P. v. Barnett

Filed 1/15/10 P. v. Barnett CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Patrick Noel Barnett was convicted by jury of one count of aggravated sexual assault of a child under the age of 14 (Pen. Code, 269)[1] based on a violation of section 288a (oral copulation) by force or duress and three counts of lewd or lascivious conduct involving a child under the age of 14 by force or duress ( 288, subd. (b), hereafter sometimes lewd conduct). For the purpose of tolling the statute of limitations on the lewd conduct counts ( 803, subd. (f)), the jury found true special allegations that the complaint was filed within one year of the date the offenses were reported to law enforcement, that the crimes involved substantial sexual conduct (as defined in  1203.066, subd. (b)), and that there was clear and convincing, independent evidence that corroborated the victims allegations. The court sentenced defendant to 15 years to life on the aggravated sexual assault count consecutive to 18 years for the three lewd conduct counts.

On appeal, defendant raises three challenges to the sufficiency of the evidence. First, he contends that the convictions on the lewd conduct counts must be reversed because there was insufficient evidence that those offenses involved substantial sexual conduct, which is required to extend the statute of limitations under section 803, subdivision (f). Second, he argues that there was insufficient evidence of force or duress to support his three convictions for lewd conduct by force or duress under section 288, subdivision (b). Third, he contends that there was insufficient evidence of force or duress to support his conviction for aggravated sexual assault under section 269. Defendant also asserts that his sentence is cruel and unusual under both the state and federal constitutions. We will affirm.

Facts

I.       Prosecution Case

Shortly after her 18th birthday, Hannah[2] went to the police and reported that she was molested by defendant multiple times when she was between five and seven years old. During that time, defendant lived near Hannahs home, socialized with her parents, and occasionally babysat Hannah. Hannahs older sister played with defendants stepdaughter, Crystal. Hannah played with defendants son (hereafter sometimes Son).

Hannah waited until she was 18 to report the abuse because she is very independent; she wanted to do it herself and did not want her parents to have to deal with the issue. She decided to tell the police so it would not happen to anyone else.

Hannah testified regarding five specific incidents that occurred at or near defendants house. She thinks there were other incidents, but she could not recall them specifically.

A.     First Incident in the Playroom (Lewd or Lascivious Conduct)

The first incident occurred when Hannah was five years old in the playroom at defendants house. Defendants son, who was about three years younger than Hannah, was in the room, about eight feet away from her. Hannah was seated on the floor. Defendant came up from behind her, squatted behind her, reached inside the back of her pants and her underwear, and started rubbing her buttocks and her vaginal area with his hand.

Defendant got up, left the room, came back with a washcloth and did the same thing again through the washcloth. Hannah estimated that defendant rubbed her buttocks and vaginal area for five to 10 minutes. Initially, he rubbed her butt cheeks with his hands. After he got the washcloth, he touched the area between her butt cheeks. Hannah recalled feeling his fingers through the washcloth touching her vagina. She could not recall whether his fingers ever went inside of her.

Defendant asked Hannah if she had ever seen a mans penis before and she said no. He asked her if she wanted to see his penis and she said no. Hannah felt hopeless and scared; she did not understand what was going on. But she knew it was wrong and it upset her.

B.    Second Incident in Sons Room (Lewd or Lascivious Conduct)

The second incident occurred shortly after the first incident; Hannah was still five years old. Hannah was playing with Son in Sons room. Son fell asleep and Hannah got a book out of the toy chest. She was bent over the toy chest, which was against a wall, looking at the book, when she felt defendant approach her from behind. Defendant stood behind her. He pulled down her pants and underwear, but did not take them all the way off. Defendant rubbed her buttocks and vaginal area with his hands for three to five minutes. There was skin-to-skin contact. Hannah then heard the sound of a zipper. Defendant took out his penis and placed it on her lower back. He rubbed his penis against her butt cheeks and low back but did not place it inside her.

Hannah kept looking at the book, trying to keep her mind in another place. She knew that what defendant was doing was wrong and she was scared.

C.    Third Incident in Defendants Bedroom (Aggravated Sexual Assault Involving Oral Copulation)

Shortly thereafter, when Hannah was five or six years old, defendant was babysitting her at his home. No one else was there. Defendant picked Hannah up and carried her like a baby from some other room into his bedroom. He placed her at the foot of the bed, with her legs dangling over the side of the bed. He pushed her back onto the bed and pulled off her pants and underwear with both of his hands.

Hannah did not try to move away from defendant. She was scared and did not know where to go. A cat jumped onto the bed and Hannah started playing with the cat.

Defendant left the room and came back with a washcloth. He knelt at the foot of the bed, pushed Hannahs legs open with both hands, and rubbed her vaginal area, first with the washcloth, then with his bare hands. He placed his hands on both of her knees and used his tongue and mouth on her vagina. At first, defendant kept his hands on both of Hannahs legs. As he continued to orally copulate her, he used his hands to rub her vaginal area. He tried to penetrate her vagina with his finger, but she was so small that it did not go in. She recalls him poking her with his finger.

Hannah estimated that the oral copulation lasted 10 to 15 minutes. During that time, she continued to pet the cat. She did this to keep her mind in another place and distract her attention from what defendant was doing. She was smaller than defendant and felt helpless.

D.    Fourth Incident in RV (Lewd or Lascivious Conduct)

Defendant had a recreation vehicle (RV) parked outside his house. When she was six years old, she ended up inside the RV with defendant. Defendant took off Hannahs pants and underwear and rubbed her buttocks and vaginal areas with his fingers. Defendant took off his pants, exposed his penis, and placed his penis on Hannahs lower back. Hannah could not recall whether defendant also took off his underwear. Someone came home and interrupted them, so the conduct did not escalate into anything more. Hannah recalled hearing a car and a womans voice.

Hannah was scared and wanted to run home. She felt she had nowhere to go and was afraid she would be stopped.

Later that day, defendant came over to her house to fix her parents washer or dryer. When her mother was not looking, defendant stood behind Hannah and touched her buttocks over her clothes. This made Hannah feel belittled, as if something had been taken away from [her].

E.     Fifth Incident at Barn (Lewd or Lascivious Conduct)

When Hannah was seven years old, she went with defendant and Son to an old barn or stable across the street from defendants house. Hannah was standing near a fence while Son chased jack rabbits. Defendant approached Hannah from behind and rubbed her buttocks and vaginal area over her pants. Hannah testified that she was pressed up against the fence, standing on the lower rail, and that defendant was standing behind her, very close to her. Hannah felt trapped, as if she could not go anywhere. She was afraid something would happen if she tried to run away or tell her family. Defendant said, Dont tell your family or else. Hannah felt scared, like she had a burden put on [her].

F.     Victim Reveals Abuse to Her Girlfriends

When Hannah was 10 or 11 years old, defendant and his wife separated and defendant moved away. Thereafter, Hannah would see him driving around the neighborhood. When she was older, she saw him at the gas station where she worked. Before she reported the incidents to the police, Hannah told four of her high school friends about the abuse.

Hannahs friends K.J. and J.B. testified that two or three years before trial, Hannah told them on separate occasions that she had been sexually abused when she was five and six by a man who lived near her. Hannah told K.J. that the man performed oral sex on her. Hannah told J.B. that the man touched her inappropriately and touched her vagina.

G.   Defendants Prior Sexual Abuse of His Stepdaughter

Crystal, who was defendants stepdaughter for 10 years, testified at trial. In June 1999, when Crystal was 15 years old and Hannah was nine years old, Crystal was interviewed by the police regarding suspected sexual abuse by defendant.

At the trial in this case, Crystal stated that she did not want to testify and that this was Hannahs ordeal. She had reviewed the police report of the statement she gave in 1999, but did not recall talking about the things she read in the police report. She thought the 1999 interview had something to do with her mothers divorce from defendant.

Crystal recalled some sexually inappropriate behavior by defendant while she was growing up. It started when she was 10 or 11 years old. One time he exposed himself to her while seated on the living room couch. It happened quickly; she turned around and walked out. Crystal also recalled that defendant would stand outside her bedroom window and peer in at her after she was done showering while she was still naked.

Crystal did not recall (1) finding defendant in her room waiting for her after she showered; (2) waking up one night and finding defendant fondling her breasts; or (3) defendant slapping her on the buttocks and saying Youre sure developing well. She did not recall those things happening and did not recall telling the police about them. The police report did not refresh her memory. She did not know whether she was being truthful when she spoke to the police in 1999; she could have lied. She was pretty upset about the divorce; it happened because defendant had an affair. She did not think that defendant ever babysat Hannah.

In 1999, Sergeant Hunt investigated the alleged sexual abuse of Crystal. He testified that in 1999 Crystal described at least one occasion, when she was nine years old, when she awoke and found defendant fondling her breasts. She asked him to leave and he did. She told the officer that there were instances where she would come out of the shower and find defendant in her room waiting for her. She would ask him to leave and he did. She would then find him peering in at her window, watching her change. Crystal told the officer about one incident in which defendant pulled down his pants and masturbated his erect penis in front of her. She also reported that defendant would slap her rear end and say things like Youre developing well. Crystal told the officer this conduct continued until she told her mother about it, which occurred when she was about 12 years old.

Sergeant Hunt testified that Crystal did not want to talk to the police about these things in 1999. At that time, she said defendant was a sick person who needed help. She said she did not want him prosecuted and held no grudges against him. She refused to testify against defendant in 1999 and told Sergeant Hunt that it would only make matters worse because of Son and that she wanted to forget the whole thing.

H.    Victims Pretext Telephone Call to Defendant

As part of the police investigation in this case, Hannah made a pretext telephone call to defendant and confronted defendant about the sexual abuse. That phone call was recorded; the jury heard the recording.

During the phone call, Hannah accused defendant of touching her vagina and putting his mouth on it. Defendant admitted the conduct occurred, stated that it was the stupidest thing he has ever done, and said that he has been afraid of going to jail ever since. He said he was in a bad situation around his step-daughter, Crystal; that it advanced worse and went from Crystal to Hannah. He said he remembered everything and that it ruined his life because it haunts him. He admitted that Hannah was young, . . . six or something. He stated that he touched her four or five times, admitted that he was wrong, and said that he was sorry. He said he put his mouth on Hannahs vagina one time for a couple minutes. He stated that he never touched Crystal like that, but admitted that he grabbed Crystal and pinch[ed] her butt. He said his wife took him to classes and that theres nothing that will ever cure it.

I.       Expert Testimony on Child Sexual Abuse Accommodation Syndrome

Carl Lewis, a senior investigator with the district attorneys office, was qualified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). Lewis explained that CSAAS is not a diagnosis or psychological disorder; it is conceptual information that aids in understanding the unexpected things that occur in child sexual abuse cases. Lewis explained that Dr. Roland Summit, a licensed psychiatrist, published a landmark article on CSAAS in 1983, putting information that he had obtained treating offenders and victims of child sexual abuse into plain language so that others could look beyond the myths about child sexual abuse. According to Dr. Summit, there are five patterns that are common in child sexual abuse cases: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicting, or unconvincing disclosure; and (5) retraction.

Lewis explained that the offender will often threaten the victim or promise a reward to keep the conduct a secret. According to Dr. Summit, most cases of child sexual abuse are not reported in childhood. Accommodation can take various forms. Most commonly, the child will act as if nothing is wrong to try to remain in control of the situation. Sometimes children just accept the abuse. The way they cope is to disassociate; they focus on a bird on a branch outside or the television, waiting for the conduct to be over. Lewis explained that these cases often involve delayed disclosures and the way the disclosure is made often makes the child seem unbelievable. Lewiss role was not to say that Hannah, who he had no information about, was a victim of child sexual abuse. His role was to educate the jury about popular misconceptions in this area.

On cross-examination, Lewis stated that delayed reporting, secrecy, or retraction may indicate abuse or no abuse. He agreed that the CSAAS theory is not proof that sexual abuse occurred.

II.    Defense Case

Defendant did not testify and relied on the state of the evidence.

Discussion

Standard of Review for Challenges to the Sufficiency of the Evidence

We review a criminal conviction that challenges the sufficiency of the evidence to support the conviction under the substantial evidence standard of review. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.) In determining whether the evidence is sufficient to support a conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 578.) Under this standard, the court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Hatch (2000) 22 Cal.4th 260, 272.)

The prosecutions burden of proof at trial on the allegations of criminal conduct was beyond a reasonable doubt. However, the prosecutions burden of proof on the statute of limitations issue was by a preponderance of the evidence. (People v. Linder (2006) 139 Cal.App.4th 75, 85.) In addressing a challenge to the sufficiency of the evidence, we employ the substantial evidence standard of review, regardless of the standard of proof at trial, whether a preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)

Sufficiency of the Evidence of Substantial Sexual Conduct to Support Tolling of Statute of Limitations on Lewd Conduct Counts

Defendant contends that his convictions on counts 2, 3 and 4 (the lewd conduct counts) must be reversed because those counts are barred by the statute of limitations and that there was insufficient evidence to support the jurys true finding that those counts involved substantial sexual conduct as required by section 803, subdivision (f) to toll the statute of limitations. The Attorney General argues that defendant has forfeited this claim by failing to raise the statute of limitations issue in the trial court. On the merits, he argues that there was sufficient evidence of substantial sexual conduct to support the jurys true finding. We conclude that the claim was not forfeited, and that there was sufficient evidence to support the jurys finding.

A.     Background

The information alleged that the lewd conduct in this case occurred between December 1994, and December 1997, the time frame during which Hannah was

five to seven years old.

The information contained a special allegation that contained certain factual elements required to extend the statute of limitations on the lewd conduct counts under section 803, subdivision (f). Subdivision (f) of section 803 provides in relevant part: (1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, . . . . [] (2) This subdivision applies only if all of the following occur: [] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired. [] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. [] (C) There is independent evidence that corroborates the victims allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victims allegation. (Italics added.)

The information alleged that Hannah reported a violation of section 288 to the police in January 2008, less than two months before the complaint was filed. It alleged that the applicable limitations period had expired, that the crimes involved substantial sexual conduct, and that defendants admissions during the pretext telephone call were independent evidence that clearly and convincingly corroborated the victims allegations.[3] The jury found the special allegation true as to all three counts. Defendant challenges the sufficiency of the evidence to support the jurys finding of substantial sexual conduct.

B.    Forfeiture

Anticipating the Attorney Generals forfeiture argument, defendant cites Cowan v. Superior Court (1996) 14 Cal.4th 367 and argues that a defendant in a criminal case may assert the statute of limitations at any time. The Attorney General cites People v.Thomas (2007) 146 Cal.App.4th 1278 (Thomas), a case that involved former section 803, subdivision (g), which is substantially similar to the section 803, subdivision (f) (Thomas, at p. 1285, fn. 2.), and argues that defendants failure to challenge the factual application of the statute of limitations [below] precludes him from raising the issue for the first time on appeal. Both parties are incorrect with regard to the forfeiture issue.

As the Thomas court observed, when the information alleges that the defendant committed the charged offense outside the limitations period and contains no other facts or tolling allegations that ma[k]e the prosecution timely a claim that the prosecution is time-barred is not forfeited and may be raised at any time. (Thomas, supra, 146 Cal.App.4th at p. 1287, citing People v.Williams (1999) 21 Cal.4th 335, 341.) However, when the information alleges facts that indicate a tolling or extension of the limitations period, as was the case here, the defendant must raise the limitations issue in the trial court or it is forfeited. (Thomas, at pp. 1282, 1288-1289.)

Although the Attorney General correctly states these rules, he fails to note an important distinction between this case and Thomas. The defendant in Thomas raised a claim of instructional error related to the statute of limitations issue. (Id. at p. 1285.) In this case, defendant challenges the sufficiency of the evidence to support the jurys factual findings related to the extension of the limitations period. Generally, points not urged in the trial court cannot be raised on appeal. (People v. Butler (2003) 31 Cal.4th 1119, 1126.) However, a challenge to the sufficiency of the evidence to support a factual finding is not forfeited by failing to raise the issue in the trial court. (Ibid.) Since defendant challenges the sufficiency of the evidence to support the jurys finding that defendant engaged in substantial sexual conduct for the purpose of extending the statute of limitations, we conclude the claim has not been forfeited.

C.    Legal Principles and Analysis

As noted above, for the tolling provision in section 803, subdivision (f) to apply, there must be substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual. ( 803, subd. (f)(2)(B), italics added.) In People v.Terry (2005) 127 Cal.App.4th 750, 771-772 (Terry), this court interpreted the phrase substantial sexual conduct in former section 803, subdivision (g)(2)(B), which was identical to the statutory provision at issue here, section 803, subdivision (f)(2)(B). In Terry, we stated, Section 803[, subdivision] (g) expressly incorporates the definition of substantial sexual conduct contained in section 1203.066 with the exception of masturbation that is not mutual. Section 1203.066 defines substantial sexual conduct to mean penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oralcopulation, or masturbation of either the victim or the offender. (Terry, at p. 771.)

The defendant in Terry argued that the rubbing of the victims vagina over her clothes did not constitute substantial sexual conduct because there was no direct skin-to-skin contact between [the defendants] body and [the victims] genitals and not every indirect touching of a childs genital area constitutes masturbation. (Terry, 127 Cal.App.4th at p. 770.) We rejected that argument and explained that the exception in the statute for masturbation that is not mutual refers to a defendants self-masturbation in the presence of the victim and that the defendants acts of masturbating the victim fell within the statutory definition of mutual masturbation and thus qualif[ies] for the extended statute of limitations described in that section. (Id. at p. 771, citing People v. Lamb (1999) 76 Cal.App.4th 664, 677-682.) We observed that neither former section 803, subdivision (g) nor section 1203.066 requires an act of masturbation to involve skin-to-skin contact and stated, Whether the genital touching occurs over clothing is not determinative. Masturbation as . . . is commonly understood can occur under clothing and over clothing. (Terry, at p. 771.) We therefore held that rubbing the victims vagina over her clothing qualified as substantial sexual conduct under section 803. (Id. at p. 772.)

While Hannah testified regarding four incidents of lewd conduct,[4] the information only charged three such acts. Defendant concedes that the incident in Sons room in which defendant placed his penis on Hannahs lower back involved substantial sexual conduct. He contends that the other three incidents do not. We disagree.

In the first incident in the playroom, defendant rubbed Hannahs buttocks and vagina for five to 10 minutes, first with his bare hand, then through the washcloth. In the fourth incident in the RV, defendant rubbed Hannahs bare buttocks and vagina with his fingers and placed his penis on her back. In the fifth incident at the barn, he rubbed her buttocks and vagina over her pants. Pursuant to Terry, this rubbing of the vaginal area, whether it involved skin-to-skin contact or was through the victims clothing or the washcloth was masturbation of the victim, which constitutes substantial sexual conduct for the purpose of section 803, subdivision (f). We therefore reject defendants contention that there was insufficient evidence of substantial sexual conduct to extend the statute of limitations.

Sufficiency of the Evidence of Force or Duress to Support Conviction for Aggravated Sexual Assault

Defendant argues that the evidence adduced at trial is insufficient to support his conviction for aggravated sexual assault of a child under former section 269 because there was insufficient evidence that he used force or duress to commit the offense.

A.     Background

The aggravated sexual assault of a child count was based on the oral copulation of Hannah in defendants bedroom when she was five or six years old. Hannah turned five in December 1994. At that time, former section 269 provided in relevant part:

(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [] . . . [] (4) Oral copulation, in violation of Section 288a, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.[5] (Added by Stats. 1994, c. 878, 1, p. 4434; Stats. 1993-94, 1st Ex.Sess., c. 48, 1, p. 8761.) During argument, the prosecution relied on the theories of force and duress to prove forcible oral copulation in violation of section 288a as the basis for the aggravated sexual assault of a child count. Defendant contends that the evidence is insufficient to establish either force or duress.

B.    Legal Principles

The terms force and duress are used in the disjunctive in former section 269. Thus, to be sufficient to sustain the conviction for aggravated sexual assault of a child, the evidence must disclose substantial evidence of either force or duress, but not both. We begin by addressing the meaning of force in the context of aggravated sexual assault of a child by means of forcible oral copulation.

Decisional law makes clear that the definition of the word force in sexual offense statutes depends on the offense involved. (In re Asencio (2008) 166 Cal.App.4th 1195, 1200 (Asencio).) In People v. Cicero, the court held that to establish force within the meaning of section 288 subdivision (b)(1)which makes criminal the commission of a lewd act on a child under the age of 14 that is accomplished by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injurythe prosecution must show the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. (People v. Cicero (1984) 157 Cal.App.3d 465, 474 (Cicero).)

In People v. Griffin (2004) 33 Cal.4th 1015, 1025-1026 the California Supreme Court limited the use of this specialized definition of force, finding that it did not apply to the forcible rape statute. The Griffincourt observed that [t]he element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288. When two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. (Griffin, supra, 33 Cal.4th at p. 1027.) In short, force plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victims will. (Id. at p. 1025.)

In People v. Guido (2005) 125 Cal.App.4th 566, 574-576, the Third District Court of Appeal considered the meaning of force in the context of aggravated sexual assault on a child by forcible oral copulation ( 269, subd. (a)(4)), the crime that is at issue here. The court concluded that the reasoning of Griffin appl[ies] equally to the crime of forcible oral copulation. (Guido, at p. 576.) As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victims will by means of force, . . . . (Ibid.) After noting the similarity between the language in the forcible oral copulation and forcible rape statutes, the court concluded, there is no reasoned basis to apply a different concept of the term force to forcible rape and forcible oral copulation[.] (Ibid.) [W]e hold oral 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 victims will. (Ibid.)

More recently, in Asencio, the court held that this same level of force applies to convictions of aggravated sexual assault of a child by penetration ( 269, subd. (a)(5)). (In reAsencio, supra, 166 Cal.App.4th at p. 1200.)

C.    Analysis

We find no reason to depart from Guidos reasoning and conclusion. The question in this case, therefore, is whether defendant used force to accomplish [oral copulation] with [Hannah] against her will, not whether the force he used overcame [Hannahs] physical strength or ability to resist him. (Griffin, supra, 33 Cal.4th at p. 1028.)

Defendant was 30 years older than Hannah. She testified that this incident occurred when she was five or six years old, which means defendant was 35 or 36 years old when he committed the crime. Defendant carried Hannah from another room into the bedroom and placed her in a sitting position on the bed, with her feet dangling over the foot of the bed. He pushed her back onto the bed and pulled off her pants and underwear with both hands. Hannah was scared and did not know where to go. When defendant returned with the washcloth, he knelt at the foot of the bed, in effect blocking Hannah against the bed with his body. He pushed her legs open with both hands and placed his hands on both of her knees. Initially, he kept his hands on her legs, holding her down, as he orally copulated her. Hannah testified that she was smaller than defendant and felt helpless. She did not want any of the sexual acts to occur and did not understand what defendant was doing to her. Based on this evidence, a jury could reasonably conclude that defendants superior size, the general positioning of the act (i.e., blocking Hannah against the bed and holding her down with his hands and body), and Hannahs testimony that she did not welcome the touching combined to constitute the use of force against Hannahs will.

Defendant argues that there was less evidence of force or duress here than in Guido or Griffin or Asencio. As the Griffin court observed, there are no limits on the type of conduct that can constitute force, and even conduct normally attendant to the sexual act can support a forcible conviction if engaged in with force sufficient to overcome the victims will[.] (Griffin, supra, 33 Cal.4that p. 1027.) In Griffin, the court found sufficient evidence of force based on the fact that the defendant held the 16-year-old victims arms against the floor while he accomplished the sex act and the fact that the sex act was accomplished against the victims will. (Griffin, supra, 33 Cal.4th at p. 1029.) In this case, in which the victim is several years younger than the victim in Griffin, we believe the evidence is similarly sufficient. The Asencio court found sufficient evidence of force where the defendant pulled down the six-year-old victims underwear and rolled his adult body on top of her, a move that a reasonable jury could have concluded immobilized her and pinned her to the bed, coupled with evidence that the act was done against the victims will. (Asencio, supra, 166 Cal.App.4th at pp. 1205-1206.) We are not persuaded that the force used here was less than the force used in Asencio orGriffin. Defendant pulled down an unwilling victims pants, blocked her against the bed with his body, and held her legs down while performing the sexual act.

For these reasons, we reject defendants challenge to the sufficiency of the evidence to support a finding of force necessary to support the conviction for aggravated sexual assault on a child.[6]

Sufficiency of the Evidence of Force or Duress to Support Convictions for Lewd Conduct Under Section 288, Subdivision (b) (Counts 2, 3, and 4)

Defendant contends that there was insufficient evidence of force or duress to support his three convictions for lewd conduct by force or duress under section 288, subdivision (b) in counts 2, 3 and 4.

A.     Force

Section 288, subdivision (a) makes criminal any lewd act upon or with a child under the age of 14 with the intent of arousing the sexual desires of the defendant or the child. Subdivision (b)(1) of section 288 (hereafter sometimes subdivision (b)(1)) makes criminal the commission of such acts accomplished by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . . To establish force within the meaning of subdivision (b)(1), the prosecution must show the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. (Cicero, supra, 157 Cal.App.3d at p. 474.) The prosecution need not prove that the victim resisted the lewd act. (Id. at p. 485.) Applying these principles, the Cicero court upheld convictions of a defendant who picked up two girls, moved his hands between their legs, opened and closed his hands on the girls crotches as he carried them along, . . . . [Citation.] The evidence supported the convictions because the lewd acts of fondling the victims genital areas were undertaken without the victims consent and were accomplished by the applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches, i.e., picking them up and carrying them along as the defendant committed the lewd acts. (People v. Neel (1993) 19 Cal.App.4th 1784, 1787, citing Cicero, at pp. 474, 485-486.)

Several cases have interpreted the Cicero definition of force in the context of violations of subdivision (b)(1). For example, in People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitman) (superceded by statute on another ground as stated in People v.Valentine (2001) 93 Cal.App.3d 1241, 1250) evidence that the defendant grabbed the victims hand, placed it on the defendants genitals, rubbed himself with the victims hand, and pushed the victims head as he made the victim orally copulate him was sufficient to support a finding of force within the meaning of subdivision (b)(1). (Pitmon, at pp. 44-45, 48.) The court stated: There can be little doubt that defendants manipulation of [the victims] hand as a tool to rub his genitals was a use of physical force beyond that necessary to accomplish the lewd act. The facts show [defendant] had hold of [the victims] hand throughout this act. Further, the record reveals that in those instances in which [the victim] orally copulated defendant, defendant slightly pushed [the victims] head back during each performance of that act. Again this displayed a use of physical force that was not necessary for the commission of the lewd acts. (Id. at p. 48; accord People v. Mendibles (1988) 199 Cal.App.3d 1277 [defendant held two victims and made them wash his penis on one occasion and orally copulate him on a second occasion; the defendant pulled one of the victims back as she tried to get away; he pulled the other victims head forward to force her to orally copulate him].)

In People v. Bolander (1994) 23 Cal.App.4th 155 (Bolander) this court explained that the force requirement in subdivision (b) is intended as a requirement that the lewd act be undertaken without the consent of the victim. (Id. at p. 161, citing Cicero,supra, 157 Cal.App.3d at pp. 475-476.) In Bolander, we held that the defendants acts of overcoming the victims resistance to having his pants pulled down, bending the victim over, and pulling the victims waist towards him constitute force within the meaning of subdivision (b) in that defendant applied force in order to accomplish the lewd act[] without the victims consent. (Bolander,at p. 161, quoting People v. Neel (1993) 19 Cal.App.4th 1784, 1790, alteration in original.)

The facts of the second incident in this case, which occurred in Sons room, are very similar to those in Bolander. Defendant came up from behind Hannah, who was bent over a toy box that was against a wall. He stood behind her and pulled down her pants and her underwear, but did not take them off of her. He rubbed her buttocks and vagina for three to five minutes, then placed his penis on her back. A jury could reasonably conclude from these facts and defendants size relative to Hannahs that defendant pinned Hannah against the toy box, which was against the wall, thereby restraining her. The fact that she was bent over and that her pants and underwear had been pulled down, effectively immobilizing the child, acted as a further restraint that prevented her from escaping the sexual act. A defendant may fondle a childs genitals without pulling down her pants, pinning her against a piece of furniture, or otherwise restraining her movement. Such force is different from and in excess of the type of force used to accomplish similar lewd acts with a victims consent.

Similarly, during the fifth incident at the barn, defendant came up from behind Hannah while she was standing on the lower rail of a fence, with her body pressed up against the fence. He stood behind her and fondled her buttocks and genitals over her pants. Hannah testified that defendant was standing very close to her and that she felt trapped, as if she could not go anywhere. Given the relative difference between their ages and sizes (Hannah was 7; defendant was 37), a jury could reasonably conclude that defendant had pinned Hannah up against the fence to accomplish the sex act. The same reasoning applies as with the incident in Sons room: a defendant may fondle a childs genitals without pinning her against a fence.

Based on this evidence, we conclude that a rational trier of fact could have readily found, with regard to the incidents in Sons room and at the barn, that defendant committed the lewd acts by use of force within the meaning of section 288, subdivision (b)(1). Since we conclude that there was sufficient evidence of force, we shall not analyze whether there was also sufficient evidence of duress involved in these two incidents to support the convictions for lewd conduct under section 288, subdivision (b)(1).

B.    Duress

For the third lewd conduct conviction under section 288, subdivision (b)(1), we turn to the alternate theory of duress.

Duress under section 288, subdivision (b)(1), is defined as a direct or implied threat of force, violence, danger, hardship 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. (Pitmon, supra, 170 Cal.App.3d at p. 50.) Our Supreme Court has approved of Pitmons definition of duress, recognizing that it had been consistently followed for almost two decades. (People v. Leal (2004) 33 Cal.4th 999, 1004-1005 (Leal).) The high court acknowledged that the definition applied not only to forcible lewd acts committed on children under 14 ( 288, subd. (b)(1)), but also to aggravated sexual assaults on children under 14 ( 269). (Leal, supra, at p. 1005.)

In evaluating a sufficiency-of-the-evidence challenge to a finding of duress, we consider the totality of the circumstances including the age of the victim, and [her] relationship to [the] defendant. (Pitmon, supra, 170 Cal.App.3d at p. 51.) [D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) Physical control over the victim, even if it is insufficient to constitute forcemeaning force substantially different from or substantially greater than that necessary to accomplish the lewd act itself (Cicero, supra, 157 Cal.App.3d at p. 474)may create duress. (People v. Schulz, supra, at p. 1005.) Other factors include the physical size disparity between the defendant and the victim that may contribute to the victims sense of vulnerability. (Pitmon, supra, 170 Cal.App.3d at p. 51.) In addition, the position of dominance and authority of the defendant and his continuous exploitations of the victim (People v. Cardenas (1994) 21 Cal.App.4th 927, 940) are relevant factors in determining whether the sex crime was accomplished through duress. Other relevant circumstances may include threats to harm the victim, physically controlling a resisting victim, and threats of retribution if the victim reveals the molestation. (People v. Cochran (2002) 103 Cal.App.4th 8, 14.)

We review the facts surrounding the fourth incident in the RV to determine whether there was sufficient evidence to support a finding of duress. The RV incident occurred when Hannah was six years old and defendant was 36 years. The record does not contain information regarding defendants weight at the time of the lewd acts, but it indicates that he was five feet 10 inches tall and weighed 145 pounds at the time of sentencing. There was no evidence regarding Hannahs size. But she was only six years old and there was no evidence that she was large for her age. Thus, there were significant age and size disparities between defendant and Hannah. At the time of the molestations, defendant was a trusted friend of Hannahs family. The families were neighbors and shared common interests. Hannahs parents knew defendant and his wife. Defendant babysat Hannah and the first three molests occurred while defendant was babysitting Hannah and no other adults were around.

As noted above, defendants previous exploitation of Hannah is relevant to the question whether he committed the lewd acts in the RV by duress. Prior to the incident in the RV, defendants conduct was escalating. During the first molestation, he touched Hannahs genitals for five to 10 minutes and asked Hannah if she wanted to see his penis. She felt hopeless and scared and knew it was wrong. In the second incident, he pulled her pants down, pinned her against a toy box, fondled her buttocks and genitals for three to five minutes, unzipped his pants, placed his penis on her back and rubbed it against her back and buttocks. Again, Hannah knew this was wrong and she was scared. As we held above, this incident involved force greater than that required to commit the sexual conduct. During the third incident, defendant carried Hannah from one room to another, pushed her down on the bed, pulled her pants and underwear off, forced her legs open, and held her legs while he orally copulated her, then masturbated her and tried to digitally penetrate her. Hannah remembers that she was smaller than defendant; that she felt helpless and felt that she could not go anywhere. She played with the cat to keep [her]self in another place and distract her attention from what defendant was doing to her.

In the fourth incident in the RV, defendant took off Hannahs pants and underwear again, just as he had done in the prior incidents involving force in Sons room and defendants bedroom. He rubbed her buttocks and vagina and exposed his penis and placed it on Hannahs back. Hannah was scared and wanted to run home. But she felt she had nowhere to go. The jury may have inferred that since her pants were off, she did not feel she could go outside or run away. Years later, Hannah told a friend that defendant forced himself on her. Since defendant had used force before and the conduct was escalating, it would have been reasonable for Hannah to assume that he was going to use force again in the RV if they had not been interrupted by someone coming home.

A rational jury was entitled to infer from the totality of the circumstances that defendant took advantage of his position of trust as a family friend, his superior size, the age difference, his prior use of force, and Hannahs fear each time he touched her to intimidate her into submission. Based on this evidence, we conclude that there was sufficient evidence of an implied threat of force or danger sufficient to constitute duress during the RV incident to support defendants third conviction under section 288, subdivision (b)(1).

Defendant argues that the circumstances here are analogous to those in People v.Espinoza (2002) 95 Cal.App.4th 1287, a case in which this court concluded that there was insufficient evidence of duress. In our view, this case is factually distinguishable from Espinoza. The 12-year-old victim in Espinoza had just started living with her father. There was evidence that he molested her five times during the first two weeks that she lived with him, while her sisters slept in another room. The first four times, he sat on her bed, lifted her nightshirt and fondled her breasts and vagina under her underwear and bra. One of those times, he asked her if she still loved hm. Otherwise, he said nothing. The fifth time, he rubbed her body, put his tongue in her mouth, orally copulated her, and tried to have intercourse with her. We held that there was insufficient evidence of duress, since there was no evidence of a direct or implied threat of any kind. (Id. at p. 1321.) In contrast, here there was an implied threat of force based on all circumstances in the case, including defendants escalating conduct and his prior use of force.

For all these reasons, we conclude that there was sufficient evidence of force with regard to two counts and duress with regard to one count to support defendants conviction of three counts of lewd or lascivious conduct by force or duress under section 288, subd. (b)(1).

Cruel and Unusual Punishment

Defendant contends his sentence violates both the state constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, 17) and the federal constitutional prohibition against cruel and/or unusual punishment (U.S. Const., 8th Amend.). The Attorney General argues that defendant has forfeited this claim by failing to raise it below. On the merits, he contends that the sentence is not cruel and unusual.

A.     Sentence Imposed

On each of the three lewd conduct counts, the court sentenced defendant to the full middle term of six years and ordered that those sentences be served consecutively, pursuant to section 667.6, subdivisions (d) and (e). The court sentenced defendant to 15 years to life on the aggravated sexual assault count and ordered that the sentence on that count be served consecutively to the sentences on the three lewd conduct counts pursuant to section 667.6, subdivision (c).

B.    Forfeiture

Defendant contends that this sentence constitutes cruel and/or unusual punishment under both the state and federal standards because it is grossly disproportionate to his culpability. By failing to raise this claim below, defendant has forfeited this argument. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) However, we shall proceed to the merits of his claim to forestall a potential claim of ineffective assistance of counsel. (DeJesus, at p. 27.)

C.    Governing Legal Principles

We will analyze defendants claim under the California Constitution, since the federal Constitution affords no greater protection than the state Constitution. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510; compare In re Lynch (1972) 8 Cal.3d 410, 424-427 with Harmelin v. Michigan (1991) 501 U.S. 957.)

In re Lynch, supra, 8 Cal.3d 410 prescribed three techniques for assessing whether punishment is cruel or unusual. To determine if a punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity (id. at p. 424), courts should (1) consider the nature of the offense and/or the offender, (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses, and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense. (Id. at pp. 425-427). The assessment may be based solely on an examination of the offense and the offender. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1195-1200.)

Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)

D.    Analysis

1.      Nature of Offense and Offender

We first consider the nature of the offense and the offender. Regarding the offense, we evaluate the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts. (People v. Dillon (1983) 34 Cal.3d 441, 479.) We also focus on the particular offenders individual culpability as shown by such factors as his [or her] age, prior criminality, personal characteristics, and state of mind. (Ibid.)

We begin by reviewing information regarding the offender. When the incidents involving Hannah occurred, defendant was an adult between the ages of 35 and 37. At the time of sentencing, he was 49 years old. There was no evidence he was unusually immature emotionally or intellectually, like the defendant in People v. Dillon, supra, 34 Cal.3d at pages 482, 483, 486, and 488. Defendant left high school in the 10th grade and did not have a high school diploma. By the time of sentencing, he had been self-employed as a construction contractor for 30 years and reported earnings of $40,000 to $50,000 per year.

With regard to his criminal history, defendant had nine prior misdemeanor convictions. His prior convictions included possession of alcohol by a minor in 1978, theft in 1980, and reckless driving in 1981. Defendant was convicted of driving under the influence in 1983 and of driving on a suspended license and other Vehicle Code infractions in 1989. In 2001, he was arrested for corporal injury on a cohabitant and pleaded guilty to simple battery. In 2003, 2004, and 2005, defendant was convicted on three separate occasions of vehicle-related offenses, including driving without a license, driving on a suspended license, failure to register a trailer, unsafe speed, and failure to prove financial responsibility.

There was evidence of uncharged lewd conduct involving defendant. In 1999, when defendants step-daughter Crystal was 15 years old, she told police that defendant had engaged in inappropriate sexual conduct around her when she was between the ages of nine and 12. Once, when she was nine years old, she awoke and found defendant in her room fondling her breasts. Sometimes, when she came out of the shower, she found defendant in her room waiting for her. He left when she asked him to leave, but she would then find him peering in at her window, watching her change. Once, defendant pulled down his pants and masturbated his erect penis in front of her. Crystal also reported that defendant would slap her rear end and say things like Youre developing well.

In addition, there was evidence that defendant made inappropriate sexual advances towards Hannahs sister (Sister) during the same time period that he was molesting Hannah. The court found that evidence inadmissible on Evidence Code section 352 grounds. According to the prosecutions trial brief, defendant touched Sisters breasts and buttocks both over and under her clothing on more than one occasion. He would brush up against her breasts or buttocks or touch her in a quick manner. One time, while Sister was babysitting Son, defendant came home before anyone else, asked Sister about boys and sex, and offered her money to have sex with him. Sister was on a bed in a bedroom, watching a movie with Son. After she refused his offer, defendant stood off to one side by a bathroom and took off his clothes in front of Sister. Sister told Crystal and another girlfriend about the incident and the girlfriend told defendants wife about it. Sister recalled a meeting with defendant and his wife where Sister confronted defendant about his conduct. At that time, defendant acknowledged that he had a problem and apologized for what he did. Defendant blamed his sexual compulsion on the fact that he did not date when he was younger and said that Crystal and Sister wore sexually provocative clothing. Defendant asked Sister not to tell anyone or go to the police because he had to take care of his young son. He told his wife he would get help for his problem and asked her not to report what had happened. Sister did not tell anyone because she was too embarrassed.

In the pretext telephone call, defendant denied touching Sister. But he told Hannah that Sister would always come on to him and that once, when Sister was babysitting, she follo