Opinion
E064502
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. SONTICE ANDREAS MICHAEL ALLISON, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Teresa Torreblanca, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1400732) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Teresa Torreblanca, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Sontice Andreas Michael Allison, of sex crimes against his stepdaughter, Jane Doe. The jury found him guilty of two counts of oral copulation or sexual penetration with a child age 10 or younger (Pen. Code, § 288.7 subd. (b)) and two counts of aggravated lewd or lascivious acts on a child under age 14 (§ 288, subd. (b)(1)). The trial court sentenced defendant to prison for 30 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant argues law enforcement obtained his confession through coercion, rendering his confession involuntary and inadmissible. He further argues the court prejudicially erred when it denied him a midtrial continuance to secure the attendance of a witness. He also urges us to reverse his conviction for aggravated lewd or lascivious acts because the People adduced insufficient evidence of force or duress against Doe. We find no errors and affirm.
II. FACTS
Defendant is Doe's stepfather. Doe's mother and defendant have three other children together. Defendant is the only father Doe has ever known. She recognizes him as her father, calls him "dad," and professes to love him. Defendant's parental duties included transporting her to and from school every day and disciplining her. He would "whoop" her with a belt when she got into trouble or give her a "time-out." If he told her what to do, she would listen.
At the time of the pertinent events, Doe was six years old and defendant was 28 years old. According to her trial testimony, on Halloween in 2014, she went trick or treating with defendant and her younger brother. They stopped at a market to use the bathroom. All three of them went in together. She used the toilet and was still sitting on it when defendant turned off the lights in the bathroom. Defendant pulled out his penis and told her to put it in her mouth. She did not want to do it, but complied because he directed it. When defendant was finished, he told her: "Don't tell your mom."
Another incident occurred on an evening two weeks later. Defendant took Doe and her brother to buy fast food. Doe said she did not want to go, but defendant insisted on it. They picked up the food and, on the way home, defendant pulled into the driveway of a house that Doe did not know and parked. It was dark outside. Doe and her brother were in the backseat, where her brother was sleeping, and defendant told her to get into the front seat. She acquiesced because he told her to do it. He again took out his penis and told her to put it in her mouth, "and then he called [her] the B word." She did so, and something came out of his penis that tasted "nasty." She spit it out and threw up on his penis.
They returned home approximately 45 minutes to an hour after leaving. Defendant rushed directly to the bathroom, telling Doe's mother: "Your daughter threw up. I don't know why." Doe's mother went to the bathroom and found defendant washing his underwear in the sink. The next morning, Doe's mother asked her why she had vomited on defendant, and Doe replied: "'Well, kinda like the last time, but this time I couldn't do it.'" After further questioning, Doe revealed to her mother that defendant made her "suck it." Doe's mother took defendant aside and confronted him, and he denied Doe's charges. Doe went to stay with her maternal grandmother, and the maternal grandmother took Doe to the police station.
At trial, Doe described another incident that occurred when she was six years old in which defendant was "digging" in her pants. She also described an instance of oral copulation in which she tried to pull away, but defendant pushed her head. This was not the time she was sitting on the toilet, but "a different time."
A forensic examiner interviewed Doe after the maternal grandmother took her to the police station. The prosecution played the video recording of that forensic interview for the jury. Doe described the Halloween incident, the incident two weeks later, and defendant "digging" in her pants. Doe described how, during the second incident, defendant told her to "[s]wallow it" after he ejaculated and said: "You're my . . . B word." She described still other instances. In one instance, he showed her a video recording on his cell phone of a woman orally copulating a man, and he told her to do the same thing. He cornered her in the bathroom and made her orally copulate him, "spit on his hand and rub[bed] it on" his penis, and ejaculated in her mouth. Another instance of oral copulation and ejaculation into her mouth occurred in his bedroom, when they were lying on his bed. That time, he also told her to put her hand on his penis, and when she resisted, he grabbed her hand and put it on him.
Detective Jennifer Segura of the Banning Police Department interviewed defendant at the police station twice on the same day, approximately four hours apart. The prosecutor played the video recording of both interviews for the jury. During the first interview, defendant denied molesting Doe. During the second interview, he admitted to making Doe orally copulate him on Halloween night and the night in the car when they went to pick up fast food; he estimated he had done it four times in total. The night that it happened in the car, he made Doe swear she would not say anything. He also described an instance several years earlier when he made her touch his penis with her hand. He said that he molested Doe as a form of "[r]evenge" on Doe's mother when they were arguing, and because he had been molested when he was a child. Defendant wrote an apology letter to Doe at the end of the second interview.
We have also watched the video recordings of defendant's interviews.
At trial, defendant testified in his own defense as follows. He smoked marijuana and drank vodka before meeting with Detective Segura the first time. He told her the truth during the first interview. After the first interview, he went to his friend's house, where he again smoked marijuana and drank much more vodka. He also went to a church and spoke to the pastor there, Juan De La Fuente. After talking, the pastor told him the police wanted to see him back at the station. Defendant lied to the detective during the second interview because he wanted his children to be with their family and not in foster care. He thought he could "sacrifice" himself to that end. He was not so intoxicated or high that he could not converse with the detective; he was able to answer her questions and provide details, and he was not slurring his speech.
III. DISCUSSION
A. Voluntariness of Defendant's Confession
Defendant contends he was in a fragile mental state and under the influence of alcohol and marijuana when he confessed, rendering his statements coerced and involuntary under "basic constitutional prohibition[s]." We disagree and hold his confession was voluntary.
1. Procedural Background
Defendant argued in his trial brief that the court should suppress his custodial statements because Detective Segura's interrogation violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and his federal and state constitutional rights. The court held a hearing on the matter pursuant to Evidence Code section 402.
Defendant testified that he dropped out of school in 10th grade. While in school, he took special education classes. Defendant was unemployed at the time of these events. He has mental health disorders and was hospitalized for auditory hallucinations and suicidal ideations twice in 2010. He was supposed to be taking Risperdal and Zoloft, but was not. At the time of the police interviews, he had not taken the medications in years. Defendant had previous experience with the criminal justice system. He had been in jail, talked to police officers, and suffered a criminal conviction before.
After defendant's children were detained as a result of Doe's allegations, he told a police officer on the street that he "need[ed] help" with the children. The officer told him to go to the police station, and if he did not, the officer "was going to put charges on [him] for child neglect." Defendant could not describe the officer, other than to say he was a White male. He then went to the police station, but Detective Segura was not in the office. Someone gave him her card and a date and time to return. He returned to the station and talked to the detective. Defendant said that, before going to the station, he consumed one-third to two-thirds of a bottle of vodka and smoked a six-inch long joint of marijuana.
According to Detective Segura, she contacted defendant and asked him to come to the police station. She told him that she was investigating the case and wanted to get his side of the story. He came to the interview voluntarily; he was not arrested prior to the interview. Detective Segura read him his Miranda rights and he agreed to speak with her. The interview took place at approximately 9:00 a.m. and lasted for about 38 minutes. As we explained above, defendant denied molesting Doe. He said there was no reason why investigators should find any evidence of his DNA in their investigation. The detective did not threaten him in any manner. He left the station at the end of the interview.
Defendant went to his friend's house after leaving the first interview, where he consumed the rest of the bottle of vodka and smoked three more marijuana joints of the same size. He then went to the church and talked to the pastor, De La Fuente.
De La Fuente is also a Banning Police Department chaplain. He volunteered as a chaplain one day per week for four to eight hours. Whenever he went to the police station for his regular volunteer day, he wore a uniform—a polo shirt that had a Banning Police Department badge and his name on it.
The pastor had never met defendant before he visited the pastor's church that day. They spoke for roughly 10 to 15 minutes. The pastor was not wearing his Banning police chaplain uniform when defendant came to the church. The pastor called Detective Segura after this conversation and told her that he had spoken with defendant. Defendant told the pastor that he was not honest with the detective, and he wanted to talk to the detective again and be honest. The detective asked the pastor to tell defendant to "come on by," and said she would be at the police station throughout the day. The pastor told defendant that he was free to go to the police station, if he wanted to do so. The pastor did not tell defendant he had to go. Defendant recalled the pastor saying that the detective was waiting for him, and he interpreted that as the pastor telling him to go.
Defendant returned to the police station at approximately 1:45 p.m. The detective again read him his Miranda rights and he again agreed to speak with her. The second interview was roughly 45 minutes long. The detective told defendant that she had spoken with the chaplain and knew defendant had not been honest with her, and she suggested that she wanted to help him clear his conscience and "help him help himself."
Defendant testified his main concern in going to the police station was confirming that Child Protective Services (CPS) had detained his children, as his wife had claimed. The detective did not confirm this until the second interview. Defendant said he admitted to oral copulation with Doe because he thought it would help get his children back from CPS. The detective did not force him to answer questions, but "she made is [sic] seem like she already knew what happened and [he] needed to tell her." At the conclusion of this interview, the detective arrested defendant.
The detective noticed the scent of marijuana on defendant but did not note any symptoms indicating he was under the influence. The pastor did not recall telling the defense investigator that defendant smelled strongly of alcohol and was intoxicated. Defendant said he felt "[h]igh" and drunk during the second interview.
Defense counsel argued the suppression issue was "much broader than simply Miranda," and the court should look at a variety of things, including "the pressures upon" defendant, his "psychological issues," his "general capacity or learning disability," and his impairment caused by alcohol and marijuana.
The court ultimately denied defendant's motion. It noted that "[n]o one forced" defendant to go to the police station, and it rejected the notion that the pastor coerced defendant into going back. It also ruled that, despite the evidence of defendant's mental health issues and intoxication, there was no indication that he failed to understand his Miranda rights, and these factors did not negate the voluntariness of his statements.
2. Defendant's Confession Was Voluntary
An involuntary confession obtained through coercive police activity is inadmissible under the due process clauses of the federal and state Constitutions. (People v. Benson (1990) 52 Cal.3d 754, 778.) When a defendant challenges the admissibility of a confession, the essential issue is whether the confession "is the product of an '"essentially free and unconstrained choice"' or whether the defendant's '"will has been overborne and his capacity for self-determination critically impaired"' by coercion." (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).)
"Under both state and federal law, courts apply a 'totality of circumstances' test to determine the voluntariness of a confession." (People v. Massie (1998) 19 Cal.4th 550, 576.) Relevant factors include "'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 660.)
Merely advising a suspect that it would be better to tell the truth, when unaccompanied by a threat or a promise of benefit or leniency, does not render a confession involuntary. (People v. Holloway (2004) 33 Cal.4th 96, 115.) Officers may discuss "any 'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime." (People v. Ray (1996) 13 Cal.4th 313, 340.) "'[I]n this we must exercise great care not to become confused: intellectual persuasion is not the equivalent of coercion.'" (People v. Hill (1967) 66 Cal.2d 536, 549.) Thus, "there is nothing improper in pointing out that a jury probably will be more favorably impressed by a confession and a show of remorse than by demonstrably false denials," and "'[n]o constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.'" (Williams, supra, 49 Cal.4th at p. 444.)
"Similarly, the use of deceptive comments does not necessarily render a statement involuntary. Deception does not undermine the voluntariness of a defendant's statements to the authorities unless the deception is '"'of a type reasonably likely to procure an untrue statement.'"'" (Williams, supra, 49 Cal.4th at p. 443.)
When a defendant challenges the denial of a motion to suppress, we review the trial court's findings as to the circumstances surrounding the confession for substantial evidence, and we independently review the court's finding as to the voluntariness of the confession. (People v. Massie, supra, 19 Cal.4th at p. 576.)
After independently reviewing the totality of the circumstances, we conclude that defendant's confession was voluntary. Defendant voluntarily went to the police station in the morning, and he was free to leave after the first interview. He voluntarily visited the church and talked to the pastor, who did not tell defendant he had to return to the police station. At most, the pastor suggested that the detective was aware defendant wanted to correct his dishonesty and was waiting for him. But defendant was free to go to the station or not. Moreover, both interviews were relatively short—under an hour—and separated by several hours during which defendant was free. Defendant was not handcuffed or under arrest at the time he gave his statements. At 28 years old, he was not especially young and had prior experience with the criminal justice system. While he did not finish high school and took special education classes, it is clear from the record that he understood the detective's questions and was able to answer them intelligently. And, to the extent he was intoxicated because of his marijuana and alcohol consumption, neither of these things impaired his ability to converse with the detective and answer her questions responsively, as defendant himself acknowledged.
Defendant contends his mental state and intoxication left him vulnerable to coercion, but his mental condition or state of mind alone is not dispositive of voluntariness. (Colorado v. Connelly (1986) 479 U.S. 157, 164-165.) "[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' . . . ." (Id. at p. 167.) In Connelly, the United States Supreme Court rejected an approach in which a defendant's confession could be considered involuntary solely because the defendant was suffering from a mental illness at the time. (Id. at pp. 160-162, 164-165.) The "integral element of police overreaching" was necessary also, otherwise the crucial link between coercive activity of the state and the resulting confession did not exist. (Id. at pp. 164-165.) To hold otherwise would have expanded the court's "'voluntariness'" jurisprudence "into a far-ranging requirement that courts must divine a defendant's motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision." (Id. at pp. 165-166.) Accordingly, although there was evidence the Connelly defendant suffered from chronic schizophrenia and was in a psychotic state at the time he confessed, and this condition interfered with his "'volitional abilities,'" the lack of any coercive police conduct precluded a finding that the confession was involuntary within the meaning of the Fourteenth Amendment due process clause. (Colorado v. Connelly, supra, at pp. 161, 167.)
Our Supreme Court's decision in People v. Hensley (2014) 59 Cal.4th 788 is also instructive on the effect of a defendant's mental state. The defendant in Hensley admitted to ingesting alcohol and drugs at the time of his arrest. (Id. at p. 808.) He was also suffering from an abrasion on his forehead. (Id. at pp. 806, 808.) He argued that his "'drug-impaired, sleep-deprived and medically-weakened condition'" weighed in favor of finding his confession involuntary. (Id. at p. 814.) The court rejected that conclusion. The record showed that the defendant understood the interrogator's questions and answered responsively, and he was not so impaired that he did not freely and deliberately choose to speak to law enforcement. (Ibid.) The court, moreover, quoted with favor from Connelly and concluded that, in the absence of coercion, a defendant's confession is not involuntary solely because of an alleged physical or mental condition. (People v. Hensley, supra, at p. 814; accord, People v. Bradford (1997) 14 Cal.4th 1005, 1045 [where interrogators made no coercive threats or promises, asserted brain damage and chronic alcohol and cocaine addictions did not render the defendant's confession involuntary].)
In light of these authorities, defendant's confession was not involuntary simply because Detective Segura may have questioned defendant while he was under the influence of alcohol and drugs or suffering from a mental health condition. There must have been some coercive police conduct. The tactics that defendant identifies as "questionable at best" were not coercive.
To begin with, defendant asserts the detective told him that she "could help gain the release of his children by admitting the offenses." The detective made no such statement. She suggested that she wanted to "help him help himself" and help him clear his conscience, but this tactic was nothing more than exhorting defendant to tell the truth, describing a natural benefit that accrues from telling the truth, and arguing that it was better not to lie, in light of the evidence against him. It is well settled this approach does not amount to coercion. (Williams, supra, 49 Cal.4th at p. 444; People v. Holloway, supra, 33 Cal.4th at p. 115.)
Next, defendant contends the detective "falsely told [him] that the police had DNA and other physical evidence against him." She arguably implied this was the case when she asked defendant if there was any reason why investigators might find his DNA evidence on samples from Doe. "The business of police detectives is investigation," and they may use any legal means at their disposal. (People v. Jones (1998) 17 Cal.4th 279, 297.) As we have discussed, this includes deception, so long as it is not reasonably likely to produce an untrue statement. (Id. at p. 299.) Officers implying that they know more than they do, or can prove more than they can, is not the type of deception reasonably likely to procure an untrue statement and is therefore permissible. (Ibid.; People v. Thompson (1990) 50 Cal.3d 134, 166-167 [holding that incriminating statements were not rendered involuntary by interrogators telling the defendant of false physical evidence against him].) Detective Segura's reference to DNA or other physical evidence did not rise to the level of coercion offending constitutional guaranties.
Defendant also argues that his confession was involuntary because the pastor failed to disclose that he was a volunteer police chaplain, and he "utilized his position and religious status to persuade appellant to return to the police station." The record is devoid of any evidence that the pastor—who defendant willingly and deliberately sought out—did anything coercive. Neither he nor defendant ever disclosed the precise content of their conversation. We know only that, after their talk, the pastor called the station and told the detective that defendant had been dishonest with her and wanted to correct it. He could have called the station regardless of whether he was a volunteer police chaplain. Locating the station's telephone number would not require any special knowledge unavailable to the public. None of this evidence demonstrates that the pastor overrode defendant's free will and critically impaired his capacity for self-determination. (Williams, supra, 49 Cal.4th at p. 436.) Even if we assume, for the sake of argument, that the pastor could be considered a state actor by virtue of his part-time volunteer service, the integral element of coercive conduct is lacking.
Coercive state activity is required. "The most outrageous behavior by a private party seeking to secure evidence against a defendant" does not render a confession involuntary under the due process clause. (Colorado v. Connelly, supra, 479 U.S. at p. 166.)
Simply put, defendant's asserted intoxication and mental state did not render his statements involuntary, when no coercive police conduct occurred. The trial court correctly ruled his statements were voluntary and admissible. B. Defendant's Request for a Continuance
Defendant argues the court abused its discretion in denying him a midtrial continuance to secure the attendance of a witness who would have enabled the admission of prior inconsistent statements by Doe. This contention is without merit.
1. Procedural Background
According to defendant, his motion for a continuance related to evidence of uncharged sexual acts that Doe described during her interview with the forensic examiner, which we summarized in part II, infra. Doe was not specific during the interview about when these acts occurred and could only say that the first occurred when she was "still 6." Doe also testified at trial about uncharged conduct—defendant's "digging" in her pants—and was not specific about when this occurred.
The People filed motions in limine on August 12, 2015 and argued the court should admit the video recording of Doe's forensic interview. At the hearing on the various motions, on August 14, 2015, the court ruled that the interview was admissible so long as Doe testified first. Defense counsel responded that she might be requesting redactions to the interview. The prosecutor indicated he wanted to introduce the entire interview, and the court ordered the parties to meet and confer on redactions. The court ruled on August 18, 2015 that the prosecutor could use the entirety of the interview without redactions for evidence of uncharged acts. Defense counsel wanted to introduce asserted impeachment evidence in the Department of Public Social Services (DPSS) records, saying she would "get to work on that."
The prosecutor called his first witness on August 18, 2015 and rested his case on August 19, 2015. On August 20, 2015, defense counsel informed the court that she had subpoenaed the social worker who wrote the pertinent DPSS records, but DPSS no longer employed the social worker. Defense counsel had served the subpoena the day before. She wanted to introduce the social worker's report of an interview with Doe in June 2014. She indicated she had obtained the records "pursuant to an 827 petition filed per all the requirements." The report indicated, among other things, that Doe felt safe at home, loved her family, and was not afraid of her mother or defendant. She also denied that her father had touched her "private areas," and she denied any marks or bruises as a result of discipline. She said she gets "popped" and demonstrated that with an open-hand smack to her arm. Defense counsel argued the social worker's report was admissible under the business records exception to the hearsay rule, and Doe's statements in it were admissible as prior inconsistent statements.
"[J]uvenile court records, in general, should be confidential" and "may not be obtained or inspected by civil or criminal subpoena." (Welf. & Inst. Code, § 827, subd. (b)(1); Cal. Rules of Court, rule 5.552(b)(4).) Welfare and Institutions Code section 827 restricts access to juvenile case files and governs the release of such records, including social workers' reports. (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1337, fn. 7.) Those entitled to inspect and receive copies of juvenile case files without a court order include, among others, "[t]he attorneys for the parties, [and] judges . . . in criminal or juvenile proceedings involving the minor." (Welf. & Inst. Code, § 827, subd. (a)(1)(D), (a)(1)(E), (a)(5).) Dissemination of the case file to those not entitled to inspection by statute requires a "court order of the judge of the juvenile court upon filing a petition." (Id., subd. (a)(1)(P); accord, Cal. Rules of Court, rule 5.552(b)(3).)
The court noted that it had "ruled with plenty of notice" on the admissibility of the interview, "and for whatever reason [defense counsel] made a tactical decision" not to cross-examine Doe "on any of that information." The court also explained that section 827 of the Welfare and Institutions Code was "simply a means of discovery" and was by no means a way to authenticate the social worker's report as a business record. Defense counsel responded that she would either try to secure another witness to authenticate the records or try to locate the social worker. The court ruled that it was not going to delay the trial, but it permitted defense counsel until after the lunch recess to locate a witness.
After the recess, defense counsel said she had communicated with the social worker, who was not going to appear because she was on maternity leave. She asked for a continuance until the next day to attempt to personally serve the social worker with a subpoena. The court asked whether defense counsel had "any assurances" that the witness would appear. Defense counsel replied: "I mean, that's the difficulty is I can't ensure that she will be here. There's a subpoena at her door, a subpoena that's gone through her office. But . . . ." Defense counsel had sent another subpoena to the social worker's home that day and had no proof of service yet. The court emphasized that the witness had not been personally served and indicated there was "really nothing . . . to base the continuance on." It further explained that the social worker's report did not relate to "the entire crux of this case." The report mostly addressed whether defendant touched Doe's "private areas." While Doe mentioned defendant "digging" in her pants during the forensic interview, there was no "reference of time as to when all of that occurred." The court denied the request for a continuance.
2. The Court's Denial of a Continuance Was Not an Abuse of Discretion
"The granting or denial of a motion for a continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge . . . ." (People v. Laursen (1972) 8 Cal.3d 192, 204.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.)
The trial court shall grant a trial continuance only on a showing of good cause. (§ 1050, subd. (e).) The absence of a material witness constitutes one ground for a trial continuance. To establish good cause for such a continuance, a defendant must show (1) due diligence in securing the witness's attendance, (2) the witness's expected testimony is material and not cumulative, (3) the defendant can obtain the witness's testimony within a reasonable time, and (4) the defendant cannot otherwise prove the facts to which the witness would testify. (People v. Howard (1992) 1 Cal.4th 1132, 1171.)
In the present case, defendant failed to make several of the required showings, starting with due diligence. By August 14, 2015, the court had ruled Doe's forensic interview was admissible, and defendant knew the prosecutor wanted to use the entirety of the interview, including the statements about uncharged acts. Although the court did not rule on the redactions requested by the defense until August 18, defendant knew there was every possibility the court would admit the whole of the interview as of August 14. Defense counsel still waited five days from that date to attempt service on the social worker, despite the fact that trial was imminent. The prosecution had rested its case and the trial was nearly over by the time she attempted service.
Defendant also failed to demonstrate that the social worker's testimony would be material. According to defense counsel, Doe denied to the social worker that defendant had touched her private areas, she denied any marks or bruises as a result of discipline, and described open-handed smacks for purposes of discipline. Defendant argues these statements were relevant and admissible because they "directly contradicted" Doe's statements that the court admitted. But to the extent Doe talked in her forensic interview and on the stand about defendant "digging" in her pants, she could not say exactly when this happened, other than at age six. Given that the incident could have occurred after the social worker's report in June 2014, Doe's denial of such conduct in June 2014 was not directly contradictory.
Doe would have been six in June 2014, as well as when the charged incidents occurred. --------
Along the same lines, to the extent Doe testified she was hit with a belt, her statements to the social worker in June 2014 that she did not have marks or bruises and received open-handed smacks were not directly contradictory. Her trial testimony did not specify when the belt whipping occurred. The two sets of statements were not necessarily inconsistent. At best, there was some ambiguity. Ambiguity was not enough to show the statements were admissible as prior inconsistent statements under the Evidence Code. (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220 [holding that when the witness's trial testimony was, at most, somewhat ambiguous but not necessarily inconsistent with her prior statement, the prior statement was not admissible as a prior inconsistent statement under Evid. Code, § 1235].)
Moreover, to the extent defendant was concerned with Doe's statements in the forensic interview about other uncharged acts of oral copulation, there is no evidence that Doe denied oral copulation in the social worker's report. She denied defendant touched her private areas—not that defendant made her orally copulate him. There was no direct contradiction.
Last, defendant failed to show that he could not otherwise impeach Doe with any prior inconsistent statements. Doe was present at trial and testified about the "digging" in her pants. Assuming Doe had made prior inconsistent statements, this would have been the time to impeach Doe with them. The rationale behind the exception to the hearsay rule for prior inconsistent statements (Evid. Code, § 1235) is that the declarant is in court and may be examined and cross-examined in regard to her prior statements, and the trier of fact may observe the witness's demeanor as she tries to explain away the inconsistency. (People v. Brown (1995) 35 Cal.App.4th 1585, 1597.) Yet, as the trial court noted, defendant did not try to cross-examine Doe about inconsistent statements she may have made to the social worker. The social worker's presence was not required for defense counsel to question Doe about conversations she may have had with the social worker. And insofar as defendant wanted the absent social worker to authenticate her report as a DPSS business record, he also failed to show that some other DPSS worker could not lay that foundation. In short, because defendant failed to show good cause for a continuance on several fronts, the court acted within its discretion in denying the continuance.
Before moving on, we must note the hearsay rule was not the only obstacle to admission of the social worker's report. As we discuss in footnote 4, ante, juvenile court records are confidential under section 827 of the Welfare and Institutions Code. While defense counsel appears to have properly gained access to the report as the attorney for a party in a criminal proceeding involving Doe (Welf. & Inst. Code, § 827, subd. (a)(1)(E)), it is unclear from the record whether the juvenile court authorized disclosure of the social worker's report to the jury in this case. Jurors are not among the categories of people entitled to inspect juvenile court records without a court order. (Welf. & Inst. Code, § 827, subd. (a)(1)(A)-(O).) Accordingly, even if the hearsay exceptions we discuss had applied, the social worker's confidential report could not have been admitted into evidence without proper authorization from the juvenile court. Moreover, even if defense counsel did not seek to admit the report but wanted the social worker to testify as to the contents of the report, admission of such testimony arguably would have required the juvenile court's authorization as well. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1314 [if a witness's proposed testimony amounts to inspection of a juvenile case file or information relating to the contents of the case file, the testimony may not be presented without a juvenile court order authorizing its disclosure pursuant to Welfare and Institutions Code section 827]; cf. City of San Diego v. Superior Court (1981) 136 Cal.App.3d 236, 239 [information in the personnel records of law enforcement officers that is privileged and immune from discovery by statute may not "be obtained by the simple expedient of asking the officers" for the information orally at deposition].)
3. Even if the Trial Court Erred, the Error Was Not Prejudicial
Assuming for the sake of argument that the trial court should have granted the continuance, the failure to do so was not prejudicial and would not, therefore, require reversal of the judgment.
To establish prejudice, defendant must show that if the court had granted the continuance, it is reasonably probable a result more favorable to him would have ensued. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.) He has not made this showing. First, there is good reason to believe the trial court would not have admitted Doe's statements to the social worker, even if the social worker had appeared after a continuance, and the juvenile court had properly authorized disclosure of the social worker's report. This is because, as we discuss above, the statements did not meet the hearsay exception for prior inconsistent statements. Second, and perhaps more important, the evidence against defendant was strong, and the fact that Doe may have denied inappropriate touching in June 2014 was unlikely to affect the strength of the evidence that defendant committed sexual abuse in October and November 2014. Doe's account of the charged acts in her forensic interview and on the stand was bolstered by her mother's testimony about the day Doe reported the abuse to her. Besides that, defendant voluntarily confessed to the charged acts. Any error in denying the continuance was harmless. C. Sufficiency of the Evidence of Force or Duress
The jury convicted defendant in counts 2 and 4 of aggravated lewd or lascivious acts on a child under age 14, a violation of section 288, subdivision (b)(1). Count 4 related to the Halloween incident and count 2 related to the incident two weeks later, on November 14, 2014. Section 288, subdivision (b)(1) proscribes the commission of lewd or lascivious acts "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." The prosecutor argued in closing that defendant used force, but primarily duress, in the commission of lewd or lascivious acts. Defendant argues on appeal that there was insufficient evidence of force or duress. We disagree.
"Our review of any claim of insufficiency of the evidence is limited. 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]'" (People v. Veale (2008) 160 Cal.App.4th 40, 45.)
Force "means 'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' [Citation.] A number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act." (People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 245, fn. 12.)
"[D]uress involves psychological coercion." (People v. Senior (1992) 3 Cal.App.4th 765, 775.) 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 otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.'" (People v. Leal (2004) 33 Cal.4th 999, 1004, italics omitted.) "[T]hreats need not be express, but may be inferred from conduct. [Citation.] Silent threats, of course, generate fear." (People v. Reyes (1984) 153 Cal.App.3d 803, 811.) Duress is measured objectively and does not depend on the response exhibited by the victim. (People v. Soto, supra, 51 Cal.4th at p. 246.)
The trier of fact considers the totality of the circumstances to determine whether a defendant used duress, including the relative ages and sizes of the victim and the defendant, the victim's relationship to the defendant, warnings to the victim that disclosing the molestation would result in consequences, and physically controlling the victim when he or she tries to resist. (People v. Veale, supra, 160 Cal.App.4th at p. 46; People v. Senior, supra, 3 Cal.App.4th at p. 775.) Thus, even if physical control does not constitute "force," it may contribute to duress. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) "A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition." (People v. Senior, supra, at p. 775.) The isolation of the victim from other adults is also a relevant factor. (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238.)
In this case, there was sufficient evidence of duress, or an implied threat of hardship or retribution. Defendant occupied a position of psychological dominance over Doe as her father figure, someone who disciplined her and to whom she listened. In both charged instances she did not want to orally copulate him but acquiesced because he told her to do it. Defendant, at 28 years old and six feet tall, also physically dominated six-year-old Doe. And in both charged instances, he physically isolated her. With respect to the Halloween instance in the market's bathroom, she was in the midst of using the toilet when defendant turned off the lights and commanded her to orally copulate him. This rendered her not just isolated but trapped in a vulnerable position. He warned her not to tell her mother, impliedly suggesting adverse consequences would follow. With respect to the instance in the car, she was also vulnerable because she did not know the house where they had parked and was dependent on defendant to return her home. It was not as though she could leave and find her own way home at night. She did not want to leave with him in the first place and did so only after he insisted on it. That time, he not only commanded her to orally copulate him and swallow his ejaculate, but called her the "B word." It is reasonable to infer that a six year old hearing this term applied to her by her father figure would feel intimidated. Additionally, there was evidence that she tried to resist and he pushed her head. Defendant insists this could not constitute force because it did not substantially exceed the force necessary to accomplish the act itself. Assuming that is the case solely for the sake of argument, if not force, that type of physical control certainly contributed to a sense of duress. In short, "[t]his record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority." (People v. Cochran, supra, 103 Cal.App.4th at p. 15.)
The evidence in the present case is similar to the evidence of duress found sufficient in Veale and Cochran. In Veale, the victim was seven years old when her stepfather molested her in the family home, on one occasion in a locked bedroom. (People v. Veale, supra, 160 Cal.App.4th at pp. 46-47.) The victim testified the defendant did not threaten her or use physical force. (Id. at p. 46.) Nevertheless, this court concluded there was sufficient evidence of duress based on the victim's fear of the defendant, her young age, the disparity in size between the two, and his position of authority in the family. (Id. at p. 47.)
In Cochran, the victim was nine years old, and the defendant was her father. (People v. Cochran, supra, 103 Cal.App.4th at p. 15.) The defendant coached and directed the victim, who was reluctant and acquiesced only as a matter of compliance with a parental authority. (Ibid.) He gave her money or gifts when they were alone together and told her not to tell anyone about the sex acts because he could get in trouble. (Ibid.) The court explained: "Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supports a finding of duress." (Id. at pp. 15-16, fn. omitted.)
Defendant relies on People v. Espinoza, supra, 95 Cal.App.4th 1287 for a different result, but his reliance is misplaced. In Espinoza, the court concluded the fact that the defendant was the 12-year-old victim's father and was larger in size, along with her fear and limited intellectual level, were insufficient to support a finding of duress. (Id. at pp. 1292, 1321.) While it was clear the victim was afraid of the defendant, the court found no evidence in the record to show the defendant used a direct or implied threat to accomplish his lewd acts. (Id. at p. 1321.) The victim in our case is far younger than the Espinoza victim, however, and perhaps more importantly, Espinoza did not involve any acts of physical control, profane name calling, warnings not to disclose the sex acts, or isolation in strange places.
Defendant's reliance on People v. Hecker (1990) 219 Cal.App.3d 1238 is equally misplaced. The Hecker victim was 12 or 13 years old at the time of the offenses, the defendant was her stepfather, and he warned her not to disclose the sex acts because it would ruin his marriage and career. (Id. at pp. 1241-1242.) The victim said he never used physical force, but she felt psychological pressure and was "'subconsciously afraid.'" (Id. at p. 1242.) The court found insufficient evidence of duress and held "'[p]sychological coercion' without more does not establish duress. At a minimum there must be an implied threat of 'force, violence, danger, hardship or retribution.'" (Id. at pp. 1250-1251, fn. omitted.)
As the court explained in Cochran, Hecker's analysis is overly broad. (People v. Cochran, supra, 103 Cal.App.4th at p. 15.) "The very nature of duress is psychological coercion." (Ibid.) A warning to a child that disclosing abuse may result in adverse consequences "may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent." (Ibid.; accord People v. Senior, supra, 3 Cal.App.4th at p. 775 ["A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition."].) And, like Espinoza, Hecker is distinguishable based on the age of the older victim and the lack of other factors, such as an attempt at physical control, profane name calling, and isolation in strange places. The record in our case amply supports a finding of duress.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.