Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. SWF014170, Albert J. Wojcik, Judge.
IRION, J.
A jury convicted Richard Juarez Palos of four counts of committing a lewd and lascivious act by force or duress upon a child under the age of 14 (Pen. Code, § 288, subd. (b)) and one count of battery (§ 242). Palos admitted one prior strike conviction (§ 667, subds. (c), (e)(1)). The trial court sentenced him to 48 years in prison.
All further statutory references are to the Penal Code.
Palos argues (1) substantial evidence does not support a finding of violence or duress necessary to support his convictions under section 288, subdivision (b); (2) because insufficient evidence supports the trial court's finding that the violations of section 288, subdivision (b) occurred on four separate occasions, he should not have been sentenced to full and consecutive sentences for those offenses under section 667.6, subdivision (d); (3) the imposition of consecutive sentences based on facts not found by a jury violates his Sixth Amendment right to a jury trial; (4) the trial court abused its discretion by denying his motion to strike his prior strike; and (5) Palos's actual and conduct credits were correctly stated during the pronouncement of sentence but are incorrectly reflected in the sentencing minute order and abstract of judgment. As we will explain, all but the last of these arguments lack merit. Accordingly, we order that the abstract of judgment be amended to accurately reflect Palos's actual and conduct credits, but in all other respects we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2005 Palos's seven-year-old daughter S.P. disclosed to a neighbor that Palos had beaten her with a belt and had sexually molested her. When police responded to the neighbor's report of child abuse, they observed bruising on S.P.'s right and left buttock.
An information charged Palos with four counts of committing a lewd and lascivious act on a child under the age of 14 by use of violence or duress (§ 288, subd. (b)), and one count of felony child abuse (§ 273a, subd. (a)). The information further alleged that Palos had incurred a prior strike within the meaning of section 667, subdivisions (c) and (e)(1) and section 1170.12, subdivision (c)(1) based on his conviction for threatening crime with an intent to terrorize in violation of section 422.
The prior conviction was incurred in 1999.
At trial, the jury was played a videotape of S.P. being interviewed by a social worker from Child Protective Services. The videotape was created shortly after the molestation came to light, when S.P. was seven years old. In the videotape, S.P. described acts of sexual molestation by Palos. According to S.P., Palos started touching her "private" when she was five years old. She specifically stated that the molestation continued to when she was six and seven years old.
On the videotape, S.P. described several different types of lewd acts by Palos. First, she reported that "lots of times" Palos put "his private in my private," which felt like "its nailed, so I couldn't get out," and "he was pushing down so it can hurt." S.P. stated that during this act, her legs were "on the ground" and she "couldn't put them up or... couldn't kick him or anything." She stated, "it was like, he was trying to kill me so I was like shaking." Second, S.P. reported that "he licks my private," which happened "a lot" or "millions" of times. S.P. stated that when Palos does that to her, she "tri[es] to get out of there." Third, according to S.P., Palos would "touch my private" with his hand. Fourth, S.P. reported that on one occasion, Palos made her "lick his private," which was "disgusting." Fifth, S.P. described one incident where Palos masturbated in her presence and ejaculated into the toilet. According to S.P., Palos told her that if she did not keep the molestation a secret he would spank her with his belt again.
S.P. also testified at trial. The trial took place when S.P. was nine years old — more than two years after the videotaped interview. At trial S.P. testified (1) that Palos touched her genitals with his hand "a lot" of times; (2) that Palos penetrated her with his penis only one time, which made her "hurt really bad"; and (3) that Palos orally copulated her "like, twice." She testified that sometimes she tried to get Palos to stop by "scooch[ing]" away, but other times she did not resist because "if I did, he would get mad." She also stated that she was scared of him "[b]ecause he's mean." In testimony related to the child abuse count, S.P. also testified that Palos would "smack [her]" with a belt on her buttocks and leave purple bruises.
With respect to the differences in S.P.'s statements during the videotaped interview and in court about the number of times that specific types of lewd acts occurred, an expert testified at trial that in her experience, for a number of reasons, a child may initially remember an event happening many times but later believe it happened only once.
Palos did not testify at trial and called no witnesses in his defense.
The jury convicted Palos of four counts of committing a lewd and lascivious act by force or duress upon a child under the age of 14. (§ 288, subd. (b).) With respect to the count alleging child abuse, the jury found Palos guilty of the lesser offense of battery. (§ 242.)
Palos filed a motion requesting that the trial court strike the finding regarding his prior strike and sentence him accordingly. Palos argued to the trial court that it should exercise its discretion to strike the strike because (1) the strike was remote in time in that it was incurred in 1999; (2) Palos was not sentenced to prison for the prior strike conviction; (3) Palos was relatively young when the strike was incurred and did not have a significant criminal record before or after the strike conviction; and (4) Palos would not be a danger to society when released from prison, even if the trial court were to strike the prior strike. The trial court denied the motion, specifically concluding that (1) the offense giving rise to the prior strike was not remote in time because it occurred approximately four and a half years before Palos's criminal conduct giving rise to this case; (2) based on his conduct and background, Palos did not fall outside the scope of the "three strikes" law; and (3) it perceived no other factual or legal ground to justify the exercise of its discretion to dismiss the strike.
The trial court sentenced Palos to 48 years in prison. It specified that because the molestation occurred on four "specific, different instances," section 667.6, subdivision (d) required that the prison terms for each of the convictions for violation of section 288, subdivision (b) must be fully served and run consecutively.
At the sentencing hearing the trial court stated that Palos was entitled to presentence custody credits, consisting of 767 days of actual time served and 115 days of conduct credit pursuant to section 2933.1, and it pronounced sentence accordingly. However, the minute order and abstract of judgment state the Palos is entitled to 732 days actual credit and 150 days of conduct credit.
II
DISCUSSION
A. Substantial Evidence Supports the Finding that Palos Violated Section 288, Subdivision (b)(1)
Palos argues that insufficient evidence supports a finding that he committed the molestation of S.P. using force or duress as required for a conviction under section 288, subdivision (b)(1). We apply a substantial evidence standard of review in evaluating whether the sufficient evidence exists to support a finding of force or duress. (People v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale) ["defendant bears an enormous burden in claiming there is insufficient evidence to sustain his molestation convictions [due to insufficient evidence of duress. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves"].)
A conviction under section 288, subdivision (b) requires a finding that the defendant committed the lewd act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1).) As the prosecutor argued at trial, the most applicable category in this case is duress.
As used in section 288, subdivision (b)(1), duress 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.' " (People v. Leal (2004) 33 Cal.4th 999, 1004 (Leal), italics omitted.) " '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.' " (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14 (Cochran).) " 'Where 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' is relevant to the existence of duress." (People v. Senior (1992) 3 Cal.App.4th 765, 775 (Senior).) "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." (Cochran, at p. 14.)
Several cases have upheld findings of duress despite the lack of force, violence or threats when, as here, the victim was a small child and the defendant was an authority figure. (See Cochran, supra, 103 Cal.App.4th pp. 15-16 [duress was present in father's molestation of his nine-year-old daughter despite absence of violence or threats where the victim was a "vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority," and "[h]er compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent"]; People v. Pitmon (1985) 170 Cal.App.3d 38, 51 (Pitmon) [despite absence of threats or violence, duress was present when an eight-year-old boy was molested by an adult male stranger because the boy was at "an age at which adults are commonly viewed as authority figures" and because of "the disparity in physical size between an eight-year-old and an adult" which creates "physical vulnerability"]; Veale, supra, 160 Cal.App.4th at p. 47 [although stepfather who molested seven-year-old girl did not use violence or explicit threats, evidence supported a finding of duress based on "the disparity between [the victim] and defendant's age and size," the "defendant's position of authority in the family," and the fact that the victim feared the defendant and believed he would kill her or her mother if she told about the molestation].) Indeed, Cochran noted that "as a factual matter, when the victim is as young as this victim [i.e., the nine-year-old victim in Cochran] and is molested by her father in the family home, in all but the rarest cases duress will be present." (Cochran, at p. 16.)
Here, at five to seven years old, S.P. was several years younger than the nine-year-old victim in Cochran, and thus arguably even more subject to psychological coercion than the victim in Cochran.
Reviewing the evidence presented at trial, we find sufficient evidence of duress. As in Cochran, "[t]his record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority." (Cochran, supra, 103 Cal.App.4th at p. 15.) S.P. was only five to seven years old when the molestations occurred, and Palos was her father. As S.P. described the situation, she was scared and only submitted to the molestations because she was afraid of Palos "[b]ecause he's mean." During the molestations, S.P. felt like "he was trying to kill me so I was like shaking." She stated that, at times, she "tri[ed] to get out of there." Although she resisted at times by "scooch[ing]" away, at other times she did not resist because "if I did, he would get mad." Palos told her that if she did not keep the molestation a secret he would spank her with his belt again. The record contains evidence of the severity of the beatings that Palos inflicted when he used his belt on S.P. Taken together, these facts provide substantial evidence that Palos accomplished the molestations by " 'a direct or implied threat of force, violence, danger, hardship or retribution' "(Leal, supra, 33 Cal.4th at p. 1004, italics omitted) and that S.P. thus submitted to the molestations under duress.
Threats to harm a child if the molestation is reported are relevant to a finding of duress. (See People v. Sanchez (1989) 208 Cal.App.3d 721, 748 [grandfather's "repeated threats that [the eight-year-old victim's] mother would hit her if she told anyone" about molestation by the grandfather, contributed to the existence of duress]; cf. Veale, supra, 160 Cal.App.4th at p. 47 [victim's belief that her stepfather would kill her or her mother if she reported the molestation contributed to the existence of duress].) Indeed, duress is present in such situation because "[a] simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition." (Senior, supra, 3 Cal.App.4th at p. 775.)
Palos argues that People v. Hecker (1990) 219 Cal.App.3d 1238 and People v. Espinoza (2002) 95 Cal.App.4th 1287 support his argument that insufficient evidence exists to support a finding of duress. In Hecker the defendant was found guilty of molesting his 12- or 13-year-old stepdaughter, and in Espinoza the defendant was found guilty of molesting his 12-year-old daughter. (Hecker, at pp. 1241-1242; Espinoza, at pp. 1292, 1298.) In part because of the lack of any force or threats, Hecker and Espinoza concluded that there was insufficient evidence of duress. (Hecker, at p. 1251; Espinoza, at pp. 1320-1322.) Here, because at five to seven years old S.P. was significantly younger than the 12- or 13-year-old victims in Hecker and Espinoza, the degree of psychological and physical coercion exercised by Palos was much greater. (See Veale, supra, 160 Cal.App.4th at pp. 47-50 [rejecting Hecker and Espinoza as factually dissimilar when the molestation at issue concerned a seven-year-old victim].) Moreover, in Cochran the court limited its decision in Hecker, explaining that the holding was "overly broad" and did not compel the decision that molestation of a nine-year-old girl by her father was accomplished without duress. We have cited several cases in which the young age of the victim was important to upholding a finding of duress. (Cochran, supra, 103 Cal.App.4th at pp. 15-16; Pitmon, supra, 170 Cal.App.3d at p. 51; Veale, at p. 47.) Thus, we conclude that neither Hecker nor Espinoza compel the conclusion that insufficient evidence supports a finding of duress in this case.
B. Sufficient Evidence Supports a Finding That the Molestations Occurred on Four Separate Occasions as Required by Section 667.7
Section 667.6, subdivision (d) provides that for certain specified sex crimes, including violation of section 288, subdivision (b), "[a] full, separate, and consecutive term shall be... imposed for each violation... if the crime[] involve[s]... the same victim on separate occasions." Relying on S.P.'s testimony, the trial court found that "there were are least four specific, different instances" where violation of section 288 subdivision (b) occurred. Accordingly, the trial court determined that it was required to impose full and consecutive sentences under section 667.6, subdivision (d).
Palos argues that "there was insufficient evidence supporting the court's finding that all the acts underlying the guilty verdicts" on the section 288, subdivision (b) counts "happened at different times or were sufficiently separated to be different occurrences." Palos argues that it is purely speculation that the crimes occurred on four different occasions, and that therefore the finding is not supported by substantial evidence.
We apply a substantial evidence standard of review to the trial court's finding that the four violations of section 288, subdivision (b) occurred on separate occasions. (See People v. Corona (1988) 206 Cal.App.3d 13, 17 ["if the evidence supports [the trial court's finding of separate occasions,] the decision to sentence under subdivision (d) must be upheld]; People v. Plaza (1995) 41 Cal.App.4th 377, 384 (Plaza) [" 'once the trial judge resolves the issue of "separate occasions," an appellate court is "not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection" ' "].) As we will explain, we conclude that substantial evidence supports a finding that the four acts of molestation occurred on "separate occasions" as that term is defined by statute and case law.
The applicable statute provides guidance for determining whether the sex crimes for which a defendant was convicted occurred on separate occasions.
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).)
Case law has provided additional clarification that separate occasions of sexual assault may take place during the same encounter. As our Supreme Court stated in People v. Jones (2001) 25 Cal.4th 98, 104-105, "[u]nder the broad standard established by... section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location" for a finding that sexual assaults occurring during a continuous encounter with a victim constituted separate occasions. Thus, for example, in People v. Irvin (1996) 43 Cal.App.4th 1063, 1070, the court disagreed that "a finding of 'separate occasions' requires a change of location or an obvious break in a perpetrator's behavior." It explained that instead, "a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter" and that "a trial court could find a defendant had a 'reasonable opportunity to reflect upon his or her actions' even though the parties never changed physical locations and the parties 'merely' changed positions." (Id. at p. 1071, italics added.) Similarly, in Plaza, supra, 41 Cal.App.4th 377, 385, the court concluded that three counts of forcible oral copulation, one count of rape and one count of forcible vaginal penetration with a foreign object that all occurred during the same encounter in the victim's apartment, with no break in the defendant's control over the victim, were all separate occasions for the purposes of section 667.6. Of course, as a matter of logic, separate occasions of lewd acts can easily be found if the acts were performed on different days instead of during the same encounter. In such a case it would be self-evident that the defendant had a reasonable opportunity to reflect between the sexual assaults.
Here, S.P.'s unambiguous testimony makes clear that at least three of the lewd acts occurred on different days. Specifically, S.P. stated during the videotaped interview that the molestation happened when she was five, six and seven — "every year." Thus, the only remaining question is whether substantial evidence exists that a fourth lewd act either occurred on a fourth day or was performed at the same time as one of the other three acts but was performed under circumstances in which Palos "had a reasonable opportunity to reflect upon his... actions and nevertheless resumed sexually assaultive behavior." (§ 667.6.)
We conclude that although S.P. was not given the opportunity in her testimony to directly state whether the lewd acts happened on at least four different days, a reasonable trier of fact could infer from her description of the ongoing nature of the molestation that the lewd acts occurred on at least four separate days. During the videotaped interview S.P. stated that (a) Palos penetrated her with his penis "[l]ots of times"; (b) Palos orally copulated her "millions" of times; (c) Palos touched her genitals with his hand an unspecified number of times; and (d) she was forced to orally copulate Palos on one occasion. During her in-court testimony, S.P. identified (a) one instance in which Palos penetrated her with his penis, (b) two instances in which Palos orally copulated her, and (c) "[l]ots of times" that Palos touched her genitals with his hand. Further, as we have noted, S.P. was clear that these acts occurred over the span of three years, with at least one act happening each year. A reasonable trier of fact could conclude that when a small child describes acts as happening "millions" of times and "[l]ots of times," and is clear that the events happened over the course of three years, she is communicating that those acts happened more than merely one day a year during those three years. Accordingly, a reasonable trier of fact could conclude that S.P. was describing lewd acts that occurred on at least four separate days.
Because substantial evidence thus supports a finding that Palos committed lewd acts in violation of section 288, subdivision (b) on at least four separate occasions, we conclude that pursuant to section 667.6, the trial court properly imposed full and consecutive sentences for each of Palos's convictions for committing lewd acts in violation of section 288, subdivision (b).
C. The Trial Court's Imposition of Consecutive Sentences Does Not Violate Palos's Sixth Amendment Right to a Jury Trial
Palos contends that the trial court imposed consecutive sentences on him in violation of his Sixth Amendment right to trial by jury because it, rather than a jury, found the facts necessary for the application of section 667.7, namely that the four instances of molestation occurred on separate occasions.
As Palos concedes in his appellate briefing, the California Supreme Court has already resolved this issue in People v. Black (2007) 41 Cal.4th 799, 821-823, by holding that the Sixth Amendment right to a jury trial did not apply to a trial court's findings in connection with the imposition of a consecutive sentence. More recently, the United States Supreme Court has addressed the issue, also holding that the Sixth Amendment does not apply to sentencing schemes which require judges, rather than juries, to find certain facts before imposing consecutive sentences. (Oregon v. Ice (2009) ___ U.S. ___ [129 S.Ct. 711, 714-715, 172 L.Ed.2d 517, 522].) Based on these authorities, we reject Palos's argument that the trial court violated Palos's Sixth Amendment right to a jury trial when it imposed a consecutive sentence based on facts not found by a jury.
D. The Trial Court Did Not Abuse Its Discretion by Denying Palos's Motion to Strike His Prior Strike
Palos argues that the trial court abused its discretion in refusing to strike his prior strike.
A trial court may strike a finding under the three strikes law that a defendant has previously been convicted of a serious and/or violent felony (i.e., a strike) on its "own motion or upon the application of the prosecuting attorney... in furtherance of justice." (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), citing People v. Superior Court(1996) 13 Cal.4th 497.) In determining whether to strike a strike, the court "must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)
The trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." ' " (Id. at p. 376.) Second, " ' " '[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge,' " ' " and thus the trial court's " ' "decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Taken together, these two precepts establish the overarching principle on review that "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
On appeal, Palos argues that the trial court abused its discretion in refusing to strike his prior strike because (1) even without the prior strike, his midterm sentence would have been 24 years in prison; (2) under Palos's current sentence, he will likely not be released from prison until he is more than 80 years old; (3) the family crisis caused by Palos's wife's terminal cancer was "presumably... the catalyst for the behavior"; and (4) he has the ability to be a productive member of society as evidenced by his job training, the relatively minor nature of his prior criminal history, and his involvement with his family.
Based on facts set forth in the probation officer's report, it appears that Palos's wife (who was S.P.'s mother) was terminally ill during the time that Palos committed the molestation and that she died shortly after the molestation came to light, leaving S.P. without either of her parents to raise her. Rather than presenting a sound ground for the exercise of the discretion to strike Palos's prior strike, these facts serve to highlight the severe harm to S.P. from Palos's crimes.
We conclude that none of the arguments presented by Palos compel the conclusion that the trial court abused its discretion. Here, the record shows that the trial court reasonably exercised its discretion and stated its reasons as required. It considered the nature and date of Palos's prior strike and the nature of his current offenses. It was within reason for the trial court to conclude that because of the facts of this case and the nature and date of Palos's prior offense, he was not wholly "outside the scheme's spirit" (Williams, supra, 17 Cal.4th at p. 161), and that it should not strike Palos's prior strike. We cannot conclude that the trial court's refusal to strike Palos's prior strike was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.)
E. The Abstract of Judgment Must Be Corrected to Reflect the Actual and Conduct Credits as Stated at Pronouncement of Sentence
Palos contends, and the Attorney General agrees, that the abstract of judgment inaccurately reflects the number of actual credits and conduct credits to which Palos is entitled, as pronounced by the trial court at sentencing.
During pronouncement of sentence, the trial court stated that Palos was entitled to 767 days actual credit and 115 days conduct credit. However, both the minute order prepared after the sentencing hearing and the abstract of judgment reflect 732 days actual credit and 150 days conduct credit.
Citing the principle that a trial court's oral sentence governs if it is different from what appears in a minute order or an abstract of judgment (see People v. Mesa (1975) 14 Cal.3d 466, 471), the Attorney General concedes that the abstract of judgment should be amended. Based on this concession by the Attorney General, we therefore conclude that the abstract of judgment must be amended to reflect the actual and conduct credits as stated by the trial court during pronouncement of sentence.
DISPOSITION
The trial court shall enter an amended abstract of judgment reflecting that Palos is entitled to 767 days actual credit and 115 days conduct credit and shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.