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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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