P. v.
Moses

 

 

 

 

 

 

 

 

Filed 7/1/13 
P. v. Moses 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NOT TO
BE PUBLISHED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 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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE DISTRICT

(Yolo)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   BENNIE DALE MOSES, JR.,                           Defendant and Appellant.

C068289   (Super. Ct. No. 093273)

 

            Convicted of 62 sex crimes against
his daughter and sentenced to the better part of a millennium in prison,
defendant Bennie Dale Moses, Jr., appeals contending:  (1) the trial court erred in denying his new
trial motion without holding an evidentiary
hearing; (2) none of the convictions for forcible sex crimes are supported
by substantial evidence; (3) the prosecution of eight charges of unlawful
sexual intercourse with a minor (i.e., statutory rape) was barred by the href="http://www.mcmillanlaw.com/">statute of limitations; and (4) two
restitution fines must be reduced from $12,400 to $10,000 each.  Defendant also asks us to review the
transcript of an in camera Pitchesshref="#_ftn1" name="_ftnref1" title="">[1]> hearing
for abuse of discretion. 

            On review, we find no error in the
denial of the new trial motion and no abuse of discretion in the >Pitchess hearing; however, we conclude
that all of defendant’s convictions for forcible sex crimes based on acts that
occurred before the victim was 18 must be reversed for lack of substantial
evidence of duress.  We also conclude
that the eight charges of unlawful sexual intercourse with a minor must be dismissed
because prosecution of those charges was barred by the statute of
limitations.  Finally, we agree that the
two restitution fines must be reduced to $10,000 each.  Accordingly, we will reverse some of
defendant’s convictions, dismiss some of the charges, affirm the remainder of
his convictions, and remand for resentencing.

FACTUAL AND PROCEDURAL
BACKGROUND

            The victim was born in May
1988.  She began living with defendant
when she was nine years old.  Before
that, she lived with her paternal grandmother. 


            Defendant first had sexual
intercourse with the victim when she was 12 years old.  He had sex with her once or twice, then
stopped when they moved in with his girlfriend for a few months around the time
the victim turned 13.  After they moved
back out on their own, however, defendant began having sex with her almost
every day.  By the time the victim was
15, defendant was also having oral sex with her on a weekly basis.

            When the victim was 17, a woman whom
defendant later married (Amber), moved in with them.  At that time, defendant stopped having sex
with the victim regularly, but they did have sex sometimes when Amber was
gone.  This occurred more than twice a
year. 

            In June 2009, when the victim was 21
years old, she and defendant moved into a motel in West Sacramento.  Defendant was still married to Amber, but
Amber was living elsewhere.  While they
were staying at the motel, defendant had sexual intercourse with the victim
every night and had oral sex with her once or twice.

            In July 2009, the victim told a
friend (Hakeem) that defendant was making her have sex with him.  Hakeem arranged to meet her after work, and
when she went to meet him, the police were there.  The victim confirmed to the police what she
had told Hakeem.  

            Defendant was charged with 69 sex
crimes against the victim between the victim’s 12th birthday (in May 2000) and
July 2009.  Included were numerous
charges of aggravated sexual assault (i.e., forcible rape) of a child, forcible
rape, and forcible oral copulation.  (We will
refer to these crimes jointly as the forcible sex crimes or charges.)  Also included were eight charges of unlawful
sexual intercourse with a minor (i.e., statutory rape).  The information also included sentencing
allegations under the three strikes law based on 12 prior serious felony
convictions. 

            The People’s theory at trial in
support of the forcible sex charges was that defendant accomplished all of the
sex acts with the victim by means of duress, “because it started when [the
victim] was 12 years old and she didn’t know any better.  And . . . because it was her dad [who]
was making her do it.”href="#_ftn2"
name="_ftnref2" title="">[2] 

            At trial, the prosecution offered
testimony from West Sacramento Police Officer Daniel Bowers that he took
defendant to the hospital for a sexual assault kit.  Officer Bowers testified that while they were
together, defendant told the officer that he (defendant) “should have said no”
to having sex with the victim.  The
prosecution also offered into evidence a video recording of a police interview
with defendant in which he admitted having sex with the victim when “[s]he was
grown.” 

            The jury found defendant not guilty
of five charges and failed to reach a verdict on two others, but found him
guilty of the remaining 62 charges, including 35 forcible sex charges and all
eight counts of unlawful sexual intercourse with a minor.  The trial court found the three strikes
sentencing allegations true and sentenced defendant to prison for an aggregate
determinate term of 220 years and an aggregate indeterminate term of 610 years
to life.  The court also imposed a
restitution fine of $12,400 and a parole violation fine in the same
amount. 

            Defendant timely appealed. 

DISCUSSION

I

>Pitchess

            Before trial, defendant filed a >Pitchess motion for discovery of information
pertaining to Officer Bowers.  After
conducting an in camera hearing, the trial court found there were “no
discoverable materials” in the police department’s personnel records pertaining
to Officer Bowers and consequently denied the motion. 

            On appeal, defendant asks this court
to review the sealed transcript of the in camera hearing and “determine whether
the superior court abused its discretion in refusing to disclose pertinent
information in the officer’s personnel files.” 
Having reviewed the transcript, we find no abuse of discretion.>

II

>New Trial Motion

            After the verdicts were read and
recorded, defense counsel spoke with
some of the jurors outside the courtroom. 
According to counsel, one of the jurors told her that she (the juror)
had asked her husband whether he would ever admit to sleeping with his daughter
if he had not done so, and her husband told her he “would never say he had
slept with his daughter if it wasn’t true.” 
Another attorney in the public defender’s office corroborated that the
juror made this statement. 

            Defendant subsequently moved for a
new trial on the ground of jury misconduct. 
In support of that motion, defense counsel and her colleague submitted
declarations attesting to what the juror had said; no declaration from the
juror herself was offered. 

            The People opposed the new trial
motion, arguing that “[a]ny juror misconduct in this case was not prejudicial”
“[g]iven the strength of the People’s case presented at trial and the minor
impact any misconduct may have had on the verdict.” 

            At the hearing on the motion,
defense counsel argued that there was “a presumption of prejudice here and . .
. the Court would need to have a hearing and have the jurors come in to show
that, in fact, there wasn’t any prejudice, it didn’t affect the
deliberation.” 

            The trial court initially noted that
“[p]rocedurally the two declarations contain hearsay information” and “[t]he
California Supreme Court has said that hearsay information does not constitute
competent evidence of juror misconduct.” 
Without denying the motion on that basis, however, the court observed
that the “kind of conversation [on which the motion was based] held outside the
jury room with someone who was not a juror constitutes misconduct.”  Moving to the issue of prejudice, the court
explained that while the evidence of defendant’s guilt was “extremely strong,”
the court could not “agree with the People that a finding that the strength of
the People’s case is very strong . . . in and of itself rebut[s] the
presumption of prejudice.”  The court
then went on to consider “whether the information provided to the juror was
inherently and substantially likely to have resulted in undue juror influence,”
deciding that “the conclusion that someone would not confess to raping his
daughter; that is, breaking that taboo unless it were actually true is really
an obvious and common sense conclusion when one looks at the taboo itself.  [¶]  It
doesn’t require any special expertise to come to that conclusion.  It is, in fact, the kind of common experience
of life normally used by jurors in coming to the verdicts that we ask them to
address.  [¶]  So I conclude then that there is, in fact, no
substantial likelihood that the conversation between [the juror] and her
husband undermined or prejudiced the jury’s verdict in this particular case,
and for those reasons I would deny the defendant’s request for a new
trial.” 

            On appeal, defendant contends the
trial court erred in denying his new trial motion without conducting an
evidentiary hearing.  He first contends
that “since the court was not satisfied that the declarations provided
competent evidence of misconduct, . . . the proper next step was to set a hearing
and to hear the testimony of the jurors in order to establish whether the
claimed conversation between the juror and her husband actually occurred,”
among other things.  As we have
explained, however, the court did not deny the new trial motion on the basis
that it was supported only by hearsay evidence. 
Instead, the court decided there was no substantial likelihood that the
claimed misconduct prejudiced defendant.

            Defendant suggests that it was
nonetheless an abuse of discretion for the trial court to refuse to conduct an
evidentiary hearing “to determine the precise nature and true impact of the
misconduct.”  We disagree.

            “The trial court has the discretion
to conduct an evidentiary hearing to determine the truth or falsity of
allegations of jury misconduct, and to permit the parties to call jurors to
testify at such a hearing. 
[Citation.]   Defendant is not,
however, entitled to an evidentiary hearing as a matter of right.  Such a hearing should be held only when the
court concludes an evidentiary hearing is ‘necessary to resolve material,
disputed issues of fact.’ 
[Citation.]  ‘The hearing should
not be used as a “fishing expedition” to search for possible misconduct, but
should be held only when the defense has come forward with evidence
demonstrating a strong possibility that prejudicial misconduct has
occurred.  Even upon such a showing, an
evidentiary hearing will generally be unnecessary unless the parties’ evidence
presents a material conflict that can only be resolved at such a hearing.’ ”  (People
v. Avila (2006) 38 Cal.4th 491, 604.)

            Defendant does not identify any such
material conflict here.  He argues that
“the trial court erred in ruling on the motion for a new trial without first
conducting a hearing to determine the
degree to which this admitted act of misconduct may have infected the jury’s
verdicts.”  (Italics added.)  But he fails to explain how this could have been determined at an evidentiary hearing.

            Subdivision (a) of Evidence Code
section 1150 provides that “[u]pon an inquiry as to the validity of a verdict,
any otherwise admissible evidence may be received as to statements made, or
conduct, conditions, or events occurring, either within or without the jury
room, of such a character as is likely to have influenced the verdict
improperly,” but “[n]o evidence is admissible to show the effect of such
statement, conduct, condition, or event upon a juror either in influencing him
to assent to or dissent from the verdict or concerning the mental processes by
which it was determined.”  In light of
this prohibition, accepting the declarations from defense counsel and her
colleague as true (as the trial court did in determining the claimed misconduct
was not prejudicial), the only further pertinent information that might have
been elicited at an evidentiary hearing is whether the juror related her
conversation with her husband to any of the other jurors during
deliberations.  Even then, however, the
trial court’s decision on the issue of prejudice would have been the same.  This is so because the court concluded that
the answer provided by the juror’s husband was “really an obvious and common
sense conclusion” that “is, in fact, the kind of common experience of life
normally used by jurors in coming to the verdicts that we ask them to address.”  Thus, even if the juror shared her husband’s
answer with the other jurors, that fact would not have made a difference in the
trial court’s assessment of whether the misconduct was prejudicial to
defendant.

            Given that defendant fails to offer
any persuasive argument as to how an evidentiary hearing could have helped him
in light of the limitations of Evidence Code section 1150 and the trial court’s
determination of why the misconduct was not prejudicial, we conclude that he
has shown no abuse of discretion in the trial court’s denial of his new trial
motion without an evidentiary hearing.

III

>Sufficiency Of The Evidence

            Defendant contends “the counts
involving . . . duress should be reversed due to insufficiency of the
evidence.”  With the exception of the 18
convictions based on acts that occurred on or after the victim’s 18th birthday,
we agree.

            We begin our analysis with the
definition of duress.  For purposes of
the crime of forcible oral copulation (§ 288a, subd. (c)(2)), duress 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.’ â€  (>People v. Leal (2004) 33 Cal.4th 999,
1004, quoting People v. Pitmon (1985)
170 Cal.App.3d 38, 50; see id. at p.
51 [noting that the Pitmon definition
of duress has been applied to the crime of forcible oral copulation].)  The meaning of duress is essentially the same
for the crimes of rape (§ 261) and aggravated sexual assault of a child (§ 269,
subd. (a)(1)), except that a threat of hardship does not qualify as duress for
purposes of these crimes.href="#_ftn3"
name="_ftnref3" title="">[3]  (See § 261, subd. (b).)  “The total circumstances, including the age
of the victim, and [her] relationship to defendant are factors to be considered
in appraising the existence of duress.” 
(Pitmon, at p. 51.)

            Defendant contends “the rationale
behind the prosecution’s theory was that duress was inherent because [the
victim] was young and [defendant] was her father, but these factors do not, and
should not, automatically equate to duress.” 
In response, the People contend the jury’s implicit findings of duress
are supported by “[the victim’s] young age, complete dependence on [defendant],
her father, and [defendant]’s violent behavior towards [the victim].” 

            We agree with defendant that,
without more, the victim’s age and her relationship to defendant were not
enough to support a finding that defendant accomplished any of the sexual acts
with the victim by means of duress.  As
we have noted, duress requires a direct or implied threat.  Even when the threat is implied, it must be
implied by something the perpetrator says or does.  (Cf. People
v. Soto (2011) 51 Cal.4th 229, 246 [noting that “the legal definition of
duress is objective in nature” and “the focus must be on the defendant’s
wrongful act, not the victim’s response to it”].)  Thus, the victim’s age and her relationship
to the perpetrator will not, by themselves, support a finding of duress.

            Having said that, we nevertheless
agree with the People’s assertion that there was something more here on which
the jury could have reasonably premised a finding of duress.  But we disagree with the People that this additional
factor supports all of the forcible
sex crimes of which defendant was convicted.

            In support of the jury’s implicit
findings of duress, the People argue that “evidence supported the fact that
[the victim] was afraid of [defendant]. . . . 
[Defendant] would slap [the victim] when he found out she was with other
people and would threaten to kill her if she told anyone about him having sex
with her. . . .  [Defendant] set a rule
that [the victim] could not have a boyfriend. . . .  When [defendant] found out that [the victim]
had a boyfriend he would get angry and make her break it off. . . .  [Defendant] would threaten [the victim] that
he would ‘knock the crap out of her’ and that he would throw her off the balcony
if she ever brought a male to the motel.” 


            The victim’s fear of defendant will
not support a finding of duress unless there was also evidence that defendant
did something to cause that fear.  In >People v. Espinoza (2002) 95 Cal.App.4th
1287, the court explained that “[w]hile it was clear that [the victim] was
afraid of defendant, no evidence was introduced to show that this fear was
based on anything defendant had done other than to continue to molest her.  It would be circular reasoning to find that her
fear of molestation established that the molestation was accomplished by duress
based on an implied threat of molestation.” 
(Id. at p. 1321.)  Espinoza
illustrates the fact that fear alone does not establish duress; the fear must
be based on something the defendant does or says, i.e., an express or implied
threat by the defendant.

            As for the victim’s testimony that
it was “against the rules for [her] to have a boyfriend,” the People fail to
explain how that has any bearing on the issue of duress.  The victim did testify that defendant “would
be angry” if he thought she had a boyfriend, and in an interview with police
she said he hit her once when she did not go to work and instead was “seeing
this guy.”  She also told police that “he
threatened that if [she] ever had anyone, any male at the motel, he’d throw
[her] over the balcony.”  At no point,
however, did the victim ever tie defendant’s reaction to her having a boyfriend
to the sexual acts in which she and defendant engaged.  Thus, defendant’s anger, threats, and (at
least in one instance) physical violence against the victim related to her
having boyfriends cannot support the jury’s implicit findings of duress.

            There was testimony, however, that
does support at least some of the
forcible sex crimes of which defendant was convicted.  Specifically, the victim testified that
defendant told her “not to tell anyone, because he would go to jail.  And if he went to jail, then he would kill
[her].”  Such a direct threat of physical
violence is sufficient to support a finding of duress.  (See People
v. Cochran, supra, 103
Cal.App.4th at p. 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, particularly if the
child is young and the defendant is her parent”].)  The only problem with this evidence is one
the People ignore.  When asked how old
she was when defendant threatened to kill her if she told, the victim
responded, “I think, like, 17 or 18.” 
When asked if defendant told her “anything like that when [she was]
younger,” the victim responded, “No.” 

            Based on the victim’s uncertainty as
to when defendant threatened to kill her if she told, the most that can
reasonably be drawn from this evidence is that the threat was made by the time
the victim was 18 years old.  Thus, the
victim’s testimony provides substantial evidence from which the jury could have
reasonably found that defendant used duress to commit the forcible sex crimes
that occurred on or after her 18th birthday. 
But this testimony does not constitute substantial evidence of duress
with respect to any of the earlier forcible sex crimes because there is no
substantial evidence to show that the threat was made before any of those
earlier crimes.

            Based on the foregoing, we conclude
the evidence was sufficient to support the forcible sex crime convictions for
acts that occurred on or after the victim’s 18th birthday (counts 41, 43, 44, 46,
47, 49, 50, 52, 53, 55, 56, 58, 59, 61, 62, 65, 67, and 68), but the evidence
was not sufficient to support the forcible sex crime convictions for acts that
occurred before that date (counts 3, 5, 7, 9, 13, 17, 19, 21, 23, 25, 27, 29,
31, 33, 35, 37, and 39).  Accordingly, we
will reverse defendant’s convictions on the latter counts based on insufficient
evidence and remand the case for resentencing.

IV

>Statute Of Limitations

            Defendant contends his eight
convictions for unlawful sexual intercourse with a minor (counts 10, 14, 18,
22, 26, 30, 34, and 38) must be reversed because the prosecution of those
charges was barred by the statute of limitations.  The People agree. 

            At the outset, we note that
defendant is entitled to raise this argument for the first time on appeal.  (See People
v. Williams (1999) 21 Cal.4th 335, 338 [“a defendant may not inadvertently
forfeit the statute of limitations and be convicted of a time-barred charged
offense”; “if the charging document indicates on its face that the charge is
untimely, absent an express waiver, a defendant convicted of that charge may
raise the statute of limitations at any time”].)

            Penal Code section 801.1 extends the
limitations period for many sex crimes committed against minors until the
victim’s 28th birthday or for a period of 10 years after the commission of the
offense; however, Penal Code section 261.5 -- the statute that criminalizes
unlawful sexual intercourse with a minor -- is not listed in section
801.1.  Accordingly, the limitations
period for prosecuting a violation of Penal Code section 261.5 is three years
after commission of the offense.  (See
Pen. Code, §§ 261.5, 801.)

            All eight of the unlawful sexual
intercourse with a minor crimes here occurred before the victim’s 18th birthday
in May 2006.  Because the earliest the
prosecution commenced for purposes of the statute of limitations was July 23,
2009, when defendant was arraigned on the criminal complaint (see Pen. Code, §
804, subd. (c)), the prosecution of all those offenses was barred by the
three-year statute of limitations. 
Accordingly, we will reverse defendant’s eight convictions for unlawful
sexual intercourse with a minor and dismiss those charges.

V

>Restitution Fines

            Defendant contends the trial court
erred in ordering restitution fines of $12,400 each under Penal Code
sections 1202.4 and 1202.45 because the maximum restitution fine that may
be imposed under those statutes was $10,000. 
The People concede the error, and we accept the concession.  Under subdivision (b)(1) of Penal Code
section 1202.4, the restitution fine “shall be . . . not more than ten thousand
dollars ($10,000)” if the person is convicted of a felony.  Under Penal Code section 1202.45, the parole
revocation restitution fine must be “in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4.” 
On remand for resentencing, the trial court must reduce both fines
accordingly.

DISPOSITION

            Defendant’s convictions on counts 3,
5, 7, 9, 10, 13, 14, 17, 18, 19, 21, 22, 23, 25, 26, 27, 29, 30, 31, 33, 34,
35, 37, 38, and 39 are reversed, and counts 10, 14, 18, 22, 26, 30, 34, and 38
are dismissed.  The remainder of
defendant’s convictions are affirmed, and the case is remanded to the trial
court for resentencing.  At resentencing,
the court must reduce the restitution fines to an amount within the statutory
maximum of $10,000.

 

 

 

                                                                       ROBIE          , Acting P. J.

 

 

 

I concur:

 

 

 

          BUTZ           , J.

 

 

MURRAY,
J., Concurring and Dissenting.

            I respectfully disagree with the
majority’s conclusion that there is insufficient evidence of duress before the
victim’s 18th birthday.  Consequently, I
dissent as to that part of the majority opinion, but otherwise concur.

>I.  Standard of Review

            We review insufficient evidence
contentions under the substantial evidence standard.  We “must 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. 
[Citation.]  The appellate court
presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. 
[Citations.]”  (>People v. Kraft (2000)
23 Cal.4th 978, 1053-1054 (Kraft).)  Reversal on grounds of insufficiency of the
evidence is “unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ 
[Citation.]”  (>People v. Bolin (1998)
18 Cal.4th 297, 331 (Bolin),
italics added.)

>II.  Analysis

            The definition of duress includes an
implied threat of force or danger
which would cause a reasonable person of ordinary susceptibilities to acquiesce
in an act to which one otherwise would not have submitted.  (People v.
Leal (2004) 33 Cal.4th 999, 1004.) 
There need not be a direct threat. 
(People v. Cochran (2002)
103 Cal.App.4th 8, 14, disapproved on other grounds in >People v. Soto (2011)
51 Cal.4th 229, 248, fn. 12.) 
The totality of the circumstances must be considered in determining the
existence of duress.  (>People v. Pitmon (1985)
170 Cal.App.3d 38, 51, disapproved on other grounds in >Soto,
supra, 51 Cal.4th at
p. 248, fn. 12.)  Appellate
courts have identified a number of circumstances or factors to consider in
determining whether there is sufficient evidence of duress, including but not
limited to:  (1) the age of the
victim, (2) the age difference between the defendant and the victim,
(3) the size of the victim and the size of the defendant, (4) the
victim’s relationship to the defendant, and (5) the position of dominance
and authority of the defendant.  (>Cochran, supra, 103 Cal.App.4th at pp. 13-14; People v. Cardenas (1994) 21 Cal.App.4th 927, 940; >Pitmon, supra, 170 Cal.App.3d at p. 51.)

            Here, the majority correctly notes
that the victim’s age and her relationship to the defendant, without more, are
insufficient to establish duress.  (Maj.
opn., p. 9.)  And the majority
correctly notes that the victim’s fear of defendant is not enough to establish
duress.  Defendant must do or say
something to imply a threat of either force or
danger.  (Maj. opn., p. 10.)  I agree, but what a defendant must do or say
to imply a threat of either force or
danger will vary depending on the circumstances.  Here, defendant did and said plenty,
beginning with the first episode -- an incident that set the tone for
defendant’s subsequent acts of sexual exploitation of his daughter.  I conclude that a rational trier of fact
could have found implied force or
danger from the totality of the circumstances of the first act of sexual
intercourse when the victim was 12 years old. 

            The totality of the circumstances
that support the jury’s finding of duress during the first act of sexual
exploitation include:  (1) the
perpetrator was the victim’s biological father; (2) the victim was only 12
years old; (3) only the victim and defendant lived in the residence where
the sexual assault occurred -- thus, the victim was isolated and alone;
(4) the evidence suggests no prior grooming of the victim or prior milder
forms of molestation during the three years she lived with defendant -- thus,
this act of sexual intercourse came completely out of the blue; (5) the
victim knew her father had been incarcerated for most of her childhood up to
age nine when she began to live with him, a fact from which a reasonable jury
could infer the victim knew defendant was capable of doing bad things;
(6) defendant took off the bottom portion of the victim’s clothes prior to
the sexual assault; (7) defendant physically
got on top of the victim to commit the act; and (8) this scared the
12-year-old victim.href="#_ftn4"
name="_ftnref4" title="">[4] 

            Thereafter, defendant continued to
have sexual intercourse off and on with the victim up until his arrest in 2009,
including the period of time she was between the ages of 13 and 17, when they
were living alone and when, according to the victim, defendant had sexual
intercourse with her nearly every day. 
Physically getting on top of the victim, combined with all of the other
circumstances in play at the time of the initial sexual assault, is sufficient
evidence of duress.  And from the
circumstances of the initial sexual assault alone, I conclude a reasonable jury
could have inferred that duress flowed from and was present after that first
act. 

            Moreover, aside from the initial
act, from which it could be inferred that subsequent duress flowed, there was
additional evidence that should be added to the duress calculus.  The victim testified that when she was “younger,”
what defendant was doing made her feel “a little bit [bad],” and from that, she
had a thought that what defendant was doing was wrong, but he told her what he
was doing was not wrong.  Although not
expressly stated, a fair reading of the prosecutor’s direct examination
suggests that the word “younger” referred to the period of time before Amber
married defendant.href="#_ftn5"
name="_ftnref5" title="">[5] 

            Beyond getting on top of the victim
to commit the initial act of sexual intercourse, there is more evidence of >what defendant did that must be added to
the duress calculus.  The victim
testified defendant slapped her when she would upset him.  This scared her.  The victim testified that, on at least one
occasion, defendant became upset and slapped her when he found out she was with
other people.href="#_ftn6"
name="_ftnref6" title="">[6]  Defendant got mad at her for talking to other
males.  Although the prosecutor did not
expressly ask when this occurred, the victim testified that she had boyfriends
when she was in high school, and her testimony suggests this time frame was
included when defendant slapped her. 
Further, she testified that defendant did not hit her that often,
“especially as she was older.”  And in
her police interview she said, “[H]e just hasn’t really . . . been
hitting me as much as he did when I was like younger.”  From this, a reasonable jury could conclude
that most of the hitting occurred when the victim was younger than on the day
defendant’s conduct came to light. 

            The majority acknowledges the
victim’s testimony about her violations of defendant’s no-boyfriend rule, but
says, “[a]t no point . . . did the victim ever tie defendant’s
reaction to her having a boyfriend to the sexual acts in which she and
defendant engaged.  Thus, defendant’s
anger, threats, and (at least in one instance) physical violence against the
victim related to her having boyfriends cannot support the jury’s implicit
findings of duress.”  (Maj. opn.,
p 10.) 

            I disagree that the victim had to
expressly make the connection the majority requires before this evidence could
be considered by a reasonable jury in the duress calculus.  Determining whether there was a “tie” between
defendant’s conduct and the creation of duress was the jury’s job, and a jury
could infer, given the totality of the circumstances, that defendant’s demands
were not fatherly parenting, but rather inspired by his desire to sexually
dominate the victim.  Given defendant’s
ongoing sexual exploitation of the victim and an apparent desire to maintain
the sexual arrangement he created for himself, such an inference is quite
reasonable.  In short, the “tie” the
majority finds lacking is made by the circumstances and it is reasonable to
infer that the victim recognized the connection.

            There is more.  Occasionally, defendant would get mad at the
victim and yell or throw things.  The
victim testified she was afraid of defendant. 
She also testified that she found it easier “just to go along with”
defendant. 

            There is more still.  Defendant would also get mad at the victim if
she resisted having sex with him. 
Although he did not expressly threaten the victim, she was afraid
defendant would hurt her if she refused to have sexual intercourse with
him.  She thought defendant would hit her
if she resisted.  In her police
interview, the victim said, “[L]ike if I -- like if I do try to resist him, he
gets really upset and mad.”  “And I’m
just afraid so I just don’t really resist.” 
When the detective asked her how she resisted, the victim responded, “I
just say like I don’t wanna do this and then
like I can tell that he gets angry.  I
just do whatever he says.”  Although
the prosecutor did not ask the victim when this occurred, the victim did
testify that once defendant was with Amber, she no longer resisted defendant
when he wanted to have sex with her, and as the majority acknowledges, Amber
moved in with defendant and the victim when the victim was 17. 

            At one point, defendant told the
victim not to tell anyone because if she did, he would go to jail and he would
kill her.  The victim testified that
defendant made this specific threat when she was “like, 17 or 18.”  But she also testified that defendant told
her not to tell anyone what he had been doing to her when she was “younger” and
she always did what defendant told her to do. 
Given the direct examination questions on this point, “younger” meant
younger than 17 or 18.href="#_ftn7"
name="_ftnref7" title="">[7] 

            Furthermore, in her police
interview, the victim said that defendant told her never to say anything to
anyone, because he could possibly get in trouble.  The evidence shows that the victim knew
defendant had been incarcerated.  She
told the detective she did not want defendant to go to jail.  The detective did not ask the victim when
defendant said that to her, but the victim said that was a reason she “never
said anything to anyone.”href="#_ftn8"
name="_ftnref8" title="">[8]  A reasonable jury could infer that the
victim’s use of the word “never” in the context of the interview discussion
connoted that this reason for not telling anyone was one that was
longstanding.  

            The majority relies on >People v. Espinoza (2002)
95 Cal.App.4th 1287 (Espinoza),
for the proposition that the victim’s fear alone is insufficient to establish
duress; the defendant must do or say something to establish that fear.  I have no quarrel with that proposition, but >Espinoza and this case are
different.  In Espinoza, the defendant was convicted of forcible lewd acts on a
child (Pen. Code, § 288, subd. (b)) and attempted forcible rape (>id.,
§§ 261, subd. (a)(2), 664), as well as four counts of lewd acts
on a child (id., § 288,
subd. (a)) for earlier acts of molestation he perpetrated on his 12-year-old
developmentally challenged daughter.  (>Espinoza, supra, 95 Cal.App.4th at pp. 1291, 1292-1293.)  The Espinoza
court described the molestation upon which the forcible lewd acts and attempted
forcible rape charges were based as follows: 
“The fifth and final molestation occurred in the early morning hours
. . . .  On this occasion,
he not only rubbed [the victim’s] body but he also put his tongue in her mouth,
licked her vagina and tried to put his penis in her vagina.  [The victim] could feel ‘[s]omething going in
me.’  [The victim] ‘moved’ to prevent
defendant’s penis from going inside her.” 
(Espinoza, supra, at p. 1293, fn. omitted.)  The court said nothing else about how the
defendant attempted the intercourse other than that the defendant did nothing
to overcome the victim’s movement and he “did not grab, restrain or corner” the
victim as had happened in a case the Espinoza
court distinguished, People v.
Schultz (1992) 2 Cal.App.4th 999. 
(Espinoza, >supra, at p. 1320
& fn. 8.)  The victim in >Espinoza testified she was afraid
defendant would “ â€˜come and do something’ â€ if she reported the
molests, so she did not report what had happened.  (Id.
at p. 1293.)  The prosecution’s
theory was duress.  (Id. at p. 1319.)  The >Espinoza court reasoned that the
evidence did not establish an implied threat by defendant, because there was no
evidence the victim’s fear was the result of something the defendant did or
said.  (Id. at pp. 1320 & fn. 8, 1321.)

            Here, defendant did something during
the very first incident that implied force or danger given the other
circumstances; he physically got on top
of the victim.  That did not happen
in Espinoza, but as that court noted,
“ â€˜[p]hysical control can create “duress” without constituting
“force.” â€™ â€  (>Espinoza, supra, 95 Cal.App.4th at p. 1319.)  When a biological father, whom a
12-year-old girl relies upon for support, comes into her bedroom while the two
of them are the only people in the residence, takes off her clothes, and then >physically gets on top of her, what is
she to do?  Where is she to go?  What is she to think?  I conclude that a reasonable jury could find
the act of getting on top of the victim, in these circumstances, committed
by a person the victim knew had been incarcerated, was sufficient to constitute
an implied threat of force or
danger.  To be sure, our review is
hampered by the failure of the prosecutor to elicit testimony concerning the
defendant’s height and weight and the victim’s height and weight when the
victim was 12 years old.  Nevertheless,
reversal on grounds of insufficiency of evidence is “unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence’ â€ (Bolin,> supra, 18 Cal.4th at p. 331), and we must presume the existence
of every fact the jury could reasonably deduce from the evidence (>Kraft, supra, 23 Cal.4th at p. 1053).  I conclude that there is substantial evidence
in the record supporting the jury’s finding of duress for the first sexual
assault.  Further, I conclude that the
evidence supports the inference that the original duress carried over
to subsequent acts.  

            Moreover, as outlined above,
defendant did much more.  Defendant’s
additional conduct includes: 
(1) telling the victim what he was doing was not wrong, but also
telling her not to tell anyone; (2) telling the victim that he could
possibly get in trouble if she told anyone what he had been doing;
(3) throwing things and yelling at the victim when he was angry with
her; (4) hitting her, but more when she was younger; (5) preventing
the victim from having boyfriends, a tactic from which it may be inferred
defendant sought to maintain his sexual dominance over the victim;
(6) getting mad and slapping the victim when she violated his no-boyfriend
rule; and (7) expressing or conveying anger when the victim resisted
having sexual intercourse with him.

III.  Conclusion

            Looking at the evidence in a light
most favorable for the prosecution, keeping in mind that we must “presume[] in
support of the judgment the existence of every fact the jury could reasonably
deduce from the evidence” (Kraft, >supra, 23 Cal.4th at p. 1054),
and reverse only when under “no hypothesis whatever is there substantial
evidence to support [the conviction]” (Bolin,> supra, 18 Cal.4th at p. 331), I respectfully disagree with the
majority’s conclusion that there was insufficient
evidence to support defendant’s convictions on all of the forcible sex crimes
counts.  I concur in all other respects.

 

                                                                                                        MURRAY                      ,
J.