P. v. Cruz

Filed 3/11/08 P. v. Cruz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge. Affirmed.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of sodomy of a person 14 years of age or younger (count 1Pen. Code,  286, subd. (c)(1))^[1]and aggravated sodomy of a person 14 years of age or younger (count 2 269, subd. (a)(3)). On appeal, defendant contends that the People adduced insufficient evidence of force for the jury to have found him guilty of aggravated sodomy. We find the verdict supported by sufficient evidence of force or duress and, therefore, affirm the judgment below.

I. FACTS AND PROCEDURAL HISTORY

Marlon C. shared his bedroom with defendant, a family friend approximately the same age as he. In August 2006, Marlon came home and attempted to open his bedroom door. The door, which was normally unlocked, was locked, so Marlon opened the door with his key. He witnessed then 22-year-old defendant, and John Doe, Marlons seven-year-old brother, engaged in a sexual act. Marlon testified that they were laying on their sides with defendant in back of Doe inserting his penis into Does anus. Defendant had one of his hands on his own penis and the other around Does neck. Doe appeared calm.

After he walked in, defendant separated himself from Doe. Marlon grabbed Doe and led him out of the room. Marlon thereafter kicked defendant out of the house.

Approximately two weeks later, the police were called regarding the incident. Officer Dane Wilkinson testified that Doe said he was not scared during the incident; however, Doe said that he was angry. Officer Edgar Castaneda contacted defendant. Defendant admitted that he had touched Does penis and touched his penis to Does buttocks. Defendant told Castaneda he did so in order to exact revenge for Marlons sodomization of him when he was eight years old. Defendant admitted that Marlon had seen them in the act; however, he denied actually putting his penis inside Does anus. Officer Andy Bryant observed a forensic interview with Doe conducted by a social worker. The parties stipulated to the admission of a transcript of that recorded interview.

During the interview, Doe indicated that while he was sleeping in Marlons room one day, defendant came into the room, jumped over his back, and pulled his underwear off. Defendant pressed down hard upon Doe. Doe characterized defendant as big and a grown-up. When Doe spoke, defendant made [him be] quiet. Doe was saying, ugh, ugh. Defendants behavior hurt Doe because he pushed it hard on Does butt. It made him cry. Defendant pushed his thingy into Does anus. Defendant made pee on Does butt. Defendant wiped his penis and Does butt off with his shirt. Defendant engaged in this behavior twice.

On another occasion, Doe was likewise sleeping when defendant jumped over him, took his clothes off, and put his thingy in Does butt. Does brother Marlon opened the door with his key and Doe immediately began putting his clothes back on. Doe was angry because it was hot.

At trial, Doe testified that defendant had put his private in Does butt on two separate occasions. Both times Doe was sleeping when the defendant began to sodomize him. Only on the first occasion did pee come out of defendants private onto Does butt.

On the second occasion, Doe was sleeping in Marlons room when defendant came into the room, pulled down Does pants, and put his thing in [Does] butt. Doe was laying on his stomach; defendants stomach touched Does back. It felt hard and hurt. Doe called for his mother. Later, defendant told him to be quiet. Defendant told Doe not to tell. Marlon then opened the door and saw what they were doing.

Sandra Murray, a medical doctor, physically examined Doe. She testified that Doe was very little for his age[,] 44 pounds and under four feet tall. She indicated that the exam was totally normal[,] i.e., did not show any indications of sodomy. However, she also testified that since the exam was not conducted within 72 hours of the act, any injuries would have healed. Only on extremely rare occasions will an injury be significant enough to leave scar tissue which would be noticeable after two weeks.

The People charged defendant with two counts of forcible sodomy. ( 269, subd. (a)(3).) After the People rested, defendant moved the court to reduce both counts to the lesser included offense of sodomy ( 286, subd. (c)(1)) pursuant to section 1118. Defendant argued that defendant accomplished neither act by the requisite force sufficient to overcome Does will required by the charges of aggravated sodomy. The court denied the motion as to count 2, noting that Doe testified defendant went on me hard; his tummy was on [Does] back; it felt hard; it hurt; [defendant] told [Doe] to be quiet; not to tell. Thats all Count 2. However, the court granted the motion as to count 1.

III. DISCUSSION

In considering defendants claim of insufficiency of the evidence of force necessary to affirm his conviction . . . , we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Griffin(2004) 33 Cal.4th 1015, 1028 (Griffin).)

The offense of aggravated sodomy of a child under the age of 14 required proof that force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person was used.^[2] ( 269, subd. (a)(3); People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).) 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 [her] relationship to defendantare 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.] (Cochran, supra, at pp. 13-14.) The discrepancy in age, weight, and size between the victim and the perpetrator may be important factors in determining whether duress existed. (Id. at p. 15.)

Contrary to defendants claim, the court in Griffin, supra, 33 Cal.4th at page 1028, never reaffirmed defendants self-proclaimed proposition that aggravated child sodomy requires force significantly different from or substantially greater than the amount of force required to perform the act of sodomy. Rather, that court noted that a forcible lewd act under section 288, subdivision (b) required the application of force significantly different from or substantially greater than the amount of force required to perform the act of lewd and lascivious behavior under section 288, subdivision (a). However, in its own case, Griffin noted that the underlying Court of Appeal had erred in applying this definition of force to a charge of forcible rape, ultimately concluding that a conviction for forcible rape does not require proof of force substantially different or substantially greater than that necessary to accomplish rape in order to support a conviction for forcible rape. (Griffin, supra, at p. 1028.) To a large degree, Griffins discounting of the force standard applicable in the section 288 statute from the forcible rape in its own case came from the fact that the statute in section 288 itself differentiated between a forcible act and a nonforcible act, while the forcible rape statute did not. (Griffin, supra, at p. 1027; People v. Guido (2005) 125 Cal.App.4th 566, 575 (Guido).) [T]he term force as used by the Legislature in sexual offense statutes does not have a constant meaning; the meaning changes depending on the crime to which the term is applied. (Guido, supra, at p. 575.) We note that the statute under which defendant was here tried, likewise does not make such a distinction between forcible and nonforcible conduct.

The essence of the crime of aggravated sexual assault of a child under 14 pursuant to section 269 is the crime of forcible rape. (Guido, supra, 125 Cal.App.4th at p. 574.) Thus, the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]. [Citation.] [Citation.] (Ibid.) [I]n a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. (Griffin, supra, 33 Cal.4th at p. 1027; Guido, supra, at p. 574.)

These concepts should apply equally to the crime of forcible sodomy. (Guido, supra, 125 Cal.App.4th at p. 574.) As with forcible rape, the gravamen of the crime of forcible [sodomy] is a sexual act accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other persons will that the act becomes unlawful under section 269. (Guido, supra, at p. 576.) Thus, as defendant concedes in his reply brief, the degree of force necessary to convict under the statute is solely that used to overcome the will of the victim.

Under the applicable deferential standard of review, we conclude the evidence in this case is sufficient to support the jurys determination that defendant used force or duress to accomplish sodomy against Does will. In essence, defendant contends that the indications of force or duress adduced through Does testimony at trial and the recorded interview were limited solely to the allegations in count 1, not count 2. Hence, he insinuates that the trial court erred in concluding that the evidence of force was sufficient only in count 2. Thus, he maintains he should be the recipient of the double boon of the trials courts mistaken reduction of count 1 to the lesser included offense of sodomy, and now, to the same reduction in count 2 because the court erred in keeping its facts straight. The argument has superficial appeal. Indeed, we admit that, looking solely at the Riverside Child Assessment Team (RCAT) interview transcript, all indications of force or duress appear to be limited to the first incident, i.e., that occurring in count 1. Nevertheless, Does trial testimony contrarily demonstrates that such indicators occurred during the second incident. This apparent confusion did not go unnoticed at trial.

When opposing defendants section 1118 motion, the People stated the following: Well, I do think during the RCAT video when asked what happened the first time, (John Doe) said the same thing. He did say the same thing, and thats very common for children to describe. They get confused on the two incidents. And in the RCAT video, he said the same thing happened the first time. (Italics added.) The court itself, whilst granting the section 1118 motion to reduce count 1 to the lesser included offense, confused the facts supporting the two counts: Then with that evidence coming in as its apparently going to, I think the total evidence on Count 1, aggravated sexual assault of a child under 14 years, is sufficient to sustain a conviction on appeal. (Italics added.) Indeed, when trying to differentiate between the two incidents, Doe perplexingly stated in the RCAT interview: This is the last one and this was the first one.

Nonetheless, sufficient evidence of force or duress was produced to support defendants conviction for aggravated sodomy in count 2 through Does, Marlons, and Dr. Murrays trial testimony and in Does RCAT interview. In Does trial testimony, he clearly indicates that during the second incident, for which defendant was charged and convicted in count 2, Doe was in his bed sleeping when defendant came in, pulled Does pants down, opened his own zipper, and put his penis inside Does butt. Doe called for his mother. Defendant told Doe to be quiet and told him not to tell. Defendant was on his stomach while defendant was on top of him, touching defendants stomach to Does back. In the RCAT interview, Doe described defendants initiation of both incidents as defendant jumping on Does back. Defendant had locked the door. The incident occurred in defendants own room. Defendant had his hand on Does neck. Defendant was 22 years old and Doe described him as big and a grown-up, whilst Doe was seven years old, weighed only 44 pounds and was extremely small for his age. These factors combine to suggest rationally that defendant waited until Doe was in an extremely vulnerable position, asleep and in defendants room. He then locked the door and used his own significant physical advantage of weight and strength to compel Doe to submit to the act. When Doe uttered any expression, defendant made him be quiet and told him not to tell anyone. This evidence was more than sufficient to support the jurys determination that defendant committed the act of aggravated sodomy by using force or duress sufficient to overcome Does will.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Richli

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The statute has since been amended to eliminate this requirement, now mandating that any act of sodomy on a child under the age of 14, no matter how accomplished, is an aggravated sexual assault. ( 269, subd. (a)(3).)