Filed 4/30/15 P. v. Solorzano CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065368

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF31284)

RAUL GONZALEZ SOLORZANO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Imperial County, Donal B.

Donnelly, Judge. Affirmed.



         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da

Silva, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant and appellant Raul Gonzalez Solorzano was convicted of one count of



                                                             1
forcible oral copulation by a minor over 14 years old (Pen. Code,1 § 288a, subd.

(c)(2)(C)) and one count of sexual battery by restraint (§ 243.4, subd. (a)). Both counts

involved sexual assaults on J., his 17-year-old daughter. Solorzano was sentenced to 13

years in prison.

       One piece of evidence used against Solorzano was an image found on J.'s

telephone of him holding his erect penis in his hand. J. testified Solorzano forced her to

take the photograph of his penis. On appeal, Solorzano argues the trial court erred in

excluding other videos and still images found on J.'s cellular telephone. Solorzano also

argues his conviction for forcible oral copulation should be reversed because there is

insufficient evidence he coerced his daughter to orally copulate him. We reject these

contentions.

       The excluded videos and still images on J.'s telephone were not directly related to

the charges against Solorzano and, contrary to his argument on appeal, only tangentially

related to J.'s credibility with respect to her use of the telephone to send and receive

intimate images. Although the excluded videos and still images contained fairly graphic

sexual references and images sent from other sources, they reflected no more than an

adolescent's view of what is titillating, humorous or interesting. The trial court did not

abuse its discretion in excluding them as unduly prejudicial.

       J.'s testimony about what occurred, her age, Solorzano's role in her life, and her

fairly prompt reporting of the incidents to her mother, were more than sufficient evidence

J. was the victim of coercion and, thus, the victim of forcible oral copulation within the



1      All further statutory references are to the Penal Code unless otherwise indicated.
                                              2
meaning of section 288a, subd. (c)(2)(C).

                                         SUMMARY

       A. J.'s Version

                 1. Church

       On Sunday, July 7, 2013, J. went to church with her mother and her sister, D. At

church, J., who was crying, told her mother and her pastor that early in the morning of

Saturday, July 6, 2013, Solorzano had "touched" her.

                 2. Cell Phone Picture

       At church, J. showed her mother a picture on her cell phone of Solorzano holding

his erect penis in his left hand; according to J., very early the previous Saturday morning

she was in the living room of the home her mother, Solorzano and four of their five

children shared. According to J., Solorzano was on a couch in the living room under a

blanket and was talking to J. about taking pictures with his cell phone; at one point,

Solorzano took the blanket off, exposed his erect penis to J. and directed her to take a

picture of it.

                 3. Oral Copulation and Sexual Assault

       J. complied and took a photograph of her father's erect penis. According to J.,

Solorzano then grabbed J.'s left hand and guided her hand onto his penis and moved her

hand up and down on it. Solorzano then grabbed the back of J.'s head and pushed her

head down to his penis; J. "just stopped thinking" and was in shock and began orally

copulating Solorzano. J. pulled her head away from Solorzano's penis. Solorzano then

grabbed J.'s wrist and took her into a bedroom where he dropped his pants and underwear

and pulled down J.'s shorts and underwear. Solorzano pinned J. against the bed, fondled

                                             3
her buttocks and vagina and rubbed his penis against her vagina. J. told him not to put

his penis inside her. Solorzano's penis did not penetrate J.'s vagina, but he did ejaculate

and some of his semen went onto J.'s leg.

       When Solorzano turned away from her, J. grabbed her shorts and underwear and

left the bedroom. J. went to her own bedroom and was unable to sleep; she did not tell

anyone in the household about what had happened because she thought it was "sick,"

"nasty," "disgusting," and she was afraid of Solorzano.

       While he was committing the sex acts, Solorzano repeatedly told J., "Don't tell

anybody."

       On the following evening, J. fell asleep on the couch in the living room. When

she woke up, Solorzano touched her and again exposed his penis to her. Solorzano told

her to touch his penis until he ejaculated. She told him "no," got up from the couch and

went to her bedroom and locked the door.

       At trial, J.'s mother testified that she and Solorzano had not had sexual relations in

more than a year and slept in separate rooms.

       B. Solorzano's Statements

       In response to J.'s report to her, J.'s mother told. J. and her sister D. to drop her off

at their home and go to a donut shop. J.'s mother then went inside her home by herself

and put Solorzano's clothes in a trash bag. When Solorzano drove up to the home, she

threw the bag towards him. She then told Solorzano, "I know what you did." Solorzano

responded, "It was her F'ing fault."

       J.'s mother then called a police officer who had worked on a prior case in which J.

was the victim of a sexual assault. J.'s mother and J. met with the police officer, and they

                                               4
disclosed what Solorzano had done.

         After receiving J.'s report, police officers went to Solorzano's parents' home,

where Solorzano was staying. Solorzano approached the officers' patrol car and

volunteered the following statement: "I didn't do it. It's all her fault." One of the

officer's responded, "What didn't you do?" Solorzano answered the officer's question by

stating: "What [J.'s mother] said." Solorzano then gave the officers his version of what

occurred. Solorzano stated he was asleep on the couch when he woke up and saw J.

"jacking him off." He told her to stop. According to Solorzano, J. told him she wanted to

take a picture of his erect penis and he agreed; after J. took the picture, she then orally

copulated him.

         Solorzano was arrested and charged with multiple sex crimes.

         C. Trial

         At trial, J. recapitulated what she told her mother and law enforcement personnel.

At times during the trial, J. appeared quite upset when asked to recount details about her

father's conduct, which she said repulsed her. At one point, she stated that she had not

deleted the picture of Solorzano's penis because it was very upsetting to look at the

image.

         Solorzano presented a version different from the one he initially provided to the

police officers who arrested and later questioned him. At trial, Solorzano testified that,

after he fell asleep on the couch, he woke up when he felt someone rubbing his penis and

saw J. rubbing and then orally copulating him. He testified that he pushed her away, told

her not to tell anyone because it was disgusting and wrong, and she ran to her bedroom.

At trial, Solorzano denied posing for the photograph of his erect penis. Solorzano also

                                               5
testified that he did not initiate sexual contact with J. or force her to engage in any sexual

acts with him.

       Solorzano also presented evidence from a friend and former co-worker of J.'s,

Katrina Esparza. Esparza testified that, during the summer of 2012, she and J. worked

together at a local wildlife refuge and they became friends. Esparza testified that she had

seen pictures of a young man stroking his penis on J.'s phone and naked pictures of J.

herself on J.'s phone. According to Esparza, J. explained that she had made contact with

the young man in the pictures on the internet and had shared intimate photographs with

him.

       Esparza conceded that she began seeing Solorzano's nephew Michael Solorzano

on a social basis in the summer of 2013; that on October 13, 2013, Michael Solorzano

told her about the charges his uncle was facing; and that on October 14, 2013, her

relationship with Michael Solorzano became more serious. Esparza further testified that,

on October 30, 2013, she went to the public defender's office and told them about what

she had seen on J.'s telephone. Esparza conceded that in October 2013, J. asked her if she

was talking to Michael Solorzano and she denied having contact with him; Esparza

admitted that this had been a lie.

       Michael Solorzano also testified. He admitted that he was upset about the criminal

charges his uncle was facing and admitted telling Esparza about them. Michael

Solorzano denied there was any connection between Esparza's willingness to appear as a

defense witness and the fact that his relationship with Esparza had recently become more

serious.

       J. denied taking naked pictures of herself and sending them to anyone and denied

                                              6
sharing intimate pictures of herself or anyone else with Esparza.

       During trial, Solorzano also attempted to enter into evidence pictures and videos

found on J.'s phone that were of a sexual or intimate nature. However, the trial court

sustained the prosecutor's objection to the pictures found on the phone on the grounds

they were unrelated to the charges against Solorzano and were not directly related to

Esparza's claims about what she had seen on J.'s phone.

                                       DISCUSSION

                                              I

       In his first argument on appeal, Solorzano argues that the trial court erred in

excluding the pictures and videos found on J.'s phone. He argues the pictures and videos

were important evidence that was consistent with Esparza's testimony about what she had

seen on J.'s telephone and undermined J.'s testimony about being upset looking at the

image of her father's penis.

       A. The Pictures and Videos

       Prior to trial, Solorzano's counsel was unaware J.'s telephone was in the custody of

a local law enforcement agency. During trial, this circumstance was disclosed and

defense counsel and the prosecutor examined the phone. They discovered 22 still images

on the phone; the images were of coarse and crude statements that third parties had sent

to J. or which she had forwarded to others. None of the still images contained sexual

images of J. or anyone she knew personally. The parties also discovered three videos on

the phone: one video depicted J.'s sister trying to take a picture of J. while she was in the

shower and J. asking her not to; a second video was of J. and Solorzano in conversation

and Solorzano admitting that J. was correct about something; and the third video was of

                                              7
J. and her mother at the police station reporting the sexual assault. In it, J. appears

relatively calm and makes reference to old computers and illegal evidence.

       B. Trial Court's Ruling

       In excluding the still images and videos, the trial court stated: "I'll find the

probative value is slight, because, unlike the evidence I had permitted by Katrina Esparza

that the alleged victim actually photographed her own private parts and sent that to

another man and then also received photographs and videos of the other man's private

parts, these postings don't reflect that. Although there may be figures here engaged in

what looks to be sexual activities, these are clearly not photographs of anyone -- they

don't appear to be photographs of anyone -- they don't appear to be photographs of

anyone the alleged victim knows and actually took or received from another friend.

       "Instead, they appear to be jokes and little sayings and controversial phrases that

teenagers would share about sexual activity. And, of course, teenagers, including 17-

years-olds, that would be fairly common topic to share and laugh about and titillate each

other. But these are very distinct from the evidence that I had admitted, that is, the actual

photographing of private parts of the actual actors.

       "For that reason I don't think the probative value is as strong as it might be with

the evidence offered by Katrina Esparza.

       "Against that, under [Evidence Code section] 352 I weigh the substantial risk of

prejudice and confusion and undue consumption of time. And I find substantial risk of

prejudice as follows. That the jury would impermissibly draw an inference that because

[J.] received these postings and saved them on her phone, that she had a willingness or

history of engaging in sexual conduct. Of course, that's strictly forbidden by the rape

                                               8
shield law. I think that inference is the risk of the jury drawing that inference is

substantial. And there's -- when weighed against slight probative value, that prejudice

outweighs relevance and should be excluded."

        C. Legal Principles

        "'A trial court's exercise of discretion in admitting or excluding evidence is

reviewable for abuse [citation] and will not be disturbed except on a showing the trial

court exercised its discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice.'" (People v. Brown (2003) 31 Cal.4th 518,

534.)

        Here, as the trial court indicated, its discretion was constrained by California's rape

shield statutes, which limit the use of evidence of the prior sexual conduct of victims of

forcible sex crimes. (Evid. Code, §§ 782, 1103, subd. (c); see People v. Chandler (1997)

56 Cal.App.4th 703, 708.) "While strictly precluding admission of the victim's past

sexual conduct for purposes of proving consent, Evidence Code section 1103, subdivision

(c)(4), allows the admission of evidence of prior sexual history relevant to the credibility

of the victim. Because the victim's credibility is almost always at issue in sexual assault

cases, Evidence Code section 782 specifies a procedure requiring an in camera review of

the proffered evidence to diminish the potential abuse of section 1103, subdivision (c)(4).

The defense may offer evidence of the victim's sexual conduct to attack the victim's

credibility if the trial judge concludes following the hearing that the prejudicial and other

effects enumerated in Evidence Code section 352 are substantially outweighed by the

probative value of the impeaching evidence.

        "By narrowly exercising the discretion conferred upon the trial court in this

                                               9
screening process, California courts have not allowed the credibility exception in the rape

shield statutes to result in an undermining of the legislative intent to limit public exposure

of the victim's prior sexual history. [Citations.] Thus, the credibility exception has been

utilized sparingly, most often in cases where the victim's prior sexual history is one of

prostitution. [Citations.] Evidence the victim participated in a form of prostitution is

conduct involving moral turpitude which is admissible for impeachment purposes.

[Citation.] Prostitution is a crime of moral turpitude. [Citations.]" (People v. Chandler,

supra, 56 Cal.App.4th at pp. 708-709, fn. omitted.)

       In evaluating under Evidence Code section 352 whether evidence of a victim's

sexual history is sufficiently related to the victim's credibility, a trial court may, in its

discretion, exclude evidence "if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of time or (b) create

substantial danger of undue consumption of time or (b) create substantial danger of undue

prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)

Accordingly, "'evidence should be excluded as unduly prejudicial when it is of such

nature as to inflame the emotions of the jury, motivating them to use the information, not

to logically evaluate the point upon which it is relevant, but to reward or punish one side

because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly

prejudicial because of the substantial likelihood the jury will use it for an illegitimate

purpose.'" (People v. Doolin (2009) 45 Cal.4th 390, 439.)

       D. Analysis

       Here, the items in dispute were clearly subject to Evidence Code sections 782 and

1103, subdivision (c). The term "sexual conduct" as used in Evidence Code section 782

                                               10
has been given a broad meaning. (See People v. Casas (1986) 181 Cal.App.3d 889, 895

[prior solicitation of prostitution sexual conduct subject to statute]; People v. Daggett

(1990) 225 Cal.App.3d 751, 757 [prior molestation sexual conduct].) The rationale of the

Legislature in enacting the rape shield law was that "the fear of personal questions

deterred victims from filing complaints." (Casas, at p. 895.) This rationale would

certainly apply to the sort of sexual and provocative fantasizing manifested in the images

excluded by the trial court. Adolescent victims of forcible sex acts would plainly be

deterred from reporting those crimes if they knew they could be questioned, without

limitation, with respect to all the sexual innuendo and fantasies that might be found on

their cell phones or traced to them on social media.

       Here, the disputed items of evidence were not directly related to the offenses

charged and were only tangentially and inferentially related to evidence introduced with

respect to the victim's credibility. With respect to Esparza's testimony about what she

had seen on J.'s telephone, the disputed images, which any curious teenager may have

found on the internet or received from other teenagers, do not give rise to any direct

inference that the teenager would go further and share intimate photographs of herself or

save intimate pictures of anyone else. In recognizing the material difference between

what teenagers might view as merely titillating or humorous and intimate images of

themselves or people they know, the trial court acted well within the bounds of reason

and its discretion.

       We also reject Solorzano's contention the images found on J.'s telephone were

somehow inconsistent with the fact that she stated the picture of her father's penis was

upsetting to her and that she did not delete it from her phone because she did not want to

                                             11
look at it. The salacious and provocative pictures found on J.'s phone, while they may

show J. was somewhat sexually sophisticated and aware, do not undermine the credibility

of her reaction to the picture of her own father's penis and her emotional response to

recollection of the circumstances under which the picture was taken. Indeed this

rationale for admission of the images appears to have less to do with J.'s credibility and

strikes very close to forbidden use of prior sexual conduct to prove that J. likely

consented to her father's acts. In this regard, we note that "[g]reat care must be taken to

insure that this exception to the general rule barring evidence of a complaining witness'[s]

prior sexual conduct, i.e., Evidence Code section 1103, [former] subdivision (b)(1), does

not impermissibly encroach upon the rule itself and become a 'back door' for admitting

otherwise inadmissible evidence." (People v. Rioz (1984) 161 Cal.App.3d 905, 918-919.)

       Given the sexual and provocative nature of the images, the trial court could also

reasonably conclude that it might easily and unfairly prejudice J. in the minds of one or

more of the jurors. The trial court could also reasonably conclude that the number of

images and their nature would consume an undue amount of time if J. were required to

explain each of them to the jury; in this regard, we again note the evidence was only

somewhat probative with respect to entirely collateral issues. In sum then, the disputed

evidence was only slightly probative and carried a very real risk of prejudice and undue

consumption of time. The trial court did not abuse its discretion in excluding it.

                                             II

       Next, Solorzano contends the record does not contain sufficient evidence that

when J. orally copulated him he acted forcibly within the meaning of section 288a,

subdivision (c)(2)(C). We disagree.

                                             12
       As defined by our Penal Code, forcible sex acts may occur notwithstanding the

victim's unwillingness or inability to physically resist the defendant. (See People v.

Griffin (2004) 33 Cal.4th 1015, 1024–1025.) "'[T]he fundamental wrong at which the

law of rape is aimed is not the application of physical force that causes physical harm.

Rather, the law of rape primarily guards the integrity of a woman's will and the privacy of

her sexuality from an act of intercourse undertaken without her consent. Because the

fundamental wrong is the violation of a woman's will and sexuality, the law of rape does

not require that "force" cause physical harm. Rather, in this scenario, "force" plays

merely a supporting evidentiary role, as necessary only to insure an act of intercourse has

been undertaken against a victim's will.' [Citation.]" (Ibid.)

       Of significance here is the theory of rape, penetration and oral sex by duress,

which are all species of the forcible crimes proscribed by sections 261, subdivision (a)(2),

289, subdivision (a)(1)(A), and 288a, subdivision (c)(2)(A). In defining forcible rape by

duress, section 261, subdivision (b) states: "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." (See People v. Leal (2004) 33 Cal.4th 999, 1004–1005; CALCRIM Nos. 1000,

1015, 1045.) This definition makes it plain that a victim's acquiescence in a sex crime

will not deprive the crime of its forcible nature.

       Sex crimes by duress have repeatedly been found in circumstances very similar to

                                              13
the ones presented here, where the perpetrator is an adult member of a child victim's

household and uses his psychological authority rather than overt physical force to compel

compliance. (See People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran); People v.

Senior (1992) 3 Cal.App.4th 765, 775 (Senior); People v. Superior Court (Kneip) (1990)

219 Cal.App.3d 235, 238 (Kneip).) In Cochran, the court found sufficient evidence of

duress where a father was convicted of forcible lewd conduct on his nine-year-old

daughter. (Cochran, at p. 12.) The daughter testified that her father instructed her to

engage in various sexual acts, including intercourse and forced sodomy. The daughter

testified that she was not afraid of her father, but that he told her not to tell anyone

because he would get into trouble and go to jail and that he gave her money and gifts

when they were alone. The defendant was five feet nine inches tall and weighed 100

pounds more than his four-foot-three-inch daughter. In finding duress, we stated: "This

record paints a picture of a small, vulnerable and isolated child who engaged in sex acts

only in response to her father's parental and physical authority. Her compliance was

derived from intimidation and the psychological control he exercised over her and not the

result of freely given consent." (Id. at pp. 15–16.)

       In Senior, the court found duress where a father forcibly molested his 14-year-old

daughter. The court noted that the defendant was the victim's father and an authority

figure to her; the defendant threatened to hit the victim and told her that if she did not

submit to the molestation it could result in a divorce, thus jeopardizing the family unit.

(Senior, supra, 3 Cal.App.4th at p. 775.)

       In Kneip, the defendant was accused of molesting his small sons and a family

friend. In finding sufficient evidence of duress, the court stated: "Where the defendant is

                                              14
a family member and the victim is young, other courts have also looked to factors such as

the position of dominance and authority of the defendant and his continuous exploitation

of the victim in determining the existence of force or fear." (Kneip, supra, 219

Cal.App.3d at p. 239.)

       In light of the cases in which rape or other sex crimes by duress have been found

where the defendant was an adult member of the victim's household, here we have little

hesitation affirming Solorzano's convictions. Solorzano's role as J.'s father, and J.'s

testimony about the physical control he exerted over her hand and head before and during

the oral copulation, as well as later in the bedroom, provide ample evidence of the

psychological and physical coercion that is sufficient to establish duress. (See Cochran,

supra, 103 Cal.App.4th at pp. 15–16.) Thus, there was sufficient evidence to support

Solorzano's conviction.

                                      DISPOSITION

       The judgment of conviction is affirmed.



                                                                       BENKE, Acting P. J.

WE CONCUR:


McINTYRE, J.


AARON, J.




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