IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 8, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RAYMUNDO RODRIGUEZ CASTILLO, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super.Ct.No. SWF027691)
The opinion of the court was delivered by: Ramirez P.J.
P. v. Castillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant and appellant Raymundo Rodriguez Castillo of committing a lewd and lascivious act upon the victim, a child under the age of 14 years, in 1997. (Pen. Code, § 288, subd. (b)(1), count 7.) The jury convicted the defendant of five counts of committing a lewd and lascivious act upon the victim's cousin, also a child under the age of 14 years, from 1996 through 2001. (Pen. Code, § 288, subd. (b)(1), counts 1-5.) The jury found, as to count 7, that defendant committed offenses against more than one victim. (Former Pen. Code, § 667.61, subd. (e)(5).) After the jury was unable to reach a verdict on the count 6 charge, that defendant had committed aggravated sexual assault on the victim's cousin by raping her in 1994 (§§ 261, subd. (a)(2), 269, subd. (a)(1)), count 6 was dismissed at the People's request. For each of the six convictions, defendant was sentenced to a consecutive, indeterminate sentence of 15 years to life. This resulted in a total sentence of 90 years to life. Defendant's sole contention is that there was insufficient evidence of the element of force, duress, or fear in count 7. We affirm.
Defendant molested his daughters and granddaughters, including his two granddaughters who are the victims in this case. He does not challenge the sufficiency of the evidence that he used force, duress, or fear, against the victim's cousin. Because defendant only challenges the sufficiency of evidence of one element of one of his convictions, we recite only the evidence relating to that one conviction.
Defendant is six feet tall. After the victim's cousin reported the sexual abuse she incurred growing up in defendant's residences to the police, defendant told a detective that, among other things, he had touched the victim's vagina on three occasions.
While under the age of 14, the victim had visited defendant's house in Temecula, and for a single extended period she stayed there. The victim's family resided in Los Angeles County, and defendant had previously resided in Los Angeles County. On a couple of occasions in both Los Angeles County and in the Temecula residence, defendant molested the victim. The victim was 18 years old at the time of trial, but could not recall her age at the time of the molestations, other than that she was "very young" and still in elementary school. The victim was nervous while testifying, and did not want to state the places she had been touched by the defendant. Defendant had touched her breast area and the outside skin of her private parts. The victim did not like being touched. She remembered being molested to be scary, in part because she was alone. During one of the molestations, defendant showed the victim his "private areas." When defendant would molest the victim, he would tell her "not to say anything." The victim never told her parents because she was scared, and did not know what her parents would think or if they would just get mad. The victim would try to avoid being around defendant, but sometimes when nobody was around he would "stop" her to get her alone. The victim did not remember ever being molested while her cousin was present. However, her cousin testified that on one occasion, the victim was in the room with her and defendant, defendant covered her with a blanket and molested her, and then covered the victim with a blanket and the cousin "didn't see it, but . . . knew what was going on."
After defendant rested, he moved for acquittal (Pen. Code, § 1118.1) on all counts. In particular, defendant challenged count 7 on the grounds that the victim's testimony was vague. The trial court ruled, "In looking at the evidence that's been presented in this matter, the Court believes that we are beyond that point where it would sustain a conviction; therefore, I'm going to deny the 1118[.1] on all grounds."
The People stated at closing, "If you look at [the victim's] testimony out of all the girls, she was clearly the most still affected by what had happened to her. Her head was down at points. She was embarrassed. She was shy having to talk to a group of strangers--no offense--about this incident. [¶] So in talking about the force, she couldn't give a lot of details. She couldn't remember much, probably because she doesn't want to remember much. Are these details that a young girl wants to remember about how she was touched for the very first time in these areas of her body by her own grandfather? Again, these are details no child is going to want to remember. [¶] But again, it's the 'or' part of this. So as long as you find there is either force, duress, or fear, that's all that is required, ladies and gentlemen. And if you look at the duress and the direct threats, the implied threats that we already talked about that apply to [the victim's cousin], it was also applied to [the victim]. [¶] Consider the age and the relationship of these two. The age. She was in elementary school while this was all going on. This was her grandfather, and so he was taking advantage of this situation. The authority, the power that he had over her to get her to submit to something she wouldn't otherwise do--and those are the keywords, getting her to submit to something she otherwise wouldn't do. [¶] And again, you look at the fact that all these girls fought back when they did get to that certain age where they started to realize this is not normal behavior."
II. CHALLENGED ELEMENT
Defendant contends there was insufficient evidence to support the element of force, fear, or duress, in count 7. The People contend the evidence supports a finding of force or duress. We agree that the evidence is sufficient as to duress, and so do not address the presence of force.*fn1
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, 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.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.] 'In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See People v. Story (2009) 45 Cal.4th 1282, 1299.) The scope of the evidence includes both the evidence in the record as well as "reasonable inferences to be drawn therefrom." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.)
The jury was properly instructed that 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.' [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1004.) " ' "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." [Citation.]' [Citations.] '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.' [Citations.]" (People v. Veale (2008) 160 Cal.App.4th 40, 46 [Fourth Dist., Div. Two].) " '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.]" (People v. Senior (1992) 3 Cal.App.4th 765, 775.) Notwithstanding victim testimony that no force or threats were involved, it has been held that sufficient evidence of duress existed where the victim was eight years old at the time of the offenses, because at that age " 'adults are commonly viewed as authority figures' " and " '[t]he disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of his relative physical vulnerability.' " (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579.) Furthermore, "when the victim is as young as [nine years old] and is molested by her father in the family home, in all but the rarest cases duress will be present." (People v. Cochran (2002) 103 Cal.App.4th 8, 16, fn. 6.)
The victim, a very young child, did not like being molested by her six-foot-tall grandfather, was afraid to tell her parents, and was scared during the molestations. Defendant told the victim, "not to say anything." These comments, in addition to the size disparity between the six-foot-tall defendant and the elementary-school-aged victim, and defendant's position of authority as the victim's grandfather, were sufficient to constitute an implied threat of hardship that coerced the victim's acquiescence to being molested. (See generally People v. Veale, supra, 160 Cal.App.4th at p. 47.) While defendant only told the victim "not to say anything" without specifying any potential consequence, the comments served to isolate the victim and ensure she had no recourse but to acquiesce to being molested. (See People v. Senior, supra, 3 Cal.App.4th at p. 775 ["A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition"].) Accordingly, there was sufficient evidence upon which the jury could rely in finding duress.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: HOLLENHORST J. McKINSTER J.