In re Alfredo P.




Filed 1/18/11 In re Alfredo P. CA2/7






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ALFREDO P., a Person Coming Under the Juvenile Court Law.	B219451 (Los Angeles County Super. Ct. No. GJ26645)
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO P., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County,
Robert Leventer, Commissioner. Affirmed.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________

Alfredo P. (the minor), appeals from the order of wardship entered after the juvenile court found he committed two counts of forcible lewd act upon a child. He challenges the sufficiency of the evidence to support the findings. We affirm.
PROCEDURAL BACKGROUND
A four-count petition filed pursuant to Welfare and Institutions Code section 602, alleged in 2007 the minor, then 15 years old, committed lewd acts upon a child, Leslie P. in violation of Penal Code section 288, subdivision (b)(1).
After a two-day jurisdiction hearing, the juvenile court sustained counts 1 and 2, characterizing count 1 as “where [the minor] got on top of [Leslie P.] on the first incident, and count 2 as “where [the minor] put his penis in [Leslie P.’s] mouth.” The court declared these offenses to be felonies and dismissed counts 3 and 4.
At the disposition hearing, the juvenile court ordered the minor home on probation.
FACTS
The evidence at the jurisdiction hearing established Leslie P. was seven years old in December 2007 when the lewd acts occurred. The minor, Leslie P.’s cousin, was babysitting Leslie P. and her younger brother over the semester break while her mother was at work.
1. Count 1
Leslie P. testified that one morning close to Christmas she was lying on her bed and the minor asked her if she “wanted to do sex.” Believing he meant she would be kissed, Leslie P. said she did. The minor pulled down Leslie P.’s pajama pants and underwear, as well as his own pants and underwear. Leslie P. saw the minor’s “middle part,” her term for penis, hanging down. The minor lay on top of Leslie P. four times, placing his penis on her vagina and moving it up and down, which felt “weird.” Leslie P. told the minor to get off of her and attempted to push him off, but he would not listen. Instead, the minor grabbed Leslie P., pushed her off the bed, stood her up and pressed his penis into her buttocks, but did not penetrate. Leslie P. told him to stop, but he refused.
Leslie P. threatened to tell her mother what the minor had done. He replied that if she did, he would “do it” to her brother Steven, which caused Leslie P. to fear the minor. Leslie P. testified the minor threatened her on other occasions to ensure she would not report the minor’s conduct. He told Leslie P. he would “do it again” to her if she told her mother. The minor said that he would deny what had happened and that Leslie P.’s mother would never believe her. The minor also said Leslie P. would be taken from her mother.
2. Count 2
On another morning, Leslie P. was on the telephone with friends, when the minor got on top of her, pulled down his pants and twice inserted his penis in her mouth. Leslie P. told the minor she did not like that and “tried to take it out, but he just pushed it in more.” Leslie P. asked the minor if her friend could come visit and the minor refused. Because Leslie P. was “really scared” of the minor, she told her friend to come over. When the friend arrived, Leslie P. was outside waiting for her. The minor was inside with Leslie P.’s brother. Leslie P. did not reveal what had happened to her. The minor told the friend to leave.
DISCUSSION
As to both counts, the minor does not dispute there was sufficient evidence he committed a lewd or lascivious act in violation of Penal Code section 288, subdivision (a). He claims only there was insufficient evidence he committed each act by use of the requisite force, violence, duress, menace or fear for purposes of Penal Code section 288, subdivision (b)(1).
The same standard governs review of the sufficiency of evidence in juvenile cases as in adult criminal cases: “[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., 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.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)
A violation of section 288, subdivision (b)(1), requires the lewd act be committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” Force means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero (1984) 157 Cal.App.3d 465, 474; see In re Asencio (2008) 166 Cal.App.4th 1195, 1200.)
The force used may be slight. For example, slightly pushing the victim’s head back while the victim was orally copulating the defendant was a use of force within the meaning of section 288. (People v. Pitmon (1985) 170 Cal.App.3d 38, 48.) Grabbing or holding a victim who is trying to pull away is also the use of physical force above and beyond that needed to accomplish the act. (See People v. Babcock (1993) 14 Cal.App.4th 383, 386-388 and cases cited therein; but see People v. Schulz (1992) 2 Cal.App.4th 999, 1004 [force not found when defendant grabbed victim’s arm and held her while fondling her; case affirmed on duress finding]; People v. Senior (1992) 3 Cal.App.4th 765, 774 [force not found when defendant pulled the victim back when she tried to pull away from oral copulations; case affirmed on duress finding].)
“‘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.] ‘The total circumstances, including the age of the victim, and [his or 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.]”
(People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.)
“[I]n People v. Pitmon, supra, 170 Cal.App.3d 38, 47-48, 51, the [appellate] court found sufficient evidence of duress despite the victim’s testimony the defendant did not use force or violence and never threatened to hurt her. The court stated that ‘at the time of the offenses, [the victim] was eight years old, 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 youngster’s sense of [her] relative physical vulnerability.’ (Id. at p. 51; see also People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748 . . . [duress found where defendant molested eight-year-old granddaughter repeatedly over a three-year period and victim viewed defendant as a father figure]; 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.)
In the present case, Leslie P. testified concerning two incidents. As to the first incident, and the issue of force, the minor did not merely lie on top of Leslie P. while rubbing his penis over her vagina; he also resisted her efforts to push him off of her. He then pushed her off the bed and into a standing position so he could place his penis against her buttocks. As to duress, Leslie P. was seven years old, and the minor was her 15-year-old cousin, whom her mother had left in charge of Leslie P. and her younger brother in her absence. No other adults were at home. Thus, Leslie P. was effectively isolated with the stronger and heavier minor, which contributed to her sense of physical vulnerability. Additionally, after the first incident, the minor caused Leslie P. to fear for herself and her younger brother by threatening to molest him if Leslie P. did not keep quiet.
There is sufficient evidence of force during the second incident. After the minor got on top of Leslie P. and put his penis in Leslie P.’s mouth, when she attempted to remove it, he pushed his penis further into her mouth. At this point, Leslie P. was frightened of the minor, having previously been overpowered and threatened by him, which supported a reasonable inference of duress during the second incident.
We conclude there was substantial evidence the minor committed forcible lewd acts upon a child, including sufficient evidence of the requisite “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim” within the meaning of Penal Code section 288, subdivision (b)(1).
DISPOSITION
The order is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.


JACKSON, J.

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