P. v. Diaz
Filed 3/9/07 P. v. Diaz CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. DOMENICO G. DIAZ, Defendant and Appellant. | D046980 (Super. Ct. No. SCS173703) |
APPEAL from a judgment of the Superior Court of San Diego County, Alvin E. Green, Jr., Judge. Affirmed.
Based on three incidents involving three different victims over the course of approximately two months, a jury convicted Domenico G. Diaz of four counts of forcible lewd conduct with a child under 14 (Pen. Code,[1] 288, subd. (b)(1) (hereafter 288(b)(1)) (counts 1, 2, 3, 6)), two counts of kidnapping ( 207, subd. (a) (counts 4, 7)), one count of making criminal threats ( 422 (count 5)), one count of kidnapping for rape ( 209, subd. (b)(1) (count 8)), and one count of assault with the intent to commit rape ( 220 (count 9)). The trial court sentenced Diaz to three consecutive life terms.
Diaz challenges the sufficiency of the evidence to support his conviction for count 6. Diaz contends that the record contains insufficient evidence that he used force, duress or menace to commit the lewd act against the victim at issue in count 6. As we will explain, we conclude that substantial evidence supports a finding that Diaz committed the offense at issue in count 6 by use of duress. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Diaz was convicted of kidnapping and molesting three different girls in three separate incidents, all of which involved Diaz forcing a girl into a car and then committing or attempting to commit sex acts with her. This appeal concerns only one of the incidents, and we limit our statement of facts accordingly.
As eight-year-old Lisbeth A. was walking to school one morning, a Jeep with black windows pulled up next to her. Diaz exited the driver's side door, grabbed Lisbeth and put her in the back seat. Lisbeth tried to get out of the car but she could not open the door, and Diaz told her that the door would not open. Diaz looked mad. Diaz told Lisbeth to pull down her pants. Lisbeth refused and Diaz then told her that he would not let her go if she did not comply. Lisbeth was afraid. She screamed and kicked, and Diaz told her that no one would hear her in the car. Diaz again asked Lisbeth to pull down her pants. She complied because she wanted to be able to get out of the car and go to school. Diaz touched Lisbeth's genital area with his hand and with his mouth. Diaz then removed his pants and told Lisbeth to "lick [his penis] like a lollipop." Lisbeth complied. Diaz ejaculated on Lisbeth's leg, gave her a towel to wipe herself off, and let her out of the car.
Diaz was charged with kidnapping Lisbeth ( 207, subd. (a) (count 7)) and committing a forcible lewd act upon her ( 288(b)(1) (count 6)). The jury convicted Diaz on both counts.
II
DISCUSSION
The only issue in this appeal is whether the evidence was sufficient to support Diaz's conviction for count 6 committing a forcible lewd act on Lisbeth in violation of section 288(b)(1).
Our role in reviewing a challenge to the sufficiency of the evidence is a limited one. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)
Diaz was convicted in count 6 of violating section 288(b)(1), which applies to any person who commits a lewd act as described in section 288, subdivision (a), "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." ( 288(b)(1).)
In his opening brief, Diaz does not challenge the finding that he committed a lewd act upon Lisbeth as described in section 288, subdivision (a). However, he contends that there was insufficient evidence to convict him under section 288(b)(1) because he did not use force that was greater than necessary to commit the lewd act. (See People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran) [" 'Force' as used in this context means 'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself ' "].)
The Attorney General correctly points out that use of force and violence is not necessary for a conviction under section 288(b)(1). As the Attorney General explains, by the terms of the statute the crime may also be established through sufficient evidence of (1) duress, (2) menace or (2) fear of immediate and unlawful bodily injury. (See People v. Pitmon (1985) 170 Cal.App.3d 38, 48 (Pitmon) ["convictions of section 288, subdivision (b), may be based upon a showing of force or duress"].)[2]
The Attorney General argues that whether or not the evidence supports a finding that Diaz used force beyond that necessary to commit the lewd act, the evidence was clearly sufficient to support a finding that Diaz committed the lewd act against Lisbeth by duress and menace.
In light of the Attorney General's argument, Diaz's contends in his reply brief that the evidence was also insufficient to support a finding that he committed the lewd act using duress or menace.
As we will explain, we resolve this appeal by determining that substantial evidence supports a finding that Diaz committed the lewd acts against Lisbeth through duress, thus supporting this conviction under section 288(b)(1).
As used in section 288(b)(1), duress means " 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed, or (2) acquiesce in an act to which one otherwise would not have submitted.' " (People v. Leal (2004) 33 Cal.4th 999, 1004, 1009-1010.)
" 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' . . . [] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (Cochran, supra, 103 Cal.App.4th at pp. 13-14, citations omitted.) "[D]uress involves psychological coercion" and can arise from the "relative ages and sizes" of the perpetrator and the victim. (People v. Senior (1992) 3 Cal.App.4th 765, 775.)[3]
Thus, for example, in Pitmon, supra,170 Cal.App.3d 38, 47-48, 51, substantial evidence supported a finding of duress with respect to an eight-year-old victim in circumstances similar to this case. In Pitmon, the defendant encountered the child victim in a schoolyard, placed the child's hand on his genitals and then led the child to a more isolated area where they orally copulated each other. However, the defendant did not otherwise use physical force. (Id. at pp. 44-45.) Pitmon explained that the defendant was a stranger to the child, was interacting with the child in a relatively isolated location, and "at the time of the offenses, [the child] was eight years old, an age at which adults are commonly viewed as authority figures." (Id. at p. 51.) Pitmon noted that "[t]he disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of [her] relative physical vulnerability." (Ibid.) Thus, concluded Pitmon,duress was established even though the defendant did not use physical force to compel the sex acts. (Ibid.)
Here, the record contains substantial evidence that Diaz committed the lewd acts against Lisbeth through duress. As in Pitmon, supra, 170 Cal.App.3d 38, 51, where the court found duress, Lisbeth was eight years old, and Diaz was a larger, older, authoritative adult, and a stranger, who had Lisbeth held in an isolated location. Diaz kept Lisbeth locked in the car against her will and threatened her by stating that he would not let her go if she did not comply with his demands. Diaz looked mad, and Lisbeth was afraid and kicked and screamed. Lisbeth only complied with Diaz's demands because she wanted to be able to exit the car.
Viewing the situation from "from the perspective of a normal, average eight-year-old" (Pitmon, supra, 170 Cal.App.3d at p. 51), we have little difficulty in concluding that Diaz's actions constituted an implied threat of force, violence, hardship or retribution which prompted Lisbeth to participate in the sex acts against her will. The evidence thus supports a finding that Diaz accomplished lewd acts by using duress.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
McDONALD, J.
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[1] All further statutory references are to the Penal Code.
[2] Indeed, the jury was instructed under CALJIC No. 10.42 that every person who willfully commits any lewd or lascivious act with a child under the age of 14 years "by the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the child or another person," and with the intent to arouse sexual desires, is guilty of a crime under section 288(b)(1). Tracking CALJIC No. 10.42, the jury instructions defined "duress" and "menace" and clarified the type of fear of bodily injury that would satisfy the statute.
[3] Consistent with this case law, the jury was instructed under CALJIC No. 10.42 that "[t]he term 'duress' means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed, or (2) acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and her relationship to defendant, are factors to consider in appraising the existence of duress."
