Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE605236
Duffy, J.
A jury convicted the defendant herein, Roger Viet, of sex crimes against his daughter. He contends that the trial court’s instructions to the jury misstated the law and omitted a less serious offense that the jury could have considered. He also contends that there was insufficient evidence to prove one of the crimes of which he was convicted.
We will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted defendant of aggravated sexual assault on a child less than 14 years old and at least ten years younger than him. (Pen. Code, former § 269; Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761.) The underlying crime that formed the basis for the conviction under former section 269 was unlawful oral copulation. (§ 288a.) The jury also convicted defendant on two counts of lewd or lascivious acts on a child under 14, based, as charged in the information, on one incident that occurred in Santa Clara County and another in Los Angeles County. (§ 288, subd. (a).) Defendant was acquitted on other charged counts. The trial court sentenced him to life in prison with a 23-year minimum term.
All statutory references are to the Penal Code unless otherwise indicated.
I. Prosecution Case
In 1999, defendant’s daughter was 12 years old. The prosecution presented evidence of three sexual molestation events that took place that year. The jury convicted defendant of one count for each of the three incidents.
A. The Garage Incident
Defendant’s 12-year-old daughter was a competitive table tennis player. She would practice in the family’s garage. Defendant entered the garage and inserted a finger inside her pants. He rubbed his finger on or near her external genitalia and used it to enter her vagina. This, the jury found, constituted lewd or lascivious conduct on a child under 14 (§ 288, subd. (a)).
B. The Van Incident
Later in 1999 defendant’s daughter went to Santa Monica so that she could participate in a table tennis tournament. Defendant and his daughter were in the family’s van. Defendant pulled down her pants and licked her external genitalia. This too, the jury found, constituted lewd or lascivious conduct on a child under 14 (§ 288, subd. (a)).
C. The Bedroom Incident
Still later in 1999 defendant directed his daughter to go with him to the parents’ bedroom. Defendant’s daughter told Sunnyvale police, in a statement that the jury received as evidence, “I remember he had me march—, like, walk side-by-side with him” to the bedroom. “I don’t know why, like, really, step by step.” She confirmed that he escorted her in this manner in her testimony, telling the jury “I guess,” which she explained in later testimony was her way of saying “yes,” that he had her walk alongside him. Once in the bedroom, she described in her statement to the Sunnyvale police, “he made me take off my pants.” Then defendant “had me lie down on his bed, like on the edge.” There, as relevant to defendant’s convictions, he performed oral copulation on her. The daughter told police “I think I was probably scared” when this was occurring; “I guess [I] kind of felt trapped, ’cause it was my father.” Immediately after this encounter ended “he told me that it was supposed to be our secret, and not to tell Mom.” During this account, defendant’s daughter stated on occasion that her memory of events was imperfect.
As relevant to the nonconsensual nature of this incident, which was an essential element of former section 269, defendant’s daughter testified that her father was the authority figure in the household. Her boyfriend provided confirming testimony on this point. Also, she told Sunnyvale police, in a statement that the jury received as evidence, that “you don’t wanna, like, mess with him, so you just stay low on the radar.”
Defendant’s conduct, the jury found, constituted aggravated sexual abuse of a child (former § 269; Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761) based on the underlying crime of unlawful oral copulation (§ 288a).
D. Phone Call from Daughter to Defendant; Statement to Police
The police arranged for defendant’s daughter to confront him in a phone call. Responding to her accusations, defendant said that he was aroused by her in 1999 and blamed her for arousing him. He did not explicitly acknowledge committing any particular act, but the transcript suggests that he admitted engaging in oral copulation with her and penetration with a foreign object, namely his finger. The jury heard a recording of the phone call.
The police interviewed defendant, recording the interview. He denied committing the acts for which he was later tried and stated that his daughter was trying to frame him. But he admitted being sexually aroused by his daughter in 1999, that he may have touched her in a sexual manner, and that he had violated the law “to some extent,” though he retracted the latter opinion later in the interview. He blamed his daughter for arousing him, referring to “the way she behaved, and the way she dressed,” and saying in broken English, “I think that she have probably behaved uh, correctly, then nothing would happen.” He also said that his daughter was rebellious and that they had fought for a long time; he had even tried to force her to leave the house. The interview was played for the jury.
E. Uncharged Conduct: Defendant’s Molestation of His Young Niece
Defendant’s niece by marriage testified that in 1984, when she was 11 years old, defendant took her and her brothers to his workplace to play computer games. As her brothers were playing he led her by the hand into his office. She was wearing a white dress and white tights. Defendant placed her on his lap and launched one or more video game programs on his computer. “And then he suddenly reached into my tights and put his hand in my vagina area.” She told him to stop but he “made an angry face and he said, ‘No.’ ” She tried to push his hand away but was unable to overcome his superior strength. He continued to hold her and fondle her external genitalia for a couple of minutes. Throughout the incident the niece was uncomfortable, ashamed, and scared. The incident ended when her brothers walked into the office. The niece said nothing about the incident for years, eventually telling her mother about it when she reached age 18.
II. Defense Case
Defendant testified on his own behalf and denied committing any charged or uncharged molesting acts. He confirmed his statement to police that his daughter was rebellious and sometimes dishonest, and when she was 16 he threatened to force her to leave the house. Defendant reacted to his daughter’s phone call with bafflement, wondering whether she had an Electra complex—a daughter’s libidinal desire for her father—or was having an episode of sexual paranoia. In speaking with police, he meant to say that he did not have sexual thoughts about his daughter during interactions with her that were in question, because he never did have any such thoughts, and his daughter never sexually aroused him at age 12. The recorded interview did not accurately convey his intentions in answering certain questions during the interrogation. And his answers to police were the product of his bilingualism—he would hear a question in English, think about it in Vietnamese, and then render his spoken answer in English—and his training as an engineer, which led him to voice hypothetical possibilities in order to think logically when questioned about them.
DISCUSSION
I. Omitting Element of Aggravated Oral Copulation Instruction
Defendant claims that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution—although he refers to due process, which is guaranteed to a defendant tried in state court by the Fifth and Fourteenth Amendments—when it failed to instruct the jury on all of the elements of the former section 269 charge as premised on an underlying crime of unlawful oral copulation (§ 288a).
This is in sum a due process claim. (See Middleton v. McNeil (2004) 541 U.S. 433, 437.)
At the time of defendant’s oral copulation of his daughter, former section 269 specified: “(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] . . . [¶] (4) Oral copulation, in violation of Section 288a, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [¶] . . . [¶] (b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.” (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761.) Oral copulation is defined as “the act of copulating the mouth of one person with the sexual organ or anus of another person” (§ 288a, subd. (a)), and the same definition existed in 1999 (Stats. 1998, ch. 936, § 5).
The trial court instructed the jury as follows:
“The defendant is charged in Count 1 with aggravated sexual assault, oral copulation of a child who was under the age of 14 years and at least ten years younger than the defendant.
“To prove the defendant is guilty of this crime, the People must prove that, one, the defendant committed an act of oral copulation with someone else; two, when the defendant acted, the other person was under the age of 14 years and was at least ten years younger than the defendant; and three, the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.
“Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person.
“Penetration is not required.
“Consent is not a defense when the alleged victim is a child.
“An act is accomplished by force if a person uses enough physical force to overcome the other person’s will.
“Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to.
“When deciding whether the act was accomplished by duress, consider all the circumstances including the age of the other person and her relationship to the defendant.
“Menace means a threat, statement, or other act showing an intent to injure someone.
“An act is accomplished by fear if the other person is actually and reasonably afraid or she is actually and reasonably afraid and the defendant knows of her fear and takes advantage of it.”
Defendant did not object to this instruction, and was correct not to do so, because the trial court did not err in giving it. The applicable portions of section 269 when defendant committed the crime in 1999 required the jury to find that he orally copulated another person under age 14 and 10 or more years younger “by force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761.) The instruction told the jury that to convict defendant of aggravated sexual assault on a child under section 269 it must find that “the defendant committed an act of oral copulation with someone else,” “when the defendant acted, the other person was under the age of 14 years and was at least ten years younger than the defendant,” and “the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.” The instruction restated the law accurately. There was no violation of defendant’s constitutional due process rights or of any right he enjoys under the Sixth and Fourteenth Amendments to the United States Constitution.
Defendant further asserts that the trial court should not have instructed that consent is not a defense when the alleged victim is a child. Consent was, however, not at issue in the case—in particular, defendant did not present a defense of consent. The instruction, then, was irrelevant, and there was nothing to suggest that the jury’s duty to use the relevant instructions was interfered with. In such circumstances, any error in giving the instruction was harmless under state law (People v. Watson (1956) 46 Cal.2d 818, 836) and under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, that applies to federal constitutional claims. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) Notably, the jury was instructed, pursuant to CALCRIM No. 200, that some instructions might not apply and that it should follow only “the instructions that do apply to the facts as you find them.” (See Olguin, supra, at p. 1381.) We assume that it disregarded this irrelevant one.
Defendant relies in part on a statutory change to section 269 that the voters made in 2006.
Pursuant to that change, and in effect today, section 269 provides in pertinent part: “(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] . . . [¶] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.” The parties agree that subdivision (c)(2) of section 288a would apply if defendant’s conduct were evaluated under the current version of section 269. The current version of section 288a, subdivision (c)(2), provides as follows: “Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.”
Defendant asserts that because the trial court’s instruction failed to include the “against the victim’s will” language contained in section 288a, subdivision (c)(2), it took away from the jury the requirement that it find that defendant’s act was against his daughter’s will.
This, too, is a due process claim. (See Middleton v. McNeil, supra, 541 U.S. at p. 437.) We find no due process violation.
Defendant notes that the trial court’s instruction omits the “against the victim’s will” clause found in the current version of section 269 by reference to section 288a, subdivision (c)(2). But he offers no reason that the current version of section 269, rather than that in effect in 1999, should apply to him. Rather, it does not, at least to the extent it might lessen or ameliorate any punitive effect of the prior version of section 269. (Prop. 83, § 31, as approved by voters, Gen. Elec. (Nov. 7, 2006) reprinted at 3 West’s Cal. Session Laws (2006) p. A–50, foll. ch. 910, § 4, p. 5430; see Pen. Code, § 3; People v. Floyd (2003) 31 Cal.4th 179, 183-185.) And there is no material difference between the prior and current versions of section 269 in any event. Section 288a, subdivision (c)(2), to which the current version of section 269 refers, provides that force, violence, duress, menace, or fear are the means by which a victim’s will is overcome. If force, violence, duress, menace, or fear is present, then the victim’s will is overcome as far as section 288a is concerned. The instruction told the jury that it must find that defendant accomplished the oral copulation by “force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” The jurors found that one of these circumstances applied and therefore necessarily found, as required under the law applying to defendant’s 1999 offense, and also under current law if that law applied (which it does not), that his act was against his daughter’s will.
II. Failing to Instruct on Lesser Included Offense
Defendant claims that the trial court erred under state law by failing to instruct, on its own initiative, on the lesser included offense of nonforcible oral copulation. He notes that if the jury had found him guilty of that offense rather than the aggravated form that constituted the basis for the section 269 conviction, his sentence on that count would be at most eight years (§ 288a, subd. (c)(1)) rather than the 15 years to life imposed for the aggravated sexual assault on a child conviction (former § 269, subd. (b); Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761).
People v. Huggins (2006) 38 Cal.4th 175 sets forth what we believe to be the authoritative rule in the difficult area of instructional requirements on lesser included offenses. “A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present. [Citations.] [¶] But this does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, . . . ‘ “such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” ’ [Citation.] The classic formulation of this rule is expressed in People v. Webster [1991] 54 Cal.3d 411, 443: ‘When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.’ ” (Id. at p. 215.)
Substantial evidence is defined as evidence that is “reasonable, credible and of solid value.” (People v. Dunkle (2005) 36 Cal.4th 861, 885, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The foregoing law means that if the jury received substantial evidence that a nonforcible act of oral copulation, but only that, occurred in defendant’s bedroom, the trial court should have instructed the jury to consider convicting him only under section 288a, subdivision (c)(1), and not under former section 269, which at the time of the crime required at least one of several stated types of coercion, i.e., “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761.)
Defendant argues that “the entirety of the evidence on the alleged act of oral copulation in the bedroom was riddled with haziness . . . .” He concedes that it “may have been legally sufficient to support a finding of duress,” but he contends that “it was not so strong as to compel that finding and thereby justify the trial court’s failure to instruct on the lesser included offense in section 288a[, subdivision] (c)(1).”
That argument, however, confuses the issue by conflating substantial but less than overwhelming evidence of the forcible nature of the oral copulation with substantial evidence of only nonforcible, though unlawful, oral copulation. As explained, only if the jury received substantial evidence of the latter—i.e., that nonforcible unlawful oral copulation and only that type of oral copulation occurred—was the trial court required to instruct on the offense. (People v. Huggins, supra, 38 Cal.4th at p. 215.)
An “ ‘appellate court is not required to search the record on its own seeking error.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Nevertheless, we have examined the entire record to see if the jury received any evidence that constituted substantial evidence of nonforcible but unlawful oral copulation and only that type of oral copulation. We have been unable to locate any substantial evidence of that type.
Because there was no substantial evidence of unlawful but nonforcible oral copulation, the trial court did not err in not instructing on that crime.
III. Sufficiency of Evidence of Aggravated Oral Copulation
Defendant argues that the evidence of forcible oral copulation is insufficient to sustain his conviction of aggravated sexual assault on a child (former § 269; Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761) under the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution.
The standard of review of defendant’s claim is well-settled. Under the federal Constitution’s due process clause, there is sufficient evidence to support defendant’s conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is 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.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
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. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. omitted; see People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320; People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
Duress usually involves psychological coercion, but that factor alone does not suffice to establish duress (People v. Hecker (1990) 219 Cal.App.3d 1238, 1250). Duress can be established only if, beyond psychological coercion (see People v. Espinoza, supra, 95 Cal.App.4th at p. 1321), “there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat . . . .’ ” (Ibid.). When considering whether duress exists, we examine the totality of the circumstances, including the age of the victim and her relationship to the defendant. (People v. Pitmon, supra, 170 Cal.App.3d at p. 51.) A defendant’s position of dominance and authority, accompanied by the occurrence of multiple molestations, are relevant. (See People v. Schulz, supra, 2 Cal.App.4th at p. 1005.) Similarly, when “ ‘ “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.’ ” (Espinoza, supra,at p. 1320.) And we consider the nature of the act. For example, the prohibited conduct may greatly exceed the minimum touching necessary for a conviction and may include conduct that the victim, if “a reasonable person of ordinary susceptibilities” (Pitmon, supra, at p. 50) would find vile, disgusting, shameful, or unnatural. Finally, we consider whether the perpetrator told the victim to keep the molestation secret. In this respect we disagree with any implication in Hecker (see 219 Cal.App.3d at p. 1251, fn. 7) that an admonition against disclosing the molestation cannot support a finding of duress. As we stated in People v. Senior (1992) 3 Cal.App.4th 765, young victims of child molestation are unlikely to perceive the subtle distinction “between warnings enjoining nondisclosure and noncompliance.” (Id. at p. 775.) “A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.” (Ibid.)
In sum, there is sufficient evidence of duress if the totality of the circumstances supports an inference that the victim’s participation was coerced in a way that was more threatening than mere psychological pressure, i.e., enticement, urging, or insistence. (See People v. Espinoza, supra, 95 Cal.App.4th at p. 1321.)
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of former section 269 beyond a reasonable doubt—i.e., that the oral copulation was aggravated by duress (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761). This was “a typical conservative Asian family,” as defendant’s daughter told the police in a statement received in evidence. Defendant was the authority figure and his daughter was only 12 years old. He escorted her to his bedroom: she told police that “he had me march” “step by step.” She confirmed this aspect of events preceding the sexual molestation in her testimony. Once in the bedroom, she told police, defendant “made me take off my pants” and “had me lie down on his bed.” “I think I was probably scared” when this was occurring, she said; “I guess [I] kind of felt trapped, ’cause it was my father.” Immediately after this encounter ended “he told me that it was supposed to be our secret, and not to tell Mom.” Finally, the jury could, in considering the facts, take into account from common knowledge that a 12-year-old girl “of ordinary susceptibilities” (Pitmon, supra, 170 Cal.App.3d at p. 50) would not wish to be orally copulated by her father and would find the experience disgusting and shameful, and that defendant’s daughter found it to be so given that, being “kinda depressed” and having “a tendency just to cry at night” in later years, as she told police, she chose to try to exorcise the demon by reporting the incident to authorities, making public an experience that she could have put behind her if it had not continued to torment her psychologically. There was sufficient evidence that defendant’s conduct involved legally sufficient coercion for the jury to be able to find the essential elements of aggravated oral copulation under former section 269.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, Acting P. J., Bamattre-Manoukian, J.