Opinion
C083919
07-10-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC LEE HATFIELD, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P14CRF0416)
Defendant Eric Lee Hatfield, Jr., appeals from the judgment following jury verdicts of guilty on 11 counts of sexual penetration by a foreign object of a victim under the age of 14, by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (Pen. Code, § 289, subd. (a)(1)(B); counts 1, 14-23) and 12 counts of forcible oral copulation of a person under the age of 14 (§ 288a, subd. (c)(2)(B); counts 2-13). The jury found true various sentencing enhancements for defendant's personal use of a firearm in the commission of counts 1 through 3. (§§ 667.61, subds. (b), (e)(3), 12022.53, subd. (b).)
Undesignated statutory references are to the Penal Code.
Defendant argues insufficient evidence supports his convictions on both sets of charges because there was no evidence of either immediate and unlawful injury or duress. He also argues insufficient evidence supports the firearm enhancements, and adds that imposition of the three section 667.61 enhancements (§ 667.61, subds. (b), (e)(3)) must be reversed because they were not included in the charging document. He further contends there are sentencing errors and that remand is required to allow the trial court to exercise its new discretion to strike certain firearm enhancements conveyed by Senate Bill No. 620.
We modify the sentence and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our description of the trial to information relevant to disposition of the issues on appeal.
The People's Evidence at Trial
Jane Doe's (JD) father was very close to defendant's brother. JD regarded defendant's brother as her uncle. She first met defendant when she was about three, but did not see him again until a family gathering when she was 13 years old. At the urging of defendant and his brother, JD's father signed JD and her brother up for jiu-jitsu lessons with defendant. Initially, they attended lessons a few days a week, but later it increased to four or five times a week. Defendant helped drive JD and her brother (age five) to lessons.
Defendant began touching JD's thigh during car rides to and from lessons, which occurred numerous times. Around January 2014, defendant began touching JD's vagina over her clothes during the car rides, and eventually, began to touch her vagina under her clothes. JD estimated defendant did this every time he gave her a ride during a five- month period, from January to May. Sometimes defendant's fingers would go inside her vagina.
Defendant also touched JD at his home. The first time it happened, JD's brother was playing Xbox, and defendant told JD he had something to show her in his room. Defendant locked the door behind them, had JD disrobe and get onto the bed. He put his mouth on her vagina, causing her to cry. Defendant asked JD "if [she] liked it and he said if [she] didn't that he would kill himself." Defendant pointed to a gun as he said this, which "was propped between his dresser and the nightstand." Defendant threatened to kill himself if JD did not let him perform oral sex on her. At trial, JD no longer remembered defendant explicitly threatening to kill himself if JD did not let him put his penis in her mouth, but she did tell that to police and was truthful with them. JD did put defendant's penis in her mouth, and defendant put his fingers in her vagina. JD did not want to do these things, but JD believed defendant would kill himself and "thought about the fact that he had a family and people cared about him and loved him and that [her] parents trusted him, and so [she] didn't say anything for the next five months that all of this was happening."
JD did not tell anyone about the abuse because she "was thinking about the family." JD was concerned "about how it would affect the family" and "knew it would tear it apart," at least in part, because JD's father and uncle were correctional officers. JD thought about defendant and his threat to kill himself and "didn't want to be responsible for someone's death." The gun was frequently present in the bedroom during the abuse, causing JD to "remember what [defendant] had said."
Defendant also told JD that if she told anyone about what was happening "[t]hat we would both get in trouble and that he would go to prison." Defendant warned JD that she "would be judged." JD felt "[a]shamed, like it was [her] fault." She did not fear defendant, but she did fear that he would kill himself and "what other people would think of [her]."
JD performed oral sex on defendant approximately four or five times. Defendant performed oral sex on JD more than 10 times. Sometimes, JD would cry, but she continued to remember his threat to kill himself. JD did not want any of the sexual activity to happen.
The abuse stopped before JD's 14th birthday after she told defendant "enough was enough," which upset him. JD stopped going to jiu-jitsu. JD finally told a close friend about the abuse; that friend then told his mom, who told her husband, and then they drove JD home to tell her parents. After the police became involved, JD engaged a pretext call with Detective Bradshaw. JD called defendant, who repeated his previous threats to kill himself.
Bradshaw testified about JD's interview by authorities, explaining that JD said defendant threatened to kill himself if JD did not allow him to continue performing oral sex on her and "sexual acts on her." Bradshaw directed JD on the pretext phone call and was present for that call. A recording of this call was played for the jury and a transcription of that recording was admitted into evidence.
On the call, defendant repeatedly threatened to kill himself and warned if JD told her mother or a counselor, he would go to jail. Defendant stated he was "[l]oading my gun," and Bradshaw confirmed she heard what sounded like the loading of a gun at that time on the call.
Investigator Barber testified that after a standoff, defendant surrendered to police. Authorities searched defendant's home and recovered a letter defendant wrote to his mother apologizing for shaming the family. They also recovered a shotgun from defendant's bed and ammunition from multiple locations.
Defendant's Evidence at Trial
Defendant called JD's father to testify, who stated that he trusted defendant with his children and "considered him family." JD's stepmother testified JD started jiu-jitsu lessons because defendant said he "could build [JD's] confidence and help her out." She treated defendant "like her brother."
Defendant's brother also testified that he was very close to JD's father and had known him since age four. He considered JD's father, stepmother, JD, and her siblings as family. Defendant's brother's wife also testified that she was "very close" to JD's family and that "[t]hey are like family to us." She stated JD's family "would actually join us on the holidays, such as birthday parties, 4th of July, Christmas Eve, Thanksgiving. They are--I mean, they are a part of our family."
Defendant testified on his own behalf. He and JD would talk on rides to jiu-jitsu, sharing things about life, and he would hold her hand. "[S]ometimes she would rest her head on [his] shoulder, and [he'd] kiss her on top of the head and tell her, you know, 'Love you.' " He professed his feelings for her, and "[s]he said she had feelings for [him] too."
About three weeks after this, they began explicitly kissing, and he put his hand underneath her underwear. He denied penetrating her vagina. They kissed a lot in the car.
JD came to defendant's home, "once in a great while" maybe three or four times total. In the middle of February, JD and her brother were at defendant's house to play video games; JD and defendant were kissing and JD stated, "We shouldn't be doing this in front of him." They went into the bedroom and mutually engaged in oral sex. He also "put [his] hand--hand inside of her." Defendant had strong feelings for JD. He was having problems in his marriage and enjoyed the attention from JD, but it was wrong, and he "feel[s] horrible about what happened."
There were no more interactions at his home. Later while they were kissing in the car, he digitally penetrated JD on two different occasions. He never forced or pressured JD and never referenced a gun. JD may have learned about the gun at Christmas.
He had contemplated suicide and had a shotgun in his bedroom, but never told JD he would kill or shoot himself. He does not remember JD crying, and she never told him to stop. The only time he told JD he was going to kill himself was on the phone. He was 37 years old. He initially thought of JD as his niece, but later became sexually attracted to her. He admitted pursuing her, but said that sometimes JD would initiate the kissing.
The jury found defendant guilty of all 23 counts and found true the firearm enhancements associated with counts 1 through 3. The trial court sentenced defendant to state prison for 45 years to life plus a determinate term of 270 years. Defendant timely appealed.
DISCUSSION
I
Forcible Oral Copulation and Forcible Sexual Penetration
Defendant argues insufficient evidence supports his 23 counts of conviction because there was no evidence of either immediate and unlawful injury or duress. He reasons his threats of suicide were not "unlawful" and the facts do not support a finding of duress.
Defendant clarified in his reply brief that despite several typos in the opening brief that suggested otherwise, he is challenging all 23 counts of conviction for insufficiency. Because the Attorney General assumed as much and responded accordingly, we, too, shall consider all counts to be challenged. --------
We need not decide whether defendant's threats to kill himself qualify as a threat of "unlawful injury" because we find those threats support defendant's conviction under a theory of duress. As our Supreme Court explained in People v. Jones (1990) 51 Cal.3d 294, 314, "[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (Ibid.)
Duress, for purposes of forcible oral copulation and forcible penetration 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. (See People v. Leal (2004) 33 Cal.4th 999, 1003-1010 [statutory amendments removing "hardship" from duress definition limited to rape and spousal rape statutes].) Duress is evaluated in the context of the total circumstances, including the age of the victim and victim's relationship to the defendant. (See People v. Cochran (2002) 103 Cal.App.4th 8, 13-14, disapproved on other grounds by People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.) The jury was so instructed. Warnings that "revealing the molestation would result in jeopardizing the family" are also relevant. (Cochran, at p. 14.)
Here, there was evidence that JD and defendant and their respective extended family members interacted like family. Further, JD testified she sexually engaged with defendant only because she feared that defendant would carry out his threat to kill himself. During the first instance of forcible oral copulation, defendant threatened to kill himself with a gun that was present in his bedroom, and to which he pointed when making these threats. This threat loomed over JD when he digitally penetrated her vagina on that same occasion and when he sexually abused her in the car and in his bedroom thereafter. The gun was often present in the bedroom during these successive sexual episodes, reminding JD of defendant's previous threats. That defendant made such threats is supported by the pretext phone call wherein he not only repeatedly threatened to kill himself, but also apparently (and audibly) loaded a gun. JD testified the contact was unwanted.
Defendant argues "psychological coercion" alone is insufficient to establish duress. However, as we have just described, JD's testimony was not limited to mere psychological coercion. Defendant explicitly threatened to kill himself with the visible gun in the room, and then had the gun present for other instances of sexual abuse. This initial explicit threat followed by implied threats was sufficient to cause JD to engage in sex acts unwillingly.
We are similarly unpersuaded by arguments that People v. Cochran, supra, 103 Cal.App.4th 8 is distinguishable because JD was not "weak," and defendant was a non-family member without parental authority. JD's stepmother enrolled her in jiu-jitsu to increase her confidence. Instead, JD was sexually abused by her driver who necessarily held a position of authority over her and whose close relationship with JD's family was well established through evidence, mostly coming from the defense.
Under the totality of the circumstances, we find substantial evidence supports the jury's determination that JD agreed to perform and acquiesced to the performance of sex acts under duress caused by defendant's threats.
II
The Firearm Enhancements
Defendant also challenges the three firearm enhancements, arguing there is "insufficient evidence that the offenses were accomplished against JD's will or that [defendant] displayed a firearm in a menacing manner." In essence, defendant argues he did not "use" the gun for purposes of the enhancements.
Here, the jury found true firearm enhancements under both section 12022.53, subdivision (b) and section 667.61, subdivisions (c), (e)(3). Section 12022.53, subdivision (b) proscribes personal use of a firearm in the commission of the underlying felony. Section 667.61, subdivision (e)(3) enhances punishments for specified sexual offenses and proscribes in pertinent part the personal use of "a firearm in the commission of the present offense in violation of Section . . . 12022.53."
As explained in People v. Bryant (2011) 191 Cal.App.4th 1457, at page 1472: " ' "Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence." [Citation.]' [Citation.]"
We find People v. Bryant's discussion of the use requirement instructive; it explained: " ' "When a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun . . . does not entitle the defendant to a judicial exemption from section 12022.5[, subdivision] (a)." [Citations.]' [Citation.]" (People v. Bryant, supra, 191 Cal.App.4th at p. 1472.)
As discussed ante, during the first instance of sexual abuse comprising counts 1 through 3, defendant threatened to kill himself with a gun that was present in his bedroom, and to which he pointed when making these threats. Substantial evidence supports that defendant used the firearm to accomplish the crimes charged in these counts.
III
The Strike Enhancements
Defendant argues imposition of the section 667.61 enhancements must be reversed because they were not included in the charging document. This is factually inaccurate. The information states under a heading entitled "SPECIAL ALLEGATION--SEX CRIMES- AGGRAVATED CIRCUMSTANCES" that "It is further alleged, within the meaning of Penal Code Section 667.61[, subdivisions] (b) and (e)(3), as to 1-13 that the following circumstances apply: [¶] The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022.53." Accordingly, defendant's argument fails.
IV
Dual Imposition of Firearm Enhancements & Request for
Resentencing Under Senate Bill No. 620
Defendant also argues the trial court erred in sentencing defendant because it imposed the sentencing enhancements under both sections 667.61, subdivision (e)(3) and 12022.53, subdivision (b). He further argues in supplemental briefing that remand is required to allow the trial court to exercise its newly granted sentencing discretion under Senate Bill No. 620. The People concede that the three 10-year terms imposed for the section 12022.53, subdivision (b) enhancements should be stricken. We agree with the parties. (See People v. Mancebo (2002) 27 Cal.4th 735, 743-744 [use of gun enhancement not permitted where same allegation was necessary to support the 25-year-to-life § 667.61 enhancement]; People v. Perez (2015) 240 Cal.App.4th 1218, 1224 [striking enhancement for use of a deadly weapon where the same finding used to impose the § 667.61 enhancement].)
Because we order the striking of the section 12022.53 enhancements, there is no need to remand the case for resentencing on those enhancements. We are not convinced that remand is necessary to consider the section 667.61, subdivision (e)(3) enhancements under Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended sections 12022.5 and 12022.53. Defendant has not shown this bill altered the express prohibition contained within section 667.61, subdivision (g), which states, "Notwithstanding section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section." Therefore, no remand is needed.
V
Imposition of the Upper Term on Counts 4 Through 23
Finally, defendant argues the trial court erred when it failed to state the reasons for imposing the upper term on counts 4 through 23. He adds that this failure shows the court erroneously believed it did not have the discretion to impose the lower terms, resulting in an unauthorized sentence. We find the record shows the court understood its discretion; thus, any challenge to the court's exercise thereof (here by adopting the probation report's recommendations) is forfeited for lack of objection.
At the sentencing hearing, the trial court stated its decision not to use either an alleged incident of misconduct from jail or computer information in determining the appropriate sentence because, "[f]rankly, neither is needed." The court then adopted portions of the probation report, including the findings in aggravation and mitigation. This report noted several circumstances in aggravation, including the vulnerability of the victim, the sophistication of the crime, and that defendant took advantage of his position of trust. Defendant's lack of prior record was listed in mitigation. The court also adopted "the [section 667.6, subdivisions] (c) and (d) determinations of consecutive and concurrent." Before pronouncing the sentence, it noted defendant's lack of previous record and that he may have appeared to be "doing okay," but admonished him stating, "You went from no culpability to off the charts. And frankly, you have no one to blame but yourself."
Thereafter, the trial court sentenced defendant on counts 1 through 3 and the related enhancements. Regarding the challenged counts 4 through 23, the court stated, "if the parties have no objection, I'm not going to spell out every sentence, but I am going to follow the recommendation of the probation officer that for each of these counts a sentence of [prison] for a period of 12 years be imposed, to run consecutive to all other counts. [¶] Does either party wish me to state each individual count separately?" Defense counsel stated, "No, Your Honor." The court then announced for each of counts 4 through 23 that "[a] term of 12 years will be imposed, to run consecutive to all other counts. [¶] This totals a total [prison] sentence of 45 years to life . . . , plus 270 years."
Nothing suggests the trial court misunderstood its sentencing discretion. The probation report correctly listed the triad for the relevant counts as 8, 10, or 12 years and selected 12 years for each. Thus, the report recognized it was selecting the upper term and had previously set forth the law for the consecutive versus concurrent determination, which the court adopted. We presume the court knew of and followed applicable sentencing law. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1178-1179.) Further, to the extent that defendant may seek to challenge the applicability of any factors utilized in the adopted findings of the probation report, he has forfeited these claims. (See People v. Scott (1994) 9 Cal.4th 331, 353 [alleged erroneous discretionary sentencing choices not challenged in the trial court are forfeited on appeal].) As such, defendant's challenge fails.
DISPOSITION
We modify the judgment to strike the terms imposed for the section 12022.53, subdivision (b) enhancements. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and send a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Mauro, J.