Filed 5/24/13 (unmodified version)

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION ONE




>

THE PEOPLE, Plaintiff and Respondent, v. HUGO ELISEO CABRERA, Defendant and Appellant.

B239552 (Los Angeles County Super. Ct. No. NA066657)

APPEAL
from a judgment of the Superior Court
of Los Angeles County. Gary J. Ferrari, Judge. Modified and affirmed with directions.

Edward
H. Schulman, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Blythe J.
Leszkay, Supervising Deputy Attorney General, and Toni R. Johns Estaville,
Deputy Attorney General, for Plaintiff and Respondent.

_________________________________







Defendant
Hugo Eliseo Cabrera appeals from the judgment entered following a jury trial in
which he was convicted of two counts of aggravated sexual assault on a child
under the age of 14 (Pen. Code, § 269, subd. (a); undesignated statutory references
are to the Penal Code), one of which was based upon rape in violation of
section 261, subdivision (a)(2), and the other upon sexual penetration, in
violation of section 289, subdivision (a); one count of committing a lewd act
on a child (§ 288, subd. (a)); and one count of sexual penetration of a child
under the age of 14 (§ 289, subd. (j)).
Defendant contends that the evidence was insufficient to support his
convictions of aggravated sexual assault on a child under the age of 14 and
that the trial court erred by failing to give a unanimity instruction. We agree with defendant’s sufficiency of
evidence contention and reduce his convictions in the those counts and strike
the resulting duplicative count 4, which the parties agree was based upon the same
act of penetration as count 2.

BACKGROUND

Count
1 charged defendant with committing an aggravated sexual assault on a child
under the age of 14 by committing rape in violation of section 261, subdivision
(a)(2) “[o]n or about May 12, 2004.” Count 2 charged defendant with committing an
aggravated sexual assault on a child under the age of 14 by sexual penetration
in violation of section 289, subdivision (a) “[o]n or about May 12, 2004.” Count 3 charged defendant with committing a
lewd act on a child under the age of 14 in violation of section 288,
subdivision (a) “[o]n or between May 1,
2004 and May 31, 2004.” Count 4 charged defendant with sexual
penetration of a child under the age of 14 in violation of section 289,
subdivision (j) “[o]n or between May 1,
2004 and May 31, 2004.” Four other counts set forth in the
information were dismissed before trial as improperly filed because they
exceeded the scope defendant’s extradition.

The
victim, Maria C., was born in March of 1991.
She was 20 at the time of trial in January 2012. She testified that defendant was her
“natural” father, although the prosecution’s DNA expert later opined that
defendant was not Maria’s biological father.
Maria testified that when she was in the fourth grade, defendant began
touching her breasts with his hands and inserting his fingers and penis in her
vagina. Maria was 9 and 10 years old in
2000 and 2001 when she was in the fourth grade, but she was not specifically
asked and did not testify how old she was when defendant commenced his sexual
conduct against her. The conduct always
occurred in their home, and it occurred “[o]nce a month probably.” Maria never told anyone about it because she
was embarrassed. Later during her
testimony, the prosecutor asked Maria again why she never told anyone, and
Maria said, “Because he told me not to.”
Years later, Maria told Los Angeles Police Department Detective Charles
Martin that she tried “to inform her mother when it first began about the
touching initially and her father, Hugo, convinced the mother that she was
dreaming, so she didn’t feel her mother was believing her, so she never tried
to tell her any more.”

When
Maria was in the fifth grade, defendant went away for two years. (Although not disclosed to the jury,
defendant was serving a prison term for spousal abuse.) The parties stipulated that from 2002 to
early March 2004, defendant could not contact Maria and had no access to her.

In
March of 2004, when Maria was in the seventh grade and 13 years old, defendant
returned home. “Probably right away,” he
resumed molesting her in the “same molestation pattern that he had done before
he went away.” He touched her breasts,
“raped” her, and “insert[ed] his finger inside” her. This occurred about once a month. Maria became pregnant and, after nine months
of pregnancy, she gave birth to her daughter M. on February 7, 2005. Maria testified that defendant was M.’s

father.

Around
December of 2004, Maria’s pregnancy began to show. Her mother took her to a physician, who confirmed
that Maria was pregnant and told Maria’s mother. Maria told her mother that she had been raped
in a van by a stranger. Defendant gave
her the “idea to say someone else had done it.”
Maria repeated this story to Detective Martin, who began investigating
it in January of 2005 and concluded it was false. When Martin confronted Maria with his
conclusion, she refused to speak with him for a time. Martin collected DNA samples from defendant,
Maria, and Maria’s two brothers. Maria
subsequently told Martin that one of her seventh grade classmates was
responsible. Martin asked her to point
out the classmate in her school yearbook, and Maria selected someone. Martin interviewed the boy, who did not know
Maria, but voluntarily provided a DNA sample.
After M. was born, Martin collected a DNA sample from her also.

Before
M. was born, Maria told defendant that she did not want to continue lying. Defendant left home and Maria did not see him
again until the preliminary hearing.
After M.’s birth, Maria told Martin that defendant was M.’s father, and
Martin learned that defendant had left soon after giving a DNA sample. Defendant was extradited from Guatemala in
2011.

Prosecution
DNA expert Catherine Leisy testified that she analyzed all of the DNA samples to
determine M.’s paternity. Defendant
could not be excluded as M.’s father, but all of the other males were excluded.

Defendant
presented no affirmative evidence.

The
jury convicted defendant of aggravated sexual assault on a child under the age
of 14 by rape, aggravated sexual assault on a child under the age of 14 by
sexual penetration, commission of a lewd act on a child under the age of 14,
and sexual penetration of a child under the age of 14. Defendant admitted a prior prison term
enhancement allegation (§ 667.5, subd. (b)).
The court sentenced defendant to consecutive terms of 15 years to life
in prison for each of the two aggravated sexual assault convictions, a
consecutive term of 8 years for the lewd act conviction, a subordinate
consecutive term of 2 years for the sexual penetration conviction, and a 1‑year
consecutive term for the prior prison term enhancement, for a total term of 41
years to life. The trial court did not
award defendant any presentence conduct credits, but corrected this error upon
defendant’s request during the pendency of this appeal.

DISCUSSION

1. Sufficiency of evidence

Counts
1 and 2 (aggravated sexual assault of a child under 14 based upon rape and
sexual penetration, respectively) required proof that the act was “accomplished
against [Maria’s] will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on [herself] or another” person. (§ 261, subd. (a)(2); § 269, subds. (a)(1),
(a)(5); § 289, former subd. (a)(1), now subd. (a)(1)(A).) In her arguments to the jury, the prosecutor
relied solely upon duress, and defendant contends there was insufficient
evidence of duress to support the jury’s verdicts on counts 1 and 2.

To
resolve this issue, we review the whole record in the light most favorable to
the judgment to decide whether substantial evidence supports the conviction, so
that a reasonable jury could find guilt beyond a reasonable doubt. (People
v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting
the judgment that the jury could reasonably deduce from the evidence and make
all reasonable inferences that support the judgment. (People
v. Barnes (1986) 42 Cal.3d 284, 303; People v.
Catlin
(2001) 26 Cal.4th 81, 139.) A
reasonable inference may not be based solely upon suspicion, imagination,
speculation, supposition, surmise, conjecture, or guess work. (People
v. Raley (1992) 2 Cal.4th 870, 891.)

“Duress”
in the context of aggravated sexual assault based upon rape is statutorily
defined: “As used in this section, ‘duress’ means a direct or
implied threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act which
otherwise would not have been performed, or acquiesce in an act to which one
otherwise would not have submitted. The
total circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising the
existence of duress.” (§ 261,
subd. (b).) For purposes of aggravated sexual assault based
upon sexual penetration “duress” has a nearly identical meaning:
“‘a direct or implied threat of force, violence, danger, hardship or
retribution sufficient to coerce a reasonable person of ordinary susceptibilities
to (1) perform an act which otherwise would not have been performed or, (2)
acquiesce in an act to which one otherwise would not have submitted.’” (People v. Leal (2004) 33 Cal.4th 999,
1004, italics omitted.) The
inclusion of “hardship” in the latter definition of duress is of no consequence
in this case, and we can treat duress as if it were identically defined for
both counts 1 and 2.

“‘[D]uress involves
psychological coercion. Duress can arise from various circumstances,
including the relationship between the defendant and the victim and their
relative ages and sizes. . . . .
“Where the defendant is a family member and the victim is young,
. . . the position of dominance and authority of the defendant and
his continuous exploitation of the victim” [are] relevant to the existence of
duress.’” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1320.) “‘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.’” (>People v. Veale (2008) 160 Cal.App.4th
40, 46.) But “‘“[p]sychological
coercion” without more does not establish duress. At a minimum there must be an implied threat
of “force, violence, danger, hardship or retribution.”’” (Espinoza,
at p. 1321.) “Duress cannot be
established unless there is evidence that ‘the victim[’s] participation was
impelled, at least partly, by an implied threat . . . .’” (Ibid.) But duress is “objective in nature and not
dependent on the response exhibited by a particular victim.” (People
v. Soto (2011) 51 Cal.4th 229, 246.)

The
jury instructions given in this case defined duress in the context of count 1
(aggravated sexual assault based upon rape) as follows: “‘Duress’ means a direct or implied threat of force, violence,
danger, or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to perform an act which she would not otherwise have
performed, or acquiesce in an act to which she otherwise would not have
submitted. The total circumstances,
including but not limited to the age of the alleged victim, her relationship to
the perpetrator defendant, threats to harm the victim, physically controlling
the victim when the victim attempts to resist, and warnings to the victim that
revealing the perpetrator’s conduct would result in jeopardizing the safety of
the victim or the victim’s family, are factors to consider in appraising the
existence of the duress.” (CALJIC No.
10.00.) For purposes of count 2 (aggravated
sexual assault based upon sexual penetration), the court instructed, “‘Duress’ means a direct or
implied threat of force, violence, danger, hardship, or retribution sufficient
to coerce a reasonable person of ordinary susceptibilities to perform an act
which she would not otherwise have performed, or acquiesce in an act to which
she otherwise would not have submitted.
The total circumstances, including the age of the alleged victim, and
her relationship to the defendant, are factors to consider in appraising the
existence of the duress.” (CALJIC No.
10.51.)

In her arguments to the jury
regarding duress, prosecutor Carol
Rose stated, “I’m making it the easiest for you. Duress is such a low standard . . . .” After quoting CALJIC No. 10.00, the prosecutor continued, “He’s her
daddy. Now, apparently she doesn’t know
that he’s not her biological father.
Probably a very common thing. But
this is a 42 year old and in fact he is—when she’s 10, what is he, 41. She’s 10.
If he’s—2002—2001, he’s 40 and turns 41 when he starts raping her and
she is in that stuck mode now and she’s just 10 years old. [¶]
So, you look at the age of the victim and her relationship or threats or
physically controlling or warnings to the victim about revealing the rape. She knows what it will do to the family. What’s she, 13?” With respect to count 2, the prosecutor
argued, “Got duress here.” She then
argued, regarding lack of consent, “You think that 10 year old positively cooperated
with her dad? . . . And why did it happen? We asked her, ‘Why didn’t you tell
anyone?’ [¶]
‘He’s my father.’ [¶] Okay.
‘Act freely and voluntarily and have knowledge of the nature of the
act.’ [¶] Did
she have as a 10 year old knowledge when he’s rubbing her breasts and sticking
his finger in her vagina?”

Defense counsel argued that there was no evidence
of force, violence, duress, menace, or fear of immediate and unlawful injury,
then argued, “They are assuming that because you know that she was young, that
she must have felt or there must have been force or violence or duress or
menace or fear of immediate and unlawful injury. You’re not allowed to assume evidence that
didn’t come in.”

In her rebuttal, the prosecutor argued, “[I]t was
accomplished by duress, he was able to do it by duress and duress is
acquiescing—it’s an implied threat of force, it doesn’t have to be force. And she bled, even if that was the first
time, that’s certainly a threat that it’s going to hurt. And just acquiescing.” The prosecutor further argued, “Using your
common sense when we’re talking about duress here now. Let’s talk about duress. A 10-year-old child would not be expected nor
able to stand up to her father or at least a man she believed was her father. Once she’s pregnant, humiliation is even
greater because now everyone is going to know that her mother’s husband
. . . is having sex with her all this time.”

Viewing
the entire record in the light most favorable to the judgment, we conclude that
there is not substantial evidence of duress to support the convictions in
counts 1 and 2. These charges were
based upon conduct occurring when Maria was 13, not 10, as the prosecutor
repeatedly argued. Although defendant’s
improper sexual conduct toward Maria began when she was in the fourth grade,
when she was 9 or 10, it stopped when she was in the fifth grade because
defendant went away to prison for two years, and it did not resume until he
returned in March of 2004, when she was 13.
Maria’s young age and size may have been factors that, in addition to
other circumstances, would have supported a finding of duress if the charges
were based upon defendant’s conduct in 2000 or 2001, or perhaps even if the
conduct had continued unabated since that time through the date of the
charges. But these factors and
defendant’s paternal relationship with Maria were insufficient to show that
defendant used duress to commit the charged offenses on May 12, 2004, when Maria was 13 and
defendant had been out of the house for two years. The prosecutor’s questioning and Maria’s testimony were
extremely cursory and conclusory. She
was never asked and never testified that she feared defendant or that his
conduct placed her in fear. She was
never asked and never testified about the circumstances surrounding the sexual
acts. There was no evidence defendant
attempted physically to control Maria’s movements immediately preceding or
during the May 12 incident, or during any prior incident. There was no evidence that defendant ever made
any express threats of any sort, neither threats that coerced Maria to perform or acquiesce in the sexual
activity, nor even threats of adverse consequences that would result if she
told anyone about defendant’s conduct.
There was no evidence of conduct by defendant that could be deemed to be
an implied threat of force, violence, danger, retribution, or hardship. There was no evidence that defendant ignored
a request to stop or complaint of pain (or that any such request or complaint
was made), or overcame an attempt by Maria to get away from him. Nor was there any evidence that defendant
ever used physical force to punish Maria in other contexts or that she feared
him because of force he had used on her or anyone else. In short, the prosecutor presented minimal
and conclusory evidence, falling so far short of substantial evidence that we
cannot conclude that a reasonable jury could have found guilt beyond a
reasonable doubt.

Although defendant forfeited any claim of prosecutorial misconduct by
failing to object in the trial court, we note that the prosecutor’s arguments
may well have misled the jury to focus on Maria’s age at the time defendant
began molesting her, not at the time of the charged offenses three or four
years later. In addition, the prosecutor
argued that “[d]uress is such a low standard” and “duress is acquiescing.” The prosecutor also incorrectly argued that Maria testified she bled and
used this matter from outside the record to make a circular argument that
duress could be found because bleeding was “an implied threat that it’s
going to hurt.”

Rather
than simply reversing defendant’s convictions, this court has the power and
authority to modify the judgment to reflect conviction of a lesser, necessarily
included offense. (§§ 1181, subd. 6,
1260; People v. Jackson (2000) 77 Cal.App.4th 574, 580.) An offense is necessarily included in another
if either the statutory elements of the greater offense or the facts alleged in
the accusatory pleading include all of the elements of the lesser offense, so
that the greater offense cannot be committed without also committing the
lesser. (People v. Bailey (2012) 54 Cal.4th 740, 748.) Either the statutory elements test or the
accusatory pleading test may be applied in the context of modifying a judgment
due to insufficiency of evidence. (>Ibid.)

In
response to our request for briefing on how we should modify defendant’s
convictions, defendant argued that counts 1 and 2 should be reduced to
violations of section 289, subdivision (h), sexual penetration of a person
under the age of 18. The Attorney
General argued that count 2 could be reduced to a violation of section 289,
subdivisions (h) or (j) [sexual penetration of a person under the age of 14 by
a defendant who is more than 10 years older than the victim], but argued that
count 1 could not because “sexual penetration” is defined by section 289 as
penetration with “any
foreign object, substance, instrument, or device, or by any unknown object”; a
“foreign object, substance, instrument, or device” does not include “a sexual
organ”; and an “unknown object” only includes “a penis, when it is not known
whether penetration was by a penis or by a foreign object, substance,
instrument, or device, or by any other part of the body.” (§ 289, subd. (k)(1)–(3).) The Attorney General argues that count 1
could be reduced to a violation of section 261.5, subdivision (c), which, in
2004, provided as follows: “Any person who engages in an
act of unlawful sexual intercourse with a minor who is more than three years
younger than the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one year, or
by imprisonment in the state prison.”

Count
1 charged aggravated sexual assault of a child under the age of 14 by a
defendant who is more than 10 years older than the victim by means of a
violation of section 261, subdivision (a)(2).
(§ 269, subd. (a)(1).) Section
261, subdivision (a) provides that “[r]ape is an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator, under any of the following circumstances: [¶]
. . . [¶] (2) Where it is accomplished
against a person’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another.” Applying the accusatory pleadings test, we
agree with the Attorney General that a violation of section 261.5,
subdivision (c) is necessarily included within a violation of aggravated sexual
assault of a child under the age of 14 by forcible rape. Accordingly, we reduce count 1 to a violation
of section 261.5,
subdivision (c).

Count
2 charged aggravated sexual assault of a child under the age of 14 by a
defendant who is more than 10 years older than the victim by means of a
violation of section 289, former subdivision (a)(1) (now subd. (a)(1)(A)). (§ 269, subd. (a)(5).) In 2004, section 289, subdivision (a)(1)
provided, “Any person
who commits an act of sexual penetration 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 by imprisonment in the state prison for three, six, or eight years.” Applying the accusatory pleadings test, we agree with the
Attorney General that a violation of either section 289, subdivision (h) or
subdivision (j) is necessarily included within a violation of aggravated
sexual assault of a child under the age of 14 by sexual penetration, but we
conclude a violation of section 289, subdivision (j) is a more apt included
offense because the age specifications mirror those in section 269, as it
existed in 2004. Section 289, subdivision (j) provides, “Any person who
participates in an act of sexual penetration with another person who is under
14 years of age and who is more than 10 years younger than he or she shall be
punished by imprisonment in the state prison for three, six, or eight
years.” In contrast, section 289,
subdivision (h) provides, “Except as provided in Section 288, any person who
participates in an act of sexual penetration with another person who is under
18 years of age shall be punished by imprisonment in the state prison or in the
county jail for a period of not more than one year.” Accordingly, we reduce count 1 to a
violation of section
289, subdivision (j).

2. Duplicative counts

We
asked the parties to address whether defendant was properly convicted and
sentenced for two counts pertaining to sexual penetration (counts 2 and 4),
given evidence and the time periods alleged in the information. In her letter brief, the Attorney General
conceded that “counts 2 and 4 are based on the same act of digital
penetration.” Although the parties
disagreed as to whether defendant properly stood convicted of two counts based
upon the same act, our modification of count 2 to a violation of section 289, subdivision (j)
simplifies matters. With this
modification, counts 2 and 4 are identical convictions for a single act and one
must be stricken. Accordingly, we strike
count 4.

3. Unanimity instruction

Defendant contends that the
trial court erred by failing to give a unanimity instruction, and that this
potentially affected counts 2 through 4.
Given our disposition of count 4, we address the absence of a unanimity
instruction with respect to counts 2 and 3.

A
trial court must instruct jurors that they must unanimously agree that
defendant committed the same specific criminal act “‘when conviction on a single count could be based on
two or more discrete criminal events,’ but not ‘where multiple theories or acts
may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.]
In deciding whether to give the instruction, the trial court must ask
whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime.
In the first situation, but not the second, it should give the unanimity
instruction.” (People v. Russo
(2001) 25 Cal.4th 1124, 1135.) Where a unanimity
instruction is required it must be given sua sponte. (People
v. Curry (2007) 158 Cal.App.4th 766, 783.)

“A
unanimity instruction is required only if the jurors could otherwise disagree
which act a defendant committed and yet convict him of the crime charged. . . . [T]he possibility of disagreement exists
where the defendant is accused of a number of unrelated incidents, such as
alleged rapes at different times or places, leaving the jurors free to believe
different parts of the testimony and yet convict the defendant. . . . Disagreement may also exist where the
defendant offers a defense which could be accepted or rejected as to some but
not all of the acts.” (>People v. Gonzalez (1983) 141
Cal.App.3d 786, 791–792, disapproved on another ground in People v. Kurtzman
(1988) 46 Cal.3d 322, 330.)

“In
order for the unanimity instruction to be significant, there must be evidence
from which reasonable jurors could both
accept and reject the occurrence of
at least the same number of acts as there are charged crimes.” (People
v. Schultz (1987) 192 Cal.App.3d 535, 540.) Where the record provides no rational basis
for the jury to distinguish between the various acts, by way of argument or
evidence, and the jury must have believed beyond a reasonable doubt that
defendant committed all of the acts if he committed any of them, the failure to
give a unanimity instruction is harmless.
(People v. Thompson (1995) 36
Cal.App.4th 843, 853 (Thompson).)

The
evidence supported the commission of three distinct criminal acts against Maria
during the time periods specified in the charges: sexual intercourse, touching her breasts, and
digital sexual penetration. Maria’s
testimony was comparable with respect to all three acts and defendant’s defense
did not differ with respect to the various acts. Thus, there was no rational basis for the
jury to distinguish between the various acts, and the jury must have believed
beyond a reasonable doubt that defendant committed all of the acts if he
committed any of them. Accordingly, even
if the trial court should have given a unanimity instruction, its failure to do
so was harmless beyond a reasonable doubt.
(People v. Wolfe (2003) 114
Cal.App.4th 177, 186–188; Thompson, >supra, 36 Cal.App.4th at p. 853.)

>DISPOSITION

The
judgment is modified by (1) reducing count 1 to a conviction of violating Penal
Code section 261.5,
subdivision (c); (2) reducing count 2 to a conviction of violating Penal Code section 289, subdivision
(j); and (3) striking count 4. The
judgment is otherwise affirmed, and the cause is remanded for resentencing.

NOT
TO BE PUBLISHED.



MALLANO,
P. J.

We concur:



CHANEY,
J.



JOHNSON,
J.