Opinion
G053806
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. LOI PHAT NGUYEN, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is hereby ordered that the opinion filed herein on March 7, 2018, be modified in the following particulars:
1. On page 5, second full paragraph, second to last sentence, remove the phrase "trial court's conclusion" and replace with "jury's verdict".
This modification does not effect a change in judgment.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12WF2601) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed as modified. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was convicted of committing multiple child sex crimes against his cousin Tracy. On appeal, the only disputed issue is whether he used force or duress the first time he had sexual intercourse with Tracy. Finding substantial evidence he did, we affirm his conviction for aggravated sexual assault. While it is undisputed the judgment must be modified to stay sentence on one of the other counts and to increase appellant's presentence custody credits, we affirm in all other respects.
FACTS
Tracy grew up in Garden Grove with her younger brother Bryan, her aunt Kaitlyn, who was their primary caretaker, and other members of her extended family, including appellant. Tracy thought appellant was her uncle, but he was really her cousin. She was 6 years old and he was 23 when he started molesting her in 2007.
Although appellant had his own room in Tracy's house, he often slept in the bedroom Tracy and Bryan shared. Ostensibly appellant slept there to comfort Bryan, but he had his sights set on Tracy. During the night, he often removed her clothes and molested her, and on at least two occasions, he had sexual intercourse with her. During the intercourse, Tracy told appellant to stop because it was painful. He refused to do so, and one time she saw a "white gooey substance" coming out of his penis. He told Tracy not to tell anyone about what he was doing to her, or he would have to go to jail.
In addition to having sexual intercourse with Tracy, appellant licked and rubbed her vagina some nights. He also squeezed her breasts and tried to kiss her on her lips. The molestation occurred off and on until 2012, when Tracy was 12 years old. In August of that year, Tracy told Kaitlyn that appellant had been touching her inappropriately. When Kaitlyn asked appellant about this, he apologized for taking advantage of Tracy and acting like "an animal."
Following his arrest, appellant admitted to investigators he was sexually attracted to Tracy. He conceded licking and touching her vagina and having her touch his penis and masturbating in her presence, but he denied having sexual intercourse with her. Appellant also admitted he knew it was wrong to molest Tracy and that he locked her bedroom door before doing so. However, he claimed Tracy liked it when he touched her sexually.
Appellant testified similarly at trial. In fact, he insisted that once he started molesting Tracy, she came to like it and often asked him to touch her in a sexual manner. Nevertheless, the jury convicted appellant as charged of aggravated sexual assault, continuous sexual abuse, and two counts each of sexual intercourse, oral copulation and digital penetration with a child age 10 or younger. (Pen. Code, §§ 269, subds. (a)(1) & (2); 288.5, subd. (a); 288.7, subds. (a) & (b).) After dismissing the conviction for continuous sexual abuse, the trial court sentenced appellant to 70 years to life in prison.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support his conviction for aggravated sexual assault, which was based on the first time he had sexual intercourse with Tracy. Appellant claims reversal is required for lack of evidence the intercourse was coerced, but we disagree and affirm his conviction for that offense.
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence of the defendant's guilt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) In so doing, we do not reweigh the evidence or reevaluate the credibility of the witnesses who testified at trial; rather, "'[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]'" (Ibid.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [it]."' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Appellant was convicted of aggravated sexual assault under Penal Code section 269. That crime occurs when a man has sexual intercourse with someone under the age of 14 and at least 7 years his junior by means of force, violence, duress, menace or fear of immediate bodily injury. (Pen. Code, §§ 269, subd. (a)(1); 261, subd. (a)(2).) The issue in this case is whether appellant's first episode of sexual intercourse with Tracy was accomplished through duress.
For purposes of child sex crimes, 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. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. omitted; see also People v. Cochran (2002) 103 Cal.App.4th 8, 13.) Factors bearing on the issue of duress include the age and size of the victim, her relationship to the defendant, whether the defendant warned her not to reveal the abuse, and whether the defendant secluded her or overcame her resistance during the act. (Ibid.; People v. Veale (2008) 160 Cal.App.4th 40, 47; People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
The first time appellant had sexual intercourse with Tracy, he was a full-grown adult and she was only about six years old. From a physical, emotional and psychological perspective, this alone created an "inherent imbalance of power" between the parties. (People v. Soto (2011) 51 Cal.4th 229, 245-246.) Moreover, even though appellant was really Tracy's cousin, she looked up to him as an uncle. The fact Tracy's parents did not reside in the home increased the likelihood she viewed appellant as an authority figure in her family. (See People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239 ["Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant" is relevant to the issues of force, fear and duress].)
There was also evidence appellant locked the bedroom door before molesting Tracy and that he told her he would have to go to jail if she told anyone what he was doing to her. This could only have increased the psychological pressure on Tracy to submit to appellant's conduct. (People v. Cochran, supra, 103 Cal.App.4th at p. 15; People v. Veale, supra, 160 Cal.App.4th at p. 47.)
Last but not least, the record shows that when appellant had sexual intercourse with Tracy she told him to stop because it was painful, but he ignored her pleas. Appellant argues this evidence is irrelevant to the issue of duress because the act of penetration - the threshold act needed to trigger liability for the crime of rape - had already occurred by the time Tracy objected. However, the timing of Tracy's objection is not dispositive because even if the initial penetration was not coerced, appellant was required to stop once Tracy made it clear she did not want the penetration to continue. (In re John Z. (2003) 29 Cal.4th 756, 763.) Because appellant continued to have sexual intercourse with Tracy after she told him to stop, the jury could reasonably find the intercourse was accomplished by means of duress. (Ibid.; People v. Hale (2012) 204 Cal.App.4th 961, 979-980; People v. Cochran, supra, 103 Cal.App.4th at p. 15.) The totality of the circumstances amply supports the trial court's conclusion in that regard. We therefore uphold appellant's conviction for aggravated sexual assault.
Remaining Claims
Appellant's other two claims require little time. As the Attorney General concedes, because appellant's conviction for aggravated sexual assault in count 1 and sexual intercourse with a child in count 2 were based on the same act of intercourse, his sentence on the latter count must be stayed. (Pen. Code, § 654; People v. Mesa (2012) 54 Cal.4th 191, 195.) In addition, the record shows appellant served one more day in custody before sentencing than the trial court gave him credit for. Therefore, we will modify the judgment to correct that oversight.
DISPOSITION
Appellant's sentence on count 2 is stayed pursuant to Penal Code section 654, and his actual custody credits are increased from 1,113 days to 1,114 days, for a total presentence credit award of 1,281 days. The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting theses changes and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.