Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF128170, Robert George Spitzer, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of aggravated rape of a child (count 1—Pen. Code, § 269, subd. (a)(1)), aggravated oral copulation of a child (count 2—§ 269, subd. (a)(4)), oral copulation of a child (count 3—§ 288a, subd. (c)(1)), and a lewd and lascivious act on a child by force (count 4—§ 288, subd. (b)(1)). On appeal, defendant contends that insufficient evidence was adduced at trial on the requisite element of force to support his convictions on the offenses in counts 1, 2, and 4. We find the convictions supported by substantial evidence and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Minor’s mother (mother) testified that on January 20, 2006, defendant, her then 28-year-old husband, called her at work hysterical and crying to inform her that he could no longer care for his then five-year-old stepdaughter. Defendant normally took care of minor while mother worked. Mother asked defendant where minor was located. Defendant replied that minor was in the shower. Mother asked why she was in the shower; defendant replied that he told her to take a shower.
When mother arrived home, defendant informed her that he had taken advantage of minor. He told mother that he had taken off his clothes, kissed minor, and placed her on top of him while he moved her back and forth. Mother told defendant to get his stuff and leave. Mother asked minor what had happened to her; minor informed mother that defendant had “spit” on her with his private part.
Tracey Gomez, a sexual assault forensic examiner, examined minor that day. She testified that she noticed injuries on minor in two spots past the labia inside the vestibule, which is inside the vagina, a half-inch past the labia, but not quite to the hymen or cervix. There were no tears or bleeding. Gomez also located a nonspecific protein spot on the area around minor’s right thigh and groin.
On January 26, 2006, Heidi Chebahtah, a district attorney’s office investigator, monitored a Riverside Child Assessment Team (RCAT) interview with minor. A video recording of that interview was played to the jury and the transcript of the interview was admitted into evidence as exhibit 3A. In that interview, minor repeatedly informs the social worker that defendant “put his private in my private.” She was watching television while defendant came in and started kissing her. He “put his tongue in my tongue.” He massaged her back and took her clothes off. He then took off his own clothes. She “was telling him to stop and he couldn’t stop.” He told her “no, no, no, no. . . .”
Defendant told her to move. He put her legs up. Defendant opened her private with his fingers and “put his tail inside it.” He told her to look at his private. Defendant told her to touch his private. She said no, but he said yes. He touched her all over. Defendant kissed her all over her naked body, including repeatedly on her privates while her legs were up in the position he had placed them in. She “wanted to kick him . . . to get [him] off.” However, she could not because “he was too heavy.” She wanted to get him off of her, “[b]ecause [she] didn’t like that.” Defendant was on top of her. Defendant ejaculated on her. Minor said it was “horrible,” “bad,” and made her want to throw up.
At trial, minor testified that defendant touched her private and touched her with his private. He took her clothes off and kissed her. She “told him not to do it, but he didn’t stop.” She was laying down while defendant’s body was on top of her, preventing her from getting up. He was holding her down. She tried to get away from him, but could not. Minor was scared of defendant.
Deputy Joel Morales arrested defendant on January 26, 2006, and interviewed him that day. Defendant admitted touching minor. He indicated that minor had seduced him. Initially he stated that minor had taken off her own pants; however, later he admitted taking them off himself. Defendant took his own pants off. He touched minor’s vagina with his fingers so that he could penetrate her. He admitted penetrating her with his penis about a quarter-inch. He stopped because she cried out in pain. He admitted ejaculating on her abdomen. Defendant cleaned her up with a T-shirt. Defendant wrote two letters of apology, one to minor and another to mother.
Defendant took the stand in his own defense. He testified that he was babysitting minor on January 20, 2006, while mother worked. He was laying down when minor came in and kissed him on the lips. She then looked inside his pants and asked, “[w]here’s your friend?” Defendant left the room, but she followed, grabbed him, and kissed him again. According to defendant, he had been hearing voices for several years. The voices told him to allow minor to do whatever she wanted. Minor pushed him with authority toward the sofa. She got on top of defendant and began gyrating. She took her own clothes off. She told him to take his clothes off. He declined. She insisted. He relented. The voices then took control over him. The voices told him to put her down on her stomach and put her legs up. Minor told him to stop as it was hurting, so he stopped. He ejaculated on her out of fear, not friction.
Defendant testified he never put his fingers in her, licked her, or penetrated her. He told her that what they had done was wrong. He told her to take a shower. He never told Deputy Morales about the voices because Deputy Morales would think he was crazy. He is “probably not” guilty of forcing minor to have sex. When asked whether he honestly expected people to believe that a five-year-old girl “got you naked, climbed on top of you, and started moving back and forth?” defendant replied, “Yes. If you don’t want to believe it, there’s nothing I can do.”
After finding defendant guilty on all counts, trial proceeded to the sanity phase, after which the jury found defendant sane at the time of his commission of all counts for which he stood convicted. The trial court sentenced defendant to two concurrent terms of 15 years to life on counts 1 and 2, and stayed imposition of sentence on counts 3 and 4 pursuant to the dictates of section 654.
II. DISCUSSION
A. Substantial Evidence Supported the Jury’s Determination That Defendant Committed the Acts Underlying Counts 1 and 2 With Sufficient Force to Overcome the Will of the Victim to Thwart or Resist the Attack
“In considering defendant’s claim of insufficiency of the evidence of force necessary to affirm his conviction . . ., we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Griffin (2004) 33 Cal.4th 1015, 1028 (Griffin).)
Contrary to defendant’s claim, the court in Griffin, supra, 33 Cal.4th at page 1028 never defined “‘[f]orce’ in the context of aggravated sexual offenses [to mean] physical force substantially different from and substantially greater than that necessary to accomplish the act itself. [Citations.]” Rather, that court noted that a forcible lewd act under section 288, subdivision (b) required the application of force significantly different from or substantially greater than the amount of force required to perform the act of lewd and lascivious behavior under section 288, subdivision (a). However, in its own case, Griffin noted that the underlying Court of Appeal had erred in applying this definition of force to a charge of forcible rape, ultimately concluding that a conviction for forcible rape does not require proof of force substantially different or substantially greater than that necessary to accomplish rape. (Griffin, supra, at p. 1028.) Instead, “[a]s reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack . . . .” (Id. at p. 1027.)
“[This] concept[] appl[ies] equally to the crime of forcible oral copulation. . . . As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person’s will that an otherwise lawful act becomes unlawful.” (People v. Guido (2005) 125 Cal.App.4th 566, 576.) Thus, the crux of the matter as it relates to defendant’s convictions in counts 1 and 2 is whether there was substantial evidence that defendant raped and orally copulated minor with force sufficient to overcome minor’s will to thwart or resist the attack.
Here, the People adduced substantial evidence that defendant used such force. Defendant put minor’s legs up in apparent aid to his offenses. He opened her genitals with his fingers in order to ease his penetration of her. Defendant was on top of her, preventing her from kicking him off because he was “too heavy.” Minor tried to get away from him, but could not because he was holding her down. Minor kept telling him to stop, but he told her no. Minor was scared of defendant. Thus, defendant used his vast physical superiority and position as minor’s stepfather to place minor in a situation in which she found it difficult, if not impossible, to have the will to resist the attack. That is all that the statute and case law require.
B. Substantial Evidence Supported the Jury’s Determination That Defendant Committed the Act Underlying Count 4 With Physical Force Substantially Different From or Substantially Greater Than That Necessary to Accomplish the Act Itself
While the necessary showing of force to support a conviction for an aggravated sex crime pursuant to section 269 requires only that it served to overcome the will of the victim to thwart or resist the attack, the requisite force to convict of a forcible lewd act pursuant to section 288, subdivision (b) is “‘physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.’” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran); Griffin, supra, 33 Cal.4th at pp. 1026-1027.) This is because section 288 itself differentiates between forcible and nonforcible acts, while section 269 does not. (Griffin, supra, at p. 1027; People v. Guido, supra, 125 Cal.App.4th at p. 575.)
As Cochran noted, “[a] number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act.” (Cochran, supra, 103 Cal.App.4th at p. 13.) On the other hand, a showing of “duress” is also sufficient to satisfy the statute’s requirements. (§ 288, subd. (b); Cochran, supra, at p. 13.) “‘Duress’ as used in this context means ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citations.]” (Cochran, supra, at p. 13.) “‘The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.’ [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.]” (Id. at pp. 13-14.)
Here, even to the extent that a sufficient showing of force could be considered lacking, the People clearly adduced sufficient evidence of duress. As noted above, defendant used physical force to overcome minor’s will and enable his offenses. He laid on top of her, pulled her legs up, and inserted his fingers inside her to accomplish his purpose. When minor repeatedly told him to stop, he repetitively replied “no.” Minor tried to get away from defendant, but could not because he was on top of her and too heavy. Defendant was a full grown 28-year-old male, while minor was a five-year-old girl. Defendant took advantage of a position of authority and dominance over minor as her stepfather and babysitter. Minor was scared of defendant. Finally, defendant directed minor what to do, telling her to move, to look at his private, and to touch it. (Cochran, supra, 103 Cal.App.4th at p. 13 [duress appropriately found where molester directs and coaches his victim].) Thus, by defendant’s acts and words, he compelled minor to acquiesce in an act to which she would not otherwise have submitted. Therefore, substantial evidence supports the jury’s verdicts.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Gaut J.