Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC765983
Premo, J.
I. Introduction
A jury convicted defendant Agustin Jesus Nevarez of two counts of forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)) and two counts of forcible sexual penetration by a foreign or unknown object (§ 289, subd. (a)(1)). The jury found true the “one strike” allegations that defendant had kidnapped a victim and that he had committed the offenses against multiple victims. (§ 667.61, subds. (a), (b), (e).) The trial court sentenced defendant to prison for 40 years to life. On appeal, defendant argues that there is insufficient evidence to support the finding that he kidnapped one of the two victims or that he committed the crimes by means of force. He also argues that the prosecutor engaged in misconduct by arguing facts outside the evidence. We find no merit in the arguments and affirm the judgment.
Further unspecified section references are to the Penal Code.
II. Facts
A. The Prosecution’s Case
The crimes with which defendant was charged were allegedly committed against his younger cousin, A., during the month of August 1999 and against his niece, Y., between August 1, 1998 and June 30, 1999. A. testified that in 1999, when she was eight years old, she was at the park where her father was playing basketball. Defendant, who would have been about 18 years old at the time, was also present. A. sat on defendant’s lap while he rubbed her back. A. needed to go to the bathroom. It must have been in the evening because it was “already dark.” She called across the basketball court to her father and told him she needed to use the restroom. Her father replied that he would take her but then defendant volunteered. Defendant did not take A. to the bathroom but took her over to the baseball field and up to the top of the empty bleachers where he had her lie down. First he touched her chest and legs outside her clothing. Then he pulled her pants and underwear down and touched her legs. After that, he got on top of her and put his penis or his fingers inside her vagina. A. did not recall being hurt but, she said, it did not feel good. She did not want defendant to be on top of her or touching her and was surprised by his conduct. But he was too heavy for A. to try and stop him. A. did not look at defendant, she looked off to the side. When she saw a person walking toward the park from the nearby homeless shelter, defendant stopped “doing what he was doing.” At home that evening, A. saw a spot of blood on her underwear. Her mother thought A. had begun menstruating. A. did not tell her parents about what had happened because she was “afraid.” A. did not know about sexual intercourse at the time. It was not until she was older that she realized what defendant had done.
A. also recalled an earlier, uncharged incident. She remembered that defendant had once pulled her pants down and A. felt a stabbing, sharp pain inside her vagina. A.’s aunt came in and told them that she was going to tell A.’s father what they were doing.
When Y. was seven or eight years old, she was sleeping on the couch in her living room when she was awakened by defendant touching her and trying to get on top of her. He took her underwear off. Y. did not want defendant to touch her or to take her underwear off. Once he was on top of her, defendant held Y. down with one hand on each of her arms, so that Y. could not move. Defendant then put something inside her vagina. That was painful. Y. did not know what was happening; she did not learn about sex until she was in the seventh grade. When defendant got up, he wiped his “private area” with a paper towel and dressed himself. The next morning she felt a burning sensation when she urinated.
B. The Defense Case
Defendant admitted that he had sexually assaulted both girls but maintained that he had done so in 1993 or 1994, not in 1998 or 1999 as alleged. He had come to California from Mexico in 1993, when he was 13 years old. He stayed with his sister in Mountain View and also spent one night at his brother’s house. It was when he was at his brother’s house that he touched Y. and placed his penis in her vagina. He did not believe Y. wanted him to have sexual intercourse with her and he did not ask her if he could. He was physically stronger than she was and believed he had held her down with his arms. Y. started crying and said “no.” Defendant then stood up and Y. went into another room.
Defendant testified that the incident with A. occurred much as she had described except that it happened shortly after the incident with Y. Defendant had agreed to take A. to the restroom but the portable restrooms near the basketball courts were occupied. The restrooms on the other side of the park were closed. He then took A. to the bleachers, intentionally choosing that location because he did not want anyone to see them and did not want A.’s father to know what he was doing with his daughter. Once on the bleachers, defendant held A.’s hand and sat her down, touched her over her clothing, then unzipped her pants. He put his finger in her vagina and she began to cry. That is when he tried to put his erect penis in her vagina. When she continued to cry, defendant realized that what he was doing “was wrong.” He decided to stop and take her back to the basketball area.
Defendant also introduced the testimony of his former girlfriend, Adriana Espinoza. Espinoza began dating defendant when she was 14 years old. She gave birth to his son in February 1999, when she was 15. Defendant was not with Espinoza during the holidays in 1998 but returned around the beginning of 1999, before their child was born. Espinoza lived with defendant and the baby at defendant’s sister’s house. Espinoza became dissatisfied with the living arrangement after “some months” and moved out. Defendant, she said, was with her every night until she moved out. She knows that because defendant was always the one who would get up to tend to the baby. Espinoza had no contact with defendant thereafter except in connection with dependency proceedings involving the child. Defendant’s sister now has custody of the child.
C. Counsel’s Arguments
Defense counsel argued that defendant committed the crimes when he first arrived in California from Mexico, which would have been outside the timeframe alleged. The prosecutor responded that, if that were true, the victims would have been around three years old and would not have been able to remember the detail with which they described the acts. The prosecutor went on to argue that the victims had no reason to lie about the dates, urging the jury to find that the crimes were committed when they said they were committed.
The prosecutor also referred to Espinoza’s testimony. “Essentially she hooks up with the defendant when she’s 14, which I don’t know, I don’t know what that tells you about his preferences in age of girls. Obviously start having sexual relations. [¶]... [¶] Their relationship was not a great relationship. And it leads you to believe that perhaps one of these nights when he’s had too much to drink and he decides to sleep at [his brother’s] house... when things aren’t going so great with [Espinoza], who apparently is--her mothering skills may not be the best when she doesn’t want to have anything to do with the baby, and he decided that he wants something, he’s going to act out. He’s probably not getting it from her. [¶] And when she comes in and testifies, you need to take everything she says with a grain of salt, because once again, his sister, his family holds probably the greatest chip that they can, they hold her son. They have control whether or not she gets to go see the kid.”
At this point, defense counsel objected to the argument “in terms of improper argument in regards to intention, motive of [Espinoza], and also facts not in evidence as well.” The trial court noted that it was unsure about the evidence, allowed that counsel could argue bias, interest, and motive, and overruled the objection. The prosecutor dropped the topic.
III. Issues
1. Is the evidence sufficient to support a finding that defendant kidnapped A.?
2. Is the evidence sufficient to support the finding that defendant committed sexual penetration of the victims by means of force?
3. Did the prosecutor commit misconduct in his argument to the jury?
IV. Discussion
A. Sufficiency of the Evidence of Kidnapping
Defendant’s first two issues on appeal involve the sufficiency of the evidence. “To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The jury found true the allegation that defendant had kidnapped A. within the meaning of section 667.61, subdivisions (a) and (e). Defendant maintains that, to be guilty of kidnapping, there must be evidence that he used force or fear to move the victim a substantial distance and that there is no evidence that he “used force or fear” to move A. The argument ignores the factual basis for the allegation.
Section 667.61, often called the “One Strike” law, “sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, including rape....” (People v. Mancebo (2002) 27 Cal.4th 735, 741, fn. omitted.) “The purpose of the One Strike law is ‘to ensure [that] serious and dangerous sex offenders... receive lengthy prison sentences upon their first conviction... where the nature or method of the sex offense “place[d] the victim in a position of elevated vulnerability.” ’ ” (People v. Alvarado (2001) 87 Cal.App.4th 178, 186, quoting People v. Palmore (2000) 79 Cal.App.4th 1290, 1296.) The One-Strike law prescribes indeterminate sentences of 15 or 25 years to life for enumerated sex offenses, including violations of section 288, subdivision (b) and section 289, subdivision (a), the two crimes of which defendant was convicted in this case, when the crimes have been “committed under one or more ‘aggravating circumstances,’ such as... kidnap[ping of] the victim....” (People v. Alvarado, supra, at p. 186.)
In all pertinent respects, section 667.61 was the same in 1998 and 1999 as it is today. Section 667.61, subdivision (a) provides that a person convicted of a specified offense “under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e)” was subject to an indeterminate prison term 25 years to life. In this case, the information alleged two circumstances under section 667.61, subdivision (e), namely that defendant had “kidnapped the victim in violation of section 207, 209, and 209.5 and has been convicted in the present case and cases of committing [a specified offense] against more than one victim.” (§ 667.61, subd. (e)(1)(5).)
A person commits kidnapping in violation of section 207, subdivision (b), when “for the purpose of committing any act defined in Section 288” the person “hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county.” Thus, the trial court instructed the jury, in pertinent part, that in order to find that defendant had kidnapped A., it had to find that he had “persuaded, enticed, decoyed, or seduced by false promises or misrepresentations a child younger than 14 years old to go somewhere. [¶] And number two, when the defendant did so, he intended to commit a lewd or lascivious act on a child. [¶] And three, as a result of the defendant’s conduct, the child then moved or was moved a substantial distance.” Neither party challenges the propriety of instructing the jury in the elements of this form of kidnapping.
Although defendant argues that the evidence is insufficient to show that he used force or fear to move A., by its terms, section 207, subdivision (b), does not require the use of force or fear. AS the prosecutor argued, evidence that defendant persuaded or enticed A. to follow him by a false promise or misrepresentation, with the intent to commit a lewd act upon her, is sufficient to support the finding.
Here, A. told her father that she needed to go to the restroom and defendant interjected that he would take her there, implicitly promising to bring her back safely. One may infer from A.’s age, and from her announcing to her father her need to use to use the restroom, that A.’s father did not expect her to walk around the park in the dark by herself. Thus, it is reasonable to conclude that defendant persuaded A. to follow him away from the basketball courts and out of sight of her father by falsely leading her to believe that he would escort her safely to the bathroom. That defendant led her away with the intent to commit a lewd act is established by the fact that A. had just been sitting on his lap while he rubbed her back and from defendant’s testimony that he chose the bleachers location so that A.’s father would not see what he was about to do.
B. Sufficiency of the Evidence of Forcible Penetration
Defendant next argues that there was no evidence that he used force to sexually penetrate either victim. Viewing the evidence in the light most favorable to the judgment, we reject the argument.
Section 289, subdivision (a)(1) makes it a crime to commit an act of sexual penetration when the “the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” “[T]he definition of the word ‘force’ in sexual offense statutes depends on the offense involved. To convict for committing a forcible lewd act against a child in violation of section 288, subdivision (b), the prosecution must prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. (People v. Cicero (1984) 157 Cal.App.3d 465, 474 (Cicero).) In contrast, the requisite amount of force for a rape conviction is the amount sufficient to overcome the victim’s will. (People v. Griffin (2004) 33 Cal.4th 1015, 1027 (Griffin).) This level of force also applies for convictions of aggravated sexual assault of a child by rape and by forcible oral copulation (§ 269, subd. (a)(1), (4)). (People v. Guido (2005) 125 Cal.App.4th 566, 574-576 (Guido).)” (In re Asencio (2008) 166 Cal.App.4th 1195, 1200, fn. omitted.)
Asencio held that forcible sexual penetration, within the meaning of section 289, subdivision (a)(1), like the crimes of forcible oral copulation and rape, requires evidence that the defendant “accomplished an act of sexual penetration by the use of force sufficient to overcome the victim’s will.” (In re Asencio, supra,166 Cal.App.4th at p. 1205.) Defendant maintains that this is the proper test but argues that there is no evidence that he “forcibly raped” either victim. Assuming that Asencio is correct, we find substantial evidence of force to overcome the will of the victims in this case.
As to Y., defendant did not believe she wanted to have sexual intercourse with him. Nevertheless, he held her arms down and lay on top of her, preventing her from moving out from under him while he penetrated her vagina with enough force that she suffered a burning sensation while urinating that lasted through the following day. This is sufficient evidence that defendant forced Y. to submit to the act against her will.
A. did not consent to the acts defendant performed and cried when defendant put his finger in her vagina. In spite of that, he went ahead and penetrated her with his erect penis. A. could not move out from under him and later found blood stains on her panties. This, too, is sufficient to show that defendant held A. by force, against her will, while he forcibly penetrated her vagina.
C. Prosecutorial Misconduct
Defendant finally argues that the prosecutor committed misconduct by arguing that defendant had sex with Y. because his marriage was having problems and he was probably not having sex with Espinoza. Defendant maintains there was no such evidence in the record. We detect no misconduct.
A “ ‘ “ ‘prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ ” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819.) Even if improper, a prosecutor’s comments are not reason for reversal under federal law unless they so infect the trial with unfairness as to make the resulting conviction a denial of due process. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) Under state law, prosecutorial misconduct does not render a criminal trial fundamentally unfair unless the prosecutor has used deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.)
Although there was no direct evidence that defendant was being denied sexual contact with Espinoza at the time he assaulted Y., Espinoza did state that her relationship with defendant had deteriorated after their baby was born in February 1999, suggesting that their intimate relationship may have been suffering, as well. Thus, the comment that defendant was “probably not getting it from her” was fair comment on the evidence.
V. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.