Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC592212.
PREMO, ACTING P.J.
A jury convicted defendant Misael Quintana of aggravated sexual assault on a child under 14 years old (oral copulation by means of duress) and four counts of lewd conduct upon a child by means of duress. The trial court sentenced defendant to 15 years to life, plus 24 years. On appeal, defendant contends that no substantial evidence supports the element of duress. We disagree and affirm the judgment.
BACKGROUND
Thirty-year-old defendant was separated from his wife. His five- or six-year-old daughter spent every other weekend with him. At some point, the daughter told her mother that defendant had undressed her and kissed her on the mouth, vagina, and “butt.” At first, the daughter did not want to tell her mother because she believed that her mother would hit her. When the mother confronted defendant on the telephone, defendant told the mother not to report him and asked her to give him a chance. He added that the daughter had “told him to do it.”
The record shows that defendant’s wife and daughter moved to Sacramento in July 2003 when the victim was four years old and, in February 2005, the daughter told her mother about being molested. The daughter was therefore at least five and possibly six years old if we infer that she was relating a recent molestation in February 2005.
The daughter testified that defendant kissed her many times in his bed on her mouth, vagina, and butt. When defendant did so, he would tell her “[t]o be quiet” so that her uncle would not come. Defendant also told the daughter “[n]ot to tell [the mother] that he had kissed [her] in the car” “[s]o that [the mother] would not find out.” The daughter also testified that she kissed defendant’s penis. She added that she loved defendant, was sad about not seeing defendant, and wanted to see defendant. And she related that defendant had once told her to put her mouth on his girlfriend’s breast.
EVIDENCE OF FORCE, DURESS, MENACE, OR FEAR
In any challenge to a conviction based on the insufficiency of the evidence, our review is highly deferential. We determine “ ‘ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Moon (2005) 37 Cal.4th 1, 22.) Thus, “[a]lthough 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.” (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) And so “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.” (Ibid.)
“However, ‘[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]’ [Citation.] ‘Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.’ ” (People v. Tripp (2007) 151 Cal.App.4th 951, 955-956; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
In child molestation cases, “generic testimony” is sometimes presented, in which a victim describes multiple incidents that are not differentiated by dates, times, or places. Such testimony may be presented in cases where the molester has resided in the victim’s home and molested the victim repeatedly, so that “[a] young victim... may have no practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even any such incidents.” (Jones, supra, 51 Cal.3d at p. 305.) This can create certain issues of proof in molestation cases. In Jones, the court reconciled the tensions between a defendant’s due process rights with society’s need “to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time.” (Ibid.) It held that generic testimony can support a conviction if certain minimum requirements are met.
“The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade, ’ or ‘during each Sunday morning after he came to live with us’), to assure the acts were committed within the applicable limitation period.” (Jones, supra, 51 Cal.3d at p. 316.)
In this case, the prosecutor argued that the sexual assault was oral copulation by means of duress and that duress also applied to the lewd conduct counts. She urged: “So what do we have here that tells us that we have duress? At the time this is happening she’s five or six and he’s 30. This is her father who she loves. No one is going to tell you she had to obey him, she was mean or disobedient. This is a child that loved her daddy and did what her daddy told her. Her daddy told her [to] be quiet because [the uncle was] in the house.... Remember when mom testified the first thing [the daughter] told her ‘I don’t want to tell you, you will spank me.’ ”
Defendant argues that “none of the cited evidence constitutes duress to commit sexual acts.”
We disagree with defendant.
Penal Code section 288, subdivision (a), proscribes the commission of “any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child....” Section 288, subdivision (b) punishes a lewd act described under subdivision (a) where it has been committed by “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person....” (§ 288, subd. (b)(1).)
Further unspecified statutory references are to the Penal Code.
Within the context of sexual offenses, 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 the person otherwise would not perform, or (2) acquiesce in an act to which the person otherwise would not submit. (People v. Leal (2004) 33 Cal.4th 999, 1004, 1005; Peoplev. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), overruled on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
In People v. Senior (1992) 3 Cal.App.4th 765, 775, we explained that “duress involves psychological coercion.” “ ‘Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes.... “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” [are] relevant to the existence of duress.’ ” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1320 (Espinoza).) “ ‘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.’ ” (People v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale).) And physical control can create duress without constituting force. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) However, as this court made clear in Espinoza, duress can be established only if “there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat.’ ” (Espinoza, supra, at p. 1321.)
In Veale, the court found sufficient evidence of duress when the defendant molested his seven-year-old stepdaughter, even though there was no evidence the defendant actually threatened her. (Veale, supra, 160 Cal.App.4th at p. 47.) The court explained, “A reasonable inference could be made that [the] defendant made an implied threat sufficient to support a finding of duress, based on evidence that [the child] feared [the] defendant and was afraid that if she told anyone about the molestation, [the] defendant would harm or kill [her], her mother or someone else. Additional factors supporting a finding of duress include [the child’s] young age when she was molested; the disparity between [the child’s] and [the] defendant’s age and size; and [the] defendant’s position of authority in the family.” (Ibid.)
In Cochran, the court stated, “as a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present.” (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) In Cochran, the defendant was a foot and a half taller than the nine-year-old victim and outweighed her by about 100 pounds. (Id. at p. 15; see also People v. Pitmon (1985) 170 Cal.App.3d 38, 51 [finding the evidence sufficient to establish duress, even though the victim testified the defendant did not use force, violence, or threats when the victim “was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of [her] relative physical vulnerability”], overruled on other grounds in People v. Soto, supra, 51 Cal.4th at p. 248, fn. 12, superseded by statute on another point as stated in People v. Valentine (2001) 93 Cal.App.4th 1241, 1250, fn. 10.)
Here, as in Cochran, the molestation took place in the family home. Defendant also imposed himself upon his daughter in his car. He was the victim’s father, occupying a position of authority in the family. There was a disparity in age--defendant was 30 and his daughter was five or six. Although there is no indication of the daughter’s size, it is reasonable to infer a considerable disparity in size given the age disparity. Defendant physically took off his daughter’s clothes. He told her to be quiet and not tell her mother. The daughter was scared into believing that her mother would hit her if she revealed what defendant was doing to her. And defendant exploited his daughter by making her do an act upon his girlfriend. This shows physical and psychological coercion and is ample evidence of duress to support the convictions.
Defendant points out that his psychological coercion was pressure directed against reporting the molestations rather than pressure directed against refusing to acquiesce to the sex acts. But we disagree with the assertion in People v. Hecker (1990) 219 Cal.App.3d 1238, 1251, footnote 7, overruled on other grounds in People v. Soto, supra, 51 Cal.4th at page 248, footnote 12, that an admonition against disclosing the molestation cannot support a finding of duress. As this court observed in an earlier case, young victims of child molestation are unlikely to perceive the subtle distinction “between warnings enjoining nondisclosure and noncompliance”: “A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.” (People v. Senior, supra, 3 Cal.App.4th at p. 775.)
Defendant’s reliance on Espinoza, in which the defendant molested his 12-year-old daughter, is misplaced. In Espinoza, which was decided before Cochran, we held that there was insufficient evidence of duress, reasoning: “The only way that we could say that [the] defendant’s lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.’s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress.... Duress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat....’ [Citation.] No evidence was adduced that [the] defendant’s lewd act and attempt at intercourse were accompanied by any ‘direct or implied threat’ of any kind. While it was clear that L. was afraid of [the] defendant, no evidence was introduced to show that this fear was based on anything [the] defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation.” (Espinoza, supra, 95 Cal.App.4th at p. 1321.)
Espinoza is distinguishable, in that the victim in that case was considerably older than defendant’s daughter. Here, because of the daughter’s young age, the daughter was more susceptible to being coerced through fear and defendant’s position of authority. Moreover, the surrounding circumstances in Espinoza were significantly less coercive than in the present case. There, the defendant behaved as if he were crying and asked the victim if she still loved him while he was molesting her. The defendant’s demeanor itself was evidence that he did not use duress to coerce his victim’s acquiescence. (Espinoza, supra, 95 Cal.App.4th 1287.) While this case is in many ways similar to Espinoza, we conclude, based on Cochran, that the evidence in the record, considered as a whole, amply supports a finding of duress. We therefore reject defendant’s challenge to the sufficiency of the evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, J., Lucas, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.