Opinion
E030882.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JAVIER TAMEZ, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Kevin R. Vienna and Kyle Niki Shaffer, Deputy Attorneys General, and Carl H. Horst, Senior Deputy Attorney General, for Plaintiff and Respondent.
1. Introduction
A jury convicted defendant Javier Tamez of 20 counts of lewd acts with a child aged 14 or 15 and one count of unlawful sexual penetration by a foreign object. The court sentenced defendant to a total sentence of 19 years 4 months, composed of six years for the penetration offense plus eight months for each lewd act. Defendant appeals, challenging defendants conviction for penetration based on the insufficiency of the evidence and instructional error concerning the meaning of duress and the lesser included offense of sexual battery. Defendant also asserts the court erred in sentencing.
Penal Code section 288, subdivision (c)(1). All further statutory references are to the Penal Code.
Section 289, subdivision (a)(1).
Instructional error did not occur concerning the meaning of duress. Defendants reliance on People v. Valentine is inapposite. The issue in Valentine was whether "threatened hardship" is a form of duress. "Threatened hardship" is not an issue here. Instead, the controlling cases are People v. Pitmon and People v. Elam, holding that duress does not require a specific jury instruction.
People v. Valentine (2001) 93 Cal.App.4th 1241.
People v. Valentine, supra, 93 Cal.App.4th at pages 1247-1253.
People v. Pitmon (1985) 170 Cal. App. 3d 38, 52, 216 Cal. Rptr. 221.
People v. Elam (2001) 91 Cal.App.4th 298, 307.
Nevertheless, we reverse the penetration conviction because we deem the evidence insufficient on that count to show defendant used force or duress. Reversal moots the issue of instructional error regarding the lesser included offense of sexual battery. The People concede the trial court committed sentencing error. Therefore, we remand for resentencing.
2. Facts
The victim, turned 14 years old in June 1998. She attended a Hemet church with her family. Defendant was a church "worship leader" and led the church band. Defendant and victims parents operated a pool cleaning and supply business together. Victim baby-sat for defendants three children until the business relationship soured between defendant and victims parents.
In November 1999, victims stepmother discovered that victim, then 15, was sexually active with her boyfriend. Victims parents took her to the church for counseling. When the assistant pastor asked victim if she was a virgin, she said defendant had molested her during the time she baby-sat for him.
The first incident occurred in November 1997 when victim was 13. She was baby-sitting. After defendant and his wife came home, his wife went to bed. Defendant joined victim on the couch and asked for a shoulder massage. Then he put his hand on her leg, and moved his hand under her underwear. He inserted his fingers in her vagina and asked her if this had happened to her before. When victim said it had not, he seemed surprised and removed his fingers. She was scared while it was happening. She said it was uncomfortable and she experienced some slight bleeding afterwards.
On numerous other occasions, defendant would penetrate victim digitally, fondle her breasts, compel her to copulate him orally, and masturbate himself. When victim helped at the pool supply store, defendant would pat her on the buttocks, make suggestive comments, and propose they have intercourse. When victim tried to refuse or resist, defendant would alternately try to reassure her and warn her that he would lose his house and family and be imprisoned if she reported him. She thought she would not be believed because defendant was a church leader and her fathers business partner.
The police recorded a telephone conversation between victim and defendant in which he admitted touching her, described feeling suicidal, talked about divorce, and said he feared going to jail.
To the police and her boyfriend, victim made inconsistent statements about whether defendant forced her to have oral sex.
Medical examination supplied physical evidence of molestation.
3. Insufficiency of Evidence
Defendant argues the digital penetration conviction cannot be sustained because there is no evidence of duress or that defendant used more force than necessary to accomplish the act of penetration itself. We agree.
People v. Kusumoto (1985) 169 Cal. App. 3d 487, 494, 215 Cal. Rptr. 347.
One element of sexual penetration by a foreign object is the act be "accomplished against the victims will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim . . . ." The prosecutor argued that the penetration was accomplished by "forcing her underwear aside. . . . [Defendant] used force when he put his hand on her leg, forced it under her pants, moved her underwear aside and forced his fingers into her. Thats force. And thats the sort of force that is relevant here." The prosecutor also argued defendant used psychological duress by exploiting his position in the church and his relationship with victims family.
Section 289, subdivision (a)(1).
In spite of the language used by the prosecutor, we do not find evidence of force. In order to accomplish the act of digital penetration, defendant had to touch victim, move her clothes aside, and insert his fingers in her vagina. Although the prosecutor characterizes defendants conduct as forceful, there is nothing whatsoever in victims testimony indicating force. Nothing victim did or said constituted the use of force. Instead, she portrays herself as passively, although fearfully, allowing herself to be molested by defendant.
The People point to victims testimony about experiencing discomfort and slight bleeding. They cite dicta in People v. Cicero, in which the court equated force with physical harm although in that case no physical harm occurred. But the present case differs from one in which the victim suffered visible swelling, bruising, and trauma. Defendant had to use some pressure to accomplish digital penetration.
People v. Cicero (1984) 157 Cal. App. 3d 465, 474, 204 Cal. Rptr. 582.
People v. Montero (1986) 185 Cal. App. 3d 415, 432, 229 Cal. Rptr. 750.
Relying on People v. Hecker, we also conclude there was no duress. In Hecker, defendant had anal and vaginal intercourse with his 13-year-old stepdaughter. The sex acts "hurt" and she suffered both vaginal and anal injuries. She testified that she felt psychological pressure and was afraid. Even so, the Hecker court found insufficient evidence of duress: "Psychological coercion without more does not establish duress. At a minimum there must be an implied threat of force, violence, danger, hardship or retribution. [P] By enacting subdivision (a) of section 288 and providing the serious penalties it imposes, the Legislature has recognized that all sex crimes with children are inherently coercive. . . . We are merely giving recognition to the Legislatures determination in enacting subdivision (b) that defendants who compound their commission of such acts by the use of violence or threats of violence should be singled out for more particularized deterrence."
People v. Hecker (1990) 219 Cal. App. 3d 1238, 268 Cal. Rptr. 884.
People v. Hecker, supra, 219 Cal. App. 3d at pages 1250-1251, footnote omitted.
To paraphrase People v. Espinoza, a case following Hecker, the only way that we could say that defendants lewd act on victim was accomplished by duress is if the facts that he was a member of victims church and her parents business partner, combined with her feeling "scared," were sufficient to establish that the acts were accomplished by duress. Those facts are not enough: What is missing here is the ""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." [Citation.] 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 defendants lewd act . . . [was] accompanied by any direct or implied threat of any kind."
People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.
People v. Espinoza, supra, 95 Cal.App.4th at page 1321.
We recognize Hecker has been criticized as overbroad in People v. Cochran. Cochran found there was duress when a father engaged in a variety of sexual assaults against his nine-year-old daughter and posted photographs taken from a videotape of her on the internet. Cochran analyzed that case as factually distinct from Hecker, in which the victim was 12 years old, being molested by her stepfather, and therefore less subject to duress. Here, the victim was 13 years old and defendant was not her father or stepfather. There was no evidence of duress by means of intimidation, psychological control, or implicit threats as there was in Cochran.
People v. Cochran (2002) 103 Cal.App.4th 8, 15.
People v. Cochran, supra, 103 Cal.App.4th at pages 15-16.
Even reviewing the evidence most favorably to the judgment, we find no evidence in the record that defendant used any direct or implied threat against victim. Absent any evidence of force or duress, we reverse the conviction for digital penetration.
People v. Ceja (1993) 4 Cal.4th 1134, 1138, 847 P.2d 55.
4. Disposition
We reverse the conviction for violation of section 289, subdivision (a). The People agree with defendant that the case needs to be remanded for resentencing on the remaining 20 counts to permit the proper consideration of the effect of section 2933.1, governing work time and conduct credits. The sentence may also be affected by the reversal of what was formerly the principal count.
People v. Ramos (1996) 50 Cal.App.4th 810, 817.
RAMIREZ, P. J., Dissenting.
Today, the majority overturns the jurys implied finding that Tamez used force or duress to digitally penetrate the victim during the first incident. In so doing, it ignores a crucial concession made by the defense during argument to the jury and disregards evidence pertinent to the issue. Additionally, it adheres to a decision by Division One of this court that has recently been repudiated. Therefore, I respectfully dissent.
As to the concession, I note that during argument to the jury, defense counsel stated that the first incident had, indeed, occurred. Since the only evidence presented to the jury about this incident was the testimony of the victim, the concession was, at best, an agreement by Tamez that he had engaged in the acts testified to by the victim during the first incident, or, at worst, an admission that he was guilty of forcible digital penetration, which was the charge arising from the first incident. Although Tamez had been charged with two forcible acts, defense counsel never argued to the jury that the evidence was insufficient to establish force on either occasion. Picking up on this concession during his closing argument, the prosecutor stated that Tamezs guilt of the forcible digital penetration was not really in dispute. Defense counsel did not object. The prosecutor went on to point out that in conceding that the first incident had occurred, defense counsel had never argued that Tamez was guilty of only a nonforcible version of the crime charged.
As to other facts, uncontested at trial, relevant to the discussion but omitted by the majority, I note that the 13-year-old victim was a virgin, who had never before been digitally penetrated. She was an extremely sheltered young lady, whose life revolved around her church. She had attended a number of church-sponsored "purity seminars" and believed that sexual contact outside marriage was wrong. She was living with her father and stepmother at the time of the crimes and had a less than satisfactory relationship with the latter. She viewed the defendant as the big brother she never had — she and he exchanged confidences and she believed that if someone threatened her, he would take care of it. Tamez and his wife were the "closest friends" of the victims father and stepmother — Tamezs family was "like . . . family" to the victims family, spending birthdays and holidays together. Even after the victim revealed the molestations to her father, stepmother, assistant pastor and police, her continued vulnerability to Tamez was evident during a taped conversation she had with him, which the jury heard, more than once. Concerning the sexual acts between her and Tamez, she testified, "It was only him forcing me. I wasnt willing at any time at any point in these two years to do anything." She testified that during the first incident, when Tamezs hand had gotten near her crotch, she was "very, very afraid . . . [because] [P] . . . I didnt know what was going to happen, and . . . this is the worship leader of my family, my community." When Tamez inserted his fingers into her vagina, she testified that she was "scared . . . [P] because that had never happened to me ever before. And [Tamez was] somebody that I trusted, that I looked up to as a brother. B And I just wanted to go home." She testified that the penetration hurt, and she had told a detective who interviewed her after the disclosure that Tamez had hurt her and caused her to bleed. A pediatrician, who examined the victim after all the incidents involving Tamez and after she and her boyfriend had engaged in similar activities and intercourse, testified that digital penetration resulting in some bleeding may cause a notch in the hymen such as the victim had.
The majority cites no cases holding that hurting a victim, causing her to bleed and possibly damaging her hymen constitutes insufficient evidence of the use of force. In fact, "One who inflicts physical harm on a child in the commission of a lewd act is properly convicted of . . . . . . using force." (People v. Cicero (1984) 157 Cal. App. 3d 465, 474, 204 Cal. Rptr. 582.) In People v. White (1986) 179 Cal. App. 3d 193, 197, 202, 224 Cal. Rptr. 467, the appellate court found sufficient evidence of the use of force to accomplish an anal penetration where the 17-month-old victim sustained injuries to her rectum that, a prosecution expert opined, "caused intense pain." In People v. Montero (1986) 185 Cal. App. 3d 415, 423, 425-426, 229 Cal. Rptr. 750, Division One of this court sustained a jury finding that the acts committed over a three-year period were forcible where the victim testified that she was hurt by them and an expert opined that the area around her vagina was swollen and bruised as a result of traumatization over a period of time. While I recognize that the victim here did not describe her pain as intense, as did the victim in White, and the cleft to her vagina may have had a cause other than Tamezs digital penetration of her, I am unwilling to conclude as a matter of law that this jury was not entitled to rely on the victims claim that the penetration hurt her and the experts opinion that it may have caused the notch in her hymen.
The majority also concludes that there was insufficient evidence to sustain a finding of duress, relying principally on the opinion of Division One of this court in People v. Hecker (1990) 219 Cal. App. 3d 1238, 268 Cal. Rptr. 884. However, in People v. Cochran (2002) 103 Cal.App.4th 8, Division One recently renounced the position it took in Hecker that psychological coercion, without an implied threat of force, violence, danger, hardship or retribution, does not establish duress. Therein, our colleagues held, "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.] Another relevant factor . . . [is]. . . warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.] [P] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress . . . . [P] . . . [P] . . . Th[e] language in Hecker is overly broad. 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 . . . may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her [authority figure]. We also note that such a threat also represents a defendants attempt to isolate the victim and increase or maintain her vulnerability to his assaults. . . . [P] . . . [P] The record [here] paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to [the defendants] 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. 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." (Id. at pp. 13-16, fn. omitted.) The evidence here, like that in Cochran, supported a finding that the victim allowed Tamez to digitally penetrate her during the first incident due to duress. Notes:
During opening statement, defense counsel conceded that Tamezs hand had gone too far up the victims thigh during a leg massage the victim asked Tamez to perform on her at the time of the first incident. Counsel did not concede at this point that Tamezs hand had gone inside the victims shorts and panties or that his fingers had penetrated her vagina, and he asked the jury to acquit his client of all the charges. Counsel claimed during opening statement that this touching occurred in the presence of Tamezs wife. At trial, the defense presented no evidence that Tamezs wife was present when the touching occurred and, without refutation, the victim testified that Tamezs wife was not present and she denied having asked Tamez to touch her leg. When moving for acquittal at the close of the Peoples case, defense counsel excluded from his motion one count of lewd and lascivious acts, stating that this was the touching that occurred during the first incident.
He argued that the second forcible act, that of oral copulation, like all the other acts aside from that which occurred during the first incident, had never taken place.
She had an older brother, but did not live with him and was not close to him.
She also testified that everyone in her church looked up to Tamez and respected him. Because of this, she feared people would not believe her and her church "would fall apart" if she disclosed the abuse.
The majority also relies on People v. Espinoza (2002) 95 Cal.App.4th 1287, which relied primarily on Hecker.
Contrary to the view of the majority, Cochran did not merely distinguish its facts from those in Hecker. (Maj. opn., ante, at p. 7.) As I state, Cochran said the language in Hecker is overly broad and it held, contrary to Hecker, that psychological coercion, without an implied threat of force, violence, danger, hardship, or retribution may, indeed, establish duress.
I concur: McKinster J.