Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF122208, Craig Riemer, Judge.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez, Garrett Beaumont and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
Defendant Ruben Nunez was charged with 41 counts of lewd and lascivious acts upon a child under 14 years of age by force in violation of Penal Code section 288, subdivision (b)(1). Counts 1 through 40 alleged that defendant committed unlawful acts upon S.M. (identified in the pleading as “JANE DOE I”). Each count alleges a different month for the unlawful act committed against S.M. beginning with June 1996 (count 1) and concluding in September 1999 (count 40). Count 41 alleged an act against S.M.’s sister, D.M. (identified in the pleading as “JANE DOE II”), in September 2000.
All further statutory references are to the Penal Code unless otherwise indicated.
During trial, the court granted the prosecution’s motion to dismiss counts 33 through 40. These dismissed counts alleged the commission of unlawful acts against S.M. in the months of February 1999 through September 1999.
A jury found defendant guilty of the 33 remaining counts pertaining to S.M. and of the single count (count 41) pertaining to D.M. The jury also found true an allegation that defendant committed an offense against more than one victim. (§ 667.61, subd. (e)(5).) He was sentenced on the first count for each victim to consecutive sentences of 15 years to life. On each of the remaining counts, he was sentenced to consecutive three-year terms.
On appeal, defendant contends: (1) the jury was incorrectly instructed that consent of the victims is not a defense to a charge under section 288, subdivision (b); (2) the evidence was insufficient to convict him on two of the counts concerning S.M.; and (3) the evidence was insufficient to establish evidence of force and duress. We agree with the second contention and reject the remaining arguments.
I. SUMMARY OF FACTS
A. Evidence Pertaining to D.M.
D.M. was 19 years old when she testified at trial to the following. In September 2000 she was 10 years old and weighed about 90 pounds. She and her sister, S.M., had been adopted by Maria M. when D.M. was “a baby.” Around the time she was 10 years old, she spent “about every weekend” at the home of Maria’s mother, whom D.M. referred to as her “grandmother.” Defendant is Maria’s brother. He lived at the grandmother’s house and D.M. thought of him as her uncle. One night in September 2000, D.M. was sleeping on the grandmother’s couch in the living room. She was wearing a shirt and shorts, and laying on her stomach. Defendant “came over... on [her] back and like started... ‘humping, ’ and saying words in [her] ear.” He said things “like ‘I love you, ’” and “‘[m]ake love to me.’” His body was “[k]ind of like going up and down.” He did this for about five minutes. D.M. felt scared. She heard defendant’s zipper go down and “felt something hard along [her] butt.” It “felt like a poke.” She wanted to leave, but could not because defendant was on top of her. He was “much bigger” than she. His weight hurt her and prevented her from getting up. She made a “cry sound, ” or “whimpering noises, ” like she was “in pain.” Defendant told her to be quiet. He put his face next to hers and licked her ear. Eventually, defendant “just gave up” and left the room.
Immediately after defendant left, her grandmother came into the room. The grandmother spoke Spanish and D.M. could speak only “a little” Spanish. Her grandmother asked D.M. in Spanish if everything was okay, and D.M. told her in Spanish that everything was fine. She did not tell her grandmother what happened because she was scared and because she could not speak Spanish and “had no way of communicating to her to tell her what had just happened.”
D.M. told her sister S.M. about the incident the next day. S.M. became upset and told D.M. she had to tell their mother. S.M. then told their mother that D.M. “had something to tell her.” With S.M. present, D.M. then told her mother what happened. As she spoke, S.M. cried.
D.M. was interviewed by a Riverside Child Assessment Team (RCAT) interviewer. D.M. told the interviewer the following about the incident: She had been sleeping on the couch when defendant got on top of her and began licking her ear; he touched her “where he wasn’t supposed to” and put his finger in her “private” two times; this hurt her private; his weight on top of her also hurt her; when she started crying, he told her to be quiet; the next day, she told S.M. that defendant “was trying to have sex with” her; and she then told “the whole story” to her mother. A videotape of this interview was played to the jury.
On cross-examination, D.M. said that prior to September 2000 she had never heard S.M. express any concerns about going to the grandmother’s house and that S.M. also seemed happy to be there. S.M. had always “acted loving to [defendant]” and never told her that defendant had touched her inappropriately. She never saw defendant do anything inappropriate to S.M. or anyone else. She further testified that during the incident she never told defendant to stop and never tried to get away from him.
B. Evidence Pertaining to S.M.
S.M. was 21 when she testified at trial. She testified in some detail about five specific incidents involving her and defendant. The first occurred in June 1996 when she was eight years old. On that occasion, defendant was helping S.M.’s family move into a new house. Defendant cornered S.M. against a wall, then kissed her and put his hands down her pants. She asked him to stop and tried to get away. He told her to be quiet. She could not get away because of his weight; she “was so little. He was so big.” Defendant touched her vaginal area and put his fingers inside her vagina. She was scared and shocked. He did not stop touching her until he heard someone coming into the hallway. When she tried to leave, he grabbed her and told her, “‘Don’t tell anybody.’” S.M. did not tell anyone because she thought it would only happen once.
The second incident occurred a short time after the first when she was cleaning a room at her grandmother’s house. She, like D.M., went to the grandmother’s house every weekend, plus “once or twice before the weekend.” Defendant came into the room, closed the door, and pushed her onto the bed. S.M. was scared and started crying. She asked him to stop, but he refused. Defendant started to kiss her and put his hand in her pants. She tried to push him away and take his hands off her, but he pushed her hands down and kept them down. He kissed her on the mouth and on her breasts, and used his hand to rub her vagina. When he heard someone coming, he got off her. He again told her not to tell anyone. She did not tell anyone because she was scared and thought no one would believe her.
The third incident took place in defendant’s room. Defendant told S.M. that he wanted to show her a video camera in his room. She walked into the room and he locked the door behind her. He pushed S.M. down onto the bed and got on top of her. She tried to get away, but was prevented by his size. Defendant said “he loves me, and that no man will ever love me the way he loves me.” He kissed her, and touched her on her breasts, buttocks, and vagina. He also tried to make her touch his penis. When she started to cry, he put his hand over her mouth and hit her in the stomach. He said he hit her because he did not want others to know what was going on. Eventually, he let her go because she was making too much noise.
Defendant had videotaped the third incident. A week or two after that incident, defendant asked her if she wanted to watch the videotape. When he began to play the tape, S.M. started to cry and ran out the door. Later, S.M. told defendant she wanted to show the videotape to her mother. Defendant laughed and broke the tape, saying, “‘No one will know.’”
The fourth specific incident described by S.M. occurred on a night when S.M., her sister, and her brother were sleeping on one bed in the living room. She was 10 years old, “about to be eleven.” Defendant came into the room and picked her brother and sister up and moved them to a different room. He returned and got on top of S.M., whispering that he loved her, and calling her Maria or Malia. S.M. said she was not that girl and told him to get off her. Defendant told her to be quiet. She started to cry and asked what he wanted. He said he loved her and that “he had to do this.” She told him to stop. He kissed her “aggressively, ” touched her breasts, buttocks, and vagina, and kissed her breasts. He “kept forcing [her] arms down and really hurting [her].” With one arm, he held S.M.’s arms down above her head, touching her with his other hand. S.M. cried and called for her grandmother. He told her to be quiet. He put his fingers inside her vagina. S.M. told him it hurt, but he did not stop. He took off her pajama pants and his shorts, and rubbed his penis against her vagina, then penetrated her with his penis. She cried and told him to stop, but he kept telling her that he loved her. She hit him and threatened to scream; he then hit her in the stomach “really hard.” She then stopped trying to fight him.
This was actually the last incident S.M. could recall. She explained that the incidents she described in court were not necessarily chronological, “[j]ust the specific ones [she] remember[ed].” She knew, however, that “him having sex with [her] was the last one [she could] remember.”
A fifth incident occurred when defendant was staying at her house. He came into her room when she was in bed and rubbed her vagina underneath her clothes. He also started to rub her breasts. She tried to get away, but could not because he was blocking her. When she pushed him, “he got really mad” and hit her in the stomach. S.M.’s mother came into the room and saw defendant sitting on S.M.’s bed and S.M. crying. Her mother asked what was wrong, and defendant said that S.M. had a bad dream. After defendant left the room, S.M. said that she had a bad dream.
In addition to the five specific incidents, S.M. testified about a course of conduct by defendant over a period of more than three years. She said she could not recall each specific time defendant touched her, and that they “just all blend together.” The touching happened just about every time she went to the grandmother’s house, which she did “[o]nce or twice before the weekend and just about every weekend.” At another point she testified that it occurred at least once each week for a period of three years. When asked about the times defendant inserted his finger in her vagina, she said it “didn’t happen very often.” When asked about his touching her vagina, she said it “was about once-once or twice a week.” She agreed with the prosecutor’s statement that it happened at least 48 times each year and, therefore, a minimum of 144 times during the three-year period.
In attempting to pin down the time when the incidents stopped, S.M. said the incidents “slowed down” during the “the summer before [she] turned eleven”; i.e., the summer of 1998. By that time, he was touching her only once each weekend or once every other weekend. After the summer of 1998, “there were periods where [she] would go weeks or months without being touched.” S.M. testified at one point that after she turned 11 years old in October 1998 “he did it a couple more times”; at another point in her testimony she said he touched her “once or twice.” It stopped entirely sometime in January or February 1999, “towards the beginning” of 1999.
Regarding defendant’s use of force, the following colloquy took place between S.M. and the prosecuting attorney:
“Q. When he was actually touching you, during those times-and I know you said they muddle together-if you can recall, did you try to push him away from you? Was he using force or pressure in any way on those times?
“A. Most of the times, I was either in the corner or on the bed and he would get on top of me. I would try to push him away, but I couldn’t.
“Q. Why couldn’t you?
“A. Because I was so little and he was so much bigger. And he would put my hands behind my back or just pin me down. [¶]... [¶]
“Q. So over the course of those three years, he would kiss you, he would touch your breasts, he would touch your vagina and your butt, and he tried to put [his penis] inside, but it didn’t go in except for once?
“A. Just once.
“Q. On each of those times, you tried to fight him?
“A. Yes.
“Q. Did he restrain you on each of those times?
“A. Just like putting my hands above my head and holding me down, or putting my hands beside me.”
On each occasion, defendant told her not to say anything to anyone, that it was their “‘little secret.’” He also told her that if she told anyone, it would tear the family apart.
S.M. said she eventually decided to tell someone what defendant had done to her after she learned what he had done to D.M.
In an RCAT interview, S.M. described conduct generally consistent with her trial testimony. The interviewer asked if these incidents happened “more than 10 [times] or less than 10.” S.M. answered, “Like a lot more than 10. Like every time he visited. He was there like twice a day, ” “[o]r if I visited he would [try] to get me in his room.” S.M. told the interviewer that the last incident occurred towards the end of her sixth grade year, before she turned 11 years old. She explained that she kept this to herself for three years, and decided to tell her mother when defendant “did the same thing to [her] sister.” A videotape of S.M.’s interview was shown to the jury.
C. Law Enforcement Interview With Defendant
A Riverside County Sheriff’s Department investigator interviewed defendant in January 2005. Defendant told the investigator that he touched D.M.’s vagina “skin to skin, ” but that he probably mistook D.M. for his girlfriend. He admitted touching or putting his finger inside S.M.’s vagina three times, rubbing his penis on S.M.’s buttocks on another occasion, touching her breasts, kissing her stomach, and twice holding her down while he laid on top of her. He could remember touching S.M. five times.
II. ANALYSIS
A. Instruction That Consent Is Not a Defense to a Violation of Section 288, Subdivision (b)
Defendant contends the court erred in instructing the jury that the consent of the victim is not a defense. The question of whether a victim’s consent can be a defense to a violation of section 288, subdivision (b) is currently before the California Supreme Court in People v. Soto, review granted December 10, 2008, S167531. We hold that regardless of how the Supreme Court decides this general question, there was no reversible error in this case because, even if consent can be a defense, there was insufficient evidence in this case to support such a defense.
The court instructed the jury in accordance with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1111 as follows:
“The defendant is charged with committing a lewd or lascivious act on a child under the age of 14 years by force, fear, duress or menace, in violation of Penal Code section 288, subdivision (b)(1). To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;
“2. In committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child;
“3. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child;
“AND
“4. The child was under the age of 14 years at the time of the act. [¶]... [¶]
“The force used must be substantially different from or substantially greater than the force needed to accomplish the act itself. [¶]... [¶]
“It is not a defense that the child may have consented to the act.” (Italics added.)
Defendant contends the court erred by including this last sentence because it erroneously informs the jury that consent is not a defense to a charge under section 288, subdivision (b). The error, he argues, deprived him of his constitutional right to present a defense of consent.
It does not appear from our record that there was any objection to the challenged instruction or that the instruction was discussed among the court and counsel.
Defendant acknowledges that a child’s consent is not a valid defense to a charge of a lewd and lascivious act upon the child under subdivision (a) of section 288. (See People v. Cicero (1984) 157 Cal.App.3d 465, 482 (Cicero).) He argues, however, that subdivision (b) of section 288 adds the element of force, violence, duress, menace or fear (see fn. 1, ante), and he must be permitted to prove the child’s consent to show that he acted without such force. Defendant’s position is supported by the Third District’s decision in Cicero. In that case, the majority held that “knowing consent by a minor who is, in fact, capable of such consent is an affirmative defense to an alleged violation of [section 288, ] subdivision (b) ‘by use of force.’” (Cicero, supra, at p. 484.) One justice dissented, stating that consent “is not an affirmative defense to subdivision (a), and cannot be one to subdivision (b).” (Id. at p. 488 (dis. opn. of Regan, Acting P.J.).)
In People v. Quinones (1988) 202 Cal.App.3d 1154, the Sixth District Court of Appeal disagreed with the Cicero majority and expressly adopted the reasoning of the Cicero dissent: “‘In [our view] the statute creates a protected class under the age of 14, and the act, if done with force, is a violation of subdivision (b) regardless of “knowing consent, ” “against the will, ” or whether the victim resisted.’ [Citation.]” (People v. Quinones, supra, at p. 1158, quoting Cicero, supra, 157 Cal.App.4th at pp. 487-488 (dis. opn. of Regan, Acting P.J.); see also People v. Bolander (1994) 23 Cal.App.4th 155, 162-163 (conc. opn. of Mihara, J.) [expressly disagreeing with Cicero majority, “the victim’s consent is not an affirmative defense” to a charge under section 288, subdivision (b)].) Recently, in People v. Tepetitla-Cruz (2010) 183 Cal.App.4th 1451 [Fourth Dist., Div. Two], petition for review pending, petition filed May 25, 2010, S182843, this court discussed the conflicting authorities and concluded that “the analysis in Cicero is fatally flawed.” (Id. at p. 1455.) This court held that the trial court’s instruction that consent is not a defense to a charge under section 288, subdivision (b), was not improper, and “even if it was, defendant could have suffered no prejudice as there was no evidence that the... victim consented to the act charged as a forcible lewd and lascivious act.” (People v. Tepetitla-Cruz, supra, at p. 1458.) As noted above, the California Supreme Court is currently considering this issue.
We need not decide the broad question of whether consent can be an affirmative defense to a charge under section 288, subdivision (b). Even if such a defense exists in some cases, the right to present a defense in a particular case is implicated only when there exists substantial evidence to support the defense; that is, evidence sufficient for a reasonable jury to find in favor of the defendant. (Mathews v. United States (1988) 485 U.S. 58, 63; People v. Salas (2006) 37 Cal.4th 967, 982.) Here, no such evidence exists.
S.M. was eight years old when defendant first “cornered” her and touched her vagina. She told him to stop and tried to get away, but could not because of his size. He grabbed her and told her not to tell anyone. In each of the specific instances she described, S.M. testified to defendant’s use of force or violence against her, her resistance to his actions, and how he instilled in her fear of telling others about what he did. Relative to the numerous times about which she did not testify in detail, she testified that each time she tried to fight him, but was restrained by defendant. Defendant would also tell her not to tell anyone because it would tear the family apart. There was no contrary evidence. Although defendant denied that the incidents were as numerous as S.M. indicated, he did not say that S.M. consented to the touchings that he did admit to. Indeed, he admitted that he twice held S.M. down and that “one time... she was trying to get away.”
Defendant points to evidence that S.M. never told her mother about the incidents while they were occurring and, on the occasion when her mother entered the room when defendant was on S.M.’s bed and S.M. was crying, how S.M. told her mother only that she had a bad dream. Such silence and denial, however, are consistent with the evidence that defendant had instilled in S.M. a sense of fear of telling others. Defendant also points to S.M.’s testimony that she would voluntarily go into defendant’s room even when she knew he would touch her inappropriately. However, consenting to enter defendant’s room is not substantial evidence of consent to defendant’s lewd or lascivious acts when S.M. told him to stop and was prevented from leaving by defendant’s use of force, violence, or duress. Because there was insufficient evidence to support the defense of consent (if such a defense exists), the court did not err by instructing the jury that consent is not a defense.
B. Sufficiency of the Evidence to Support Convictions on Counts 30 and 31
Defendant contends the evidence is insufficient to support counts 30 and 31. We agree.
In determining whether there is sufficient evidence to support a conviction, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
As noted above, each of counts 1 through 44 is differentiated only by the month in which the alleged lewd and lascivious act occurred. The alleged acts supporting counts 29 through 32 took place on or about October 1998, November 1998, December 1998, and January 1999, respectively. (Counts 33 through 44, which alleged acts that took place after January 1999, were dismissed pursuant to the People’s motion during trial.) The jury was specifically instructed as to which month was alleged in each count. The only evidence of any unlawful acts after September 1998 is S.M.’s testimony that after she turned 11 years old, defendant touched her “a couple more times, ” or “once or twice, ” and the incidents stopped completely in 1999, “towards the beginning” of 1999. S.M. turned 11 on October 8, 1998. Of the two possible postbirthday incidents, one must be allotted to (and supports the conviction on) count 32 pertaining to January 1999-the only count alleging an incident in 1999. That leaves evidence of, at most, one incident occurring between S.M’.s eleventh birthday on October 8, 1998, and the end of 1998. One incident can support one of the three counts alleging incidents in October, November, and December 1998, but not more than one. (See People v. Jones (1990) 51 Cal.3d 294, 316 [“the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information”].) Therefore, the convictions on counts 30 and 31 must be reversed.
C. Sufficiency of the Evidence of Force and Duress
Defendant contends there was insufficient evidence of force or duress to support most of the counts involving S.M. and the count involving D.M. We disagree.
In order to support a conviction under section 288, subdivision (b), the People must prove that defendant committed the lewd or lascivious act “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person[.]” When the charge is based upon the use of force, the force used must be substantially different from or substantially greater than that necessary to accomplish the lewd act itself. (People v. Neel (1993) 19 Cal.App.4th 1784, 1790; Cicero, supra, 157 Cal.App.3d at pp. 474-475, 477-484.)
Defendant does not contend there is insufficient evidence of the requisite force as to the five specific incidents described by S.M.; however, he argues there is no substantial evidence of force to support more than five counts. We disagree. Defendant simply ignores S.M.’s testimony, set out above, that each time she would fight him and try to push defendant away, and that defendant restrained S.M. by putting her “hands above [her] head” or “behind [her] back, ” and pinning or holding her down. Viewing such evidence in the light most favorable to the judgment, rational jurors could conclude that such efforts constitute the different or greater force necessary to satisfy the element of force for section 288, subdivision (b).
Even without the evidence of physical force, there is sufficient evidence of duress to support the convictions as to S.M. “For purposes of section 288, subdivision (b), ‘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.” [Citations.]’ [Citation.] ‘“The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” [Citation.]’ [Citations.] ‘Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ [Citations.]” (People v. Veale (2008) 160 Cal.App.4th 40, 46 [Fourth Dist., Div. Two].)
Defendant began committing lewd acts upon S.M. when she was eight years old. Defendant was S.M.’s godfather and she viewed him as her uncle. According to S.M., she “was so little and he was so much bigger.” Defendant explained that as her godfather, he “had to do it to [her].” Defendant repeatedly told her not to tell anyone, that it was their “little secret, ” and that if she did tell anyone it would tear the family apart. On at least two occasions, defendant hit her in the stomach. She testified she was afraid that if she did not do what defendant said, defendant would hit her “or try to have sex with [her] again.” Testifying at age 21, S.M. said she believed defendant had “brainwashed” her. Such evidence is sufficient to support the jury’s conclusion that defendant used duress to commit his unlawful acts.
There is also substantial evidence to support the conviction on count 41-the single count in which D.M. is the victim. Like S.M., D.M. thought of defendant as her uncle. She was 10 years old when defendant got on top of her while she was laying in bed and started “humping.” D.M. was scared and wanted to leave, but could not because defendant was on top of her. Defendant unzipped his pants and D.M. felt something hard on her buttocks and “a poke.” When she made a “cry sound, ” or “whimpering noises, ” like she was “in pain, ” defendant stayed on top of her and told her to be quiet. Such evidence, viewed in a light favorable to the judgment, is sufficient to establish force or duress for purposes of section 288, subdivision (b). There is thus sufficient evidence to support the finding that defendant committed an offense against more than one victim.
III. DISPOSITION
The judgment is affirmed as to the convictions on counts 1 through 29, inclusive, and counts 32 and 41; the judgment is reversed as to counts 30 and 31.
We concur: Ramirez P.J., Richli J.
Section 288, subdivision (a), provides: “Any person who willfully and lewdly commits any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Subdivision (b)(1) of section 288 provides: “Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”