Filed 8/4/26 P. v. Deleon CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A172730
v. (Marin County
HENRRY N. DELEON, Super. Ct. No. SC217396A)
Defendant and Appellant.
Henrry Deleon appeals his multiple sexual assault convictions,
including two convictions for aggravated sexual assault of a child under the
age of 14. Deleon claims that the trial court erred by denying his motion for
acquittal of judgment under Penal Code section 1118.11 and by imposing
consecutive sentences on his aggravated sexual assault convictions in
violation of section 654. We affirm.
BACKGROUND
Jane Doe was born in Guatemala in 1999. She lived with her
grandmother, and both of her parents were living in the United States. She
first came to the United States in June 2011 and moved into a house in
Richmond with her father, mother, and brother.
1 Further statutory references are to the Penal Code.
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Jane Doe explained that commencing in the fall of 2011, when she was
11, her father asked her for a kiss after they went to get something to eat and
Doe said no. Her father asked her not to tell anyone, including her mom,
because it was a game between them. A couple days later, her father came
into her room and asked if she wanted to sleep with him. Doe said yes and
her father laid down next to her. Deleon did not do anything on that night.
This sort of behavior continued where Deleon would ask to come in and sleep
next to Doe.
Eventually, while Doe was still 11, Deleon would come into Doe’s room
late at night and touch her legs, breasts and vagina over her clothes. He
initially came into her room approximately three times a week and repeated
those actions, and the following week he began touching Doe beneath her
clothes. For these encounters in Doe’s room, Deleon would ask if he could lay
down and touch her, to which Doe did not know what to say. Deleon laid on
top of Doe and rubbed his penis on her pelvis very harshly, making her pelvis
hurt the following day. Deleon continued doing this for a couple of weeks,
sometimes with his bare penis, and occasionally asked Doe if she wanted him
to penetrate her. Doe would respond that she was not sure and indicated
that she did not know what was wrong or right. Deleon eventually stopped
engaging in this behavior with Doe at home.
Deleon then began driving Doe to her middle school in San Rafael.
During the drive Deleon would touch her leg while driving and would
sometimes ask Doe to take off her underwear so he could touch her vagina.
Doe would comply because Deleon would hit Doe if she did not do it. Deleon
would get upset with her if she did not comply and he had hit Doe with his
hand on her mouth, nose, legs, and arms previously while he was driving.
Deleon regularly took Doe to school because her mother stayed at home to
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take care of her brother who was recently born, and he regularly touched Doe
until December 2011.
During the beginning of 2012, when Doe was 12, Deleon bought a pack
of condoms, showed them to Doe, and Doe told him that she could hide them
for him. Doe’s mother found the condoms the next morning and Deleon got
upset at Doe. On the way to school that morning, Deleon hit Doe and told her
that he was going to take her virginity. Deleon drove her to a workshop
where he held church services as a pastor and told Doe to lay down on a piece
of plywood, take off her underwear, and lift up her dress. Doe did as she was
told and Deleon penetrated Doe’s vagina. Doe stated that she was in a lot of
pain but Deleon told her not to scream. After Deleon completed having
intercourse with his 12 year-old daughter, Doe could not get up and Deleon
had to help her to the car. Doe was unable to go to school that day because
she was bleeding.
Approximately a week later, Deleon had sex with Doe again. Doe
explained that they would leave their house early in the morning, before
school, so they had time to stop by the workshop where Deleon would
penetrate her or have Doe masturbate him with her hands. Doe recalled that
this occurred two to three times a week. In 2013, Deleon’s church moved to
San Rafael, and the same abuse continued there in the church lobby or his
office.
When asked whether Doe ever said no or tried to resist, she explained
that she did not know she could say no. She stated that she was scared
during those times at the workshop because anytime she hesitated Deleon
would tell her that she could not say anything because he would go to jail and
her siblings would be placed in foster care and Doe would be deported back to
Guatemala because she did not have any immigration status. Deleon also
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mentioned that he was the only member of the family working and
supporting the family and that Doe’s mother could not support her because
she was not working. Because of this, Doe would give in to Deleon’s demands
so that she did not hurt her family or end up back in Guatemala.
In 2014, Doe found out she was pregnant. Initially, Deleon was very
happy that Doe was pregnant. The next day, however, Deleon was very upset
at Doe and told her to get rid of the baby right away. On February 3, 2014,
Doe had an abortion and Deleon dropped her off and picked her up after the
procedure. Doe never informed her mother that she was pregnant because it
was a secret between her and Deleon. Deleon told Doe that they had to have
each other’s back and whatever happens, she could tell him and he would
always be there for her.
When asked whether Doe believed the relationship with Deleon was
inappropriate, she responded that she did not know it was inappropriate.
Doe thought Deleon was her boyfriend, and he told her she was his girlfriend.
Deleon and Doe continued to have sex approximately one or two weeks
after the abortion, when Doe was 14 years old. At that point they continued
to have sex two to three times a week and this continued until Doe was 21
years old.
In February 2022, Deleon was charged by information with five felony
counts: Lewd act upon a child under the age of fourteen on or about
December 28, 2010, to December 28, 2011 (§ 288, subd. (a); count 1);
attempted aggravated assault of a child on or about December 28, 2010, to
December 28, 2012 (§ 664/269 subd. (a)(1); count 2); Aggravated sexual
assault of a child on or about December 28, 2010, to December 28, 2012
(§ 269, subd. (a)(1); count 3); Aggravated sexual assault of a child on or about
December 28, 2010, to December 28, 2013 (§ 269, subd. (a)(1); count 4); and
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rape on or about December 28, 2013, to December 28, 2016 (§ 261,
subd. (a)(1).) The information also alleged various aggravating factors.
After the prosecution rested, Deleon filed a motion for judgment of
acquittal under section 1118.1. The trial court found sufficient evidence had
been presented to sustain a conviction for every count in the information and
denied Deleon’s motion.
The jury found Deleon guilty on all counts. The trial court found all
aggravating factors true and sentenced Deleon to a total aggregate sentence
of 22 years plus 30 years to life consisting of 15 years to life for both counts 3
and 4, an upper term of 9 years for count two as the principal term, 2 years
for count 1 as one third the middle term, and an upper term of 11 years for
count 5.
DISCUSSION
A. Section 1118.1
“ ‘The standard applied by a trial court in ruling upon a motion for
judgment of acquittal pursuant to section 1118.1 is the same as the standard
applied by an appellate court in reviewing the sufficiency of the evidence to
support a conviction, that is, “whether from the evidence, including all
reasonable inferences to be drawn therefrom, there is any substantial
evidence of the existence of each element of the offense charged.” ’ [Citation.]
‘The purpose of a motion under section 1118.1 is to weed out as soon as
possible those few instances in which the prosecution fails to make even a
prima facie case.’ [Citations.] The question ‘is simply whether the
prosecution has presented sufficient evidence to present the matter to the
jury for its determination.’ [Citation.] The sufficiency of the evidence is
tested at the point the motion is made. [Citations.] The question is one of
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law, subject to independent review.” (People v. Stevens (2007) 41 Cal.4th 182,
200.)
Deleon argues the trial court erred when it denied his section 1118.1
motion for two reasons. First, as to count 5 (forcible rape), he alleges there
was no evidence the sexual intercourse was not consensual and done against
Doe’s will by means of duress or violence during the specified time period.
Second, as to counts 3 and 4 (aggravated sexual assault of a child), he alleges
that Doe’s generic testimony “failed to establish what act occurred when”
such that the jury likely “based their multiple convictions on the same
evidence” because they alleged the same offense with overlapping time
periods. We address each contention in turn.
1. Count 5 (Forcible Rape)
Section 261, subdivision (a)(2) provides that “[r]ape is an act of sexual
intercourse” “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.” Duress is further defined as “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 the
victim’s relationship to the defendant, are factors to consider in appraising
the existence of duress.” (§ 261, subd. (b)(1).)
Deleon argues that the evidence failed to establish that the sexual
intercourse was accomplished against Doe’s will because there was no
violence or duress during the time frame alleged for count 5, from December
28, 2013, to December 28, 2016. Specifically, Deleon argues that Doe’s
specific testimony related to conduct and events that occurred before
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December 28, 2013, and suggests that Doe’s belief that he was her boyfriend
undermines a finding of ongoing duress. We disagree.
First, we note that Deleon does not contest that duress was present
when he first began to sexually abuse Doe. There is substantial evidence to
support a finding of duress when Deleon first had sex with Doe in the
beginning of 2012. Doe had just immigrated into the United States from
Guatemala. She was only 12 years old. Deleon was in a position of authority
as Doe’s father and because he was the pastor in their church. “When the
victim is young and is molested by her father in the family home, duress will
be present in all but the rarest cases.” (People v. Thomas (2017) 15
Cal.App.5th 1063, 1072–1073.) Deleon was upset at Doe and hit her before
he took her virginity. Doe explained that she was scared during the abuse at
the workshop because Deleon would tell her that she could not say anything
because he would go to jail and her siblings would be placed in foster care
and Doe would be deported back to Guatemala. (See People v. Cochran
(2002) 103 Cal.App.4th 8, 15 [“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.”], disapproved on
another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
The fact that Doe testified that she believed Deleon was her boyfriend
does not negate a finding of duress. (People v. Thomas, supra, 15 Cal.App.5th
at p. 1072 [“The fact that the victim testifies the defendant did not use force
or threats does not preclude a finding of duress”].) Deleon clearly overcame
Doe’s will when he began having sex with her. Doe did not enter a sexual
relationship with Deleon willingly. Deleon groomed Doe by periodically
increasing the severity of his sexual assaults, urging Doe to keep his behavior
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a secret, and physically intimidating her on occasion. Deleon’s decade of
sexual encounters with his daughter was facilitated through a foundation of
duress. Whether Doe believed she was in a loving and consensual
relationship with her father after years of sexual abuse is irrelevant. (People
v. Soto, supra, 51 Cal.4th 229, 246 [“duress is measured by a purely objective
standard,” focusing “on the defendant’s wrongful act, not the victim’s
response to it”].) Where, as here, the sexual abuse was initiated under duress
when Doe was 11 years old and continued uninterrupted for years, the
evidence of prior duress supports a reasonable inference of the existence of
duress during the time frame alleged in count 5. Therefore, we find there
was substantial evidence to support a guilty verdict as to count 5.
2. Counts 3 & 4 (Aggravated Sexual Assault of a Child)
Section 269, subdivision (a)(1) provides that any person who commits
rape, in violation of section 261, subdivision (a)(2) or (a)(6), upon a child who
is under the age of 14 and seven or more years younger than the person is
guilty of aggravated sexual assault of a child.
Deleon argues that Doe’s generic testimony was not sufficient to
differentiate between separate offenses where the overlapping time frames in
counts 3 and 4 “make it impossible to determine whether the jury convicted
appellant of the same conduct twice.” We are not persuaded.
In People v. Jones (1990) 51 Cal.3d 294, our supreme court addressed
whether “generic” testimony of a victim may be sufficient to sustain a
conviction for child molestation. Jones held that “generic” testimony
regarding multiple molestations over a certain time period, even if lacking in
details as to the specific dates, times, places, or circumstances, is sufficient to
support a conviction. (Id. at pp. 315–316.) Jones explains that “the
particular details surrounding a child molestation charge are not elements of
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the offense and are unnecessary to sustain a conviction.” (Ibid.) Rather, to
sustain a conviction, there must be evidence describing (1) “the kind of act or
acts committed with sufficient specificity”; (2) “the number of acts committed
with sufficient certainty to support each of the counts alleged”; and (3) “the
general time period in which these acts occurred . . . .” (Ibid., italics omitted.)
“[G]eneric testimony (e.g., an act of intercourse ‘once a month for three years')
outlines a series of specific, albeit undifferentiated, incidents, each of which
amounts to a separate offense, and each of which could support a separate
criminal sanction.” (Id. at p. 314.)
Here, the information alleged two violations of section 269, subdivision
(a)(1), the first between December 28, 2010, to December 28, 2012, and the
second between December 28, 2010, and December 28, 2013. These time
periods cover the time frame from when Doe was 11 to 12, and when Doe was
11 to 13 years old, respectively. Doe testified that Deleon first had sex with
her in the beginning of 2012. She described that it occurred in the workshop
after her mother discovered the box of condoms she was hiding. Doe specified
that Deleon put a piece of plywood on the ground, told her to lift her dress
and take off her panties and then penetrated her vagina. Doe then testified
that Deleon continued to have sex with her two to three times a week after
this first incident. Doe also described that Deleon’s church moved to San
Rafael in 2013, and that the abuse continued unabated at the new church.
Based on this testimony, we find there was sufficient evidence to
support a finding as to both counts of aggravated sexual assault of a child.
Doe testified to the kind of act committed (vaginal penetration), the number
of acts committed (two to three times a week), and the general time period
the acts were committed (in the workshop during 2012, and in the new
church during 2013 and beyond).
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Moreover, Doe’s testimony regarding the first act of intercourse
included specific details of the event. By itself it is sufficient to sustain count
3 because the event occurred in early 2012—within the time frame alleged in
that count. Doe’s testimony of sexual intercourse with Deleon inside the new
church, when Deleon’s church moved, is sufficient to support the second count
of aggravated sexual assault of a child because it occurred in 2013, within the
time period in count 4 but after the time period described in count 3. Based
on Doe’s testimony, there was substantial evidence for the jury to find there
were at least two distinct acts of aggravated sexual assault of a child, one
between December 2010 and December 2012 and another between December
2010 and December 2013.2
B. Section 654
Lastly, Deleon argues the trial court erred by failing to stay his
punishment as to count 4 under section 654 because substantial evidence did
not support a finding that counts 3 and 4 were based on separate conduct or
acts. We disagree.
“An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no
case shall the act or omission be punished under more than one provision.”
(§ 654, subd. (a).) “By its plain language section 654 does not bar multiple
punishment for multiple violations of the same criminal statute,” it “applies
2 Deleon notes that Doe did not arrive in the United States until June
2011, such that there is no evidence any of the acts alleged in counts 1 to 4,
which were alleged to have occurred beginning in December 2010, could have
been committed before that time. That the time frames alleged in counts 1 to
4 included time when Doe was not in the country is inconsequential. Doe’s
testimony was sufficient for the jury to find that the acts alleged in counts 1
to 4 occurred within the time frames alleged.
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to an act that is punishable in different ways by different provisions of law.”
(People v. Correa (2012) 54 Cal.4th 331, 334, 337.)
“Whether a defendant may be subjected to multiple punishment under
section 654 requires a two-step inquiry, because the statutory reference to an
‘act or omission’ may include not only a discrete physical act but also a course
of conduct encompassing several acts pursued with a single objective.
[Citations.] We first consider if the different crimes were completed by a
‘single physical act.’ [Citation.] If so, the defendant may not be punished
more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents
and objectives. [Citations.] At step one, courts examine the facts of the case
to determine whether multiple convictions are based upon a single physical
act. [Citation.] When those facts are undisputed . . . the application of
section 654 raises a question of law we review de novo.” (People v. Corpening
(2016) 2 Cal.5th 307, 311–312.) “We review any factual findings underlying
the trial court’s ruling for substantial evidence.” (People v. Washington
(2021) 61 Cal.App.5th 776, 795.)
Here, Deleon was convicted and punished for violating the same statute
in counts 3 and 4. As we determined above, each count was a separate
criminal offense and was supported by substantial evidence. Section 654 is
inapplicable because there were multiple acts that were punished under the
same provision of law. Therefore, we find the trial court did not err in
imposing a consecutive sentence as to Deleon’s convictions on counts 3 and 4.
DISPOSITION
The judgment is affirmed.
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_________________________
Sweet, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Streeter, J.
* Judge of the Superior Court of California, County of Marin, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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