Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF207338. Kathryn T. Montejano, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
VARTABEDIAN, Acting P. J.
Defendant Efren Feliciano Silva sexually assaulted R.G. on her fourth birthday and on two prior occasions. He was convicted of numerous sex crimes as a result of these assaults. He appeals, claiming the evidence is insufficient to support the jury’s finding of the use of force, violence, menace, fear, and/or duress in one count. In addition, he argues the trial court was not aware of its sentencing discretion and erred in imposing consecutive sentences or, alternatively, his counsel was ineffective in failing to object to the imposition of consecutive sentences. Appellant also claims and respondent concedes the evidence was not sufficient to support the trial court’s order requiring defendant to reimburse the county for the services of appointed counsel and was insufficient to support the order requiring defendant to pay for the cost of the sexual assault examination. With the exception of these concessions, we will affirm.
FACTS
Defendant lived in the home of L.S. (mother) and her husband. On R.’s fourth birthday, mother saw her in the bedroom putting on a pair of underpants. R. looked sad and frightened. Mother looked at the underpants R. had removed. The underpants were wet with a mucus-like substance that mother believed was sperm. Mother questioned R. about what had happened. R. resisted telling, but mother insisted that she tell her. R. said she was told not to tell mother. Mother encouraged R. to tell her. R. said that defendant put his penis in her vagina. He pushed and it hurt. R. told him not to do it, but he did it anyway.
R. referred to defendant’s penis and her genitals by other names. It was established at trial that she was referring to a penis and her genitals. We shall use the terms “penis” and “genitals,” not the actual terms used by R.
Mother talked to defendant, showed him R.’s underpants, and asked him what he had done to R. Defendant said he had not done anything. Mother called R. into the room. Defendant called R.’s name and looked at her in an “ugly way.” Mother called the police.
Defendant was interviewed by police. He said he was “horsing around” with R. when he became sexually aroused. He lifted up her dress, moved her underpants to the side and attempted to insert his penis into her vagina. (Count 1--Pen. Code, § 288.7, subd. (a), sexual intercourse with a child under the age of 10.) He was unable to insert his entire penis. R. moaned and stepped back from defendant. Defendant then held R.’s underpants to the side, exposing her genitals while he masturbated and eventually ejaculated on her underpants. (Count 4--§ 288, subd. (b)(1), lewd or lascivious act by force.) Defendant said that on two previous occasions he had touched R.’s genitals with his hand. (Counts 5 and 6--§ 288, subd. (a), lewd or lascivious acts.)
All future code references are to the Penal Code unless otherwise noted.
R. underwent a sexual assault examination. She had two lacerations of her hymen and a tear to her posterior fourchette. These injuries were abnormal for a child who had not been injured in another manner and were consistent with the history of the sexual assault. The tear to the fourchette would require significant blunt trauma.
R.’s underpants were examined and analyzed. The underpants contained defendant’s sperm.
R. was interviewed. She said that defendant told her to keep the sexual activities a secret and to not say anything. R. said that defendant wanted her to put her mouth on his penis. (Count 2--§ 288.7, subd. (b), oral copulation with a child under the age of 10.) He put his penis in her mouth and told her to suck it. She told him she did not want to. R. said it hurt a lot when defendant touched her, and she told him no. Defendant also instructed R. to touch his penis, and she did. (Count 3--§ 288, subd. (a), lewd or lascivious act.) R. recounted that defendant had touched her genitals multiple times.
R. was a reluctant witness at trial, particularly when the subject changed to the sexual assaults. She testified that defendant lived with her family. She had seen defendant’s privates. She confirmed that he put his penis in her mouth and in her vagina. It hurt when he did this. Defendant also touched her genitals more than once.
For the activities that occurred on R.’s birthday, the jury convicted defendant of one count of sexual intercourse with a child under 10 (count 1), one count of oral copulation with a child under 10 (count 2), one count of a lewd or lascivious act without force (having R. touch his penis) (count 3), and one count of a lewd or lascivious act with force (moving her underpants to the side while he masturbated) (count 4). In addition, he was convicted of two more lewd or lascivious acts without force for the previous occasions when he rubbed R.’s genital area (counts 5 and 6). The jury also found that defendant engaged in substantial sexual conduct as to all counts except for one of the earlier lewd or lascivious acts (count 5).
DISCUSSION
I. Substantial Evidence of Force, Violence, Menace, Fear, and/or Duress
Defendant was convicted in count 4 of a forcible lewd act against R. based on his act of moving her underpants to the side to expose her genitals while he masturbated to ejaculation. Defendant contends there was no substantial evidence of force, violence, duress, menace and/or fear to support the verdict in count 4.
Under section 288, subdivision (b)(1), a person is guilty of a felony when he or she commits a lewd or lascivious act upon a child under 14 “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.”
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331, brackets in original.)
“Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there is insufficient evidence to sustain [the force element of] his molestation convictions. 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.” (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
“For purposes of section 288, subdivision (b), ‘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.” [Citations.]’ [Citation.] ‘“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.]’ [Citations.] ‘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.]” (People v. Veale, supra, 160 Cal.App.4th at p. 46, brackets in original.)
Although not cited by either party, we find the analysis in the case of People v. Veale, supra, 160 Cal.App.4th 40 to be dispositive of the issue. In Veale, the defendant moved in with the mother and shortly thereafter married the mother. The mother’s six- or seven-year-old daughter, Brianna, was molested by defendant beginning shortly after he moved in with the mother. The defendant touched Brianna’s genital area with his penis and his hand on several occasions. Although the incidents did not hurt, Brianna did not like what the defendant was doing and “felt bad.” (Id. at p. 43.)
On one occasion the defendant asked Brianna to touch his penis. “She became angry, threw clothes around the room, and did not do it. Defendant did not ask her to do this again. Another time, defendant asked Brianna if he could put his penis in her mouth. Brianna got angry and defendant did not do it. Defendant did not ask her again to do this.” (People v. Veale, supra, 160 Cal.App.4th at p. 43.)
In Veale, after the mother found the defendant on top of Brianna and questioned Brianna, she said nothing happened. Later Brianna told her mother about the sexual assaults. Brianna was interviewed. She said the defendant had molested her but had not hurt her. She said she was afraid she would get in trouble by telling the social worker what happened and she feared the defendant was going to kill someone, although he never told her he would. The defendant was convicted of several counts of lewd or lascivious acts by force, fear or duress. On appeal he claimed there was no evidence he used force, fear or duress. The appellate court disagreed. (People v. Veale, supra, 160 Cal.App.4th at pp. 42-45.)
The defendant in Veale relied on the same cases relied on by defendant here; we set forth in full the Veale analysis of these cases since it is equally applicable here:
“Citing People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker) and People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), defendant argues such evidence was insufficient since there was no evidence that defendant used physical force in molesting Brianna or threatened Brianna in any way. In Hecker, the court concluded there was insufficient evidence of duress and therefore reduced the defendant’s section 288, subdivision (b) conviction to a section 288, subdivision (a) conviction. The Hecker court explained that the only difference between a section 288, subdivision (a) and a subdivision (b) offense is that the subdivision (b) offense requires a finding that the molestation was committed using force or duress. (Hecker, supra, at p. 1249.) In the context of section 288, the concept of force and duress is not necessary to prove a lack of consent; ‘instead it simply serves to distinguish certain more culpable nonconsensual sex acts from others.’ (Hecker, at p. 1249.)
“In Hecker, the defendant was convicted under section 288, subdivision (b) of having anal and vaginal intercourse with his 12-year-old stepdaughter. As in the instant case, the defendant lived with the victim and molested her when he was alone with her at their home, in the defendant’s bedroom. Also, the victim testified the defendant did not use physical force. (Hecker, supra, 219 Cal.App.3d at pp. 1242, 1250.)
“Despite these similarities, Hecker is distinguishable because the Hecker victim was five years older than Brianna and testified she was not afraid of the defendant harming her, even though she may have been ‘subconsciously afraid.’ (Hecker, supra, 219 Cal.App.3d at p. 1242.)
“Also, while the court in Hecker stated that ‘psychological coercion’ without more was insufficient to establish duress, the court in Cochran [People v. Cochran (2002) 103 Cal.App.4th 8] disagreed. In Cochran, … the court found the language in Hecker ‘overly broad’ and explained: ‘The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent. We also note that such a threat also represents a defendant’s attempt to isolate the victim and increase or maintain her vulnerability to his assaults.’ (Id. at p. 15.)
“In Cochran, the court held that there was sufficient evidence of duress to support the defendant’s conviction for violating section 288, subdivision (b), reasoning in part: ‘The victim was only nine years old. Cochran is her father with whom she resided. She was four feet three inches tall. He was five feet nine inches tall and outweighed her by about 100 pounds. The sexual acts occurred in the family home she shared with Cochran and her mother. Throughout the videotape, Cochran directs and coaches the victim what to do. It is clear the daughter is reluctant to engage in the activities and, at most, acquiesces in the conduct.’ (Cochran, supra, 103 Cal.App.4th at p. 15, fns. omitted.)
“The Cochran court further stated that, ‘Additionally, there was the victim’s trial testimony. Although she testified she was not afraid of Cochran, that he did not beat or punish her and never grabbed or forced her, she also testified she was mad or sad about what he was doing to her, that he gave her money or gifts when they were alone together, and that he told her not to tell anyone because he would get in trouble and could go to jail. [¶] This 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. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. [Fn. omitted.] Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress.’ (Cochran, supra, 103 Cal.App.4th at pp. 15-16.)
“The instant case is similar in many significant ways to Cochran, although we recognize Cochran differs in that defendant was Brianna’s stepfather, rather than her biological father, and there was no testimony defendant told Brianna that if she reported the molestation, she would break up the family. Nevertheless, the evidence is sufficient to support a finding of duress, based on Brianna’s age and size; her relationship to defendant; and her testimony that she feared defendant and feared he would harm or kill her or mother if she told anyone defendant was molesting her. Furthermore, Brianna was even younger than the victim in Cochran. It could be reasonably inferred that defendant threatened Brianna implicitly or explicitly, based on her fear of defendant and fear he would harm her or mother. This fear[,] along with the other mentioned factors, is sufficient to support a finding of duress within the meaning of section 288, subdivision (b).
“As the court in Cochran notes, ‘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.) Although in the instant case, defendant was Brianna’s stepfather, rather than her father, he held a similar position of authority in Brianna’s home, which would support a finding of duress, along with Brianna’s testimony she feared defendant.
“As noted in People v. Schulz [(1992) 2 Cal.App.4th 999, 1005], ‘[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] “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. [Citation.]’ (Ibid.)
“Defendant’s reliance on [People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza)], in which the defendant molested his 12-year-old daughter, is misplaced. In Espinoza, which was decided before Cochran, the court held there was insufficient evidence of duress, reasoning: ‘The only way that we could say that 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 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 defendant, no evidence was introduced to show that this fear was based on anything 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, at p. 1321.)
“Espinoza is distinguishable in that the victim in Espinoza was considerably older than Brianna. Because of Brianna’s young age, Brianna was more susceptible to being coerced through fear and due to defendant’s position of authority. Furthermore, in the instant case, Brianna stated she not only feared defendant but she also feared defendant would kill her or mother if she told anyone defendant was molesting her. While this case is in many significant ways, similar to Espinoza, we conclude based on Cochran that there was sufficient evidence of an implied threat and thus duress.” (People v. Veale, supra, 160 Cal.App.4th at pp. 47-50.)
The victim here was even younger than the victims in all of the cases just discussed; she turned four on the day of the final sexual acts against her. Defendant, an adult, lived in R.’s home. He was alone with her in his room when he molested her. Unlike the defendant in Veale, who did not proceed after Brianna told him no, defendant persisted and continued his acts, including the moving of R.’s underpants while he masturbated even after R. told him no. Defendant also committed the act in question after R. moaned and stepped away from him. R. appeared frightened when her mother saw her changing her underpants and initially refused to tell her mother what happened. When she did tell her mother, she said that defendant told her not to tell anyone. This combination of circumstances is sufficient to establish that R. participated in an act to which she otherwise would not have submitted.
There was sufficient evidence to support the verdict in count 4.
II. Consecutive Sentences
The probation officer prepared a report for sentencing. The probation officer noted that defendant did not have a criminal record, with the exception of some charges that were pending at the time the report was written. The officer stated that the sexual offenses defendant committed against R. are very serious, were a violation of a position of trust, and his behavior must be punished severely. The officer stated that “[i]n the interest of protecting society from further danger, the maximum sentence will be recommended.”
For the determinate sentence the officer recommended that defendant receive the aggravated term of eight years for count 3, and two-year consecutive sentences each for counts 4, 5, and 6. For the indeterminate terms it was recommended that defendant be committed to prison for the term of 25 years to life in count 1 and 15 years to life in count 2. It was recommended that these terms be ordered to be served consecutively.
At the outset of the sentencing hearing, defense counsel stated he was prepared to submit the matter based on the probation report and recommendation. Following the victim impact statements, defense counsel stated he had one small request. He requested the determinate terms be calculated using the midterm rather than the aggravated terms. His request was based on the balance of mitigating versus aggravating factors.
The People argued the crimes were extremely egregious, in particular arguing that defendant assaulted R. on her birthday and when she was only four years old. Defendant had also assaulted R. previously when she was three. The People argued that the only mitigating circumstance was defendant’s minimal record and everything else was aggravating. Other than the minimal record of defendant, the People claimed that everything else makes the crimes heinous.
The court made the following statement before proceeding to sentence defendant: “I have looked very carefully at the aggravating circumstances as well as the mitigating circumstances.
“And it is -- this is a particularly egregious case. All these cases that are like this are. And this little girl is very lucky to have the parents that she has and the support that she has to help her get through this.
“This is a family that is rooted in very, very important fundamental commitments whereby this child will receive the sort of care that she is going to need. So, I in no way want to suggest that any part of this case is mitigating or mitigated. But in light of the fact of the defendant’s past, of which is negligible, I am going to proceed as follows.”
The court then sentenced defendant to the midterm of six years in count 3, and one-third the midterm for two years in counts 4, 5, and 6, with these terms all running consecutive to one another. The court imposed the indeterminate term in count 1 of 25 years to life and in count 2 imposed the indeterminate term of 15 years to life. The court ordered that the term in count 2 be served consecutive to count 1.
Section 288.7, subdivision (a) provides a punishment of 25 years to life for sexual intercourse with a child who is 10 years of age or younger. Subdivision (b) mandates a term of 15 years to life for a person who engages in oral copulation with a child who is 10 years of age or younger. Section 288.7 says nothing regarding consecutive sentences. Also, section 288.7 is not included as one of the sexual offenses subject to the rules of section 667.6, in part governing consecutive sentences for a defendant convicted of multiple sex offenses. Thus, the choice of imposing consecutive sentences for a crime under section 288.7 is governed by section 669, the general sentencing statute for conviction of multiple offenses. Under section 669 the court may impose consecutive life sentences.
The trial court has a duty to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively. (In re Calhoun (1976) 17 Cal.3d 75, 79-80.) This decision is left to the discretion of the sentencing court. (People v. Jenkins (1995) 10 Cal.4th 234, 255-256.) A trial court is required to give reasons for the sentence choice of imposing consecutive terms. (People v. Champion (1995) 9 Cal.4th 879, 934.)
Defendant contends the trial court did not understand the scope of its sentencing discretion when it imposed the sentence on count 2 to run consecutive to count 1, and was unaware it could impose concurrent terms. As argued by defendant, the court’s failure to state reasons for its consecutive sentence choice illustrates that the court was not aware of the scope of its discretionary powers and the matter must be remanded for resentencing. Alternatively, defendant claims his counsel was ineffective in failing to request a concurrent term.
The doctrine of forfeiture applies to the trial court’s failure to articulate or properly make its discretionary sentencing choices. The failure to state reasons for imposing a consecutive sentence is included in the category of decisions subject to forfeiture. (People v. Scott (1994) 9 Cal.4th 331, 353.)
Defendant failed to object to the imposition of a consecutive sentence in count 2 and failed to object to the trial court’s failure to state reasons for its sentencing choice. He has thus forfeited his claim.
As to defendant’s alternative assertion that his trial counsel was ineffective, he contends that if properly informed the trial court might have concluded that concurrent terms should be imposed, particularly in light of the facts that counts 1 and 2 constituted a single period of aberrant behavior, defendant was young at the time he committed the crimes, and he lacked a prior criminal record.
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”’ [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Defendant has failed to show the requisite prejudice. The trial court stated this was a particularly egregious case and there was no part of it that was mitigating or mitigated. Thus, it is clear that, with the exception of imposing the middle term on count 3, the trial court chose to impose the maximum sentence allowed by law.
III. Order for Attorney Fees
At sentencing, the trial court asked defense counsel if he thought there was insufficient income and assets to pay for attorney fees of $10,000. Defense counsel responded that there were substantial restitution fines imposed and defendant did not have personal income to satisfy the fines. But, counsel thought perhaps defendant could pay some of his fees from his future prison account. The court ordered defendant to pay $10,000 in attorney fees.
A trial court may order a defendant to pay all or a part of the cost of his attorney fees. “[T]he court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” (§ 987.8, subd. (b).) In determining the ability to pay, the court may consider the defendant’s reasonably discernible future financial position. But, “[u]nless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.” (§ 987.8, subd. (g)(2)(B).) Section 987.8, subdivision (g)(2)(B) has been interpreted to “require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
Defendant contends the evidence at the sentencing hearing was insufficient to support the trial court’s order requiring him to reimburse the county $10,000 for the services of appointed counsel. Respondent concedes the order requiring defendant to pay the costs for court appointed counsel should be stricken because defendant does not appear to have the ability to pay.
Preliminarily, respondent contends defendant has a remedy to resolve his claim directly through the trial court by way of a petition pursuant to section 987.8, subdivision (h) on the ground of a change of circumstances with regard to his ability to pay. Defendant is not alleging a change of circumstances; he is alleging insufficient evidence based on the circumstances at the time of the order.
We accept respondent’s concession and agree to strike the order requiring defendant to pay $10,000 in attorney fees.
IV. Fee for Sexual Assault Exam
After making a determination of ability to pay, the court may require the defendant to pay the cost of any medical examination conducted on the victim as a result of the sexual assault. “In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.” (§ 1203.1h, subd. (b).)
The court ordered defendant to pay $800 for the cost of the sexual assault examination on R. The court did not make any finding regarding defendant’s ability to pay. In addition, the court imposed a restitution fine in the amount of $2,000 pursuant to section 1202.4, a parole revocation restitution fine in the amount of $2,000 pursuant to section 1202.45, and a court security fee of $120. The court left open the matter of payment of restitution to the victim’s compensation claims board.
Section 1203.1d requires the court to first determine the amount of victim restitution and then determine the amount of the other reimbursable costs. Defendant contends the court erred in ordering him to pay for the sexual assault examination when it had not yet determined the amount of victim restitution. Defendant also claims that, even without restitution being determined, the evidence showed that he did not have the ability to pay all or part of the $800 for the sexual assault examination.
Respondent does not agree with defendant’s first claim (that the court had to fix the amount of restitution before ordering payment for the exam), but concedes the court erred in ordering that defendant pay $800 for the cost of the sexual assault examination. The concession is twofold: first, in the absence of a determination by the trial court that defendant had the ability to pay the cost of the exam, the fee cannot be imposed; and, second, the record lacks evidence to support a finding that defendant has the ability to pay the $800. Respondent concedes the order for defendant to pay $800 for the exam should be stricken.
We accept the concession of respondent that the record does not support a finding that defendant has the ability to pay $800 for the sexual assault examination.
DISPOSITION
The trial court is directed to strike its orders requiring defendant to pay $10,000 in attorney fees and $800 for the sexual assault examination and to amend the abstract of judgment to reflect these changes, forwarding corrected copies of the amended abstract to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: GOMES, J., POOCHIGIAN, J.