Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC753887
Duffy, J.
A jury convicted the defendant herein, Vicente Galvan, of numerous sex offenses. He claims that there was insufficient evidence of force or duress to sustain the judgment as to three of his convictions. We agree with defendant with regard to one conviction and will remand the case for re sentencing on a lesser included offense.
FACTS AND PROCEDURAL BACKGROUND
I. Convictions and Sentence
Defendant was charged by information with 12 sex offenses under the California Penal Code. (All statutory citations are to that code unless otherwise indicated.) Twelve-year-old B. C., defendant’s cousin, was the victim in some incidents, whereas others involved her older sister, E. C., who was then either 16 or 17 years old. Defendant was in his early twenties at the time of all of the offenses.
As relevant to defendant’s appeal, which involves challenges to the sufficiency of the evidence on counts one, three, and four, each count alleged that he committed the crime of lewd or lascivious act on a child by force or fear (§ 288, subd. (b)(1)) on B. C. between April 17, 2006, and July 30, 2006.
Convicted of 11 of the 12 charged felony sex offenses and of the lesser offense of simple battery (§ 242) on the twelfth charged offense, defendant received a sentence of 19 years in state prison.
II. Facts
A. Count 1
Count 1 involved an incident that occurred as defendant and B. C. were watching an Ace Ventura motion picture or television episode based on the eponymous comedic detective character.
B. C. testified that as she and defendant were watching the Ace Ventura production defendant was lying on a large couch on his side, i.e., with his back to the cushions. B. C. was lying in front of him on the couch because she was sleepy. E. C. also was watching the production but was sitting on the floor with her back to the couch. Defendant placed a leg over B.C.’s legs, holding her in place. She thought it odd but because he made no further physical imposition she did not complain or resist; she thought he might just need more room for his leg. But then, as “we were watching the movie,... all of a sudden, I feel his hand start to, like, creep down the part of my legs, and he, like, went for my butt, and he just started rubbing it up and down with his hand.” She repeatedly moved his hand away but he repeatedly returned to using it for sexual fondling. “I just kept on moving it. He just kept on putting it back.”
“I tried to get up,” B. C. continued. “But I couldn’t, because... his legs pinned me down with one of his legs over both of mine.” Defendant continued to fondle B. C., roaming around her buttocks and breasts for as long as 90 minutes. The prosecutor asked, “Were you trying to get up during this time?” and B. C. replied, “Yeah, but his legs were over mine.”
B. Count 3
Count 3 involved an incident that occurred as defendant and B. C. were looking in a cabinet in a closet in the game room that was used to store digital video discs. As B. C. was perusing the choices, defendant put his hands on the cabinet so that one arm was on either side of her. He either pulled her toward him or moved himself closer to her and began to fondle her breasts and buttocks. “I told him to stop and to let’s go, to get out of the cabinet, and he asked me—first time he said anything to me while he was doing this. He was, like, ‘Are you sure you don’t want to stay longer,’ and I’m like, ‘Yes, I’m sure.’ He kept on wanting me to stay, and I was, like, no. I just grabbed a DVD and I left.”
Defendant committed these acts in the presence of B. C.’s five-year-old sister, who evidently was unaware of their significance. B. C.’s older sister E. C. was present elsewhere in the house but was on the telephone.
The prosecutor asked: “Did you have to do anything, like elbow him or push him in order to get out of the DVD closet to walk back into the house?” B. C. answered, “I don’t remember.”
B. C. further testified, “At this point, I realize that this isn’t like—it’s not an accident what he’s doing. He’s really, like, hurting me, and, like, I guess I could say that the first two times, I was in denial that it was happening, but this time made me realize what he was doing to me.”
The prosecutor later asked: “[Y]ou testified that at some point after the defendant had been touching you all over your body, going up and down while you were in the DVD cabinet room closet, that you selected a movie and you were able to walk out of the room. Is that what happened?
“A. Yes.
“Q. Okay. Did he ever try to stop you from leaving when you tried to leave?
“A. No. He just told—he asked me if I wanted to stay longer. That’s how I guess he tried, but he didn’t really, like, physically try to make me stay.
“Q. Did you have to push past him or duck underneath his arms or do anything in order to walk around him?
“A. Honestly, I don’t remember.
“Q. Do you remember what movie you grabbed?
“A. Sound of Music.
“....
“Q. And what did you do at that point after you grabbed the movie and you started walking out of the DVD cabinet closet?
“A. I just left, and he came in and we put in the movie. He didn’t stay for the whole movie, and that was it.
“Q. Did he try to touch you at all when you were watching the Sound of Music?
“A. No.”
C. Count 4
Count 4 involved an incident that occurred as defendant and B. C. were watching a video production involving the Peanuts comic strip character Snoopy. B. C. voluntarily joined defendant on the couch and the two lay down, covered with blankets because it was cold. Defendant “put his leg over my legs again, and then... as soon as he... did this, he... started to... unbuckle and unzip himself.” Defendant fondled B. C.’s buttocks and breasts and “grabbed my hand, and... made me” masturbate him. “[W]hen he first grabbed my hand, he... grabbed it by my wrist. Then once I realized what I was touching... my hand was open, so... I... closed it,” but defendant was “making me feel [his penis] with the back of my hand towards... my knuckles.”
B. C. testified that she acquiesced in joining defendant on the couch even though he had molested her in the recent past because “it wasn’t unusual for us to sit together,” her sister was present in the room, and given the commonality of the two sitting together “I guess I didn’t want... my sister to think I was, like, weird for not going” and sitting with defendant. “I guess I thought that if I didn’t, she’d think... something weird was happening.”
The prosecutor asked if defendant “was forcing, essentially, the outside of your hand onto his penis,” and B. C. answered yes. B. C. tried to use her other hand to force defendant away from her, but he held it behind her back so that she could not. “I tried to... get my hand away, so I used my other hand to... stop him, and he got my hand, and he... held it behind me, so then I couldn’t really move it, so... I couldn’t use my other hand.” This experience lasted for perhaps 30 to 45 minutes.
D. Defense Case and Rebuttal
Defendant testified in his own defense through an interpreter and denied having ever having had improper physical contact with B. C. During the prosecution’s rebuttal case, a police officer testified that defendant had told him during post-arrest questioning that he had no sexual interest in B. C., who was “just a child” and was physically underdeveloped because of her young age.
DISCUSSION
Defendant argues that under the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution the evidence of forcible oral copulation is insufficient to sustain his convictions of the three forcible lewd or lascivious acts described above.
I. Standard of Review
The standard of review of defendant’s claim is well-settled. Under the federal Constitution’s due process clause, there is sufficient evidence to support defendant’s conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent.... ‘[O]ur task... is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
II. Sufficiency of the Evidence
Section 288 provides in relevant 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.”
Thus, as relevant here, to obtain a conviction under section 288, subdivision (b)(1), the prosecution must prove beyond a reasonable doubt that the accused coerced the victim.
A. Counts 1 and 4
Defendant used force against B. C. while they were watching the Ace Ventura and Peanuts productions and has no meritorious claim that there was insufficient evidence of it.
Defendant relies mainly on People v. Senior (1992) 3 Cal.App.4th 765, and People v. Schulz (1992) 2 Cal.App.4th 999. Senior and Schulz stated that a perpetrator must use force substantially different from or in excess of the force required to do the lewd act in a non forcible manner. (Senior, at p. 774; Schulz, at p. 1004.)
In Schulz, we applied that rule to hold that “a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.’ ” (Schulz, at p. 1004.) “[T]he evidence that defendant grabbed the victim and held her while fondling her” did not constitute force. (Ibid.) In Senior, we concluded similarly that “the evidence that defendant pulled the victim back when she tried to pull away” from the depredations of her sexual abuser did not constitute force. (Senior, at p. 774.)
Later, however, we applied a different legal gloss to facts similar to those present in Senior and Schulz. (People v. Bolander (1994) 23 Cal.App.4th 155, 160-161.) Taking a different view of a defendant’s conduct from that we espoused in Senior and Schulz, we applied a new “standard” (id. at p. 161) that as regards section 288, subdivision (b)(1), “ ‘the element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is intended as a requirement that the lewd act be undertaken without the consent of the victim. [Citation.] As used in that subdivision, “force” means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” ’ ” (Ibid.) Defendant offers no reason for us to revisit our holding in Bolander.
The prosecution case contained ample evidence from which a rational trier of fact could conclude that B. C. did not consent to defendant’s molesting acts as relevant to counts 1 and 4 and that they involved substantially different or substantially greater force than that necessary to carry out his lewd or lascivious acts. It was not necessary to pin the victim down with something similar to a wrestling leg lock on both occasions to fondle her and, as regards count 4, sexually gratify himself. Defendant used force within the meaning of Bolander to accomplish his acts and no due process violation arises from his convictions on those counts.
B. Count 3
1. Force
On this record we cannot find any use of force in count 3. As regards the first prong of the Bolander standard, there was ample evidence from which a rational trier of fact could conclude that B. C. did not consent to defendant’s misconduct. However, as regards the second Bolander prong, there was no substantial evidence from which a rational trier of fact could conclude that defendant used force either substantially different from or substantially greater than that needed to fondle B. C. Defendant used his arms to put himself in a position to accomplish his groping of the victim, but did not, as far as B. C. could recall, restrain her or use a type of force different from the bodily contact inherent in the sexual touching, i.e., unlawful but non forcible lewd or lascivious fondling of the type prohibited by section 288, subdivision (a). When he asked if she wanted to continue the contact and she said no, he let her walk away. The People’s argument that there was sufficient evidence to sustain the conviction against defendant’s due process challenge is conclusive and unpersuasive.
At one point, B. C. testified that defendant might have pulled her toward him, but she was not sure; she also thought it was possible that he moved himself closer to her. (Ante, p. 3.)
2. Duress
Nor do we find any evidence of duress on this record that would allow us to sustain the conviction on count 3 against defendant’s due process challenge.
“ ‘[D]uress as used in the context of section 288 to mean 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. Leal (2004) 33 Cal.4th 999, 1004, italics deleted; see People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320.)
When considering whether duress exists, we examine the totality of the circumstances, including the age of the victim and her relationship to the defendant. (People v. Pitmon (1985) 170 Cal.App.3d 38, 51.) A defendant’s position of dominance and authority, accompanied by the occurrence of multiple molestations, are relevant. (See People v. Schulz, supra, 2 Cal.App.4th at p. 1005.) Similarly, when “ ‘ “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.’ ” (Espinoza, supra, at p. 1320.) And we consider the nature of the act. For example, the prohibited conduct may greatly exceed the minimum touching necessary for a conviction and may include conduct that the victim, if “a reasonable person of ordinary susceptibilities” (Pitmon, supra, at p. 50) would find vile, disgusting, shameful, or unnatural. Finally, we consider whether the perpetrator told the victim to keep the molestation secret. (People v. Cochran (2002) 103 Cal.App.4th 8, 15.)
Duress, however, can be established only if “there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat....’ ” (People v. Espinoza, supra, 95 Cal.App.4th at p. 1321.) Thus, the totality of the circumstances must include that component.
We have carefully examined the record and find that there was insufficient evidence of duress for defendant’s conviction to withstand due process review. He made no threat, implicit or explicit. Thus, “[w]hat is missing here is the ‘ “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. Espinoza, supra, 95 Cal.App.4th at p. 1321.)
We do not here find substantial evidence of psychological coercion, which some decisions have stated, contrary to People v. Espinoza, supra, 95 Cal.App.4th at page 1321, alone may constitute a threat sufficient to establish duress. (People v. Veale (2008) 160 Cal.App.4th 40, 48 [dictum]; People v. Cochran, supra, 103 Cal.App.4th at pp. 15-16.) B. C. did not testify that she viewed defendant as an authority figure. He was B. C.’s cousin and not an immediate relative (cf. Cochran, supra, at p. 15). He was born in Mexico, completed only some high school in Mexico, spoke little or no English, and was brought to the United States by one of his brothers in 2003, when he was 17 years old. He was dependent on his aunt and uncle, B. C.’s parents, for employment and housing: he lived in a house near the residence of B. C. and her family that was owned by his aunt and uncle, and he worked for his uncle.
B. C. did not testify that defendant attempted to isolate her and forcibly accost her behind closed doors. (Cf. People v. Veale, supra, 160 Cal.App.4th at pp. 46-47; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238; People v. Pitmon, supra, 170 Cal.App.3d at p. 51.) Defendant and B. C. were at the digital video disc cabinet in the game room, a common area of the house, in the presence of her younger sister and with her older sister elsewhere in the house at the time. As regards force, when B. C. turned to leave, defendant made no effort to restrain her; rather, B. C. testified, “he asked me if I wanted to stay longer.”
The People argue that People v. Espinoza, supra, 95 Cal.App.4th 1287, and People v. Hecker (1990) 219 Cal.App.3d 1238, a case on which Espinoza relied (Espinoza, supra, at p. 1321) but that was later criticized by the court that decided it (People v. Cochran, supra, 103 Cal.App.4th at pp. 14-15), are distinguishable because “they concerned only the sufficiency of the evidence where there was no evidence of force,” ~(RB 20)~ and force is a component to be considered in determining whether there was duress (People v. Veale, supra, 160 Cal.App.4th at p. 50). Here, however, we have concluded that there was no evidence of force that could serve as a fulcrum to help sustain a verdict of a duress-based offense.
III. Remedy
Defendant acknowledges that he is guilty of violating subdivision (a) of section 288 under count 3. He agrees that “sexual touching of a twelve-year-old by an adult is immoral and criminal.” He argues only that “[t]he Legislature has seen fit to punish such conduct through section 288, subdivision (a).” He is correct. We will modify the verdict on appeal to impose a conviction under subdivision (a). This court has the authority to “modify a verdict on appeal to reflect a conviction on a lesser included offense after finding insufficient evidence supported conviction of the greater offense.” (People v. Navarro (2007) 40 Cal.4th 668, 677.) Section 288, subdivision (a), is a lesser included offense of subdivision (b) of that section (People v. Martinez (1995) 11 Cal.4th 434, 440); the lesser offense lacks the element of coerciveness contained in the greater. We may reduce the conviction to a conviction under section 288, subdivision (a).
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings. The conviction on count 3 is reduced to the lesser offense of non forcible lewd or lascivious conduct (§ 288, subd. (a)) and the trial court shall re sentence defendant accordingly.
WE CONCUR: Bamattre-Manoukian, Acting P. J. McAdams, J.