Filed 10/6/26 P. v. Duran CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102369
Plaintiff and Respondent,
(Super. Ct. No. 21FE002364)
v.
EMILIO DURAN, JR.,
Defendant and Appellant.
Defendant Emilio Duran, Jr., appeals his conviction by jury of 19 counts of sexual
abuse committed against his stepchildren L.D. and I.D. over the course of a few years.
His sole contention is that insufficient evidence supports his conviction for count 18 (a
violation of Pen. Code,1 § 288, subd. (b)); specifically, that Duran made L.D. orally
copulate him on the occasion he also performed oral sex on her. He asks we reverse this
conviction and bar his retrial under principles of double jeopardy. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth the facts in the light most favorable to the judgment in accordance
with our task on appellate review (People v. Nelson (2011) 51 Cal.4th 198, 210) and
focus on the circumstances pertinent to Duran’s appellate claim. In light of Duran’s
1 Undesignated statutory references are to the Penal Code.
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claim on appeal, we narrow our discussion of the facts to focus on the lone challenged
count before us.
I. L.D.’s Special Assault Forensic Evaluation Interview
Following her initial disclosure, L.D. was interviewed at the special assault
forensic evaluation (SAFE) center by a social worker named Sarah who was trained in
interviewing child sexual assault victims. L.D explained she was there “because my
stepdad did bad things to me.” Duran first touched her “in a way that wasn’t okay” when
she was eight years old.
One of the acts L.D. described was that Duran would “take off his pants and make
[her] suck on his pee-pee.” She stated, “he used to do it the most in the garage” and that
it had happened more than once.
L.D. described a time in the garage when she was nine years old and Duran sucked on
her “private spot” for a few minutes; he then made her suck on his penis for a few
minutes until white stuff came out. L.D. spit the white stuff on a cloth that Duran threw
away. Duran then told her to “go and watch TV” and that “he was making dinner at
3:00.”
II. The Charges and Trial Testimony
The People’s third amended information charged Duran with: lewd and lascivious
acts against I.D. when she was six to seven years old by use of force or threats (§ 288,
subd. (b)(1); counts 1-7) and lewd and lascivious acts against L.D. when she was eight to
nine years old by use of force or threats (§ 288, subd. (b)(1); counts 8-20). The acts
against I.D. were alleged to have occurred between September 1, 2020, and January 14,
2021, while the acts against L.D. occurred between January 19, 2019, and January 14,
2021. Relevant to Duran’s arguments on appeal, counts 11, 14, and 18 alleged penis to
mouth contact between Duran and L.D. Count 11 did not specify a location, while count
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14 occurred in a shower, and count 18 occurred in the garage.2 It was further alleged that
the offenses were committed against more than one victim (§ 1203.066, subd. (a)(7)), that
Duran had substantial sexual contact with victims under the age of 14 (id., subd. (a)(8)),
and that Duran used obscene matter depicting sexual conduct (id., subd. (a)(9)). Finally,
three aggravating sentencing factors were also alleged.
At trial, L.D. testified she had two siblings, I.D. and E.D. L.D. and I.D. shared the
same dad, while E.D.’s dad was Duran. L.D. first met Duran when she was really young,
she called him “dad,” and he would take care of her when her mom was at work. Duran
lived with his mother and had his bedroom in the garage. Duran began touching L.D.
inappropriately when she was eight years old. The first time it happened was in his room
in the garage.
Another time when she was still eight years old, Duran had pulled the bed out of a
convertible couch in the main garage area. L.D. sat on the bed, while Duran stood in
front of her and made her suck on his penis until white stuff came out. L.D. spit the
white stuff on a rag, and Duran threw it away.
In testimony used to support the allegation in count 18, L.D. described that she
recalled a time that Duran made her sit on his chest in a way that his mouth could reach
her “private area,” and he put his tongue inside her “private part.” L.D. denied that
Duran had her put her mouth on his private part during this incident. L.D. did not
remember any other times she had put her mouth on Duran’s penis.
When asked about her interview at the SAFE center, L.D. recalled speaking with
Sarah from the SAFE center when she was 10 years old but did not recall discussing
Duran putting his mouth on her private spot or that she then had to put her mouth on his
2 The People’s PowerPoint presentation from the clerk’s transcript further specified
that counts 17 and 18 occurred in the garage when Duran performed oral sex on L.D. and
then she performed oral sex on Duran.
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penis. At the time of trial, L.D. was 13 years old and telling the truth to the best of her
ability. She denied that anyone, including her mother, had told her what to say. L.D.
testified that she told the truth to investigating authorities, including during her SAFE
interview. Following her interview, L.D. tried not to think about what had happened.
L.D. reviewed her SAFE interview following the evening recess, and it refreshed
her recollection as to one event not relevant here, but L.D. still did not recall Duran
making her suck on his penis following his putting his mouth on her genitals. L.D.’s
SAFE interview was played for the jury and admitted into evidence.
Duran offered the testimony of Dr. Mitchell Eisen as an expert on “memory and
suggestibility and disclosure of sexual assaults.” Dr. Eisen explained that memory is
malleable and leading questions asked following the initial disclosure could alter a
victim’s memories. He also explained that repeating questions can signal that the
interviewer did not like the first answer and was seeking a different response. However,
at least one study had shown that children were “more firm on denial when it didn’t
happen to them.” Further, elementary aged children were less suggestable than younger
counterparts, and prior victims of sexual or physical abuse were more resistant to false
suggestion.
Duran also offered the testimony of a child protective services social worker who
had interviewed L.D. in March 2018 when L.D. was seven years old. L.D told the social
worker she had not been touched in an inappropriate way. In addition, Duran’s mother
testified that she never saw anything to suggest that Duran had touched L.D. or I.D.
inappropriately. However, she worked from 8:00 a.m. to 4:30 p.m. five days a week, and
her husband worked from 5:00 a.m. to 1:30 p.m.
III. The Verdicts and Sentencing
The jury found Duran not guilty of count 16 and guilty on the remaining counts.
The jury also found Duran committed the offenses against more than one victim. At a
bifurcated court trial, the court found true two aggravating circumstances (Cal. Rules of
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Court, rule 4.421(a)(8), (11).) The court also found true allegations that the offenses
were committed against multiple victims, that there was substantial sexual contact, and
that Duran used obscene matter depicting sexual conduct. (§ 1203.066, subd. (a)(7), (8),
(9).) The trial court sentenced Duran to eight years consecutive for each count for an
aggregate sentence of 152 years. Duran timely appealed.
DISCUSSION
Duran argues insufficient evidence supports his conviction on count 18.
In determining whether sufficient evidence supports a conviction, “ ‘we do not determine
the facts ourselves. Rather, we “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.” ’ ” (People v. Nelson, supra, 51 Cal.4th at
p. 210.) “ ‘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. Manibusan (2013) 58 Cal.4th 40, 87.)
Count 18 alleged that Duran violated section 288, subdivision (b)(1) through
“penis to mouth [contact] in the garage” when L.D. was 8 to 9 years old between
January 19, 2019, and January 14, 2021, with the intent to arouse and under the use of
force or threat of bodily harm. The People’s PowerPoint presentation from closing
argument further specified that counts 17 and 18 occurred in the garage when Duran
performed oral sex on L.D. and then she performed oral sex on Duran.
Consistent with these allegations, substantial evidence supports that Duran forced
L.D. to put his penis in her mouth on the same occasion that he performed oral sex on her
in the garage. During the SAFE interview that was played for the jury and admitted into
evidence, L.D. told the investigator about a time in garage when she was nine years old
when Duran sucked on her “private spot” for a few minutes and then made her suck on
his penis for a few minutes until white stuff came out. L.D. spit the white stuff on a cloth
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that Duran threw away. Duran then told her to “go and watch TV” and that “he was
making dinner at 3:00.” Duran has not shown this evidence was physically impossible or
inherently improbable (People v. Young (2005) 34 Cal.4th 1149, 1181), and thus, this
evidence standing alone is sufficient to support his conviction.
Duran argues that L.D.’s trial testimony points to only two instances of Duran
having L.D. perform oral copulation and that her statements in the SAFE interview were
not sufficiently clear and unambiguous to support Duran’s conviction in count 18. We
disagree.
First, we find L.D.’s statements in the SAFE interview about Duran performing
oral sex on her when she was nine years old and her then performing oral sex upon him
until white stuff came out of his penis before he made dinner sufficiently specific and
unambiguous to support his conviction.3
Second, Duran’s argument that the record only supports two instances of L.D.
performing oral sex upon him (once in the garage and once in the shower) is not well-
taken in light of the fact that L.D. estimated at the SAFE interview that she sucked
Duran’s penis five or more times.4 Nor do we find the other specified instance of L.D.
performing oral sex on Duran in the garage to be factually analogous. That incident
occurred when L.D. was eight years old and sitting on a bed from a convertible couch in
3 Duran’s attempt to create an inconsistency by highlighting that L.D. told Sarah he
sucked on her private spot, and L.D. denied she had “to do anything to his body that
time” fails because his having her suck his penis after he finished performing oral sex
upon her is not inconsistent with her not doing anything to his body while he was
performing the oral sex, and even if it was inconsistent, the inconsistency between that
statement and her later statement in response to an open-ended question of “and then
what” was for the jury to decide. (People v. Young, supra, 34 Cal.4th at p. 1181.)
4 Any suggestion that this evidence conflated other instances of abuse is
inconsistent with the evidence presented at trial that Duran touched her chest or private
area once or twice each week when she was eight and nine and that Duran had forced her
to perform oral sex on him “every so often, and I just thought it was normal at this point.”
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the garage while Duran stood in front of her. It ended when someone came to the garage
door and occurred before her second grade graduation. This incident is separate and
distinct from a second act of oral copulation in the garage that L.D. described in her
SAFE interview. Namely that while in the garage, Duran made L.D. sit on his chest
while he orally copulated her and then immediately thereafter forced her to orally
copulate him. This is sufficiently distinct that a jury could have reasonably credited
L.D.’s SAFE interview statements concerning the dual oral copulation incident,
notwithstanding that L.D. could not, at the time of her testimony, recall the incident.
Finally, that L.D. no longer recalled the dual oral copulation incident at the time of
trial does not establish that it did not happen.5 L.D. specifically recalled the incident
during her SAFE interview as recounted herein, and she testified at trial that she was
telling the truth at that interview. As we have indicated, that L.D. initially testified she
did not perform oral sex on Duran following his oral copulation of her, and that after
reviewing the SAFE interview, she still failed to remember this particular instance of
abuse, does not show a physical impossibility or inherent improbability. (See, e.g.,
People v. Ennis (2010) 190 Cal.App.4th 721, 725 [explaining that inherent improbability
is not highly implausible and must be “ ‘unbelievable per se’ ” without resort to inference
or deduction].) Rather, such a conflict or inconsistency in testimony, even from the same
witness, is resolved by the trier of fact. (People v. Young, supra, 34 Cal.4th at p. 1181;
People v. Koontz (1959) 171 Cal.App.2d 633, 634.) In convicting Duran of count 18, the
jury clearly credited L.D.’s SAFE interview statements concerning this instance of abuse.
5 In fact, L.D. tried to forget the abuse and did not recall many details from her
SAFE interview, including telling the investigator about Duran performing oral sex upon
her even though she recounted that particular instance of sexual abuse with greater
specificity at trial.
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We are not at liberty to reweigh this evidence. (People v. Friend (2009) 47 Cal.4th 1,
41.) Accordingly, we will affirm.
DISPOSITION
The judgment is affirmed.
/s/
EARL, P. J.
We concur:
/s/
HULL, J.
/s/
ROBIE, J.
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