Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF026881 Robert W. Armstrong, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
On January 11, 2010, a jury found defendant Julian Dominic Bautista guilty of three counts of oral copulation or sexual penetration of a child under 10 years of age (Pen. Code, § 288.7, subd. (b); counts 1-3); one count of commission of a lewd act by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 288, subd. (b)(1); count 4); and three counts of commission of a lewd act on a child under 14 years of age (§ 288, subd. (a); counts 5-7). The court sentenced defendant to state prison for a total term of 38 years to life. He appeals, contending: (1) the trial court abused its discretion by limiting his cross-examination of certain witnesses; (2) the evidence was insufficient to establish duress; and (3) the trial court committed instructional error. We reject his contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. The People’s Case
While living with Jane Doe’s mother, defendant molested Doe when she was seven years old. He stopped touching her when she turned eight.
These molestations occurred either on the bed that defendant shared with Doe’s mother or on the couch in the living room. On one occasion, he directed Doe to remove her clothes as he removed her pants. After removing his own pants, he inserted his penis into her vagina. He also put his tongue on her vagina, told her not to tell anyone about it, and made her do a “pinky promise” with him not to tell anyone about it. Defendant put his tongue on Doe’s vagina more than once.
On another occasion, defendant told Doe to put her mouth on his penis and “to lick it like a lollipop.” Although she did not want to, she complied because she thought he would be mad if she did not. She did this more than once. On a different occasion, defendant inserted his finger into Doe’s vagina and moved his finger back and forth.
Doe also testified that she touched defendant’s private parts with her hands. He told her that he could “squirt milk out of his private spot, ” and showed her how. He got a towel so that “it didn’t get on the bed” and showed her how to move her hands up and down on his penis. Defendant had her do this on more than one occasion and sometimes she saw something squirt out.
Doe explained that the incidents generally occurred when her mother was at work and her brother was at football practice. Whenever defendant heard Doe’s mother and brother come home from practice, defendant stopped the sexual activity and they would put their clothes back on. On one occasion, defendant molested Doe while her brother was in the house downstairs doing homework. Defendant told Doe to go upstairs. He joined her in the bedroom, where he inserted his penis in Doe’s vagina. Defendant stopped when Doe’s brother shouted out that he had finished his homework.
After initially stating she did not know why she had not immediately disclosed these incidents, Doe indicated she was “kind of” scared of defendant. She could not explain her fear and defendant never told her that she would get in trouble if she told anyone about the incidents. In early October 2008, Doe broke her “pinky promise” with defendant and told her brother about some of the sexual acts. After her brother told Doe’s mother, the police were contacted.
On October 9, 2008, a social worker conducted a Riverside Child Assessment Team (RCAT) interview with Doe. A video of the interview was played for the jury. During the interview, Doe said that defendant molested her when she was seven years old. He inserted his finger into her vagina on numerous occasions and his penis into her vagina almost every day. One time, when he digitally penetrated her, she told him to stop. He responded by asking her where she wanted him to put his finger. On another occasion, she told him that she wanted to leave. After telling her “no, ” he told her to stay and he would let her play with his cell phone. Defendant then inserted his penis into her vagina as she played games on his phone. She tried to scoot up and away from him but she was not able to move because he grabbed her legs and pulled her toward him.
Also during the interview Doe stated that defendant grabbed her hand and put it on his penis “probably ten” times. She tried to pull her arm back, but he was too strong. Every time defendant finished his sexual act with Doe, he inserted his tongue into her mouth. On other occasions, defendant licked Doe’s chest and inserted his tongue into her vagina. On three occasions, he made her “suck” on his penis, or lick it like a lollipop. She complied because she did not want him to bother her anymore. Sometimes he grabbed her head and pushed it down towards his penis.
Doe told the social worker she was scared to tell her mother about what defendant was doing to her because he had said she would be “grounded” for a month if she told. Later, she admitted defendant had not told her that something would happen, but rather, she thought she would be grounded for a month.
On October 10, 2008, Dr. Susan Horowitz, a forensic physician, examined Doe and found no signs of permanent injury. At trial, the physician explained that a normal genital exam meant the physician did not find any abnormality on Doe at the time of the exam, and it did not mean that Doe had not sustained small injuries at some other point in time. The physician also explained that the exam could neither confirm nor negate sexual abuse, that “‘[r]epeat digital/vaginal and penile/vaginal contact in prepubertal girls usually occurs in a way that does not leave signs of injury, ’” and there might not be any finding of injury even if the tip of the perpetrator’s penis had been inserted into the child’s vagina.
B. The Defense
Defendant’s 12 year-old niece testified that defendant had lived with her family until 2006 and that he never touched her inappropriately.
Defendant denied molesting Doe and having any interest in sexual activity with children. He also testified that he regularly took Doe’s brother to his football practice in the afternoons and he was home alone with Doe only once or twice when he lived with her family between January 2006 and October 2008. He testified that initially he had had a good relationship with Doe, but beginning in 2007 she began to exhibit a negative attitude towards him.
II. LIMITATION ON CROSS-EXAMINATION
Prior to trial, the prosecution moved to “‘exclude any cross-examination of any victim concerning any alleged sexual conduct.’” According to defendant, Doe’s mother had informed him that she had been molested by her own father. Thus, defendant sought to question Doe as to whether she had ever been molested by her grandfather, because “she seems to have knowledge and insight of sexual terminology, perhaps activity beyond what you would expect of a seven year old.” The court disagreed, finding that Doe used “childish terms for private parts, ” and thus did not “think it require[d] any sophistication for a child to testify as this child has testified.” The court granted the prosecution’s motion. Further, defendant was prevented from cross-examining either Doe or her mother regarding defendant’s claim that Doe’s mother had spoken to Doe about her (mother’s) own molestation by her father.
During closing argument, the prosecution highlighted Doe’s knowledge of sexual activity and attributed it to defendant’s molestation of her. Specifically, the prosecutor stated, “you heard no testimony of how [Doe] would know things like this other than what she told us, and that is that he did these things to her.” The prosecutor pointed out there was no evidence of pornography in the house to explain Doe’s knowledge. The prosecutor finally said, “[Doe] described that [defendant] would get a rag so that it wouldn’t get on the bed. How would a little girl know that? I ask you to take these things into consideration, to do what’s reasonable, to think what’s reasonable based on the evidence, and to know that she is not sophisticated enough to come in here and pull all of this off.”
On appeal, defendant faults the trial court for precluding him from questioning Doe and her mother regarding possible molestation by Doe’s maternal grandfather. He argues that “evidence relating to an alternative source of [Doe’s] precocious sexual knowledge should have been admitted to rebut any inference that she must have acquired knowledge of such acts through experiences with [defendant].”
A. Standard of Review
The trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 90.)
B. Analysis
Defendant cites People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett) and argues that “evidence that [Doe] may have been molested by her grandfather or at[]least overheard her mother’s account of her own molestation was unquestionably relevant.” In Daggett, the defendant was convicted of molesting a child under the age of 14. (Id. at p. 754) On appeal, he successfully challenged the trial court’s refusal to hold a hearing pursuant to Evidence Code section 782 on the admissibility of evidence that the child had been previously molested by two older children. (Daggett, supra, at p. 757.) Defendant’s offer of proof consisted of evidence that the child had told a mental health worker and a doctor who had examined him that he had been molested by two older children when he was five years old. (Ibid.)
Contrary to the facts in Daggett, here defendant’s offer of proof consisted of his assertion that Doe’s mother had been molested by her father, and that Doe may have overheard her mother talk about it. By itself, this offer of proof was insufficient to allow the defense to question either Doe or her mother. As the court noted, to have allowed such examination would have amounted to a “fishing expedition.” Also, the People point out that, unlike the victim in Daggett who was able to provide an “accurate description” of the sexual acts (Daggett, supra, 225 Cal.App.3d at p. 757), Doe was able to provide only vague descriptions of the acts and used rather simple terminology.
More importantly, defendant testified on his own behalf and could have introduced the proffered evidence through his own testimony. We reject his claim that “given that [the] court ‘absolutely’ excluded evidence regarding [Doe’s] potential molestation by her grandfather, [defendant] could not... be faulted for believing that it would be futile to raise that evidence in his own testimony.” As the trial court stated, “If [defendant] testifies that that is the case [i.e., that Doe’s mother discussed being molested by her father in front of Doe], then... the People would be allowed to call the mother to deny it if that was the mother’s position.” Defendant testified, but not about the possibility that Doe had heard her mother talk about being molested by the maternal grandfather.
Given the record before this court, we cannot conclude the trial court abused its discretion when it precluded defendant from cross-examining either Doe or her mother about the possibility of Doe overhearing her mother talk about being molested by her father.
III. SUFFICIENCY OF EVIDENCE
Defendant contends his conviction for the lewd act charged in count 4 must be reversed, because the evidence is insufficient to establish the prosecution’s theory that the act was accomplished through duress.
A. Standard of Review
When a defendant challenges the sufficiency of the evidence to support his conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., 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.’” (People v. Chatman (2006) 38 Cal.4th 344, 389.)
B. Analysis
Section 288, subdivision (a), proscribes the commission of “any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child....” Section 288, subdivision (b) punishes a lewd act described under subdivision (a) where it has been committed by “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person....” (§ 288, subd. (b)(1).)
Within the context of sexual offenses, duress means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which the person otherwise would not perform, or (2) acquiesce in an act to which the person otherwise would not submit. (People v. Leal (2004) 33 Cal.4th 999, 1004, 1005; People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), overruled on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.) In People v. Senior (1992) 3 Cal.App.4th 765, 775, the court explained that “duress involves psychological coercion.” In determining whether duress was used, the trier of fact must consider the totality of the circumstances, including the victim’s age and relationship to the defendant. (Cochran, supra, at pp. 13-14; People v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale) [Fourth Dist., Div. 2].) “‘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, at p. 46.) A victim’s fear of immediate bodily injury, even if unreasonable, may support a finding of duress if the defendant knowingly took advantage of that fear to accomplish the offense. (People v. Cardenas (1994) 21 Cal.App.4th 927, 940, superseded by statute on another ground as stated in People v. Valentine (2001) 93 Cal.App.4th 1241, 1250, fn. 10.)
In Veale, this court found sufficient evidence of duress when the defendant molested his seven-year-old stepdaughter, even though there was no evidence the defendant actually threatened her. (Veale, supra, 160 Cal.App.4th at p. 47.) We explained, “A reasonable inference could be made that defendant made an implied threat sufficient to support a finding of duress, based on evidence that [the child] feared defendant and was afraid that if she told anyone about the molestation, defendant would harm or kill [her], her mother or someone else. Additional factors supporting a finding of duress include [the child’s] young age when she was molested; the disparity between [the child’s] and defendant’s age and size; and defendant’s position of authority in the family.” (Ibid.)
In Cochran, the court stated, “as a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present.” (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) In Cochran, the defendant was a foot and a half taller than the nine-year-old victim and outweighed her by about 100 pounds. (Id. at p. 15; see also People v. Pitmon (1985) 170 Cal.App.3d 38, 51 [finding the evidence sufficient to establish duress, even though the victim testified the defendant did not use force, violence, or threats when the victim “was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster’s sense of [her] relative physical vulnerability”], superseded by statute on another ground as stated in People v. Valentine, supra, 93 Cal.App.4th at p. 1250, fn. 10.)
Here, as in Cochran, the molestation took place in the family home when the mother was not home. Doe called defendant “dad, ” suggesting that he occupied a position of authority in the family. The probation report indicates defendant is five feet three inches tall and weighs 135 pounds. Although this is not very big and there is no indication of Doe’s size, she was only seven years old when the molestations occurred, and it is reasonable to infer a considerable disparity in size between her and defendant. On one occasion when Doe told defendant to stop, he responded by asking her where she wanted him to put his finger. On another occasion, she told him that she wanted to leave; however, he told her “no” and then told her that she could play with his cell phone. When she tried to scoot up and away from him, she was not able to move because he grabbed her legs and pulled her toward him. Doe did not tell anyone what defendant was doing, because he had made her “pinky promise” that it would be their secret. Although he did not threaten her, she was “kind of” scared of him and believed he would get mad and she would be grounded if she said anything. Additionally, the evidence shows defendant used force on Doe when he grabbed her arms, positioned her hands on his penis, showed her how to move them up and down, and then made her continue as he watched. When Doe attempted to pull away, defendant pulled her hands back to his penis. He was too strong for her. Also, defendant removed Doe’s pants and underwear, pulled her legs toward him and spread them apart, and grabbed her head and pushed it downward so that she could orally copulate him.
Defendant’s reliance on People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), in which the defendant molested his 12-year-old daughter, is misplaced. In Espinoza, which was decided before Cochran, the court held there was insufficient evidence of duress, reasoning: “The only way that we could say that [the] 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.... 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 [the] 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 [the] defendant, no evidence was introduced to show that this fear was based on anything [the] 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, at p. 1321.)
Espinoza is distinguishable, in that the victim in was considerably older than Doe when defendant first started to molest her. Because of Doe’s young age, she was more susceptible to being coerced through fear and defendant’s position of authority. Furthermore, in the instant case, Doe stated she was “kind of” scared of him. While this case is in many significant ways, similar to Espinoza, we conclude, based on Cochran, that the evidence in the record, considered as a whole, amply supports a finding of duress. We therefore reject defendant's challenge to the sufficiency of the evidence.
IV. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Defendant contends the trial court erred by not instructing the jury on the lesser included offense of willfully committing a lewd and lascivious act with a child who is under the age of 14 years (§ 288, subd. (a)) in count 4, because the evidence failed to show that the lewd act was accomplished through force or fear. We disagree.
A. Standard of Review
We apply a de novo standard of review to the trial court’s failure to instruct on an assertedly lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)
B. Analysis
Section 288 prohibits lewd and lascivious acts with a child under 14 years of age. Section 288, subdivision (a), is a lesser or necessarily included offense of the lewd act prohibited by subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472.) Subdivision (b) includes the additional element of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (§ 288, subds. (a) and (b)(1).) However, even though a violation of section 288, subdivision (a), is a lesser included offense of the charged violation of section 288, subdivision (b), in count 4, the trial court still was not obligated to instruct on this lesser offense. “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871.)
Here, as we observed above, substantial evidence demonstrated that defendant, a father figure to seven-year-old Doe, forced her to engage in the molestations by grabbing her hands, positioning them, and having her move them up and down on his penis. Defendant plainly constrained Doe. No evidence to the contrary was placed before the jury, and no reasonable jury could have concluded this conduct was insufficient to establish force or duress. As no evidence was presented to the jury that could have absolved defendant of the greater offense but not the lesser offense, the trial court was not obligated to instruct the jury on the lesser offense of nonforcible lewd act on a child under 14. (People v. Memro, supra, 11 Cal.4th at p. 871.)
V. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J., KING J.