Opinion
D075952
01-29-2020
THE PEOPLE, Plaintiff and Respondent, v. DONALD WADE HEFNER, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Corina and Amanda E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1501832) APPEAL from a judgment of the Superior Court of Riverside County, Charles K. Koosed, Judge. Affirmed in part, remanded in part. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Corina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Donald Wade Hefner was convicted on 48 counts of lewd or lascivious behavior upon a minor under age 14 for his acts with three nieces for whom he provided childcare in the late 1980's and into the 1990's. (Pen. Code, § 288.) The court sentenced him to 288 years in prison and awarded $600,000 in direct victim restitution in addition to a $300 restitution fine and fees and assessments. On appeal, Hefner contends (1) the jury instructions were incorrect, resulting in prejudicial harm; (2) there was not substantial evidence that the first 36 counts occurred via duress (see § 288, subd. (b)(1)); and (3) the court improperly awarded direct victim restitution for noneconomic damages in sums exceeding $10,000 in violation of the ex post facto clause. We disagree with his first and third contentions and affirm the court's actions below. However, we agree the first 36 counts lacked substantial evidence of duress, and we will direct the lower court to resentence him on the lesser included charge on remand. (See § 288, subd. (a).) Additionally, although we affirm the award of direct victim restitution for noneconomic damages, on remand we will direct the trial court to indicate whether it intended to impose the victim restitution in lieu of part or all of the restitution fines and to determine what, if any, restitution is attributable to pre-1990 conduct.
Further section references are to the Penal Code unless otherwise specified.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged Hefner with 48 counts of lewd or lascivious behavior against a minor under age 14. (§ 288.)
A.
S.R. (Counts 1 - 36)
S.R. was born September 21, 1981 and has two older sisters, S.C. and S.N. While being interviewed for a job with the sheriff's department, S.R. revealed that she had experienced a negative sexual experience with her uncle, Hefner, who provided childcare for her and her two sisters.
At trial, S.R. testified that Hefner began molesting her when she was about eight or nine years old, in first or second grade, and it continued until she was in fourth or fifth grade, when her family moved away. On 20 or 30 occasions, Hefner called her over to him and lifted her onto his lap, facing her away from him. His zipper was down, and his erect penis was exposed while he rubbed her against his penis for a few minutes. After he finished, Hefner lifted S.R. off his lap and told her to go play.
One time Hefner picked up S.R. from school and drove her to his home. He went into his bedroom, then called to S.R.; when she entered, he was laying on his bed under blankets. He told S.R. to sit by him, and when she walked over to his side of the bed, he pulled back the blankets, showing he was naked. S.R. felt afraid. Hefner took her hand and tried to have her touch his penis. When she began screaming, Hefner dropped her hand, and she ran without touching him.
A different time, Hefner called S.R. into the bedroom and told her to get on the bed, which she did. Hefner lifted her up onto his lap facing away from him, then rubbed back and forth against her. This incident occurred before S.R. was in fourth or fifth grade.
S.R. testified that these incidents occurred at Hefner's home in Riverside. At the time, S.R. was probably only between three and four feet tall; Hefner was huge in comparison. She did not recall Hefner telling her to keep his actions a secret or instructing her not to tell anyone. She complied because he was an adult and she did not feel like she could tell him no. She did not ask her mother to stop taking her to Hefner's home because S.R. believed he was their only childcare option. S.R. thought about running away, but she never tried because she thought he was faster than she was, and she would get in trouble.
B.
S.C. (Counts 37-47)
S.C. was born February 4, 1977 and is the oldest of the three sisters. She testified her family moved to Riverside when she was in fifth grade and was about 10 or 11 years old. She also testified Hefner molested her growing up; she remembered it happening around fifth grade, and she based her timing of the events on their location in Hefner's Riverside home.
One time Hefner held her sitting on his lap and would not let her go. He touched her chest and rubbed her vagina with his fingers for a few minutes. Another time, she started to run after he entered the room, and he grabbed her and placed her on his lap facing away from him. She also described an incident in junior high when she was not feeling well. She was laying on the couch, and Hefner touched her under her shirt and rubbed her vagina.
She described other incidents as well. Once he hid in the shower, and when she pulled down her pants to go to the bathroom, she noticed him trying to watch her. Other times he would use a mirror with a stick under the bathroom door to watch her use the bathroom.
S.C. testified that he molested her until she was in high school and at least once when she was 17 years old, but she could not identify any specific dates.
C.
S.N. (Count 48)
S.N. was born on August 14, 1978 and is the middle sister. S.N. testified that she started attending school in Riverside around fourth or fifth grade, which she estimated to be around age eight or nine. Hefner babysat her while he lived in Lynwood and also while he lived in Riverside. She described one incident for the jury that occurred in Lynwood; she testified that the other incidents she experienced all occurred in Riverside.
In Riverside, Hefner was alone with S.N. after everyone else left for school. She would try to lock herself in the bathroom to avoid Hefner, but if she did not make it, he would grab her and force her to the ground, where he would kiss her and lick her neck. She could feel his erection on her leg, him rubbing against her. He also touched her breasts over her clothes. She testified these events occurred over years, "all the time."
D.
Other Testimony
Hefner's step-daughter J.R. also testified that he molested her when he lived in Lynwood. In the Riverside home, Hefner placed mirrors under the bathroom door when she was in there. She saw Hefner look in the window of her room, and he sometimes hid in the closet while she changed.
Charges related to J.R. were dismissed before trial because they fell outside the statute of limitations.
In May 2015, a detective told Hefner he was being investigated for molestation. The following month, J.R. called him. During the course of the call, Hefner said he had no idea why he touched her and denied touching S.R., S.N., or S.C.
E.
Defense
Four of Hefner's stepchildren, the best friend of one of the stepchildren, Hefner's current wife, and her best friend all testified as character witnesses on Hefner's behalf, opining he did not have the character of a person who would molest girls.
Dr. Annette Ermshar also testified as a forensic psychologist and memory expert. She testified that memory is generally unreliable and malleable, and it erodes over time. She explained that even details like the location of an event can be distorted with the passage of time. She also explained if a person has had conversations without others about events from 20 or 30 years earlier and has been questioned about the event on a number of different occasions, there is no way to know if the memory is accurate. Even traumatic events can be misremembered.
F.
Jury Instructions
The court and the parties discussed jury instructions informally and off the record; both sides had an understanding as to which instructions would be given and what they would say. The court stated it did not believe there were any objections to the jury instructions, and the attorneys agreed there were none.
The court commented that it had discussed with both counsel "the format and the order in which the jury would make those findings" regarding section 288, and it concluded "the best thing to do is to have the verdict forms in the traditional form that the People would typically submit those in[,] with a guilty and not guilty for both the greater and the lesser[,] and then the [section 803] statute of limitations finding along with the substantial sexual conduct finding either included on the same verdict form or it can just be a separate form after it, but it needs to be a finding that they make after determining guilt or innocence on each specific count."
The court explained it did not want the jury to return a guilty verdict and find the statutory requirements not met. It commented that the instructions made it clear: "If you don't make this secondary finding, you must vote not guilty and it's all in capital letters there. So it is spelled out very clean for them."
Defense counsel told the court he wanted to include the statement that if the prosecution did not meet its burden as to all the requirements, the jury must find the defendant not guilty. The court said it would include the requested statement because it was a correct statement of the law. When the court said, "I think we're good then on instructions," defense counsel replied, "I think so," and the prosecutor said, "Yes."
G.
Closing Arguments
Both attorneys discussed the statute of limitations requirements in their closing arguments. The prosecutor told the jury it had to make an additional finding that the statute of limitations was extended, so the People had to prove the act occurred after January 1, 1988. The prosecutor pointed out S.R. testified that the incidents occurred in Riverside, that she was sure they happened in the Riverside house, and it happened a lot, almost weekly.
The defense attorney argued that none of the complaining witnesses could tie the counts close to any date. He argued S.R. was uncertain about the timing because she said the events occurred probably around first or second grade, but they could have been before or after, even as early as kindergarten. He argued the events occurred too long ago to remember specifics. He also argued her memory was inaccurate, and false memories could be created over time. He told the jury that because none of the acts could be tied to an actual date, none of the 48 counts could correlate to a specific time.
Defense counsel further argued that S.N.'s testimony placed the events before 1988 even though she testified that they had occurred at the Riverside home, and because they occurred before 1988, those claims were barred. He highlighted CALCRIM No. 3410 and its requirements, said some of the acts she described occurred before 1988, and told the jury that those acts had to be dismissed.
H.
Jury Deliberations
The jury began deliberating at 3:10 p.m. on December 11, 2017. It asked for additional copies of the instructions at 3:46 p.m. The court re-read the instructions regarding statute of limitations at 3:59 p.m., and the jury adjourned at 4:02 p.m. Deliberations resumed the following morning at 9:00 a.m., and five minutes later, the jury sent the court a question asking if it needed to fill out the findings page regardless of its verdict on the counts.
In a discussion outside the jury's presence, the court explained that modified CALCRIM No. 3410 said that if the jury made a finding that the defendant did not commit the crime within the statute of limitations requirements, the jury was required to find the defendant not guilty of that count. The court also told the attorneys that the jurors had to complete the finding page if they made the finding before determining factual guilt, explaining, "[t]hey can make these verdicts in any order they want."
The court drafted a response to the jury's question, but within a couple minutes of the last conversation between the court and the attorneys, the jury informed the court at 9:40 a.m. it had verdicts, so the court never sent its written response. The court accepted the verdict forms, then met with the attorneys outside the presence of the jury to explain the jury did not fill out the findings.
Back in open court, the court said, "[I]f the jury makes findings that the defendant did not commit the crime within the requirements of Penal Code section [803] as defined in [CALCRIM No.] 3410, then that instructions states you must find the defendant not guilty of that Count." The court told the jury, "So you actually have to look at the finding first in some instance[s], if you choose to do so. You can look at it in any order you want." The foreperson responded: "Right."
Then the court explained: "Or if the jury finds the defendant factually not guilty of a particular Count, then you're not required to fill out the finding page at all. So if you are—you were to look at the evidence and say, look, the D.A. didn't prove this charge beyond a reasonable doubt, factually, not—circle not guilty, you don't need to fill out the finding. Okay. And then third is if the jury finds the defendant factually guilty, then the jury is required to fill out the finding page." The court said, "But when you fill out the finding page, if it does not comply with [Penal Code section] 803 as defined in [CALCRIM No.] 3410 and you circled [']did not,['] then it instructs you to find him not guilty." The court directed the jury: "So the finding is required for each and every Count unless—the only time you wouldn't need to do the finding would be if you found him factually not guilty, then we don't get to the finding at all."
After a side bar, the court told the jury: "[I]n filling out the finding, you have two choices[:] did or did not." It continued: "[I]f you find the defendant factually guilty, then you must fill out one or the other." Then, "[i]t was complied with or it wasn't. If you find it was not complied with, then you have to go back by law change—write—put down a not guilty verdict or if you find it was complied with, then you just circle it was." The court reiterated, "[Y]ou have to do the analysis and make the finding all on instances except for the one where you would say, look, the D.A. just didn't prove it beyond a reasonable doubt, not guilty, then I don't need the finding. Only in that limited circumstance." The court asked the jurors to return to deliberations.
About 16 minutes later, the jury indicated it reached a verdict.
I.
Verdict and Sentencing
The jury found Hefner guilty of violating section 288, subdivision (b)(1) against S.R. and found the crimes were committed within the requirements of section 803, subdivision (f) and the statute of limitations in counts 1-36. It found Hefner guilty of violating section 288, subdivision (b)(1) against S.C. and found the crimes were committed within the requirements of section 803, subdivision (f) and the statute of limitations in counts 37-47. It found Hefner guilty of violating section 288, subdivision (b)(1) against S.N. and found the crime was committed within the requirements of section 803, subdivision (f) and the statute of limitations in count 48.
The court sentenced Hefner to the midterm of six years on each count, for a total aggregate sentence of 288 years. It ordered a restitution fine of $300 and a parole revocation fine of $300, which it stayed pending successful completion of parole. The court awarded noneconomic losses and damages in the amounts of $200,000 to S.R., $250,000 to S.C., and $150,000 to S.N.
Defense counsel did not dispute that the victims were entitled to noneconomic damages.
II.
DISCUSSION
A.
No Instructional Error
Hefner contends the court improperly instructed the jury because it directed the jury on the order in which it should consider the issues and because the instructions invited the jury to consider whether Hefner would be punished for his actions, which could have led the jury to draw an incorrect conclusion regarding the statute of limitations. The People counter that Hefner invited error by participating in the crafting of modified CALCRIM No. 3410 and forfeited any challenge by failing to object or request a different instruction. Alternatively, the People contend the instructions were correct and there was no harmless error.
1. Standard of Review and Applicable Laws
We review an assertion of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 (Mickey).)
If a defendant does not object to or request a specific jury instruction at trial, he forfeits a challenge to the jury instructions on appeal, unless the claimed error affected the defendant's substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7 (Flood).) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Additionally, a party invites error when there is a deliberate or tactical purpose for having an instruction. (People v. Cooper (1991) 53 Cal.3d 771, 831.) " 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 (Coffman and Marlow).) "In cases involving an action affirmatively taken by defense counsel," courts "have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule." (Ibid.)
2. Instructions Did Not Misstate the Law
Hefner concedes he did not object to the wording of modified CALCRIM No. 3410, but he argues this did not forfeit his right to challenge the instructions because they were an incorrect statement of law. (People v. Jandres (2014) 226 Cal.App.4th 340, 357; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1112.) Thus, whether there was a forfeiture in this case depends in part on the correctness of the instruction.
Hefner contends the instructions were incorrect because they directed the jury to consider the issues in a particular order and because they provided the jury with information about possible punishment. We disagree and conclude the instructions correctly stated the law.
Hefner relies in part on People v. Ruiloba (2005) 131 Cal.App.4th 674 (Ruiloba) to explain how a jury should be instructed when resolution of statute of limitations turns on factual issues. In Ruiloba, the jointly-requested instructions directed the jury that if it found the defendant guilty of any of the counts, it had to further determine as to each of those counts whether the People proved the facts necessary to extend the statute of limitations. (Id. at pp. 688, 689.) During deliberations, the jury asked if it could decide the statute of limitations issue first, and the court said no. (Id. at pp. 688-689.) On appeal, the defendant argued the trial court should have bifurcated the issue of the statute of limitations so the jury could consider the statutory requirements before determining guilt. (Id. at pp. 688, 689.)
The dispute focused around the requirements in section 803, former subdivision (g), which extends the statute of limitations in certain cases. Among other things, section 803 requires the crime to involve substantial sexual conduct, demonstrated by independent corroborating evidence. (Ruiloba, supra, 131 Cal.App.4th at p. 688; § 803, former subd. (g).) The appellate court concluded bifurcation would be inefficient and duplicative. (Ruiloba, pp. 691-692.) But it also stated that "instructing the jury first to determine guilt and then and only then to determine whether the case may be prosecuted could present unnecessary risks. Some otherwise diligent jurors might feel pressured to be less than faithful as to the [former] section 803(g) instructions, in order to avoid loosing a proven child molester on the public." (Ruiloba, at p. 692, italics added.)
Section 803, former subdivision (g) is the predecessor to section 803, subdivision (f). (See Ream v. Superior Court (1996) 48 Cal.App.4th 1812, 1814-1815; § 803, subd. (f); § 803, former subd. (g), added by Stats. 1984, ch. 1270, § 2, as amended by Stats. 1993, ch. 390, § 1 (§ 803, former subd. (g).)
The court then offered "[a] better course" of action: "include the elements of [former] section 803(g) into the definition of the crimes, as appropriate to the given case, and [do not] even tell the jury why those elements are present." (Ruiloba, supra, 131 Cal.App.4th at p. 692.) The court explained: "The jury would make a unified finding on each count. That is, to convict[,] a jury would be told it had to find the substantive elements of the charged crime have been proven beyond a reasonable doubt, and that the elements needed to trigger the extension of the statute of limitations have been proven by the applicable standards . . . ." (Ibid.)
This recommendation is consistent with what the court did here. In this case, the court was concerned about having to nullify an inappropriate verdict if the jury came back with a guilty verdict but also found that the statute of limitations had not been met. The instructions were designed to prevent that, by directing the jury to find the defendant not guilty if both the factual guilt and the statutory finding were not proved. The modified version of CALCRIM No. 3410 stated: "If you find the prosecution did not meet their burden of the evidence as to all three requirements, then you must find the Defendant NOT GUILTY of that count." Thus, as the court in Ruiloba recommended, here the jury instructions required the jury to find the substantive elements of the crime had been proven beyond a reasonable doubt and the elements triggering the extended statute of limitations had been appropriately proven before reaching a guilty verdict.
Hefner cites People v. Dennis (1998) 17 Cal.4th 468, People v. Kurtzman (1988) 46 Cal.3d 322, 330, and People v. Perez (1989) 212 Cal.App.3d 395 to support his argument that the trial court should not instruct the jury on the order in which to consider issues presented to it. As he notes, these cases involve consideration of greater and lesser included offenses, an issue distinguishable from the one here. Moreover, in those cases, those cases hold that a court may restrict a jury from returning a verdict on a lesser included offense before acquitting on a greater offense but may not direct the order of deliberations. (Dennis, at p. 536; Kurtzman, at p. 328, 335; Perez, supra, at pp. 399-400.) Thus, were we to conclude the reasoning in those cases were applicable here, because the statute of limitations finding was a necessary element of either the greater or lesser included offense here, it was correct for the court to direct the jury to draw a conclusion about statute of limitations before reaching a final verdict on guilt.
However, the court did not direct the jury to deliberate or consider the evidence in any particular order. The court instructed it, "So you actually have to look at the finding first in some instance[s], if you choose to do so. You can look at it in any order you want." The court even went out of its way to clarify the various approaches the jury could take, deemphasizing the order of their factual findings and emphasizing that in order to find the defendant guilty of the count, the jury had to find the defendant both factually guilty and to have met all the requirements of section 803, subdivision (f).
Hefner also argues the instructions incorrectly stated the law because they invited the jury to consider punishment. We disagree. Whether the court here had integrated CALCRIM Nos. 1100 and 1101 with 3410 into a single instruction or provided those instructions separately, a guilty verdict depended on the jury determining that the defendant committed the criminal act and finding he did so under the statute of limitation requirements. The court's instructions focused on the ultimate finding of guilt, achieving the same result as if those requirements were integrated into the elements of the crime. These instructions were not an incorrect statement of the law.
3. Appellant Forfeited or Invited any Instructional Error
Given this conclusion, Hefner has forfeited any claim of error on appeal. (§ 1259; Flood, supra, 18 Cal.4th at p. 482, fn. 7.) Even if there were an error, Hefner's attorney invited it. Not only did he fail to object to the instructions when directly asked by the court, but he participated in crafting them, ensuring that modified CALCRIM No. 3410 included the statement that if the jury did not make the secondary finding, it must find the defendant not guilty. Defense counsel even commented, "It's a pretty complex series of y's in the road that you have to take. I'm hoping they're going to go through the instructions and do those. I just think if they're looking at one, they ought to know that is still an option of looking at one and not the other." These comments demonstrate that defense counsel had a deliberate, tactical purpose for at least acceding to the instructions. (See Coffman and Marlow, supra, 34 Cal.4th at p. 49; see also People v. Maurer (1995) 32 Cal.App.4th 1121, 1127.)
4. Any Error Was Harmless
Finally, even if Hefner had not forfeited his argument or invited the error, any error would be harmless. This form of instructional error is analyzed under the Watson standard. (People v. Watson (1956) 46 Cal.2d 818, 836; see, People v. Mendez (2018) 21 Cal.App.5th 654, 662 [applying Watson standard of prejudice to modified jury instruction].) Thus, our charge is to determine whether it is reasonably probable that a result more favorable to Hefner would have been reached if the court had given these instructions as a single, integrated one.
Hefner argues the standard of applicable prejudice is "somewhat murky" because cases focusing on the effect of an instruction concerning a penalty "have applied more stringent standards." However, none of the cases he cites identifies a particular standard to follow, noting only that instructional errors that improperly reference punishment are likely to mislead the jury, making the corresponding judgments reversible.
Hefner contends it is not reasonably probable the jury would have reached the same verdicts because an integrated instruction would have led jurors to more closely consider the statute of limitations evidence. We disagree.
The parties agreed that the events had to have occurred after January 1, 1988 to meet the statute of limitations requirements, and they stipulated that Hefner moved to Riverside in June 1989. Thus, as long as the incidents occurred in Riverside, they fell within the statute of limitations.
To demonstrate prejudice from the instructions, Hefner challenges S.R.'s testimony, arguing that S.R. was inconsistent about the timing of the incidents, testifying that the molestation probably began when she was in first or second grade, that she was eight or nine years old when it started, that it ended about the time she was in fourth or fifth grade, and that she believed the molestation occurred in Hefner's Riverside home. He contends the testimony creates doubt about timing because her age, grade, and location do not align. However, S.R. consistently testified that the molestation occurred in Riverside while she was in elementary school. Even if her ages or grades did not precisely match up, if the jury believed the incidents took place in Riverside, it is not reasonably probable it would have found they did not occur within the statute of limitations.
Hefner likewise challenges S.C.'s credibility regarding the dates of the events based on testimony about her age and grade at the time. However, S.C. testified that she was basing all the events on when her family moved to Riverside. It was the location that grounded her memories, not her age. She also described at least one incident that she remembered occurring when she was in junior high, and she testified that he molested her probably more than ten times between fifth and ninth grades, the time period during which Hefner lived in Riverside
Finally, Hefner does not attack S.N.'s account of the events as having occurred in Riverside. She remembered at least one incident with Hefner occurring before she moved to Riverside, but she knew the series of incidents of him licking and kissing her occurred while he lived in Riverside. Although she could not tie any of the incidents to specific dates because they occurred over years "all the time," she knew they occurred in Riverside. If S.N. were believed, then S.C. would have been a year older, fifth or sixth grade, when Hefner began molesting her, and S.R. would have been three years younger, in first or second grade, when Hefner began molesting her. These dates are consistent with the testimony of S.C. and S.R. Thus, S.N.'s testimony corroborates her sisters' testimony that the molestation occurred in Riverside.
The collective testimony of the sisters was that Hefner molested them while he lived in Riverside. Taking all the evidence into consideration, it is not reasonably probable a jury would have concluded differently even had the instructions been structured differently.
We are also unpersuaded by Hefner's argument that the amount of time the jury spent in deliberations means it did not seriously contemplate the timing of the events. We acknowledge that the jury initially did not complete the finding forms. At the time, the court interpreted this to mean the jury appeared to be struggling with whether to make the statutory finding first or the factual guilt finding first. The court reinstructed the jury on the findings that went along with each count and how to reach a verdict. Nothing in the record suggests the jury failed to consider the statute of limitations issues, and we presume the jury faithfully followed the instructions. (Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)
Moreover, there was considerable evidence the sisters were molested by Hefner. He sat both S.R. and S.C. on his lap facing away from him while he rubbed against them. He similarly rubbed against S.N. when he had her on the ground. Both S.C. and S.N. testified that he touched their chests. And although there were no charges against Hefner for molesting J.R., her testimony described Hefner trying to observe her in the bathroom with a mirror under the door, which he also did to S.C.
Given this evidence and even taking into consideration the malleability of memory, there is no reason to believe the jury spent all or most of its time contemplating factual guilt. The similarities in their accounts makes it unlikely the jury spent all its time weighing factual guilt. It is just as likely jurors spent time deliberating about the location and timing of events or that they considered the evidence of factual guilt and the timing and location of events together. Thus, it is not reasonably probable a change in the format of these instructions would have led the jury to a different conclusion.
B.
Convictions Under Section 288 , subdivision (b)(1) for Counts 1-36 Are Not Supported by
Substantial Evidence
Hefner maintains that the convictions for counts 1 through 36 for violating section 288, subdivision (b)(1) were not supported by substantial evidence because he did not use duress in the acts against S.R. We agree.
When we review a challenge for the sufficiency of the evidence, we review "the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, 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." (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) We "presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) We do not reweigh evidence or reevaluate the credibility of witnesses. (See People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved of on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248 (Soto).) If evidence permits a reasonable trier of fact to conclude the charged crime occurred, the ability to reconcile the facts with a contrary finding does not warrant reversal. (See People v. Valdez (2004) 32 Cal.4th 73, 104.)
Section 288, subdivision (b)(1) makes it illegal to willfully and lewdly commit any lewd or lascivious act upon or with the body of a child under age 14 by use of "force, violence, duress, menace, or fear of immediate and lawful bodily injury on the victim or another person." These elements differ from those found in section 288, subdivision (a) only through the requirement of force, violence, duress, menace, or fear to accomplish the lewd act. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1318 (Espinoza).) "[I]t is the defendant's menacing behavior that aggravates the crime and brings it under section 288(b)." (Soto, supra, 51 Cal.4th at p. 243.)
The prosecutor focused his arguments on duress. "Duress" as used in section 288, subdivision (b)(1) 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 (Leal).) Duress is measured by an objective standard; thus, the focus is on the defendant's wrongful act, not the victim's response. (Soto, supra, 51 Cal.4th at p. 246.) Moreover, a psychological coercion is not sufficient to establish duress without more. (Espinoza, supra, 95 Cal.App.4th at p. 1321.) " '[A]ll sex crimes with children are inherently coercive.' " (Ibid.) However, the Legislature's enactment of section 288, subdivision (b) demonstrates its intent to single out the commission of such acts by the use of violence or threats. (Espinoza, at p.1321.)
The evidence demonstrates that there was a significant size difference between Hefner and S.R. because she was three or four feet tall and he was huge in comparison. Moreover, he was the person in power as her childcare provider. The only way we could say that defendant's lewd acts on S.R. were accomplished by duress would be if the mere fact that he was her uncle and larger than she was, combined with her impression that she did not have any other options, were sufficient to establish duress. But they are not. There is no "direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities." (See Leal, supra, 33 Cal.4th at p. 1004.) Without evidence that the victim's participation was impelled, at least partly, by a threat or implied threat, duress is lacking. (See People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1580.) Even though S.R. was afraid not to participate, the People did not introduce any evidence that this fear was based on anything Hefner did, other than continue to molest her.
The People cite our decision in People v. Thomas (2017) 15 Cal.App.5th 1063 (Thomas) for the proposition that "[w]hen the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases." (Id. at pp. 1072-1073.) In Thomas, the defendant molested his daughter from the time she was four or five years old until she was about 14. (Id. at pp. 1066-1067.) He also physically disciplined her throughout her childhood, hitting her on her hands and buttocks, kicking her, grabbing her by the neck, and yelling at her, causing her to fear being physically disciplined by him. (Id. at pp. 1067, 1068.) We evaluated "[t]he totality of the circumstances[,] includ[ing] the victim's age, her relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child." (Id. at p. 1072.) We explained the victim was a vulnerable and isolated child compelled to participate "in response to parental authority and violent intimidation and not the result of freely given consent." (Id. at p. 1073.) We noted that her father's "ongoing violent conduct terrified" her, and so the jury could have reasonably found his beatings "constituted an implied threat of violence or danger if she did not submit to his sexual abuse." (Ibid.)
This quotation originated in Cochran, supra, 103 Cal.App.4th at page 16, footnote 6. There, we noted the parent/child relationship does not establish duress per se. (Ibid.) However, the Supreme Court's subsequent decision in Soto made clear that while facts demonstrating an age difference and a disparate power dynamic may demonstrate lack of consent, lack of consent is not sufficient to establish a violation of section 288, subdivision (b). (Soto, supra, 51 Cal.4th at p. 248.)
Thomas relied upon Cochran, supra, 103 Cal.App.4th 8, another decision from a panel of this court. In Cochran, we noted the victim was nine years old and was molested by her father, with whom she resided. (Id. at p. 15, disapproved of on other grounds in Soto, supra, 51 Cal.4th 229.) We concluded that "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," there was evidence of duress. (Id. at p. 16.)
These two cases are distinguishable from the present one. In both Thomas and Cochran, the victims were young and abused by their fathers, with whom they resided at least part-time. They each involved threats of physical force or of breaking up the family. In contrast, S.R. did not live with Hefner, and there was no threat like there was in Thomas and Cochran. Unlike the victim in Thomas, S.R. did not fear that she would be beaten for noncompliance, and there was no evidence that she would be. And unlike the victim in Cochran, there was no implication that she would destroy her family by failing to comply. In other words, there were no similar facts that could lead the jury to reasonably conclude Hefner coerced S.R. via duress.
Although S.R. recalled seeing Hefner physically discipline a male cousin once, Hefner never physically disciplined her or her sisters.
Because there is no evidence that Hefner used duress to commit the 36 counts of lewd acts, the section 288, subdivision (b)(1) conviction must be reduced to reflect a conviction of the lesser included offense of violating section 288, subdivision (a). (See Espinoza, supra, 95 Cal.App.4th at pp. 1321-1322.) We will remand the matter for resentencing on that basis.
C.
No Requirement to Reduce Direct Victim Restitution Awards
Hefner argues the noneconomic victim restitution was improperly awarded retroactively to the victims and urges us to strike those awards as a violation of the ex post facto clause. Hefner begins with the premise that direct victim restitution for noneconomic damages is punishment and maintains that there are "no overt indications of a legislative intent that direct victim restitution does not amount to punishment for ex post facto purposes." We conclude that direct victim restitution is not punitive, and the ex post facto clause is therefore inapplicable.
At sentencing, Hefner's attorney did not challenge the propriety of awarding noneconomic damages; he only argued the amount could not be arbitrary. People v. Hiscox (2006) 136 Cal.App.4th 253 concluded the failure to raise an ex post facto objection in the trial court does not forfeit the issue on appeal. (Id. at p. 259; see People v. Scott (1994) 9 Cal.4th 331, 354 [forfeiture rule inapplicable when sentence unauthorized]; but see People v. White (1997) 55 Cal.App.4th 914, 917 [concluding the failure to object to the amount or the manner of payment of direct restitution waives the issue for appeal].) The People do not raise the issue of forfeiture on appeal; thus, we do not address its applicability here.
The People argue that although the 1994 amendment to Penal Code section 1202.4 added a subdivision providing for noneconomic victim restitution, this type of restitution was authorized as early as 1988 via former Government Code section 13967, subdivision (a). Thus, the court was permitted to consider intangible losses, like psychological harm, in setting the restitution fine and direct victim restitution. We decline to draw a conclusion as to whether this is an appropriate interpretation of the statutes.
The rule against ex post facto legislation applies only so long as the restitution is characterized as a punishment. (People v. Zito (1992) 8 Cal.App.4th 736, 746 (Zito).) In Zito, the defendant pleaded no contest to crimes he participated in between November 1988 and April 1990. (Id. at p. 739.) The trial court ordered him to pay $300,000 in direct restitution, as well as a $10,000 restitution fine. (Ibid.) On appeal, Zito argued among other things that the restitution order violated the ex post facto provision and exceeded the amount allowable under former Government Code section 13967. (Zito, at pp. 739-740.) The appellate court characterized the total restitution award as punitive because it was for $300,000, a significantly greater amount than the $10,000 limit under pre-1990 law. (Id. at p. 741.)
Zito relied on People v. Walker (1991) 54 Cal.3d 1013 (Walker). In Walker, the defendant was subject to two possible fines, a discretionary penal fine of up to $10,000, as provided at the time under Penal Code sections 672 and former 12303.3, and a mandatory restitution fine of $100 to $10,000 under former Government Code section 13967, subdivision (a). (Walker, at p. 1019.) The Supreme Court concluded that the punishment following a guilty plea "may not significantly exceed that which the parties agreed upon." (Id. at p. 1024.) In that context, the Supreme Court said, "[a]lthough the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment for this purpose." (Ibid.) This was because the restitution fine was a significant variation from what the defendant agreed to in the plea bargain, since he did not agree to pay any fine. (Ibid.)
We disagree with Zito's characterization of direct victim restitution as punishment. (See Zito, supra, 8 Cal.App.4th at p. 741.) In Walker, the Supreme Court did not hold that all restitution payments are punitive; nor did it direct courts to weigh the purposes of restitution against their impact. (Walker, supra, 54 Cal.3d 1013.) It merely held that because the defendant was not anticipating any restitution fine when he agreed to plead guilty, the fine imposed significantly exceeded the parties' plea agreement. (Id. at pp. 1023-1024.) Moreover, the court drew that conclusion regarding the mandatory restitution fine, not the discretionary fine available—or victim restitution. (Ibid.)
Also, the court in Zito did not consider the differing purposes of the restitution fine and direct victim restitution, instead applying the ex post facto prohibition to the entire sum. (Zito, supra, 8 Cal.App.4th at p. 741.) However, restitution fines and victim restitution are qualitatively different. While both share former Government Code section 13967 and Penal Code section 1202.4 as their statutory bases, the former is imposed only following conviction of a criminal offense and the latter is a civil remedy "which does not require a civil forum." (People v. Harvest (2000) 84 Cal.App.4th 641, 647.) Unlike restitution fines, victim restitution is not punitive. (People v. Evans (2019) 39 Cal.App.5th 771, 776.) Instead, "victim restitution is intended 'as a civil remedy rather than a criminal punishment.' " (Ibid.) The remaining goals of deterrence and rehabilitation are secondary to victim compensation. (People v. Holman (2013) 214 Cal.App.4th 1438.) Nor can it be said that victim restitution is so punitive in effect that it changes what was intended as a civil remedy into a criminal penalty. (Harvest, at pp. 649-650.) Accordingly, we conclude there is no ex post facto prohibition on awarding direct victim restitution for non-economic damages in this case.
Prior to 1990, former Government Code section 13967, subdivision (c) (repealed by Stats. 2003, ch. 230 (Assem. Bill No. 1762), § 2, eff. Aug. 11, 2003) authorized direct victim restitution and a restitution fine, but the total combined amount could not exceed $10,000. (Zito, supra, 8 Cal.App.4th at pp. 740-741; see, e.g., People v. Blankenship (1989) 213 Cal.App.3d 992, 998-999.) After January 1, 1990, direct restitution in the amount of the losses, in lieu of all or part of the restitution fine, became permissible. (Zito, at pp. 740-741.) Thus, we will remand the matter so the trial court can indicate whether it intended to impose the victim restitution in lieu of part or all of the restitution fines and to determine what, if any, restitution is attributable to pre-1990 conduct.
In 1986, the Legislature amended Government Code section 13967 to require direct victim restitution when the victim suffered economic loss due to the defendant's conduct when the defendant was denied probation. (People v. Giordano (2007) 42 Cal.4th 644, 653.) In 1994, the Legislature deleted the restitution provisions in Government Code section 13967 but incorporated similar provisions into Penal Code section 1202.4, which already required direct victim restitution as a probation condition. (Giordano, at p. 653, citing Stats. 1994, ch. 1106, §§ 2, 3, pp. 6548-6550, eff. Sept. 29, 1994.) In 1996, the Legislature modified the statute to expand the list of items constituting economic loss and to add noneconomic loss for lewd and lascivious acts to the list of recoverable losses. (Giordano, at p. 654, citing Stats. 1996, ch. 629, § 3, pp. 3467-3468, eff. Jan. 1, 1997.) In 1999 and again in 2000, the Legislature amended the nonexclusive list of categories of compensable loss. (Giordano, at p. 654, citing Stats. 1999, ch. 584, § 4; Stats. 2000, ch. 1016, § 9.5.)
DISPOSITION
We remand the matter and direct the court to reduce the convictions for counts 1-36 to reflection convictions for the lesser included offense of section 288, subdivision (a). The court shall resentence Hefner on counts 1-36. On remand, the trial court shall also indicate whether it intended to impose the victim restitution in lieu of part or all of the restitution fines and to determine what, if any, restitution is attributable to pre-1990 conduct. The trial court shall prepare an amended abstract of judgment reflecting the sentencing decisions. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. DATO, J.