Filed 7/24/14 P. v. Torres CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056781

v.                                                                       (Super.Ct.No. RIF10005869)

WILLIAM ESTUARDO RAMIREZ                                                 OPINION
TORRES,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.

(Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         Diane E. Berley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Deputy

Attorney General, for Plaintiff and Respondent.


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       A jury convicted defendant William Estuardo Ramirez Torres of 30 counts of lewd

and lascivious acts upon a child under 14 by use of force or duress (Pen. Code, § 288,

subd. (b)(1); counts 1-30),1 one count of the rape of a child (§ 269, subd. (a)(1); count

31), and one count of the attempted rape of a child (§§ 664, 261, subd. (a); count 32).

The trial court imposed an indeterminate term of 15 years to life, plus a determinate

sentence of 183 years.

       On appeal, defendant contends there is insufficient evidence of force or duress to

support his convictions for violations of section 288, subdivision (b)(1) in counts 1

through 30. For the reasons stated below, the judgment will be affirmed.

                                  I. Factual Background

       Jane Doe, born in February 1991, was five years old when her mother married

defendant. Defendant lived with Doe in Orange County and became the father figure in

her life. Doe’s mother trusted defendant to be alone with Doe and her other children.

Defendant began molesting Doe in Orange County when she was seven or eight years

old. Defendant continued to molest Doe for the next five years.

       The first time defendant molested Doe she was in the third grade. Defendant

picked Doe up from a friend’s house the day after a slumber party in order to take her to

see her mother and her newly born baby sister at the hospital. Defendant told Doe he

needed to stop at their apartment before they went to the hospital. Defendant directed




       1   All further statutory references will be to the Penal Code unless otherwise noted.

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Doe to come into the bathroom with him. Doe obeyed because she had been taught to

respect adults.

       Once in the bathroom, defendant sat down on the toilet, pulled his pants zipper

down, and began playing with his penis. Defendant then reached into the shower and

grabbed some conditioner, which he applied to his penis. Defendant told Doe to come

closer. Though Doe was scared and in shock, she felt she had to obey defendant because

he was her father figure and handled disciplinary matters in the family.

       When Doe approached, defendant grabbed her hand and told her to play with his

penis. Defendant told Doe to be a good girl and listen to him. Defendant held Doe’s

hand and moved it up and down on his penis. Then, defendant directed Doe to open her

mouth while he placed his penis inside. Doe did not like it and tried to close her mouth,

but defendant kept telling her to keep her mouth open. Defendant ejaculated, and told

Doe to swallow the ejaculate. Doe did as she was told, though she felt like throwing up.

Defendant told Doe she was a good girl and gave her some money. Defendant told her

not to say anything to anyone because nobody would believe her. Later, defendant took

Doe to visit her mother in the hospital. Doe did not tell her mother what had just

happened because she was scared and did not think she would be believed.

       Defendant molested Doe on more than 20 or 30 other occasions while the family

lived in Orange County. One time, Doe was alone with defendant while he was driving

to Lake Elsinore to help a relative move. Defendant pulled his penis out of his pants and




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told Doe to play with it. Doe was scared, but felt that she had to do what defendant

demanded. Defendant made Doe put his penis in her mouth while he ejaculated.

       On multiple occasions, defendant came into Doe’s bedroom late at night and

touched her breasts with his hands and mouth. Eventually, defendant started to digitally

penetrate Doe’s vagina, though she was not sure whether this activity began in Orange

County or Riverside. Doe was too scared to tell anybody about the molestations. She felt

embarrassed, nasty, and dirty.

       When Doe was in the sixth grade, her family moved to Riverside. Defendant

continued to molest Doe after the move. Doe testified defendant molested her more than

20 times in Riverside.2

       On one occasion while Doe was in the sixth grade, defendant took her into the

master bedroom while Doe’s mother was away. Defendant told Doe to take her pants off

and lay on the bed. After she complied, defendant touched and kissed her breasts and

body before inserting his fingers into her vagina. Defendant also put his mouth on Doe’s

vagina before he ejaculated on her stomach.

       Doe tried to stop the molestations by telling defendant she planned to tell her

mother what was happening. In response, defendant hit and slapped her. Doe repeatedly

told defendant she hated him and wished he would die. Defendant would hit Doe’s head,

pull her ears, put his hand over her mouth, and tell her to shut up. On one occasion, a

       2 Defendant also raped Doe at least one time in Riverside, and attempted to rape
her on another occasion. Because defendant does not challenge these convictions,
additional factual discussion of these crimes is not necessary here.

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school counselor questioned Doe about some bruising on her face caused by defendant’s

blows. Doe lied about the source of her injury because she was afraid the police might

come and take her sisters away from her home.

       Doe’s friend, Ariel S., sometimes spent the night at Doe’s home in Riverside. Doe

seemed really scared of defendant. On several occasions, Ariel observed defendant come

into Doe’s room in the middle of the night and call her out. Doe would leave with

defendant for a while before returning and quickly getting back into her bed. The two

girls began moving a large trunk in front of the bedroom door to prevent defendant from

bothering Doe during the night. On one occasion, Ariel saw defendant grab Doe by her

ear or shirt and treat her badly. When Ariel asked her friend why defendant was acting

that way, Doe told Ariel that defendant was molesting her, but cautioned her not to tell

anyone.

       Doe told her mother that defendant had been molesting her when she was in the

seventh or eighth grade. Her mother confronted defendant, and he eventually admitted

that he had touched Doe inappropriately. Doe’s mother told her daughter defendant was

sorry for his actions. After that, the molestations stopped. Defendant and Doe’s mother

remained married.

       When Doe was 19, she was home alone with defendant. While she was getting

something to eat, defendant approached her in the kitchen. Doe felt like defendant might

try to do something again. She left her plate of food in the kitchen and retreated to the

bathroom. When she came out a few minutes later, defendant blocked her way. Doe felt


                                             5
that defendant was making advances, so she turned and walked out the front door. Doe

was very upset and called her sister in tears. Saying she could not take it anymore, Doe

told her sister about defendant’s molestations. Doe’s sister called the police.

         At trial, defendant admitted touching Doe’s chest and buttocks on two occasions

when she was 13 years old. Defendant denied all the other charges.

                                       II. Discussion

A. Applicable Law

         We are limited in our review of a claim of insufficiency of the evidence. We

assess the sufficiency of evidence by reviewing the entire record in the light most

favorable to the judgment to determine whether it discloses evidence that is reasonable,

credible, and of solid value, such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see

also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [61 L.Ed.2d 560, 99 S.Ct. 2781].)

“Given this court’s limited role on appeal, defendant bears an enormous burden in

claiming there is insufficient evidence to sustain his molestation convictions. If the

verdict is supported by substantial evidence, we are bound to give due deference to the

trier of fact and not retry the case ourselves.” (People v. Veale (2008) 160 Cal.App.4th

40, 46 (Veale) [Fourth Dist., Div. Two], citing People v. Ochoa (1993) 6 Cal.4th 1199,

1206.)

         Section 288, subdivision (b)(1) prohibits the commission of lewd and lascivious

acts upon a child under 14 by use of force, violence, duress, menace or fear of immediate


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and unlawful bodily injury on the victim or another person. Under section 288,

subdivision (b)(1), 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. (People v. Leal (2004) 33

Cal.4th 999, 1004; see also Veale, supra, 160 Cal.App.4th at p. 46, citing People v.

Cochran (2002) 103 Cal.App.4th 8, 13.) “[T]hreats need not be express, but may be

inferred from conduct. [Citation.] Silent threats, of course, generate fear.” (People v.

Reyes (1984) 153 Cal.App.3d 803, 811.)

       The legal definition of 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.)

Because duress is measured by an objective standard, a jury could find a defendant used

threats or intimidation to commit a lewd act without resolving how the victim

subjectively perceived or responded to the behavior. (Ibid.)

       Duress involves psychological coercion. (People v. Senior (1992) 3 Cal.App.4th

765, 775; see also People v. Cochran, supra, 103 Cal.App.4th at p. 15.) “Physical

control can create ‘duress’ without constituting ‘force.’” (People v. Schulz (1992) 2

Cal.App.4th 999, 1005.) 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; see also Veale, supra, 160 Cal.App.4th at p. 46


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[total circumstances, including age of victim and the victim’s relationship to the

defendant, are factors to be considered in appraising existence of duress].)

       “A simple warning to a child not to report a molestation reasonably implies the

child should not otherwise protest or resist the sexual imposition.” (People v. Senior,

supra, 3 Cal.App.4th at p. 775.) Another factor to be considered is the occurrence of the

molestation “in an isolated room out of the presence of other adults . . . .” (People v.

Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238; see also People v. Cochran,

supra, 103 Cal.App.4th at pp. 15-16.)

       “‘“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. [Citation.]’ [Citation.]” (Veale,

supra, 160 Cal.App.4th at p. 49, quoting People v. Schulz, supra, 2 Cal.App.4th at p.

1005; see also People v. Pitmon (1985) 170 Cal.App.3d 38, 51 [finding evidence

sufficient to establish duress, even though the victim testified the defendant did not use

force or threats, when the victim was “eight years old, an age at which adults are

commonly viewed as authority figures. The disparity in physical size between an eight-

year-old and an adult also contributes to a youngster’s sense of [her] relative physical

vulnerability.”].) A rational trier of fact can find duress where there is an “inherent

imbalance of power in an encounter between a child and an adult bent on sexual

conduct.” (People v. Soto, supra, 51 Cal.4th at pp. 245-246.)




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B. Sufficiency of Evidence of Duress

      Defendant contends there is insufficient evidence of either force or duress to

support his convictions in counts 1 through 30. Because the prosecution relied primarily

upon a theory of duress and we conclude ample evidence of duress was presented as to all

of the challenged convictions, we need not decide whether sufficient evidence of force

was also present here.3

      The evidence at trial established that defendant repeatedly molested Doe

beginning when she was only seven or eight years old. Children are physically and

emotionally vulnerable at such young ages. (People v. Pitmon, supra, 170 Cal.App.3d at

p. 51.) As in People v. Cochran, supra, 103 Cal.App.4th at pages 15 and 16, defendant’s

molestations took place in the family home when Doe’s mother was not present. (See

      3   The record shows that the prosecution relied primarily upon a theory of duress
in this case. However, we note Doe’s testimony supports a conclusion that defendant
used force to accomplish at least some of the molestations. In addition, defendant
admitted to the use of force during the acts of molestation charged as counts 16 and 17.
Defendant testified that he “grabbed” Doe from behind while he was alone with her in his
bedroom. Defendant touched Doe’s breast and buttocks, and attempted to touch her
vagina, until Doe ran away. On a second occasion, defendant saw Doe walk by him in
the hallway. Defendant “stopped” Doe with his hand and “grabbed” her, touching her
breast with one hand and her buttocks with the other. The “force” requirement of section
288, subdivision (b)(1) will be deemed satisfied when the defendant uses any force that is
“different from and in excess of the type of force which is used in accomplishing similar
lewd acts with a victim’s consent.” (People v. Neel (1993) 19 Cal.App.4th 1784, 1790.)
“According to the majority of courts, this includes acts of grabbing, holding and
restraining that occur in conjunction with the lewd acts themselves.” (People v. Alvarez
(2009) 178 Cal.App.4th 999, 1005 [force element met where the defendant resisted the
victim’s attempts to push him away, holding the victim while he digitally penetrated her,
before grabbing the victim’s hands and placing them on his penis]; People v. Babcock
(1993) 14 Cal.App.4th 383, 388 [force element met when the defendant grabbed the
victim’s hands and made them touch his genital area].)

                                            9
also People v. Superior Court (Kneip), supra, 219 Cal.App.3d at p. 238.) Defendant was

Doe’s stepfather, and was responsible for taking care of her during the times he molested

her. As in People v. Espinoza, supra, 95 Cal.App.4th at page 1320 and Veale, supra, 160

Cal.App.4th at page 47, defendant occupied a position of authority in the family, handled

disciplinary matters and was a “father figure” to Doe. Defendant repeatedly admonished

Doe to tell no one about the molestations (see People v. Senior, supra, 3 Cal.App.4th at p.

775), and gave her money when he first began molesting her. When Doe tried to stop the

molestations by telling defendant she would inform her mother what was happening,

defendant hit and slapped her. All of these circumstances would have reasonably

contributed to Doe’s sense of duress during defendant’s molestations.

       The present case is similar to Veale. In Veale, the victim was six or seven years

old when the defendant, her stepfather, began molesting her. The victim was subjected to

acts similar to those committed against Doe in the current case. The victim in Veale

testified that she did not tell her mother about the molestations because she thought her

mother would not believe her, and the victim was afraid something might happen to her

mother if she disclosed the molestations, though the defendant in Veale had not made

such threats to the victim. This court concluded there was sufficient evidence of duress

to support convictions under section 288, subdivision (b)(1), because on at least one

occasion the bedroom door was locked, the defendant was an authority figure in the

household, and the victim was afraid to report the molestations. (Veale, supra, 160

Cal.App.4th at pp. 46-47.)


                                            10
       In the present case, as in Veale, the victim’s young age and the disparity of

physical size between Doe and defendant made her more susceptible to coercion due to

defendant’s position of authority in the family. Though no evidence was presented that

defendant locked a bedroom door, he did take steps to isolate Doe from others, such as

taking her into rooms in the home where no one else was present and calling her out of

her bedroom when a friend was spending the night, thereby making her more vulnerable

to defendant’s unlawful acts. (See, e.g., People v. Cochran, supra, 103 Cal.App.4th at

pp. 15-16; People v. Superior Court (Kneip), supra, 219 Cal.App.3d at p. 238.)

       Substantial evidence thus supports the jury’s implied finding of duress inherent in

defendant’s challenged convictions.

       Defendant’s reliance on People v. Espinoza, supra, 95 Cal.App.4th at page 1321 is

misplaced. In Espinoza, the court concluded there was insufficient evidence of duress

used to accomplish a series of molestations of the defendant’s 12-year-old daughter

during a one-month period, where the perpetrator never threatened the victim or said

anything other than expressing love for his daughter during the molestations. (Id. at p.

1295.) Unlike Doe, the victim in Espinoza “made no oral or physical response to his

acts.” (Id. at p. 1320, fn. omitted.)

       In contrast here, defendant’s molestations took place over a period of five years,

beginning when Doe was only seven or eight years old. Contrary to defendant’s assertion

that there was insufficient evidence of his threats to the victim, Doe testified that

defendant physically assaulted her on multiple occasions, and repeatedly admonished her


                                              11
not to tell anyone about the molestations because no one would believe her. Left unsaid

was that disclosure of the molestations would disrupt Doe’s mother’s relationship with

defendant and their household and family. Doe testified she believed the police might

take her sisters away if she revealed defendant’s molestations. We regard this as an

implied threat of hardship that would result if Doe refused to acquiesce to defendant’s

sexual demands. We conclude defendant “took advantage not only of his psychological

dominance as an adult authority figure, but also of his physical dominance to overcome

[Doe’s] resistance to molestation. This qualifies as duress.” (People v. Schulz, supra, 2

Cal.App.4th at p. 1005.)

       Based on the foregoing, substantial evidence exists to support defendant’s

convictions under section 288, subdivision (b)(1).

                                     III. Disposition

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                       P. J.


We concur:

RICHLI
                           J.

MILLER
                           J.



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