Filed 2/28/13 In re Giselle P. CA4/1
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                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                          STATE OF CALIFORNIA



In re GISELLE P., a Person Coming Under
the Juvenile Court Law.
                                                                   D061148
THE PEOPLE,

         Plaintiff and Respondent,                                 (Super. Ct. No. J229879)

         v.

GISELLE P.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Browder A. Willis III, Judge. Affirmed as modified.



         The juvenile court found Giselle P. committed the felony offenses of importing

more than four kilograms of cocaine into the United States (count 1), possessing

cocaine for sale (count 2), and possessing cocaine (count 3). The court adjudged

Giselle to be a ward of the court, ordered her committed to the Short Term Offender

Program, and imposed other terms and conditions of probation. Giselle appeals,
contending (1) the true findings must be reversed because she presented sufficient

evidence that she acted under duress, and (2) the true finding on count 3 (simple

possession) must be reversed because it is a lesser included offense of count 2

(possession for sale). The Attorney General concedes, and we agree, that count 3 is a

lesser included offense of count 2 and thus, the true finding on count 3 must be

reversed. In all other respects, we affirm the judgment.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In September 2011, a Customs and Border Protection (CBP) officer referred

Giselle to secondary inspection at the San Ysidro port of entry. At the secondary

inspection, Giselle lifted her blouse revealing a body suit with bulges in it. She stated,

"They made me do it and I'm glad you found it." A CBP officer found four packages

containing approximately four kilograms of cocaine hidden in the body suit.

       At trial, Giselle testified on her own behalf. She stated that she met Yolanda

Ramirez at school in Tijuana. Ramirez introduced her boyfriend, "Sancho," to Giselle

and told him that Giselle was born in the United States. Sancho then asked Giselle if

she wanted to make money by transporting drugs across the border. In response,

Giselle stated that she did not need any extra money.

       Sancho later told Giselle she was a "snot-nose brat" and stupid for turning down

his offer. He also threatened her, stating that he knew where she lived and when her

mother and sisters went to work and school. Sancho and Ramirez told Giselle not to

say anything or change her phone number. Thereafter, Giselle was afraid and



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transported small packages of drugs across the border on two occasions because

Ramirez and Sancho reminded her of the prior threats.

       The third time Giselle carried drugs across the border for Ramirez and Sancho

was on the date of her arrest in September 2011. This time, they called her and

demanded that she meet them at 4:00 a.m. When Giselle stated she could not leave her

house that early because her mother would find out, they stated, "[J]ust remember

what could happen to your mom or to your sisters."

       Giselle met with Ramirez and Sancho as directed. They drove to a house in

Tijuana where Ramirez and Sancho tied the drugs on Giselle so tight that she cried.

They yelled at her not to cry and again reminded her of the threats. When they all got

to the pedestrian border crossing, Ramirez and Sancho told Giselle not to look back

because they knew her every move and not to say anything or she would not find her

family when she returned.

       After hearing the evidence, the juvenile court rejected Giselle's duress defense

finding that the threats were nonspecific and did not present an immediate danger.

                                     DISCUSSION

       Giselle contends the juvenile court erred in rejecting her duress defense because

there was sufficient evidence to support it as a matter of law. We disagree.

       "Our review of [a minor's] substantial evidence claim is governed by the same

standard applicable to adult criminal cases. [Citation.] 'In reviewing the sufficiency of

the evidence, we must determine "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

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elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.] ' "[O]ur

role on appeal is a limited one." [Citation.] Under the substantial evidence rule, we

must presume in support of the judgment the existence of every fact that the trier of

fact could reasonably have deduced from the evidence. [Citation.] Thus, if the

circumstances reasonably justify the trier of fact's findings, the opinion of the

reviewing court that the circumstances might also reasonably be reconciled with a

contrary finding does not warrant reversal of the judgment. [Citation.]' [Citation.]"

(In re V.V. (2011) 51 Cal.4th 1020, 1026.) We may not reweigh the evidence,

reappraise the credibility of the witnesses, or resolve factual conflicts, as these are

functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606,

884.)

        "Duress is an effective defense only when the actor responds to an immediate

and imminent danger. '[A] fear of future harm to one's life does not relieve one of

responsibility for the crimes he commits.' " (People v. Heath (1989) 207 Cal.App.3d

892, 900.) " 'Because of the immediacy requirement, a person committing a crime

under duress has only the choice of imminent death or executing the requested crime.

The person being threatened has no time to formulate what is a reasonable and viable

course of conduct nor to formulate criminal intent. . . .' Decisions upholding the

duress defense have uniformly involved ' "a present and active aggressor threatening

immediate danger." ' " (People v. Petznick (2003) 114 Cal.App.4th 663, 676

(Petznick).)



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       Here, viewing the evidence in the light most favorable to the prosecution, there

was substantial evidence to support the juvenile court's finding that Giselle did not act

under an immediate or imminent threat of harm. Giselle's own testimony demonstrates

that the threats did not present an immediate danger. She testified that the threats

consisted of Ramirez and Sancho telling her they knew where her family lived and

when her mother and sisters went to work and school. Additionally, when they got to

the border, Ramirez and Sancho told Giselle not to look back because they knew her

every move and not to say anything or she would not find her family when she

returned. These threats were vague assertions of future harm. "A 'phantasmagoria of

future harm' such as a threat of death to be carried out at some undefined time, will not

diminish criminal culpability." (Petznick, supra, 114 Cal.App.4th at pp. 676–677.)

       The imminency requirement is also not satisfied because Giselle had numerous

opportunities to reflect on her actions. She had the option to seek assistance or decline

to participate in the criminal act several times. For example, Giselle did not have to

meet with Sancho and Ramirez at 4:00 in the morning or, at a minimum, she had the

ability to seek assistance when she was outside their immediate presence. Instead,

Giselle waited until she was referred to secondary inspection and was about to undergo

a pat-down search before she revealed the drugs hidden in her clothing. Prior to that

point, she had multiple chances to formulate a reasonable response, but she did not do

so.

       Based on the foregoing, we conclude there was substantial evidence to support

the trial court's rejection of Giselle's duress defense.

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                                   DISPOSITION

       The true finding on count 3 for a violation of Health and Safety Code section

11350, subdivision (a), possession of cocaine, is reversed. As modified, the judgment

is affirmed.



                                                              MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.




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