Filed 4/19/17 P. v. Aguiar CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR AGUIAR, SR.,

Defendant and Appellant.

F070446

(Super. Ct. No. MCR044726)


OPINION

APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Oscar Aguiar, Sr., of six counts of forcible rape of his foster daughter, J.M., after she turned 14 years old and one count of committing a lewd and lascivious act on J.M. before she turned 14. (Pen. Code, §§ 261, subd. (a)(2), 288, subd. (a).) While appellant denied engaging in any kind of sexual activity with J.M. before she turned 14 years old, he admitted to having a sexual relationship with J.M. after she turned 14. However, appellant testified that this relationship was consensual.
Appellant challenges the rape convictions claiming the evidence is insufficient to prove that he forcibly raped J.M. Appellant further argues the trial court erred in refusing to instruct the jury on unlawful intercourse with a minor (§ 261.5) as a lesser included offense.
The record supports the forcible rape convictions. However, the trial court erred when it refused to instruct the jury on unlawful intercourse with a minor. Nevertheless, this error was not prejudicial. Accordingly, the judgment will be affirmed.
BACKGROUND
1. Prosecution case.
When J.M. was about six years old, she and her nine-year-old brother went to live with appellant and his wife, C.A., as foster children. Appellant and C.A. had three natural children and three foster children besides J.M. and her brother. C.A. also ran a daycare out of the home.
a. J.M.’s testimony.
J.M. testified that appellant sexually abused her from the time she was six years old until she was 15.
At first, appellant would pull J.M. by her hand and take her to his closet. There, appellant would feel J.M.’s breast and vaginal areas, sometimes over her clothes and sometimes underneath her clothes. This abuse occurred once or twice a week when no one else was home.
A few years later, when J.M. was eight or nine years old, appellant began “dry humping” J.M. J.M. described “dry humping” as appellant putting his penis on top of her vagina and moving up and down. Sometimes J.M. would be wearing clothes and other times she would be naked. However, appellant was always naked and J.M. could see his penis. When appellant finished, he would ejaculate into a towel or on J.M.’s stomach. Afterwards, J.M. would go to her room and cry.
J.M. testified that when she was 11 years old appellant took her virginity. Appellant called J.M. upstairs and told her to go to the closet. J.M. lied down and appellant kissed her on her face and neck. Appellant took his clothes off, began touching J.M. all over her body, and pulled down J.M.’s pants and underwear. Appellant then told J.M. he was going to put his penis into her vagina. J.M. told appellant she did not want to but appellant disregarded her wishes. It was very painful and J.M. told appellant to stop. Appellant refused and responded that it was going to hurt for a little bit. After about a minute, appellant pulled out and ejaculated into a towel.
Thereafter, appellant had sex with J.M. every week. When J.M. wanted something, such as school supplies or to visit her friends or her natural mother, appellant would tell J.M. “you are going to owe me one.” J.M. felt she had to have sex with appellant in exchange for these things.
J.M. constantly told appellant she did not want to have sex with him. Appellant responded that they were not going to stop until he wanted to stop. Appellant also repeatedly told J.M. not to tell anyone because he would kill himself before he would go to prison. He began telling J.M. this when she was 11 and started “fighting him” to get out of having sex.
J.M. got tired of trying to fight appellant. Instead, she would remain motionless and feel nothing during intercourse. Appellant would instruct J.M. to hug and kiss him but she would only dangle her arms on his back.
J.M. left appellant’s home for the first time in February 2012. J.M. did not want to be around appellant and was tired of it. J.M. was also getting into arguments with C.A. J.M. felt C.A. did not treat her as well as she did her natural children. J.M. was also angry with C.A. because C.A. did not know what appellant was doing to her.
In April 2012, J.M. returned to appellant’s home because C.A. was sick and needed help taking care of the daycare children. However, J.M.’s relationship with C.A. fell apart and J.M. permanently moved out in September 2012. The last time appellant had intercourse with J.M. was about three weeks before she left the house.
In October 2012, J.M. reported the sexual abuse to the police.
2. Defense case.
The defense presented testimony from several individuals who had resided with or visited appellant and J.M. during the time these incidents took place. They all testified that J.M. did not appear to fear appellant and acted normally around him. Some witnesses described appellant and J.M. as having a typical father-daughter relationship.
a. Appellant’s testimony.
Appellant initially denied having had any sexual contact with J.M. but later admitted to having sex with J.M. after she turned 14 years old. Appellant had sex with J.M. six times and described all of the acts as consensual. According to appellant, the relationship started through an “agreement” between the two of them.
Appellant stated they first kissed on two occasions when J.M. was 14 years old. Appellant testified the first time they had sex was in his bedroom when J.M. asked him to help get permission from C.A. to go see her friends. J.M. told appellant that she would “pay [him] one” and thereafter J.M. voluntarily went to the bedroom. Appellant denied telling J.M. she would owe him one if he let her go see her friends.
Appellant denied engaging in any sexual conduct with J.M. before she turned 14 years old. He denied using force, leading J.M. by the hand to the closet, or using sex as a bargaining tool in exchange for allowing her to do things. Appellant claimed they used condoms provided by J.M. except for the last time when J.M. wanted him to ejaculate inside of her because she was “using a patch.”
3. The verdict.
Appellant was charged with lewd and lascivious acts with a child under the age of 14 by use of force, violence, duress, menace, and threat of great bodily harm (§ 288, subd. (b)(1)) in counts 1 through 3 and 5 through 6; aggravated sexual assault of a child by means of rape (§ 269, subd. (a)(1)) in count 4; and forcible rape (§ 261, subd. (a)(2)) in counts 7 through 12. Counts 7 through 12 further alleged that “the victim was a child, 14 years of age [or] older.”
The jury found appellant not guilty of counts 1 through 3 and not guilty of the lesser included offenses of committing a non-forcible lewd and lascivious act and simple assault. The jury was unable to reach a verdict on the lesser included offense of simple battery on counts 1 through 3.
The jury was unable to reach a verdict on count 4, aggravated sexual assault of a child by means of rape, and its lesser included offenses.
The jury found appellant not guilty of count 5 but was unable to reach a verdict on any of the lesser included offenses relating to that count.
The jury found appellant not guilty of count 6 but guilty of the lesser included offense of committing a non-forcible lewd and lascivious act on a child under the age of 14 years.
The jury found appellant guilty of forcible rape on counts 7 through 12.
The trial court sentenced appellant to consecutive terms in prison of eight years on count 6 and 11 years on counts 7 through 12 for an aggregate sentence of 74 years. On the People’s motion, the trial court dismissed the remaining counts.
DISCUSSION
1. Substantial evidence supports the forcible rape convictions.
Forcible rape is defined as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator” “[w]here 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.” (§ 261, subd. (a)(2).)
Appellant asserts there was insufficient evidence to show that he forcibly raped J.M. and therefore we must reverse his convictions on counts 7 through 12. Appellant argues that he did not impel J.M.’s participation through implied threats and thus the prosecution did not establish duress.
a. Standard of review.
In assessing the sufficiency of the evidence, the appellate court reviews the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.” (People v. Yeoman (2003) 31 Cal.4th 93, 128.) Thus, reversal based on insufficient evidence is unwarranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.)
b. The record supports finding rape by means of duress.
For purposes of section 261, “‘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.” (§ 261, subd. (b).)
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. Rather, the victim’s testimony is considered in light of the total circumstances, including the victim’s age and relationship to the defendant. (§ 261, subd. (b); People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.) “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. Cochran, supra, at p. 14.) Thus, duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
Appellant relies on People v. Hecker (1990) 219 Cal.App.3d 1238 to support his claim that the evidence is insufficient to show duress. In Hecker, the victim was the defendant’s stepdaughter. The alleged offenses occurred when the victim was 12 or 13 years old. The victim testified the defendant “forced” her but did not use physical force. She stated she was not consciously afraid that the defendant would harm her. Rather, she felt pressured psychologically and “‘subconsciously afraid.’” The defendant also warned the victim not to tell anyone about the molestation because “‘[i]t would ruin his marriage and his navy career [and] he would be put in jail for a long time.’” (Id. at pp. 1241-1242.)
Under these circumstances, the Hecker court concluded the evidence was insufficient to support a conviction for a lewd and lascivious act on a child under the age of 14 years accomplished by means of duress in violation of section 288, subdivision (b)(1). The court opined that the victim feeling “‘pressured psychologically’” and “‘subconsciously afraid’” was not enough. The court stated, “‘[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.’” (People v. Hecker, supra, 219 Cal.App.3d at pp. 1250-1251, fn. omitted.) The court further found that the defendant’s warnings to the victim not to disclose the molestations because it would ruin his marriage and career established “merely the threat of hardship directed at ‘later disclosure of the sex acts and not [the failure to perform] the sex acts themselves.’” (Id. at p. 1251, fn. 7.)
Accordingly, the Hecker court reduced the defendant’s section 288, subdivision (b) conviction to a section 288, subdivision (a) conviction. The court explained that, in the context of section 288, the concept of force is not necessary to prove a lack of consent; “instead it simply serves to distinguish certain more culpable nonconsensual sex acts from others.” (People v. Hecker, supra, 219 Cal.App.3d at p. 1249.) The court distinguished section 288, subdivision (b) from the crime of rape noting that with rape, force is often “viewed as playing ‘merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim’s will.’” (People v. Hecker, supra, at p. 1249.)
Similarly, in People v. Espinoza (2002) 95 Cal.App.4th 1287, the court, relying on People v. Hecker, concluded that the evidence did not establish the duress required for a conviction of forcible lewd conduct on a child (§ 288, subd. (b)(1)) where the 12-year-old victim was very scared of the defendant, her father, but not directly or impliedly threatened. (People v. Espinoza, at pp. 1292, 1321.) Thus, the court reduced the defendant’s section 288, subdivision (b) conviction to conviction for violating section 288, subdivision (a). (People v. Espinoza, at pp. 1321-1322.)
However, the same court that decided People v. Hecker disagreed with this earlier opinion in People v. Cochran. The Cochran court stated it believed the language used in Hecker regarding psychological coercion was overly broad. “A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress .…” (People v. Cochran, supra, 103 Cal.App.4th at p. 15.) The court further noted such threats also represent a defendant’s attempt to isolate the victim and increase or maintain her vulnerability to his assaults. (Ibid.)
Here, appellant was J.M.’s foster father and, by the time he committed the acts at issue, had been her foster father for approximately eight years. Thus, appellant was in a position of dominance and authority. Appellant used his authority to compel J.M. to comply with his sexual demands and required J.M. to “owe” him sex in exchange for certain necessary items, such as school supplies, or other small things she wanted. Appellant further conditioned giving J.M. permission to visit with her friends or her natural mother on J.M. having sex with him. Additionally, appellant threatened to kill himself if J.M. revealed the molestation.
Under these circumstances, a reasonable jury could have found that appellant’s demands and threats to kill himself constituted implied threats of retribution intended to psychologically coerce J.M. into a sexual relationship. J.M. complied due to appellant’s psychological control over her, not her freely given consent. Viewing the evidence in the light most favorable to the judgment, appellant’s abuse of authority and threats to kill himself, in the context of J.M.’s status as appellant’s foster daughter, support a finding that J.M. only had sex with appellant under duress.
c. The record supports finding rape by means of force.
The gravamen of forcible rape is a sexual penetration accomplished against the victim’s will. Thus, with rape by means of force, the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. (People v. Griffin (2004) 33 Cal.4th 1015, 1027.) It is not necessary to show the defendant used substantially different or substantially greater force than the physical force normally inherent in an act of consensual sexual intercourse. (Id. at p. 1023.) Rather, the degree of force is immaterial so long as it supports a finding that the penetration occurred without the victim’s consent. (Id. at p. 1024.) The force “‘“‘may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.’”’” (Ibid.)
As discussed above, the concept of force in the context of rape is distinguishable from the force required for a conviction for a lewd and lascivious act on a child under the age of 14 years accomplished by means of force or duress in violation of section 288, subdivision (b)(1). Force is not necessary to prove a lack of consent under section 288, subdivision (b)(1) but, rather, serves to distinguish a more culpable nonconsensual sex act from others. (People v. Hecker, supra, 219 Cal.App.3d at p. 1249.) In contrast, force in the crime of rape is simply evidence that the intercourse was nonconsensual. (Ibid.)
Here, the evidence supports a finding of rape by force. J.M. constantly told appellant she did not want to have sex with him and he told her they were not going to stop until he wanted to stop. J.M. would sometimes cry and try to push appellant away but appellant would continue. On other occasions, J.M. would remain passive and motionless during intercourse demonstrating she did not consent to the acts. Thus, the evidence, viewed in the light most favorable to the judgment, is sufficient to establish that the intercourse was against J.M.’s will and therefore was rape by force.
2. The trial court should have instructed the jury on unlawful sexual intercourse as a lesser included offense.
Counts 7 through 12 charged appellant with forcible rape. Each count further alleged “that the victim was a child, 14 years of age [or] older.” The verdict forms for these counts each referred to the offense as “rape by force, fear, violence, duress, or menace upon [J.M.], a child age fourteen or older.”
Appellant requested the trial court to instruct the jury on unlawful sexual intercourse (§ 261.5) as a lesser included offense of the rape counts. The trial court refused, ruling that unlawful sexual intercourse was not a lesser included offense of rape.
An offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses. (People v. Birks (1998) 19 Cal.4th 108, 117.) Even absent a request, a trial court must instruct a criminal jury on any lesser offense necessarily included in the charged offense. (Id. at p 112.) “‘[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither “harsher [n]or more lenient than the evidence merits.” [Citation.]’” (People v. Smith (2013) 57 Cal.4th 232, 239-240.)
Courts apply two tests to determine whether an uncharged offense is necessarily included within a charged offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) The “elements” test is satisfied if the statutory elements of the greater offense include all the statutory elements of the lesser offense. (Ibid.) The “accusatory pleading” test is satisfied if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense. (Id. at pp. 1227-1228.)
The trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation includes instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (Ibid.) Whenever evidence that the defendant is guilty only of the lesser offense “is ‘substantial enough to merit consideration’ by the jury,” instructions on the lesser included offense are required. (Id. at p. 162.) ‘“Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could … conclude[]”’ that the lesser offense, but not the greater, was committed.” (Ibid.) However, courts should not evaluate the credibility of witnesses. That is a task for the jury. (Ibid.)
On appeal, we review the trial court’s failure to instruct on a lesser included offense de novo. In doing so, we view the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Appellant argues that, under the accusatory pleading test, unlawful sexual intercourse was a lesser included offense to the forcible rapes charged in counts 7 through 12 and substantial evidence supported giving the instruction. Therefore, appellant asserts, the trial court erred in refusing to give the requested instruction.
Section 261.5, subdivision (a), defines unlawful sexual intercourse as “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” A “‘minor’ is a person under the age of 18 years.” Subdivisions (b), (c) and (d) specify whether the offense is a misdemeanor or a felony depending on the age of the perpetrator and set forth the varying punishments.
Respondent argues unlawful sexual intercourse was not a lesser included offense to the forcible rapes under the accusatory pleading test because appellant’s age was not alleged in the information. Respondent relies on People v. Woods (2015) 241 Cal.App.4th 461 to support its position.
In People v. Woods, the court held that the offense of unlawful intercourse with a minor requires evidence of the defendant’s age whereas the defendant’s age is not an element of forcible rape. Therefore, because the information in Woods did not include allegations regarding the defendant’s age, the court held that unlawful sexual intercourse was not a lesser included offense of the charged forcible rapes under the accusatory pleading test. (People v. Woods, supra, 241 Cal.App.4th at pp. 478-479.)
However, the Woods court emphasized that the allegations as to the substantive offense of forcible rape also did not include the allegation that the victim was a minor. Rather, the information specified the victim’s age in separate allegations pertaining to an alternative sentencing scheme, i.e., “one strike” allegations. (People v. Woods, supra, 241 Cal.App.4th at pp. 479-480.) The court held that one strike allegations were not part of the accusatory pleading, but rather were akin to enhancement allegations. Therefore, the victim’s age was not to be considered in determining whether the accusation encompassed a lesser included offense. (Id. at pp. 480-481.)
In contrast here, the forcible rape charges included the allegation that J.M. was “a child, 14 years of age [or] older.” Further, evidence was presented at the preliminary hearing that appellant was born on March 6, 1968. The accusatory pleading test includes the evidence adduced at the preliminary hearing. (People v. Ortega (2015) 240 Cal.App.4th 956, 967.) Thus, the forcible rape charges encompassed unlawful sexual intercourse.
Further, viewing the evidence in the light most favorable to appellant, there was sufficient evidence to support giving the lesser included offense instructions. Appellant admitted to sexual intercourse with J.M. but testified that it was consensual. Accordingly, the trial court erred in refusing to instruct the jury on unlawful sexual intercourse. (§ 261.5.)
3. The trial court’s failure to instruct on unlawful sexual intercourse was not prejudicial.
The appellate court reviews the failure to instruct on a lesser included offense for prejudice under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836). (People v. Breverman, supra, 19 Cal.4th at p. 178.) Accordingly, reversal is required only if, “‘after an examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred.” (Ibid.) A “‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) In other words, the probability is sufficient to undermine confidence in the outcome. (Ibid.) Thus, appellate review under Watson focuses not on what a reasonable jury could do, but what such jury is likely to have done in the absence of the error. (People v. Breverman, supra, 19 Cal.4th at p. 177.)
Appellant argues the error was prejudicial. Appellant points to the jury verdicts and asserts it is clear the jury did not accept the prosecution’s version of the facts in total. Appellant stresses that the jury acquitted appellant of most of the numerous sexual acts alleged to have occurred before J.M. turned 14 years old. On other counts, the jury could not reach a verdict. Further, on the one conviction for an act that occurred before J.M. turned 14, the jury convicted appellant of the lesser charge of a non-forcible lewd and lascivious act on a child rather than a forcible lewd and lascivious act. From this appellant posits that the jury had doubts regarding whether appellant used force.
Contrary to appellant’s interpretation, the verdicts support the conclusion that the error was not prejudicial. The acquittals and failures to reach a verdict on certain counts demonstrate the jury was capable of acquitting or hanging if it had a doubt as to appellant’s guilt. Further, the various acquittals and convictions show that, as to each count, the jury carefully analyzed whether appellant used force or duress.
Moreover, the fact that the jury found the lewd and lascivious act that occurred before J.M. was 14 years old was non-forcible does not indicate the jury was likely to have found the sex acts taking place after J.M. turned 14 were consensual. As previously discussed, forcible rape only requires that the defendant accomplish sexual penetration against the victim’s will. The jury was instructed that “[t]o consent, a woman must act freely and voluntarily and know the nature of the act” and that “[i]t is not required that she physically resist or fight back in order to communicate her lack of consent.” The jury was also instructed that “[t]he defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse.” J.M’s testimony supports finding a lack of consent. Further, the jury’s finding that appellant committed a non-forcible lewd and lascivious act before J.M. turned 14 does not undermine the forcible rape convictions. Force in the context of a lewd and lascivious act does not prove a lack of consent but, rather, serves to distinguish a more culpable sex act from others.
In sum, it is clear from the verdicts that the jury thoroughly and carefully analyzed each count and was willing to acquit if it had a doubt as to appellant’s guilt. Under these circumstances, the trial court’s failure to instruct the jury on unlawful sexual intercourse does not render a more favorable verdict reasonably probable.
DISPOSITION
The judgment is affirmed.

LEVY, Acting P.J.
WE CONCUR:



POOCHIGIAN, J.



MEEHAN, J.