Filed 5/24/13 P. v. Cabrera CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B239552

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. NA066657)
         v.

HUGO ELISEO CABRERA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
Ferrari, Judge. Modified and affirmed with directions.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Blythe J. Leszkay,
Supervising Deputy Attorney General, and Toni R. Johns Estaville, Deputy Attorney
General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant Hugo Eliseo Cabrera appeals from the judgment entered following a
jury trial in which he was convicted of two counts of aggravated sexual assault on a child
under the age of 14 (Pen. Code, § 269, subd. (a); undesignated statutory references are to
the Penal Code), one of which was based upon rape in violation of section 261,
subdivision (a)(2), and the other upon sexual penetration, in violation of section 289,
subdivision (a); one count of committing a lewd act on a child (§ 288, subd. (a)); and one
count of sexual penetration of a child under the age of 14 (§ 289, subd. (j)). Defendant
contends that the evidence was insufficient to support his convictions of aggravated
sexual assault on a child under the age of 14 and that the trial court erred by failing to
give a unanimity instruction. We agree with defendant‘s sufficiency of evidence
contention and reduce his convictions in the those counts and strike the resulting
duplicative count 4, which the parties agree was based upon the same act of penetration as
count 2.
                                     BACKGROUND
       Count 1 charged defendant with committing an aggravated sexual assault on a
child under the age of 14 by committing rape in violation of section 261, subdivision
(a)(2) ―[o]n or about May 12, 2004.‖ Count 2 charged defendant with committing an
aggravated sexual assault on a child under the age of 14 by sexual penetration in violation
of section 289, subdivision (a) ―[o]n or about May 12, 2004.‖ Count 3 charged defendant
with committing a lewd act on a child under the age of 14 in violation of section 288,
subdivision (a) ―[o]n or between May 1, 2004 and May 31, 2004.‖ Count 4 charged
defendant with sexual penetration of a child under the age of 14 in violation of section
289, subdivision (j) ―[o]n or between May 1, 2004 and May 31, 2004.‖ Four other counts
set forth in the information were dismissed before trial as improperly filed because they
exceeded the scope defendant‘s extradition.
       The victim, Maria C., was born in March of 1991. She was 20 at the time of trial
in January 2012. She testified that defendant was her ―natural‖ father, although the
prosecution‘s DNA expert later opined that defendant was not Maria‘s biological father.


                                              2
Maria testified that when she was in the fourth grade, defendant began touching her
breasts with his hands and inserting his fingers and penis in her vagina. Maria was 9 and
10 years old in 2000 and 2001 when she was in the fourth grade, but she was not
specifically asked and did not testify how old she was when defendant commenced his
sexual conduct against her. The conduct always occurred in their home, and it occurred
―[o]nce a month probably.‖ Maria never told anyone about it because she was
embarrassed. Later during her testimony, the prosecutor asked Maria again why she
never told anyone, and Maria said, ―Because he told me not to.‖ Years later, Maria told
Los Angeles Police Department Detective Charles Martin that she tried ―to inform her
mother when it first began about the touching initially and her father, Hugo, convinced
the mother that she was dreaming, so she didn‘t feel her mother was believing her, so she
never tried to tell her any more.‖
          When Maria was in the fifth grade, defendant went away for two years. (Although
not disclosed to the jury, defendant was serving a prison term for spousal abuse.) The
parties stipulated that from 2002 to early March 2004, defendant could not contact Maria
and had no access to her.
          In March of 2004, when Maria was in the seventh grade and 13 years old,
defendant returned home. ―Probably right away,‖ he resumed molesting her in the ―same
molestation pattern that he had done before he went away.‖ He touched her breasts,
―raped‖ her, and ―insert[ed] his finger inside‖ her. This occurred about once a month.
Maria became pregnant and, after nine months of pregnancy, she gave birth to her
daughter M. on February 7, 2005. Maria testified that defendant was M.‘s
father.
          Around December of 2004, Maria‘s pregnancy began to show. Her mother took
her to a physician, who confirmed that Maria was pregnant and told Maria‘s mother.
Maria told her mother that she had been raped in a van by a stranger. Defendant gave her
the ―idea to say someone else had done it.‖ Maria repeated this story to Detective Martin,
who began investigating it in January of 2005 and concluded it was false. When Martin


                                              3
confronted Maria with his conclusion, she refused to speak with him for a time. Martin
collected DNA samples from defendant, Maria, and Maria‘s two brothers. Maria
subsequently told Martin that one of her seventh grade classmates was responsible.
Martin asked her to point out the classmate in her school yearbook, and Maria selected
someone. Martin interviewed the boy, who did not know Maria, but voluntarily provided
a DNA sample. After M. was born, Martin collected a DNA sample from her also.
       Before M. was born, Maria told defendant that she did not want to continue lying.
Defendant left home and Maria did not see him again until the preliminary hearing. After
M.‘s birth, Maria told Martin that defendant was M.‘s father, and Martin learned that
defendant had left soon after giving a DNA sample. Defendant was extradited from
Guatemala in 2011.
       Prosecution DNA expert Catherine Leisy testified that she analyzed all of the DNA
samples to determine M.‘s paternity. Defendant could not be excluded as M.‘s father, but
all of the other males were excluded.
       Defendant presented no affirmative evidence.
       The jury convicted defendant of aggravated sexual assault on a child under the age
of 14 by rape, aggravated sexual assault on a child under the age of 14 by sexual
penetration, commission of a lewd act on a child under the age of 14, and sexual
penetration of a child under the age of 14. Defendant admitted a prior prison term
enhancement allegation (§ 667.5, subd. (b)). The court sentenced defendant to
consecutive terms of 15 years to life in prison for each of the two aggravated sexual
assault convictions, a consecutive term of 8 years for the lewd act conviction, a
subordinate consecutive term of 2 years for the sexual penetration conviction, and a
1-year consecutive term for the prior prison term enhancement, for a total term of 41
years to life. The trial court did not award defendant any presentence conduct credits, but
corrected this error upon defendant‘s request during the pendency of this appeal.




                                             4
                                      DISCUSSION
1.     Sufficiency of evidence
       Counts 1 and 2 (aggravated sexual assault of a child under 14 based upon rape and
sexual penetration, respectively) required proof that the act was ―accomplished against
[Maria‘s] will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on [herself] or another‖ person. (§ 261, subd. (a)(2); § 269, subds.
(a)(1), (a)(5); § 289, former subd. (a)(1), now subd. (a)(1)(A).) In her arguments to the
jury, the prosecutor relied solely upon duress, and defendant contends there was
insufficient evidence of duress to support the jury‘s verdicts on counts 1 and 2.
       To resolve this issue, we review the whole record in the light most favorable to the
judgment to decide whether substantial evidence supports the conviction, so that a
reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993)
4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment
that the jury could reasonably deduce from the evidence and make all reasonable
inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303;
People v. Catlin (2001) 26 Cal.4th 81, 139.) A reasonable inference may not be based
solely upon suspicion, imagination, speculation, supposition, surmise, conjecture, or
guess work. (People v. Raley (1992) 2 Cal.4th 870, 891.)
       ―Duress‖ in the context of aggravated sexual assault based upon rape is statutorily
defined: ―As used in this section, ‗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. 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.‖ (§ 261, subd.
(b).) For purposes of aggravated sexual assault based upon sexual penetration ―duress‖
has a nearly identical meaning: ―‗a direct or implied threat of force, violence, danger,
hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities


                                              5
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.‘‖ (People v. Leal (2004) 33
Cal.4th 999, 1004, italics omitted.) The inclusion of ―hardship‖ in the latter definition of
duress is of no consequence in this case, and we can treat duress as if it were identically
defined for both counts 1 and 2.
       ―‗[D]uress involves psychological coercion. Duress can arise from various
circumstances, including the relationship between the defendant and the victim and their
relative ages and sizes. . . . . ―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‖ [are] relevant to the existence of duress.‘‖ (People v. Espinoza
(2002) 95 Cal.App.4th 1287, 1319–1320.) ―‗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. Veale (2008) 160 Cal.App.4th 40, 46.) But ―‗―[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.‖‘‖ (Espinoza, at
p. 1321.) ―Duress cannot be established unless there is evidence that ‗the victim[‘s]
participation was impelled, at least partly, by an implied threat . . . .‘‖ (Ibid.) But duress
is ―objective in nature and not dependent on the response exhibited by a particular
victim.‖ (People v. Soto (2011) 51 Cal.4th 229, 246.)
       The jury instructions given in this case defined duress in the context of count 1
(aggravated sexual assault based upon rape) as follows: ―‗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 she would not otherwise have
performed, or acquiesce in an act to which she otherwise would not have submitted. The
total circumstances, including but not limited to the age of the alleged victim, her
relationship to the perpetrator defendant, threats to harm the victim, physically controlling
the victim when the victim attempts to resist, and warnings to the victim that revealing the


                                               6
perpetrator‘s conduct would result in jeopardizing the safety of the victim or the victim‘s
family, are factors to consider in appraising the existence of the duress.‖ (CALJIC No.
10.00.) For purposes of count 2 (aggravated sexual assault based upon sexual
penetration), the court instructed, ―‗Duress‘ means a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to perform an act which she would not otherwise have
performed, or acquiesce in an act to which she otherwise would not have submitted. The
total circumstances, including the age of the alleged victim, and her relationship to the
defendant, are factors to consider in appraising the existence of the duress.‖ (CALJIC
No. 10.51.)
       In her arguments to the jury regarding duress, prosecutor Carol Rose stated, ―I‘m
making it the easiest for you. Duress is such a low standard . . . .‖ After quoting CALJIC
No. 10.00, the prosecutor continued, ―He‘s her daddy. Now, apparently she doesn‘t know
that he‘s not her biological father. Probably a very common thing. But this is a 42 year
old and in fact he is—when she‘s 10, what is he, 41. She‘s 10. If he‘s—2002—2001,
he‘s 40 and turns 41 when he starts raping her and she is in that stuck mode now and
she‘s just 10 years old. [¶] So, you look at the age of the victim and her relationship or
threats or physically controlling or warnings to the victim about revealing the rape. She
knows what it will do to the family. What‘s she, 13?‖ With respect to count 2, the
prosecutor argued, ―Got duress here.‖ She then argued, regarding lack of consent, ―You
think that 10 year old positively cooperated with her dad? . . . And why did it happen?
We asked her, ‗Why didn‘t you tell anyone?‘ [¶] ‗He‘s my father.‘ [¶] Okay. ‗Act
freely and voluntarily and have knowledge of the nature of the act.‘ [¶] Did she have as a
10 year old knowledge when he‘s rubbing her breasts and sticking his finger in her
vagina?‖
       Defense counsel argued that there was no evidence of force, violence, duress,
menace, or fear of immediate and unlawful injury, then argued, ―They are assuming that
because you know that she was young, that she must have felt or there must have been


                                              7
force or violence or duress or menace or fear of immediate and unlawful injury. You‘re
not allowed to assume evidence that didn‘t come in.‖
       In her rebuttal, the prosecutor argued, ―[I]t was accomplished by duress, he was
able to do it by duress and duress is acquiescing—it‘s an implied threat of force, it
doesn‘t have to be force. And she bled, even if that was the first time, that‘s certainly a
threat that it‘s going to hurt. And just acquiescing.‖ The prosecutor further argued,
―Using your common sense when we‘re talking about duress here now. Let‘s talk about
duress. A 10-year-old child would not be expected nor able to stand up to her father or at
least a man she believed was her father. Once she‘s pregnant, humiliation is even greater
because now everyone is going to know that her mother‘s husband . . . is having sex with
her all this time.‖
       Viewing the entire record in the light most favorable to the judgment, we conclude
that there is not substantial evidence of duress to support the convictions in counts 1
and 2. These charges were based upon conduct occurring when Maria was 13, not 10, as
the prosecutor repeatedly argued. Although defendant‘s improper sexual conduct toward
Maria began when she was in the fourth grade, when she was 9 or 10, it stopped when she
was in the fifth grade because defendant went away to prison for two years, and it did not
resume until he returned in March of 2004, when she was 13. Maria‘s young age and size
may have been factors that, in addition to other circumstances, would have supported a
finding of duress if the charges were based upon defendant‘s conduct in 2000 or 2001, or
perhaps even if the conduct had continued unabated since that time through the date of
the charges. But these factors and defendant‘s paternal relationship with Maria were
insufficient to show that defendant used duress to commit the charged offenses on
May 12, 2004, when Maria was 13 and defendant had been out of the house for two years.
The prosecutor‘s questioning and Maria‘s testimony were extremely cursory and
conclusory. She was never asked and never testified that she feared defendant or that his
conduct placed her in fear. She was never asked and never testified about the
circumstances surrounding the sexual acts. There was no evidence defendant attempted


                                              8
physically to control Maria‘s movements immediately preceding or during the May 12
incident, or during any prior incident. There was no evidence that defendant ever made
any express threats of any sort, neither threats that coerced Maria to perform or acquiesce
in the sexual activity, nor even threats of adverse consequences that would result if she
told anyone about defendant‘s conduct. There was no evidence of conduct by defendant
that could be deemed to be an implied threat of force, violence, danger, retribution, or
hardship. There was no evidence that defendant ignored a request to stop or complaint of
pain (or that any such request or complaint was made), or overcame an attempt by Maria
to get away from him. Nor was there any evidence that defendant ever used physical
force to punish Maria in other contexts or that she feared him because of force he had
used on her or anyone else. In short, the prosecutor presented minimal and conclusory
evidence, falling so far short of substantial evidence that we cannot conclude that a
reasonable jury could have found guilt beyond a reasonable doubt.
       Although defendant forfeited any claim of prosecutorial misconduct by failing to
object in the trial court, we note that the prosecutor‘s arguments may well have misled the
jury to focus on Maria‘s age at the time defendant began molesting her, not at the time of
the charged offenses three or four years later. In addition, the prosecutor argued that
―[d]uress is such a low standard‖ and ―duress is acquiescing.‖ The prosecutor also
incorrectly argued that Maria testified she bled and used this matter from outside the
record to make a circular argument that duress could be found because bleeding was ―an
implied threat that it‘s going to hurt.‖
       Rather than simply reversing defendant‘s convictions, this court has the power and
authority to modify the judgment to reflect conviction of a lesser, necessarily included
offense. (§§ 1181, subd. 6, 1260; People v. Jackson (2000) 77 Cal.App.4th 574, 580.)
An offense is necessarily included in another if either the statutory elements of the greater
offense or the facts alleged in the accusatory pleading include all of the elements of the
lesser offense, so that the greater offense cannot be committed without also committing
the lesser. (People v. Bailey (2012) 54 Cal.4th 740, 748.) Either the statutory elements


                                              9
test or the accusatory pleading test may be applied in the context of modifying a judgment
due to insufficiency of evidence. (Ibid.)
       In response to our request for briefing on how we should modify defendant‘s
convictions, defendant argued that counts 1 and 2 should be reduced to violations of
section 289, subdivision (h), sexual penetration of a person under the age of 18. The
Attorney General argued that count 2 could be reduced to a violation of section 289,
subdivisions (h) or (j) [sexual penetration of a person under the age of 14 by a defendant
who is more than 10 years older than the victim], but argued that count 1 could not
because ―sexual penetration‖ is defined by section 289 as penetration with ―any foreign
object, substance, instrument, or device, or by any unknown object‖; a ―foreign object,
substance, instrument, or device‖ does not include ―a sexual organ‖; and an ―unknown
object‖ only includes ―a penis, when it is not known whether penetration was by a penis
or by a foreign object, substance, instrument, or device, or by any other part of the body.‖
(§ 289, subd. (k)(1)–(3).) The Attorney General argues that count 1 could be reduced to a
violation of section 261.5, subdivision (c), which, in 2004, provided as follows: ―Any
person who engages in an act of unlawful sexual intercourse with a minor who is more
than three years younger than the perpetrator is guilty of either a misdemeanor or a felony,
and shall be punished by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison.‖
       Count 1 charged aggravated sexual assault of a child under the age of 14 by a
defendant who is more than 10 years older than the victim by means of a violation of
section 261, subdivision (a)(2). (§ 269, subd. (a)(1).) Section 261, subdivision (a)
provides that ―[r]ape is an act of sexual intercourse accomplished with a person not the
spouse of the perpetrator, under any of the following circumstances: [¶] . . . [¶]
(2) Where 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.‖
Applying the accusatory pleadings test, we agree with the Attorney General that a
violation of section 261.5, subdivision (c) is necessarily included within a violation of


                                             10
aggravated sexual assault of a child under the age of 14 by forcible rape. Accordingly,
we reduce count 1 to a violation of section 261.5, subdivision (c).
       Count 2 charged aggravated sexual assault of a child under the age of 14 by a
defendant who is more than 10 years older than the victim by means of a violation of
section 289, former subdivision (a)(1) (now subd. (a)(1)(A)). (§ 269, subd. (a)(5).) In
2004, section 289, subdivision (a)(1) provided, ―Any person who commits an act of
sexual penetration 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.‖ Applying the accusatory pleadings test, we agree with the Attorney
General that a violation of either section 289, subdivision (h) or subdivision (j) is
necessarily included within a violation of aggravated sexual assault of a child under the
age of 14 by sexual penetration, but we conclude a violation of section 289, subdivision
(j) is a more apt included offense because the age specifications mirror those in section
269, as it existed in 2004. Section 289, subdivision (j) provides, ―Any person who
participates in an act of sexual penetration with another person who is under 14 years of
age and who is more than 10 years younger than he or she shall be punished by
imprisonment in the state prison for three, six, or eight years.‖ In contrast, section 289,
subdivision (h) provides, ―Except as provided in Section 288, any person who participates
in an act of sexual penetration with another person who is under 18 years of age shall be
punished by imprisonment in the state prison or in the county jail for a period of not more
than one year.‖ Accordingly, we reduce count 1 to a violation of section 289,
subdivision (j).
2.     Duplicative counts
       We asked the parties to address whether defendant was properly convicted and
sentenced for two counts pertaining to sexual penetration (counts 2 and 4), given
evidence and the time periods alleged in the information. In her letter brief, the Attorney
General conceded that ―counts 2 and 4 are based on the same act of digital penetration.‖


                                             11
Although the parties disagreed as to whether defendant properly stood convicted of two
counts based upon the same act, our modification of count 2 to a violation of section 289,
subdivision (j) simplifies matters. With this modification, counts 2 and 4 are identical
convictions for a single act and one must be stricken. Accordingly, we strike count 4.
3.     Unanimity instruction
       Defendant contends that the trial court erred by failing to give a unanimity
instruction, and that this potentially affected counts 2 through 4. Given our disposition of
count 4, we address the absence of a unanimity instruction with respect to counts 2 and 3.
       A trial court must instruct jurors that they must unanimously agree that defendant
committed the same specific criminal act ―‗when conviction on a single count could be
based on two or more discrete criminal events,‘ but not ‗where multiple theories or acts
may form the basis of a guilty verdict on one discrete criminal event.‘ [Citation.] In
deciding whether to give the instruction, the trial court must ask whether (1) there is a risk
the jury may divide on two discrete crimes and not agree on any particular crime, or (2)
the evidence merely presents the possibility the jury may divide, or be uncertain, as to the
exact way the defendant is guilty of a single discrete crime. In the first situation, but not
the second, it should give the unanimity instruction.‖ (People v. Russo (2001) 25 Cal.4th
1124, 1135.) Where a unanimity instruction is required it must be given sua sponte.
(People v. Curry (2007) 158 Cal.App.4th 766, 783.)
       ―A unanimity instruction is required only if the jurors could otherwise disagree
which act a defendant committed and yet convict him of the crime charged. . . . [T]he
possibility of disagreement exists where the defendant is accused of a number of
unrelated incidents, such as alleged rapes at different times or places, leaving the jurors
free to believe different parts of the testimony and yet convict the defendant. . . .
Disagreement may also exist where the defendant offers a defense which could be
accepted or rejected as to some but not all of the acts.‖ (People v. Gonzalez (1983) 141
Cal.App.3d 786, 791–792, disapproved on another ground in People v. Kurtzman (1988)
46 Cal.3d 322, 330.)


                                              12
       ―In order for the unanimity instruction to be significant, there must be evidence
from which reasonable jurors could both accept and reject the occurrence of at least the
same number of acts as there are charged crimes.‖ (People v. Schultz (1987) 192
Cal.App.3d 535, 540.) Where the record provides no rational basis for the jury to
distinguish between the various acts, by way of argument or evidence, and the jury must
have believed beyond a reasonable doubt that defendant committed all of the acts if he
committed any of them, the failure to give a unanimity instruction is harmless. (People v.
Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).)
       The evidence supported the commission of three distinct criminal acts against
Maria during the time periods specified in the charges: sexual intercourse, touching her
breasts, and digital sexual penetration. Maria‘s testimony was comparable with respect to
all three acts and defendant‘s defense did not differ with respect to the various acts.
Thus, there was no rational basis for the jury to distinguish between the various acts, and
the jury must have believed beyond a reasonable doubt that defendant committed all of
the acts if he committed any of them. Accordingly, even if the trial court should have
given a unanimity instruction, its failure to do so was harmless beyond a reasonable
doubt. (People v. Wolfe (2003) 114 Cal.App.4th 177, 186–188; Thompson, supra, 36
Cal.App.4th at p. 853.)




                                             13
                                     DISPOSITION
      The judgment is modified by (1) reducing count 1 to a conviction of violating
Penal Code section 261.5, subdivision (c); (2) reducing count 2 to a conviction of
violating Penal Code section 289, subdivision (j); and (3) striking count 4. The judgment
is otherwise affirmed, and the cause is remanded for resentencing.
      NOT TO BE PUBLISHED.


                                                 MALLANO, P. J.
We concur:


      CHANEY, J.


      JOHNSON, J.




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