P. v. Rodriguez
P. v. Rodriguez
Filed 8/13/08 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLIE FRANCO RODRIGUEZ,
Defendant and Appellant. |
F052276
(Super. Ct. No. 05CM2427)
OPINION |
APPEAL from a judgment of the Superior Court of Kings County. Timothy S. Buckley, Judge.*
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Charlie Franco Rodriguez appeals from the judgment entered following a jury trial in which he was convicted of four counts of forcible lewd acts on a child under the age of 14, and three counts of forcible sexual penetration involving his nieces, C. and D. The trial court found defendant had a prior strike conviction and three prison priors. Defendant was sentenced to prison for a total of 75 years. He contends that (1) insufficient evidence supports his convictions of forcible lewd acts on C. in counts 1, 2, and 4, and (2) the prosecutor committed misconduct during closing argument by misstating the law concerning the force requirement of those offenses. We affirm.
FACTS
A. Background
In early November 2004, defendant moved in with his sister Teresa and her family, and stayed with them until late May 2005. When he moved in, defendant was 35 years old, his niece, C., was eight years old, and his niece, D., was seven years old. During his stay, defendant slept on the couch in the living room. He had no regular employment but occasionally did odd jobs.
Teresa testified that defendant was sometimes alone with C. and D. because she and her husband worked at night. However, Teresa would not describe defendant as the girls babysitter. Rather, that task fell to her oldest daughter, who was then 15 years old.
In May 2005, Teresa was sitting down having dinner with some of her children, when her six-year-old son turned to C. and told her to tell Teresa what defendant had said to her. C. and D., who had previously seemed fine, got scared looks on their faces. Based on what the girls then told her, Teresa called law enforcement.
Teresa further testified that when defendant was living at her house, she found pornographic movies under the couch and in the garage. Teresa confronted defendant and told him that if he was going to watch porn, he should at least put it somewhere the kids could not find it. Defendant denied that the movies belonged to him.
B. Molestations of C.
Counts 1, 2, and 4 in the amended information charged defendant with committing forcible lewd acts on C., a child under the age of 14, in violation of Penal Code section 288, subdivision (b)(1),[1]and counts 3 and 5 charged him with forcible sexual penetration against C. in violation of section 289, subdivision (a)(1). For purposes of clarity and organization, we set forth the incidents established by C.s testimony below, not in chronological order, but in order of the corresponding charges in the information.
Count 1
C. testified that once she was in the living room with defendant, when he pulled up her shirt and kissed her boobs for a long time.[2] C. told defendant not to do it, but he did not say anything. Defendants acts made her feel uncomfortable.
Count 2
C. testified that on another occasion she was in her older sisters room watching a movie with D. C. was lying on the bottom bed when defendant came in and pulled her pants down to her upper thighs. Although C. recalled telling a police officer that defendant put his dick in her cookies, C. testified that defendants dick did not go inside her cookies but just touched the skin of her cookies. It felt uncomfortable. Defendant touched her cookies with his dick for three or four minutes. He told C. they felt good. When asked if she remembered seeing anything come out of defendants dick, C. testified: No. I only felt water, though. I think it was water. C. confirmed the water touched her cookies.
Count 3
C. testified that the first incident of molestation occurred when she was in her mothers bedroom. She was lying on the bed by herself, watching a movie, when defendant suddenly came in and started touching her. He undid the button on her pants and slipped his finger into her cookies and started moving it in a circular motion. C. testified that it felt uncomfortable and that she asked defendant to stop. Defendant did not say anything and kept his finger in her cookies. C. testified that she was scared during this incident in the way she would get scared when she was in trouble with her mother. On this same occasion, defendant touched C.s boobs for a long time and remarked that they were big. C. again asked defendant to stop.
Count 4
C. testified that on another occasion she was in her older brothers room, talking through the window to her friend, who was outside the house. Defendant was on the bed. He pulled down his pants and pulled out his dick. Defendant then asked C. to suck his dick and offered her $5. When C. refused, defendant told her to ask her friend to come over and suck his dick. C. testified she did not ask her friend [b]ecause if I knew it hurted me then I knew it would hurt her and C. didnt want it to happen to her friends.
When C. would not call her friend for him, defendant told C. to tell her friend that she could not play with her anymore. C. testified that she did not tell her friend this but instead told her friend not to leave because defendant was not the boss of her.
While C. was standing on the bed talking to her friend, defendant grabbed C. by the hand and turned her so that her back was facing him. He then tried to put his dick in her butt. Upon further examination by the prosecutor, C. confirmed that defendant put his dick in the area where you go poo-poo and that it hurt. C. told defendant not to do it.
While testifying regarding this incident, C. testified she was currently afraid of defendant, [b]ecause Im afraid that hes gonna hurt me or something. C. confirmed that it hurt whenever defendant would touch her. When asked if she cried [e]very time he was touching you, these bad touches, C. answered, Yeah. When next asked if she cried every time or just a few times, she responded, Sometimes. A few times. C. explained she never told her mom that defendant was touching her in a bad way because she was afraid her mom would get mad at her, and because defendant told her not to tell her mom and dad.
Count 5
C. testified that another incident occurred in her mothers room, when she was playing hide-and-seek with D. and their younger brother. C. was hiding in the closet, when defendant pulled her out into the room. Defendant then pulled down her pants and put his finger in her butt and started wiggling it around. C. told defendant it hurt and asked him to leave her alone. Defendant did not stop but kept his finger in her butt.
In addition to describing the forgoing incidents, C. testified that defendant once asked her and D. to watch a nasty movie, but they both said no. When asked to describe what she thought was a nasty movie, C. testified, Like people naked and everything. C. told her mom about this incident the time she was sitting at the dinner table and her younger brother told her to tell her mom what defendant had asked her. C. recalled that a couple days later, the police came to her house.
B. Molestations of D.
Defendant was charged with forcible sexual penetration against D. in count 6, and with a forcible lewd act on D. in count 7.
D. testified that the first time she was molested by defendant happened while she was getting ready to go to school. Defendant reached inside her pants and put his finger inside the area that you go poop. D. testified that it felt bad and she told defendant it felt bad, but he did not say anything. He kept his finger inside her butt for a short time. Defendant then took his hand out of D.s pants, and reached back in and put his finger inside her cookies. D. testified that she was standing during this incident, and that defendant used one of his legs and his feet to hold her in place.
D. testified that another time she was in her older brothers room, when defendant touched her cookies. D. was wearing pink pajamas. Defendant reached into her pants from the front and put his finger in her cookies. D. was crying and told defendant it hurt. Defendant did not say anything. C. came into the room and tried to help get D. away from defendant. C. told D. to hurry up, so they could run to their mom and tell her. D. testified she did not go do this because defendant would not let her go. Defendant was holding her by her right hand, while C. was pulling her by her leg.
D. testified that defendant touched her in a bad way a total of three times, but she could not remember where on her body he touched her the third time. D. recalled that each of the three molestations occurred in her older brothers room. D. was scared of defendant when he touched her and it made her cry. D. did not tell anybody about what defendant did because he told her not to tell her mom and brothers.
DISCUSSION
I. Sufficiency of the Evidence
During closing argument, the prosecution relied on dual theories of force and duress to prove defendant committed forcible lewd acts on C. in counts 1, 2, and 4, in violation of section 288, subdivision (b)(1). Defendant now claims there was no evidence he used force, fear, or duress to accomplish the lewd acts, and therefore his convictions should be reduced to the lesser included offences of violations of section 288, subdivision (a). For reasons discussed below, we conclude the record discloses ample evidence of duress to support defendants convictions in counts 1, 2, and 4. Our conclusion makes it unnecessary to consider whether the evidence was also sufficient to establish fear or force.
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) [W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
A violation of section 288, subdivision (b) occurs when a defendant commits a lewd or lascivious act with a child under the age of 14 by use of force, violence, duress, menace, or fear of immediate bodily injury on the victim or another person. For purposes of section 288, subdivision (b), duress is defined as 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.] (People v. Cochran (2002) 103 Cal.App.4th 8, 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.] (Id. at pp. 13-14, last bracketed insertion added.) 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. (Id. at p. 14.)
For example, a young child commonly views adults as authority figures, and the disparity in size between a child and an adult also contributes to the childs sense of physical vulnerability. (People v. Pitmon (1985) 170 Cal.App.3d 38, 51, superseded by statute on another ground as stated in People v. Valentine (2001) 93 Cal.App.4th 1241, 1250.) Moreover, when the defendant is a family member, he holds a special position of dominance and authority over a child, making the child especially susceptible. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) If the defendant threatens the child with physical harm, punishment, restriction, or public embarrassment, the child may also feel coerced. (See People v. Senior (1992) 3 Cal.App.4th 765, 775-776.) And the adults use of physical control suggests that resistance will be answered with greater physical force. (Id. at p. 775.)
People v. Cochran, supra, 103 Cal.App.4th 8 is persuasive. In Cochran, the federal authorities observed pornographic photographs posted on the Internet of a preteen girl engaged in sex acts with an adult male. Investigators found the pictures had been posted from the defendants home computer. Executing a search warrant on his residence, they discovered the defendant and his preteen daughter were the people depicted in the photographs. The daughter stated that the sexual acts had started a few months before while she was in the fourth grade. (Id. at pp. 11-12.)
The defendant contended the evidence was legally insufficient to support the element of duress. The court rejected this characterization, noting that warnings to the victim that revealing the molestation would result in jeopardizing the family (People v. Cochran, supra, 103 Cal.App.4th at p. 14), was as pertinent to the issue as threats or physical control. Moreover, the absence of any force does not eliminate the presence of duress: Considering the age of the victim and the general relationship forced on her by a parent, physical force was not necessary for him to get what he wanted. The court emphasized that eight years of age is 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 youngsters sense of [her] relative physical vulnerability. ... People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239 [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 is relevant to determining duress]. (People v. Cochran, supra, 103 Cal.App.4th at p. 14.)
The same logic and understanding apply here. C. was eight years old and defendant was in his mid-30s when he started molesting her. Defendant was also a close relative and member of C.s household for a period of five months. We disagree with defendants suggestion that this was a brief amount of time, particularly when viewed from the perspective of a young child repeatedly molested by her uncle. During the first incident of molestation underlying the forcible sexual penetration offense in count 3, defendant found C. alone in her mothers bedroom watching a movie. He penetrated her vagina digitally and touched her breasts for a long time, responding to her requests to stop by simply ignoring her and continuing his sexual assault. Thus, in this first incident of molestation, defendant established a pattern of physical and psychological dominance over C. seen in all the subsequent incidents. (People v. Senior, supra, 3 Cal.App.4th at pp. 775-776 [duress used in a prior molestation can be evidence supporting duress for later molestations].)
Consistent with the pattern established in the first incident, the record reflects that defendant would thereafter exploit opportunities of finding C. alone or in the proximity of other young children, imposing himself on C. physically ignoring her requests to stop, her statements that he was hurting her, or other expressions of distress such as crying (the record indicates she cried during at least some, if not all, the incidents). It is also relevant to our assessment of duress that defendant told C. not to tell her mom or dad about the abuse. (See People v. Senior, supra, 3 Cal.App.4th 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.].) Moreover, C. testified she was afraid of defendant, and she was scared she would get in trouble if she reported the abuse further indication of the coercive effect of defendants conduct towards her. Under the facts here, and considering the total circumstances and the entire relationship that existed between defendant and C., there was substantial evidence which allowed the jury to make a finding of duress in counts 1, 2, and 4.
Defendant relies on People v. Espinoza (2002) 95 Cal.App.4th 1287 and People v. Hecker (1990) 219 Cal.App.3d 1238, in arguing to the contrary. We find these cases inapposite.
In Hecker, the defendant molested his 12-year-old stepdaughter. She testified she was never consciously afraid the defendant would harm her and that, with the exception of one incident where he held her head down during oral copulation, he never used physical force. She did not report the incidents because she felt guilty and did not want to be responsible for breaking up her mothers marriage. (People v. Hecker, supra, 219 Cal.App.3d at p. 1242.) She testified she felt pressured psychologically and subconsciously afraid. (Ibid.) However, there was no evidence [the defendant] was aware of and sought to take advantage of such fear. (Id. at p. 1250.) The Hecker court concluded that [p]sychological coercion without more does not establish duress. (Ibid.) In line with that conclusion, the Hecker court rejected the Peoples argument that duress was established by the victims testimony that the defendant urged her not to report the molestations because it would ruin his marriage and naval career, stating such testimony establishes merely the threat of hardship directed at later disclosure of the sex acts and not [the failure to perform] the sex acts themselves. [Citation.] (People v. Hecker, supra, 219 Cal.App.3d at p. 1251, fn. 7.)
Citing to Hecker, defendant asserts, To the extent some psychological coercion is found in the evidence, a finding of duress cannot be based on psychological coercion alone. The Cochran court, however, retreated from its position in Hecker, stating that "this language in Hecker is overly broad." (People v. Cochran, supra, 103 Cal.App.4th at pp. 14-15.) The court continued: 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 defendants attempt to isolate the victim and increase or maintain her vulnerability to his assaults. (People v. Cochran, supra, 103 Cal.App.4th at 15, italics added.) Thus, the court concluded:
This record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her fathers 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. (People v. Cochran, supra, 103 Cal.App.4th at pp. 15-16, fns. omitted.)
For reasons discussed above, similar factors in this case compel the conclusion that there was sufficient evidence of duress, manifested as an implied threat of force or retribution, for a reasonable jury to find defendant committed forcible lewd acts against C.
This case is also different from People v. Espinoza, supra, 95 Cal.App.4th 1287. The defendant in Espinoza committed lewd acts on his simple-minded, twelve-year-old daughter who passively acquiesced to his touching her genitals. However, no words were spoken between them during the molestation, the girl never attempted to stop her father, and the father never attempted to deter his daughter from reporting the acts by blaming her for them or insinuating the family or her mother would be harmed by the report. Finally, there was not a long-term sexually exploitative relationship between the daughter and the defendant. The defendant only had custody of the daughter for a couple of weeks before the reports were made and Child Protective Services separated the girl from his control. (Id. at pp. 1292-1295.) All of these factual distinctions take it out of possible application to the case before us.
II. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by misstating the law concerning the force requirement of section 288, subdivision (b)(1), thereby prejudicing him with respect to his convictions on counts 1, 2, and 4. Defendant recognizes that defense counsel did not object or request an admonition, but he asserts the harm could not have been cured or, alternatively, that counsel was ineffective. Finding no misconduct, we reject both claims.
A. Background
During closing argument, the prosecutor discussed her view of why the evidence showed that defendant used force in committing the lewd acts against C. To place these views in context, we quote extensively from her argument below, italicizing the remarks defendant finds objectionable.
With respect to count 1, the prosecutor argued in part:
For [C.], Count 1 was she and her and [defendant] are in the living room, he pulls up her shirt and he starts kissing her Chee cheese [sic], so youve got him, shes under 14, hes touching a body part, hes pulling up her shirt, kissed her chee-chees for a long time and made a comment that theyre getting big. Well, hes not doing that what is his intent for doing that? Obviously its an intent of arousal. Theres no reason for him to be doing that as an uncle. And I asked her if her shirt was off. She said no, he just pulled it up. She said she felt uncomfortable. She told him not to do it, he didnt answer her.
The definition of force is a little bit different for a lewd and lascivious act by force [than the definition of force for forcible sexual penetration]. The force must be substantially different from or greater than the force needed to accomplish the act itself. Okay, the act that is required is the touching of any part of a childs body either on bare skin or through the clothing. Why the force here? Its because hes lifting up her shirt, hes kissing her chee-chees. Now, he could do this there could be enough for this if he just kissed her on her chee-chees outside of her clothing. Whats more? What is he doing more? Whats the force thats substantially more? Hes pulling up her shirt, theres a little bit more force. And instead of just kissing once or touching it with his hands, hes kissing her chee-chees for a very long period of time. You could find beyond a reasonable doubt that he is using more force than is required for that act that he just touch her body. It could be just a simple little touch if hes doing it with the intent to arouse. We have much more force.
Duress is the same as the duress definition defined in the previous crime that I talked about in sexual penetration, its the direct or implied threat of force. And again, shes very uncomfortable. And you know, I think I asked her all of the acts was she afraid of the defendant. Yes. You can infer that at the time this happened she was afraid of the defendant. She didnt walk away, she just stood there and let that happen. She must have been fearful.
And menace and fear basically are the same. Same definitions as the previous.
As to count 2, the prosecutor stated:
Count 2 was also forcible lewd and lascivious act on [C.]. And remember, this was [C.] was watching a movie with [D.] while she was laying on [her older sisters] bed. She was on the bottom bed. Remember we heard testimony that there was a bunk bed. The top bed I think there was a twin, the bottom bed was a full. He pulled her pants down to her upper thigh area. She saw his dick. It was hard and straight like a pencil, and his dick touched the skin of her cookies but it didnt go inside. So you have the touching, you have a touching of the skin, shes under 14 years old, he committed the act with the intent of arousing, appealing to, et cetera, et cetera.
And remember I asked her if anything came out of his penis, and she said, Well, no, but I think I saw some water, there was some water on my cookies. I would submit to you that that water that she saw was semen. So the defendant clearly is aroused and hes doing that for the purpose of arousal.
She said he had his dick in her cookies or on her cookies for three to four minutes, because I asked her how long he had it there. And he asked her, Does it feel good? So hes trying to get her to be aroused. She felt very uncomfortable, she said. I think that was her testimony.
So I would submit to you that its simple argument to my previous argument that the force must be substantially different from or greater than the force necessary to accomplish the act. Remember, the act is did he touch her body either on her bare skin or over her clothing. It can be anywhere on her body, remember. Okay, but what does he do? He goes to a part of her body thats covered, takes a while for him to get there, pulls her pants down, puts his dick in her cookies, not inside her cookies but touches her cookies. So the force he uses, he obviously has to get on top of her because shes laying on the bed, so hes hovering over her. The force clearly is substantially greater than the act requires, okay.
If you dont find that thats enough force and ask yourself, well, what force would you need, you can look at duress. Was she under duress, was she afraid? Certainly shes afraid. Shes never had this happen to her before, she doesnt know what it is.
Finally, regarding count 4, the prosecutor argued:
Count 4, for [C.], this was the last time, if youll remember, and this was when shes in [her older brothers] room, shes talking to [her friend] at the window, its summertime, shes not in school, theres one bed, the door is open, shes standing on the bed. [Defendant] came into the room, he stepped up on the bed where shes at, shes talking to [her friend]. Remember, shes looking down at [her friend]. [Her friend] cant see into the room. [Her friend] is asking her to come out and play. She eventually goes out to play with [her friend] later. He pulled his pants down, pulled out his dick, according to [C.], and then he asks her while hes holding his dick, if shell suck it. She says no. Then he says, Okay, Ill give you five dollars. She says no, she doesnt want to do this. He asks, Do you have any friends that will suck my dick? Clearly he knows that [her friend] is outside. She doesnt want to get [her friend] involved, she doesnt want [her friend] to go sit through the same horrible things that shes going through, so she says, No, I dont have any friends that will do that for you.
At that point he takes her hand, he turns her around. Shes no longer facing him, shes got her back to him. And you remember I asked her, Well, how close were you to him? She said that she was about two feet. [] []
He then took his dick and put it in her butt where and I asked her, In the place that you go poop? And she said yes. She said it hurt. She told him not to do it, but he continued to do it anyhow.
And then I think [defense counsel] asked her where everybody else was at and everybody else was either outside, taking a shower, mom was working, dad was working, she couldnt remember where [her younger brother] was.
The first crime you should look at, like I explained before, would be the forcible lewd and lascivious act. Did the defendant touch her on her body? Yes, he touched her his penis to her bottom. Did he use force, violence, duress, menace or fear? And again, remember, look at the force. It must be substantially different from or greater than the force required to accomplish the act.
And whats the act? The act is a mere touching of the childs body, okay. We have a lot of force here and its much more than the mere touching. Hes turning her around, holding her hand. Obviously her clothes got off somehow. He takes his penis out, puts it in her butt. She asks him to stop doing it, he wont, and he continues on. Obviously theres much more force there than is required for the simple act of the touching.
If you dont find force, look at duress. And I would submit to you that certainly she was under duress. Hes hounding her, he wants to have his dick sucked. No, she wont do that. Hell pay her. No, she wont do that. Finally he just takes it from her.
B. Analysis
Defendant contends the italicized portions of argument constituted misconduct because the prosecutor misstated the law concerning force. However, defendant does not contend the prosecutor misstated or gave an erroneous definition of the term.[3] Rather, he claims her argument erroneously suggested that certain acts were sufficient to meet the legal definition of force; i.e. lifting up the victims shirt before touching her breasts for an extended period of time, lowering the victims pants and hovering above her before touching her vagina with his penis, and grabbing her hand and turning her around before penetrating her anus with his penis. Defendant claims none of these acts involved force that was substantially greater to or different than the force required to accomplish the lewd acts themselves, and therefore the prosecutor misstated the law by suggesting the evidence was sufficient.
The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 427, last bracketed insertion added.)
While it is improper for a prosecutor to misstate the law (People v. Hill (1998) 17 Cal.4th 800, 829; People v. Bell (1989) 49 Cal.3d 502, 538), defendants claims of prosecutorial misconduct and ineffective assistance fail because the prosecutor did not misstate the law in this case. As noted above, the prosecutors argument presented a correct definition of force. There was nothing improper about the prosecutor discussing her view of why the evidence showed force was involved in the offenses. Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Dennis (1998) 17 Cal.4th 468, 522.) Such latitude precludes opposing counsel from complaining on appeal that the opponents reasoning is faulty or the conclusions are illogical. (People v. Thomas (1992) 2 Cal.4th 489, 526.) Whether the inferences the prosecutor draws are reasonable is for the jury to decide. (People v. Dennis, supra, 17 Cal.4th at p. 522.)
In describing defendants conduct and urging that it demonstrated the use of force, the prosecutor did not misstate the law or the facts. She simply described the incidents in the victims own words and inferred that force was present under the correct legal definition she provided. We perceive nothing misleading in the prosecutors argument urging the jury to find sufficient evidence of force. While we have found it unnecessary to resolve this question given the compelling evidence of duress, conduct arguably similar to defendants has been found sufficient to show force under section 288, subdivision (b)(1). (See People v. Cicero, supra, 157 Cal.App.3d at pp. 470, 474, 485-486 [affirming section 288 subdivision (b) convictions of a defendant who picked up the child victims and moved his hands between their legs and on their crotches as he carried them along, and also holding that a finding of force does not require that the victim resisted]); People v. Bolander (1994) 23 Cal.App.4th 155, 161 [defendants acts of overcoming the victims resistance to having his pants pulled down, bending the victim over, and pulling the victims waist towards him constituted force within the meaning of section 288, subdivision (b)]; People v. Stark (1989) 213 Cal.App.3d 107, 112 [Here, we have an adult male lying on top of a nine-year-old boy, who was rendered unable to move away because of the weight of the adult on top of him. The adult ignored the boys request to get off of him and to stop fondling him. The molestation only stopped when the boy kicked the adult six times in the stomach. Clearly, [the defendant] used physical force substantially different from and substantially greater than that necessary to fondle [the victim.].)
Moreover, the prosecutor also argued that even if the jury did not find enough evidence of force, it could find C. submitted to the lewd acts under duress. The prosecutor correctly noted the definition of duress was the same as for the forcible sexual penetration offenses. In connection with those offenses, the prosecutor accurately described duress and identified the relevant factors in assessing whether duress was present as follows:
Duress, a direct or implied threat of force, violence, danger, hardship or retribution that is enough to cause a reasonable person of ordinary sensitivity to do or submit to something that she would not otherwise do or submit to. Consider all the circumstances, including the age of the victim and her relationship to the defendant. [] So remember, weve got really young girls here. Weve got a male whos 35 years old, hes bigger physically than the victims, he stands in a position of trust because hes their uncle, because hes a family member, hes living in the household, hes a member of the household. And you can consider any other factors that you think are relevant to duress, whether the victim asked him to stop and he didnt, he just kept on doing it.
As discussed above, the total circumstances, including the factors discussed by the prosecutor, provided substantial evidence of duress to support defendants convictions of forcible lewd acts against C.
Since all the prosecutors remarks fell within the range of permissible argument, defense counsel had no cause to object to them and was not ineffective for failing to do so. (People v. Bonillas (1989) 48 Cal.3d 757, 794.) Defendant has not shown he is entitled to reversal or modification of his convictions in count 1, 2, and 4.
DISPOSITION
The judgment is affirmed.
_
HILL, J.
WE CONCUR:
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WISEMAN, Acting P.J.
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GOMES, J.
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