1 Filed 7/24/14 P. v. Torres CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. WILLIAM ESTUARDO RAMIREZ TORRES, Defendant and Appellant. E056781 (Super.Ct.No . RIF10005869) O P I N I O N

APPEAL from the Superior Court of Rive rside County. Eric G. Helgesen, Judge. (Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, a nd A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.2 A jury convicted defendant William Estuar do Ramirez Torres of 30 counts of lewd and lascivious acts upon a ch ild under 14 by use of force or duress (Pen. Code, § 288, subd. (b)(1); counts 1-30), 1 one count of the rape of a ch ild (§ 269, subd. (a)(1); count 31), and one count of the attempted rape of a child (§§ 664, 261, subd. (a); count 32). The trial court imposed an indeterminate term of 15 years to life, plus a determinate sentence of 183 years. On appeal, defendant contends there is in sufficient evidence of force or duress to support his convictions for violations of section 288, subdivision (b)(1) in counts 1 through 30. For the reasons stated be low, the judgment will be affirmed. I. Factual Background Jane Doe, born in Februa ry 1991, was five years old when her mother married defendant. Defendant lived with Doe in Or ange County and became the father figure in her life. Doe’s mother trusted defendant to be alone with Doe and her other children. Defendant began molesting Doe in Orange County when sh e was seven or eight years old. Defendant continued to molest Doe for the next five years. The first time defendant molested Doe she was in the third grade. Defendant picked Doe up from a friend’s hous e the day after a slumber party in order to take her to see her mother and her newly bo rn baby sister at the hospita l. Defendant told Doe he needed to stop at their apartm ent before they went to the hospital. Defendant directed

1 All further statutory references will be to the Penal Code unless otherwise noted.3 Doe to come into the bathroom with him. Doe obeyed becau se she had been taught to respect adults. Once in the bathroom, defendant sat dow n on the toilet, pulled his pants zipper down, and began playing with his penis. Defendant then reached into the shower and grabbed some conditioner, which he applied to his penis. Defendant told Doe to come closer. Though Doe was scared and in shock, she felt she ha d to obey defendant because he was her father figure and handled disciplinary matters in the family. When Doe approached, defendant grabbed he r hand and told her to play with his penis. Defendant told Doe to be a good girl and listen to him. Defendant held Doe’s hand and moved it up and down on his penis. Then, defendant directed Doe to open her mouth while he placed his penis inside. Doe did not like it and tried to close her mouth, but defendant kept telling her to keep her mouth open. De fendant ejaculated, and told Doe to swallow the ejaculate. Doe did as sh e was told, though she fe lt like throwing up. Defendant told Doe she was a good girl and ga ve her some money. Defendant told her not to say anything to anyone because nobody would believe her. Later, defendant took Doe to visit her mother in the hospital. Doe did not tell her mother what had just happened because she was s cared and did not think sh e would be believed. Defendant molested Doe on more than 20 or 30 other occasions while the family lived in Orange County. One time, Doe was alone with defendant while he was driving to Lake Elsinore to help a relative move. De fendant pulled his penis out of his pants and4 told Doe to play with it. Doe was scared, but felt that she had to do what defendant demanded. Defendant made Do e put his penis in her mout h while he ejaculated. On multiple occasions, defendant came into Doe’s bedroom late at night and touched her breasts with his ha nds and mouth. Eventually, defendant started to digitally penetrate Doe’s vagina, though she was not su re whether this activity began in Orange County or Riverside. Doe was too scared to tell anybody about the molestations. She felt embarrassed, nasty, and dirty. When Doe was in the sixth grade, her family moved to Riverside. Defendant continued to molest Doe after the move. Doe testified defendant molested her more than 20 times in Riverside. 2 On one occasion while Doe was in the sixth grade, de fendant took her into the master bedroom while Doe’s mother was away. Defendant told Doe to take her pants off and lay on the bed. After she complied, defendant touched and kissed her breasts and body before inserting his fingers into her va gina. Defendant also put his mouth on Doe’s vagina before he ejacu lated on her stomach. Doe tried to stop the molestations by telling defendant she planned to tell her mother what was happening. In response, de fendant hit and slapped her. Doe repeatedly told defendant she hated him and wished he would die. Defendant would hit Doe’s head, pull her ears, put his hand over her mouth, and tell her to shut up. On one occasion, a

2 Defendant also raped Doe at least one time in Riverside, and attempted to rape her on another occasion. Because defenda nt does not challenge these convictions, additional factual discussion of these crimes is not necessary here.5 school counselor questioned Do e about some bruising on her face caused by defendant’s blows. Doe lied about the source of her in jury because she was afraid the police might come and take her sisters away from her home. Doe’s friend, Ariel S., sometimes spent th e night at Doe’s home in Riverside. Doe seemed really scared of defendant. On se veral occasions, Ariel observed defendant come into Doe’s room in the middle of the nigh t and call her out. Doe would leave with defendant for a while before returning and quickly getting ba ck into her bed. The two girls began moving a large trunk in front of the bedroom door to prevent defendant from bothering Doe during the night. On one occas ion, Ariel saw defendant grab Doe by her ear or shirt and treat her badly. When Ar iel asked her friend wh y defendant was acting that way, Doe told Ariel that defendant wa s molesting her, but cautioned her not to tell
anyone. Doe told her mother that defendant had been molesting her wh en she was in the seventh or eighth grade. Her mother confronted defendant, and he eventually admitted that he had touched Doe inappr opriately. Doe’s mother told her daughter defendant was sorry for his actions. After th at, the molestations stopped. Defendant and Doe’s mother remained married. When Doe was 19, she was home alone w ith defendant. Wh ile she was getting something to eat, defendant appr oached her in the kitchen. Doe felt like defendant might try to do something again. She left her plat e of food in the kitchen and retreated to the bathroom. When she came out a few minutes later, defendant blocked her way. Doe felt6 that defendant was making advances, so she turned and walked out the front door. Doe was very upset and called her sister in tears. Saying she could no t take it anymore, Doe told her sister about defendant’s molesta tions. Doe’s sister called the police. At trial, defendant adm itted touching Doe’s chest and buttocks on two occasions when she was 13 years old. Defendant denied all the other charges. II. Discussion A. Applicable Law We are limited in our review of a claim of insufficien cy of the evidence. We assess the sufficiency of ev idence by reviewing the entire record in the light most favorable to the judgment to determine whet her it discloses evidence that is reasonable, credible, and of solid value, such that a reas onable trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [61 L.Ed.2d 560, 99 S.Ct. 2781].) “Given this court’s limited role on appeal , defendant bears an enormous burden in claiming there is insufficient evidence to sustain his mole station convictions. If the verdict is supported by substa ntial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves.” ( People v. Veale (2008) 160 Cal.App.4th 40, 46 ( Veale ) [Fourth Dist., Div. Two], citing People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Section 288, subdivision (b)(1) prohibits the commission of lewd and lascivious acts upon a child under 14 by use of force, violence, duress, menace or fear of immediate7 and unlawful bodily injury on the victim or another person. Under section 288, subdivision (b)(1), dure ss means a direct or implied threat of force, violence, danger, hardship or retribution suffici ent to coerce a reasonable pe rson of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted. ( People v. Leal (2004) 33 Cal.4th 999, 1004; see also Veale, supra , 160 Cal.App.4th at p. 46, citing People v. Cochran (2002) 103 Cal.App.4th 8, 13.) “[T]hrea ts need not be express, but may be inferred from conduct. [Citation.] Silent threats, of course, generate fear.” ( People v. Reyes (1984) 153 Cal.App. 3d 803, 811.) The legal definition of duress is objec tive in nature, and no t dependent on the response exhibited by a pa rticular victim. ( People v. Soto (2011) 51 Cal.4th 229, 246.) Because duress is measured by an objective st andard, a jury could find a defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to the behavior. ( Ibid. ) Duress involves psychological coercion. ( People v. Senior (1992) 3 Cal.App.4th 765, 775; see also People v. Cochran, supra , 103 Cal.App.4th at p. 15.) “Physical control can create ‘duress’ without constituting ‘force.’” ( People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) Where the defendant is a family member and the victim is young, the position of dominance and author ity of the defendant and his continuous exploitation of the victim are releva nt to the existence of duress. ( People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320; see also Veale , supra, 160 Cal.App.4th at p. 468 [total circumstances, including age of vic tim and the victim’s relationship to the defendant, are factors to be considered in appraising existence of duress].) “A simple warning to a child not to report a molest ation reasonably implies the child should not otherwise protest or resist the sexual imposition.” ( People v. Senior,

supra, 3 Cal.App.4th at p. 775.) Another factor to be consider ed is the occurrence of the molestation “in an isolated room out of th e presence of other adults . . . .” ( People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238; see also People v. Cochran,

supra , 103 Cal.App.4th at pp. 15-16.) “‘“Where the defendant is a family me mber and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim” [are] relevant to the existence of duress. [Citation.]’ [Citation.]” ( Veale,

supra , 160 Cal.App.4th at p. 49, quoting People v. Schulz, supra, 2 Cal.App.4th at p. 1005; see also People v. Pitmon (1985) 170 Cal.App.3d 38, 51 [finding evidence sufficient to establish duress, even though the victim testif ied the defendant did not use force or threats, when the victim was “eight years old, an age at which adults are commonly viewed as authority fi gures. The disparity in physical size between an eightyear-old and an adult also c ontributes to a youngster’s se nse of [her] relative physical vulnerability.”].) A rational trier of fact can find duress where th ere is an “inherent imbalance of power in an encounter betw een a child and an ad ult bent on sexual conduct.” ( People v. Soto, supra , 51 Cal.4th at pp. 245-246.)9 B. Sufficiency of Evidence of Duress Defendant contends there is insufficien t evidence of either force or duress to support his convictions in coun ts 1 through 30. Because th e prosecution relied primarily upon a theory of duress and we conclude ampl e evidence of duress wa s presented as to all of the challenged convictions, we need not decide whether sufficient evidence of force was also present here. 3 The evidence at trial established that defendant repeated ly molested Doe beginning when she was only seven or eight years old. Children are physically and emotionally vulnerable at such young ages. ( People v. Pitmon, supra , 170 Cal.App.3d at p. 51.) As in People v. Cochran, supra, 103 Cal.App.4th at page s 15 and 16, defendant’s molestations took place in the family home wh en Doe’s mother was not present. (See

3 The record shows that the prosecution relied primarily upon a theory of duress in this case. However, we note Doe’s te stimony supports a conclusion that defendant used force to accomplish at least some of the molestations. In addition, defendant admitted to the use of force during the acts of molestation charged as counts 16 and 17. Defendant testified that he “grabbed” Doe from behind while he was alone with her in his bedroom. Defendant touched Doe’s breast and buttocks, and attempted to touch her vagina, until Doe ran away. On a second occa sion, defendant saw Doe walk by him in the hallway. Defendant “stopped” Doe with his hand and “grabbed” her, touching her breast with one hand and her buttocks with the other. The “force” requirement of section 288, subdivision (b)(1) will be d eemed satisfied when the defenda nt uses any force that is “different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victim’s consent.” ( People v. Neel (1993) 19 Cal.App.4th 1784, 1790

. ) “According to the majority of courts, this includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves.” ( People v. Alvarez (2009) 178 Cal.App.4th 999, 1005 [force elem ent met where the defendant resisted the victim’s attempts to push him away, holding the victim while he digitally penetrated her, before grabbing the victim’s ha nds and placing them on his penis]; People v. Babcock (1993) 14 Cal.App.4th 383, 388 [force elem ent met when the defendant grabbed the victim’s hands and made them touch his genital area].)10 also People v. Superior Court (Kneip), supra , 219 Cal.App.3d at p. 238.) Defendant was Doe’s stepfather, and was responsible for taki ng care of her during the times he molested her. As in People v. Espinoza, supra , 95 Cal.App.4th at page 1320 and Veale, supra , 160 Cal.App.4th at page 47, defend ant occupied a position of authority in the family, handled disciplinary matters and was a “father figure” to Doe. Defendant repeatedly admonished Doe to tell no one about the molestations (see People v. Senior , supra, 3 Cal.App.4th at p. 775), and gave her money when he first bega n molesting her. When Doe tried to stop the molestations by telling defendant she would inform her mother what was happening, defendant hit and slapped her. All of th ese circumstances wo uld have reasonably contributed to Doe’s sense of dure ss during defendant’s molestations. The present case is similar to Veale . In Veale , the victim was six or seven years old when the defendant, her step father, began molesting her. The victim was subjected to acts similar to those committed against Do e in the current case. The victim in Veale testified that she did not tell her mother a bout the molestations be cause she thought her mother would not believe her, and the victim was afraid something might happen to her mother if she disclosed the molest ations, though the defendant in Veale had not made such threats to the victim. This court concluded there wa s sufficient evidence of duress to support convictions under section 288, subdivision (b)(1), because on at least one occasion the bedroom door was locked, the defendant was an auth ority figure in the household, and the victim was afraid to report the molestations. ( Veale, supra, 160 Cal.App.4th at pp. 46-47.)11 In the present case, as in Veale , the victim’s young age and the disparity of physical size between Doe an d defendant made her more su sceptible to coercion due to defendant’s position of authority in the fami ly. Though no evidence was presented that defendant locked a bedroom door, he did take steps to isolate Doe from others, such as taking her into rooms in the home where no one else was present and calling her out of her bedroom when a friend was spending the night, thereby making her more vulnerable to defendant’s unlawful acts. (See, e.g., People v. Cochran, supra, 103 Cal.App.4th at pp. 15-16; People v. Superior Court (Kneip), supra , 219 Cal.App.3d at p. 238.) Substantial evidence thus su pports the jury’s implied find ing of duress inherent in defendant’s challenge d convictions. Defendant’s reliance on People v. Espinoza, supra , 95 Cal.App.4th at page 1321 is misplaced. In Espinoza, the court concluded there was insufficient evid ence of duress used to accomplish a series of molestations of the defendant’s 12-year-old daughter during a one-month period, where the perpetra tor never threatened the victim or said anything other than expressing love for his daughter during the molestations. ( Id . at p. 1295.) Unlike Doe, the victim in Espinoza “made no oral or physical response to his acts.” ( Id . at p. 1320, fn. omitted.) In contrast here, defendant’s molestations took place over a period of five years, beginning when Doe was only seven or eight years old. Contrary to defendant’s assertion that there was insufficient ev idence of his threats to th e victim, Doe testified that defendant physically assaulted her on multiple occasions, and repeatedly admonished her12 not to tell anyone about the molestations be cause no one would belie ve her. Left unsaid was that disclosure of the molestations wo uld disrupt Doe’s mothe r’s relationship with defendant and their household and family. Doe testified she believed the police might take her sisters away if she revealed defend ant’s molestations. We regard this as an implied threat of hardship that would result if Doe refused to acquiesce to defendant’s sexual demands. We conclude defendant “took advantage not only of his psychological dominance as an adult authority figure, but al so of his physical dominance to overcome [Doe’s] resistance to molestation. This qualifies as duress.” ( People v. Schulz, supra , 2 Cal.App.4th at p. 1005.) Based on the foregoing, substantial ev idence exists to s upport defendant’s convictions under section 2 88, subdivision (b)(1). III. Disposition The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur: RICHLI J. MILLER J.