Filed 1/27/14 P. v. Rosas CA2/3
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                              B241854
         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. KA091280)
         v.
JOSE ROSAS,
         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Tia Fisher, Judge. Affirmed.
         Vanessa Place, 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, Assistant Attorney General, Steven D.
Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.


                           _____________________________________________
       Jose Rosas (appellant) appeals the judgment following a jury trial in
which he was found guilty of committing five counts of a lewd or lascivious act
upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1, 3, 5,
7 & 8),1 sexual intercourse by a person over 18 years of age with a child who is
10 years of age or younger (§ 288.7, subd. (a); count 2), a forcible lewd or
lascivious act upon a child under the age of 14 years (Pen. Code, § 288,
subd. (b)(1); count 4), and continuous sexual abuse of a child under the age of 14
(§ 288.5, subd. (a); count 6).2
       The trial court sentenced appellant to an aggregate determinate term of
30 years, as follows: for count 6, a determinate term of 16 years; for count 4 a
consecutive determinate term of eight years; and for counts 1, 7 and 8 consecutive
determinate terms of two years each (one-third the middle term of six years).
It then imposed, for count 2, a fully consecutive term of 25 years to life. The
terms for counts 3 and 5 were imposed concurrently. The total term in state prison
was 55 years to life.




1
       All further references are to the Penal Code unless otherwise indicated.
2
       Count 1, a lewd act upon a child under the age of 14, was alleged to have
occurred on or between September 19, 2004, and September 18, 2006. Count 2,
sexual intercourse by a person over 18 years of age with a child 10 years or
younger, was alleged to have occurred on or between September 20, 2006, and
September 18, 2007. Count 3, a lewd act upon a child under the age of 14, was
alleged to have occurred between September 20, 2006, and September 18, 2007.
Count 4, a forcible lewd act upon a child under the age of 14, was alleged to have
occurred on or between September 19, 2007, and December 29, 2009. Count 5,
lewd act upon a child under the age of 14, was alleged to have occurred on or
between September 19, 2007, and December 31, 2009. Count 6, continuous
sexual abuse, was alleged to have occurred between January 1, 2010, and July 13,
2010. Counts 7 and 8, committing a lewd act upon a child under 14 years of age,
were alleged to have occurred on or about July 14, 2010.


                                         2
       He contends that he is entitled to a reduction of his conviction in count 4
by striking the jury findings of duress and/or force and imposing the lesser term of
punishment for a violation of section 288, subdivision (a), as the evidence is
insufficient to show he accomplished this offense by force and/or duress.
                                  BACKGROUND
       We view the evidence in the light most favorable to the verdict and resolve
all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.
Barnes (1986) 42 Cal.3d 284, 303.)
       1. The prosecution case.
       Jane Doe (Jane) was born in September 1996.3 Fourteen-year-old Jane
testified that from age eight through 14 she lived with her mother R., her
stepfather appellant, an older sister M., and her younger brother Abraham. They
lived in the rear house on the same lot as her aunt’s Azusa residence. Jane called
appellant “dad,” and he was the only father she had known; he had moved in with
her mother when she was very young.
       Jane testified that appellant had engaged her in continuous sexual abuse
from the time she was eight years old until she was 13 years old, at which time she
reported the abuse. Jane recalled that at about age eight or nine, appellant started
showing a sexual interest in her. He began staring at her and rubbing her chest
underneath her clothing. When Jane was nine or 10 years old, her mother took the
children with her to Mexico. Appellant did not accompany them.
       When Jane was age 10, they returned to Azusa. The family again took up
residence with Jane’s aunt, living in one room in the residence at the front of the
property where her aunt lived. Immediately upon their return, appellant started
having sexual intercourse with her on a daily basis. He digitally penetrated her


3
       During the proceedings, the victim’s true name was not revealed. She was
referred to as “Jane Doe” throughout the trial. In this appeal, we also will refer to
her as “Jane Doe,” or “Jane.”


                                          3
vagina some six to 11 times. When she was 12 years old, he began orally
copulating her as well. At trial, she claimed he never sodomized her. She said
that the older she became, the more frequently he molested her.
       Jane said that, primarily, appellant raped her at night in the kitchen when
everyone in the household was asleep. On other occasions, he raped her in the
family’s bedroom when they were alone during the day. He would even call Jane
in from play in order to rape her.
       Jane was afraid to report the sexual abuse to her mother. Initially, she
believed her mother would not believe her. She had concluded her mother loved
appellant more than she loved Jane. Later, Jane was afraid to upset her mother as
her mother had diabetes, and Jane believed her complaint might aggravate her
mother’s diabetes.
       On July 14, 2010, when Jane was age 13, appellant raped her twice in the
early morning. That evening, her mother questioned her about why she was
looking so sad. Jane could not stand the abuse anymore and told her mother that
appellant had raped her that morning. Jane’s sister telephoned the police.
       Jane indicated she had not wanted to engage in sexual activity with
appellant. But he would wake her up at night and signal her he wanted her in the
kitchen. If she did not get up or indicated, “No,” he would tell her or wave at her,
“Come.” Or he would tap her foot, waking her up. She would “make a little lie
that [she was] going to go drink water, but [she didn’t].” If she refused to go, the
next day he would be “mad” at her and would not assist her if she needed some
help. Sometimes she did not go if she was tired. On other occasions, she would
not go because she really did not “want this anymore.”
       Once she was in the kitchen, he would start touching her. Then he would
tell her “to bend over” or “something like that.” He had demonstrated for her the
position in which he wanted her to kneel on the floor -- on her hands and knees.
When she got into position, he would then pull her pants or panties down, take off
his lower clothing and rape her. When he inserted his penis, it would hurt.


                                          4
During sexual intercourse, he would lean on her back and put his hands on her
shoulders. Then he would move back and forth until he ejaculated, and he would
quickly remove his penis from her vagina. He apparently did not always use a
condom.
       If he abused her during the daytime, he would “make up a little lie” about
requiring her to do a chore and have her enter the bedroom. He would close and
lock the door and pull the curtains down. Then he would tell her to lie on the bed.
The first time he raped her, he lay down where she was sleeping on the floor.
He lay against her back and pulled her pants down and inserted his penis into her
vagina. She could not recall whether he hugged her to him to achieve penetration.
Later, when he had her enter the bedroom, he would have her kneel on the edge of
the bed with her arms on the bed. He would put a hand on her shoulder.
       At one point, Jane asked appellant to stop. He replied, “No.” She asked
him why he was doing to this to her, and he did not reply.
       At trial, Jane claimed that when appellant put his penis in her vagina, she
did not attempt to move away from him. However, at the preliminary hearing, she
testified that on occasions, she would attempt to get away. Sometimes, she was
able to crawl away from him. But many times, she was unable to do so as
appellant held her in place by putting his hands on her shoulders.
       Malinda Wheeler (Wheeler), a forensic nurse specialist, testified to Jane’s
post-complaint sexual assault examination. Jane told Wheeler that appellant had
threatened her, “ ‘Don’t tell anyone or I won’t let you go out with your friends.’ ”
Jane said that appellant had been sexually assaulting her since age eight, and it had
been going on day and night. Jane told Wheeler that appellant had sodomized her
in the past but denied digital penetration and oral copulation. Wheeler concluded
that Jane had an abrasion on the opening to the vagina, which was consistent with
sexual activity. She had a loss of hymenal tissue consistent with past trauma and
an anal tear at the 12:00 o’clock position that was less than a week old.



                                          5
       On July 14, 2010, after Jane reported the abuse to her mother, appellant was
arrested. After a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436
(Miranda)), he admitted to the transporting deputy that he had had sexual
intercourse with Jane that day. He claimed he did not begin having sexual
intercourse with Jane until she was 12 and a half years old, and he had had
sexual intercourse with her about 30 times.
       On July 15, 2010, Los Angeles County Deputy Sheriff Janet O’Bryan
spoke to appellant. After another Miranda waiver, he claimed that he started
having sex with Jane six months previously at age 12 at Jane’s request. He
admitted having sexual intercourse with Jane on the morning of July 14, 2010, and
that he had previously orally copulated Jane. He said the sexual abuse was limited
to some 30 incidents in the last six months. He agreed that his wife took the
children to Mexico in 2006, and they were gone about a year, returning in August
or September 2007.
       2. The Defense.
       Appellant, age 51, testified that he had orally copulated Jane on the
morning of July 14, 2010, stopped, and shortly thereafter returned to the bedroom
to have sexual intercourse with her. Otherwise, he had engaged in sexual
intercourse with her on only three previous occasions in February and March of
that year and only after Jane was 12 and a half years old. He claimed he had
engaged in no further sexual or lewd acts with her. On the occasions of these acts,
he never held her down, threatened her or told her she could not see her friends.
He succumbed to having sexual relations with Jane as she had insisted he “tickle”
her.
       When he was arrested, he told the arresting deputy he had had sex with
Jane only five times, but the deputy told him to say it had occurred more often.
The deputy told him if he admitted more acts, the authorities would file fewer
charges against him. So he admitted 30 acts of sexual misconduct, instead of the
five sexual acts he had actually committed. During the subsequent interview with


                                         6
Deputy O’Bryan, he simply repeated the false claim of 30 acts of sexual
misconduct.
                                    DISCUSSION
       1. Sufficiency of the evidence.
       Recently, in People v. Whisenhunt (2008) 44 Cal.4th 174, the
California Supreme Court summarized the well-established standard of review.
       “ ‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—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.” [Citations.] We presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citation.] [¶]
The same standard of review applies to cases in which the prosecution relies
primarily on circumstantial evidence . . . . [Citation.] “[I]f the circumstances
reasonably justify the jury’s findings, the judgment may not be reversed simply
because the circumstances might also reasonably be reconciled with a contrary
finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s
credibility. [Citation.]’ [Citation.]” (People v. Whisenhunt, supra, 44 Cal.4th
at p. 200.)
       “ ‘ “Although an appellate court will not uphold a judgment or verdict
based upon evidence inherently improbable, testimony which merely discloses
unusual circumstances does not come within that category. [Citation.] To warrant
the rejection of the statements given by a witness who has been believed by the
[trier of fact], there must exist either a physical impossibility that they are true, or
their falsity must be apparent without resorting to inferences or deductions.
[Citations.] Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the truth or falsity of the


                                            7
facts upon which a determination depends. [Citation.]”. . . .’ [Citation.]”
(People v. Barnes (1986) 42 Cal.3d 284, 303-304, 306.)
       The uncorroborated testimony of a single witness is sufficient to sustain a
conviction unless it is physically impossible or inherently improbable. (People v.
Young (2005) 34 Cal.4th 1149, 1181.) Indeed, “ ‘[t]he testimony of a single
witness is sufficient to uphold a judgment even if it is contradicted by other
evidence, inconsistent or false as to other portions. [Citations.]’ ” (In re Robert V.
(1982) 132 Cal.App.3d 815, 821.)
       2. Other relevant legal principles.
       In pertinent part, section 288 provides, as follows. “(a) Except as provided
in subdivision (i), any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes provided for in
Part 1, upon or with the body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing, appealing to, or gratifying
the lust, passions, or sexual desires of that person or the child, is guilty of a felony
. . . [¶] (b)(1) Any person who commits an act described in subdivision (a) by use
of force, violence, duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person, is guilty of a felony . . . .” (Italics added.)
       In order to establish “force” within the meaning of section 288, subdivision
(b), the People must show a defendant used physical force “ ‘substantially
different from or substantially greater than that necessary to accomplish the lewd
act itself.’ [Citation.]” (People v. Soto (2011) 51 Cal.4th 229, 242 (Soto).)
       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.]” (Soto, supra, 51 Cal.4th at p. 246.)




                                           8
       “There is some overlap between what constitutes duress and what
constitutes force. This is because duress is often associated with the use of
physical force, which may, but need not be present to have duress. However, as
we have pointed out, the terms cannot be treated synonymously. An application of
the previously stated rule of statutory construction dictates that we find that
force, as used in the context of section 288, subdivision (b), refers only to physical
force. To extend the meaning of that word to cover psychological coercion would
be tantamount to rendering the word ‘duress’ meaningless in that statute.”
(People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. 9, overruled on another point
in Soto, supra, 51 Cal.4th at p. 248, fn. 12.)
       The totality of the circumstances are to be considered in appraising the
existence of duress. (Soto, supra, 51 Cal.4th 229, 246, fn. 9.) Such factors may
include a notable disparity in the physical size and age between the defendant and
the victim (Pitmon, supra, 170 Cal.App.3d at p. 51), physical control that does not
amount to “force” (People v. Senior (1992) 3 Cal.App.4th 765, 775), and a long-
standing relationship of trust or commission of the crime in an isolated location
(People v. Superior Court (Kneip) (1990) 219 Cal.App.3d at pp. 238-239 (Kneip)).
       “A threat to a child of adverse consequences . . . may constitute a threat of
retribution and may be sufficient to establish duress, particularly if the child is
young and the defendant is her parent.” (People v. Cochran (2002) 103
Cal.App.4th 8, 15, overruled on another point in Soto, supra, 51 Cal.4th at p. 248,
fn. 12; see Kneip, supra, 219 Cal.App.3d at p. 238-239 [molestations took place in
an isolated room out of the presence of other adults, and the boy was threatened
with humiliation and shame if he did not cooperate]; People v. Bergscheider
(1989) 211 Cal.App.3d 144, 154, overruled on another point in People v. Griffin
(2004) 33 Cal.4th 1015, 1028 [threat of punishment and restriction held sufficient
to convict defendant accused of sexual misconduct with 13-year-old
stepdaughter].)



                                           9
       “ ‘Lack of consent is not an element of the offense prohibited by section
288, subdivision (b), and the victim’s consent is not an affirmative defense to such
a charge. The victim’s consent or lack thereof is simply immaterial.’ [Citation.]”
(Soto, supra, 51 Cal.4th at p. 245.) “ ‘[T]he victim’s actual consent does not
eliminate the fact that the defendant actually uses violence, compulsion or
constraint in the commission of the lewd act, nor does the victim’s consent
diminish the defendant’s culpability or immunize the defendant from suffering the
penal consequences that arise from a forcible lewd act.’ Likewise, with respect to
implied coercion or duress, a ‘child victim’s actual consent does not eliminate the
fact that the perpetrator utilizes duress in the commission of the lewd act, and does
not reduce the perpetrator’s culpability or eliminate the penal consequences that
attach due to the perpetrator’s conduct.’ ” (Ibid.)
       Whether a defendant used “force” or “duress” are factual issues to be
determined by the trier of fact. (People v. Babcock (1993) 14 Cal.App.4th 383,
388, citation omitted; Kneip, supra, 219 Cal.App.3d at p. 238.)4
       3. The analysis.
       Substantial evidence is found in this record to support the jury’s findings of
force and/or duress.
       Jane testified to or made statements at the preliminary hearing and to the
forensic nurse, Wheeler, that demonstrate force and duress. Appellant engaged in
duress to get Jane to cooperate in the sexual activity by threatening not to let her
play with her friends and by withholding assistance from her on the days
following any refusal to get out of bed to join him in the kitchen. He used his




4
      The decision in People v. Woffinden was ordered reprinted for tracking
pending review by the California Supreme Court at 31 Cal.App.4th 1664 and
ordered depublished. (29 Cal.Rptr.2d 538; 871 P.2d 1133.) Review was later
dismissed. (40 Cal.Rptr.2d 402; 892 P.2d 1145.)


                                          10
authority as her father to order her into the kitchen in the dead of night and in from
play so he could engage in forcible lewd acts with her.
       Further, Jane testified that appellant in effect had ordered her into the
kitchen at night when she did not wish to go by telling her to “Come” when she
ignored his signal to get out of bed. If she tried to crawl away from him when he
started having sexual intercourse with her, he held her in place with a hand or
hands on her shoulders. On one occasion, she asked him to “stop.” He refused
and then did not reply when she asked why he was subjecting her to sexual abuse.
       The above evidence demonstrates circumstances amounting to duress and
that appellant used physical force substantially different from or substantially
greater than necessary to accomplish the lewd acts.
                                   DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KLEIN, P. J.


We concur:




              CROSKEY, J.




              ALDRICH, J.




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