P. v. Elias
Filed 12/12/13 P. v. Elias CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff and Respondent,
v.
PABLO ELIAS,
Defendant and Appellant.
E057283
(Super.Ct.No. INF10002384)
OPINION
APPEAL from
the Superior Court
of
County. Charles Everett
Stafford, Jr., Judge.
Affirmed.
Thomas
Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa
Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
A jury
convicted defendant Pablo Elias of continuous sexual abuse of Jane Doe #1 and
Jane Doe #2, two of his nieces who were under the age of 14 (Pen. Code,
& 4 [Jane Doe #2]), one count of rape of Jane Doe #1 by force, fear, or
threats (§ 261, subd. (a)(2); count 2), one count of sodomy of Jane Doe #1 by
force, threats, or fear (§ 286, subd. (c)(2); count 3), and one count of
aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(5); count
5). The jury also rendered true findings
with respect to counts 1 and 4 that defendant continuously sexually abused both
victims at the same time and in the same course of conduct (§ 1203.066, subd.
(a)(7)), and that defendant was convicted of more than one sex offense against multiple
victims (§ 667.61, subd. (e)(4)).
name="_ftnref2" title="">[2] The trial court sentenced defendant to state
prison for a determinate sentence of 32 years plus an indeterminate sentence of
30 years to life, and stayed imposition of a 15-year sentence on count 3
pursuant to section 654. Finally, the
court ordered defendant to register as a sex offender upon his release from
prison.
In this
appeal, defendant contends the record lacks substantial
evidence to support his convictions under counts 2 and 3 of raping and
sodomizing Jane Doe #1 by means of duress or fear of immediate bodily injury. We conclude otherwise and therefore we affirm
the judgment.
Statement of Facts
Defendant
started sexually abusing his niece Jane Doe #1 when she was about 5 years old. On a continuous basis over a number of years,
defendant entered the bedroom where Jane Doe #1 and her siblings were sleeping
and removed Jane Doe #1’s clothing while she slept, touched her breasts, rubbed
her vagina, and forced her to touch his penis.
As defendant did this, Jane Doe #1 was scared, could not move, and felt
as if she could not breathe. Jane Doe #1
feared she would “get[] hurt or something worse†might happen, “like he might go
to my sister or brother and do something to them.†On each occasion that defendant molested Jane
Doe #1, he told her not to tell anybody about what he did and threatened to
accuse Jane Doe #1 of seducing him if she did tell someone. Jane Doe #1 did not tell anyone about these
incidents because she feared her father would kill defendant and go to jail.
When Jane Doe #1 was about 15 or 16
years old, she awoke to find defendant twisting her nipples. She “froze†out of fear and felt like she
“couldn’t move.†From behind, defendant
penetrated Jane Doe #1’s vagina and anus with his penis. Jane Doe #1 felt pain and cried as defendant
penetrated her. Defendant ejaculated on
Jane Doe #1, and tried to penetrate her again in her vagina and anus. The next morning Jane Doe #1 cleaned blood
and semen from herself. Jane Doe #1 did
not tell her parents right away about what happened because her mother “always
wanted [her] to be a virgin, . . . .â€
Record Contains Substantial Evidence That Defendant Raped and Sodomized Jane
Doe #1 by Means of Duress or Fear of Immediate Bodily Injury
“The standard of appellate review
for determining the sufficiency of the evidence is settled. On appeal, ‘“we review the entire record in
the light most favorable to the judgment to determine whether it contains
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.†[Citation.]’
[Citation.] In conducting such a review, we ‘“presume[]
in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.†[Citation.]’ [Citations.]â€
(People v. Lee (2011) 51
Cal.4th 620, 632.) “In conducting this
analysis, we draw all reasonable inferences necessary to support the judgment. [Citations.]â€
(People v. Stitely (2005) 35
Cal.4th 514, 543.)
As pertinent here, rape “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.†(§ 261, subd. (a)(2).) “‘[D]uress’ 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.†(Id.,
subd. (b).)
“Any person who commits an act of
sodomy 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.â€
(§ 286, subd. (c)(2).) Although
section 286 does not define “duress,†the trial court instructed the jury with
CALCRIM No. 1030 which sets forth the elements of sodomy and incorporates the
definition of “duress†from forcible rape.
The prosecution tried this case on
the theory that defendant raped and sodomized Jane Doe #1 by means of duress or
fear of immediate injury.
name="_ftnref3" title="">[3] “‘ . . . [T]he reviewing
court . . . looks to the circumstances of the case,
including the presence of verbal or nonverbal threats, or the kind of force
that might reasonably induce fear in the mind of the victim, to ascertain
sufficiency of the evidence of a conviction under section 261, subdivision
[(a)](2).’ [Citation.]’ Additionally, the complainant’s conduct must
be measured against the degree of force manifested or in light of whether her
fears were genuine and reasonably grounded.’
[Citation.] ‘In some
circumstances, even a complainant’s unreasonable fear of immediate and unlawful
bodily injury may suffice to sustain a conviction under section 261,
subdivision [(a)](2), if the accused knowingly takes advantage of that fear in
order to accomplish sexual intercourse.’
[Citation.]†(
856 (Iniguez).)
“Thus, the element of fear of
immediate and unlawful bodily
injury has two components, one subjective and one objective. The subjective component asks whether a
victim genuinely entertained a fear of immediate and unlawful bodily injury
sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the
extent or seriousness of the injury feared is immaterial. [Citation.]
[¶] In addition, the prosecution
must satisfy the objective component, which asks whether the victim’s fear was
reasonable under the circumstances, or, if unreasonable, whether the
perpetrator knew of the victim’s subjective fear and took advantage of it. [Citation.]
The particular means by which fear is imparted is not an element of
rape. [Citation.]†(Iniguez,
supra, 7 Cal.4th at pp.
856-857.)
“[T]he prosecution [is] not
required to elicit from [the victim] testimony regarding what precisely she
feared. ‘Fear’ may be inferred from the
circumstances despite even superficially contrary testimony of the victim. [Citations.]â€
(Iniguez, supra, 7 Cal.4th at p. 857.)
As our Supreme Court observed in Iniguez,
“[a]ny man or woman awakening to find himself or herself in this situation
could reasonably react with fear of immediate and unlawful bodily injury. Sudden, unconsented-to groping, disrobing,
and ensuing sexual intercourse while one appears to lie sleeping is an
appalling and intolerable invasion of one’s personal autonomy that, in and of
itself, would reasonably cause one to react with fear. [Citations.]â€
(Id. at p. 858.)
We have no difficulty in concluding
there is substantial evidence that defendant raped and sodomized Jane Doe #1
through duress and fear of immediate physical
harm. Defendant entered Jane Doe #1’s
bedroom while she slept, pulled off her clothing, fondled her breasts, and from
behind penetrated her vagina and anus against her will. As defendant assaulted her, Jane Doe #1 “frozeâ€
because she was scared, cried, and was in physical pain from the penetration. Moreover, for ten or more years before defendant
continuously sexually abused Jane Doe #1. Jane Doe #1 feared that defendant would
physically harm her or abuse one of her siblings, which he in fact did to Jane
Doe #2. Viewing these circumstances in
their totality, a reasonable jury could conclude beyond a reasonable doubt that
defendant accomplished the rape and sodomy of Jane Doe #1 by duress because she
reasonably feared for her own physical safety. For the same reasons, we conclude there is substantial
evidence from which a jury could conclude defendant raped and sodomized Jane
Doe #1 through fear of immediate physical injury.
Defendant contends
whereas the assailant there was a complete stranger, he is Jane Doe #1’s
uncle. According to defendant, Jane Doe
#1 did not reasonably fear for her physical safety because she “previously
engaged in sexual encounters†with him – albeit nonconsensual encounters – but
he “was never violent with her†and she never “indicat[ed] to [him] that she
was afraid of him.†That Jane Doe #1 was
continuously abused sexually by defendant before he raped and sodomized her
does not diminish the terrifying nature of the sudden and unwanted assault. (Iniguez,
supra, 7 Cal.4th at p. 858.) Familiarity with an assailant is no comfort
to the victim. In any event, Jane Doe #1
testified that she froze in fear as defendant assaulted her and she experienced
actual physical pain during the assault.
(Id. at p. 857.)
Defendant also argues that Jane Doe
#1 testified the reason she was afraid during the rape was because defendant
threatened to accuse her of seduction if she told anyone, and because she feared
her father would kill defendant and go to jail if he found out. Not so.
Jane Doe #1 gave these as reasons why she did not tell anyone of the
continuous sexual abuse that started when she was about 5 years old. Her testimony that she froze in fear, cried,
and was in physical pain, in addition to the fact that she bled from the
assault, are ample evidence of fear of physical injury. Moreover, that in closing arguments the
prosecutor discussed Jane Doe #1’s fear about her father killing defendant, in
the context of the discussion of duress and fear for rape and sodomy, is
irrelevant. The trial court properly
instructed the jury that the arguments of counsel are not evidence (CALCRIM No.
222), and we must presume the jury understood and applied that instruction (
566, fn. 9).
Finally, that Jane Doe #1 never
told defendant she was scared of him is irrelevant. “There is no requirement that the victim say,
‘I am afraid, please stop,’ when it is the defendant who has created the
circumstances that have so paralyzed the victim in fear and thereby submission. [Fn. omitted.] [Citation.]â€
(Iniguez, supra, 7 Cal.4th at p. 859.)
Jane Doe #1 reasonably experienced fear of physical injury as defendant
raped and
sodomized her. She
was not required to verbalize that fear.
Disposition
The
judgment is affirmed.
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
references are to the Penal Code.
indicates that the jury made its multiple victim finding pursuant to section
667.61, subdivision (e)(5), but on the date of its finding the correct
provision was contained in section 667.61, subdivision (e)(4). (Stats. 2010, ch. 219, § 16, eff. Sept. 9,
2010.)
