P. v. Turner
Filed 6/21/12 P. v. Turner CA 1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A129225
(
Super.
Vincent Turner appeals from a
imposed after a jury found him guilty of multiple sex offenses. He contends there was insufficient evidence
to support convictions for forcible rape
and forcible oral copulation. In particular, he urges that the evidence was
insufficient to show that the sex he had with his victims – whom he had
kidnapped and was holding for ransom – was against their will. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An amended information charged Vincent Turner (Turner)
with eight offenses. Counts 1-3
pertained to victim Jane Doe 2:
kidnapping to extract financial gain (Pen. Code, § 209, subd. (a));
forcible rape (§ 261, subd. (a)(2)); and forcible oral copulation
(§ 288a, subd. (c)(2)).
name="_ftnref1" title="">[1] Counts 4-8 pertained to victim Jane Doe
1: pandering
by procuring a minor (§ 266i, subd. (a)(1));
(§ 236.1, subd. (c)); kidnapping
to extract financial gain (§ 209, subd. (a)); forcible rape
(§ 261, subd. (a)(2)); and attempted kidnapping to extract financial gain
on a second occasion (§ 209, subd. (a)).
As to the count 2 and count 7 rape charges, as well as
the count 3 oral copulation charge, it was alleged that the kidnapping
substantially increased the risk of harm to the victim, there were multiple
victims, and there were multiple victims on separate occasions. (§§ 667.61, subds. (d)(2), (e)(5),
667.6, subd. (d)). Also as to the count
2 rape charge, it was alleged that there were multiple offenses to a single
victim. (§ 667.6, subd. (c).)
Other enhancement allegations are not directly germane to this
appeal: in connection with the count 6
kidnapping charge, it was alleged that Turner caused bodily harm and exposed
his victim to a likelihood of death (§ 209, subd. (a)); as to the count 8
attempted kidnapping, it was asserted that Doe 1 suffered bodily harm and exposure
to death; and it was further alleged that Turner had three felony convictions
and two prior prison terms for purposes of section 667.5, subdivision (b).
The matter proceeded to a jury trial.
A.
Sixteen-year-old Doe 1 and seventeen-year old Doe 2
testified that Turner, a pimp, had kidnapped and raped them.
1. Turner’s
Abduction and Rape of Jane Doe 2
At 10:00 p.m. on April 7, 2009, Doe 2 was working International Boulevard as a prostitute, without a
pimp. She was approached by a woman she
did not know (Maria), who said a man in a car nearby wanted to pay her for
sex. At trial, Doe 2 identified the man
as Turner.
Doe 2 got into Turner’s car. Maria got in as well, while Turner claimed
that he wanted Maria to join them and give him oral sex. Turner then drove toward the freeway, telling
Doe 2: “You messed up. Do I look like a
person that would trick off his money?†– meaning that he was a pimp. Doe 2 became frightened.
Doe 2 pleaded with Turner to let her go. Turner refused and demanded $2,500 (or
“25-somethingâ€) in ransom. He said he
wanted to make her his “girl.†She
wanted to leave, but he said he would hurt her if she tried to get away.
Turner drove Doe 2 and Maria to his apartment in Stockton. He warned Doe 2 that she “bet’ not run†and
instructed Maria to watch her.
At one point, Maria went into another room while Turner
took Doe 2 into his bedroom. Turner said
he wanted Doe 2 to “run all his other [girls].â€
Doe2 replied that she had a boyfriend and was uncomfortable being there,
but she would “do anything just for [Turner] to let [her] go and take [her]
back to where [she] was.â€
Turner refused to let Doe 2 go unless her boyfriend or
other friends paid him the $2,500 ransom.
If they did not come up with the money, he would make Doe 2 his
girlfriend, or he would let all his “partners†“[r]un a train†on her (meaning
he would let them have sex with her), or she would “die.†He told her he was crazy and that he shot
someone in the face on the highway. He
was trying to scare her, Doe 2 determined, and she was indeed afraid.
Turner allowed Doe 2 to call her friends to try to raise
the money. At some point, Turner offered
to lower the ransom amount to $1,000 if Doe 2 had sex with him. Doe 2 testified: “I didn’t want to do it, but if this was
going to get me away from him, I didn’t really have no choice.â€
Because she “wanted to get away,†Doe 2 had sexual
intercourse with Turner that night. He
also kissed her all over her body and orally copulated her. Doe 2 thought, “Maybe he’ll let me go after I
complete his needs.â€
name="_ftnref2" title="">[2]
After Turner had intercourse with Doe 2, she moved from
the bed to the floor to sleep. She testified: “This is the guy that’s holding
me hostage. This is the guy that is forcing me to basically do something that I
don’t want to do, so why do I want to lay by somebody that’s doing all these
things?â€
The next day, Turner threatened Doe 2 that if she made
any moves, he would hurt her. On this or
another occasion, Turner threatened “that if [she] tried to make a move—he had
something by the door, and if [she] tried to make a move, he’ll hit [her] in
the face with that.â€
Turner later drove Doe 2 (and Maria) to 48th and International Boulevard in Oakland to get the ransom money
from Doe 2’s friends, or to pick up one of those friends, Arlene. When they got there, Doe 2 saw her boyfriend,
Arlene, and other friends including Doe 1 (whom she referred to as Coko) near a
taco truck.
When Turner stopped the car, Doe 2 jumped out, ran toward
her boyfriend, and hid inside the taco truck with Coko. Doe 2 did not see Arlene and assumed she got
into Turner’s car. Turner yelled for Doe
2 to come out or he would “light this whole place up,†meaning he would “shoot
up†the parking lot.
After about 10 minutes, Doe 2 and Coko ran out of the
taco truck and toward a doughnut shop.
Doe 2 saw police officers and, although afraid of the consequences of
“snitchin’,†approached them. Nervous
and scared, Doe 2 reported that Turner had raped her.
Officers Ernst and Bowling drove Doe 2 to Highland Hospital for a SART (sexual assault
response team) examination. Around 1:00
a.m.
on April 9, Doe 2 told a physician assistant and sexual assault examiner,
Dana Kelly, that Turner had raped her, rubbed the external part of her vagina,
and orally contacted her genitals. Doe 2
reported that he licked, kissed, bit and sucked various parts of her body. She also complained of vaginal bleeding.
Kelly examined Doe 2 and found blood at the opening of
the vagina, scatter lesions on the cervix, and fresh blood coming from the
lesions. There was swelling and redness
around the opening of the vagina and the inner lips of the vagina. Kelly determined that the source of the
vaginal bleeding was assault, consistent with the history given by Doe 2.
2.
Turner’s Abduction and Rape of
Jane Doe 1
In April 2009, Jane Doe 1 was using the alias Coko (or
Cocoa) and worked for a pimp as a prostitute in the area of International
Boulevard.
Doe 1 heard that Turner had kidnapped her friend, Doe
2. She understood that Turner wanted
ransom money. Doe 1 and friends Arlene,
A-1, Britton, and J formulated a plan to tell Turner they had the money and
would meet him at 48th and International Boulevard; they did not really have
the money, but one of them had a gun and they believed they might be able to
get her back.
Turner pulled up in his car, and Doe 1 saw Doe 2 and
another woman she did not recognize (Maria) were inside. When Turner stopped his car, Doe 2 jumped out
and ran with Doe 1 to a taco truck, where they hid. After about 10 minutes, they left the taco
truck and ran down the street. They
heard that Arlene had gotten into Turner’s car.
The next day, Doe 1 had purchased a soft drink from the
taco truck when she noticed Turner in his car nearby. Also in the car were
Arlene, Maria, and another girl (Angel).
Turner approached Doe 1, touched her shoulder and warned,
“We’re going to do this the easy way or the hard way.†Doe 1 became frightened and ran toward a
liquor store for help, leaving her drink behind. Turner threw the soft drink bottle at Doe 1,
hitting her in the back.
Doe 1 ran into the liquor store, hid behind the cash
register, and begged the clerk to call the police. She was “really scared.†The clerk, however, was a friend of Turner
and claimed his “phone didn’t work.â€
Turner grabbed Doe 1’s arm, pulled her out from behind
the counter, and walked her out of the store and put her into his car with
Arlene, Angel, and Maria. Turner warned
Doe 1 not to call the police and told her that Angel had a gun. He further warned Doe 1 not to try anything,
because he knew people all around the “dubs†and she would not get far. (The “dubs†refers to the area between 20th
and 29th Avenue around International Boulevard in Oakland.) Doe 1 was shaking with fear.
Later that day, Turner drove Doe 1, Maria, Angel, and
Arlene to various locations in Oakland and then dropped Angel off. Doe 1 was still scared.
Turner told Arlene to call her family to raise the ransom
money for her release. He also instructed Doe 1 to call her family to deliver a
$1,000 ransom. Doe 1 believed she “was
being kept†and could not leave.
Turner returned to Stockton with Doe 1, Maria, and
Arlene. Back at Turner’s apartment, Doe
1 told Turner that she wanted to leave.
Turner refused, claiming that he wanted her to help get Doe 2 back. Later Turner repeated that he would release
Doe 1 if her friends paid “like a thousand dollars.†Turner handed Doe 1 a phone to call her
mother, but her little brother answered.
Doe 1 hung up after about 5 minutes because her brother “just don’t even
know what’s going on.â€
Arlene advised Doe 1 to “play it off cool†and gain
Turner’s trust so he might let her go; Doe 1 decided to follow her advice.
That evening, Doe 1, Arlene, Maria and Turner were in
Turner’s bedroom. Arlene and Maria left
the room, leaving Turner and Doe 1 alone.
Doe 1 was not “scared†at that point, but she was “looking lost.†Turner told Doe 1 that she was there with him
to stay, and Doe 1 did not think she could leave.
Turner told Doe 1 she had smooth skin, touched her legs
and arms, and directed her to change into pajamas. Doe 1 changed in the bathroom.
When Doe 1 returned, Turner told her that she was “going
to sleep in the room with him tonight.â€
He grabbed her hand and her “clothes started coming off.†She did not know what to do. Turner took off her pajama pants, and she
removed her shirt, because “if this was going to go on he would trust
[her].†Doe 1 told Turner she was
uncomfortable, but he continued. Turner
took off his shirt revealing his “M.O.B.†tattoo. Turner had sexual intercourse with Doe
1.
The next day, Turner drove Doe 1, Arlene, and Maria to
his mother’s house in Stockton. Doe 1
told Turner’s mother, “I [want] to go home†and cried.
Eventually, Doe 1 tricked Turner into letting her call J,
telling him that J could be a new girl for him, when really Doe 1 wanted J to
help her escape. J agreed with Doe
1 that she would come out and get her.
Doe 1 told Turner that J wanted to be picked up in Oakland.
Turner drove Doe 1 and Maria back to Oakland, let Arlene
go, picked up J, and brought Doe 1, J, and Maria back to his apartment. At one point, Doe 1 saw Turner slap Maria
across her face.
Early the next day, Turner drove Doe 1, J, and Maria back
to 46th and International Boulevard in Oakland to work as prostitutes while he
watched over them. Doe 1 asked a
potential customer to use his phone, but he refused.
Later, Turner drove Doe 1, J, Maria, and a new girl he
picked up to visit several of his friends in Oakland and then drove the girls
back to his apartment in Stockton.
The following day, Turner drove Doe 1, J, Maria, and two
other girls to his mother’s house for Easter dinner. After they ate, Turner took Doe 1, J, and
Maria to Oakland, where Maria sold drugs “all night.â€
After sunrise, Turner took Doe 1, Maria, and J to a motel
room on International Boulevard. When Turner went to pay a phone bill, Doe 1
and J walked away to 46th and International Boulevard, where they saw their
friend Paul and two companions. Turner
pulled up in his car and got out. Paul
confronted Turner, and Turner left.
A day or two later, Doe 1 and J spotted Turner on 17th
and International Boulevard in Oakland. Turner got out of his car, yelled
something like, “Bitch I’m going to get you,†and chased Doe 1 with a pit
bull. Doe 1 ran to a motel and hid in
the bushes, while another man, driving Turner’s car, tried to run her
down. Doe 1 called a friend to pick her
up. Doe 1 testified that she did not
call the police because: “I have to live
in Oakland, and don’t nobody else have to stay in Oakland and go through the
things I have to go through, I don’t want to involve the police in anything and
put myself into danger.â€
B. Defense
Case
The only witness to testify on behalf of the defense was
Turner’s mother, Tamara Beamon. Beamon
testified that she saw Doe 1 and other girls at Easter dinner, and they did not
seem to be in distress; they appeared to be happy, laughing, and talking.
C.
Verdict and Judgment
The jury found Turner guilty of: two counts of kidnapping
to exact financial gain (counts 1 and 6); forcible rape of Doe 2 and Doe 1
(counts 2 and 7); forcible oral copulation of Doe 2 (count 3); pandering by
procuring Doe 1, a minor (count 4); and human trafficking of Doe 1, a minor
(count 5). As relevant here, the jury
found true the kidnapping and multiple victim allegations associated with the
count 2 rape, the multiple victim allegations as to the count 7 rape, and the
kidnapping allegation related to the count 3 oral copulation. The jury found Turner not guilty of attempted
kidnapping to exact financial gain (count 8).
The court struck the three prior conviction allegations
for sentencing purposes. Turner was then
sentenced to 48 years to life with the possibility of parole.
This appeal followed.
II. DISCUSSION
Turner contends:
(1) there was insufficient evidence
that he forcibly raped Doe 1 and Doe 2; and (2) there was insufficient evidence
that he orally copulated Doe 2.
A.
Turner argues that the evidence was insufficient to
convict him of the forcible rape of Doe 2 (count 2) and Doe 1 (count 7). He insists that his convictions for forcible
rape, as well as the associated kidnapping and multiple victims enhancements,
must therefore be reversed. We disagree.
1.
We review the whole record in the light most favorable to
the judgment, and presume in support of the judgment the existence of every
fact the jury could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d
557, 576-577; see also Jackson v. Virginia (1979) 443 U.S. 307,
317-320.) In essence, the question is
whether any rational trier of fact could find Turner guilty of the charge
beyond a reasonable doubt. (People v.
Barnes (1986) 42 Cal.3d 284, 303.)
The crime of forcible rape is defined in section 261,
subdivision (a)(2) as “an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator,†“[w]here 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.†(Italics added.)
The “gravamen of the crime of forcible rape is a sexual
penetration accomplished against the victim’s will†and without her
consent. (People v. Griffin (2004)
33 Cal.4th 1015, 1027 (Griffin), emphasis in original.) Thus, whether the defendant used physical
force to prevent the victim’s resistance or to facilitate sexual penetration is
not the issue; the issue is “simply whether defendant used force to accomplish
intercourse with [the victim] against her will, not whether the force he used
overcame [her] physical strength or ability to resist him.†(Id.
at pp. 1027-1028.) The court looks “to
the circumstances of the case, including the presence of verbal or nonverbal
threats, or the kind of force that might reasonably induce fear in the mind of
the victim, to ascertain sufficiency of the evidence of a conviction.†(Id.
at p. 1028.)
In the matter before us, the means by which Turner
perpetrated rape on Doe 1 and Doe 2 were duress
and fear, and substantial evidence of
either is sufficient to uphold the conviction.
“Duress†in this context 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.â€
(§ 261, subd. (b).) “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.†(Ibid.)
The element of “fear of immediate and unlawful bodily
injury†in the context of section 261, subdivision (a)(2) has subjective and
objective components. (People v.
Iniguez (1994) 7
Cal.4th 847, 856-857.) The subjective
component asks whether a victim genuinely had a fear of immediate and unlawful
bodily injury sufficient to induce her to submit to sexual intercourse against
her will. The objective component asks
whether the victim’s fear was reasonable under the circumstances, or, if
unreasonable, whether the perpetrator knew of the victim’s subjective fear and
took advantage of it. (
2.
Substantial evidence supported the finding that Turner’s
intercourse with Doe 2 was perpetrated by duress, in that Turner made direct
and implied threats of force, violence, danger, or retribution that reasonably
led Doe 2 to engage in the intercourse to which she otherwise would not have
submitted. After she got into Turner’s
car and asked to leave, Turner refused to let her go and threatened to hurt her
if she tried. He demanded a ransom for
her release and threatened that, if the ransom were not paid, he would force
her to be his “girlfriend,†he would let his partners “run a train†on her, or
she would “die.†He also told her he was
crazy and that he had shot someone in the face.
Furthermore, she had reason to believe he could carry out those threats: Turner, in his 30’s at the time, was about
twice the age and much larger than 16-year-old Doe 2, who was 4 feet 8 inches
tall and weighed 90 pounds.
While none of Turner’s threats expressly warned of
consequences if she did not consent to intercourse specifically, and none of
them occurred precisely when he was in the act, a reasonable inference from the
evidence is that, by the time of the intercourse, Turner’s threats had led Doe
2 to believe that she had to submit to his demands while he held her captive –
ultimately including the intercourse.
Indeed, Doe 2 testified that she told Turner she would “do anything†so
that he would let her go and not hurt her.
Doe 2 testified that she had sex with Turner because “she wanted to get
away†and he might let her go if she “complete[d] his needs.†She testified: “I didn’t want to do it, but if this was going
to get me away from him, I didn’t really have no choice.†And after the intercourse, she slept on the
floor rather than in the bed because, in her words: “This is the guy that’s holding me hostage.
This is the guy that is forcing me to basically do something that I don’t want
to do, so why do I want to lay by somebody that’s doing all these things?â€
Ample evidence supported the conclusion that Doe 2
acquiesced to intercourse with Turner, an act to which she otherwise would not
have submitted, as a result of Turner’s threats of force, violence, danger, or
retribution.
In addition, this same evidence was sufficient to give
rise to a reasonable inference that Doe 2 submitted to intercourse with Turner
out of fear, and that her fear was reasonable under the circumstances. Turner threatened to hurt Doe 2 physically,
he was twice her age and significantly larger, she was afraid of him, and he
refused to let her go except upon his own terms, leading her to be willing to
“do anything†to gain her freedom. A
logical inference is that her fear of Turner continued at the time they had
intercourse, and without such fear she would not have consented.
Substantial evidence supported the verdict on count 2.
3.
Substantial evidence also supported a finding that
Turner’s intercourse with Doe 1 was perpetrated by duress.
When Turner approached Doe 1 to kidnap her, he
threatened: “We’re going to do this the easy way or the hard way†– the
implication being that he would get her into his car and take her away, by
force if necessary. When she attempted
to get away, he hit her with a bottle, grabbed her by the arm, dragged her from
the store where she was hiding, and pushed her into his car. He warned her not to “try anything†because
“he knows people in the dubs, all around the dubs,†and Doe 1 “wouldn’t get
far.†Indeed, when Doe 1 had sought help
from the liquor store clerk, he refused.
After Turner kidnapped Doe 1, he threatened her with a gun. Doe 1 even witnessed Turner slapping Maria
across the face when he was irritated by a comment she made.
The reasonable inference is that, by the time of the
intercourse, Turner had communicated clearly to Doe 1 that she would have to
comply with his demands during her captivity, or face physical
consequences. Further, it was apparent
that Turner would back up those threats:
he was in his 30’s and over twice the age and larger than 15-year-old
Doe 1, who was 5 feet 4 inches tall.
In addition, a reasonable inference from the evidence was
that Doe 1 went along with the intercourse because he was holding her
captive. Turner refused to release Doe 1
unless someone paid a ransom. Arlene advised
Doe 1 that he might nevertheless let her go if she cooperated with him. Doe 1 testified that, although she was
uncomfortable after Turner announced that she was going to sleep with him, she
attempted to follow Arlene’s advice and cooperate. In other words, if Turner had not been
holding Doe 1 hostage, she would not have consented to the intercourse.
Given all of this evidence, it was not unreasonable for
the jury to conclude that Doe 1 acquiesced to intercourse to which she would
not otherwise have submitted, as a result of Turner’s direct and implied
threats of force, violence, danger, or retribution.
4.
Turner argues that he never specifically threatened Doe 1
or Doe 2 with force, violence, danger, or retribution if they did not have
intercourse with him.
name="_ftnref4" title="">[4] However, a trier of fact could reasonably conclude
that such direct threats at the time of the intercourse were unnecessary: by the time he pursued sex from them, he had
already made it abundantly clear that they would be physically harmed if they
disobeyed him.
Turner next points to Doe 1’s testimony that she took off
her own shirt, did not voice an objection or push Turner away, denied being
scared in the room alone with him, and did not know what would happen if she
had said no to him. None of this evidence,
however, precludes a finding of duress under the circumstances. Doe 1’s taking off her shirt, and not
voicing an objection or fighting back, is reasonably attributable to the
threats Turner had previously made and the context of her captivity. Although Doe 1 denied being afraid when she
was in the room with Turner, that was before he told her that she would be
sleeping in his room. Doe 1’s
uncertainty as to what Turner would do if she refused his advances does not
negate the conclusion that, whatever he would do, it would not be good. In short, Turner merely illustrates a
conflict in the evidence; it is not our role to reweigh the evidence, but to
determine whether there is substantial evidence from which the trier of fact
could conclude that Turner had committed the crime.
For reasons set forth ante,
substantial evidence supports the conclusion that Doe 1 ultimately consented to
intercourse because she wanted to placate Turner; and the reason she wanted to
placate Turner was because he had kidnapped her, threatened her, and refused to
let her go unless her friends or family paid a ransom. To suggest that a trier of fact could not
infer that the intercourse was against her will under these circumstances is
simply untenable.
Turner further argues that the “only way these
convictions could be sustained is on a theory that any sex that a kidnap victim
engages in with her captor is automatically a rape or forcible sex simply
because the victim is being detained against her will.†Not so.
Kidnapping may not automatically
make all ensuing sexual intercourse between the kidnapper and his captive
against the will of the captive. But the
fact that the perpetrator kidnapped the victim may obviously be considered in
determining whether the ensuing intercourse – between kidnapper and victim
while the victim was still captive and being held for ransom – might have been
against her will.
Lastly, Turner acknowledges that he “told both Jane Does
that he would not let them go home unless their friends and relatives paid a
ransom, participated in a robbery, or worked for him as prostitutes for an
indeterminate time.†He argues, however,
that this was merely a threat of hardship, which is insufficient for duress
under section 261, subdivision (a). (See
People v. Valentine (2001) 93 Cal.App.4th 1241, 1248, as limited in
1007-1010 (Leal).) However, we do not rely on this evidence as a
threat of hardship, but as a threat of force, violence, danger, or retribution,
which are sufficient to constitute
duress under section 261, subdivision (a).
Substantial evidence supports the verdicts on counts 2
and 7.
B.
Turner contends there was insufficient evidence to
convict him of forcible oral copulation of Doe 2 under count 3. (§ 288a, subd. (c)(2).) He urges that his conviction for forcible
oral copulation, and the associated sentence enhancement for kidnapping, should
be reversed. We disagree.
Section 288a, subdivision (c)(2) reads in part: “Any person who commits an act of oral copulation
when the act is accomplished against the victim’s will by means of force,
violence, duress, menace, or
injury on the victim or another person shall be punished by imprisonment in the
state prison for three, six, or eight years.â€
(§ 288a, subd. (c)(2)(A), italics added.)
In the matter before us, the evidence that was sufficient
to demonstrate that Turner’s intercourse with Doe 2 was a product of duress and
fear was also sufficient to demonstrate that his oral copulation of Doe 2 was a
product of duress and fear.
Turner contends the evidence was insufficient because, at
trial, Doe 2 “at first could not remember whether she had even engaged in oral
copulation with [Turner].†As Turner
acknowledges, however, she did recall telling the police that Turner had orally
copulated her.
title="">[5] Turner nonetheless suggests that these
statements are conflicting and argues that the statement to the police was not
evidence that the oral copulation was forcible.
Turner’s arguments are unavailing. First, Doe 2’s statement of uncertainty at
trial and her confirmation of her prior testimony were not diametrically
opposed. Doe 2 never testified that
forcible oral copulation did not occur or that her statement to the police was
false. And, even if Doe 2’s trial
testimony and prior testimony were to some extent inconsistent, the jury was
free to weigh the evidence and assess her credibility. On such credibility determinations, we defer
to the trier of fact. (
Cal.App.4th 959, 968.)
Second, as to whether Doe 2’s statement to police was
evidence that the oral copulation was forcible, there is no indication Doe 2
ever said the oral copulation was not
forcible, and the reasonable inference from a report to the police of oral
copulation would be that it was
forcible – since there would otherwise be no reason to make the report. Furthermore, as Turner recognizes “in her
statement to the police, she said that the accompanying sexual intercourse was
forcible.†In the context of reporting a
forcible rape, we see no reason that Doe 2 would have to spell out that the
oral copulation, committed at the same time as the intercourse, was also
perpetrated without her consent. Indeed,
under the circumstances of the matter at hand, it would be unreasonable to
infer that the sexual intercourse was forcible but the oral copulation was
not.
Turner also repeats his argument that Doe 2 was merely
threatened with hardship, and hardship does not fall under the definition of
duress. He is incorrect. Threats of hardship are not a basis for
establishing duress as defined for purposes of section 261. (Leal, supra, 33
Cal.4th at pp. 1007 [“deletion of the term ‘hardship’ from the definition of
‘duress’ applies only to the rape and spousal rape statutesâ€].) But the definition of “duress†for purposes
of forcible oral copulation under section 288a, subdivision (c)(2)
continues to include threats of “hardship.â€
(Id. at p. 1008 [duress
for purposes of § 288, subd. (b)(1) includes threats to inflict
hardship].)
Turner fails to demonstrate error.
III. DISPOSITION
The judgment is affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
to the Penal Code.
2 noticed that Turner had “M.O.B.†tattooed on his chest. At trial, Officer Joshi testified that M.O.B.
means “money over bitches,†a phrase often used “between pimps to basically
pledge their allegiance to the game of pimping and to remind themselves and
each other that the money is always more important than any emotional feelings
or connection that you get with the females.â€
