P. v. Cabrera

 

 

 

 

 

 

Filed 5/24/13  P. v. Cabrera CA2/1

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   HUGO ELISEO CABRERA,               Defendant and Appellant.

B239552         (Los Angeles County       Super. Ct. No. NA066657)

 

            APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Gary J.
Ferrari, Judge.  Modified and affirmed
with directions.

            Edward
H. Schulman, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Blythe J.
Leszkay, Supervising Deputy Attorney General, and Toni R. Johns Estaville,
Deputy Attorney General, for Plaintiff and Respondent.

_________________________________

 

 

 

            Defendant Hugo Eliseo Cabrera
appeals from the judgment entered following a jury trial in which he was
convicted of two counts of aggravated
sexual assault on a child under the age of 14 (Pen. Code, § 269, subd. (a);
undesignated statutory references are to the Penal Code), one of which was
based upon rape in violation of section 261, subdivision (a)(2), and the other
upon sexual penetration, in violation of section 289, subdivision (a); one count
of committing a lewd act on a child (§ 288, subd. (a)); and one count of sexual
penetration of a child under the age of 14 (§ 289, subd. (j)).  Defendant contends that the evidence was
insufficient to support his convictions of aggravated sexual assault on a child
under the age of 14 and that the trial court erred by failing to give a
unanimity instruction.  We agree with
defendant’s sufficiency of evidence contention and reduce his convictions in
the those counts and strike the resulting duplicative count 4, which the
parties agree was based upon the same act of penetration as count 2.

BACKGROUND

            Count 1
charged defendant with committing an aggravated sexual assault on a child under
the age of 14 by committing rape in violation of section 261, subdivision (a)(2)
“[o]n or about May 12, 2004.”  Count 2 charged defendant with committing an
aggravated sexual assault on a child under the age of 14 by sexual penetration
in violation of section 289, subdivision (a) “[o]n or about May 12, 2004.”  Count 3 charged defendant with committing a
lewd act on a child under the age of 14 in violation of section 288,
subdivision (a) “[o]n or between May 1,
2004 and May 31, 2004.”  Count 4 charged defendant with sexual
penetration of a child under the age of 14 in violation of section 289,
subdivision (j) “[o]n or between May 1,
2004 and May 31, 2004.”  Four other counts set forth in the
information were dismissed before trial as improperly filed because they
exceeded the scope defendant’s extradition.

            The victim,
Maria C., was born in March of 1991.  She
was 20 at the time of trial in January 2012. 
She testified that defendant was her “natural” father, although the
prosecution’s DNA expert later opined that defendant was not Maria’s biological
father.  Maria testified that when she
was in the fourth grade, defendant began touching her breasts with his hands
and inserting his fingers and penis in her vagina.  Maria was 9 and 10 years old in 2000 and 2001
when she was in the fourth grade, but she was not specifically asked and did
not testify how old she was when defendant commenced his sexual conduct against
her.  The conduct always occurred in
their home, and it occurred “[o]nce a month probably.”  Maria never told anyone about it because she
was embarrassed.  Later during her testimony,
the prosecutor asked Maria again why she never told anyone, and Maria said,
“Because he told me not to.”  Years
later, Maria told Los Angeles Police Department Detective Charles Martin that
she tried “to inform her mother when it first began about the touching
initially and her father, Hugo, convinced the mother that she was dreaming, so
she didn’t feel her mother was believing her, so she never tried to tell her
any more.”

            When Maria
was in the fifth grade, defendant went away for two years.  (Although not disclosed to the jury,
defendant was serving a prison term for spousal abuse.)  The parties stipulated that from 2002 to
early March 2004, defendant could not contact Maria and had no access to her.

            In March of
2004, when Maria was in the seventh grade and 13 years old, defendant returned
home.  “Probably right away,” he resumed
molesting her in the “same molestation pattern that he had done before he went
away.”  He touched her breasts, “raped”
her, and “insert[ed] his finger inside” her. 
This occurred about once a month. 
Maria became pregnant and, after nine months of pregnancy, she gave
birth to her daughter M. on February 7,
2005.  Maria testified that
defendant was M.’s

father.

            Around
December of 2004, Maria’s pregnancy began to show.  Her mother took her to a physician, who
confirmed that Maria was pregnant and told Maria’s mother.  Maria told her mother that she had been raped
in a van by a stranger.  Defendant gave
her the “idea to say someone else had done it.” 
Maria repeated this story to Detective Martin, who began investigating
it in January of 2005 and concluded it was false.  When Martin confronted Maria with his
conclusion, she refused to speak with him for a time.  Martin collected DNA samples from defendant,
Maria, and Maria’s two brothers.  Maria
subsequently told Martin that one of her seventh grade classmates was
responsible.  Martin asked her to point
out the classmate in her school yearbook, and Maria selected someone.  Martin interviewed the boy, who did not know
Maria, but voluntarily provided a DNA sample. 
After M. was born, Martin collected a DNA sample from her also.

            Before M.
was born, Maria told defendant that she did not want to continue lying.  Defendant left home and Maria did not see him
again until the preliminary hearing. 
After M.’s birth, Maria told Martin that defendant was M.’s father, and
Martin learned that defendant had left soon after giving a DNA sample.  Defendant was extradited from Guatemala
in 2011.

            Prosecution
DNA expert Catherine Leisy testified that she analyzed all of the DNA samples
to determine M.’s paternity.  Defendant
could not be excluded as M.’s father, but all of the other males were excluded.

            Defendant
presented no affirmative evidence.

            The jury
convicted defendant of aggravated sexual assault on a child under the age of 14
by rape, aggravated sexual assault on a child under the age of 14 by sexual
penetration, commission of a lewd act on a child under the age of 14, and
sexual penetration of a child under the age of 14.  Defendant admitted a prior prison term
enhancement allegation (§ 667.5, subd. (b)). 
The court sentenced defendant to consecutive terms of 15 years to life
in prison for each of the two aggravated sexual assault convictions, a
consecutive term of 8 years for the lewd act conviction, a subordinate
consecutive term of 2 years for the sexual penetration conviction, and a 1‑year
consecutive term for the prior prison term enhancement, for a total term of 41
years to life.  The trial court did not
award defendant any presentence conduct credits, but corrected this error upon
defendant’s request during the pendency of this appeal.

DISCUSSION

>1.         Sufficiency
of evidence

            Counts 1
and 2 (aggravated sexual assault of a child under 14 based upon rape and sexual
penetration, respectively) required proof that the act was “accomplished
against [Maria’s] will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on [herself] or another” person.  (§ 261, subd. (a)(2); § 269, subds. (a)(1),
(a)(5); § 289, former subd. (a)(1), now subd. (a)(1)(A).)  In her arguments to the jury, the prosecutor
relied solely upon duress, and defendant contends there was insufficient
evidence of duress to support the jury’s verdicts on counts 1 and 2.

            To resolve
this issue, we review the whole record in the light most favorable to the
judgment to decide whether substantial evidence supports the conviction, so
that a reasonable jury could find guilt beyond a reasonable doubt.  (People
v. Ceja (1993) 4 Cal.4th 1134, 1138.)  We presume the existence of every fact
supporting the judgment that the jury could reasonably deduce from the evidence
and make all reasonable inferences that support the judgment.  (People
v. Barnes (1986) 42 Cal.3d 284, 303; People v.
Catlin
(2001) 26 Cal.4th 81, 139.)  A
reasonable inference may not be based solely upon suspicion, imagination,
speculation, supposition, surmise, conjecture, or guess work.  (People
v. Raley (1992) 2 Cal.4th 870, 891.)

            “Duress” in
the context of aggravated sexual assault based upon rape is statutorily
defined:  “As used in this section, ‘duress’ means a direct or
implied threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act which
otherwise would not have been performed, or acquiesce in an act to which one
otherwise would not have submitted.  The
total circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising the
existence of duress.”  (§ 261,
subd. (b).)  For purposes of aggravated sexual assault based
upon sexual penetration “duress” has a nearly identical meaning: 
“‘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. Leal
(2004) 33 Cal.4th 999, 1004, italics omitted.)  The inclusion of “hardship” in the latter
definition of duress is of no consequence in this case, and we can treat duress
as if it were identically defined for both counts 1 and 2.

            “‘[D]uress involves psychological
coercion.  Duress can arise from various circumstances,
including the relationship between the defendant and the victim and their
relative ages and sizes. . . . . 
“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” [are] relevant to the existence of
duress.’”  (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1320.)  “‘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.’”  (>People v. Veale (2008) 160 Cal.App.4th
40, 46.)  But “‘“[p]sychological coercion”
without more does not establish duress. 
At a minimum there must be an implied threat of “force, violence,
danger, hardship or retribution.”’”  (>Espinoza, at p. 1321.)  “Duress cannot be established unless there is
evidence that ‘the victim[’s] participation was impelled, at least partly, by
an implied threat . . . .’” 
(Ibid.)  But duress is
“objective in nature and not dependent on the response exhibited by a
particular victim.”  (>People v. Soto (2011) 51 Cal.4th 229,
246.)

            The jury
instructions given in this case defined duress in the context of count 1
(aggravated sexual assault based upon rape) as follows:  “‘Duress’ means a direct or implied threat of force, violence,
danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities
to perform an act which she would not otherwise have performed, or acquiesce in
an act to which she otherwise would not have submitted.  The total circumstances, including but not
limited to the age of the alleged victim, her relationship to the perpetrator
defendant, threats to harm the victim, physically controlling the victim when
the victim attempts to resist, and warnings to the victim that revealing the
perpetrator’s conduct would result in jeopardizing the safety of the victim or
the victim’s family, are factors to consider in appraising the existence of the
duress.”  (CALJIC No. 10.00.)  For purposes of count 2 (aggravated
sexual assault based upon sexual penetration), the court instructed, “‘Duress’ means a direct or
implied threat of force, violence, danger, hardship, or retribution sufficient
to coerce a reasonable person of ordinary susceptibilities to perform an act
which she would not otherwise have performed, or acquiesce in an act to which
she otherwise would not have submitted. 
The total circumstances, including the age of the alleged victim, and
her relationship to the defendant, are factors to consider in appraising the
existence of the duress.”  (CALJIC No.
10.51.)

            In her arguments to the jury
regarding duress, prosecutor Carol
Rose stated, “I’m making it the easiest for you.  Duress is such a low standard
. . . .”  After quoting CALJIC No. 10.00, the
prosecutor continued, “He’s her daddy. 
Now, apparently she doesn’t know that he’s not her biological
father.  Probably a very common
thing.  But this is a 42 year old and in
fact he is—when she’s 10, what is he, 41. 
She’s 10.  If he’s—2002—2001, he’s
40 and turns 41 when he starts raping her and she is in that stuck mode now and
she’s just 10 years old.  [¶]  So, you look at the
age of the victim and her relationship or threats or physically controlling or
warnings to the victim about revealing the rape.  She knows what it will do to the family.  What’s she, 13?”  With respect to count 2, the prosecutor
argued, “Got duress here.”  She then
argued, regarding lack of consent, “You think that 10 year old positively
cooperated with her dad? 
. . .  And why did it
happen?  We asked her, ‘Why didn’t you
tell anyone?’  [¶]  ‘He’s my
father.’  [¶]  Okay. 
‘Act freely and voluntarily and have knowledge of the nature of the
act.’  [¶]  Did she have as a 10 year old knowledge when
he’s rubbing her breasts and sticking his finger in her vagina?”

Defense
counsel argued that there was no evidence of force, violence, duress,
menace, or fear of immediate and unlawful injury, then argued, “They are
assuming that because you know that she was young, that she must have felt or there must have been force or
violence or duress or menace or fear of immediate and unlawful
injury.  You’re not allowed to assume
evidence that didn’t come in.”

In her rebuttal, the prosecutor
argued, “[I]t was accomplished by duress, he was able to do it by duress and
duress is acquiescing—it’s an implied threat of force, it doesn’t have to be
force.  And she bled, even if that was
the first time, that’s certainly a threat that it’s going to hurt.  And just acquiescing.”  The prosecutor further argued, “Using your
common sense when we’re talking about duress here now.  Let’s talk about duress.  A 10-year-old child would not be expected nor
able to stand up to her father or at least a man she believed was her
father.  Once she’s pregnant, humiliation
is even greater because now everyone is going to know that her mother’s husband . . . is having sex with her
all this time.”

            Viewing the
entire record in the light most favorable to the judgment, we conclude that
there is not substantial evidence of duress to support the convictions in
counts 1 and 2.  These charges were
based upon conduct occurring when Maria was 13, not 10, as the prosecutor
repeatedly argued.  Although defendant’s
improper sexual conduct toward Maria began when she was in the fourth grade,
when she was 9 or 10, it stopped when she was in the fifth grade because
defendant went away to prison for two years, and it did not resume until he
returned in March of 2004, when she was 13. 
Maria’s young age and size may have been factors that, in addition to
other circumstances, would have supported a finding of duress if the charges were
based upon defendant’s conduct in 2000 or 2001, or perhaps even if the conduct
had continued unabated since that time through the date of the charges.  But these factors and defendant’s paternal
relationship with Maria were insufficient to show that defendant used duress to
commit the charged offenses on May 12, 2004, when Maria was 13 and defendant had
been out of the house for two years.  The prosecutor’s questioning
and Maria’s testimony were extremely cursory and conclusory.  She was never asked and never testified that
she feared defendant or that his conduct placed her in fear.  She was never asked and never testified about
the circumstances surrounding the sexual acts. 
There was no evidence defendant attempted physically to control Maria’s
movements immediately preceding or during the May 12 incident, or during any
prior incident.  There was no evidence
that defendant ever made any express threats of any sort, neither
threats that coerced
Maria to perform or acquiesce in the sexual activity, nor even threats of
adverse consequences that would result if she told anyone about defendant’s
conduct.  There was no evidence of
conduct by defendant that could be deemed to be an implied threat of force,
violence, danger, retribution, or hardship. 
There was no evidence that defendant ignored a request to stop or
complaint of pain (or that any such request or complaint was made), or overcame
an attempt by Maria to get away from him. 
Nor was there any evidence that defendant ever used physical force to
punish Maria in other contexts or that she feared him because of force he had
used on her or anyone else.  In short,
the prosecutor presented minimal and conclusory evidence, falling so far short
of substantial evidence that we cannot conclude that a reasonable jury could
have found guilt beyond a reasonable doubt.

Although defendant forfeited any claim of
prosecutorial misconduct by failing to object in the trial court, we note that
the prosecutor’s arguments may well have misled the jury to focus on Maria’s
age at the time defendant began molesting her, not at the time of the charged
offenses three or four years later.  In
addition, the prosecutor argued that “[d]uress is such a low standard”
and “duress is acquiescing.”  The prosecutor also incorrectly argued that Maria testified she bled and
used this matter from outside the record to make a circular argument that
duress could be found because bleeding was “an implied threat that it’s
going to hurt.”

            Rather
than simply reversing defendant’s convictions, this court has the power and
authority to modify the judgment to reflect conviction of a lesser, necessarily
included offense.  (§§ 1181, subd. 6,
1260; People v. Jackson (2000) 77 Cal.App.4th 574, 580.)  An offense is necessarily included in another
if either the statutory elements of the greater offense or the facts alleged in
the accusatory pleading include all of the elements of the lesser offense, so
that the greater offense cannot be committed without also committing the
lesser.  (People v. Bailey (2012) 54 Cal.4th 740, 748.)  Either the statutory elements test or the
accusatory pleading test may be applied in the context of modifying a judgment
due to insufficiency of evidence.  (>Ibid.)

            In response
to our request for briefing on how we should modify defendant’s convictions,
defendant argued that counts 1 and 2 should be reduced to violations of section
289, subdivision (h), sexual penetration of a person under the age of 18.  The Attorney General argued that count 2
could be reduced to a violation of section 289, subdivisions (h) or (j) [sexual
penetration of a person under the age of 14 by a defendant who is more than 10
years older than the victim], but argued that count 1 could not because “sexual
penetration” is defined by section 289 as penetration with “any foreign object,
substance, instrument, or device, or by any unknown object”; a “foreign object,
substance, instrument, or device” does not include “a sexual organ”; and an
“unknown object” only includes “a penis, when it is not known whether
penetration was by a penis or by a foreign object, substance, instrument, or
device, or by any other part of the body.” 
(§ 289, subd. (k)(1)–(3).) 
The Attorney General argues that count 1 could be reduced to a violation
of section 261.5, subdivision (c), which, in 2004, provided as follows:  “Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than the
perpetrator is guilty of either a misdemeanor or a felony, and shall be
punished by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison.”

            Count 1
charged aggravated sexual assault of a child under the age of 14 by a defendant
who is more than 10 years older than the victim by means of a violation of
section 261, subdivision (a)(2).  (§ 269,
subd. (a)(1).)  Section 261, subdivision
(a) provides that “[r]ape is an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator, under any of the following circumstances:  [¶] 
. . .  [¶] (2) Where it is accomplished
against a person’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another.”  Applying the accusatory pleadings test, we
agree with the Attorney General that a violation of section 261.5,
subdivision (c) is necessarily included within a violation of aggravated sexual
assault of a child under the age of 14 by forcible rape.  Accordingly, we reduce count 1 to a violation
of section 261.5,
subdivision (c).

            Count 2
charged aggravated sexual assault of a child under the age of 14 by a defendant
who is more than 10 years older than the victim by means of a violation of
section 289, former subdivision (a)(1) (now subd. (a)(1)(A)).  (§ 269, subd. (a)(5).)  In 2004, section 289, subdivision (a)(1)
provided, “Any person
who commits an act of sexual penetration 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.”  Applying the accusatory pleadings test, we agree with the
Attorney General that a violation of either section 289, subdivision (h) or
subdivision (j) is necessarily included within a violation of aggravated
sexual assault of a child under the age of 14 by sexual penetration, but we
conclude a violation of section 289, subdivision (j) is a more apt included
offense because the age specifications mirror those in section 269, as it
existed in 2004.  Section 289, subdivision (j) provides, “Any person who
participates in an act of sexual penetration with another person who is under
14 years of age and who is more than 10 years younger than he or she shall be
punished by imprisonment in the state prison for three, six, or eight
years.”  In contrast, section 289,
subdivision (h) provides, “Except as provided in Section 288, any person who
participates in an act of sexual penetration with another person who is under
18 years of age shall be punished by imprisonment in the state prison or in the
county jail for a period of not more than one year.”  Accordingly, we reduce count 1 to a
violation of section
289, subdivision (j).

>2.         Duplicative
counts

            We asked
the parties to address whether defendant was properly convicted and sentenced
for two counts pertaining to sexual penetration (counts 2 and 4), given
evidence and the time periods alleged in the information.  In her letter brief, the Attorney General
conceded that “counts 2 and 4 are based on the same act of digital
penetration.”  Although the parties
disagreed as to whether defendant properly stood convicted of two counts based
upon the same act, our modification of count 2 to a violation of section 289, subdivision (j)
simplifies matters.  With this
modification, counts 2 and 4 are identical convictions for a single act and one
must be stricken.  Accordingly, we strike
count 4.

>3.         Unanimity
instruction

            Defendant contends that the
trial court erred by failing to give a unanimity instruction, and that this
potentially affected counts 2 through 4. 
Given our disposition of count 4, we address the absence of a unanimity
instruction with respect to counts 2 and 3.

            A trial
court must instruct jurors that they must unanimously agree that defendant
committed the same specific criminal act “‘when conviction on a single count could be based on two or
more discrete criminal events,’ but not ‘where multiple theories or acts may
form the basis of a guilty verdict on one discrete criminal event.’  [Citation.] 
In deciding whether to give the instruction, the trial court must ask
whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime. 
In the first situation, but not the second, it should give the unanimity
instruction.”  (People v. Russo
(2001) 25 Cal.4th 1124, 1135.)  Where a unanimity
instruction is required it must be given sua sponte.  (People
v. Curry (2007) 158 Cal.App.4th 766, 783.)

            “A
unanimity instruction is required only if the jurors could otherwise disagree
which act a defendant committed and yet convict him of the crime charged.  . . .  [T]he possibility of disagreement exists
where the defendant is accused of a number of unrelated incidents, such as
alleged rapes at different times or places, leaving the jurors free to believe
different parts of the testimony and yet convict the defendant.  . . .  Disagreement may also exist where the
defendant offers a defense which could be accepted or rejected as to some but
not all of the acts.”  (>People v. Gonzalez (1983) 141
Cal.App.3d 786, 791–792, disapproved on another ground in People v. Kurtzman
(1988) 46 Cal.3d 322, 330.)

            “In order
for the unanimity instruction to be significant, there must be evidence from
which reasonable jurors could both
accept and reject the occurrence of
at least the same number of acts as there are charged crimes.”  (People
v. Schultz (1987) 192 Cal.App.3d 535, 540.)  Where the record provides no rational basis
for the jury to distinguish between the various acts, by way of argument or
evidence, and the jury must have believed beyond a reasonable doubt that
defendant committed all of the acts if he committed any of them, the failure to
give a unanimity instruction is harmless. 
(People v. Thompson (1995) 36
Cal.App.4th 843, 853 (Thompson).)

            The
evidence supported the commission of three distinct href="http://www.fearnotlaw.com/">criminal acts against Maria during the
time periods specified in the charges: 
sexual intercourse, touching her breasts, and digital sexual
penetration.  Maria’s testimony was
comparable with respect to all three acts and defendant’s defense did not differ
with respect to the various acts.  Thus,
there was no rational basis for the jury to distinguish between the various
acts, and the jury must have believed beyond a reasonable doubt that defendant
committed all of the acts if he committed any of them.  Accordingly, even if the trial court should
have given a unanimity instruction, its failure to do so was harmless beyond a
reasonable doubt.  (People v. Wolfe (2003) 114 Cal.App.4th 177, 186–188;> Thompson, supra, 36 Cal.App.4th at p. 853.)

>DISPOSITION

            The judgment is modified by (1) reducing count 1 to a
conviction of violating Penal Code section 261.5, subdivision (c); (2) reducing count 2
to a conviction of violating Penal Code section 289, subdivision (j); and (3) striking count 4.  The judgment is otherwise affirmed,
and the cause is remanded for resentencing.

            NOT TO BE PUBLISHED.

 

                                                                                    MALLANO,
P. J.

We concur:

 

            CHANEY, J.

 

            JOHNSON, J.