant’s laptop, he found several video files showing pre-teen children engaging in sexually explicit activities. He also found various photos of young girls in suggestive poses. The videos and the photos were shown to the jury. In addition, Detective Hartog found a search acronym and other search terms commonly used to locate child pornography on the Internet. He opined that defendant was “grooming” Alexandra’s playmates to participate in child pornography.
B. Defense Evidence
Daniel Nolte (Nolte) was employed as a computer network administrator for Fulcrum Financial Inquiry. He was involved in computer forensic services as they related to financial accounting. He examined a duplicate of defendant’s hard drive. Nolte stated that three files on the computer could be child pornography. The files came onto the computer’s hard drive in August 2007. He could not find any indication, however, that the files had been accessed. He conceded that he could not say with certainty that they had not been viewed. Nolte opined that the files could have been downloaded accidentally without defendant’s knowledge.
Roxanne Flores (Flores), defendant’s 26-year-old niece, frequently stayed with defendant’s family on weekends with some of her friends. All of them had access to defendant’s computer. She had personally downloaded sexually explicit material, some by accident, and had seen some of her friends downloading similar material on the computer. Neither Flores nor any of her friends were at defendant’s house between August 14 and 17, 2007. She could not recall whether any of them were at the house on earlier dates in August.
DISCUSSION
A. Sufficiency of the Evidence of Force as to the “Couch Incident”
Defendant contends there was insufficient evidence of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” as to the “couch incident” count to support the verdict of forcible lewd conduct (§ 288, subd. (b)(1)). We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we determine whether there was substantial evidence to permit a reasonable trier of fact to find the essential elements of the crime beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We examine the entire record in the light most favorable to the judgment and presume the existence of every supporting fact the trier of fact could reasonably deduce from the evidence. (Ibid.) We accord due deference to the trier of fact, even if the evidence might also be reasonably reconciled with a contrary finding. (Id. at pp. 1053-1054.)
To be guilty of violating section 288, subdivision (b)(1), a person must use force, violence, duress, menace, or fear of immediate and unlawful bodily injury to commit a lewd or lascivious act on a child. “In subdivision (b), the element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim... is intended as a requirement that the lewd act be undertaken without the consent of the victim.” (People v. Neel (1993) 19 Cal.App.4th 1784, 1787.) If the person acts without such force, violence, duress, menace, or fear, he or she is guilty of the lesser included offense in section 288, subdivision (a).
Section 288 provides in pertinent part: “(a) Any person who willfully and lewdly commits any lewd or lascivious act... 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. [¶] (b)(1) 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.”
The trial court instructed the jury on the definitions of force, duress, menace and fear of immediate and unlawful bodily injury. The verdict forms completed by the jury did not specify the element or elements the jury found. Substantial evidence sufficient to support a finding of any single element would require that we affirm defendant’s conviction of forcible lewd conduct under section 288, subdivision (b)(1).
If a defendant uses any force that is “‘different from and in excess of the type of force’” required to accomplish the lewd act when the victim consents, the force requirement in section 288, subdivision (b)(1), is satisfied. (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005.) It is enough that the force is substantially different, whether or not it is substantially greater, than that necessary to commit the lewd act. (Ibid.) Grabbing, holding or restraining in conjunction with the conduct constituting the lewd act itself satisfies the force requirement, according to a majority of courts. (Ibid.)
In two 1992 decisions, the Sixth Appellate District court stated that certain grabbing and restraining acts did not satisfy the force requirement in section 288, subdivision (b)(1). In People v. Schulz (1992) 2 Cal.App.4th 999, the acts were the defendant’s grabbing the victim’s arm and holding her while he fondled her. (Id. at p. 1004.) In People v. Senior (1992) 3 Cal.App.4th 765, the act was defendant’s pulling the victim back when she tried to pull away from sexual activity. (Id. at p. 774.) In 1994, however, the Sixth Appellate District court issued People v. Bolander (1994) 23 Cal.App.4th 155, stating that “we respectfully disagree with the interpretation of the ‘force’ requirement... in Schulz and Senior.... ‘... As used in that subdivision, “force” means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” [Citations.]’ [Citation.]” (Id. at pp. 160-161.)
The evidence shows that, when Martha was sitting on the couch, defendant held Martha’s hand while he was rubbing her palm in a circular motion. The lewd act was his rubbing her palm. Taking her hand and holding it were not required to accomplish that act. It was an application of force that was substantially different, whether or not it was substantially greater, than that necessary to commit the lewd act and, hence, satisfied the force element set forth in section 288, subdivision (b)(1). (People v. Alvarez, supra, 178 Cal.App.4th at p. 1005.) Defendant could have achieved sexual gratification by rubbing Martha’s hand if she had sat on the couch with her palm facing upward.
Even without the “force” element, substantial evidence supports a finding that defendant applied “duress” in the “couch incident.” In the context of forcible lewd acts on a child under section 288, duress has been defined as “‘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. Cochran (2002) 103 Cal.App.4th 8, 13, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 50.) To determine whether substantial evidence supports a finding of duress, it is necessary to consider the totality of the circumstances, including such factors as the age of the victim, the age difference between the victim and the defendant, the disparity in physical size between the victim and the defendant, and the relationship between the victim and the defendant. (Cochran, supra, at pp. 13-14.) These and other factors may contribute to the victim’s perception of the defendant as being in a position of dominance or authority over her, to the victim’s sense of relative physical vulnerability to the defendant, or otherwise to the psychological coercion of the victim. (Id. at pp. 14-15.)
The evidence reveals that Martha was playing Disney games on the computer with her four-year-old friend Alexandra at defendant’s house, but Alexandra left the room. Martha, an eight-year-old girl, was alone in a room with defendant, an adult man and her friend’s stepfather. That Martha would have a sense of physical vulnerability and be the victim of psychological coercion are conclusions easily drawn from the totality of the circumstances. The factors included the age disparity, the stepfather as an authority figure, the adult man as in a dominant position, the isolation from other people with the adult man being the only other person there, and the difference in physical size between Martha and defendant. We conclude that there was substantial evidence to permit a reasonable trier of fact to find beyond a reasonable doubt that Martha was under duress when defendant grabbed her hand and started rubbing her palm. (People v. Kraft, supra, 23 Cal.4th at p. 1053.) Given that substantial evidence supports the verdict under section 288, subdivision (b)(1), on the “couch incident, ” we must affirm it.
B. Sufficiency of Evidence of Felony False Imprisonment
Defendant contends there is insufficient evidence to support a verdict of felony false imprisonment. He asserts the verdict should be modified to reflect the lesser included offense of misdemeanor false imprisonment and the matter should be remanded for resentencing. We disagree.
“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) Personal liberty is violated when a person restrains the victim’s freedom of movement, by actions or words, ranging from intimidation by words to personal violence. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) If the offense is “effected by violence, menace, fraud, or deceit, ” it is a felony. (§ 237, subd. (a).) Otherwise, it is a misdemeanor. (Ibid.) “‘Violence... means the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint. [¶] Menace means a threat of harm express or implied by word or by act.’” (People v. Babich (1993) 14 Cal.App.4th 801, 806, italics omitted.)
Felony false imprisonment is punishable by imprisonment in state prison for 16 months, two years or three years. (§§ 18, 237, subd. (a).) Misdemeanor false imprisonment is punishable by imprisonment in the county jail not to exceed one year and/or a fine of $1,000. (§ 237, subd. (a).)
Defendant restrained Martha’s freedom of movement when he, an adult man, took the young child’s hand and began leading her to another location. That action alone was sufficient restraint of Martha’s freedom of movement to support a verdict of false imprisonment. (§ 236; People v. Reed, supra, 78 Cal.App.4th at p. 280.)
Defendant cites the decision issued by our division in People v. Matian (1995) 35 Cal.App.4th 480 as support for his claim that the evidence does not support a finding of false imprisonment by violence or menace, i.e., felony false imprisonment. The sketchy facts given in Matian were that a man squeezed the breasts of a woman sufficient to cause pain and possibly bruising. (Id. at p. 485.) This sexual assault occurred in a room adjacent to his office. When the woman tried to leave, the man grabbed her arm and yelled at her not to go. The man went back to his office, from which he had full view of the woman. Each time thereafter that the woman got up from her chair to leave, the man glared at her and got out of his chair to approach her. She testified that she sat back down each time because she was afraid and did not want him to touch her again. (Ibid.) The Matian court concluded that there was insufficient evidence of violence or menace to support the man’s conviction for felony false imprisonment. (Id. at pp. 486-487.) The court modified the judgment to reflect a conviction of misdemeanor false imprisonment. (Id. at pp. 483, 488.)
More recently, in People v. Castro (2006) 138 Cal.App.4th 137, a court in another division of this district questioned the violence and menace analysis of Matian and reached a different conclusion under the facts in the case before it. While driving a van, Castro pulled alongside a 16-year-old girl walking on her way to school. He first asked if she wanted a ride. Then he told her he would give her money if she would let him perform a sexual act on her body. She kept walking. He grabbed her forearm, pulled her around and pulled her toward his vehicle. She was able to pull away from him and started running. (Id. at pp. 140-142.) The Castro court concluded that the evidence was sufficient to support a finding of false imprisonment by menace or violence. (Id. at p. 143.)
As the Castro court noted, the Matian opinion was certified only for partial publication and, therefore, the analysis of the felony factors was not in the context of the full facts and the analysis of the underlying sexual assault. (People v. Castro, supra, 138 Cal.App.4th at p. 142.)
The facts regarding defendant’s false imprisonment of Martha distinguish the instant case from Matian and are more comparable to those in Castro. Martha had more reason to fear defendant would harm her if she resisted than the adult victim in Matian or the teenaged victim in Castro. Martha was a very young girl and physically very small in comparison to defendant. Unlike the Castro situation, defendant was physically present with his victim, not in a separate room as in Matian or separated by a vehicle door as in Castro. Furthermore, unlike the facts in Castro, defendant had already sexually molested Martha while holding her on his lap. Unlike the man in Matian, defendant did not walk away from his victim. Rather, he continued physically to restrain her by holding her hand. Defendant escalated his use of force restraining Martha and his threatening conduct toward her. He started leading her to a place where she did not want to go. He caused her to enter the bathroom and isolated her in the room with him by closing and locking the door. Then, he took her further into his control by gripping her shoulders with his hands. Defendant’s actions involved considerably more force and implied threat of harm to Martha than the van driver’s actions with respect to the teenager in Castro. We conclude that there is sufficient evidence of defendant’s use of menace and violence to support the defendant’s conviction of felony false imprisonment. (§ 237, subd. (a); People v. Castro, supra, 138 Cal.App.4th at p. 143.)
C. Jury Instructions on False Imprisonment
Defendant contends that, because the Court failed to instruct on the lesser included offense of misdemeanor false imprisonment, the felony false imprisonment conviction must be reversed. We disagree.
In criminal cases, the trial court has a sua sponte duty to instruct on the general principles of law which are relevant and closely connected to the facts established by the evidence and which are necessary for the jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The duty extends to giving instructions on lesser included offenses where warranted, even if a defendant fails to request the instruction or expressly objects to the giving of the instruction. (Id. at pp. 154-155.) The trial court must give “instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” (Id. at p. 154.)
As we previously concluded with respect to the sufficiency of the evidence, in the instant case, there is ample evidence that defendant’s false imprisonment of Martha was by violence and menace under section 237. (People v. Castro, supra, 138 Cal.App.4th at p. 143; People v. Babich, supra, 14 Cal.App.4th at p. 806.) There was no evidence suggesting that defendant unlawfully restrained Martha, but did so without violence or menace. (People v. Babich, supra, 14 Cal.App.4th at p. 807.) Under such circumstances, the court had no duty to instruct the jury on misdemeanor false imprisonment. (People v. Breverman, supra, 19 Cal.4th at p. 154.)
For the same reason, even assuming that the court’s failure to give the instruction was error, it was harmless error. That is, based upon our examination of the record, we are of the opinion that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the asserted error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Having thus resolved the issue, we decline to consider further claims and arguments raised by defendant.
D. Sentencing on False Imprisonment Conviction
Defendant contends that section 654 prohibits imposing sentence for false imprisonment, in that defendant’s behavior supporting the offense arose during an “indivisible course of conduct” intended to facilitate defendant’s lewd conduct in the bathroom. Section 654 prohibits multiple punishments for separate criminal offenses arising out of the same act, omission or course of conduct. (§ 654; People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....”
Defendant acknowledges that the section 654 sentencing limitation does not apply when, in a single course of criminal conduct, the acts constituting the various crimes serve not one, but multiple, criminal objectives harbored by the defendant. (People v. Britt (2004) 32 Cal.4th 944, 951-952; People v. Harrison (1989) 48 Cal.3d 321, 335.) The trial court determines the defendant’s intent and objectives for purposes of section 654. (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.) We must uphold the court’s determination if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162-163; People v. Andra (2007) 156 Cal.App.4th 638, 640.)
The record reveals that the trial court imposed the sentence on the felony false imprisonment count without making any express findings with respect to the applicability of section 654. On appeal, however, we presume “in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence.” (People v. Kraft, supra, 23 Cal.4th at p. 1053; accord, People v. Andra, supra, 156 Cal.App.4th at pp. 640-641.) On that basis, we presume the court found that defendant had a different intent and objectives for the false imprisonment than for the forcible lewd conduct in the bathroom.
In support of his contention that the trial court erred, defendant relies on People v. Latimer (1993) 5 Cal.4th 1203, in which the court held that section 654 required a stay of sentence on a kidnapping committed solely in order to facilitate rape of the kidnap victim, where the defendant had also been sentenced for rape. (Id. at pp. 1216-1217.) The court applied the test that “‘[w]hether a course of criminal conduct... gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (Id. at p. 1208.)
As we previously concluded, defendant’s conviction for forcible lewd acts and felony false imprisonment is supported by substantial evidence. Defendant does not challenge that substantial evidence supports the verdict under section 288, subdivision (b)(1), as to defendant’s acts in the bathroom. There is nothing to indicate that defendant forcibly falsely imprisoned Martha for any purpose other than to facilitate the accomplishment of the sexual offense in the bathroom. We conclude that the evidence does not support a conclusion that defendant acted according to more than one independent criminal objective. (See People v. Perry (2007) 154 Cal.App.4th 1521, 1527.) Given the offenses were incident to one objective, section 654 requires a stay of the sentence on count 4, felony false imprisonment. (People v. Latimer, supra, 5 Cal.4th at p. 1208.)
Our conclusion does not require remand for the trial court to exercise its discretion with regard to modification of the sentence. Therefore, we shall modify the judgment rather than remand for a new sentencing hearing. (People v. Flores (1987) 193 Cal.App.3d 915, 922.)
DISPOSITION
The judgment is modified to stay sentence on count 4 (felony false imprisonment) under section 654. As so modified, the judgment is affirmed. The clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J.ZELON, J.