Opinion
D074564
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH JAMES SCHROEDER, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD271191) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury in March 2018 found defendant Kenneth James Schroeder guilty of two counts of aggravated sexual assault of a child under 14 years of age (former Pen. Code, § 269, subd. (a)(5), counts 1 & 2)) and eight counts of committing a lewd action upon a child (former § 288, subd. (a), counts 3-10). The jury further found true in counts 3 and 4—but not in counts 5 and 6—that defendant had substantial sexual contact with the victim. (Former § 1203.066, subd. (a)(8).) The court in mid-August 2018 sentenced defendant to eight years plus 30 years to life in prison.
Penal Code section 269 was amended effective January 1, 2019 to reflect among other changes the renumbering of section 288a to section 287. (See Stats. 2018, ch. 423 (Sen. Bill No. 1494), § 47, eff. Jan. 1, 2019.) This amendment has no substantive bearing on the issues in this case.
All further statutory references are to the Penal Code unless noted otherwise.
Section 288 was amended effective January 1, 2019. (See Stats. 2018, ch. 70 (Assem. Bill No. 1934), § 2, eff. Jan. 1, 2019.) This amendment has no substantive bearing on the issues in this case.
Nonsubstantive amendments to section 1203.066 became effective January 1, 2019. (See Stats. 2018, ch. 423 (Sen. Bill No. 1494), § 93, eff. Jan. 1, 2019.)
On appeal, defendant contends his conviction on counts 1 and 2 must be reversed because there is insufficient record evidence to prove these offenses were accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Defendant also contends that the court prejudicially erred when it denied his motion to disclose jury contact information, and when it imposed various fines, fees, and assessments without first conducting an ability to pay hearing as provided under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). As we explain, we reject each of these contentions and affirm the judgment.
Defendant in his opening brief also contended that the court erred in failing sua sponte to instruct the jury that nonforcible sexual penetration of a minor under the age of 18 (§ 289, subd. (h)) was a lesser included offense of counts 1 and 2. In reply to the respondent's brief, defendant conceded this issue. As such, we do not address it in this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Defendant was born in 1984. Victim Sidara T. was born in 2004.
Sidara testified that she was first introduced to defendant when she was about four years old, as he began dating her mother, Christiana S., who married defendant about four years later. Initially Sidara's relationship with her stepfather, whom she referred to as "Kenny," was a "normal . . . father-daughter relationship," as she felt "comfortable" around him. When asked at trial if she had loved defendant, Sidara responded, "As a father." Sidara had two younger brothers, one aged four named Theodore S., who was the child of Christiana and defendant, and the other aged 12 named Braden T., who was the child of Christiana and Sidara's biological father Jeff T. Sidara and her brothers lived with their mother and defendant in a four-bedroom house on Taussig Street in San Diego. Sidara then had no contact with Jeff.
In about June 2015, Christiana's sister (i.e., Sidara's aunt) Tiffanie L. and her own family moved into the Taussig home. Sidara then began sharing a room with her cousin Kailie L., who was about the same age as Sidara. Prior to Tiffanie and her family moving into the Taussig home, Sidara and her two brothers each had their own bedrooms.
Sidara testified her body began changing with the onset of puberty shortly before she turned 10 years old. About a year later, Sidara began to feel uncomfortable around defendant, as he would come into her bedroom at night and "do sexualized things." When asked to explain, Sidara testified: "[H]e would come into my room at night and touch my breasts."
Sidara testified the first incident of inappropriate touching by defendant occurred in her bedroom late at night, when her brothers and mother were asleep. Before this incident, Sidara testified that defendant would routinely come into her bedroom late at night, after work, and "rub[ her] back"; that he had engaged in such behavior for "years" and thus, she considered it "normal"; and that she had always known it was defendant who was rubbing her back at night because his hands were "very rough from his work." In the first touching incident, however, defendant, while lying on her bed behind Sidara, "slid his hands underneath [her] shirt and began groping [her] breasts." This incident occurred when Sidara's bed was up against the wall, and when she faced the wall while sleeping.
According to Sidara, the first time defendant "grop[ed]" her breasts she felt "fear," and "kept trying to tell [herself] it was a dream, [she] would wake up, nothing would happen. Just a dream." During this first incident, neither Sidara nor defendant said anything. Although scared, Sidara testified she did not "resist" defendant because she "couldn't move" physically as she felt "paralyzed." At some point, defendant stopped touching Sidara's breasts and left her bedroom.
The next day, Sidara decided not to disclose the incident to her mother, because if defendant's touching her breasts "wasn't a dream, [Sidara] could ruin [the] family [her mother had] worked so hard to get." Sidara explained, "It was her [mother's] second husband. She just—wasn't too long—it was only a few years after she had a third kid, and I loved my brothers. I didn't want to break their world." Sidara further explained that, if she then had disclosed what defendant had done, her mother "hopefully, [would] leave him but hurt [her] brothers in a way that [she] didn't know if it could be fixed." As such, Sidara then decided not to disclose defendant's touching of her breasts.
Sidara estimated that defendant touched her breasts under the same circumstances more than three times before her aunt Tiffanie moved into the Taussig home. The touching always occurred late at night, when other family members were sleeping. Defendant would come into Sidara's bedroom, start rubbing her back, and then fondle her breasts while she pretended to be asleep. Sidara felt "petrified" each time defendant touched her breasts, but still said nothing because she was "scared" and concerned he might "hit" her.
Sidara testified defendant's sexual touching of her escalated when he went beyond "groping" her breasts to "suck[ing] on [her] nipple." About a month or two after defendant engaged in this act, Sidara finally disclosed to her mother. Sidara estimated defendant at that point had done at least five "sexually inappropriate things" to her breasts. Sidara decided to disclose because she "couldn't stand it" anymore.
Sidara told her mother when they were alone in the master bathroom. Although "terrified," "shaking," and "crying," Sidara disclosed that defendant had been "touching [her], and [she] didn't feel safe" or "comfortable" around him; that she was "sorry" and did not want to "ruin" her mother's family; and that as she continued describing the touching, she "ended up at a loss for words because [she] didn't know how to tell her" mother that "this man [her mother] seemed to love and seemed to be happy with was hurting her."
Sidara testified her mother responded to her disclosure by accusing Sidara of lying, suggesting defendant probably believed he was touching his wife and not Sidara. According to Sidara, Christiana made up "excuses" for her husband. Despite Sidara's disclosure, defendant's sexual touching of her did not stop, nor did it stop after Tiffanie and her family moved into the Taussig home, where they remained for what Sidara estimated was about 10 months.
Sidara testified that each month her aunt and aunt's family would travel to Nevada where her aunt would receive medical treatment. Although Sidara did not accompany her aunt, uncle and cousins on any of these trips, Sidara further testified she always wanted to go with them in order to "get away" from home, where she felt unsafe.
As discussed post, Tiffanie and her family actually went to Arizona in order for Tiffanie to receive medical treatment.
Sidara told the jury that "every" time her aunt Tiffanie and family left the Taussig home, defendant would sexually touch her. Sidara noted the touching by defendant would always occur late at night in her bedroom, and would always start with him rubbing her back. Sidara estimated that defendant touched her breasts at least six or seven times both before and after her aunt and family moved into the Taussig home.
She also estimated defendant "sucked," or put his "mouth," on her breasts about seven times before Tiffanie and her family moved into the Taussig home. In those instances, defendant would rub her back, "like usual, and then . . . roll [her] onto [her] back and pull down [her] shirt and start sucking on [her] nipple." Sometimes defendant would "suck on both" nipples, sometimes just one. Sidara became scared defendant "would do something else" to her, and, because her mother had already accused her of lying, she decided it was best for her to "just lay on [her] bed and allow him to do this to [her]."
Sidara testified defendant also began touching her vagina. This touching began after Tiffanie had moved in with Sidara's family. Sidara stated defendant first used his hand to touch her vagina while she was in bed and while her aunt and her aunt's family were away. Sidara described this touching as follows: "He came in and laid down and rubbed my back, as usual, and then after a little while, he moved his—moved his hand on top of my shorts and began rubbing."
Sidara testified defendant's first touching of her vagina was over her pajama shorts. Because her mother had not believed Sidara when she initially had disclosed defendant's touching of her breasts, Sidara chose not to tell her mother about defendant's touching of her vagina. Sidara estimated defendant touched her vagina over her clothes more than four times.
As time went on, defendant began touching Sidara's vagina under her pajama shorts but over her underwear. Sidara estimated defendant touched her in this manner more than three times, using his fingers to rub her "back and forth." Eventually, defendant began touching Sidara's vagina skin-to-skin. Sidara estimated defendant touched her vagina skin-to-skin "[w]ay more than at least five" times, over what she believed was about a 14-month period.
Sidara testified defendant's sexual misconduct continued to escalate. Defendant next began digitally penetrating Sidara's vagina. As before, this misconduct occurred when her aunt and aunt's family were away from the Taussig home. Sidara estimated defendant had been touching her inappropriately for at least eight months when he digitally penetrated her vagina.
Sidara testified the first time defendant digitally penetrated her it "hurt." However, as time went on and he continued to sexually abuse her in this manner, she "got used to it" and it no longer "hurt." Sidara reiterated she did not try to resist defendant because she was fearful he would hurt her. She estimated defendant digitally penetrated her vagina more than five or six times. Sidara recalled she was still 12 years old when defendant engaged in this particular sexual activity.
Sidara testified that, after her aunt and family had moved out of the Taussig home, defendant used his penis to touch her vagina over her clothes. As with the other inappropriate touchings, Sidara testified this incident occurred in her bedroom in the middle of the night while she was sleeping, and began with defendant rubbing her back. In the first such incident, defendant moved Sidara on her back, sat on top of her, and, over clothing, began rubbing his "hard" penis against her vagina. Sidara estimated defendant rubbed his penis against her vagina more than four times, each time doing so over her clothes.
Sidara also described acts of inappropriate touching by defendant that took place outside of her bedroom. She testified between the ages of about 10 to 12, when she was sick she "usually would just kind of be sitting [on the couch] watching TV or sipping on soup or something, and [defendant] would come and sit down and hold [her] on top of him facing him"; that he "would place[] [her] legs" such that they "would be around him, but, like, [her] knees would be on the couch"; that as such, her "legs were around his waist"; and that while in that position, she also could "feel" his "hard" penis against her vagina. Sidara stated on one occasion her aunt Tiffanie came into the living room, saw Sidara sitting on defendant in this manner, "stared for a second," and then pulled Sidara off defendant.
Sidara testified that she had tried to forget the various incidents of inappropriate touching by defendant; that with respect to each incident, it happened more than once; that such incidents were too numerous to remember the details of each; and that all such incidents occurred under the same or similar circumstances.
At some point, while Tiffanie and her family were still living in the Taussig home, Sidara disclosed defendant's sexual misconduct to her cousin Kailie, who in turn told her mother Tiffanie. Sidara testified she then did not give Kailie much detail about defendant's sexual misconduct, but rather spoke to her cousin more generally about it; and that Kailie in response "grabbed [her] by the neck and dragged [her] into [Tiffanie's] room." Sidara then relayed to her aunt what she had told her cousin. Sidara knew Tiffanie at some point confronted her sister Christiana about Sidara's accusations, as she could hear the two women yelling, but could not specifically make out what they were saying.
After Sidara's general disclosure to her cousin and aunt, Tiffanie encouraged her sister Christiana to allow Sidara to accompany Tiffanie and her family on their monthly trips. Sidara testified her parents, and in particular defendant, however, refused to let her go, making up "excuses" to prevent her from leaving the family home. Because defendant continued his "middle-of-the-night visits" to Sidara's bedroom, she next disclosed his sexual misconduct to her maternal grandmother, Sandra.
Sandra lived in Arizona. Sidara testified in August 2016 she and her brother Theodore visited their grandmother for about a week. Up until that visit, Sidara had been "bugging" her grandmother to let her come to Arizona. Once in Arizona, Sidara begged her grandmother to allow her to stay, at one point telling Sandra she wanted to be "emancipat[ed]" from her parents.
According to Sidara, Sandra responded she "would only take [Sidara] out of the house if something had been happening" to her granddaughter, such as "being abused." It was then Sidara disclosed defendant's sexual misconduct. While doing so, Sidara also disclosed she was having suicidal thoughts, and she had self-harmed shortly before school had let out for summer, when she used a razor blade and "scratched up [her] arm pretty bad." Sidara testified she thought of suicide and engaged in self-harm because she was scared and depressed as a result of defendant's ongoing sexual misconduct. Sidara further testified she pleaded to remain living with Sandra because Sidara felt unsafe living with defendant and her mother.
During the disclosure, Sandra asked her granddaughter a series of "yes" or "no" questions. Sidara testified she was reluctant to give her grandmother too many details regarding defendant's sexual misconduct because she was afraid Sandra, like Christiana, might not believe her. Sandra in response called her daughter Christiana about Sidara's disclosure. Sandra also told her granddaughter that she too had been "molested" as a child.
Shortly after returning to San Diego, Sidara was visited at her home by a child abuse investigator from Child Welfare Services (CWS). During that interview, both defendant and Christiana were in the family home. After the investigator left, Sidara testified defendant "tried guilt-tripping" her and was "rude." Defendant told Sidara such things as, "Oh. Your family is never going to forgive you for this. You're going to lose your dog because no one will take care of her. Your brothers will be taken away from you. You'll never see them again."
Sidara testified her mother was present when defendant made these comments, but at no time did her mother "intervene" or otherwise seek to protect her daughter. Sidara recognized her mother still did not believe her, making Sidara feel "[e]ven worse" and become even more depressed. As a result, Sidara "tried to kill [herself] again," ending up in the hospital for "about a week." Specifically, Sidara went into the bathroom and used a pair of "safety scissors" to try and "slit [her] wrists." Before defendant's sexual misconduct began, Sidara stated she had been a "happy kid" and had never suffered from depression or considered self-harming.
During her hospitalization, Sidara participated in a forensic interview with Sheri Rouse. Sidara told Rouse she had a "bad habit of lying." Sidara explained to the jury she made this comment because sometimes she would not tell the truth when asked if she had finished her homework, or had eaten a piece of candy, as she wanted to avoid being punished, including having her "stuff" taken away as a result, as she was, after all, "a teenager." Sidara, however, testified she did not lie to her mother, cousin Kailie, aunt Tiffanie, grandmother Sandra, and Rouse about defendant's sexual misconduct.
Sidara also disclosed during the forensic interview that after defendant began sexually molesting her, Sidara with other teenagers began "sexually role-playing" on a particular Internet cite; that it was never in-person and they were just "dumb kids"; that in such instances, she and others would take on a "persona and then act out scenarios"; and that she engaged in such behavior until she was caught by her mother in about June 2016, toward the end of the school year. Although caught by her mother, it was defendant who punished Sidara. Defendant took away all of Sidara's "electronics" for the rest of June, all of July, and into August, until Sidara and her brother went to their grandmother's Arizona home.
After leaving the hospital, Sidara testified she next went to live with her aunt Tiffanie in Agoura Hills, a city in Los Angeles. According to Sidara, Tiffanie "felt bad" for not doing more to protect her from defendant's sexual misconduct. Sidara stated she disclosed more details of his misconduct while living with her aunt. When asked why she did not give her aunt all the details, Sidara testified she was still "iffy" on whether her aunt actually believed her, in light of her mother's disbelief.
Sidara ended up living with her aunt for about four months. Sidara left her aunt's home and returned to the hospital after having a "breakdown," and "once again" trying to "kill [herself]." Shortly before this incident, Sidara testified that she had started on a new medication that made her feel a "little weird," and that she had had a conversation with her mother that had upset her.
Once out of the hospital, Sidara in early 2017 went to live at the Polinsky Children's Center, then moved in with her biological father Jeff in Oxnard, California. Sidara thereafter had very little contact with her mother, who, along with her brothers, remained living in San Diego with defendant. As a result of her disclosure, Sidara testified she "lost [her] mom and [her] brothers."
Kailie testified she was 13 years old at the time of defendant's trial. When she was about 11, her entire family moved to San Diego and began living with Sidara and Sidara's family. Kailie and Sidara then shared a bed in Sidara's bedroom. At night, typically Kailie's mother or father would tuck her into bed, and defendant—but not Christiana—would tuck in Sidara. According to Kailie, the two girls sometimes would get tucked-in at different times.
Kailie recalled that when tucking-in Sidara, defendant's "routine" was to touch Sidara's "butt" while wrapping her up in blankets, testifying it was "not something that an adult should be touching," and recalling she then found his behavior in so doing "odd." Kailie at one point told her mother about defendant's touching of Sidara's "butt," and demonstrated how defendant was touching her cousin. Kailie recalled her mother was "very worried" by defendant's behavior, leading Tiffanie to have a "talk" with Sidara.
Kailie also testified it was "odd" how Sidara would sometimes sit on her stepfather's lap. Specifically, Kailie recalled seeing Sidara about three times sitting on defendant's lap, while facing him, with Sidara's "legs by his torso." Kailie explained this behavior seemed "odd" to her because it was "kind of weird to see somebody straddling their father."
Kailie also confirmed that, because of her mother's medical condition, their family would take monthly trips while living at the Taussig home. Kailie recalled that Sidara always wanted to go on these trips, and that Sidara at one point had packed a bag and hid in the family's car until she was discovered and forced to remain home. After Sidara came to live in Agoura Hills with Kailie and her family, Kailie never asked Sidara about defendant or his sexual misconduct of her cousin because Sidara was "very sensitive about that subject," which Kailie "respected."
Tiffanie testified she and her family moved into the Taussig house around the end of June 2015, where they remained until about February 2016. During this timeframe, Tiffanie and her family each month traveled to Arizona for Tiffanie to receive medical treatment. Sidara "every" time asked to accompany them, on one occasion even packing her bags and hiding in the backseat of the family's SUV, much like a "stow away." Tiffanie then believed it was best for Sidara to remain home, as Sidara was still in school and the family trips to Arizona were not a vacation. However, even on those occasions when Tiffanie believed it was appropriate for Sidara to accompany them, defendant refused to allow Sidara to go.
Kailie and Sidara shared the same bed while Tiffanie and her family lived at the Taussig home, which the girls had then moved into the middle of Sidara's room. Tiffanie testified she and defendant, but not her sister Christiana, often tucked the girls into bed, with Tiffanie going to Kailie's side of the bed and defendant to Sidara's. At some point, Tiffanie began to notice defendant's routine in tucking-in Sidara, and felt it was "odd" because Sidara was hitting puberty and at that point, Tiffanie believed no parent should be touching his or her child the way defendant was touching Sidara, as "he would touch every single part of [Sidara's] entire body."
Tiffanie testified on "several occasions" she told defendant to stop touching Sidara in such a manner when tucking her into bed, as Tiffanie found it inappropriate. Defendant, however, responded that was how he "always" had tucked Sidara into bed, and that Sidara wanted to be tucked into bed in this manner.
Tiffanie testified she often had a "hard time" sleeping, including while living in the Taussig home. When defendant came home late at night after working a night shift, Tiffanie could hear him pass her bedroom, as it was the first one upstairs. Tiffanie, who was typically awake, would open her bedroom door "a little bit" and, with the children's bedroom doors in her line-of-vision, watch defendant stop in front of the girls' door, which was typically open, and "stare" inside. Tiffanie estimated defendant would often stand in front of the girls' open door for about five or 10 minutes, unless she got up and said something to him.
Tiffanie continued watching defendant and his late-night routine. She found defendant's behavior concerning, at one point telling him, "Stop creeping around the kids' room." Tiffanie testified that she did not believe defendant was stopping and staring into the girls' room late at night to make sure they were "okay"; and that when she confronted defendant about his behavior, he claimed he "had a lot of sleeping issues," including "sleepwalking" and "sleep terrors, things like that." Tiffanie, however, believed defendant's responses were merely "excuses," as he often had just come home from work when he would stop in front of the girls' door and stare into their bedroom. Tiffanie never saw defendant engage in such behavior in front of the boys' bedroom door, which Tiffanie could also see down the hall from her bedroom.
Tiffanie also described an occasion when she and her husband found Sidara sitting on defendant's lap. Tiffanie testified as follows regarding this incident: "[T]hey were sitting in the living—their living room and—where the couch and everything was, and he was sitting on the couch . . . facing the open area, and she was straddling him, sitting on him, facing him, laying on him, straddling with her legs over him." Tiffanie further testified that during this incident, Sidara's legs were "wrapped around [defendant's] body"; that their "chests" were close; and that on seeing them, Tiffanie said, "Get up. What the hell are you doing? What is going on? What are you doing? Get the fuck up."
Tiffanie explained to the jury she reacted this way because it "clearly—looked not right whatsoever," as Sidara was "an 11-, 12-year-old girl straddling a grown man, and it looked—it made [Tiffanie] uncomfortable, very uncomfortable, and it did not look right." When asked to explain defendant's reaction after she "went off a little" on him, Tiffanie stated, "First, it was just—he looked at me with big eyes, both of them, and then they got up, and then [defendant] and I got in, sort of, like, an argument about how I didn't—I thought it was wrong, and my—the way I reacted to the whole situation—because I thought it was completely wrong. He did not agree, and we got into an argument about that." During their confrontation defendant told Tiffanie he had been merely comforting Sidara because she did not feel well.
Tiffanie testified as she and her husband confronted defendant regarding this incident, her sister Christiana came into the room and took defendant's "side," stating there was nothing wrong with how Sidara had been sitting on his lap. Tiffanie also spoke to Christiana about defendant's "odd" behavior, including his "middle-of-the-night visits" in front of the girls' bedroom. Christiana responded that her husband was merely "checking on the girls or sleepwalking," which were the same excuses defendant had given Tiffanie. Despite confronting defendant and her sister about defendant's "odd" behavior, Tiffanie observed such behavior by defendant did not stop, but actually "escalated."
At some point while living in the Taussig home, Tiffanie learned that Sidara wanted to speak to her "aunty" about "feel[ing] uncomfortable with [defendant]." Tiffanie recalled the conversation took place late at night, sometime in the fall of 2015, with Kailie also present. Sidara disclosed "how uncomfortable . . . she felt" when defendant tucked her into bed, stating she was "afraid to go lay down" as a result. During this same conversation, Sidara also disclosed that she did not like the way defendant was "touching" her, as he sometimes would "brush up against her breast," and that she wanted defendant to stop lying in her bed at night.
Because Sidara was quiet and "very hesitant" to give Tiffanie detailed information, Kailie helped explain the situation to her mother, as Sidara and Kailie had previously spoken about Sidara's concerns regarding defendant. According to Tiffanie, Sidara had complained to Kailie about defendant rubbing up against Sidara's "private areas," how it made Sidara uncomfortable, and how he would "touch" Sidara when Tiffanie and her family were away from the Taussig home.
Concerned by the girls' disclosure, Tiffanie immediately confronted her sister Christiana, who responded that "she was already aware of the situation," that "she was taking care of it[,] and that Kenny [was] just trying to learn how to deal with a growing teenage girl." Because defendant was at work, Tiffanie told her sister that the four adults should have a "family meeting" when he returned home, as Tiffanie wanted to make sure they were all "on the same page" as a result of Sidara's disclosure.
The following day, defendant, Christiana, Tiffanie, and her husband participated in the "family meeting" outside the presence of the children. Tiffanie testified that during this meeting, she tried to help defendant by telling him "what not to do" when dealing with a teenager, including standing in front of the girls' doorway and staring into their room late at night, lying next to Sidara while she was in bed, and "touching" her while tucking her into bed. Tiffanie confided that Sidara had disclosed to her and Kailie that defendant's touching was making Sidara uncomfortable.
During the meeting, defendant and Christiana defended defendant's behavior, both stating defendant went into Sidara's bedroom and slept next to her while Tiffanie and her family were in Arizona because he had a "sleeping problem" and, once asleep, he thought that Sidara was Christiana and touched his stepdaughter as if she was his wife. Tiffanie testified that her sister "seemed okay" with this, "[l]ike it was a normal thing with his sleep problems."
When asked why she then did not report defendant's touching of Sidara to the "authorities," Tiffanie testified that she had confronted her sister and defendant with the information provided by Sidara and her own daughter Kailie; that she believed her sister was "handling it"; and that she also believed defendant's inappropriate "touching" of Sidara was limited to his tucking Sidara into bed at night, and did not involve his touching of her "in any other kind of way."
In August 2016, Tiffanie learned from her mother Sandra that defendant's inappropriate touching of Sidara went beyond his tucking her into bed. After Sidara's disclosure, Sandra drove Sidara to Tiffanie's home in Agoura Hills, where Christiana met them. Tiffanie recalled the children went to the park while the three women talked about "what was going on" in the Taussig home.
Tiffanie told the jury, "We were all very—crying. My sister was sad, upset, trying to figure out how we can help—help Sidara. [¶] We, pretty much, gave [Christiana], kind of, an ultimatum, maybe, as to say that she needs to get Sidara some help, and we need to, you know, help get her help with what her accusations are and get that addressed and get [defendant] out of the home because she didn't feel safe with him there. [¶] And that was, like, an agreement we had made for her to take Sidara back and try to, you know, get her the help that she needed. And upon that agreement, if she didn't—[defendant] did not leave the home or she didn't get Sidara right away and did nothing like she has been doing, we were going to have to call the authorities. And at that point, nothing was happening. [Defendant] was still in the home."
Because Christiana told Tiffanie to do whatever she thought was "right," Tiffanie testified she immediately grabbed the telephone and, after calling the authorities, put their mother Sandra on the line. Sandra then reported Sidara's accusations of sexual misconduct by defendant.
While living in the family home on Taussig, Tiffanie noticed a change in Sidara, as did Tiffanie's daughter Kailie. According to Tiffanie, while once outgoing, "loud and energetic," Sidara had become "quiet, wanting to be by herself, not talking anymore, isolating herself." In September 2016, CWS removed Sidara from the Taussig home and placed her with Tiffanie in Agora Hills, where Sidara lived until about December 22, 2016, when she had to be hospitalized after trying to self-harm.
Tiffanie explained that near Christmas 2016, Sidara became particularly upset because Christiana repeatedly had promised to visit, but then would break that promise and "not follow[] through." According to Tiffanie, when Christiana and her other children, Sidara's brothers, would be "in town," instead of visiting Sidara they would go and visit defendant and his family, depriving Sidara of a sibling visit. When Christiana informed her daughter there would be no visit until after Christmas, Sidara became even more upset, ultimately requiring Tiffanie to call police to protect Sidara from herself.
Tiffanie also testified that once Sidara came to live with them in Agora Hills, CWS required Tiffanie to monitor phone and "Skype" conversations between Sidara and Christiana. In the beginning, those calls and communications had been frequent, but, according to Tiffanie, as time went on they "tapered off."
Because Tiffanie was monitoring these calls, she testified she would "catch" her sister saying inappropriate "things" to Sidara, including pleading with Sidara to give defendant "another chance." Tiffanie further testified Christiana began making such statements "immediately" after Sidara had moved in with Tiffanie. Tiffanie also did not like the fact that during some of the calls, defendant would be "in the background" while Sidara spoke with her mother.
Tiffanie also heard Christiana "guilt trip" Sidara during some of these calls, telling Sidara she was "ruining the family"; "blam[ing]" Sidara and not defendant for what was happening to their family; suggesting there was something "wrong" with Sidara, who needed "hospitalization[]" to address her issues; and outright accusing Sidara of lying about defendant's sexual misconduct. As a result of these and other statements by Christiana, Tiffanie decided it was in Sidara's best interest to stop all communication with Christiana, as Tiffanie saw the emotional toll these calls and statements by Christiana were having on Sidara.
Although Sidara, while living in Agoura Hills, typically did not go into detail with Tiffanie regarding defendant's acts of sexual misconduct, Tiffanie recalled an incident when this subject matter came up. Tiffanie testified she and Sidara were in the kitchen one morning while Sidara was getting ready for school. Because Sidara was having her menstrual cycle, Tiffanie was explaining to Sidara what to do at school if a certain "female thing[]" arose during the school day. As Tiffanie was instructing Sidara regarding the use of a "tampon," making sure Sidara did not put "two in" at the same time, Sidara responded, "Oh. Like Kenny did."
Sidara's statement caught Tiffanie off-guard, as Tiffanie did not understand what Sidara was referring to. On questioning, although Sidara did not elaborate too much because she tended to get "very embarrassed," Sidara told her aunt, "Like his fingers and like—something about his fingers like a tampon, so she already [knew] how to use a tampon." Tiffanie noted Sidara had made this statement on her own, as they were not talking about defendant "whatsoever" once Sidara moved in with the family.
Tiffanie testified that defendant would drive Christiana and the boys to every in-person visit Sidara had with her family while living in Agoura Hills. Defendant would not participate in the visits but instead wait in the car. Defendant's presence at her home made Tiffanie "nervous," leading her at one point to contact law enforcement to ensure defendant was not in violation of the terms of a restraining order. Tiffanie recognized Sidara's in-person visits with her mother and brothers were a strain on Sidara.
Sandra testified her granddaughter Sidara and grandson Theodore came for a visit in August 2016. About two days into the two-week visit, Christiana called and claimed Sidara a day earlier had been up "all night" using the Internet as Sandra slept. Sandra found Christiana's statement hard to believe, testifying it was difficult to get Internet service at her Arizona home.
Sandra nonetheless informed Sidara of her mother's concern, and asked Sidara why she was not supposed to be on the Internet. Sidara said it was because she had done "something wrong," but never said what. Sidara went on to say defendant was "really strict"; he had been wrong to take away her computer when she was at home; she was mad at him as a result, adding, "Well, because if I told what he did, I could get him in a lot of trouble"; and that she could be "emancipated if [she] told what he did."
Sandra questioned Sidara further. Sidara then disclosed that defendant "would come into her bed and lay with her and touch her while he was—while she was sleeping, and he would pretend like he was asleep and still touch her." Sandra asked Sidara where defendant was touching her. Although Sidara appeared "very embarrassed" and was "shaking," Sandra testified her granddaughter pointed to her "breast and her crotch area." Sidara further disclosed that defendant "several" times had touched her in these private areas.
Sandra testified she next asked Sidara if defendant's touching was under or above her clothing. Sidara responded it was "under her clothing." Sandra continued to ask Sidara questions, noting she had to "pry" information out of her granddaughter. In response to whether she had told Christiana about what defendant had been doing, Sidara said yes and then added that her mother thought she was a "liar." Sidara also mentioned that she had told Tiffanie, Sandra's other daughter, about defendant's inappropriate touching.
Sidara told her grandmother she initially had been afraid to disclose defendant's sexual misconduct because Christiana "would be alone and that [her mother] would have to go back to work, and [her mother] would lose [defendant] if she—if she told, and her mom would be sad." Sandra reassured her granddaughter that defendant would not touch her again. Sandra testified she next went "online and made anonymous phone calls trying to figure out what's the best thing to do," at one point calling her daughter Tiffanie to discuss the situation.
About a day after Sidara's disclosure, Sandra called her daughter Christiana. Sandra testified Christiana did not seem particularly "surprised" by Sidara's statements. In fact, Christiana's immediate reaction was to tell Sandra, "She [i.e., Sidara] is lying." Sandra testified Christiana made this statement without asking any questions or making any additional inquiry. Christiana then threatened to call the police and have Sidara and her brother removed from Sandra's home. Sandra responded that if Christiana followed through on that threat, she would call CWS; that it was Christiana's "choice"; and that Christiana needed to take care of this issue immediately.
Christiana became angry and hung up the phone on her mother. Christiana later called back and said, "I'm going to lose my husband. I'm going to lose my housing. I have to get—I'm going to have to go back to work. You finally got what you want now, huh, Mom?" Sandra surmised that Christiana was more concerned about "losing her husband and her life than her daughter" Sidara.
At some point during the children's visit in Arizona Christiana reported defendant had left the family home to stay with a friend. Sandra in response agreed to bring Sidara back to San Diego. However, before doing so, Sandra and Sidara stopped at Tiffanie's home in Agora Hills. Because Christiana was in a "big hurry to get Sidara," Christiana met them at Tiffanie's home. Christiana reiterated defendant had left the Taussig home, and promised she would handle the situation and "protect" Sidara. Christiana then abruptly left with Sidara to return to San Diego.
Although Sandra believed Christiana would "do the right thing," according to Sandra her daughter did not. The following day, Sidara called and reported defendant had returned to the Taussig home, telling Sidara he was not "mad" at her as a result of her disclosure. On hearing this news, Sandra testified she was "very upset" at Christiana, and, when Sandra got off the phone, she told Tiffanie, "We have to call C[W]S. We have to do the right thing. She [i.e., Christiana] is not taking care of this, and I warned Christiana. . . . So I have to follow through. I can't let that child go through any more abuse." Sandra and Tiffanie together called CWS and reported defendant.
Lead forensic interviewer Rouse of Chadwick Center at Rady's Children's Hospital testified she interviewed Sidara on September 1, 2016, during Sidara's hospitalization. A social worker from CWS and law enforcement watched the televised interview from a separate room. Christiana at some point came to the interview location, but was required to sit in the waiting room while it was being conducted. The September 1 hour-long interview of Sidara was played for the jury, and a transcript of this interview was included in the record.
The transcript, which we have independently reviewed, corroborates much of Sidara's trial testimony, summarized ante, including: Sidara was initially reluctant to come forward and disclose defendant's sexual misconduct because defendant made her mother and siblings happy; Sidara also was reluctant to disclose because she wanted to protect her brothers, particularly her younger brother, whom she noted during the forensic interview "misse[d]" his father; defendant "had been touching [Sidara] in places that he shouldn't be," as "[h]e'd been doing a lot of different like . . . it's really hard to talk about"; she was "scared and nervous" to disclose, including to her mother; defendant in the past would only rub her back when he came into her bedroom and laid next to her on the bed, but as she entered puberty he began touching her in private places; defendant's touching took place in the middle of the night, when she was asleep; when confronted, defendant claimed he was "cuddling" with her; Sidara did not believe defendant's touching was "an accident," as he "meant to do it"; Sidara was truthful when she told her mother, her aunt Tiffanie, and finally her grandmother Sandra, about defendant's sexual misconduct; her mother Christiana "tried to like blow it off at . . . 'cause [her mother] didn't want to believe" it, even suggesting defendant was touching Sidara because he was "asleep" and believed Sidara was his wife; defendant put his hands underneath Sidara's "pants and bra," and used his "fingers" to touch under her underwear in her "front"; her aunt Tiffanie became concerned when Tiffanie saw Sidara sitting on defendant's lap, facing defendant with her legs around his torso; Tiffanie, as a result, sent the children, including Sidara, to the park; Tiffanie later told Sidara she yelled at Christiana and defendant about what Tiffanie believed was defendant's inappropriate behavior towards Sidara; when she spoke to her grandmother about wanting to be "emancipate[d]," Sidara "slipped" and disclosed the "basics" of defendant's sexual misconduct but "not exactly everything"; and, as a result of her disclosure, defendant began "guilt-tripping" Sidara, telling her such things as: "Oh, you're not going to be able to keep your dog"; "What about your brothers?"; and "You're ruining like all this stuff for everyone."
During the interview Sidara also explained how she had ended up in the hospital: "I had told the complete truth. And [defendant] like started making me feel bad, which is what kind of caused me to be, to like kind of crying on the floor, telling my mom that I wanted to die; I wanted to kill myself[.]"
The record shows other witnesses were called by the prosecution, and the defense also put on witnesses, including Christiana and defendant. To the extent relevant to the issues raised on appeal, we will address such evidence post.
DISCUSSION
I
Substantial Evidence Supports Defendant's Conviction on Counts 1 and 2 for Aggravated
Assault of a Child under 14
A. Guiding Principles
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the [trier-of-fact] to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
As noted, in counts 1 and 2 the jury found defendant guilty of aggravated sexual assault of a child under 14. (See former § 269, subd. (a)(5).) The version of section 269 applicable when defendant committed the offenses provided in relevant part: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] . . . [¶] (5) Sexual penetration, in violation of subdivision (a) of Section 289."
Former section 289 in turn provided in relevant part: "[(a)(1)] . . . (B) Any person who commits an act of sexual penetration upon a child who is under 14 years of age, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished . . . ." The record shows the People primarily relied on "duress" for purposes of former section 289, subdivision (a)(1)(B) in arguing that defendant committed aggravated assault on counts 1 and 2.
"Duress," in the context of aggravated sexual assault against a child, is broadly defined as " '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. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved on another ground as stated in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 14 (Soto)); see People v. Senior (1992) 3 Cal.App.4th 765, 774-775 (Senior).)
Duress, by its nature, "involves psychological coercion" of the victim. (Cochran, supra, 103 Cal.App.4th at p. 15; Senior, supra, 3 Cal.App.4th at p. 775.) Duress "can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes." (Senior, at p. 775.) " 'Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his [or her] continuous exploitation of the victim' is relevant to the existence of duress." (Ibid., quoting People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; see People v. Schulz (1992) 2 Cal.App.4th 999, 1005 [same].)
Courts consider the "totality of the circumstances" in determining whether a defendant committed sexual abuse of a child by means of duress. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072 (Thomas).) In addition to those described ante, such "circumstances" also may include whether the defendant exercised physical control over the victim; whether the crime occurred in an isolated area; and whether other facts indicate the defendant exercised psychological dominance over the victim. (Cochran, supra, 103 Cal.App.4th at pp. 13-14; Senior, supra, 3 Cal.App.4th at p. 775.)
This court has recognized that when a young victim "is molested by [a parent] in the family home, in all but the rarest cases duress will be present." (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) "The fact that the victim testifies the defendant did not use force or threats does not [ipso facto] require a finding of no duress; the victim's testimony must be considered in light of [his or] her age and [his or] her relationship to the defendant." (Id. at p. 14.)
Several courts have upheld findings of duress despite the lack of direct evidence of force, violence, or express threats when, as here, the victim was relatively young and the defendant was an authority figure. (See People v. Veale (2008) 160 Cal.App.4th 40 (Veale); Cochran, supra, 103 Cal.App.4th at p. 8.)
In Veale, the defendant molested his seven-year-old stepdaughter in the family home and locked the door on at least one occasion. (Veale, supra, 160 Cal.App.4th at p. 47.) Although the defendant in that case ostensibly did not use violence, physical force, or explicit threats, the Veale court found that the evidence supported a reasonable inference that the defendant made an implied threat based on the victim's young age; the disparity between the defendant and victim's age and size; the defendant's position of authority in the family; and the victim's fear of the defendant and belief that he would kill her and/or her mother if she disclosed the molestation to anyone, despite the fact the defendant never threatened to do so. (Id. at pp. 45-47.)
In Cochran, the defendant videotaped himself molesting his nine-year-old daughter in their family home. (Cochran, supra, 103 Cal.App.4th at p. 15.) Despite the victim's testimony that she was not afraid of the defendant and that he did not beat, punish, grab, or force her, this court in Cochran found substantial evidence supported the finding of duress. (Id. at pp. 15-16.)
In so finding, we relied in part on the fact the victim was only nine years old; the defendant was her father, with whom she lived; and there was a considerable size difference between them. (Cochran, supra, 103 Cal.App.4th at p. 15.) We also found evidence of duress based on the victim's behavior on the videotape, in which the defendant "direct[ed] and coach[ed] the victim what to do," and the victim "engage[d] in the conduct only because she [was] directed to do so" (ibid.); concluding that the victim was a "small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority," and that "[h]er compliance was derived from intimidation and the psychological control he exercised over her . . . ." (Id. at pp. 15-16.)
B. Analysis
Reviewing the entire record, we find more than sufficient evidence to support a reasonable jury's finding that defendant accomplished the charged offenses in counts 1 and 2 by means of "duress," as defined under former section 289, subdivision (a)(1)(B).
Substantial evidence supports the finding that defendant overcame Sidara's will and "psychological[ly] coerce[d]" her into acquiescing to his ever-increasing sexual misconduct. (See Cochran, supra, 103 Cal.App.4th at p. 15; see also Senior, supra, 3 Cal.App.4th at p. 775.) Evidence of such factors or "circumstances" (see Thomas, supra, 15 Cal.App.5th at p. 1072) in support of this finding include that defendant, or "Kenny," was a close "family member" (see Senior, at p. 775), as the record shows Sidara had known him since she was about four years old; that he became her stepfather about four years later, when he married Christiana; and that Sidara loved him, as she then also had no relationship whatsoever with her biological father Jeff.
Moreover, defendant's "dominance and authority" over, and his "continuous exploitation" of, Sidara were further evident from the fact that Sidara was just entering puberty when defendant, 20 years her senior, began to abuse her sexually (see Cochran, supra, 103 Cal.App.4th at p. 15 [noting the relative "age[]" and "size[]" discrepancy of the defendant and the victim are relevant factors in determining psychological coercion]); that despite Sidara's disclosure to her mother that she was uncomfortable and wanted him to stop "touching" her at night, including when tucking her into bed, defendant ignored Sidara's simple request and continued to engage in such behavior; that Kailie saw defendant touch her cousin Sidara's "butt" when defendant tucked his stepdaughter into bed, and reported defendant's "odd" behavior to her mother Tiffanie; that defendant also ignored the advice Tiffanie gave him during the "family meeting" of adults, and on multiple other occasions, when Tiffanie told defendant the manner in which he was touching his stepdaughter was "wrong," his starring into the girls' bedroom at night for minutes at a time was "creepy," and Sidara was uncomfortable both with him tucking her into bed and with him sleeping next to her at night; that defendant was "very strict" when it came to disciplining and punishing Sidara; that defendant refused to allow Sidara to accompany Tiffanie and her family on their monthly trips to Arizona, when, in Kailie's absence, he would sexually abuse Sidara when she was alone in the bed she typically shared with her cousin; that defendant placed Sidara's legs around his torso and had her sit facing him on his lap, chest-to-chest, where Sidara over her clothes could feel his "hard" penis against her vagina; that other than sitting on defendant's lap, all of defendant's acts of sexual misconduct of Sidara occurred late at night in her bedroom, when the rest of the family was asleep; that Sidara at times was unable to resist defendant because her bed was pushed up against the wall, which she also faced while sleeping; and that defendant took advantage of the location of Sidara's bed and how she slept by lying directly behind her, rubbing her back, and ultimately, engaging in myriad acts of sexual misconduct including "groping" her breasts, "sucking" and putting his "mouth" on her nipples," touching her vagina both over and under her clothes, and digitally penetrating her vagina. (See Cochran, supra, 103 Cal.App.4th at pp. 13-14 [noting "duress" for purposes of aggravated assault of a minor under 14 arises if the defendant exercised "physical control" over the victim or if the sexual misconduct took place in an "isolated area"].)
On these facts, we conclude a rational jury could find beyond a reasonable doubt (see Smith, supra, 37 Cal.4th at pp. 738-739) that defendant used his "dominance and authority" over, and his "continuous[] exploitation" of, Sidara, such that the will of a reasonable person/child under her circumstances would have been overcome to acquiesce in such acts of sexual misconduct. (See Cochran, supra, 103 Cal.App.4th at p. 13; Senior, supra, 3 Cal.App.4th at pp. 774-775.)
But that's not all. Sidara also testified the first time defendant touched her, when he "groped" her breasts, she was "scared," "petrified," "paralyzed," and felt she could not resist him out of fear he would "hit" her or do "something else." The record further shows that Sidara reported these same or similar feelings as defendant's acts of sexual misconduct escalated in severity.
As a result, Sidara testified she was "shaking," "terrified," and "crying" when she disclosed defendant's sexual abuse to her mother while in her parents' master bathroom. However, rather than comforting her daughter or making further inquiry, Christiana then accused Sidara of "lying" about defendant's abuse, a statement Christiana repeated multiple times as demonstrated by the summarized record evidence. The record also shows Christiana made "excuses" for defendant's sexual misconduct of Sidara, even when confronted by her sister Tiffanie regarding Tiffanie's independent observations of defendant's "odd" and inappropriate touching of his stepdaughter;, and by her mother Sandra, who, along with daughter Tiffanie, ended up calling CWS and reporting defendant after Christiana refused to "handle" the situation.
We conclude this evidence further supports the finding of a rational trier-of-fact (see Smith, supra, 37 Cal.4th at pp. 738-739) that a reasonable person/child under the same circumstances as Sidara would have had his or her will overcome and acquiesced in defendant's acts of sexual misconduct. That is, if a 12-year-old child in Sidara's position repeatedly disclosed to one parent—and that parent's relatives—acts of sexual misconduct by another parent, and the one parent not only refused to intercede or make inquiry regarding such misconduct, but instead accused the child of lying and/or made "excuses" for the other parent's behavior, even when such misconduct was increasing in severity, then in our view such circumstances clearly establish the defendant engaged in such acts of sexual misconduct by means of duress. (See Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.)
Despite such overwhelming evidence, defendant argues People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza) should guide our analysis in finding there is insufficient evidence of duress. We disagree.
In Espinoza, the defendant was convicted of molesting his 12-year-old daughter, who had moved in with him and resided there for only one month. (Espinoza, supra, 95 Cal.App.4th at pp. 1292-1294.) Relying primarily on People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), the Espinoza court found insufficient evidence of duress, reasoning there was no evidence of a " 'direct or implied threat' of any kind." (Espinoza, at p. 1321.) The court explained: "While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Ibid.)
In Hecker, the defendant was convicted of molesting his 12- or 13-year-old stepdaughter when they were alone in their home. (Hecker, supra, 219 Cal.App.3d at pp. 1240-1242.) In finding insufficient evidence of duress, this court in Hecker noted there was no evidence the defendant expressly or implicitly threatened the victim; the victim admitted she was never consciously afraid defendant would harm her and testified that, with the exception of defendant's pushing her head down during the act of oral copulation, he never used physical force; and, although the victim stated she felt " 'pressured psychologically' " and was " 'subconsciously afraid,' " there was no evidence defendant was aware of and sought to take advantage of such fear. (Id. at p. 1250, disapproved on another ground as stated in Soto, supra, 51 Cal.4th at p. 248, fn. 12.)
We note Espinoza is based in large measure on the statement in Hecker that " '[p]sychological coercion,' " without more, is insufficient to establish duress. (Espinoza, supra, 95 Cal.App.4th at p. 1321, quoting Hecker, supra, 219 Cal.App.3d at p. 1250.) However in Cochran, we subsequently found this statement was "overly broad," clarifying that the "very nature of duress is psychological coercion." (Cochran, supra, 103 Cal.App.4th at p. 15; see Veale, supra, 160 Cal.App.4th at p. 48 [distinguishing Hecker and Espinoza on the basis of Cochran].) We agree with Cochran that the previous statement by this court in Hecker was overbroad.
In addition, Espinoza is factually inapposite. Unlike the facts in that case, where the victim had lived with the defendant for only a month, here the evidence shows the victim (i.e., Sidara) had known the defendant for about six years before his sexual misconduct began, and had viewed the defendant as a father-figure. Moreover, unlike the facts in Espinoza, here the evidence shows that the victim was clear in her communication not only to her mother, but also to other relatives, that she wanted the sexual abuse by the defendant to stop; and that, in response and despite such knowledge, the defendant not only continued to abuse sexually the victim, but that his abuse increased in severity, ultimately leading the victim to become depressed and attempt suicide.
Although we doubt the continued viability of Espinoza and Hecker (see Soto, supra, 51 Cal.4th at p. 243), we nonetheless conclude both cases are factually inapposite and do not inform our analysis in the instant case.
II
The Court Properly Exercised its Discretion in Denying Defendant's Post-Verdict Motion
for Disclosure of Juror Identifying Information
A. Additional Background
As noted, the jury found defendant guilty on all counts. A few days after the verdict, defendant filed his motion to disclose juror information (motion). Defendant in support of the motion attached five declarations, including two from his defense investigator, one from an alternate juror who did not participate in deliberations, another from juror M.S., and one from defense counsel.
The record shows the defense investigator contacted alternate juror A.B. two days after the verdict. A.B. told the investigator that immediately after the verdict, he spoke with jurors 12 and 9; that juror 12 said he did not believe the People had proved their case, a statement he repeated when the group was joined by defense counsel; that from what "he saw outside the courtroom" following the verdict, A.B. "felt the other jurors had forced Juror #12 to choose a guilty verdict"; that A.B. "felt bad for Juror #12"; and that A.B. "added that Juror #9 stated she was on the fence about voting for a guilty verdict."
Alternate juror A.B. submitted a declaration corroborating the statements in the investigator's declaration. A.B. in his declaration stated that after the verdict, he spoke with jurors 9 and 12; that as he was doing so, defense counsel approached and juror 12 then made the comment the People had not "prove[d] their case"; that A.B. next saw defense counsel and juror 12 "talking"; and that he overheard the jury forewoman tell juror 12 the deliberations were "over" and there was "nothing" he could "do about it." A.B. also heard other jurors "mention" that juror 12 "had never heard of a person do that type of act to a little girl before," as the People had alleged, and that juror 12 therefore "did not believe the 14 year old plaintiff." From what A.B. saw "outside the courtroom," he "felt the other jurors had forced Juror #12 to choose a guilty verdict."
This same defense investigator also submitted a second declaration, as noted, based on a telephone interview with juror M.S. During this interview, M.S. told the investigator that after the verdict, he "ran into [defense counsel] on the street"; that M.S. told defense counsel that a juror named "Scotty" had been "pressured" by other jurors "into changing his verdict from not guilty to guilty"; that during the deliberations, "Juror #7, Juror #1, the forewoman, a juror named Aaron, and a juror named Joe pressured juror Scotty into changing his not guilty verdict"; that this pressure including telling "Scotty" that they could continue deliberations for "another two weeks until he changed his verdict"; and that M.S. told juror Joe "not to strong arm juror Scotty into changing his mind."
The investigator further declared that, although M.S. voted for guilt, M.S. stated he respected juror Scotty; and that "there was a general consensus that no one was walking out of the deliberation room until juror Scotty changed his verdict." At some point, according to M.S. juror Scotty "finally caved in and said, 'I don't believe the D.A. proved her case beyond a reasonable doubt, but I'm going to change my vote to guilty to please you people and get this over with.' " Finally, the investigator declared M.S. had said he was "disgusted" by the other jurors' action "that forced juror Scotty to change his verdict."
M.S. in his own declaration stated that five jurors "pressured Scotty into changing his not guilty vote to guilty"; that M.S. in response told these jurors not to "strong-arm juror Scotty into changing his mind"; and that juror Scotty "reluctantly voted guilty for some counts in what seemed like his way of giving into their pressure." M.S. further declared that when deliberations resumed, "juror Scotty finally caved in" and voted for guilty to " 'please' " the other jurors and to " 'get this over with.' " M.S. asked Scotty why he had changed his vote and Scotty in response stated he had been "pressured" to do so. M.S. was "disgusted with the group's actions that forced juror Scotty to change his vote," leading M.S. to leave the courthouse immediately after the verdict was read.
Defense counsel stated that after the verdict, outside the courtroom juror 12 stated, " 'The D.A. didn't prove anything. He's not guilty.' " The forewoman, who was standing nearby, said in response, " 'It's over with. You can't change your vote.' " A little later, defense counsel went to the jury lounge in an unsuccessful effort to locate juror 12.
As defense counsel was walking back to his office, he saw juror 6 (i.e., M.S.) across the street. Juror 6 told defense counsel that a " 'bald guy and the guy with the beard' " had engaged in what juror 6 described as " 'passive-aggressive pressure' " during earlier deliberations, leading up to " 'total pressure' " that morning, on juror 12 to "switch[] his not guilty verdict to a guilty verdict.' " Juror 6 expressed his view that "they 'wore' Juror #12 down, and Juror #12 finally gave in." Juror 6 told defense counsel he had been "disgusted by what he witnessed in the deliberations" and as a result, he left the courthouse "because he was upset with his fellow jurors."
The People opposed defendant's motion. Defendant in response noted his motion was "solely . . . for the disclosure of juror information," and was not a request for an evidentiary hearing based on jury misconduct. Defendant claimed he was entitled to the juror information because his motion established a reasonable belief that jury misconduct had occurred.
At the motion hearing, the court announced its tentative was to deny the motion based on Evidence Code section 1150, as the evidence proffered by defendant was inadmissible under this statute. As such, the court found defendant could not satisfy the good-cause requirement necessary to obtain juror information. In announcing its tentative, the court noted it had "read carefully the declarations and the motion[]," and also had "read several of the cases that were cited by the parties." Defense counsel admitted that the declaration of alternate A.B. was "kind of moot," as it was "related to what he had heard outside of the courtroom after the verdict."
The court noted the information submitted by defendant in his motion went to the "jurors' mental processes" and as such, "there's nothing" to support a good-cause finding to release the juror information. Specifically, the court noted that in defendant's motion there was no "overt event that's a direct violation of the oaths of duties" of jurors, "something that's observable to the senses" required in cases that have allowed the release of juror information. Rather, it found all the investigative information in defendant's motion used as a basis to support a good-cause finding went to the "thoughts and processes and decisions and influences" of the jury during its deliberations, which could not be considered under Evidence Code section 1150. The court thus confirmed its tentative and denied defendant's motion.
B. Guiding Principles
Once the verdict in a criminal jury proceeding is recorded, a court's record of personal identifying information of the jurors is automatically sealed. (Code Civ. Proc., § 237, subd. (a)(2); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087 (Townsel).) However, a criminal defendant may, following the recording of the verdict, petition the court for access to personal juror identifying information within the court's records so that the defendant may communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. (Code Civ. Proc., § 206, subd. (g).) Such "petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Id. at § 237, subd. (b); see id. § 206, subd. (g).) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.)
Good cause for purposes of Code of Civil Procedure section 237, subdivision (b) " 'requires "a sufficient showing to support a reasonable belief that jury misconduct occurred . . . ." [Citations.]' [Citation.]" (People v. Johnson (2015) 242 Cal.App.4th 1155, 1161-1162.) "Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported." (People v. Cook (2015) 236 Cal.App.4th 341, 346.)
However, not all evidence is admissible to show good cause. Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him [or her] to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
As the trial court here correctly noted, Evidence Code section 1150 " 'distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . ." ' [Citation.] ' "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent." ' " (People v. Danks (2004) 32 Cal.4th 269, 302 (Danks).) To the extent any declarations "relate solely to the mental processes and subjective reasoning" of the jurors, those declarations cannot be considered. (Ibid.) Statements made by a juror concerning the reasons for his or her vote "are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150." (People v. Hedgecock (1990) 51 Cal.3d 395, 419 (Hedgecock).)
In addition to the statutory protection of juror identification information, a trial court has inherent power to limit the parties' ability to contact jurors after trial. (Townsel, supra, 20 Cal.4th at pp. 1087, 1091-1094; see People v. Tuggles (2009) 179 Cal.App.4th 339, 382 [noting that, with a certain exception related to law enforcement's investigation of criminal conduct by a juror, "[n]othing in Code of Civil Procedure sections 206 or 237 dilutes the trial court's inherent power to shield jurors from unwanted contact by parties or their counsel"].) Our high court has explained that a "criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict." (People v. Cox (1991) 53 Cal.3d 618, 698-699, disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We review an order on a motion for disclosure of juror identification information for abuse of discretion. (Townsel, supra, 20 Cal.4th at pp. 1096-1097; People v. Johnson (2013) 222 Cal.App.4th 486, 492.)
C. Analysis
We conclude the court properly exercised its discretion when it found the declarations submitted by defendant in support of his motion were inadmissible under Evidence Code section 1150, subdivision (a), and therefore, when it concluded defendant failed to make the required good-cause showing under section 237, subdivision (b).
The declaration from alternate juror A.B. was inadmissible, as defense counsel essentially conceded at the motion hearing when noting it was "moot," inasmuch as this juror did not even participate in deliberations. As such, the investigator's separate declaration based on A.B.'s statements was likewise inadmissible.
The declaration by juror M.S. was also inadmissible (even without considering whether his statements regarding juror 12's post-verdict comments were hearsay; see Evid. Code, § 1200, subds. (a) & (b)). M.S. declared that during deliberations, juror 12 was pressured by other jurors to change his vote from not guilty to guilty. However, M.S.'s statements were inadmissible to show the effect the other jurors' statements might have had not only on juror 12, but also on M.S. (See Evid. Code, § 1150; see also Danks, supra, 32 Cal.4th at p. 302 [declarations that "relate solely to the mental processes and subjective reasoning" of the jurors cannot be considered in a new trial motion]; Hedgecock, supra, 51 Cal.3d at p. 419 [declarations based on statements made by a juror concerning the reasons for his or her vote "are simply a verbal reflection of the juror's mental processes" and thus are barred under Evidence Code section 1150].)
Indeed, the declaration of M.S., and the derivative declarations of the investigator and defense counsel based on M.S.'s statements, describe the process of jury deliberation, not misconduct: " 'Jurors may be expected to disagree during deliberations, even at times in heated fashion.' Thus, '[t]o permit inquiry as to the validity of a verdict based upon the demeanor, eccentricities or personalities of individual jurors would deprive the jury room of its inherent quality of free expression.' (People v. Orchard (1971) 17 Cal.App.3d 568, 574 [(Orchard)].)" (People v. Keenan (1988) 46 Cal.3d 478, 541 (Keenan).
Because frustration; impatience; anger; disagreement, even vehement; and attempts to persuade fellow jurors by strenuous and sometimes heated means, are all part of the normal deliberative process of the jury (see Keenan, supra, 46 Cal.3d at pp. 540-541; Orchard, supra, 17 Cal.App.3d at p. 574), we conclude the trial court did not abuse its discretion in denying defendant's motion to identify not only juror 12, but all the other jurors (ostensibly except M.S.) on the panel, as a result of defendant's failure to satisfy the good-cause requirement for such information.
Although defendant's motion was limited to a request for juror information and was not a motion based on jury misconduct, as defendant himself noted, on appeal defendant has pivoted and now claims juror 12 also engaged in such misconduct, based on the evidence proffered in the motion. We conclude this claim is forfeited on appeal as a result of his failure to raise it below. (See People v. Dykes (2009) 46 Cal.4th 731, 808, fn. 22 [recognizing the "failure to raise the issue of juror misconduct and seek relief from the court on that basis results in a forfeiture of the issue on appeal"].) Reaching the merits, we further conclude there was no admissible evidence of misconduct by juror 12. (See Evid. Code, § 1150, subd. (a); see also Evid. Code, § 1200 [providing hearsay evidence (a) "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated," and (b) "[e]xcept as provided by law, hearsay evidence is inadmissible"].) Even if not inadmissible, juror 12 statements were merely part of the normal deliberative process of the jury, and therefore do not constitute misconduct. (See Keenan, supra, 46 Cal.3d at pp. 540-541; Orchard, supra, 17 Cal.App.3d at p. 574.)
III
Imposition of Fines, Fees, and Assessments
The court at sentencing imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and a matching suspended parole revocation fine (§ 1202.45); a $400 court security fee (§ 1465.8); and a $300 criminal conviction assessment (Gov. Code, § 70373). Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the court violated his due process rights by imposing such fines, fees, and assessments without first considering his ability to pay such. We disagree.
The ability-to-pay issue and whether a defendant as a matter of due process is entitled to a hearing on such is currently pending before our high court. (See e.g., People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
As to the $10,000 restitution fine, defendant had the statutory right, and thus was obligated, to object to the imposition of that fine above the $300 statutory minimum. (§ 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is increased above the minimum].) His failure to do so forfeits this claim of error on appeal. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
With respect to the remaining $700 in fees and assessments, given the length of his prison sentence, defendant will have the ability to pay these fees and assessments (as well as the $10,000 restitution fine) based on the wages he may earn in prison. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages]; § 2085.5 [outlining how a restitution fine balance may be collected from prison wages].) We thus find remand for an ability-to-pay hearing unnecessary.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.