P. v. Sanchez
Filed 8/1/12 P. v. Sanchez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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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.
BENJAMIN RAMOS
SANCHEZ,
Defendant and Appellant.
E051586
(Super.Ct.No. SWF026319)
OPINION
APPEAL from the Superior
Court of
County. Mark E.
Petersen, Judge. Affirmed.
Carl Fabian, 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, and Lilia E. Garcia and Lynne G. McGinnis, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Benjamin Ramos Sanchez was accused of
sodomizing his 12-year-old half sister.
In closing argument, defense
counsel conceded that the charged act of sodomy occurred. He argued, however, that because the act was
consensual there was no force, fear, or duress.
A jury found defendant guilty of aggravated
sexual assault on a child by means of sodomy (count 1, Pen. Code,
§ 269, subd. (a)(3)), a forcible lewd act on a child (count 2, Pen.
Code, § 288, subd. (b)(1)), and sodomy on a child (count 3, Pen. Code,
§ 286, subd. (c)(1)).
Defendant was sentenced to a total of 21 years to
life, plus the usual fines and fees.
Defendant contends:
1. There
was insufficient evidence of force, fear, or duress to support the convictions
on count 1 (aggravated sexual assault on a child) and count 2 (forcible lewd
act on a child).
2. The
trial court erred by ruling that consent was not a defense to count 1
(aggravated sexual assault on a child).
We will hold that there was sufficient evidence
of force. The trial court did err by
ruling that consent was not a defense to count 1. We are convinced, however, that the error was
harmless.. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
A. The Charged Sex Act.
As of the night of August 18-19, 2008, defendant was 29. His half sister, Jane Doe,
12. They lived in Riverside
County with their mother and her
“significant other.”
That night, Doe was sleeping, as she usually did,
in a bed with her two younger brothers.
Around 4:00 or 5:00 a.m., she woke up and saw
defendant. He reached under her bra and
touched her breasts. He also put his
mouth on her breasts. This went on for “about
five minutes.”
Doe kept pinching one of her brothers “hard” to
wake him up, but without success. When
asked why she did not use her voice, she said, “I couldn’t because [defendant]
was on top of me.”
Doe repeatedly testified that she did not remember
whether she was lying on her back or on her stomach at this point. She did testify that defendant was lying on
her and pressing “on [her] back.”
However, when asked if she was lying on her back, she said, “I think
so.” She also testified that defendant
then “moved” her onto her stomach.
Next, defendant sodomized her. His hands were on either her head or her
back, “pushing [her] toward the bed.”
“[B]ecause of that, [she] couldn’t really get away
. . . .” It hurt “[a]
little bit.” After 10 or 15 minutes, he
ejaculated.
Doe admitted that she did not resist. She testified that she was scared that
defendant would hurt her “if [she] tried to do something.”
After defendant got up and went to the bathroom,
Doe woke her mother and told her what had happened. Doe was scared and crying. Her mother talked to defendant;
In a forensic interview, Doe made a number of
statements that were inconsistent with her testimony at trial. She was not sure whether defendant touched
her breast first or sodomized her first; she thought these occurred at the same
time. At trial, she said she saw
defendant’s face, but she could not see his tattoo. In the interview, however, she said she could
not see his face, but she recognized him from, among other things, his
tattoo. She also said that defendant had
already left the house when she told her mother.
A sexual assault examination showed three
superficial anal lacerations, which is “very unusual” but consistent with anal
intercourse (including consensual anal intercourse).
B. Uncharged Sex Acts.
Doe testified that defendant first started
“touching” her in February 2008.
“[A]lmost every day,” he came into her room while she was in bed with
her younger brothers and had intercourse with her — about half the time anal
but about half the time vaginal. Her
brothers never woke up.
She was “[a] little” scared. She did not tell anybody, because she
“thought [defendant] was going to do something if [she] said anything.” After the charged sex act, however, she went
to her mother because she “just got tired of it.”
Doe did not disclose the uncharged sex acts in
the forensic interview or at the preliminary hearing. Ultimately, she disclosed them for the first
time about six months after the preliminary hearing to a investigator from the
district attorney’s office. She
explained that she was “worried that [her] mom would be mad because [she]
hadn’t told her sooner[.]”
The sexual assault examination indicated that
Doe’s hymen was intact.
II
THE SUFFICIENCY OF THE
EVIDENCE OF FORCE, FEAR, OR DURESS
Defendant contends that there was insufficient
evidence of force, fear, or duress to support the convictions on count 1
(aggravated sexual assault on a child) and count 2 (forcible lewd act on a
child).
“When the sufficiency of the evidence to support
a conviction is challenged on appeal, we review the entire record in the light
most favorable to the judgment to determine whether it contains evidence that
is reasonable, credible, and of solid value from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
‘Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of
the trial judge or jury to determine the credibility of a witness and the truth
or falsity of the facts upon which a determination depends.’ [Citation.]
Unless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to
support a conviction. [Citation.]” (People
v. Elliott (2012) 53 Cal.4th 535, 585.)
The crime of an aggravated sexual assault on a
child by means of sodomy requires an act of “[s]odomy, in violation of
paragraph (2) or (3) of subdivision (c), or subdivision (d), of [Penal Code
s]ection 286.” (Pen. Code, § 269,
subd. (a)(3).) Of these, the only one
even arguably applicable here is Penal Code section 286, subdivision (c)(2), which
requires that the act of sodomy be “accomplished against the victim’s will by
means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person . . . .” (Pen. Code, § 286, subd. (c)(2)(A), (B),
(C).)
Similarly, the crime of a forcible lewd act on a
child requires a lewd act committed “by use of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or another person
. . . .” (Pen. Code,
§ 288, subd. (b)(1).) The
prosecutor argued that the relevant lewd act consisted of touching Doe’s
breasts.
Even though the statutes use identical language,
the definition of “force” for purposes of a forcible lewd act on a child is
different than for purposes of forcible sodomy.
(See People v. Griffin (2004)
33 Cal.4th 1015, 1028 [rape].)
For purposes of forcible sodomy, all that is
required is “‘physical force of a degree sufficient to support a finding that
the act of sexual intercourse was against the will of the [victim].’ [Citation.]
. . . ‘“‘The kind of
physical force is immaterial; . . . it may consist in the taking of
indecent liberties with a woman, or laying hold of and kissing her against her
will.’”’ [Citation.]” (People
v. Griffin, supra, 33 Cal.4th at
p. 1024 [rape].)
By contrast, for purposes of a forcible lewd act
on a child, the force must be “‘substantially different from or substantially
greater than that necessary to accomplish the [sexual] act itself.’ [Citation.]”
(People v. Soto (2011) 51
Cal.4th 229, 242.) Though this is a
higher standard, it is not particularly high.
For example, in People v. Bolander
(1994) 23 Cal.App.4th 155, disapproved on other grounds in People v. Soto, supra, at
page 248 and footnote 12, the court found sufficient evidence of
force based on the “defendant’s acts of overcoming the victim’s resistance to
having his pants pulled down, bending the victim over, and pulling the victim’s
waist towards him . . . .”
(Bolander, at
p. 161.) In People v. Babcock (1993) 14 Cal.App.4th 383, evidence that the
defendant grabbed the victims’ hands and forced them to touch his genitals was
held sufficient to show the requisite force.
(Id. at p. 386.)
Proceeding chronologically, we start with
count 2, which charged a forcible lewd act based on the touching of Doe’s
breasts. Doe testified that defendant
was lying on top of her, “pressing on [her,]” and that this prevented her from
calling out to her brothers. While this
was going on, it hurt “[a] little bit.”
This showed that defendant used more force than was necessary solely to
touch Doe’s breasts. Accordingly, it was
sufficient evidence of force for purposes of a forcible lewd act on a child.
We turn to count 1, which charged an
aggravated sexual assault on a child, based on an act of forcible sodomy. Doe testified that, during the sodomy,
defendant’s hands were on either her head or her back, “pushing [her] towards
the bed.” He was pushing “[k]ind of hard.” Once again, this hurt “[a] little bit.” It prevented her from getting away. This showed that defendant used physical
force that was sufficient to support a finding that the act of sodomy was
against the will of the victim.
Accordingly, it was sufficient force for purposes of forcible sodomy.
Defendant argues that he pushed on Doe only
during the sodomy, and not earlier, while touching her breasts. Not so.
According to Doe, during the touching, he was lying on top of her and
pushing her down with his body, whereas during the sodomy, he was pushing her
down with his hands.
Defendant also argues that the force shown was
not more than was necessary to commit the act of sodomy. As already noted, count 2 required force
greater than that necessary to accomplish the sexual act itself, but
count 1 did not. In any event, the
evidence did show more force than
necessary. Defendant did not have to
press on Doe’s back or head with his hands to accomplish sodomy. Indeed, sodomy can be performed in positions
that do not require the active participant to lie on top of the passive
participant at all.
Finally, defendant argues that there was no
evidence that he pushed on Doe with the intent to overcome her will. However, there is no such intent
requirement. Indeed, at least with
respect to a forcible lewd act on a child, there is no requirement that the act
be against the victim’s will at all. (
Even with respect to forcible sodomy, there is no requirement that the
defendant use force with the intent
to overcome the victim’s will; the force need only be sufficient to overcome the victim’s will.
Because we conclude that there was sufficient
evidence of force, we need not decide whether there was also sufficient
evidence of duress.
III
INSTRUCTIONS REGARDING CONSENT
IN CONNECTION WITH
AGGRAVATED SEXUAL ASSAULT ON A
CHILD
Defendant contends that the trial court erred by
ruling that neither consent nor a mistaken belief in consent is a defense to
aggravated sexual assault on a child.
A. Additional Factual and
Procedural Background.
CALCRIM No. 1123 defines aggravated sexual
assault on a child. As given in this
case, it provides:
“The defendant is charged in Count 1 with
aggravated sexual assault of a child who was under the age of 14 years and at
least seven years younger than the defendant in violation of Penal Code
[s]ection 269(a).
“To prove that the defendant is guilty of this
crime, the People must prove that: One,
the defendant committed sodomy by force, fear, or threats in violation of Penal
Code [s]ection 286 on another person; and, two, when the defendant acted, the
other person was under the age of 14 years and was at least seven years younger
than the defendant.
“To decide whether the defendant committed sodomy
by force, fear, or threats in violation of Penal Code [s]ection 286 on another
person, please refer to the separate instructions that I will give you on that
crime.”
CALCRIM No. 1030 defines forcible
sodomy. It requires the prosecution to
prove, among other things, that the victim “did not consent to the act
. . . .” It also includes
the following optional wording: “[The
defendant is not guilty of forcible sodomy if (he/she) actually and reasonably
believed that the other person consented to the act. The People have the burden of proving beyond
a reasonable doubt that the defendant did not actually and reasonably believe
that the other person consented. If the
People have not met this burden, you must find the defendant not guilty.]”
Both the prosecutor and defense counsel requested
CALCRIM No. 1030. During an
instructions conference, however, the prosecutor asked the trial court to omit
the portions of CALCRIM No. 1030 referring to consent: “I don’t think that’s appropriate to give in
this case where . . . there’s a minor. A minor cannot consent to these acts.”
The trial court agreed: “[A] minor cannot consent. All the instructions dealing with minors
state that. Case law states that.”
The
trial court ruled that it would still give the portion of CALCRIM No. 1030
that required the prosecution to prove lack of consent,
believed that consent negated the force or fear element of the crime. It refused to give the bracketed portion
dealing with a reasonable belief in consent, “because that would fly in the
face of . . . the law that says a minor cannot consent.”
In addition, the trial court cautioned defense
counsel not to argue that consent was a defense, though it allowed him to argue
that the victim’s consent tended to disprove force or fear. It added that, if defense counsel
then [would] have to instruct the jury [that] a minor cannot consent
. . . .” Finally, it
ruled that the prosecutor could argue that “minors can’t consent, and that’s an
accurate statement of the law. And if
you try to object, I’m going to overrule it.”
The prosecutor’s eventual argument was somewhat
ambiguous with respect to whether consent was a defense. He stated:
“The first element that needs to be met is
. . . that there was sodomy . . . . [¶] . . . [¶]
“The second
one is that [Jane Doe]
sense. She’s a 12-year-old girl. She’s a minor. We have laws that protect minors from acts
like this. She can’t protect herself,
and she can’t consent to these acts.” (Italics added.)
The prosecutor also argued, at some length, that
Doe was not, in fact, a “willing participant.”
B. Analysis.
The crime of aggravated sexual assault on a child
requires that the defendant commit an enumerated sex act on a child
victim. (Pen. Code, § 269, subd.
(a).) Specifically, aggravated sexual
assault on a child by means of sodomy, as charged in this case, requires an act
of “[s]odomy, in violation of paragraph (2) or (3) of subdivision (c), or
subdivision (d), of [Penal Code s]ection 286.”
(Pen. Code, § 269, subd. (a)(3).)
The cited subdivisions of Penal Code section 286
define certain acts of sodomy as unlawful.
Subdivisions (c)(2) and (d) require that “the act is accomplished
against the victim’s will by means of force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another person
. . . .” Subdivision
(c)(3) similarly requires that “the act is accomplished against the victim’s
will by threatening to retaliate . . . .”
Defendant therefore argues that one of the
elements of aggravated sexual assault on a child by means of sodomy is lack of
consent. We are not necessarily
convinced. “For over 100 years,
California law has consistently provided that children under age 14 cannot give
valid legal consent to sexual acts with adults.
[Citation.]” (
We see an analogy to the crime of kidnapping, which ordinarily requires
lack of consent (People v. Mayberry
(1975) 15 Cal.3d 143, 153); nevertheless, when the victim is a child of tender
years, he or she is deemed incapable of giving legal consent. (People
v. Oliver (1961) 55 Cal.2d 761, 764-765.)
If consent could negate aggravated sexual abuse of a child, that rule
could not be limited to the 12-year-old victim in this case; we would have to
hold that an 8-year-old or even a 4-year-old could consent to be
sodomized. Indeed, even if the victim
were a 2-year-old, the prosecution would have to prove that the child did not
consent to be sodomized by an adult.
As already discussed in part II,
sodomy requires “‘physical force of a degree sufficient to support a finding
that the act of sexual intercourse was against the will of the [victim].’ [Citation.]”
(People v. Griffin,
[rape].) Thus, the words “against the
victim’s will” and the words “force, violence, duress, menace, or fear” are
intertwined. The Legislature may have intended
to incorporate the force element — along with the requirement that the force be
measured by whether it was sufficient to overcome the victim’s will — while
relying on the courts to apply the well-established principle that the act
itself is deemed to be against the will of a child victim.
For purposes of this case, however, we need not
decide this question. We may assume,
without deciding, that lack of consent is
an element of aggravated sexual abuse of a child. Even if so, as we will discuss, the error was
harmless.
“[A] trial court’s failure to instruct on an
element of a crime is federal constitutional error that requires reversal of
the conviction unless it can be shown beyond a reasonable doubt that the error
did not contribute to the jury’s verdict.
[Citations.]” (
1208-1209.) Here, however, the trial
court did not fail to instruct that
lack of consent was an element. Despite
the opinions it had expressed outside the jury’s presence, it instructed the
jury that the prosecution had to prove lack of consent.
Admittedly, the trial court also allowed the
prosecutor to argue that consent was not a defense. But unlike a trial court’s misinstruction on
the law, a prosecutor’s misstatement of the law in closing argument is subject
to the “reasonable possibility” standard of harmless error. (See People
v. McDowell (2012) ___ Cal.4th ___, ___ [2012 Cal. LEXIS 5821,
*91-*92].) Here, the prosecutor did not
take full advantage of the trial court’s permission. In fact, he conceded that consent was an
element of the offense. He did assert,
without further explanation, “She’s a minor. . . . [S]he can’t
consent to these acts.” (Italics
added.) The trial court, however, had
instructed that “[y]ou must follow the law as I explain it to you
. . . . If you believe
that the attorneys’ comments on the law conflict with my instructions, you must
follow my instructions.” Thus, we see no
reasonable probability that this isolated statement affected the verdict.
The trial court also prohibited
was a defense. Nevertheless, it allowed him to argue that
the victim did, in fact, consent, and that this disproved force, fear, or
duress. Accordingly, he argued: “ . . . [Jane Doe] said
that this had been going on for four to five months. If she has been engaging in this conduct with
him, then that would certainly be evidence that she had been engaging willingly
or engaging without fear.” He also argued
that the victim was “a willing participant” in a “taboo relationship,” and that
it was “eas[ier] for her to explain to her mother and everybody that this was a
forced situation as opposed to her engaging in acts, sexual acts with her
brother.” The jury, however, evidently
rejected these arguments. Thus, we can
be confident that the jury considered the issue but concluded that the victim
did not consent.
At oral argument, defendant’s counsel suggested
that, but for the trial court’s erroneous views, defendant might have taken the
stand; he might even have testified that the victim consented. The record, however, is to the contrary. During the trial, the trial court suggested
that, in its view, consent was not a defense; however, it added, “[C]ertainly
both of you can do all the research you want on this issue. Bring me cases to read if you’d like, and
I’ll read them.” The defense then rested
before the instructions conference at
which the trial court definitively ruled that consent was not a defense. Moreover, once again, the trial court
consent disproved force, fear, or duress.
Thus, if defendant could testify that the victim consented, he had every
incentive to do so; the trial court did not stop him.
Finally, the trial court also refused to instruct
on a mistaken belief in consent. Under
Cal.3d 143, a defendant charged with a forcible sex offense is not guilty if he
or she had a mistaken but good faith and reasonable belief that the victim
consented. (Id. at pp. 153-158.)
“If a defendant entertains a reasonable and bona fide belief that a
prosecutrix voluntarily consented . . . to engage in sexual
intercourse, it is apparent he does not possess the wrongful intent that is a
prerequisite . . . to a conviction of . . . rape by means
of force or threat [citation].” (
assault on a child incorporates the requirement of lack of consent, it must
also incorporate the defense of a mistaken belief in consent.
“[T]he Mayberry
defense ‘has two components, one subjective, and one objective. The subjective component asks whether the
defendant honestly and in good faith, albeit mistakenly, believed that the
victim consented to sexual intercourse.
In order to satisfy this component, a defendant must adduce evidence of
the victim’s equivocal conduct on the basis of which he erroneously believed
there was consent. [¶] In addition, the defendant must satisfy the
objective component, which asks whether the defendant’s mistake regarding
consent was reasonable under the circumstances.
Thus, regardless of how strongly a defendant may subjectively believe a
person has consented to sexual intercourse, that belief must be formed under
circumstances society will tolerate as reasonable in order for the defendant to
have adduced substantial evidence giving rise to a Mayberry instruction.’
[Citation.]” (
1141, 1148.)
Defendant did not take the stand; thus, he did
not testify that he subjectively believed that the victim consented. And there was virtually no evidence of
“equivocal conduct” on the part of the victim.
While she admitted that she did not resist, as we discussed in part II,
that, in committing the sodomy, defendant used force sufficient to overcome her
will. Indeed, there was
down on the victim’s head or back, pushing her into the bed. Moreover, the jury found that the sodomy was,
in fact, accomplished by force (or,
alternatively, duress).
There was also no evidence of a mistaken belief
in consent that society would tolerate as reasonable under the
circumstances. Defendant and the victim
were half siblings. Defendant was 29,
and the victim was 12; we are talking about an adult male sodomizing a child. And, again, the jury found that defendant
used force and/or duress to accomplish the sodomy.
We therefore conclude that defendant was not
entitled to a Mayberry
instruction. Separately and
alternatively (though for much the same reasons), we are convinced beyond a
reasonable doubt that, even if the jury had been given a Mayberry instruction, it would have found that defendant did not
actually entertain an objectively reasonable belief in consent.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We
concur:
RAMIREZ
P. J.
McKINSTER
J.
name="_ftn1" title="">[1] The trial court ordered that the
victim be referred to in the record by this fictitious name. (See Pen. Code, § 293.5.)
name="_ftn2" title="">[2] Doe’s mother did not remember whether
she talked to defendant.
