Filed 9/24/13 P. v. Villarreal CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037177
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR0900317)

         v.

JUVENTINO G. VILLARREAL,

         Defendant and Appellant.



                                                1.   INTRODUCTION

         Defendant Juventino G. Villarreal was charged in an amended information with
five kinds of sexual offenses, some repeated, involving his stepdaughter, D.1 The
charged offenses were continuous sexual abuse of a child under 14 (Pen. Code, § 288.5;
count 1) 2 between the spring of 1998 and the fall of 2005, lewd and lascivious touching
of a child under 14 (§ 288, subd. (a); counts 2, 3, 4, 5, 7, 8, 9, 13), oral copulation with a
child who was under 14 and more than 10 years younger than defendant (§ 288a, subd.
(c)(1); counts 6, 10, 11, 12, 14), sexual penetration with a foreign object (§ 289, subd.



         1
        To protect the victim’s privacy, we will refer to her as “D” and will not give the
names of her mother, uncle, or grandmother.
      2
        Unspecified section references are to the Penal Code.
(a)(1); count 15); and aggravated sexual assault on a child who is under 14 and at least
seven years younger than defendant by foreign object penetration (§ 269, subd. (a)(5);
count 16). The amended information alleged that the offenses occurred in four different
locations in Hollister and it alleged a season and year during which each of the 15
separate offenses (counts 2 through 16) occurred.
       The jury found defendant guilty as charged, except for finding him not guilty of
alternative count 1 (continuous sexual abuse), as well as counts 4 (lewd touching in the
winter of 2001), 8 (lewd touching in the winter of 2003), and 11 (oral copulation in the
winter of 2003). The trial court sentenced defendant to an indeterminate term of 15 years
to life on count 16 for the aggravated sexual assault, with 24 consecutive years for the
remaining counts.
       On appeal, defendant raises the following claims: (1) jury misconduct; (2)
insufficient evidence of force or duress to support counts 15 and 16; (3) that the trial
court erred in omitting a unanimity instruction; (4) that the trial court erred in failing to
give a lesser included offense instruction; and (5) that the trial court should not have
imposed separate punishments on alternative counts 7, 9, and 13.
       We will conclude that the judgment must be reversed because the presumption of
prejudice that arises from juror misconduct––in this case pre-deliberation discussions
among two jurors who declared their belief that defendant was guilty prior to hearing the
defense––has not been rebutted. To provide guidance if defendant is retried, we also will
conclude that (1) there was substantial evidence to support counts 15 and 16, (2) count 15
was a necessarily included offense of count 16, and (3) there was no instructional error
relating to count 15 as a lesser included offense of count 16.




                                               2
                                      2.   THE TRIAL

       A.    PROSECUTION EVIDENCE

       Although the jury was not instructed to find the locations of the different offenses,
it will facilitate review of the evidence to group the charges chronologically by their four
locations.
(1). Defendant’s residence before cohabitation (count 2)

       Count 2 (spring 1998) alleged lewd touching before D and her mother began
living with defendant. The jury found defendant guilty of count 2.
       D’s mother remembered meeting defendant in 1997 or 1998. Defendant was born
in 1955. D, who was born in 1992, recalled being five years old when her mother began
dating defendant. One day in the early afternoon, while her mother was at work, D was
sitting on defendant’s bed and watching TV in a room he was renting in Hollister.
Defendant asked her to take her hand and rub his penis through his clothing. He took her
hand and placed it on his groin area. She was confused and scared because she knew it
was a private part that other people should not touch. She does not remember her age.
She was about to finish kindergarten. “It felt like summer, because it was—it wasn’t hot,
but it wasn’t cold.” It was in spring or summer.
(2). First apartment where D lived with defendant (counts 3-6)

       Counts 3 (fall 2000), 4 (winter 2001), and 5 (spring 2001) alleged lewd touching
in the first apartment that defendant shared with D and her mother. Count 6 (fall 2000)
alleged oral copulation in that apartment. The jury found defendant guilty of all of these
counts, except count 4.
       According to D’s mother, she married defendant in July 2000. Defendant filed for
divorce a month or two after they got married. They kept living together off and on for
years. Defendant was very persistent in calling her and repeatedly told her that she




                                             3
belonged to him. D recalled that her mother married defendant the summer after she was
in fifth grade (which would have been in 2002).
      As D recalled, when she was in third grade, she and her mother moved into a
Hollister apartment with defendant. In that apartment, one morning after D’s mother had
gone to work, defendant was under the covers in bed watching TV. He asked D to bring
him some coffee, so she did. Then he asked her to get in bed with him. She did. He was
naked. He started touching and rubbing her and asked if it felt good. He undressed her.
He touched her chest and vagina and rubbed his groin on her vagina. It ended with him
ejaculating. He told her “that was supposed to happen.” She just went with it. She
remembered it being in the spring or summer.
      D testified that this kind of encounter happened “a lot. If I were to give it a
number, I’d say like, you know—like, ten times or even more.”
      One time when D was in the third grade, after defendant had finished showering,
he asked D to come into the bathroom. He was still naked. He put his penis in her mouth
and ejaculated. She “got really freaked out” and he told her, “ ‘don’t worry. That’s
supposed to happen.’ ” That only happened once in that particular apartment.
      D testified that defendant did not do anything to make D feel uncomfortable
around Thanksgiving or Christmas while living in that apartment. “[S]tuff like that
would never happen around, you know, the holiday time, or even, like, around my
birthday. Like not—not in November or December, or January or February.” D’s
mother took vacation time and was home more during that time of year.
      D’s mother always had two jobs, as did defendant. He worked at a liquor store
and a place called Couch. D recalled that defendant had a lot of weekends off and her
mother did not.




                                             4
(3). Second apartment where D lived with defendant (counts 7-12)

       Counts 10 (fall 2002), 11 (winter 2003), and 12 (spring 2003) alleged oral
copulation in the second apartment that defendant shared with D and her mother. Counts
7 (fall 2002), 8 (winter 2003), and 9 (spring 2003), as the prosecutor explained, charged
lewd and lascivious touching as an alternative to the oral copulation charges 10 through
12. The jury found defendant guilty of all of these counts, except counts 8 and 11.
       When D was in the fifth grade, she, her mother, and defendant moved to another
apartment on the same street as the first apartment they shared. “There was a lot more
oral copulation that I remember happened at that apartment,” she testified. Her mother
and defendant had their own bathroom in their bedroom. Defendant would come into D’s
bathroom and “try to be romantic about it” and put his arm around her. He would be
fully dressed at first and then he would drop his pants. Sometimes D was dressed. Other
times they got into her shower together. She could not say how many times it occurred.
“Like, number-wise, it would be probably, maybe more than ten oral cop.” From these
encounters, she remembered two colognes he wore and how he chewed Winterfresh gum.
       She recalled one occasion when defendant got upset because he could not
ejaculate when she was performing oral sex. She asked him what she had done wrong.
In a forceful voice, he told her to get out.
       After leaving defendant, her mother and D lived with her aunt and later moved to
Los Baños for a short time.
(4). Defendant’s apartment in Hollister (counts 13-16)

       Count 14 (summer 2005) charged oral copulation. The prosecutor told the jury
that count 13 (summer 2005) charged lewd and lascivious touching as an alternative to
count 14. Count 15 (fall 2005) charged sexual penetration, and count 16 (fall 2005)
charged aggravated assault on a child based on sexual penetration. The jury found
defendant guilty of all of these counts.


                                               5
       D and her mother returned from Los Baños before D started eighth grade and
stayed in defendant’s new Hollister apartment. According to D, defendant started back
up again. When D’s mother was off to work, he wanted to touch and kiss her a lot. “I
remember him humping me a lot.” She slept on a futon in the living room. On the futon,
“he liked to hump me with his clothes on. But when we were in his bedroom upstairs, he
liked to hump me with his clothes off. And I guess at that point, he—he was a little more
forceful when we were upstairs.” She watched TV upstairs in his bedroom. He kissed
her, put his arm around her, and removed her clothes on the bed. He removed his shirt
and hers.
       The humping was like intercourse without his penis inside her. They never had
intercourse. He ejaculated on her or on his underwear, but not on the sheets.
       One day “when I was wearing my jeans, he was a bit too aggressive and, like, he
ripped off the whole—like, the loop where you put the belt in your jeans.” He was
unclothed at the time. He rubbed his penis on the entrance of her vagina. He inserted a
finger inside her vagina and she got really scared because it was a weird feeling. She
testified that she “was, like, wiggling and screaming and stuff. And he would usually try
and apply pressure on me to keep me on the bed because he was on top. When I felt his
finger in there and I was, like, screaming, I got out and I left him.”3 She did not know if
it was supposed to be pleasurable or painful. It was just weird.



       3
          When D began describing a time that defendant grabbed her pants and ripped off
a belt loop, the prosecutor asked, “What happened on that occasion?” D answered: “The
day that he ripped off the little part of my pants, I remember that, you know, he was
unclothed and I was unclothed. He would rub his penis on the entrance of my vagina, but
never inside. He never inserted his penis inside. We never had intercourse, but he—he—
he inserted one of his fingers inside of my vagina and I got really scared because that was
a weird feeling. And, like, I was, like, wiggling and screaming and stuff. And he would
usually try and apply pressure on me to keep me on the bed because he was on top.
                                                                                (Continued)


                                             6
          He always asked her if it felt good and if she liked it. He told her that she was so
good.
          On one occasion in that apartment, her mother almost witnessed one of their
encounters. Defendant and D were both in the kitchen joking when defendant pulled
down his pants, waved his penis at D, and told her to put it in her mouth. She complied
and he “did his thing.” That time he ejaculated in his underwear, not in her mouth.
Through half-drawn blinds on the kitchen window, D saw her mother drive up and park
when defendant had just finished ejaculating. D got scared and ran upstairs.
(5). Disclosure

          During car rides when her mother was not around, defendant said to D: “ ‘[T]his is
our thing. Whatever happens between us stays between us and nobody else needs to
know.’ ” “ ‘[Y]ou wouldn’t want to get me in trouble.’ ”
          D testified that she “didn’t want to get in trouble. I didn’t want him in trouble and
I don’t want my mom to be without a husband.” She was concerned about getting her
dad into trouble, but she was more concerned about her mother being alone. Her mother
really loved him.
          Her mother encouraged D to give defendant cards and gifts. “[M]y mom told me
that, you know, we should be thankful that he’s in our life, so we should buy him things
to show that.” Her mother insisted that D give him cards in July 2004, April 2005, and
April 2007, expressing her love for daddy, and slippers in 2008 saying “ ‘world’s greatest
dad.’ ”
          D recalled telling her mother about defendant molesting her on two occasions
before they contacted the police in January 2009.


When I felt his finger in there and I was, like, screaming, I got out and I left him. Got
like, too[] scared.”



                                                7
       According to D, one time her grandmother caught her reenacting with a younger
male cousin what defendant had done to her. D kissed her cousin and rubbed on him. He
was on top of her. She did not touch his penis. He was wearing diapers at the time. That
cousin wore diapers for a long time. Her grandmother came in and yelled at her and
asked where she learned that behavior. D told her grandmother that it was from
defendant, who was touching her private parts. D said that her grandmother told her
mother about the incident when her mother returned from work, and D told her mother
that defendant was touching her private parts.4
       D’s mother testified that she was unaware that D had a sexual encounter with one
of her cousins. When D’s mother was with defendant, he seemed to her to act like “a
dad” to D.
       D also said that she talked to her maternal uncle about these incidents when she
was entering high school. Her uncle testified that she seemed upset once as he was
returning her home from a visit. He asked her what was bothering her, and she said there
had been some sexual misconduct involving her former stepfather. D also told him about
sexually inappropriate conduct with her cousin. Her uncle’s initial reaction was to go to
the police. D, however, was very concerned about her mother. Her uncle agreed to let
her talk to her mother about it first.
       D recalled telling her mother that defendant was touching her in places he should
not be touching. D’s mother recalled that her brother called her in 2005 or 2006 about
defendant molesting D. After D’s uncle dropped her off and left, D’s mother asked D



       4
         D could not recall how old she was at the time of this incident. She remembered
that they were living in their first shared apartment (which began in 2000). She also
estimated that she was five or six years old at the time (which would have been in 1998),
which would have made her cousin three years old.



                                            8
what she wanted to do about it. D cried a lot and said she did not want to do anything
about it. D’s mother believed her, but did not want to put her through the legal process.
       D’s mother told her brother by telephone that they were not going to do anything
about the molests, so he called CPS himself. They told him they would investigate but
could not update him with their findings.
       CPS contacted D in her freshman year of high school. She told them nothing had
happened.
       According to D’s mother, D then had a nervous breakdown in January 2009 and
accused her of not protecting her against defendant’s sexual abuse. They contacted the
San Benito County Sheriff’s office in January 2009 and reported the molestation. D at
first told a detective that the touching stopped after sixth grade once they moved out. She
said that she did not talk about other incidents because she was scared and it was hard to
talk about.
       Carl Lewis testified as an expert on child sexual abuse accommodation syndrome.
He described various behaviors typical of child molestation. Secrecy is common, with
the offender reinforcing to the child that what happened should stay secret. The child
often feels helpless to resist, particularly when there is a previous dependence
relationship. The child may accommodate the situation by continuing to get along with
the offender, while manifesting distress in other ways. Domestic martyrdom describes
the child sacrificing himself or herself to keep the family together. Disclosure may be
delayed, unconvincing, and conflicted. Most child abuse is not disclosed during
childhood. After disclosure there may be retraction due to a strong reaction from the
government and possibly removing the child from the home. Lewis emphasized that the
“syndrome” is not a diagnostic tool.
       B.   DEFENSE EVIDENCE

       Defendant acknowledged having an on and off relationship with D’s mother
between late 1998, when they started dating, and late 2002 or early 2003, when he ended

                                             9
their physical relationship. They were married in July 2000, separated three months later,
and got back together after getting divorced. He admitted that D and her mother stayed
with him in his apartment in Hollister when they returned from Los Baños.
          Defendant worked two jobs at the time, one as a warehouse supervisor for a beer
distributor and the other at a liquor store.
          Defendant regarded D as his daughter. He denied assaulting her and engaging in
oral copulation or digital penetration. It was not his practice to have her bring him coffee
in bed.
          Defendant’s son, Juventino Villarreal III, was 31 years old at the time of trial in
July 2010. He had known D since 1998 or 1999, though they had not lived together. He
saw positive interactions between D and defendant. D showed defendant affection and
did not shun him.
          Defendant’s son’s wife had seen D interact like a caring daughter with defendant.
As vice-principal of an elementary school, she is a mandated reporter of child abuse. She
saw no evidence of molestation in D’s interactions with defendant.
          D’s grandmother denied seeing D doing anything sexually inappropriate with a
male cousin, though she recalled that once they were playing in the bedroom with the
door closed.
          C.   JUROR DELIBERATIONS AND POSTTRIAL MOTIONS

          The jury was instructed on Friday, July 30, 2010, after three days of testimony.
Included was an instruction that the continuous sexual abuse charge in count 1 was an
alternative charge to counts 2 through 16 and that defendant could not be found guilty of
both count 1 and any of the other charges. And the prosecutor explained to the jury that
of the five oral copulation charges (counts 6, 10, 11, 12, 14), four incidents––counts 7, 8,
9, and 13––were alternatively charged as lewd and lascivious touching “because oral
copulation could be construed to be a lewd and lascivious act.” In other words, for those
four incidents, the jury could find that the defendant committed oral copulation or lewd

                                                10
and lascivious conduct, but not both. Finally, the prosecutor explained that the proof of
count 16 (aggravated sexual assault on a child) was that defendant committed count 15,
the crime of foreign object penetration.
       The jury retired to deliberate at 11:45 a.m. At 12:10 p.m., one juror (“Juror One”)
wrote a note to the judge saying that the defendant’s son might have been a student of his
a long time ago. After conferring with counsel, the judge wrote a note back saying it was
not a cause for concern. At 1:30 p.m., the jury asked for and received a readback of what
defendant said about D serving him coffee in bed. Deliberations ended for the day at
4:35 p.m. to resume on Monday.
       Deliberations resumed at 9 a.m. on Monday, August 2, 2010. At 10:25 a.m., the
jury wrote a note expressing confusion about which count was referenced in the part of
the instructions relating to count 16. After conferring with counsel, the judge wrote a
note explaining that this part of the instructions referenced count 15 (sexual penetration
with a foreign object). At 10:48 a.m. the jury informed the bailiff they had reached their
verdicts in which they found defendant guilty as charged, except for finding him not
guilty of alternative count 1 (continuous sexual abuse), as well as counts 4 (lewd
touching in the winter of 2001), 8 (lewd touching in the winter of 2003), and 11 (oral
copulation in the winter of 2003).
       After his conviction, defendant made two different motions for a new trial. The
first motion alleged the omission of a unanimity instruction and the lack of evidence of
force or duress to support the foreign object penetration convictions (counts 15 and 16).
The second motion alleged juror misconduct in that two jurors had discussed the case
during the prosecution’s presentation of evidence and predetermined defendant’s guilt
before deliberations. The trial court denied both motions after hearings on each.
                                 3.   JUROR MISCONDUCT

       Defendant raises two claims related to juror misconduct: (1) that two individual
jurors committed serious misconduct in violation of his rights to a fair trial by an

                                             11
impartial jury under the Sixth and Fourteenth Amendments, and (2) that the trial court
violated his due process rights by precluding him from contacting one of the offending
jurors. He contends both errors require reversal.
       A. STANDARD OF REVIEW
       We accept the trial court’s factual findings and credibility determinations if they
are supported by substantial evidence, but we independently review whether any
misconduct was prejudicial. (People v. Dykes (2009) 46 Cal.4th 731, 809.)
       A finding of misconduct raises a rebuttable presumption of prejudice. “As a
general rule, juror misconduct ‘raises a presumption of prejudice that may be rebutted by
proof that no prejudice actually resulted.’ ” (In re Hitchings (1993) 6 Cal.4th 97, 118
(Hitchings).) “The defendant need not affirmatively prove the jury’s deliberations were
improperly affected by the misconduct, for that cannot be done under Evidence Code
section 1150 . . . . Therefore, ‘ “The presumption of prejudice is an evidentiary aid to
those parties who are able to establish serious misconduct of a type likely to have had an
effect on the verdict or which deprived the complaining party of thorough consideration
of his case, yet who are unable to establish by a preponderance of the evidence that actual
prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice
which Evidence Code section 1150 erects, and it seeks to lower that barrier somewhat.” ’ ”
(In re Carpenter (1995) 9 Cal.4th 634, 652, internal citation omitted (Carpenter).)
       The presumption of prejudice is rebutted if the entire record, including the nature
of the misconduct and the surrounding circumstances, shows there is no reasonable
probability of prejudice, i.e., no substantial likelihood that one or more jurors were
actually biased against the defendant. (People v. Davis (2009) 46 Cal.4th 539, 625; In re
Hamilton (1999) 20 Cal.4th 273, 296.)
       As to the order precluding defendant from contacting a juror, we review the trial
court’s ruling for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317;
People v. Carrasco (2008) 163 Cal.App.4th 978, 991; People v. Santos (2007) 147

                                             12
Cal.App.4th 965, 978.) Trial courts have broad discretion to allow, limit, or deny access
to jurors’ contact information. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091;
People v. Tuggles (2009) 178 Cal.App.4th 1106, 380.)
       B. EVIDENCE CODE SECTION 1150
       Evidence Code section 1150 restricts our consideration of certain evidence.5 We
may not consider evidence of what the juror “felt” or how he understood the trial court’s
instructions. (People v. Sutter (1982) 134 Cal.App.3d 806, 819) “A juror is not allowed
to say: ‘I acknowledge grave misconduct. I received evidence without the presence of
the court. But those matters had no influence upon my mind when casting my vote in the
jury room.’ The law, in its wisdom, does not allow a juror to purge himself in that way.”
(People v. Stokes (1894) 103 Cal. 193, 197; Carpenter, supra, 9 Cal.4th 634, 651; People
v. Cooper (1991) 53 Cal.3d 771, 835.)
       Evidence Code section 1150 distinguishes between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the individual juror,
which can be neither corroborated nor disproved. (People v. Steele (2002) 27 Cal.4th
1230, 1261; People v. Hutchinson (1969) 71 Cal.2d 342, 349.) The only influences that
may be proved to impeach a verdict are those open to sight, hearing, and the other senses
and thus subject to corroboration. (Id. at p. 350.) Even when the trial court receives
inadmissible evidence without objection, we must limit our consideration to the overt acts
reflected in the testimony. (People v. Collins (2010) 49 Cal.4th 175, 249.)


       5
          Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to
the validity of a verdict, any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occurring, either within or without the
jury room, of such a character as is likely to have influenced the verdict improperly. No
evidence is admissible to show the effect of such statement, conduct, condition, or event
upon a juror either in influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was determined.”



                                            13
       A juror’s statement, however, is admissible under section 1150 when the very
making of the statement constitutes misconduct. (In re Stankewitz (1985) 40 Cal.3d 391,
398; People v. Cleveland (2001) 25 Cal.4th 466, 484; Grobeson v. City of Los Angeles
(2010) 190 Cal.App.4th 778, 787.) “Such an act is as much an objective fact as a juror’s
reading of a novel during the taking of testimony [citation], or a juror’s consultation with
an outside attorney for advice on the law applicable to the case [citation].” (In re
Stankewitz, supra, at p. 391.)
       C. THE EVIDENCE OF MISCONDUCT
(1). The Statement from Eric D.

       Two months after the jury rendered its verdict, defense counsel discovered
evidence that two jurors had committed misconduct. An investigator for the defense
interviewed Eric D., defendant’s employer, who stated the following: An alternate
juror’s husband told him (Eric D.) that the alternate juror overheard two jurors discussing
the case repeatedly during breaks. The alternate juror stated that, from the beginning, the
two jurors said defendant was guilty. They made repeated comments such as, “Cut off
his balls, Hang him high.”
       Based on Eric D.’s statement to the defense investigator, defendant petitioned the
court to release the jurors’ contact information under Code of Civil Procedure section
237. In support, defense counsel submitted a declaration attaching his investigator’s
unsworn statement summarizing her interview of Eric D.
       The trial court held a hearing to determine, among other matters, whether to
release the jurors’ information to the defense. Prior to the hearing, the court sent jurors
notice of the hearing and its purpose. The notice informed them that if they wished to
oppose the release of their information, they could respond in person, in writing, by
telephone, or through counsel. There is no evidence in the record that any juror opposed
the petition to have their information released.


                                             14
       After the hearing, the court ordered disclosure of the alternate juror’s information,
but the court did not disclose contact information for any other jurors.
(2). Defendant’s Second Petition for Disclosure of Jurors’ Information

       Defendant, citing Code of Civil Procedure sections 206 and 237, petitioned the
court a second time to release all jurors’ information. Defense counsel filed a declaration
stating that his investigator had contacted the alternate juror, but the alternate juror and
her husband had denied the allegations of misconduct. Defendant was also unable to
contact any other jurors. And defendant requested that if the court denied his petition for
release of the information that the court send letters to the jurors asking whether they
would consent (or object) to disclosure of their contact information.
       The court again sent jurors notice of a second hearing on defendant’s renewed
petition for disclosure. The notice included a form allowing jurors to record their consent
or objection to disclosure. One juror (“Juror One”) consented to disclosure. The record
does not indicate whether any other jurors consented or objected to disclosure of their
information, but it shows that some jurors did not respond in any fashion, and no jurors
appeared in person to object.
       At the hearing, the court set an evidentiary hearing for February 18, 2011. The
defense agreed to subpoena the alternate juror, her husband, and Eric D. to appear at the
hearing. The court also ruled that defendant could contact Juror One, but it ordered
counsel not to contact any other jurors until after the evidentiary hearing.
       On February 14, 2011, four days before the evidentiary hearing, defense counsel
contacted Juror One. Juror One told defense counsel that he did not see anything
suggesting jurors had made up their minds before deliberation, and he had not heard any
comments such as “cut off his balls.” Juror One said the jurors talked about everything
but the case before deliberation. He expressed his opinion that defendant got a fair trial
and said “the system worked.”


                                              15
(3). The February 18, 2011 Evidentiary Hearing

       The court held an evidentiary hearing on February 18, 2011. Three witnesses
testified: Eric D., the alternate juror (Robin G.), and her husband (Sean G.). Eric D.
testified that he was a liquor store owner who owned the store where defendant had
worked. Eric D. said that about three weeks after the trial, a customer named “Sean”
came into the store and said his wife was part of the jury. According to Eric D., Sean G.
said his wife had witnessed other jurors discussing the case during breaks, saying that
“they should cut off his balls and hang him.”
       Sean G. testified after Eric D. He admitted that he went to Eric D.’s liquor store
after the trial and that he told Eric D. that his wife was an alternate juror. However, he
denied telling Eric D. that his wife had witnessed jurors discussing the case or talking
about cutting off defendant’s balls.
       Robin G., the alternate juror, testified last. She denied that she had seen any jurors
discussing the case before deliberations. She also denied that she heard anyone talk
about cutting off defendant’s balls or hanging him, and she denied telling her husband
anything to that effect.
       The trial court made a factual finding that Eric D. was biased because he knew
defendant’s family. The court found there had been no juror misconduct, and it denied
defendant’s motion for a new trial.
(4). Juror One’s Disclosure of his Conversation with Juror Two

       Ten days after the evidentiary hearing, on February 28, 2011, Juror One
telephoned defense counsel. A defense attorney who joined the call submitted a sworn
declaration memorializing the following statement: After a particularly emotional part of
the prosecution’s case, Juror One had a conversation with a fellow juror (“Juror Two”).
Juror Two was a male in his 40s. Juror Two asked Juror One what he thought of the
pending case. Juror One replied that he would find the defendant guilty if the trial were


                                             16
to end that day. Juror One said he wanted to hear what the defense was going to
present.6 Juror One asked Juror Two if he thought they should report their conversation
to the judge. They agreed that their conversation would not have an effect on their
deliberations, and they decided not to report the conversation. Juror One could not recall
if he said anything to the effect of “cut off his nuts.” He said that he might have said this,
but he could not say whether he did or did not say those words. Juror One stated that it
took him “two nights of fitful sleep” to decide to talk to defense counsel about his
actions, and he was concerned that doing so might open “Pandora’s box.”
       The next day, on March 1, 2011, Juror One met with the prosecutor and her
investigator to tell them about his discussion with defense counsel. According to a
statement by the investigator, Juror One told them the following: Juror One did not want
the prosecution to be “blind sighted [sic]” by his conversation with the defense. When
the defense first contacted him about an alleged conversation with another juror, Juror
One denied all accusations and ended the conversation. However, Juror One decided to
call back defense counsel to inform him of a conversation Juror One had with Juror Two
during a recess after the victim’s mother testified. While leaning over the second floor
railing of the courthouse, Juror Two asked Juror One what he thought of the case. Juror
One told Juror Two that “If the trial were to end today I’d find him guilty.” Juror Two
responded, “I would too.” They spoke in a low tone. Juror One could not recall if he
said something about “cutting off Villarreal’s nuts” but would not preclude the possibility
that he said it. Juror One and defense counsel agreed to meet in person to discuss matters
further, but Juror One changed his mind and called off the meeting. Juror One told



       6
         We use italics to identify all statements made inadmissible by Evidence Code
section 1150, as the California Supreme Court did in People v. Danks, supra, 32 Cal.4th
269. We explain our application of the statute to these statements in Section 3.E below.



                                             17
defense counsel he was no longer willing to meet with the defense, and asked counsel not
to contact him any further.
       Based on Juror One’s statements, defendant filed a renewed motion for a new trial.
Defendant argued that, in the alternative, the court “should order an evidentiary hearing
in order to obtain the sworn testimony of the sitting juror in question, and the other juror
who participated in the conversation.” The court held a hearing on March 25, 2011, to
set a date for an evidentiary hearing and to hear further argument on defendant’s motion
for a new trial. At that hearing, the court set an evidentiary hearing for May 27, 2011,
and ordered the prosecution to subpoena Juror One. The court again ordered defense
counsel and his investigator not to talk to any jurors “Because it’s not truly misconduct
yet.” The court said that if it found Juror One’s statements credible, the court might
require the other jurors to appear in court to testify on the record.
       On April 20, 2011, Juror One wrote a letter to both defense counsel and the
prosecutor, once more setting forth the details of his conduct. He stated that he had a
brief conversation with another male juror during a recess in which he had “an emotional
meltdown.” He again stated that it was possible he had said defendant’s nuts should be
cut off, but he could not recall whether he actually said it. He wrote, “what I do
remember is the emotion. I was stunned that [the victim] had never talked to a teacher,
outraged that nobody had protected this child, and hostile towards Villarreal.” He wrote
that after his “embarrassing outburst, I recoiled, recovered my composure, and said that I
was looking forward to the defense.” Juror Two “assured me that I had done no harm.”
Finally, he wrote, “I resolved for the rest of the trial to be a conscientious and impartial
juror who would follow the judge’s instructions to the letter, and I believe that I did.” He
described his mindset during deliberations, and said he thought he was fair to defendant.




                                              18
(5). The May 27, 2011 Evidentiary Hearing

       At the May 27, 2011 evidentiary hearing, Juror One testified to the following: He
heard the court admonish the jury at each break not to form or express any opinion about
the case until it was submitted for deliberation, and not to have any discussions with any
other jurors.7 His conversation with Juror Two occurred after the mother’s testimony,
which he described as “a very emotional part of the case.” Juror One “had really been
looking forward to hearing from” D’s mother, but he “thought she was a lousy witness. I
mean, just a flaky mom.”
       At a break after the mother’s testimony, Juror One was standing at a rail with Juror
Two. Juror One identified Juror Two as a Caucasian male in his 40s, about an inch taller
than Juror One, who was a smoker like himself. After “a long, uncomfortable pause,”
Juror Two asked him, “ ‘Well, what do you think?’ ” Juror One testified that “what I
should have said was, I don’t think it’s going to rain today, but instead my cork popped; I
just blew up.”
       Juror One conceded it was possible he said, “I think we should cut his nuts off,”
but he could not confirm it. Defense counsel questioned him further on this point:
       “[Q.] [Juror One], you mentioned it's possible that you may have said that you
would cut the defendant’s nuts off.
       “[A.] Well, I wouldn’t, but somebody should.
       “[Q.] Somebody should. The precise thing you said is that somebody should cut
his nuts off?



       7
         Pursuant to Penal Code section 1122, the trial court repeatedly admonished the
jurors—before opening arguments, at each adjournment, and at the close of evidence—
not to discuss the case with each other and not to form any opinions about the case before
deliberations.



                                            19
       “[A.] I don’t know if I said that. If I were to have said something like that, um,
the word that I would have used was ‘nuts.’
       “[Q.] Okay. Do you think you said something like that, as you reflect back upon
this now?
       “[A.] I honestly do not know the answer to that question.”
       On further questioning, Juror One testified that he remembered the emotion
underlying the statement, and he agreed that the comment was derogatory or
inflammatory in nature:
       “[Q.] When you were tossing and turning and thinking about this thing prior to
calling me, were you concerned about what you had said?”
       “[A.] Absolutely. I was trying to remember, and I couldn’t. What I remembered
was the emotion.
       “[Q.] Okay. And what you also remember correct me if I’m wrong—is that you
said something which was very inflammatory, but you can’t precisely remember what
you said. Is that fair?
       “[A.] Yes, it is. That’s fair. Whatever it is that I said about Mr. Villarreal at that
particular moment would not have been nice. I know that.
       “[Q.] Okay. And so the precise language that you used is not something that you
can now recall, but it was something very derogatory?
       “[A.] I should think so. That’s where my head was at the time. I believe that.”
       Juror One did not recall that he or Juror Two said anything like, “They ought to
hang him high.”
       Juror One testified that “after my cork popped,” he told Juror Two, “ ‘[i]f the trial
were to end today, I’d find him guilty,’ and Juror Two said, ‘I would too.’ And at that
point I realized this is a road that we can’t go down. Okay. And so—um, we’ve been
enjoined not to discuss this or to form prior opinions, and I felt like I’d blown it.”



                                              20
       Juror One admitted he was not impartial towards defendant at the time, but he
characterized it as a “very brief moment” that he regretted:
       “[Q.] Okay. [Juror One], is it fair to say that in this emotional outburst or
breakdown you felt hostile towards Mr. Villarreal?
       “[A.] I did at the moment.
       “[Q.] And you felt like you wanted to see him punished?
       “[A.] At that moment I did.
       “[Q.] And it’s fair to say that at that point you were certainly not impartial, right?
       “[A.] I was emotional.
       “[Q.] And not impartial?
       “[A.] I have to—I have to admit to that, yes.
       “[Q.] And—
       “[A.] Also I’d like to say that that was a very brief moment, which I immediately
regretted.”
       Juror One testified that he and Juror Two agreed not to report the incident to the
judge. “I asked [Juror 2], I said, ‘Do you think we need to report this to the judge?’ And
[Juror 2] said to me, ‘Is there anything I have said that would influence you as a juror?’
and I said ‘No.’ And [Juror 2] said, ‘Well there’s nothing that you’ve said that would
influence me either, and I don’t think we need to report this to the judge.’ ” Juror One
testified that he did not disclose the conversation to the court “Because we thought we
had handled it.” Juror One admitted that he felt guilty about violating the court’s order,
and added that Juror Two “gave me permission—in a way, he gave me permission to be
forgiven . . . .” Juror One described their exchange as “a quiet conversation, though, and
brief.” After this conversation, Juror One heard additional admonitions from the trial
judge. He thought to himself, “You know what, I can do this. You know, I can—I can
wait until all of the testimony is in to decide how I’m going to vote.”



                                             21
       Juror One also testified that “we were both looking forward to hearing what the
defense was going to have to say.” “I told [Juror Two] that I thought that the
prosecution’s case was compelling and that—I was looking forward to what the defense
would say. And we thought that it would also be top-notch, and it turned out that it was.”
       During jury deliberations, Juror One did not volunteer to be the foreperson; a
woman did. In discussing the charges, Juror One was the third juror to speak. In
deliberations, the jurors reviewed each charge separately. Four people had taken notes,
including Juror One. The jurors read the notes aloud. Juror One’s notes were the best, so
the foreperson had Juror One read his notes for every charge. There were no notes for
some charges. The jury found defendant not guilty on some charges. The conversation
with Juror Two was not mentioned during deliberations.
       Over defense objection, Juror One testified that he had not made up his mind when
deliberations started. “I felt there might be reasonable doubt, and I was wondering if
anybody else felt the same way. Nobody shared the same concern that I had.” “I went
into the juror room not knowing which way I would vote.” “I felt that he was probably
guilty but that that wasn’t enough to convict. I wanted to hear what the other jurors had
to say.” Over defense objection, the prosecutor elicited Juror One’s impressions of the
victim’s credibility and the testimony of defendant’s son and the son’s wife.
       Juror One admitted that he misled defense counsel in their initial phone call when
he told counsel that nothing untoward had occurred. The court questioned Juror One
about why he decided to call back defense counsel to admit his conversation with Juror
Two. Juror One testified, “I felt like he didn’t understand what happened in the jury
room, and I wanted to lay it out for him.” He added that he “thought if I told both
lawyers what happened, they would get together and talk about it and decide there was no
issue, and that would be the end of it. But, of course, that’s not what happened.”




                                            22
(6). The Trial Court’s Ruling

       After argument on the matter, the court announced its ruling orally:8 “First of all,
I listed the factors to be considered by the Court for the decision. In rereading Hitchings,
it is distinguished from this case in that the juror lied on voir dire concealing knowledge
about the case, and that was coupled with the violation of the Court’s admonishment
against talking in vitriolic language to a non-juror. That gave substantial evidence of
prejudice and there was no substantial evidence of rebuttal to the issue of the prejudice.
       “In this case [Juror One]’s outburst came after the victim’s mother’s testimony.
[Juror One] said he was very emotional at the time. He felt that the D.A. had presented a
compelling and top-notch case and he wondered if the defense would do the same, and he
said, ‘and they did.’
       “[Juror One] recognized his violation of the Court’s admonishment, and he said he
couldn’t go down that road. He felt that the other juror thought so, too. His self-
admonishment does not cure the outburst. The court has to review the totality of the case
to determine if [Juror One] was, in fact, a biased juror in the deliberation process.
       “[Juror One] stated that in the jury room he did not volunteer to be the foreperson,
and he did not state his prior position. He wanted to see what the other jurors had to say.
       “The jury’s verdicts found that the defendant was not guilty on four of his sixteen
counts. The Court can draw an inference that the jury deliberated on each count as
charged.
       “That the outburst occurred before the defense presented their case and [Juror
One] was open to hearing what the evidence the defense would present is a factor to be



       8
           As we did with Juror One’s letter and testimony, we italicize those portions of
the trial court’s ruling that rely on testimony made inadmissible by Evidence Code
section 1150.



                                             23
considered by the Court. Further, there is no evidence that [Juror One] lied on voir dire
in this case.
       “In an emotional case, such as this, one reacts emotionally as the case proceeds.
And their emotions will vary from juror to juror during the trial.
       “We can’t ask for a perfect trial or a perfect system, but we can require a fair trial.
[Juror One] said he was overheard by another juror when they had gone to an area to
smoke on a break. He then recognized his error and didn’t want to go down that road
and he felt the other juror understood that.
       “There is insufficient evidence to find that [Juror One] is a biased juror and there
is substantial evidence to rebut the prejudicial remarks made by [Juror One].
       “The motion for new trial is denied.”
(7). Factual Findings

       We acknowledge that we must accept the trial court’s factual findings and
credibility determinations if they are supported by substantial evidence. (People v. Dykes
(2009) 46 Cal.4th 731, 809.) But we note that the trial court did not explicitly detail its
factual findings. Furthermore, we are unable to rely on any findings that are based on
evidence that is excluded by Evidence Code section 1150.
       The court initially discredited the testimony of Eric D., finding no misconduct.
While the court never reconsidered this finding, it implicitly credited Juror One’s
testimony, which substantially corroborated Eric D.’s testimony. Regardless, Juror One
and Juror Two discussed the case with each other after the mother’s testimony, before the
prosecution rested. At the time of their conversation, both Juror One and Juror Two had
formed the opinion that defendant was guilty.
       The court found that Juror One experienced an emotional outburst, but it made no
finding on whether Juror One said that defendant should be castrated. Nonetheless, Juror
One admitted that he harbored a bias against defendant at the time of his discussion with


                                               24
Juror Two. He also testified that he recalled the emotion of making a derogatory and
inflammatory statement about defendant, admitting to his lack of impartiality.
Furthermore, Juror One and Juror Two agreed not to disclose their conversation to the
trial court. Juror One continued to keep the conversation secret until ten days after the
first evidentiary hearing on February 18, 2011. And in a phone call with defense counsel
four days before the hearing, he falsely denied that any misconduct had occurred.
       The trial court made essentially no factual findings regarding Juror Two. The
court found only that Juror One, recognizing his violation of the court’s admonishment,
said “[Juror One] couldn’t go down that road,” and that “[Juror One] felt that [Juror
Two] thought so, too.”9 The record contains no evidence to support this finding as to
Juror Two.10
       D. THE EXISTENCE OF MISCONDUCT
       Respondent concedes that Juror One and Juror Two engaged in misconduct.
Nonetheless, we will examine the nature of the misconduct and consider whether the trial
court’s factual finding that the presumption of prejudice had been rebutted is supported
by substantial evidence.
(1). Legal Standard

       Under Penal Code section 1122, jurors must not “converse among themselves or
with anyone else on any subject connected with the trial, or to form or express any
opinion thereon until the cause is finally submitted to them.” The admonition against

       9
           Similarly, the court found that Juror One “recognized his error and didn’t want
to go down that road and he felt the other juror understood that.”
        10
            Juror One testified that he and Juror Two agreed that each of them were not
influenced by the others’ statements, and that they agreed not to disclose the conversation
to the judge. Juror One testified that they agreed not to disclose the conversation because
“We didn’t think it was significant at the time,” and “We just didn’t think it was
important.” Juror One also testified that “We thought we handled it.”



                                             25
forming an opinion requires jurors to consider all the evidence and precludes jurors from
ignoring “further evidence, argument, instructions, or the views of other jurors.” (People
v. Allen (2011) 53 Cal.4th 60, 73; cf. Hitchings, supra, 6 Cal.4th 97, 120-121; People v.
Wilson (2008) 44 Cal.4th 758, 840.) The admonition against discussing the case protects
jurors from extraneous influence outside of the evidence and instructions. (Carpenter,
supra, 9 Cal.4th 634, 676; People v. Loker (2008) 44 Cal.4th 691, 755.) “Violation of
this duty is serious misconduct.” (Hitchings, supra, 6 Cal.4th at p. 118.) “Because a
defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors
[citation], it is settled that a conviction cannot stand if even a single juror has been
improperly influenced.” (People v. Pierce (1979) 24 Cal.3d 199, 208; see People v.
Nesler (1997) 16 Cal.4th 561, 578.)
(2). Misconduct by Juror One

       We first consider whether substantial evidence establishes misconduct by Juror
One. We conclude that it does.
       During the prosecution’s case, Juror One discussed the case with Juror Two and
stated that “[i]f the trial were to end today, I’d find him guilty.”11 Juror One also made an
inflammatory and derogatory remark about defendant. By making these statements, Juror
One violated the court’s admonishment against discussing the case with another juror as
well as the admonishment against forming opinions about the case. Violation of these
duties constitutes serious misconduct. (Hitchings, supra, 6 Cal.4th at p. 118; People v.
Brown (1976) 61 Cal.App.3d 476, 480.) “When a person violates his oath as a juror,
doubt is cast on that person’s ability to otherwise perform his duties.” (People v. Cooper

       11
           This evidence is admissible under Evidence Code 1150 since the very making
of these statements constitutes misconduct. (In re Stankewitz, supra, 40 Cal.3d 391, 398;
People v. Cleveland, supra, 25 Cal.4th 466, 484; Grobeson v. City of Los Angeles, supra,
190 Cal.App.4th 778, 787.)



                                              26
(1991) 53 Cal.3d 771, 835-836; People v. Cissna (2010) 182 Cal.App.4th 1105, 1118 [A
juror’s failure to comply with repeated admonitions not to discuss the case casts serious
doubts on his willingness to follow the court's other instructions].) Juror One’s
derogatory and inflammatory statement about defendant underscores the seriousness of
the misconduct. (See Hitchings, supra, 6 Cal.4th at p. 117 [juror stated that defendant
should be castrated, inter alia].)
       Juror One exacerbated the misconduct in three ways. First, he exposed Juror Two
to his prejudicial opinion. This may have influenced Juror Two’s opinions or reinforced
Juror Two’s own prematurely formed opinions. Second, Juror One agreed with Juror
Two not to disclose the conversation to the court. (See People v. Nesler, supra, 16
Cal.4th 561, 580 [failure to disclose misconduct to the court, together with use of outside
information during deliberations, are adequate to establish serious misconduct].) This
precluded the court from admonishing the two jurors further or removing them
altogether. It also precluded defendant from seeking curative measures. Third, four days
before the first evidentiary hearing on February 18, 2011, Juror One misled defense
counsel about the conversation he had with Juror Two. Had Juror One instead chosen to
testify truthfully at the first hearing, he would have corroborated Eric D. while
impeaching the alternate juror and her husband. Defense counsel and the court could
have examined those witnesses more effectively had the full extent of the misconduct
been uncovered at that hearing. Juror One’s conduct thereby impeded defendant’s
investigation and likely damaged his ability to challenge the verdict.
       We conclude that Juror One’s conversation with Juror Two, his premature opinion
on defendant’s guilt, his inflammatory and derogatory statement about defendant, and his
role in concealing those violations constituted serious misconduct.




                                             27
(3). Misconduct by Juror Two

       We next consider whether substantial evidence establishes misconduct by Juror
Two. We conclude that it does.
       Juror Two initiated the pre-deliberation conversation with Juror One. When Juror
One said that he would find defendant guilty, Juror Two responded, “I would too.”12 By
making this statement, Juror Two violated the court’s admonishment against discussing
the case with another juror as well as the admonishment against forming opinions about
the case. Violation of these duties constitutes serious misconduct. (Hitchings, supra, 6
Cal.4th at p. 118.)
       Juror Two also exacerbated the misconduct. After the initial exchange, Juror One
asked Juror Two if he thought they should report the conversation to the judge. Juror
Two said he did not think so. Accordingly, neither juror reported the conversation to the
judge. (See People v. Nesler, supra, 16 Cal.4th at p. 580 [failure to disclose misconduct
to the court, together with use of outside information during deliberations, are adequate to
establish serious misconduct].) Furthermore, the conversation was “quiet” and they
spoke in “low tones,” suggesting that both jurors knew it was improper.
       Juror One admitted feeling guilty about violating the court’s orders, but he
testified that Juror Two’s statements “gave me permission to be forgiven.” Juror Two’s
statement thereby encouraged Juror One not to disclose the conversation. As explained
above, by hiding the conversation, the two jurors prevented the court and defense counsel
from addressing or curing the misconduct. We further note that, unlike Juror One, Juror
Two never came forward to admit the misconduct.




       12
          Again, these statements are admissible under Evidence Code section 1150
since the statements themselves constitute misconduct.



                                            28
         We conclude that Juror Two’s conversation with Juror One, his premature opinion
on defendant’s guilt, and his role in concealing these violations constituted serious
misconduct.
         E. REVERSAL IS REQUIRED DUE TO JUROR MISCONDUCT
         Defendant argues the existence of juror misconduct requires reversal of the
conviction because (1) the prosecution failed to rebut the presumption of prejudice and
(2) the trial court erred in prohibiting defense counsel from contacting Juror Two. We
agree.
(1). Failure to Rebut the Presumption of Prejudice
         Our finding of serious misconduct by Juror One and Juror Two raises a
presumption of prejudice. Respondent contends the evidence is sufficient to rebut the
presumption of prejudice. First, respondent lists several ways in which the jurors did not
commit misconduct: There was no evidence that either juror lied on voir dire.13 Neither
juror received outside or extraneous information. Neither juror discussed the case with
any non-jurors. These contentions are accurate, but the simple fact that the jurors did not
engage in additional forms of misconduct proves little. Forming and expressing an
opinion on a defendant’s guilt prior to deliberations may be sufficient grounds for
reversal without additional misconduct. (See People v. Brown, supra, 61 Cal.App.3d at
p. 480 [reversal required where juror, during prosecution’s case, expressed view that
defendant was guilty].)
         Respondent argues, without citation, that both jurors stated they were interested in
hearing the defense case. Respondent adds, again without citation, that “the statement by
[Juror One] and the second juror reflected that they had not conclusively prejudged the



         13
         Voir dire of the jurors is not part of the normal record in a criminal appeal and is
not included in the reporter’s transcript here. (Cal. Rules of Court, rule 8.320(c)(3).)



                                              29
case, that their minds remained open to the defense case, and that they both were going to
consider further evidence and argument.”
       The record is ambiguous as to what Juror Two said about the defense case. The
defense investigator’s sworn declaration concerning the defense’s initial conversation
with Juror One states that he said “he wanted to hear what the defense was going to
present.” (Italics added.) Juror One said nothing about Juror Two making such a
statement. Similarly, Juror One’s April 20, 2011 letter states that he said “[I] was looking
forward to the defense argument, and the other juror assured me that I had done no
harm.” (Italics added.) At the subsequent evidentiary hearing, Juror One then testified
that “we were both looking forward to hearing what the defense was going to say.”
(Italics added.) He then immediately added, “Um, I told him that I thought that the
prosecution’s case was compelling and that—and I was looking forward to what the
defense would say. And we thought that it would also be top-notch, and it turned out that
it was.” (Italics added.)
       More critically, respondent fails to address the admissibility of these statements
under Evidence Code section 1150. Juror One’s statements to the effect that he and Juror
Two were “looking forward” to the defense case are inadmissible under Evidence Code
section 1150. The statements concern the jurors’ mental processes, and respondent offers
them to prove—or in this case, disprove—the effect of the misconduct on their
deliberations. The language of the statute explicitly prohibits the admission of such
evidence. (Evid. Code § 1150, subd. (a).) Whether a juror was “looking forward” to the
defense is not an overt act; it is a purely subjective claim “which can be neither
corroborated nor disproved. . . .” (People v. Steele, supra, 27 Cal.4th at p. 1261.)
       The trial court also relied on Juror One’s various descriptions of his state of mind
and statements of impartiality. The court found that Juror One wondered if the defense
would present a “top notch” case, and he said that they did. The court noted that Juror
One, recognizing his violations, decided that he “couldn’t go down that road.” The court

                                             30
also found that Juror One wanted to see what the other jurors had to say and that he was
open to hearing the defense evidence. These are all statements of a juror’s opinion and
his subjective state of mind, and are inadmissible under Evidence Code section 1150.
(People v. Steele, supra, 27 Cal.4th at p. 1261; Grobeson v. City of Los Angeles, supra,
190 Cal.App.4th at p. 793.) The statute “does not allow a juror to purge himself in that
way.” (People v. Stokes, supra, 103 Cal. at p. 197.)
       At the evidentiary hearing, the trial court admitted many of these statements over
defense counsel’s objection or without consideration for Evidence Code section 1150.
On appeal, we must apply the statute and consider only the overt acts reflected in the
jurors’ statements. (People v. Collins, supra, 49 Cal.4th at p. 250.)
       Respondent, noting the jury’s acquittal on four of the sixteen counts, contends the
jury deliberated fairly on each count as charged.14 The acquittal on Count One is
irrelevant since the court instructed the jury it could not convict defendant on Count One
if it convicted him on any of the other counts.15 As to the other three acquittals,
respondent’s argument is speculative. (See People v. Brown, supra, 61 Cal.App.3d at p.
482.) In Brown, on facts similar to those here, the court reversed a conviction based on
misconduct by a juror who stated during the prosecution’s case that the defendant was
guilty. The court rejected the argument that the offending juror’s votes to acquit on eight
charges showed he was impartial. Describing the argument as “pure speculation,” the
court declined to consider what negotiations, reasons, or motivations may have led the

       14
          The jury began deliberating on Friday, July 30, 2010 at 11:45 a.m., and broke
for lunch at 12:23 p.m. The jury returned at 1:30 p.m. and recessed at 4:35 p.m. The jury
reconvened on Monday, August 2, 2010 at 9:00 a.m., and reached a verdict at 10:48 a.m.
The record thereby shows that the jury deliberated for a total of five hours and 31
minutes.
       15
          Respondent attaches significance to the jury’s acquittal on Count One as “the
most serious” charge. Of course, the court never instructed the jury as to which count
was “most serious” or what the penalties were for a conviction on any charge.



                                             31
offending juror to vote as he did. (Ibid.) The same reasoning applies here. The record
contains no admissible evidence showing why either Juror One or Juror Two voted to
acquit defendant on three counts while convicting him on twelve others.
       Respondent also notes that, during deliberations, Juror One sent a note to the judge
that defendant’s son might have been a student of his. This evidence is modest, as far as
it goes, and it says nothing whatsoever about Juror Two’s degree of impartiality.
       Respondent argues that we should find the presumption rebutted under People v.
Allen, supra, 53 Cal.4th 60. Allen concerned a trial court’s removal of a juror during
deliberations. While deliberating, a juror said, “When the prosecution rested, she didn’t
have a case.” (Id. at p. 70.) Two other jurors accused the juror of prejudging the case
and reported the statement to the judge. The trial court questioned all the jurors, and the
juror in question denied that he had made his mind up about the case before
deliberations.16 The California Supreme Court rejected the trial court’s finding that the
juror had prejudged the case. (Id. at p. 74-75.) The court noted, “ ‘it would be entirely
unrealistic to expect jurors not to think about the case during the trial. . . .’ [citation]” (Id.
at p. 73.) (Italics added.)
       The misconduct here consists not only of thinking about the case, but making
statements about the case to another juror “while evidence was still being presented.”
(People v. Allen, supra, 53 Cal.4th 60, 73.) In Allen, the court made this distinction by
comparing the facts of Allen to those in Grobeson v. City of Los Angeles, supra, 190
Cal.App.4th 778. (Allen, supra, 53 Cal.4th at p. 73.) In Grobeson, the court affirmed a
grant of a new trial based on evidence that, in the middle of the trial, one juror told
another, “I made up my mind already. I’m not going to listen to the rest of the stupid

       16
          Evidence Code 1150 does not apply to evidence received while the jury is still
deliberating; it applies only to postverdict challenges. (People v. Allen, supra, 53 Cal.4th
60, 72, fn. 10; People v. Cleveland, supra, 25 Cal.4th at p. 485.)



                                                32
argument.” (Grobeson, supra, 190 Cal.App.4th at p. 784.) The Allen court, describing
the facts of its case, held, “This case is different. [The offending juror’s] statement was
made during deliberations. . . .”
       The facts here more closely resemble those in Grobeson. Both Juror One and
Juror Two made their statements before the prosecution had rested, not during
deliberations. In doing so, they each exposed the other to their prejudgments,
exacerbating the effect of the misconduct. The content of their statements conclusively
established their pre-deliberation opinions of defendant. Unlike the court in Allen, under
Evidence Code section 1150 we may not consider Juror One’s subsequent statements to
the contrary. (Grobeson v. City of Los Angeles, supra, 190 Cal.App.4th at p. 793
[Evidence Code section 1150 precluded admission of offending juror’s statement that she
did not form her opinion until deliberations, after the case was submitted to the jury].)
       The misconduct here is even greater than the misconduct in Grobeson and People
v. Brown, supra, 61 Cal.App.3d 476. The evidence shows that not one, but two jurors
formed opinions on defendant’s guilt during the prosecution’s case. Juror One made an
inflammatory and derogatory statement regarding defendant, underscoring the degree of
his bias, and he later admitted that he was not impartial when he made that statement.
And all of this occurred before the defense had an opportunity to present its case.
       In deliberations, the jury relied on Juror One’s notes. If his notes were biased,
other jurors’ opinions may have been infected through reliance on them. Furthermore,
both jurors agreed not to disclose the conversation to the court. Juror One continued to
keep the conversation secret post-trial; he did not disclose it until ten days after the first
evidentiary hearing, before which he misled defense counsel about his misconduct. Juror
Two never came forward at all, despite the court’s two notices of evidentiary hearings.
On these facts, the evidence of bias is substantial.
       In rebuttal, respondent identifies only two objective facts: the votes for acquittal,
and Juror One’s note to the judge regarding defendant’s son. Respondent’s reliance on

                                              33
Juror One’s subjective statement of impartiality is precluded by Evidence Code section
1150, and respondent points to no evidence, other than his votes for acquittal on three out
of fifteen counts, that Juror Two ever abandoned or put aside his prejudgment.
       Taking the record as a whole, the evidence clearly establishes a reasonable
probability of prejudice and a substantial likelihood that two jurors were actually biased
against the defendant. We therefore conclude that the presumption of prejudice is not
rebutted.
(2). The Trial Court’s Order Precluding Defendant From Contacting Juror Two
       Defendant argues that the trial court violated his due process rights by precluding
him from contacting Juror Two. Defendant contends the court erred twice in refusing to
unseal jurors’ identities and contact information: First, when defense counsel came
forward with the statement from Eric D., and again after Juror One admitted misconduct.
       Code of Civil Procedure sections 206 and 237 govern the disclosure of juror
information in a criminal trial. Code of Civil Procedure section 237 requires trial courts
to seal jurors’ names, addresses, and telephone numbers. (Code Civ. Proc., § 237, subd.
(a)(2).) Code of Civil Procedure section 206 requires the court to inform jurors in a
criminal action, prior to discharging them, “that they have an absolute right to discuss or
not to discuss the deliberation or verdict with anyone.” (Code Civ. Proc., § 207, subd.
(a).) Once jurors are discharged, the parties may discuss the deliberations or the verdict
with a juror, provided the juror consents to the discussion, and the discussion takes place
at a reasonable time and place. (Code Civ. Proc., § 207, subd. (b).) A defendant may
petition the court for access to information indentifying jurors, including their names,
addresses, and telephone numbers. (Code Civ. Proc., § 207, subd. (g).)
       Code of Civil Procedure section 237 sets forth the procedure for such a petition.
“The petition shall be supported by a declaration that includes facts sufficient to establish
good cause for the release. . . .” (Code Civ. Proc., § 237, subd. (b).) “Good cause” is a
showing sufficient “to support a reasonable belief that jury misconduct occurred, that

                                             34
diligent efforts were made to contact the jurors through other means, and that further
investigation is necessary to provide the court with adequate information to rule on a
motion for new trial.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552.)17
       If a defendant makes a prima facie showing of good cause, the court must set the
matter for hearing. (Code Civ. Proc., § 237, subd. (b).) But the court must not set the
matter for hearing if there is “a showing on the record of facts that establish a compelling
interest against disclosure.” (Ibid.) This includes, but is not limited to, protecting jurors
from threats or danger of physical harm. (Ibid.) If the court does not set the matter for
hearing, it must make express findings and set forth the reasons for not doing so. (Ibid.)
If it sets a hearing, the court must provide notice to the former jurors. (Code Civ. Proc.,
§ 237, subd. (c).) “Any affected former juror may appear in person, in writing, by
telephone, or by counsel to protest the granting of the petition.” (Ibid.)
       “After the hearing, the records shall be made available as requested in the petition,
unless a former juror’s protest to the granting of the petition is sustained. The court shall
sustain the protest of the former juror if, in the discretion of the court, the petitioner fails
to show good cause, the record establishes the presence of a compelling interest against
disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the
petitioner. The court shall set forth reasons and make express findings to support the
granting or denying of the petition to disclose.” (Code Civ. Proc., § 237, subd. (d).)
       Defendant here first petitioned the court for disclosure of juror information after
Eric D. came forward. Defendant filed a declaration by defense counsel with an unsworn
statement from his investigator summarizing her interview of Eric D. After a hearing, the



       17
         Although the Legislature amended Code of Civil Procedure sections 206 and
237 after Rhodes was decided, courts continue to apply this test. (People v. Carrasco,
supra, 163 Cal.App.4th 978, 990.)



                                               35
court disclosed the alternate juror’s information, but did not disclose any other jurors’
information.
       At this point in the proceedings, defendant’s sole evidence of misconduct
consisted of a lone individual’s statement containing several levels of hearsay. The
statement listed none of the names of the persons involved, and the details of the alleged
misconduct were vague. The facts here resemble those in People v. Jefflo (1998) 63
Cal.App.4th 1314 [statement by defendant’s girlfriend that a juror told her the jury had
hung was not a showing of good cause sufficient to warrant a hearing]. Nonetheless, the
trial court held a hearing and released the alternate juror’s information. The court did not
abuse its discretion by refusing to release all of the jurors’ information at that time.
       But defendant then petitioned the court for disclosure a second time after his
investigator contacted the alternate juror and her husband, who denied the allegations of
misconduct. At this stage, defendant’s showing of good cause was no stronger than his
initial showing. Nonetheless, the court set a date for an evidentiary hearing, and sent
jurors a second notice allowing them to object or consent to disclosure. Juror One
consented to disclosure, and the court ruled that defendant could contact him. The record
appears to show that the court released to defendant contact information for some jurors
who did not respond to the court’s notice, but the record does not show whether Juror
Two’s information was included in that release. It also appears that defense counsel’s
investigator had begun to contact some of the jurors, but the court then ordered defense
counsel not to contact any other jurors besides Juror One. The court based its ruling on a
finding that defendant had not yet made a prima facie showing of misconduct. Again, at
this stage in the proceedings, defendant’s evidence of juror misconduct was no stronger
than his initial showing. Thus, the trial court did not abuse its discretion by declining to
release all of the jurors’ information at this point in time either.
       At the February 18, 2011 evidentiary hearing, the alternate juror and her husband
denied Eric D.’s allegations, and the court found no misconduct. Ten days after the

                                               36
hearing, Juror One disclosed his conversation with Juror Two to both defense counsel and
the prosecutor. This prompted defendant to renew his motion for a new trial wherein he
asked the court for an evidentiary hearing to obtain the testimony of Juror One and Juror
Two (who was apparently never identified.)
       The court set an evidentiary hearing for May 27, 2011, and ordered the
prosecution to subpoena Juror One. However, the court again ordered defense counsel
and his investigator not to talk to any other jurors “Because it’s not truly misconduct yet.”
The court said that if it found Juror One’s statements credible, the court might require the
other jurors to appear in court to testify on the record.
       Despite Juror One’s testimony at the May 27, 2011 evidentiary hearing, the court
did not order any further evidentiary hearings or subpoena any other jurors to appear.
The record shows no indication that the court lifted its order prohibiting the defense from
contacting any other jurors. The record also shows no evidence that any jurors objected
to disclosure of their information at any point during the proceedings.
       After Juror One came forward, defendant had substantially good cause for the
disclosure of other jurors’ information, particularly Juror Two. Juror One had made
numerous statements establishing “a reasonable belief that jury misconduct occurred,”
and specifically established that Juror Two had committed misconduct in at least two
ways. Because Juror Two had not come forward, further investigation was warranted.
Declarations from defense counsel and his investigator show that they made efforts to
contact the jurors, but the court ordered them not to contact any jurors besides Juror One,
prohibiting them from making any further “diligent efforts.” As noted earlier, People v.
Rhodes requires the disclosure of juror information unless a petitioner fails to show good
cause, the record establishes the presence of a compelling interest against disclosure, or a
juror is unwilling to be contacted by the petitioner. The record does not indicate that any
of these circumstances existed; thus, the trial court abused its discretion by preventing
defendant from contacting Juror Two.

                                              37
       Because the presumption of prejudice that arose from juror misconduct was not
rebutted, and because the defendant was prevented from contacting Juror Two, his
convictions must be reversed.
                                  4.   COUNTS 15 AND 16

       Three of defendant’s arguments on appeal target his convictions on count 15,
forcible penetration with a foreign object in violation of section 289, subdivision (a), and
count 16, aggravated sexual assault on a child in violation of section 269, subdivision
(a)(5) where the “aggravated sexual assault” is defendant’s violation of section 289,
subdivision (a)––i.e., count 15. He contends: (A) he cannot be convicted of both counts,
as count 15 is a lesser included offense of count 16; (B) there was insufficient evidence of
the force or duress required by section 289, subdivision (a); and (C) the trial court erred
in failing to instruct the jury about lesser included nonforcible offenses.
       Despite our reversal of the judgment on other grounds, we must address whether
there was sufficient evidence to support defendant’s conviction of count 16. We will also
reach certain related issues for the guidance of further proceedings.
       A.   COUNT 15 IS A LESSER INCLUDED OFFENSE OF COUNT 16

       Defendant contends he cannot stand convicted of both aggravated sexual assault
on a child under section 269, subdivision (a)(5) and the lesser included offense of forcible
sexual penetration under section 289, subdivision (a)(1). We agree.
       The jury verdicts found defendant guilty of violating “section 289, subdivision
(a)(1) as charged in count 15 of the information” and “section 269, subdivision (a)(5) as
charged in count 16 of the information.” The jurors were not actually given the
information, but they were given a written instruction identifying the fall of 2005 as when
counts 15 and 16 were alleged to have occurred.
       In 2005, there was one way to violate section 269, subdivision (a)(5): “(a) Any
person who commits any of the following acts upon a child who is under 14 years of age
and 10 or more years younger than the person is guilty of aggravated sexual assault of a

                                             38
child: [¶] . . . [¶] (5) A violation of subdivision (a) of Section 289.” (Stats. 1st Ex. Sess.
1993-1994, ch. 48, § 1, p. 8761.)18 This statute has subsequently been amended and
expanded twice, once by initiative. One relevant change is that the age difference has
been reduced to seven or more years from 10. (Stats. 2006, ch. 337, § 6, p. 2589.)
       In 2005, there were two ways to violate section 289, subdivision (a) that was
charged as count 15: “(1) 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. [¶]
(2) Any person who commits an act of sexual penetration when the act is accomplished
against the victim’s will by threatening to retaliate in the future against the victim or any
other person, and there is a reasonable possibility that the perpetrator will execute the
threat, shall be punished by imprisonment in the state prison for three, six, or eight
years.” (Stats. 2002, ch. 302, § 5, p. 1207.) This statute has subsequently been amended
and expanded. (Stats. 2010, ch. 219, § 9.)
       People v. Milward (2011) 52 Cal.4th 580, 585, explained: “Generally, there is no
limit to the number of convictions arising from a defendant’s act or course of conduct.
(§ 954.) But an exception exists for lesser included offenses. ‘[I]f a crime cannot be



       18
          The full version of section 269, subdivision (a) in effect in 2005 provided:
“(a) Any person who commits any of the following acts upon a child who is under 14
years of age and 10 or more years younger than the person is guilty of aggravated sexual
assault of a child: [¶] (1) A violation of paragraph (2) of subdivision (a) of Section 261.
[¶] (2) A violation of Section 264.1. [¶] (3) Sodomy, in violation of Section 286, when
committed by force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person. [¶] (4) Oral copulation, in violation of Section
288a, when committed by force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person. [¶] (5) A violation of
subdivision (a) of Section 289.” (Stats. 1st Ex. Sess. 1993-1994, ch. 48, § 1, p. 8761.)



                                             39
committed without also necessarily committing a lesser offense, the latter is a lesser
included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288.) In
such cases, a defendant may not be convicted of both the greater and the lesser offense.
(People v. Reed (2006) 38 Cal.4th 1224, 1227.)”
       The California Supreme Court has “applied two tests in determining whether an
uncharged offense is necessarily included within a charged offense: the ‘elements’ test
and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of
the greater offense include all of the statutory elements of the lesser offense, the latter is
necessarily included in the former. Under the accusatory pleading test, if the facts
actually alleged in the accusatory pleading include all of the elements of the lesser
offense, the latter is necessarily included in the former. (People v. Lopez, supra, 19
Cal.4th at pp. 288-289.)” (People v. Reed, supra, 38 Cal.4th 1224, 1227-1228 (Reed).)
Reed held that the accusatory pleading test is inapplicable to multiple convictions of
charged offenses. “In deciding whether multiple conviction is proper, a court should
consider only the statutory elements. Or, as formulated in Scheidt, ‘only a statutorily
lesser included offense is subject to the bar against multiple convictions in the same
proceeding. An offense that may be a lesser included offense because of the specific
nature of the accusatory pleading is not subject to the same bar.’ ” (Reed, supra, 38
Cal.4th at p. 1229, quoting People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166.)
       The Attorney General argues that, because there are a number of different ways to
violate section 269, a violation of section 289 is “not necessarily included within section
269.” That is literally true, but count 16 charged defendant with violating section 269,
subdivision (a)(5), which specifically references a violation of section 289. In other
words, a violation of section 289, subdivision (a) is by statute an element of violating
section 269, subdivision (a)(5).
       A similar argument was rejected by People v. Binkerd (2007) 155 Cal.App.4th
1143 (Binkerd). In that case, the defendant contended that she could not be convicted of

                                              40
both vehicular manslaughter in violation of former section 192, subdivision (c)(3) and
driving under the influence causing injury in violation of Vehicle Code section 23153,
subdivision (a). At the time of her offense “section 192 subdivision (c)(3) defined
vehicular manslaughter as ‘[d]riving a vehicle in violation of Section 23140, 23152, or
23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to a
felony, but without gross negligence; or driving a vehicle in violation of Section 23140,
23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might
produce death, in an unlawful manner, but without gross negligence.’ ” (Id. at p. 1147.)
       The Attorney General argued in Binkerd that because section 192, subdivision
(c)(3) could have been violated in ways other than violating Vehicle Code section 23153,
a violation of the latter statute was not a necessarily included offense. But the appellate
court noted that the vehicular manslaughter statute was written in the disjunctive and did
not require proof that all three Vehicle Code sections had been violated. “[A]ccepting the
People’s argument would mean that there could never be a lesser included offense of
section 192, subdivision (c)(3). This is incorrect.” (Binkerd, supra, 155 Cal.App.4th
1143, 1149.)
       Though the trial court did stay the punishment on count 15 in favor of the
punishment on count 16, we conclude that, in this case, the offense of sexual penetration
with a foreign object under section 289, subdivision (a) was a lesser included offense of a
violation of section 269, subdivision (a)(5), and defendant cannot be convicted of both
counts.
       B.   SUFFICIENCY OF THE EVIDENCE FOR COUNTS 15 AND 16

       Defendant also contends that there was insufficient evidence to support the
verdicts finding him guilty of violating “section 289, subdivision (a)(1) as charged in
count 15 of the information” and “section 269, subdivision (a)(5) as charged in count 16
of the information.” He restates the contention made in his prior motion for a new trial
that there was insufficient evidence of either force or duress. If defendant were correct,

                                             41
he could not be retried on courts 15 and 16. We conclude, however, that there is
sufficient evidence to support these convictions. Therefore, retrial on these charges is not
barred.
       The prosecutor argued to the jury that defendant used his finger to sexually
penetrate D in the fall of 2005. As to “force, violence, duress, menace or fear,” “the
People would argue . . . the force aspect, because [D] testified that he, as you may recall,
had got even more aggressive and tore the belt loop to her pants and inserted his finger
into her vagina.”
       One ground of defendant’s motion for a new trial was that there was insufficient
evidence of force or duress. In opposing the motion, the People argued that there was
substantial evidence of duress. At a hearing on February 18, 2011, the court refused
defendant’s request to strike the force finding, stating that no threat or implied threat was
required to establish duress. “The age difference and the relationship constitute the
duress that equals the force necessary for that section.”
       In reviewing defendant’s challenge to the sufficiency of the evidence to support
his conviction, “we must determine only whether, on the record as a whole, any rational
trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the
evidence in the light most favorable to the prosecution, and presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (In re Asencio (2008) 166 Cal.App.4th 1195, 1205.)
       As the crime of sexual penetration may be based alternatively on force or duress,
we will focus on the evidence of duress.
       In reviewing the record for evidence of “duress,” it is important to keep in mind
the applicable definition of “duress,” as California courts now recognize at least three
established definitions of “duress” involved in sex crimes. “Duress” has had one case
law definition since 1985 for sex crimes other than rape. As People v. Leal (2004) 33
Cal.4th 999, 1004-1005, explained: “The term ‘duress’ as used in section 288,

                                             42
subdivision (b)(1), was first defined in People v. Pitmon [(1985)] 170 Cal.App.3d 38, 48
[Pitmon]. The Court of Appeal in Pitmon observed: ‘Duress, as an element of a criminal
offense has not been previously given legal definition.’ (Id. at p. 48.) . . . The court in
Pitmon . . . found ‘duress as used in the context of section 288 to mean 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.’ (Pitmon, supra, 170 Cal.App.3d at p. 50, italics added.) . . .
       “The Pitmon definition of ‘duress’ has been followed consistently for almost 20
years. (People v. Cardenas (1994) 21 Cal.App.4th 927; People v. Wilkerson (1992) 6
Cal.App.4th 1571, 1578-1579; People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People
v. Hecker (1990) 219 Cal.App.3d 1238, 1250; People v. Sanchez (1989) 208 Cal.App.3d
721, 748.) The Pitmon definition also has been used to define the term ‘duress’ as it is
used in the sexual offenses of aggravated sexual assault of a child in violation of section
269 (People v. Cochran (2002) 103 Cal.App.4th 8, 13), forcible oral copulation in
violation of section 288a, subdivision (c) (People v. Senior (1992) 3 Cal.App.4th 765,
775; People v. Bergschneider (1989) 211 Cal.App.3d 144, 154), forcible sexual
penetration in violation of section 289 (People v. Senior, supra, 3 Cal.App.4th at p. 775),
and enhancement for prior sex offenses under section 667.6, subdivision (d) (People v.
Senior, supra, 3 Cal.App.4th at p. 775).”19

       19
          We recognize that a number of these cited cases, Pitmon, supra, 170
Cal.App.3d 38, People v. Hecker, supra, 219 Cal.App.3d 1238, and People v. Cochran,
supra, 103 Cal.App.4th 8, have subsequently been disapproved on another ground, along
with two decisions by this court (People v. Quinones (1988) 202 Cal.App.3d 1154 and
People v. Bolander (1994) 23 Cal.App.4th 155) and other cases (People v. Cicero (1984)
157 Cal.App.3d 465, People v. Lusk (1985) 170 Cal.App.3d 764, People v. Mendibles
(1988) 199 Cal.App.3d 1277, and People v. Neel (1993) 19 Cal.App.4th 1784) for
suggesting that the victim’s consent is a defense to a charge of an aggravated lewd
                                                                               (Continued)


                                              43
       The jury was instructed in this case in terms of the Pitmon definition in
CALCRIM No. 1045: “ ‘Duress’ means a direct or implied threat of force, violence,
hardship or retribution that is enough to cause a reasonable person of ordinary sensitivity
to do or submit to something he or she would not otherwise do or submit to. Whether
deciding the act was accompanied by duress, you are to consider all the circumstances
including the age of the other person and his or her relationship to the defendant.”20
       In Schulz, supra, 2 Cal.App.4th 999, 1005, and Senior, supra, 3 Cal.App.4th 765,
775, this court stated: “Physical control can create ‘duress’ without constituting ‘force.’
‘Duress’ would be redundant in the cited statutes if its meaning were no different than
‘force,’ ‘violence,’ ‘menace,’ or ‘fear of immediate and unlawful bodily injury.’ ” After
citing Pitmon and quoting its definition of “duress,” Schulz continued: “As this court
recognized in People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, duress
involves psychological coercion. (Id. at p. 238.) Duress can arise from various
circumstances, including the relationship between the defendant and the victim and their
relative ages and sizes. ([Pitmon], supra, 170 Cal.App.3d at p. 51; People v. Superior
Court (Kneip), supra, 219 Cal.App.3d at p. 239.) ‘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’ is relevant to the existence of


touching. (People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 (Soto).) This disapproval
was unrelated to the definition of “duress” used in these cases.
       20
          The word “force” was omitted in the judge’s reading of this definition of
“duress.” The jury was instructed orally and also given the instructions in writing.
(CALCRIM No. 200.) To the extent that the reporter’s transcript reflects a misreading of
the written instructions, we will assume that the jury relied on the correct written
instructions. (People v. Wilson (2008) 44 Cal.4th 758, 803 [“To the extent a discrepancy
exists between the written and oral versions of jury instructions, the written instructions
provided to the jury will control.”].) The trial judge apologized for having a bad sinus
condition before reading the instructions.



                                             44
duress. (People v. Superior Court (Kneip), supra, 219 Cal.App.3d at p. 239.)” Senior
went on to state that the “defendant’s pulling the victim back and physically controlling
her when she attempted, albeit ineffectually, to pull away during counts one, two, five,
six, and seven suggested that greater physical resistance would be answered with greater
physical force.” (Senior, supra, 3 Cal.App.4th at p. 775.) Thus, exercising physical
control can amount to an implied threat of greater force if there is resistance.
       Defendant reasserts on appeal that D’s “testimony about the timing of the pants
ripping and the penetration is simply unclear” and that the incidents may be unrelated in
time. He also claims it is not clear whether he was lying on top of her at the time. We
regard this as contrived confusion about D’s testimony. Defendant parses D’s answer to
the question “What happened on that occasion?” as describing two or more occasions.
We have quoted her answer above (ante, in fn. 3 on p. 6). What she said is readily and
reasonably susceptible to the interpretation that she answered the question by describing
what happened on that occasion, which involved sexual penetration after ripping the belt
loop on her pants and lying on top of her.
       The implied threat of greater force is a factor that distinguishes the facts from
those in this court’s opinion in People v. Espinoza (2002) 95 Cal.App.4th 1287
(Espinoza), on which defendant relies. That opinion reasoned: “The only way that we
could say that defendant’s lewd act on [12-year-old] L. and attempt at intercourse with L.
were accomplished by duress is if the mere fact that he was L.’s father and larger than her
combined with her fear and limited intellectual level were sufficient to establish that the
acts were accomplished by duress. What is missing here is the ‘ “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. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579.) Duress cannot be
established unless there is evidence that ‘the victim[’s] participation was impelled, at

                                             45
least partly, by an implied threat . . . .’ (Id. at p. 1580.) No evidence was adduced that
defendant’s lewd act and attempt at intercourse were accompanied by any ‘direct or
implied threat’ of any kind. While it was clear that L. was afraid of defendant, no
evidence was introduced to show that this fear was based on anything defendant had done
other than to continue to molest her. It would be circular reasoning to find that her fear
of molestation established that the molestation was accomplished by duress based on an
implied threat of molestation.” (Espinoza, at p. 1321.)
       Espinoza did not involve an implied threat of force. Nor was there any implied
threat of hardship such as disruption of the family. In that case, the five molests occurred
during a one-month span during which a father repeatedly came into his 12-year-old
daughter’s bedroom in the early morning hours and made sexual contact apparently
without saying anything to her about it other than asking if she still loved him, asking her
to love him, and apologizing for attempting intercourse on the final occasion. (Espinoza,
supra, 95 Cal.App.4th 1287, 1292-1295.)
       In contrast, in this case, the molestations took place over a period of seven years,
beginning when the victim was five or six years old. Defendant essentially told D more
than once that if she told anyone about him molesting her, he would get in trouble. Left
unsaid was that it would disrupt her mother’s relationship with defendant and their
household and family if she disclosed this sexual conduct. We regard this as an implied
threat of hardship that would result if D refused to participate in the sexual conduct.
       Applying the established definition of “duress” given to the jury, we conclude that
there was substantial evidence that defendant employed duress in penetrating 13-year-old
D with his finger based on the following combination of factors. He was her stepfather
for a short time and served in a parental role as her mother’s boyfriend for a significant
period of time. He allegedly had been molesting her in different ways for over seven
years. During that period of time, he warned her that he would get into trouble if she told
anyone about it. When D and her mother resumed living with defendant in the summer

                                             46
and fall of 2005, he became more forceful and aggressive with his sexual demands when
they were in his bedroom. On the occasion of sexually penetrating her, he was so
forceful about removing her jeans that he tore a belt loop. During part of that encounter,
he lay on top of her, using his body weight to hold her in place. For all of these reasons,
there was sufficient evidence to support a conviction of either count 15 or count 16.21
Therefore, retrial on those charges is not barred.
          C.   INSTRUCTIONS ON OFFENSES INCLUDED IN COUNTS 15 AND 16

          Defendant did not request and the court did not give instructions on what
defendant calls the lesser included offenses of “non-forcible lewd acts with a child
(§ 288, subd. (a)) and non-forcible penetration of a child with a foreign object (§ 289,
subd. (j)).” Nevertheless, on appeal defendant contends that the trial court breached its
sua sponte duty to give such instructions for count 15, charging penetration with a foreign
object, and count 16, charging aggravated sexual assault by penetration with a foreign
object.
          “We apply the independent or de novo standard of review to the failure by the trial
court to instruct on an assertedly lesser included offense. [Citation.] A trial court must
instruct the jury sua sponte on a lesser included offense only if there is substantial
evidence, ‘ “that is, evidence that a reasonable jury could find persuasive” ’ [citation],
which, if accepted, ‘ “would absolve [the] defendant from guilt of the greater offense”
[citation] but not the lesser’ [citation].” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
“[A] lesser offense is necessarily included in a greater offense if either the statutory
elements of the greater offense, or the facts actually alleged in the accusatory pleading,




          21
         As we concluded in part 4A, however, for other reasons he cannot be convicted
of both counts.



                                              47
include all the elements of the lesser offense, such that the greater cannot be committed
without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
       We must examine the pleading and the elements of these other offenses to
determine if they are lesser included either by the statutory elements or the pleadings.
       One of the elements of lewd touching in violation of section 288, subdivision (a)
(as the jury was instructed in this case regarding other counts) is that “the Defendant
committed the act with the intent of arousing, appealing to or gratifying the lust, passion
or sexual desires of himself or the child.” (CALCRIM No. 1110.) The jury was also
instructed that lewd touching involves a specific intent. (CALCRIM No. 251.) The
specific sexual intent required for lewd touching is not an element of sexual penetration
in violation of section 289, so lewd touching is not a lesser offense included in section
289 for purposes of jury instructions. (Cf. People v. Griffin (1988) 46 Cal.3d 1011, 1030
[“a lewd act on a child is not a necessarily included offense of either rape or sodomy.”].)
With respect to the accusatory pleading test, there was no allegation in count 16 that the
sexual penetration was accompanied by any specific intent.
       Defendant relies on People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574
(Arevalo-Iraheta) for the proposition that a violation of section 288, subdivision (a) was a
lesser included offense of aggravated sexual assault under section 269 (count 16). As
defendant notes, the Attorney General does not respond to this assertion.
       The issue on appeal in Arevalo-Iraheta was whether the prosecution was entitled
to amend the information midtrial to add five counts of 288 as lesser offenses to the
already pleaded five counts of sexual assault by rape on a child under section 269,
subdivision (a)(1). (Id. at p. 1580.) In the course of upholding the amendment, the
appellate court noted, “As defendant himself equivocally admits, the section 288,
subdivision (a) charges in counts 6 through 10 were lesser, necessarily included offenses
of the aggravated rape of a child charges in counts 1 through 5.” (Arevalo-Iraheta, supra,
193 Cal.App.4th at p. 1581.)

                                             48
       If the defendant’s equivocal concession in Arevalo-Iraheta was based on how the
section 269 violations were pleaded in that case, the decision is factually distinguishable.
If the defendant’s concession was based on the elements of the section 269, subdivision
(a)(1) in that case, it was mistaken. People v. Griffin, supra, 46 Cal.3d 1011, 1030,
compels the conclusion that the specific intent of sexual arousal is not an element of rape.
The same is true of the crime of foreign object penetration. We see no specific intent
allegation in count 16 that obliged the trial court to instruct on nonforcible lewd contact
as a lesser included offense.
       In 2005, section 289 provided in part: “(j) 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.” (Stats. 2002, ch. 302, § 5, p. 1209.) Defendant
contends that this crime “is a lesser-included offense of forcible penetration with a
foreign object[, count 15,] under the ‘accusatory pleading’ test.” Presumably defendant
is eschewing the elements test because the nonforcible crime of former section 289,
subdivision (j) includes age limits and age discrepancies not required for the greater
offense of violating of former section 289, subdivision (a). (See People v. Scott (2000)
83 Cal.App.4th 784, 794.)
       Defendant asserts, “[t]he amended information alleged that, at the time of counts
15 and 16, [D] was under the age of 14 and that [D] was at least 10 years younger than
[defendant].” Though defendant disclaims suggesting that a violation of section 289,
subdivision (j) is a lesser included offense of count 16, he cites to the allegations in the
amended information of both count 15 (§ 289) and count 16 (§ 269, subd. (a)(5)) to
establish that it was a lesser offense of count 15.
       A defendant, however, is not entitled to pick and choose from among the factual
allegations in different counts to support an argument that lesser included offense
instructions were omitted on one count. “Consistent with the primary function of the

                                              49
accusatory pleading test—to determine whether a defendant is entitled to instruction on a
lesser uncharged offense—we consider only the pleading for the greater offense.”
(People v. Montoya (2004) 33 Cal.4th 1031, 1036.) The purported greater offense
allegations of section 289 in count 15 did mention that the victim was 13 years old in the
fall of 2005, but the count alleged nothing about defendant’s age.
       Because section 289, subdivision (j) was not a lesser included offense of section
289, subdivision (a) under either test, we conclude that the trial court breached no sua
sponte obligation to instruction on that offense.
                                     5.   DISPOSITION
                     The judgment is reversed.




                                           _______________________
                                                 Márquez, J.



       WE CONCUR:




       ___________________________
       Premo, Acting P.J.




       ___________________________
       Mihara, J.




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