P. v. Williamson
Filed 1/17/14 P. v. Williamson CA4/2
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DANIEL
NATHAN WILLIAMSON,
Defendant and Appellant.
E055227
(Super.Ct.No. SWF10000631)
OPINION
APPEAL
from the Superior Court of Riverside
County. Alfred J. Wojcik,
Judge. Affirmed with directions.
Mary
Woodward Wells, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel, and Laura A. Glennon, Deputy Attorneys
General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant
Daniel Nathan Williamson appeals from judgment entered following jury
convictions for aggravated sexual assault (forcible oral copulation) of a minor
under the age of 14 (count 3; Pen. Code, § 269, subd. (a)(4))
lascivious conduct on a child under age 14 (counts 5-9 and 11-13; § 288, subd.
(a)); continuous sexual abuse of a child (count 10; § 288.5); and battery (§
242; count 18). The court also found
true the allegation as to counts 3 and 5 through 13, that the crimes were
committed against multiple victims (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to 135
years to life in prison.
Defendant
contends the trial court erred in
denying his motion to suppress his post-arrest statement to the police, and
there was insufficient evidence to support his conviction for count 3. Defendant also argues the trial court
violated his constitutional rights by admitting evidence of his prior sexual offenses,
and the multiple victim allegations should be reversed because the trial court directed
the jury to reconsider its initial not true findings.
We conclude that,
as to count 3, there was insufficient evidence
of force and duress to support defendant’s conviction for violating section
269, subdivision (a)(4). Therefore, the
conviction on count 3 must be reduced to a conviction for the lesser included
offense of violating section 288a, subdivision (c)(1), and remanded for
resentencing. In all other respects, we
affirm the judgment, there being no other prejudicial or cumulative error
requiring reversal.
II
FACTS
In
2006, defendant met Sarah W. They
married in 2007, when Sarah was around 20 years old and defendant was 30. Sarah had three biological sisters, Does 1,
2, and 3, and three stepsisters, Does 4, 5,
Sarah’s six younger sisters lived with her father, Ra.D., and
stepmother, Ro.D. Ra.D. shared custody
of Does, 1, 2, and 3 with his ex-wife, K.D.
From Christmas 2009, until Easter 2010, defendant sexually assaulted
five of Sarah’s sisters, four of whom were under the age of 14. At the time of trial in October 2011, Doe 1
was 14, Doe 2 was 10, Doe 3 was 12, Doe 4 was 15, and Doe 6 was 18.
In
September 2009, Sarah and defendant moved with their infant son into an
apartment with a pool and spa. K.D. and Does
1, 2, and 3 visited Sarah and defendant at their apartment. Sarah noticed defendant spent a lot of time
with her sisters and got too close to them.
K.D. noticed that defendant spent more time with Doe 1 than the other
girls. In March 2010, K.D. found Doe 1 and
defendant lying under a blanket on the living room floor.
On Easter,
April 4, 2010, Sarah and
defendant visited K.D. and Ra.D.
Defendant sat next to Doe 4 in the TV room and touched her leg. When Doe 4 told him to stop, defendant sat next
to Doe 6. Doe 6 testified that, while
she was playing a game on her laptop computer, defendant sat next to her, laid
a blanket over her lap, and played with her foot under the blanket. Then he rubbed her inner thigh, up to about
two inches from her “private area.†Doe
6 stopped playing her computer game and went upstairs because defendant made
her feel “[u]ncomfortable and creeped out.â€
Doe 4 also left the room. After
defendant and Sarah went home that day, Doe 4 and 6 told Ra.D. what defendant
had done to them. RaD. asked his other
daughters whether defendant had done anything to them. Each said he had. After calming down the girls, RaD. and K.D.
called the police and reported defendant’s conduct.
On April 6, 2010, Katie Heibert of Riverside
Child Assessment Team (RCAT) interviewed each of the six girls. Two days later, Doe 6 made a pretext call to
defendant. During the call, defendant
apologized to Doe 6 for rubbing her leg on Easter. That same day, the police arrested defendant,
advised him of his Miranda
him to the police station. The police
also searched defendant’s home. About an
hour after defendant’s arrest, police detectives interviewed defendant at the
police station. Defendant acknowledged he
had recently been advised of his Miranda rights
and agreed to waive them and talk to the officers. During his recorded interview, defendant
admitted sexually abusing his wife’s sisters.
After the interview, defendant wrote a letter to Doe 1, apologizing for touching
her.
A. Doe 1 (Counts 1 through 10)
According
to Maria Hughes, the school psychologist who assessed Doe 1’s cognitive
abilities, Doe 1 had “mild mental retardation,†which qualified her for special
education. According to Hughes, this
meant she had the least severe form of mental retardation. Doe 1 was able to function in society and had
been mainstreamed in some of her classes.
Doe 1 was identified as having a learning disability but not a
developmental disability. In some cognitive
areas, Doe 1 showed mental development approaching that of a normal child her
age but in the majority of areas, she was less developed than a normal child,
particularly in the area of understanding requests made of her and the ability
to communicate her desires. Doe 1
qualified for special education services for speech and language impairment but
not for mental retardation or brain injury.
On Easter 2010,
and before then, when Doe 1 was 11 or 12 years old, defendant touched Doe 1 in
inappropriate places (“wrong spotsâ€) numerous times, including in the genital
area several times and on her breasts three or four times.
The
following facts are from Doe 1’s recorded statement, taken on April 6, 2010, and her trial testimony.
Counts 1 and 2
Defendant
inserted his penis in Doe 1’s vagina while she was sitting on his lap in a
Jacuzzi at defendant’s apartment. He
forced her to do it even though she did not want to. Defendant lifted Doe 1’s body up and down. Doe 1 was scared of defendant because he was
bigger than her, she was a child, and defendant was an adult.
Counts 3 and 4 (Oral
Copulation against Doe 1)
The
same day as the Jacuzzi incident, while Doe 1 and defendant were in his
apartment playing on the computer in the bedroom, defendant licked Doe 1’s
genital area. Doe 1 was scared when he
did it. She did not try to push him away
or object. Doe 1 testified that
defendant forced her. She testified this
meant she did not want to do it. She
also testified defendant did not physically force her or threaten her. Other than when she eventually reported the
incident, Doe 1 did not tell anyone about the incident because she was afraid of
defendant and afraid to tell anyone.
Count 5
On
Christmas 2009, Doe 1 and defendant played a video game upstairs, while the
rest of the family was downstairs.
Defendant digitally penetrated Doe 1’s vagina with one hand while
playing the video game with his other hand.
Defendant said to Doe 1, “You feel so good.†Defendant told her not to tell anyone. Doe 1 did not tell anyone until April 5,
2010, when she told her sisters, who told her parents. She did not tell anyone before that because
she was scared she would get in trouble.
Count 7
Defendant
penetrated Doe 1’s vagina when she was at defendant’s apartment, sitting next
to him on the couch under a blanket, while watching a movie. Doe 1 did not tell defendant to stop because
she was scared.
Count 8
On another
occasion at Doe 1’s mother’s house, defendant forced Doe 1 to sit on his lap,
on the couch. She did not want to do
it. Defendant pulled her onto his lap
and covered himself and Doe 1 with his jacket.
Defendant then inserted his finger into Doe 1’s vagina.
Counts 6 and 9
Doe 1
saw defendant’s penis twice. Both times
she was at defendant’s apartment. He
made her hold it and squeeze it with her hand.
Another time, defendant squeezed white liquid out of his penis and
rubbed the liquid on her lips.
B. Counts 11 through 18, involving Does 2, 3, 4,
5, and 6
Because
defendant is not challenging the sufficiency of evidence as to counts 11 through
18, the following is only a brief summary of evidence relating to the other
charges involving Does 2, 3, 4, and 5, and misdemeanor battery involving Doe 6.
Count 11 (Doe 2)
While
Doe 2 was at defendant’s apartment, sitting on the living room couch in her
bathing suit, playing a computer game, defendant suddenly touched her leg with
his hand. Doe 2 told defendant, “Don’t
touch me right there.â€
Count 12 (Doe 3)
When
Doe 3 was around 11 years old, defendant touched her “butt and [her] private
part.†Doe 3 was upstairs at Ra.D.’s
home watching Doe 5 play video games.
Doe 3 was lying on her stomach on the floor and defendant was lying next
to her. When defendant touched her, Doe
3 told him to “stop it,†got up, and walked away.
Count 13 (Doe 4)
On
Christmas 2009, while defendant and Does 1 and 4 were in Ra.D.’s backyard, defendant
told Does 1 and 4 they were thin and his favorites. He placed his hand on Doe 4’s back, underneath
Doe 4’s shirt. Defendant moved his hand
down Doe 4’s back and swept his finger across her right buttocks, under her
jeans. This made Doe 4 nervous. She told him she was thirsty and left.
Counts 14, 15, 16 and 17 (Doe
5)
While
defendant and Doe 5 were at the park with the rest of the family on Christmas
2009, defendant climbed up a tube slide behind Doe 5 and touched her
buttocks. Doe 5 was 13 years old.
Several months
later, on Easter, while Doe 5 and her sisters were playing Play Station, Doe 5
saw defendant pull out his penis and show it to Doe 1. Later that day, Doe 5 put her legs up on the
backyard patio table. Defendant started
touching her hip. Doe 5 pushed
defendant’s hand away but he put it back.
Doe 5 then walked away. A little
later, when the family was in the kitchen saying grace with their eyes closed
before dinner, defendant touched the side of Doe 5’s breast. Doe 5 moved away from defendant.
Count 18 (Doe 6)
While
at Ra.D.’s home on Easter 2010, defendant sat next to Doe 6 while she was
playing a computer game on her laptop.
Defendant placed a blanket over Doe 6 and himself, rubbed the inner part
of Doe 6’s thigh, within two inches of her genitalia. Doe 6 left the room because the touching made
her feel uncomfortable.
III
VALID
Defendant
contends the trial court erred in denying his motion to suppress his recorded statement
made to the police. Defendant argues the
police obtained his statement in violation of Miranda and his constitutional rights to counsel and due process,
and against self-incrimination. We
conclude there was no error in denying defendant’s motion.
A. Procedural Background
When
defendant was arrested for molesting his wife’s younger sisters in April 2010, Murrieta
Police Detective Whittington read defendant his Miranda rights. Whittington
told defendant that Detective Dorcas, who was nearby on the telephone, was in
charge of investigating the criminal allegations against defendant and would be
contacting defendant to ask him questions.
Whittington thereafter told Dorcas he had advised defendant of his
rights, defendant understood and waived his rights, and defendant was willing
to talk.
Police
Officers Stotts and Swearingen transported defendant to the police
station. Meanwhile Whittington and
Dorcas went to defendant’s house. Dorcas
spoke to defendant’s wife and seized property.
Defendant was not questioned until Dorcas and Whittington interviewed
him at the police station about an hour and a half after defendant’s arrest. During the first 10 minutes of the
interrogation, Dorcas, Whittington, and defendant talked about defendant’s
employment as a security guard, his military career, and his arm injury. Before questioning defendant about the sexual
abuse crimes, Dorcas reminded defendant that Whittington had previously read
him his Miranda rights. Defendant said he remembered them. Thereafter the following recorded discourse took
place between defendant, Dorcas and Whittington:
“[Dorcas]: So keeping your rights in mind, do you want
to talk to us about what’s going on?
“[Defendant]:
Umm . . . is there a chance I could talk with legal representation? Because I don’t know. I don’t know how this will play out.
“[Dorcas]:
Yeah, if you want to. Is that
what you’re asking for?
“[Defendant]:
Umm, what is, what is that option?
Is, when, when it comes to . . .
“[Dorcas]:
Remember your rights? Your right
to an attorney before, during and after questioning.
“[Defendant]:
Yes.
“[Unidentified speaker]: So it’s up to you.
“[Whittington]:
Basically, we have a certain set of statements and the reason why we
want to talk to you is get your, your side of the story. But if, you know, and it’s completely up to
you but, if you decide to talk to an attorney first, we’re not gonna get your
side of the story and we just kinda go with what we have. ‘Cuz if you decide you want an attorney we’re
just, you just get transported and just gets played out from there through
court.
“[Dorcas]: So
it’s really up to you. Like he said, we
have their side. . .
“[Defendant]:
But if I, I say anything and that could [be] used against me in a court
of law.
“[Dorcas]:
Right.
“[Defendant]:
So it won’t help me, it’ll actually go against me.
“[Dorcas]:
Well, depends what you have to say.
“[Whittington]:
Yeah, a lot of it depends on how truthful you want to be.
“[Dorcas]: I
mean, we know . . . we gotta get your side or we try to get your side, otherwise
we’ll just stay with what we know and we’ll go from there. It’s your chance to clear the air and tell us
your side of the story. But it’s up to
you.
“[Defendant]: I
want to be honest.
“[Dorcas]:
Well, it’s good to be honest.
“[Defendant]: I
just, I don’t . . . well, I guess I’ll just tell you then.
“[Dorcas]:
Okay, so you’re willing to talk to us?
“[Defendant]: I
would, I would assume that’s probably the best, best way to go.
“Dorcas]:
Okay. Alright, well why do you
think you’re here today?
“[Defendant]:
Because I have, umm, I, I fondled one of my . . . I guess it’d be
sister-in-law, younger sister-in-law.â€
During
the remainder of defendant’s recorded interview, which lasted over an hour, he
admitted to inappropriately touching all six of his victims. He denied, however, committing lewd conduct
against Doe 5. Defendant also denied
penetrating Doe 1’s vagina with his penis and orally copulating her in his
apartment. Defendant, however, admitted
oral copulating Doe 1 in the pool. At
the end of defendant’s interview, defendant wrote an apology letter to Doe 1.
On May 3, 2011, defendant filed a motion
to suppress his recorded statement on the grounds the interview violated his
rights to remain silent and to an attorney.
Defendant argued Dorcas and Whittington improperly continued to question
him after he invoked his right to counsel.
After hearing Whittington’s testimony and reviewing defendant’s recorded
statement and transcription, the trial court denied defendant’s motion to
suppress on the ground defendant was properly advised of his
make an unambiguous or unequivocal request for counsel and, when defendant
waived his rights to remain silent and to an attorney, the police did not place
defendant under duress or coerce him to waive his rights.
B. Applicable Law and Analysis
The
Supreme Court held in Miranda, supra, 384
U.S. 436, that certain warnings must be given before a suspect’s statement made
during custodial interrogation can be admitted in evidence in order to protect
the privilege against self-incrimination.
The Supreme Court in Edwards v.
Arizona (1981) 451 U.S. 477, 484-485, further held: “[A]n accused, . . . having expressed his
desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges, or
conversations with the police.†“This ‘second
layer of prophylaxis for the Miranda
right to counsel,’ [citation], is ‘designed to prevent police from badgering a
defendant into waiving his previously asserted Miranda rights,’ [citation ].â€
(Davis v. United States (1994)
512 U.S. 452, 458 (Davis), quoting
176 and Michigan v. Harvey (1990) 494
U.S. 344, 350.)
To
make an effective invocation of the right to counsel, “the suspect must
unambiguously request counsel.†(
attorney that is ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the suspect
our precedents do not require the cessation of questioning. [Citation.]â€
(Id. at p. 459.) “[W]hen a suspect makes an ambiguous or
equivocal statement it will often be good police practice for the interviewing
officers to clarify whether or not he actually wants an attorney.†(Id.
at p. 461; see also People v. Williams (2010)
49 Cal.4th 405, 428 (
“It
is the function of the trial judge to determine whether the defendant did in
fact knowingly and voluntarily waive his right to remain silent and his right
to have the assistance of counsel. This
determination is to be made based on the totality of the circumstances
surrounding the interrogation. [Citations.] The assertion of privilege or its waiver
constitutes a question of fact which can only be decided after taking into
account the special circumstances of each case. [Citation.]â€
(People v. Bestelmeyer (1985)
166 Cal.App.3d 520, 526 (Bestelmeyer).)
Here,
defendant does not dispute that, at the time of his arrest, Whittington
properly advised him of his Miranda rights
and defendant waived them. Defendant
argues, however, that later at the police station, at the outset of his recorded
interrogation, he invoked his right to an attorney and therefore all subsequent
questioning by the police violated his rights to counsel and to remain silent. We disagree.
Defendant did not unequivocally request an attorney. He asked Dorcas, “is there a chance I could
talk with legal representation? Because
I don’t know. I don’t know how this will
play out.â€
Pondering whether
or not to request an attorney and requesting clarification regarding the right
to an attorney is not an invocation of the right. (Bestelmeyer,
supra, 166 Cal.App.3d at pp. 526-527.)
In response to defendant’s inquiry, Dorcas told defendant he could speak
to an attorney, and then asked for clarification: “Is that what you’re asking for?†Dorcas reminded defendant that he had a
“right to an attorney before, during and after questioning.†Defendant confirmed that he remembered he had
this right and acknowledged that he was aware that if he said anything, it
could be used against him in court and would not help him. Defendant ultimately decided that he wanted
to be honest and tell the police his side of the story. Defendant then proceeded to answer questions
about the alleged crimes.
Under
these circumstances, Dorcas appropriately clarified defendant’s ambiguous
response in which defendant inquired whether it might be possible to talk to an
attorney. We conclude “. . . it does not
appear that the officers were ‘badgering’ defendant into waiving his rights;
his response reasonably warranted clarification.†(Williams,
supra, 49 Cal.4th at p. 429.) Although
Dorcas clearly reiterated that defendant had a right to an attorney and could
speak to an attorney, defendant equivocated.
When Dorcas asked defendant if he wanted an attorney, defendant did not
say yes. He ultimately said he had decided
it would be best to be honest and tell his side of the story. The transcript of Dorcas, Whittington, and
defendant’s discussion of defendant’s right to an attorney shows that defendant
considered requesting an attorney but ultimately, voluntarily decided to
proceed with giving a recorded statement without an attorney.
We conclude
there was substantial evidence to support the trial court’s findings that
defendant knowingly waived his right to counsel and voluntarily made the
subsequent statements to the investigation officers. (Bestelmeyer,
supra, 166 Cal.App.3d at p. 528.)
IV
SUFFICIENCY OF
EVIDENCE
Defendant
contends there was insufficient evidence to support his conviction on count 3
for aggravated sexual assault (forcible oral copulation; § 269, subd. (a)(4)).
A. Applicable Law
We are limited in our review of a claim
of insufficiency of the evidence. “‘In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses 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. [Citations.] Reversal on this ground is unwarranted unless
it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].†[Citations.]’ [Citations.]â€
[¶]
defendant bears an enormous burden in claiming there is insufficient evidence
to sustain his molestation convictions. If the verdict is supported by substantial
evidence, we are bound to give due deference to the trier of fact and not retry
the case ourselves. [Citation.]†(People
v. Veale (2008) 160 Cal.App.4th 40, 45-46 [Fourth Dist., Div. Two] (
Applying this standard of review, we conclude there was insufficient
evidence to support defendant’s count 3 conviction.
The
of a child, as alleged in count 3, are: (1)
the defendant committed oral
copulation in violation of
section 288a, subdivision (c)(2) or (3), or subdivision (d); (2) the victim was
under 14 years of age; and (3) the alleged victim was seven or more years
younger than the perpetrator. (§ 269,
subd. (a)(4).)
The trial court
instructed the jury on the elements of forcible oral copulation (§ 288a) in
relevant part as follows: “In order to
prove this crime, each of the following elements must be proved: [¶] 1. A person participated in an act of oral
copulation with an alleged victim; [and] [¶] 2. The
act was accomplished against the alleged victim’s will by means of force,
violence, duress, menace or fear of immediate and unlawful bodily injury on the
alleged victim or any other person.â€
(CALJIC No. 10.10.)
B. Evidence of Force or Violence
Defendant argues
there was insufficient evidence he committed oral copulation against Doe 1
through the use of “force, violence, duress, menace or fear.†(§ 288a, subd. (c)(2)(B).) We agree.
The
trial court instructed the jury that “[t]he ‘force’ required as an element
under Counts 1 and 3 means physical force substantially different from, or
substantially in excess of, that required for the commission of the act of
sexual intercourse and/or the act of oral copulation.†Such physical force must be “substantially
different from or substantially greater than that necessary to accomplish the
lewd act.†(People v. Griffin (2004) 33
Cal.4th 1015, 1026; People v. Guido (2005)
125 Cal.App.4th 566, 575.) “[O]ral
copulation by force within the meaning of section 288a, subdivision (c)(2) is
proven when a jury finds beyond a reasonable doubt that defendant accomplished
an act of oral copulation by the use of force sufficient to overcome the
victim’s will.†(Guido, at p. 576.)
In
the instant case, there was insufficient evidence of force or violence. Doe 1 testified at trial that, while Doe 1 and
defendant were in his apartment playing on the computer in the bedroom,
defendant orally copulated Doe 1. Doe 1
was scared when he did it. When asked during
the trial if defendant did anything to get her to allow him to commit oral
copulation against her, Doe 1 testified: “He forced me.†Doe 1 said this meant, “I didn’t want to do
it,†“He made me do it.†When asked what
Doe 1 meant when she said he made her do it, Doe 1 replied, “Made me do
something that I didn’t want to do because it wasn’t the right thing to
do.†Doe 1 was asked if defendant did
anything else physically to touch or hold her while he committed oral
copulation against her. Doe 1 replied,
“I don’t know.†When later asked again
if defendant physically did anything to her to make her let him orally copulate
her, Doe 1 said, “don’t think so.†Doe 1
also testified she did not tell defendant not to orally copulate her, push him
away, or try to prevent him from doing what he was doing.
During
cross-examination, Doe 1 acknowledged that when she used the word, “force,†she
was not referring to physical force.
Rather, she meant defendant did something she did not want him to
do. She could have said “no†to
defendant when he committed oral copulation against her but she chose not to
say anything or do anything. She did not
try to leave. Doe 1 further acknowledged
that defendant did not threaten her. He
did not tell her he was going to hurt her and did not use any force or violence
against her.
Even though Doe 1 initially
testified that defendant forced her to submit to oral copulation, during
cross-examination her testimony clarified that, what she meant was that
defendant did something to her that she did not want him to do but passively complied
with his unwanted acts. Doe 1’s
testimony established that defendant did not use any physical force or violence
or verbal threats when orally copulating Doe 1.
C. Evidence of Duress
The prosecution
alternatively argued that defendant committed oral copulation against Doe 1
through the use of duress. “‘“Duressâ€
has been defined as “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.†. . . [D]uress involves psychological
including the relationship between the defendant and the victim and their
relative ages and sizes. . . . “Where
the defendant is a family member and the victim is young, . . . the position of
dominance and authority of the defendant and his continuous exploitation of the
victim†[are] relevant to the existence of duress.’ [Citation.]â€
(People v. Espinoza (2002) 95
Cal.App.4th 1287, 1319-1320 (Espinoza),
quoting People v. Schulz (1992)
2 Cal.App.4th 999, 1005.) “‘Other
relevant factors include threats to harm the victim, physically controlling the
victim when the victim attempts to resist, and warnings to the victim that
revealing the molestation would result in jeopardizing the family.’ [Citations.]†(Veale,
supra, 160 Cal.App.4th at p. 46, quoting People v. Cochran (2002)
103 Cal.App.4th 8, 14; see also People v. Senior (1992) 3 Cal.App.4th
765, 775 and People v. Schulz, supra, 2 Cal.App.4th at p. 1005.)
The People rely
on this court’s decision in Veale, supra,
160 Cal.App.4th 40, for the proposition there was sufficient evidence of force
and duress to support the defendant’s conviction. In Veale,
the defendant committed numerous lewd acts upon his seven-year-old
stepdaughter. The victim said she was
afraid of the defendant but could not say why.
She also feared that if she reported the defendant’s conduct, the
defendant would kill her or her mother, although the defendant never told her
he would do so. A couple of times the
victim objected to the defendant molesting her.
The defendant relented and did not make the same requests again. The victim testified at trial that the
defendant did not threaten her or use physical force. The defendant in Veale argued on appeal that there was no evidence he used force or
duress.
This court
concluded in Veale that, based on
evidence of these facts, there was sufficient evidence of duress. (Veale,
supra, 160 Cal.App.4th at p. 47.) We
explained in Veale, that “A
reasonable inference could be made that defendant made an implied threat
sufficient to support a finding of duress, based on evidence that Brianna feared
defendant and was afraid that if she told anyone about the molestation,
defendant would harm or kill Brianna, her mother or someone else. Additional factors supporting a finding of
duress include Brianna’s young age when she was molested; the disparity between
Brianna and defendant’s age and size; and defendant’s position of authority in
the family. The totality of this
evidence was sufficient to support a finding that defendant molested Brianna by
means of duress, in violation of section 288, subdivision (b).†(Veale,
at p. 47.)
The instant case
is distinguishable from Veale. Here there was no evidence supporting a
finding defendant committed forcible oral copulation by means of a direct or
implied threat. Although there was
evidence that perhaps on another occasion Doe 1 told defendant not to touch her
in the future, there is no evidence that Doe 1 objected to or resisted
defendant’s act of molesting her when he committed the instant offense. There is also no evidence Doe 1 feared that if
she reported the molestation, defendant would kill her, her mother, or another
family member. In addition, Doe 1 was
four years older than the seven-year-old victim in Veale, although in the cognitive areas of speech and language, Doe
1’s abilities may have been at about the same age level as those of the victim
in Veale.
The evidence further
demonstrates that, although Doe 1 had a learning disability relating to speech
and language, her disability was not severe.
Doe 1 was capable of comprehending that what defendant was doing to her
was wrong. In addition, unlike in
and defendant was not of a parental nature.
Defendant was Doe 1’s older brother-in-law. His relationship with Doe 1 was similar to
that of a visiting uncle and niece. Defendant
did not live with Doe 1’s family. There
is no evidence that, as a visiting relative, he held a position of parental
authority over Doe 1.
The instant case
is more analogous to Espinoza, supra,
95 Cal.App.4th 1287, relied on by defendant for the proposition that there was
insufficient evidence of duress because there was no evidence Doe 1’s
participation was impelled by defendant making direct or implied threats. (Id. at
p. 1321.) In Espinoza, the defendant was convicted of forcible lewd conduct (§
288, subd. (b)). The defendant began
molesting his biological daughter shortly after she moved in with him. The victim was 12 years old and in special
education classes. She was described as
not as “bright†as her sisters and had difficulty concentrating. The Espinoza
court reversed the trial court conviction, finding there was insufficient
evidence of duress because of the lack of any direct or implied threat. (Espinoza,
at pp. 1321-1322.)
Although the
defendant in Espinoza was convicted
of committing forcible lewd conduct, whereas the instant case concerns forcible
oral copulation, Espinoza is
instructive because both offenses require the same finding of force or
duress. Here, as in Espinoza, Doe 1 was molested by a relative who was much larger in
size and older than her. In addition,
Doe 1 had limited mental ability, as did the victim in Espinoza, and both victims said they were scared and did not
resist.
The
insufficient evidence of duress: “The
only way that we could say that defendant’s lewd act on L. and attempt at
intercourse with L. were accomplished by duress is if the mere fact that he was
L.’s father and larger than her combined with her fear and limited intellectual
level were sufficient to establish that the acts were accomplished by duress. What is missing here is the ‘“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€â€™ [Citation.] Duress cannot be established unless there is
evidence that ‘the victim[’s] participation was impelled, at least partly, by
an implied threat . . . .’ [Citation.] No evidence was adduced that defendant’s lewd
act and attempt at intercourse were accompanied by any ‘direct or implied
threat’ of any kind. While it was clear
that L. 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.†(Espinoza,
supra, 95 Cal.App.4th at p. 1321.)
The
Legislature has recognized that all sex crimes with children are inherently
coercive.†(Espinoza, supra, 95 Cal.App.4th at p. 1321.) As with section 288, subdivision (b), the
Legislature enacted subdivisions (c) and (d) of section 288a, in recognition
that “defendants who compound their commission of such acts by the use of
violence or threats of violence should be singled out for more particularized
deterrence.’ [Citation.]†(Espinoza,
supra, 95 Cal.App.4th at p. 1321, quoting People v. Hecker (1990)
219 Cal.App.3d 1238, 1250-1251.)
Here, as in
record that defendant used any direct threats when committing oral copulation
against Doe 1. The People argue the
following evidence, however, was sufficient to support a finding that defendant
used implied threats: Doe 1 suffered
from mild mental retardation, making her more susceptible to coercion through
fear; defendant’s relationship with Doe 1 was like that of an uncle, since defendant
was 20 years older than Doe 1; Doe 1 was 11 years old; Defendant was 6’6†and
over 200 pounds; defendant sexually abused Doe 1 on numerous occasions; on one
occasion, defendant told Doe 1 not to tell anyone what he had just done; and
Doe 1 testified that she was scared when defendant orally copulated her. Defendant admitted knowing that when he
sexually abused Doe 1, she did not want defendant to touch her. We conclude there is no evidence establishing
duress by implied threat. There were no
threats, direct or implied, that Doe 1 would suffer adverse consequences if she
did not acquiesce to defendant’s acts of sexually abusing Doe 1.
When denying
defendant’s motion for acquittal under section 1118.1, the trial court stated
it found there was sufficient evidence of force and duress to support a
conviction on count 3, based on evidence Doe 1’s mental disability affected her
ability to learn. Specifically, it
prevented her from perceiving fully what was happening when defendant molested
her. She appeared to be slow mentally
and did not have the degree of understanding one would expect of someone her
age. The court therefore concluded Doe 1
was unable to consent knowingly and voluntarily to defendant’s acts.
But evidence of Doe
1’s mental disability, as described by the school psychologist, was
insufficient to establish duress.
There must also be evidence of a direct
or implied threat, and there was no such evidence. Although the evidence established that Doe 1
was mentally slow for someone her age, the evidence also demonstrated she
understood that what defendant did was wrong and did not want him to do it. She nevertheless was passive. Defendant did not resort to threats or
physical force when committing count 3 or the other offenses, other than using
a limited amount of force required to commit the sexual crimes in question.
The
People argue there was evidence of duress based on defendant molesting Doe 1 on
numerous occasions and using force during several of the incidents, including
an incident occurring before the oral copulation incident, on the same day,
when defendant and Doe 1 were in the Jacuzzi (counts 1 and 2). During this incident, defendant allegedly inserted
his penis in Doe 1’s vagina while she was sitting on his lap in a Jacuzzi at
defendant’s apartment. Defendant lifted
Doe 1’s body up and down. The jury did
not find defendant guilty of this incident (counts 1 and 2), and the force used
to commit the offense was inherent in committing the sexual offense, rather
than to overcome resistance by Doe 1.
The prosecution
also argued there was evidence defendant used force when he made Doe 1 hold his
penis and squeeze it with her hand (counts 6 and 9; lewd and lascivious conduct
on a child under age 14). Again, this
force was inherent in committing the sexual offense, rather than to overcome
resistance by Doe 1. Because Doe 1 did
not resist defendant’s sexual acts, the force used by defendant, if any, was limited
to that required to commit the sexual acts against Doe 1. As in Espinoza,
the only way that we could say that defendant’s act of orally copulating Doe 1
was accomplished by duress is if the mere fact that defendant was a close
relative and larger and older than her, combined with her fear and limited
intellectual level “were sufficient to establish that the acts were
accomplished by duress. What is missing here is the ‘“direct or
implied threat of force, violence, danger, hardship or retribution. (Espinoza,
supra, 95 Cal.App.4th at p. 1321.)
Here, no evidence
was adduced that defendant’s oral copulation against Doe 1 was accompanied by
any direct or implied threat of any kind. Although Doe 1 said she was scared when
defendant sexually abused her, “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.†(Espinoza, supra, 95 Cal.App.4th at p. 1321.)
Because there was
insufficient evidence that defendant committed oral copulation against Doe 1 by
means of force, violence, duress, menace or fear of immediate, unlawful bodily
injury, defendant’s section 269, subdivision (a)(4), conviction for forcible
oral copulation must be reduced to reflect a conviction of the lesser included
offense of nonforcible oral copulation under section 288a, subdivision (c)(1). (Espinoza,
supra, 95 Cal.App.4th at p. 1321; People v. Kelly (1992) 1 Cal.4th
495, 528.)
V
PRIOR SEXUAL OFFENSE
EVIDENCE
Defendant
contends the trial court committed prejudicial error by allowing evidence of his
prior uncharged sexual acts. He argues the
prior acts did not qualify as sexual offenses under Evidence Code section 1108
and therefore the evidence was inadmissible character evidence under Evidence
Code section 1101, subdivision (a). We
disagree.
A. Procedural Background
The
People filed a motion in limine to admit under Evidence Code section 1108 defendant’s
recorded statement to the police admitting that he was involved in the
following four unreported prior sexual incidents: (1) In 1997, when defendant was 22 years old, he
touched two young girls while he was on a missionary trip; (2) he had sexual
relations with his sister when he was 15 years old; (3) he had sexual relations
with his cousin when he was 15 years old; and (4) he had sexual relations with
his adult sister-in-law, Christina. The
People argued that evidence of these prior offenses demonstrated that defendant
had a substantial history of committing sexual assaults.
Defendant filed a
motion in limine requesting the court to exclude this evidence. Defendant asserted that Christina would
testify that he sexually assaulted her in Las Vegas when she was 21
years old. The incident was never
reported to law enforcement and was not revealed until the prosecution of
defendant in the instant case. During
defendant’s recorded statement to the police, he admitted to a consensual
sexual relationship with Christina prior to his marriage to Sarah. As to the other three incidents, defendant
argued that his admissions made in his recorded statement to the police did not
provide a sufficient basis for allowing evidence of the acts. There was no independent evidence of the
incidents and the “corpus delicti†of the offenses could not be proved by a
preponderance of the evidence.
During
the hearing on the motions in limine, defense counsel objected to the evidence of
the prior sexual acts on the ground there was insufficient evidence
establishing that the four incidents qualified as sex offenses under Evidence
Code section 1108. The trial court
concluded the evidence was admissible because the evidence constituted
admissions of the prior criminal acts.
Defense counsel inquired as to what sexual offenses were actually committed
when defendant committed the four prior offenses. The court said the acts might constitute lewd
and lascivious acts but deferred discussing the matter further until later,
when the jury instructions were discussed.
At
trial, Christina did not testify. Defendant’s
recorded statement was admitted under Evidence Code section 1108 and played for
the jury. Defendant admitted in his
recorded statement that he “fooled around†with Christina but claimed it was mutually
consensual. When asked if defendant had
committed inappropriate touchings of any girls under 18, other than Does 1
through 6, defendant admitted “mess[ing] around†with his sister and his cousin
when he was 15 years old and had been taking sex education in high school. He and his sister, and later his cousin, were
receptive to “fooling around with one another.â€
The next time “that something like this occurred†was when he was 22
years old, on a church mission in the West Indies. He was staying at a home of missionaries who
had two young girls who ran around “smacking everybody on the butt
constantly.†When the oldest girl
smacked defendant, he put her over his knee, pulled down her pants, and
“smack[ed] her butt a whole bunch of times.
She freaked out.â€
At
the end of the trial, during a discussion of the proposed jury instructions,
the trial court noted that there was no evidence establishing the age of the
four females involved in the prior touching incidents. The court therefore believed the jury could
not consider any of defendant’s admissions as prior uncharged acts of lewd and
lascivious conduct with a child under the age of 14. The court therefore suggested giving an
instruction admonishing the jury not to consider the evidence of defendant’s prior
uncharged misconduct.
Defense counsel
requested the court to give the following special instruction:
“The Prosecution introduced evidence that the defendant
engaged in sexual conduct other than that charged in this case. The Prosecution has the burden of proving
that the defendant engaged in this other conduct by a preponderance of the
evidence. The Prosecution has not met
this burden. Therefore, you must
disregard any evidence that the defendant engaged in sexual conduct other than
that charged in this case. You must
treat it as though you had never heard of it and not consider this evidence for
any purpose.â€
The
trial court rejected defendant’s proposed instruction, and gave the following
instruction: “You must disregard any
evidence that the defendant engaged in sexual conduct other than that charged
in this case. You must treat it as
though you had never heard of it and not consider this evidence for any
purpose.â€
B. Admissibility of Prior Acts Evidence
As a
general rule, evidence of a defendant’s conduct is not admissible to show
disposition or propensity, but is admissible to prove identity, plan, intent,
knowledge, or opportunity. (§ 1101.) Section 1108 provides a statutory exception,
allowing propensity evidence to be admitted in sex offense cases to show a
defendant is more likely to have committed the charged offense. (People
v. Falsetta (1999) 21 Cal.4th 903, 911.)
Section 1108, subdivision (d)(1), defines a sex offense as a crime under
state or federal law that involves certain enumerated sexual acts and crimes. If the uncharged conduct qualifies as a sex
offense, it is admissible subject to section 352. (People
v. Crabtree (2009) 169 Cal.App.4th 1293, 1315.) The trial court weighs the probative value
against the potential risk of prejudice, confusion, and undue consumption of
time. (Ibid.) On appeal, we review
the trial court’s ruling for an abuse of discretion. (Ibid.)
In
the instant case, after the parties submitted on the evidence, the trial court correctly
concluded that there was insufficient evidence establishing that defendant’s
prior uncharged acts of touching four females qualified as sexual offenses
under section 1108, since there was no evidence of the age of the females. The sexual offense of committing a lewd act in
violation of section 288, requires a finding that the victim was under the age
of 14 years. In addition, there was insufficient
evidence the prior acts qualified as sexual offenses, since defendant did not
specify in his recorded statement the nature of his acts as to his sister and
cousin. Also, defendant claimed in his
recorded statement that his sexual activity with Christina was consensual, and
Christina did not testify to the contrary.
The prior uncharged acts evidence therefore was inadmissible under
Evidence Code sections 1101 and 1108.
C. Harmless Error
Defendant
argues that allowing the inadmissible prior acts evidence constituted prejudicial
error because the evidence would have confused the issues and unfairly
distracted the jury from its consideration of the charged offenses. Defendant asserts that the evidence was
damaging to defendant because this was a close case, and the propensity
evidence showed that he was unfaithful to his wife and had a long history of
sexually “fooling around,†including with his own family members.
We conclude it is
not reasonably probable that, had the evidence of defendant’s prior uncharged
sexual acts been excluded, there would have been a more favorable result. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
The trial court appropriately instructed the jury that the prior
uncharged sexual acts evidence should be disregarded. Under Evidence Code section 403, subdivision
(c), “If the court admits the proffered evidence under this section, the court:
[¶]
jury to determine whether the preliminary fact exists and to disregard the
proffered evidence unless the jury finds that the preliminary fact does exist. [¶]
disregard the proffered evidence if the court subsequently determines that a
jury could not reasonably find that the preliminary fact exists.â€
In accordance
with Evidence Code section 403, subdivision (c)(2), the trial court instructed
the jury not to consider any evidence that “defendant engaged in sexual conduct
other than that charged in this case.
You must treat it as though you had never heard of it and not consider
this evidence for any purpose.†It is
presumed the jury properly followed the court’s instructions. (People
v. Sanchez (2001) 26 Cal.4th 834, 852.)
In addition, there was
overwhelming evidence supporting defendant’s convictions, including the
victims’ testimony, the victims’ RCAT statements, and defendant’s recorded
statement, admitting he had inappropriately touched Does 1, 2, 3, 4, and 6, and
committed lewd acts, oral copulation, and digital penetration. Also, the prior uncharged acts were, in most
instances, less egregious than the charged acts and, as a whole, were not
likely to have been inflammatory or changed the jury’s view of defendant, in
light of the evidence of the seriousness of the crimes defendant committed.
VI
CONTINUATION OF
JURY DELIBERATIONS
Defendant
contends the trial court improperly directed the jury to reconsider its
findings that the multiple victim enhancement allegations attached to counts 3
and 5 through 13, were untrue. We
disagree.
A. Procedural Background
The
jury found defendant guilty of committing lewd and lascivious acts against Does
1, 2, 3, and 4, and also forcible oral copulation against Doe 1. After the court clerk announced the jury
verdicts and related allegation findings, the prosecutor asked the court to
poll the jury on its allegation findings rejecting the multiple victim
allegations. The prosecutor noted that
the guilty verdicts involved multiple victims, and this was inconsistent with
the jury’s related allegation findings that there were not multiple victims (§
667.61, subd. (e)(5)).
In
response, the trial court reread to the jury the instruction for the multiple
victim allegation. The trial court
further told the jury: “What the People
. . . is suggesting [is] that the verdicts seem to be inconsistent. In other words, you made a finding that there
was not more than one victim. And [the
prosecutor] is taking the position that’s inconsistent because that same exact
crime – the 288, subparagraph (a) – we had guilty verdicts on four Jane
Does. So logic would seem to dictate
there are more than one victim. [¶] Now maybe there was something in the proof
that you did not accept regarding that.â€
The
jury foreman told the court that the jury misunderstood the instruction: “The way we understood it is that it was more
than one person at the time of the incident against Jane Doe. So I think all of us were under the
impression that while Jane Doe was being victimized, someone else was being
victimized at the same time . . . .†The
trial court asked the jury foreman whether he would suggest that the jurors
reconsider the multiple victim findings.
The jury foreman indicated that, because the jury misconstrued the
instruction on the multiple victim allegations, the jury needed to reconsider
its decision.
After noting that
the trial court had not yet recorded the verdict, the court asked several other
jurors if they were confused about the multiple victim enhancement. Several jurors stated that, as stated by the
foreman, they misconstrued the enhancement as requiring a finding of multiple
victims during the commission of the particular charged crime.
After clarifying
that the enhancement merely required a finding that defendant had committed
crimes against multiple victims, the trial court polled the jury as to whether
their findings on the multiple victim allegations were true and correct. All of the jurors stated that their findings
on the multiple victim allegations were not true and correct. The court found the jury had made an honest
error regarding the multiple victim allegations and therefore sent the jury
back to reconsider the allegations.
Defense counsel objected to the entire manner in which the trial court
addressed the inconsistency between the multiple victim allegations and
verdicts. Later that same day, after
reconsidering the enhancements, the jury found true the multiple victim
allegations, contrary to its previous findings rejecting the allegations. The trial court denied defendant’s motion to
dismiss the judgment on the ground the trial court should have accepted the
original not true findings on the multiple victim allegations.
B. Applicable Law and Analysis
Section
1161 provides that if there is a verdict of conviction and the court
thinks the jury may have mistaken the law, the court may explain its reasons to
the jury and direct it to reconsider the verdict; “‘but when there is a
verdict of acquittal, the Court cannot require the jury to reconsider it.’â€
(Bigelow
v. Superior Court (1989) 208 Cal.App.3d 1127, 1133 (
verdicts on enhancement allegations, rather than acquittal verdicts on charges
of substantive offenses, the two are equivalent for purposes of applying
section 1161 to this case. (
933, 941, fn. 2 (Guerra).)
In
1129, the court held that the trial court erred in sending the jury back to
redeliberate after it entered a verdict acquitting the defendant of first
degree murder but finding true murder special circumstances. The court in Bigelow explained the following basic principles: “First, once the jury submits a verdict of
acquittal to the trial court, the court may not order reconsideration of that
verdict but rather must order that judgment be entered on the verdict. [Citations.] Second, a trial court may not coerce a jury by
rejecting its verdict and requesting it to continue deliberating. [Citations.]â€
(Id. at p. 1134.)
In
murder was inconsistent with the special circumstances findings. The court noted that, “if the initial verdict
unequivocally manifested the intent to acquit, it was a valid verdict
regardless of its formal defects or legal inconsistency.†(Bigelow,
supra, 208 Cal.App.3d at p. 1136.)
The Bigelow court concluded,
however, that the verdict was ambiguous because of the inconsistency of
acquittal of murder and findings that special circumstances existed. (Ibid.) Therefore, the trial court had the following
limited options: “The court could have
either 1) granted the motion to record the verdict of acquittal, 2) polled the
jury to determine if there were 12 votes for acquittal, or 3) informed the jury
that the acquittal was not consistent with findings of special circumstances
and asked it to clarify its verdict to show its true intent.†(Ibid.)
The Bigelow
court held the trial court erred because the trial court did not proceed
under any of these options. Instead, the
trial court merely sent the jury back to deliberate. (Bigelow,
supra, 208 Cal.App.3d at p. 1136.)
In
distinguishable from cases in which the trial court properly resubmitted
inconsistent verdicts to the jury. Cases
upholding resubmission “presented patent and necessary inconsistency, namely,
findings of guilty and not guilty on the same charge.†(Bigelow,
supra, 208 Cal.App.3d at pp. 1137-1138.)
In addition, “the jury error was immediately corrected, with no lengthy
further deliberations.†(
We recognize the
general principle that “an inherently inconsistent verdict is allowed to stand;
if an acquittal of one count is factually irreconcilable with a conviction on
another, or if a not true finding of an enhancement allegation is inconsistent
with a conviction of the substantive offense, effect is given to both.†(People
v. Santamaria (1994) 8 Cal.4th 903, 911; see also People v. Avila (2006) 38 Cal.4th 491, 600 and People v. Espiritu (2011) 199 Cal.App.4th 718, 727.) But, as explained in Bigelow, when the verdict or enhancement has not yet been entered
or recorded and a verdict of acquittal is ambiguous due to blatant
inconsistency, the trial court can properly explain the inconsistency to the
jurors, obtain clarification from the jury, and allow reconsideration. (Bigelow,
supra, 208 Cal.App.3d at p. 1136;
People v. Caird (1998) 63 Cal.App.4th
578, 586-590; People v. Keating (1981)
118 Cal.App.3d 172, 181-182.)
Here, the jury’s
rejection of the multiple victim allegations was patently inconsistent with the
jury’s finding defendant guilty of committing sexual offenses against multiple
victims. Because of this clear
inconsistency, the trial court appropriately exercised its options of polling
the jury, informed the jury of the inconsistency, and assessed the jury’s true
intent, in accordance with Bigelow. After the jurors stated that their not true
findings on the multiple victim allegations were not their true and correct
findings and requested to reconsider their findings, the trial court
appropriately allowed the jury to redeliberate.
(Bigelow, supra, 208
Cal.App.3d at p. 1136.) In raising the inconsistency, “‘the trial
court has broad latitude in fair commentary, so long as it does not effectively
control the verdict.’†(
Cal.App.4th 718, 728, quoting People v.
Rodriguez (1986) 42 Cal.3d 730, 768.)
Here, the trial court did not effectively control the verdict or jury
findings on the multiple victim allegations.
Defendant’s
reliance on Guerra, supra, 176
Cal.App.4th 933, for the proposition that the trial court erred in refusing to
accept the jury’s not true findings on the multiple victim allegations, is
misplaced. In Guerra, the jury found the defendant guilty of committing sexual
offenses against his daughter and another girl.
The jury also initially returned not true findings on the multiple
victim allegations. (
appeared to be inconsistent with the allegation findings. The jury foreman conceded that she and the jury
must have misunderstood the instruction on the multiple victim
allegations. The court reread the
instruction for the multiple victim allegation and further instructed the jury:
“‘The instructions and the verdict form
would indicate to the court that if in the case being tried before you there is
more than one victim that the defendant has been convicted of sexually
assaulting as charged, that the answer to those allegation questions shoul
| Description | Defendant Daniel Nathan Williamson appeals from judgment entered following jury convictions for aggravated sexual assault (forcible oral copulation) of a minor under the age of 14 (count 3; Pen. Code, § 269, subd. (a)(4))[1]; lewd and lascivious conduct on a child under age 14 (counts 5-9 and 11-13; § 288, subd. (a)); continuous sexual abuse of a child (count 10; § 288.5); and battery (§ 242; count 18). The court also found true the allegation as to counts 3 and 5 through 13, that the crimes were committed against multiple victims (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to 135 years to life in prison. Defendant contends the trial court erred in denying his motion to suppress his post-arrest statement to the police, and there was insufficient evidence to support his conviction for count 3. Defendant also argues the trial court violated his constitutional rights by admitting evidence of his prior sexual offenses, and the multiple victim allegations should be reversed because the trial court directed the jury to reconsider its initial not true findings. We conclude that, as to count 3, there was insufficient evidence of force and duress to support defendant’s conviction for violating section 269, subdivision (a)(4). Therefore, the conviction on count 3 must be reduced to a conviction for the lesser included offense of violating section 288a, subdivision (c)(1), and remanded for resentencing. In all other respects, we affirm the judgment, there being no other prejudicial or cumulative error requiring reversal. |
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