Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF057746 Thomas N. Douglass, Jr., Judge.
Charlotte E. Costan, 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, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant Leonardo Ortega of two counts of lewd and lascivious acts upon a child under the age of 14 by use of force, violence, duress, menace, or fear (counts 1 & 2—Pen. Code § 288, subd. (b)) and aggravated sodomy upon a child under the age of 14 (count 3—§ 269, subd. (a)(3)). On appeal, defendant makes three contentions: (1) insufficient evidence supports the allegation of force or duress in counts I and II; (2) insufficient evidence supports the allegation of force and penetration in count 3; and (3) the trial court erred in not giving any instructions on lesser included offenses of count 3. We affirm the judgment in full.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
One day in September 2006, Jane Doe went over to defendant’s apartment to play with her cousins. She resided in another apartment in the same complex with her mother. Doe was nine years old at the time. She was playing on the bed with her cousin in one of the apartment’s rooms when defendant walked in. Doe got up to leave, but defendant pulled her by the arm: “He grabbed my hand and put [me] on his lap on the bed.” Doe testified that defendant held her there with his hands on her legs.
Defendant is described in the record both as “the husband of [Doe’s] aunt” and as Doe’s “uncle.” It is unclear from the record whether, at the time of the incident, defendant was still married to Doe’s aunt and whether Doe’s mother was still married to defendant’s brother: Defendant “was the husband of [Doe’s] aunt”; Defendant “was married to [Doe’s mother’s] ex-husband’s sister”; Doe’s “uncle had tried to rape her.” (Italics added.) However, defendant himself described Doe’s grandmother as his “mother-in-law” to both officers who interviewed him in March 2007. Moreover, Doe played with defendant’s children at his apartment, which was located in the same complex in which she lived. Thus, it appears that defendant at least still held some sort of familial, avuncular relation to Doe.
Defendant then touched her legs and both of her “private[s]” over her clothing. Defendant progressed to touching her breast skin-on-skin by reaching underneath her shirt. Defendant touched her vagina skin-on-skin by pulling down her zipper and going through her underwear. It felt “[l]ike he was hurting [her].” Defendant also touched her “butt” skin-on-skin with his hand. Defendant pulled down his own zipper. He then touched Doe’s butt with his private. He touched her with his private “[i]n [her] butt.” She was on the bed and defendant was behind her when he put his private on her “butt hole.” Doe testified “[i]t felt really bad.” When asked whether his private part went inside her “butt hole,” Doe replied that it did.
Doe referred to her breasts as her “private” and her vagina as her “other private.”
Doe tried to get away from defendant by getting up; however, defendant “was grabbing [her] two hands” with one of his. She was scared of him. Defendant was taller and stronger than she.
Doe’s grandmother eventually knocked on the door, opened it, and saw Doe on defendant’s lap. Defendant removed his hands from Doe. Doe’s grandmother then took Doe from the room.
Doe and her mother moved out of the apartment complex in January 2007. Doe then felt less scared of defendant hurting her mother. At some point, Doe and her mother watched a television program in which a granddaughter was raped by her grandfather. A few days thereafter, Doe related the incident with defendant to her mother. Doe’s mother called the police.
Palm Springs Police Officer Albert Cantu responded to the call on March 15, 2007. He interviewed defendant. Defendant told Officer Cantu that several months ago he held Doe on his lap with his arms around her. His mother-in-law then walked in and took Doe out. Defendant denied touching Doe inappropriately.
Detective Frank Browning interviewed defendant on March 16, 2007. Detective Browning noted that defendant was approximately 5 feet 7 inches tall and weighed between 200 and 215 pounds. Defendant described Doe to Detective Browning as “‘small.’” Defendant admitted that while he had Doe on his lap “[h]e began to caress her and touch her breasts.” Defendant reported that he initially touched her breasts over her clothing, but then proceeded to touch them skin-on-skin by reaching into the top of her blouse. At first he denied touching Doe’s legs, but, thereafter, admitted doing so. During the interview, defendant demonstrated the manner in which he touched Doe’s inner thighs. Detective Browning asked defendant if he touched Doe’s vagina; defendant initially denied doing so, but later admitted that he had. Defendant reported that he initially touched Doe’s vagina over her clothing, but then he went inside her shorts, down the waistband, underneath her underwear, and touched her vagina skin-on-skin. Defendant demonstrated how he did it and he reported touching Doe’s vagina twice. At some point the grandmother walked into the room and defendant stood quickly, as did Doe, and the grandmother took Doe out of the room.
A forensic interview was conducted with Doe during which she reported that defendant had sodomized her. Detective Browning then initiated another interview with defendant. He asked if defendant had removed Doe’s shorts. Defendant initially denied doing so, but then admitted he unbuttoned her shorts and pulled them down to her thighs. Defendant demonstrated how he did it. Defendant stated that he was still “hugging” Doe while he pulled her shorts down; however, the detective characterized defendant’s reenactment as showing defendant “holding” her. Defendant then admitted removing his penis from the top of his shorts and touching Doe’s anus with it. He demonstrated how he did so. Defendant denied penetrating Doe’s anus. He also denied saying anything to cause Doe fear.
Deborah McMahon, a registered nurse, conducted a sexual assault forensic examination of Jane Doe on March 28, 2007, six to seven months after the incident. She described Doe as 4 feet 5 inches tall and 95 pounds. During her examination of Doe she found a red scratch or abrasion in the folds of Doe’s anus, which she photographed. The injury was consistent with having been sodomized; however, Nurse McMahon also testified it was possible that the abrasion could have been caused by scratching with fingernails. There was nothing to indicate the age of the abrasion. Nurse McMahon testified that area of the injury is not a good location for healing and that it could become chronic if continually disturbed. The injury was not something one would normally see when examining a child’s anus.
Doe also reported having pain with bowel movements and itchiness. Those symptoms are also consistent with having been sodomized. Doe reported that defendant had not threatened her, though she was afraid of him. Doe’s genital region appeared normal. Several versions of Nurse McMahon’s report had circulated, some of which contained no reference to any abrasion on Doe’s anus. The prosecutor’s version of the report contained handwritten notations regarding the abrasion. Nurse McMahon explained the discrepancy by testifying that she filled out the diagram on the report after the completion of her examination and must have, initially, mistakenly delivered copies of the incomplete report to the People.
Dr. David Tang reviewed Nurse McMahon’s report and agreed with her determinations. Dr. Tang testified the injury to Doe’s anus was consistent with sodomy. The healing of the injury could have been substantially delayed due to the area of the injury: the rectum is consistently squeezed and relaxed, which can cause a wound to reopen. Similarly, the area contains a lot of bacteria, which can delay healing. Moreover, the area lacks oxygen. Typically such an injury would heal within two to three weeks. There was, however, some white scar tissue around the edges of the injury, which could indicate it was chronic, i.e., of long duration. Dr. Tang testified that he had not seen a similar injury in 20 years, so it was “very unusual.” Nevertheless, Dr. Tang also testified the injury could have been caused by a fingernail and could have been caused more recently than the complained-of conduct in September 2006.
Prior to submission of the case to the jury, defense counsel requested that the court give the jury CALCRIM No. 915, the jury instruction on simple assault, as he mistakenly believed it related to section 242, battery, as a lesser included offense of count 3. The People noted CALCRIM No. 915 related to simple assault under section 240, not battery. The People contended, “[t]here are no facts in this case to support the Court giving such an instruction and, therefore, [we] would oppose the defense’s request. The People further observed that “[w]hen looking at the CALCRIM instruction which refers to [section] 269 [(the count 3 offense)], CALCRIM 1123 indicates there’s no sua sponte duty on the Court to instruct the jurors on simple assault of [section] 240.” Defense counsel acknowledged that he had misspoke; that he meant he wanted an instruction on simple assault. The court denied the request noting that it did not “feel it’s appropriate in this case for the Court to give an instruction on this lesser included. It’s just way too much from the charge down to a simple assault.”
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE REGARDING FORCE OR DURESS ON COUNTS 1 AND 2
Defendant contends the evidence was insufficient to support his convictions in counts 1 and 2 under section 288, subdivision (b), i.e., a lewd act committed by force or duress. He maintains that no showing of force other than that necessary to commit the offenses was adduced at trial; thus, he asserts the convictions must be reduced to reflect convictions under section 288, subdivision (a), i.e., lewd and lascivious act committed without force or duress. We disagree.
“In considering defendant’s claim of insufficiency of the evidence of force necessary to affirm his conviction..., we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
Section 288, subdivision (b)(1), proscribes any lewd and lascivious conduct committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” “‘Force’ as used in this context 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 used in this context 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] ‘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.] 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. [Citations.]” (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) “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.” (Id. at p. 14.) The discrepancy in age, weight, and size between the victim and the perpetrator may be important factors in determining whether duress existed. (Id. at pp. 14, 15.)
Under the applicable deferential standard of review, we conclude that the evidence in this case is sufficient to support the jury’s determination that defendant used sufficient force or duress to accomplish his lewd acts against Doe. As Doe attempted to leave the room, defendant “pulled” her. He “pulled [her] arm.” Defendant “grabbed [her] hand and put [her] on his lap on the bed.” He held her on the bed. He manipulated her, attempting to set her “in the middle of him.” Doe attempted to get away by getting up, but defendant prohibited her from doing so by grabbing both her hands with one of his. He held her back when she tried to leave. This was force substantially different from that necessary to accomplish the lewd acts themselves.
Defendant cites People v. Schulz (1992) 2 Cal.App.4th 999 and People v. Senior (1992) 3 Cal.App.4th 765 for the proposition that “a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.’” (Schulz, at p. 1004.) However, a number of published cases have explicitly disagreed with Schulz for that very proposition. (People v. Neel (1993) 19 Cal.App.4th 1784, 1786, 1789-1790; People v. Bolander (1994) 23 Cal.App.4th 155, 159-161; People v. Babcock (1993) 14 Cal.App.4th 383, 387-388.) Indeed, in Bolander, a separate panel from the same district made up of one of the very same justices who decided Schulz repudiated that portion of the decision. (Bolander, at pp. 159-161.) Moreover, as some of those same cases have noted, the findings in Schulz and Senior that the respective defendants had not acted with sufficient force as required under the statute was dicta because both courts upheld the convictions by finding that the defendants had committed the underlying acts by duress. (Schulz, at p. 1005; Senior, at pp. 775-776; Babcock, at pp. 387-388; Bolander, at pp. 159-161.)
We disagree with Senior and Schulz. As the court noted in People v. Cicero (1984) 157 Cal.App.3d 465, the first court to evaluate the meaning of “force” as used in section 288, subdivision (b): “‘[F]orce’ should be defined as a method of obtaining a child’s participation in a lewd act in violation of a child’s will and not exclusively as a means of causing physical harm to the child.” (Cicero, at p. 476, disagreed with by People v. Quinones (1988) 202 Cal.App.3d 1154, 1158 to the extent that Cicero held the People were still required to prove the act was undertaken against the will of the victim if the victim suffered no harm.) In its case, Cicero found that the force requirement had been “doubly met: defendant’s acts of picking the girls up and carrying them along were applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches.” (Cicero, at p. 474.) Thus, while a lewd and lascivious act upon a “willing” child would subject a defendant to a section 288, subdivision (a), conviction, where the defendant overcomes the victim’s will by the use of any manipulative force, a defendant has committed an act subjecting him to conviction under section 288, subdivision (b). Here, defendant overcame the victim’s resistance to the acts by the forceful methods of grabbing her, pulling her over to the bed, placing her on his lap on the bed, holding her there, and manipulating her position on his lap.
Finally, even to the extent that defendant’s acts could not be deemed sufficient to establish “force,” they were certainly sufficient to be characterized as acts subjecting the victim to duress. Defendant’s acts of grabbing, pulling, placing, holding, and manipulating the victim could very well have conveyed an implied threat of force compelling her to acquiesce more fully to the acts than she would otherwise have done. Doe was only nine years old at the time of the incident. At the time of her forensic examination, Doe was 4 feet 5 inches tall and weighed 95 pounds. Defendant was 5 feet 7 inches tall and weighed between 200 and 215 pounds. Doe testified that defendant was taller and stronger than she. Defendant was her uncle or, at least, had been at one point in time (see fn. 2); thus, he occupied at least somewhat of a position of authority over her. Doe testified that she was scared of defendant. She told the examining nurse that she was afraid of defendant. She attempted to leave the room immediately upon defendant’s entry into it. Doe felt less scared of defendant hurting her mother once they moved out of the apartment complex. Thus, sufficient evidence was adduced below from which the jury could rationally have concluded that defendant committed the acts by force and/or duress.
B. SUFFICIENCY OF THE EVIDENCE REGARDING PENETRATION AND FORCE ON COUNT 3
1. Force or Duress
The offense of aggravated sodomy of a child under the age of 14 requires proof that “‘force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person’” was used. (Cochran, supra, 103 Cal.App.4th at p. 13; see § 269, subd. (a)(3).) The essence of the crime of aggravated sexual assault of a child under the age of 14 pursuant to section 269 is the crime of forcible rape. (People v. Guido (2005) 125 Cal.App.4th 566, 574 (Guido).) Thus, “‘“the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].” [Citation.]’ [Citation.]” (Ibid.) “[I]n a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.” (People v. Griffin, supra, 33 Cal.4th at p. 1027; Guido, at p. 574.)
These concepts should apply equally to the crime of forcible sodomy. (Guido, supra, 125 Cal.App.4th at p. 574.) “As with forcible rape, the gravamen of the crime of forcible [sodomy] is a sexual act accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person’s will” that the act becomes unlawful under section 269. (Guido, at p. 576.)
Guido extended the definition of force used in Griffin, supra, to the act of oral copulation. We see no reason why the same definition should not be applied to a sodomy charged under the same aggravated sexual assault statute.
“Duress,” as used in this context, means the same thing as it does under section 288. (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) Thus, again, the discrepancy in age, weight, and size between the victim and the perpetrator may be important factors in determining whether duress existed. (Id. at pp. 15-16.)
As discussed above, defendant overcame the victim’s will by grabbing her, pulling her over to the bed, placing her on his lap on the bed, holding her there, and manipulating her position on his lap. Defendant physically prohibited Doe from leaving when she attempted to get away. This was a sufficient evidentiary showing of force necessary to sustain the conviction. Likewise, as noted above, defendant subjected Doe to sufficient duress to uphold the conviction. In addition to the physical acts of force defendant executed upon Doe, his size, position of authority, and Doe’s fear for her own and her mother’s safety are substantial evidence that the sodomy was inflicted under duress. Substantial evidence supports the jury’s finding that the sodomy was conducted by means of force and/or duress sufficient to overcome Doe’s will.
2. Penetration
“Section 286, subdivision (a) defines sodomy as the ‘contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.’” (People v. Farnam (2002) 28 Cal.4th 107, 143, fn. omitted.) Penetration is an essential element of the crime of forcible sodomy. (People v. Martinez (1986) 188 Cal.App.3d 19, 23-25.) “Lack of trauma to a victim’s rectum does not preclude a finding that the victim was sodomized.” (Farnam, at p. 144.)
Here, substantial evidence supported the jury’s inherent finding that defendant had penetrated Doe’s anus, however slightly. Doe testified that defendant put his private part “In [her] butt.” (Italics added.) When asked if defendant’s penis went inside of her anus, Doe responded that it did. When asked how it felt when defendant put his penis in her “butt,” she replied, “It felt really bad.” Doe reported to the examining nurse that she had been sodomized. During a forensic interview Doe reported that defendant had sodomized her. Thus, both Doe’s testimony and former statements constituted substantial evidence that defendant had penetrated her anus.
Moreover, Doe’s injuries and symptomology further supported the jury’s finding. The forensic sexual assault examination of Doe revealed a red scratch or abrasion to her anal folds. The injury was consistent with sodomy. Both Nurse McMahon and Dr. Tang testified that there were a number of reasons why an injury to the anus could become chronic lasting six to seven months beyond the date of the incident. Both Nurse McMahon and Dr. Tang testified that injuries to a child’s anus are unusual. In fact, Dr. Tang testified that the injury was “very unusual” and that he had not seen another injury like it in 20 years. Thus, the injury itself and its chronic nature could alone support a rational inference of penetration. Doe also complained of pain, especially during bowel movements, and itchiness on her anus. Both symptoms are consistent with someone who has been sodomized. Substantial evidence supported the inherent finding that defendant had penetrated Doe’s anus.
C. JURY INSTRUCTIONS ON LESSER INCLUDED OFFENSES
Defendant contends the court erred in not giving any jury instructions on lesser included offenses of the count 3 offense. He contends the court had a sua sponte duty to give instructions on the lesser included offenses of attempted sodomy and battery and that the court should have given the instruction on assault as requested.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “That obligation has been held to include giving 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.” (Ibid.) “[E]very lesser included offense, or theory thereof, which is supported by the evidence must be presented to the jury.” (Id. at p. 155.) However, “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Id. at p. 162.)
Here, the only “evidence” that defendant had committed a lesser offense than sodomy was his denial during his third police interrogation that he had penetrated Doe’s anus. That “evidence” was simply too weak to justify instruction on any of the lesser included offenses now requested by defendant. No reasonable jury could conclude based on that evidence that defendant had committed one of the lesser offenses. Indeed, defendant’s own statements during his interrogations reveal that he lied during all three interviews. In the initial interview, defendant denied touching Doe inappropriately in any manner. In the second interview, defendant admitted touching Doe’s breasts. He then denied touching her legs, but, immediately thereafter, admitted doing so. Defendant denied touching Doe’s vagina, then he admitted doing so; however, only over her clothing. Defendant then admitted touching her vagina skin-to-skin. During the third interview, defendant denied removing Doe’s shorts. Defendant then admitted unbuttoning her shorts and pulling them down to her thighs. Defendant admitted touching Doe’s anus with his penis, but denied penetrating it. Defendant’s unsworn statement during the third police interrogation that he did not penetrate Doe’s anus was simply too self-serving and, when judged in context with his other statements, patently unbelievable.
Moreover, as noted above, there was substantial evidence that defendant had, in fact, penetrated Doe’s anus with his penis, however slightly. Indeed, the evidence of penetration could legitimately be characterized as overwhelming. Doe thrice testified that defendant had put his penis inside her anus. She testified it felt “really bad” when defendant’s penis was inside her anus. She previously reported to both a forensic interviewer and a medical examiner that she had been sodomized. She incurred a chronic, unusual injury to her anus which was consistent with having been sodomized. While both Nurse McMahon and Dr. Tang testified that the abrasion could have been caused by a fingernail scratch, Dr. Tang testified that he had not seen a similar injury in 20 years. This strongly suggested that fingernail scratch marks to the anus were exceedingly rare, if not nearly unheard of; thus, leaving the rational inference that such a mark was nearly always demonstrative of sexual abuse. Moreover, Doe complained of itching and pain to her anus. These symptoms were likewise consistent with having been sodomized. Accordingly, no reasonable jury could have found that defendant had committed any lesser offense than that for which he was actually convicted. Indeed, as noted by the People, the jury spent less than one hour deliberating—the issue of whether defendant penetrated Doe’s anus was not a close call. For the very same reasons, we conclude that if any error was present, it was harmless by any standard.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J. GAUT, J.