P. v. Carrillo

Filed 4/6/07 P. v. Carrillo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI,  6, of the Cal. Const.) Affirmed.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Anthony DaSilva and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Alejandro Carrillo was convicted of 16 counts of lewd acts with a child by use of duress, in violation of Penal Code section 288, subdivision (b)(1).^[1]The offenses covered the periods from June to December 2001 (counts 13-16); January to June 2002 (counts 9-12); July to December 2002 (counts 5-8); and January to June 2003 (counts 1-4). Defendant was sentenced consecutively to a midterm sentence of six years for each offense, for a total of 96 years in prison.

On appeal, defendant contends the evidence was insufficient to allow the jury to find duress. He also contends that the trial court erred in imposing a midterm sentence instead of a low term sentence on each of the counts.

I. FACTS

The victim, I.A., was born in 1989. When she was three or four years old, defendant began living with her mother, C. Herrera. Defendant and Ms. Herrera then had three other children together. I.A. regarded defendant as her stepfather.

On September 3, 2003, I.A., then age 14, told her mother that defendant had been molesting her since she was five years old. The mother called police and defendant was arrested.

I.A. testified at trial that defendant began touching her private parts when she was five years old.^[2] He touched her vagina, breasts, and lower back. She also testified that he orally copulated her. According to I.A., defendant touched her vagina and orally copulated her two or three times a month. Defendant frequently told her not to tell anyone about the sexual activities.

I.A. testified that defendant frequently fought with Ms. Herrera and hit her. Ms. Herrera testified that she and defendant would fight, verbally and physically, in front of I.A. Defendant would also grab I.A. and hit her. As a result, I.A. was scared and afraid of her stepfather.

I.A. also testified that on one occasion, when she was 11 or 12, she was crying because she did not want defendant to touch her. Defendant then picked up a stick and threatened to hit her with it.

The investigating officer testified that he interviewed defendant on September 3, 2003. Defendant admitted touching I.A. on the vagina on three separate occasions about two or three years prior to the interview. Defendant denied any oral copulation. However, in a second interview, he said oral copulation was possible because he was under the influence of drugs at the time. He also admitted that on one occasion she was crying and he held a broomstick above his head as if he was [about] to hit her to get her to stop crying.

Another investigator testified that, in a telephone call from jail recorded on September 3, 2003, defendant told Ms. Herrera that he had molested I.A. He told her that he had been under the influence of drugs when the molestations occurred.

I.A. attempted to recant her molestation allegations before trial by telling various investigators that they were lies. An expert witness testified concerning the child sexual abuse accommodation syndrome. She specifically testified regarding the tendency of child victims not to report abuse by their parents. She also testified recanting was common among child victims.

As noted above, the jury believed I.A.s trial testimony and convicted defendant of all charges.

Was There Substantial Evidence of Duress?

Section 288, subdivision (b)(1) provides: Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.^[3]

In finding that defendant violated this section, the jury necessarily found that defendant used duress. Defendant contends the evidence in this case is insufficient to support the jurys conclusion that defendant violated this section by using duress to molest I.A.

Both parties cite People v. Leal (2004) 33 Cal.4th 999, in which our Supreme Court approved a previously adopted definition of duress which had been incorporated into CALJIC No. 10.42. (Id. at p. 1004.) The approved definition was given here, and the jury was instructed 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, one, perform an act which otherwise would not have been performed, or, two, acquiesce in an act to which one otherwise would not have submitted.

Defendant cites People v. Senior (1992) 3 Cal.App.4th 765, but that case does not bolster his argument. The court said: [D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] 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 is relevant to the existence of duress. [Citation.] (Id. at p. 775.)

In Senior, the court found the evidence sufficient to support a finding of duress when there was evidence that defendant subjected the victim to several psychological pressures related to his molestations. First, he was her father and an authority figure to her. Second, during the first molestation he threatened to hit her if she moved. The victim felt he had occasionally hit her and her siblings without reason. Third, defendants pulling the victim back and physically controlling her when she attempted, albeit ineffectually, to pull away during counts one, two, five, six, and seven suggested that greater physical resistance would be answered with greater physical force. (People v. Senior, supra, 3 Cal.App.4th at p. 775, fn. omitted.)

Defendant also cites People v. Schulz (1992) 2 Cal.App.4th 999. In the cited portion, the court says: Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] (Id. at p. 1005.) The court found sufficient evidence of duress.

Although the same factors are relevant here, defendant cites two cases in which the evidence of duress was found to be insufficient. In People v. Espinoza (2002) 95 Cal.App.4th 1287, the court distinguished Schultz on the facts: We agree with this courts conclusion in Schulz that, where the defendant grabbed and restrained the nine-year-old distraught victim, cornered her and used his physical dominance in conjunction with his psychological dominance to overcome her resistance, the lewd act was accomplished by duress. However, the evidence before us is substantially different. Defendant did not grab, restrain or corner L. during the final incident out of which the Penal Code section 288, subdivision (b) count and the attempted rape count arose. L. did not cry, and she offered no resistance. Instead, defendant simply lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts. (People v. Espinoza, supra, at p. 1320.)

Since there was no evidence of an implied threat, there was no duress: The only way that we could say that defendants lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. (People v. Espinoza, supra, 95 Cal.App.4th at p. 1321.) From this, defendant argues that the facts that defendant was I.A.s stepfather, and that she was afraid of him because of occasional violent acts outside of the sexual context, are not enough to establish duress.

The second case cited by defendant in which the evidence of duress was found to be insufficient is People v. Hecker, supra, 219 Cal.App.3d 1238. In that case, There was no evidence . . . that Hecker threatened Gail. Gail admitted she was never consciously afraid Hecker would harm her. She testified that with the exception of Heckers pushing her head down during the act of oral copulation in November 1985, he never used physical force. Although Gail stated she felt pressured psychologically and subconsciously afraid, there was no evidence Hecker was aware of and sought to take advantage of such fear. [Citation.] Psychological coercion without more does not establish duress. At a minimum there must be an implied threat of force, violence, danger, hardship or retribution. (Id. at pp. 1250-1251.)

The People rely on People v. Cochran (2002) 103 Cal.App.4th 8. Cochran is a later decision by the court that decided Hecker. The Cochran court found that some of the language regarding duress in Hecker is overly broad. It then states: The very nature of duress is psychological coercion. 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, particularly if the child is young and the defendant is her parent. We also note that such a threat also represents a defendants attempt to isolate the victim and increase or maintain her vulnerability to his assaults. (People v. Cochran, supra, at p. 15.) Accordingly, [t]he fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victims testimony must be considered in light of her age and her relationship to the defendant. (Id. at p. 14.)

Under the facts here, and considering the totality of the circumstances, we find substantial evidence which allowed the jury to find duress. First, defendant clearly had assumed a fatherly role in the family, even though he was technically an unmarried stepfather. Second, he exercised parental authority by strictly supervising I.A. and her activities. Third, his violent temper and verbal and physical altercations with I.A. and Ms. Herrera made I.A. afraid of him. He just really scared me a lot. Defendant disciplined I.A., became violent with her, and had hit her on occasion. She testified that, I thought he was a very bad stepdad. Fourth, defendant warned her not to tell anyone about the molestation.

There was thus ample evidence of psychological dominance and coercion by the defendant. I.A. also specifically testified, and defendant admitted, that on one occasion, she was crying when defendant was trying to molest her. On that occasion, he threatened to hit her with a broomstick. This was sufficient evidence of an actual threat if she did not acquiesce to the molestation. It has been held that one such threat is sufficient to establish the tone for future molestations. (People v. Senior, supra, 3 Cal.App.4th at pp. 775-776.) Here, the incident apparently occurred before at least some of the incidents alleged in the information.^[4] Accordingly, it could be considered as evidence of duress, and separate threats did not need to be shown for each instance of molestation.

We therefore conclude that there was sufficient evidence to allow the jury to make an implied finding of duress in this case.

II. SENTENCING

As noted above, defendant was given full, consecutive midterm sentences for each of the 16 crimes, for a total sentence of 96 years. He argues that the trial court should have imposed low term sentences for each of the crimes, thus reducing his total sentence to 48 years.^[5]

The trial court is required to impose a midterm sentence in the absence of aggravating or mitigating factors. ( 1170, subd. (b).) The court is not required to state its reasons for a midterm sentence. (People v. Lamb (1988) 206 Cal.App.3d 397, 402.) Nevertheless, the court noted at sentencing that there was no penetration here and stated that the Court feels that the midterm sentence is appropriate so that the ends of justice are met, the defendant is duly punished for the offenses with which hes convicted, that there is closure in this case, and for that reason the Court intends to impose a midterm sentence. With regard to the request for a low term sentence, the court said: [I]t does not appear that . . . there are any factors which would justify the Court in granting this defendant a low term. None of the factors, in the Courts view of the evidence, would indicate to the Court that it would be justified in imposing the low term, nor could I live with myself in doing so. So therefore the request for low term is noted and denied.

Defendant now contends the trial court abused its sentencing discretion by ignoring numerous mitigating factors.^[6] He cites a number of possible factors: (1) the crime was committed because of an unusual circumstance which is unlikely to reoccur (Cal. Rules of Court, rule 4.423(a)(3));^[7](2) the defendant mistakenly believed the conduct was legal (rule 4.423(a)(7)); (3) defendant has no prior record (rule 4.423(b)(1)); (4) defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime (rule 4.423(b)(2));^[8]and (5) defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process (rule 4.423(b)(3)). Defendant also urges that the sentencing judge should have considered the victims desire that he not spend the rest of his life in prison.

Defendant concedes, however, that even one aggravating factor may outweigh all mitigating factors and the single aggravating factor may allow the sentencing judge to impose a midterm sentence. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Nevill (1985) 167 Cal.App.3d 198, 202.) There were possible aggravating factors here: (1) the victim was particularly vulnerable (rule 4.421(a)(3)); and (2) the defendant took advantage of a position of trust or confidence to commit the crime (rule 4.421(a)(11)).

Lamb clearly states the governing principle: Generally, determination of the appropriate term is within the trial courts broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms. [Citation.] One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation [citation]. (People v. Lamb, supra, 206 Cal.App.3d at p. 401.)

Defendant has failed to show that the midterm sentence choice was arbitrary or irrational. Nor has he shown that the trial court failed to consider possible mitigating factors.^[9] We therefore conclude that the trial court did not abuse its wide sentencing discretion by selecting a midterm sentence in this matter.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2]When initially interviewed, I.A. said the touching began when she was eight years old. She testified at trial that the touching began when she was five. However, she also testified that more frequent episodes began at age eight, although defendant had bad intentions before that time. I.A. was age 16 at trial.

^[3] Although the penalty for violating this subdivision is the same as the penalty for violating section 288, subdivision (a), a conviction under subdivision (b)(1) triggers the requirement that full, separate and consecutive sentences be served for each violation. ( 667.6, subds. (c), (d), (e)(5); see generally People v. Hecker (1990) 219 Cal.App.3d 1238, 1249.)

^[4]I.A. was born in June 1989, and was therefore just turning age 12 at the time of the first alleged molestation in June 2001. She testified she was 11 or 12 at the time of the broomstick incident.

^[5]Under the Supreme Courts recent decision in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], the statutory maximum is the midterm, and facts justifying an upper term must be found by a jury. (Id. at p. 868.) Since the sentence here was a midterm, the issues discussed in Cunningham need not concern us here.

^[6]The probation report does not discuss any possible mitigating or aggravating sentencing factors.

^[7] All further references to rules will be to the sentencing rules in the California Rules of Court. As noted above, the California determinate sentencing scheme stated in these rules was recently held to be unconstitutional by the United States Supreme Court.

^[8]Under this heading, defendant discusses his drug use, which he concedes can be either an aggravating or mitigating factor.

^[9]In this regard, the trial court began the sentencing proceeding by stating: [T]he record will reflect that counsel and the Court have had a conference in chambers in regard to this matter and have gone over the pros and cons of sentencing . . . . Defense counsel therefore had an opportunity to argue that any possible mitigating factors were applicable. As noted above, the trial court was not required to state reasons for rejecting counsels arguments.