1 Filed 6/16/15 P. v. Dominguez CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. FRANCISCO DANI EL DOMINGUEZ, Defendant and Appellant. A142003
(Alameda County Super. Ct. No. H54206)

Defendant Francisco Daniel Dominguez appeals a judgment sentencing him to prison for a term of 53 years to life for mole sting his daughter. He contends some of his convictions must be reduced to lesser incl uded offenses because there is insufficient evidence that those offenses were committed with the use of duress. We disagree and shall affirm the judgment. Factual and Procedural History Defendant was charged by amended info rmation with three counts of committing a lewd act upon a child under 14 (Pen. Code, 1 § 288, subd. (a)—counts 1, 2, and 4), aggravated sexual assault of a child under 14 by oral copu lation (§ 269, subd. (a)(4)— count 3), two counts of sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)— counts 5 and 6), two counts of forcible or al copulation (§ 288a, subd. (c)(2)(A)—counts 7 and 8), and sexual battery by restrain t (§ 243.4, subd. (a)—count 9). The following evidence was presented at trial:

1 All statutory references are to the Penal Code.2 The victim, D., was born in Mexico in 1995. Her parents are defendant and his wife, G. Dominguez. Defendant left the family to find work when D. was two years old, and he returned when she was about five ye ars old. When D. was about six years old, Mrs. Dominguez brought her to the United St ates. Defendant arrived from Mexico some months later. The family settled in San Le andro, California, but changed residence several times. Defendant and hi s wife had two more daughters. At the time of trial, D. was 18 and her sisters were six and eight year s old. During D.’s ch ildhood, defendant was the primary income provider for the family. He made the rules for the household and disciplined th e children. D. was molested by defendant numerous times from age 8 through 14 or 15. D. was 14 years old when she told her mother that defendant had been touching her inappropriately. She did not disclose details, but did tell her mother in front of defendant. Defendant did not deny the a llegation at the time. Mrs. Do minguez did not tell the police because she was “afraid” of her husband, who paid the rent and threatened “that he was going to hurt her in every way. ” Defendant subsequently told Mrs. Dominguez that she was an “accomplice” because she had failed to disclose his actions. In 2012, during a physical examination D. reported the abuse to a nurse. She did so because she was tired of “ living with this big secret in side of me and living with somebody that did it to me and having to always be reminded of—and just, this had happened to me and having to deal with it and not being able to tell no one.” She then reported the abuse to the police and cooperated in making a recorded phone call to her father. In that “pretext call,” D. confront ed defendant about the molestation, and he apologized and asked for her forgiveness. D. testified to each incident as follows: Count One: Lewd Act (§ 288, subd. (a)). The first incident occurred the day befo re she started fourth grade; she was approximately eight years old. At that time, D. was about half her father’s height. D. testified that she was sleeping next to her mo ther when she awoke to her father standing next to the bed, touching he r vagina. She pretended to be asleep. She thought it was3 “gross” and “wasn’t right,” but did not then tell anyone what had happened. At that time she had a “normal” relationship with her fath er, who was the primary adult male figure in her life. D. looked up to him. She respected him and they did not fight. Count Two: Lewd Act (§ 288, subd. (a)) The second incident occurred when D. and her mother were taking a nap mid-day when she awoke to her father touching her vagina under her skirt. She began to cry because she was scared and her crying woke her mother. Defendant told her mother that she was crying because she hurt her finger. She wa nted to tell her mother that her father was lying but did not do so because she was afraid it woul d happen again. She felt she could not tell anyone. Count Three: Aggravated Sexual Assault (§ 269 , subd. (a)(4)) The next incident occurred in 2005 or 2006 when D. was nine or 10 years old. She was lying on the corner of her parents’ be d when her father pulled down her pants and licked her vagina. She did not fight him or sa y anything, but she did not want him there. At that age, she respected her father, abided by hi s rules, and did not argue with him. She did not tell anyone. She respected her father, and although she “didn’t think it was right,” she “didn’t question him becaus e he was [her] father.” Count Four: Lewd Act (§ 288, subd. (a)) The next incident occurred in 2007 or 2008 when D. was 11 to 13 years old. D. recalled being on the telephone and her fa ther coming from behind and hugging her, making a “humping motion.” Defendant made it seem that he was playing with her, but she did not feel comforta ble given prior events. Counts Five and Six: Sexual Penetration by a Foreign Obje ct (§ 289, subd. (a)(1)(A)) The next incident occurre d between 2008 and 2011 when D. was between 13 and 15 years old years old. Her father came into the bedroom during the day and he closed the curtains. He unzipped her pants and put his hand down her underwea r, then rubbed and put his fingers in her vagina. She did not resist or tell anyo ne. D. did not try to resist “because he was [her] dad” and she “didn’t th ink [she] could have.” When asked if she felt like she had a choice, she replied, “Not ex actly.” By that time, D. was a teenager and4 she and her father were arguing a lot. She felt “resentment towards him” “[b]ecause of the things that he was doing to [her]” but she did not confront him about it. On another occasion, D. wa s lying on her bed in shorts. Her father came into the room, pushed her shorts to the side, and ag ain rubbed and put his fi ngers in her vagina. Again, she did not resist “because it was [h er] dad” and she “didn’ t think [she] had the choice.” Counts Seven and Eight: Forcible Oral Copulation (§ 28 8a, subd. (c)(2)(A)) D. also testified to two incidents of oral copulation that occurred when she was between thirteen and fifteen. During the firs t incident, she was ly ing on her bed in the evening and her father came in to the room, pulled down her pants and orally copulated her. At one point he stopped, left the ro om to “check on the living room” but then returned, closed the door and resumed orally copulating her. At the time of the second incident, D. remembered being on the phone. She tried to be “stiff like [she] didn’t want that to happen.” She “didn’t want him to open [her] legs,” so she clenched them together. She did not kick, scream, or run for help because she did “[n]ot really” believe she could. Count Nine: Sexual Battery (§ 243.4, subd. (a)) Finally, D. testified to an incident in wh ich her father slid his hand under her shirt and bra and massaged her breasts while he ru bbed her vagina. She was not able to move “[b]ecause he had one hand on [the] lower part of [her] body and the other hand on [her] chest.” The jury found defendant guilty on counts 1 through 8. The jury could not reach a unanimous verdict on count 9, and that count was subsequently dismissed by the prosecutor. Defendant was sentenced to prison for a term of 53 years to life. The term consists of 15 years to life on count 3, consecutive eight -year upper terms on counts 5, 6, 7, and 8, and consecutive two-year terms (one-third the midterm) on counts 1, 2, and 4. Defendant received 805 days credit for time served. De fendant timely appealed from the judgment.~ (2 CT 347)~5 Discussion Defendant contends there was insufficien t evidence to support his conviction on count 3 for aggravated sexual assault, on counts 5 and 6 for se xual penetration by a foreign object and on counts 7 and 8 for forcible oral copul ation. Defendant argues that there was no evidence he used duress during the commission of these crimes and that, absent duress, the offenses mu st be reduced to their lesser included offenses for which duress is not an element. A. Standard of Review We are limited in our review of a clai m of insufficiency of the evidence. “ ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whethe r 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. [Citations .] Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Cita tions.]’ [Citations.] [¶] Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there is insufficient evidence to sustain his molestation convicti ons. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves.” ( People v. Veale (2008) 160 Cal.App.4th 40, 45-46.) B. Applicable Law Each of the offenses that defendant ch allenges requires the presence of one of several aggravating factors. People’s theory at trial was that defendant committed each of these offenses with the use of duress, one such aggravating facto r. Under section 289, subdivision (a)(1)(A), the offens e charged in counts 5 and 6, “[a]ny 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.” Unde r section 288a, subdivision (c)(2)(A), charged in counts 7 and 8, “[a]ny pers on who commits an act of oral copulation when the act is6 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.” Finally, under section 269, subdivision (a)(4), charged in count 3, “any person who commits [oral copulation, in violation of section 288a, subdivision (c)(2)(A)] upon a child who is under 14 years of age and seven or more years youn ger than the person is guilty of aggravated sexual assault of a child.” “ ’Duress’ has been defined as ‘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 otherwis e would not have subm itted.’ [Citation.] . . . [D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship betwee n the defendant and the victim and their relative ages and sizes. [Citations.] ‘Where the defendant is a family member and the victim is young, . . . the position of dominan ce and authority of the defendant and his continuous exploitation of th e victim’ is relevant to the existence of duress.’ ” ( People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) “ ’Other re levant factors include threats to harm the victim, physically contro lling the victim when the vic tim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ ” ( People v. Veale , supra , 160 Cal.App.4th at p. 46, quoting People v. Cochran (2002) 103 Cal.App.4th 8, 14.) Defendant understandably relies heav ily on two cases in which a father’s molestation of his daughter was held to have been committed without the use of duress.
In People v. Hecker (1990) 219 Cal.App.3d 1238, the court found that there was insufficient evidence of duress where there was no evidence that the defendant expressly or implicitly threatened the vi ctim. The victim admitted she was never consciously afraid defendant would harm her and testified that with the excep tion of defendant’s pushing her head down during the act of oral copulation, he never used physical force. Although the victim stated she felt “pressured psycho logically” and was “subconsciously afraid,”7 there was no evidence defendant was aware of and sought to ta ke advantage of such fear. ( Id. at p. 1250.) The Hecker court observed, “ ‘Psycholog ical coercion’ without more does not establish duress. At a minimum there must be an implied threat of ‘force, violence, danger, hardship or retribution.’ ” ( Id. at pp. 1250-1251.) People v. Espinoza (2002) 95 Cal.App. 4th 1287, 1319-1320 relied heavily on Hecker in finding that there was insufficien t evidence of duress. The court in Espinosa explained, “The only way that we could say that defendant’s lewd act on L. and attempt at intercourse with L. were accomplished by du ress is if the mere fa ct that he was L.’s father and larger than her co mbined with her fear and lim ited intellectual level were sufficient to establish that the acts were acc omplished by duress. . . . Duress cannot be established unless there is evidence that ‘t he victim[‘s] participation was impelled, at least partly, by an implied threat. . . .’ [Citation.] No eviden ce was adduced that defendant’s lewd act and attempt at interc ourse were accompanied by any ‘direct or implied threat’ of any kind. While it was cl ear that L. was afraid of defendant, no evidence was introduced to show that this fear was base d 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 molesta tion was accomplished by duress based on an implied threat of molestation.” ( Id. at p. 1321.) Although admittedly somewhat analogous to the facts in this case, as discussed below, distinctions can be dr awn between the facts in both Hecker and Espinoza and those in the present case. More importantly , the language and reasoning in both cases have been questioned and undermin ed by subsequent decisions. First, in Cochran the court found the language in Hecker that psychological coercion without more does not esta blish duress was overly broad. ( People v. Cochran , supra , 103 Cal.App.4th at p. 14.) The court explained, “The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she repor ts or fails to acquiesce in the molestation, may constitute a threat of re tribution and may be sufficient to establish duress, particularly if the child is young and th e defendant is her parent. We also note that8 such a threat also represents a defendant’s at tempt to isolate the victim and increase or maintain her vulnerability to his assaults.’ ” ( Ibid. )
In Cochran the court found sufficient evidence of duress based on the facts that the victim was only nine years ol d and defendant was her father. ( People v. Cochran , supra , 103 Cal.App.4th at p. 14.) The court al so cited the victim’s behavior on a videotape of the abuse in which defendant “d irects and coaches the victim what to do” and the victim “engages in the conduct only be cause she is directed to do so” and “as a matter of compliance with parental authority.” ( Id . at p. 15.) At trial, the victim testified she was not afraid of her father, that he did not beat or punish her and never grabbed or forced her, but she also testified she was mad or sad about what he was doing to her, that he gave her money or gifts when they were alone together, and that he told her not to tell anyone because he would get in tr ouble and could go to jail. ( Ibid .) The court concluded, “This record paints a picture of a small, vul nerable and isolated ch ild who engaged in sex acts only in response to her father’s parental and physical authority. Her compliance was derived from intimidation and the psychologica l control he exercised over her and was not the result of freely given consent. Under these circumstances, given the age and size of the victim, her relationship to the defend ant, and the implicit th reat that she would break up the family if she did not comply, the evidence amply supports a finding of duress.” ( Id . at pp. 15-16, fn. omitted.) The court also noted “Neither the trial court’s ruling nor our ruling on appeal hold s that the parent/child relationship, as a matter of law, establishes force or duress. Nonetheless, as a factual matter, when the victim is as young as this victim and is molested by her father in the family ho me, in all but the rarest cases duress will be present. This conclusion do es not eliminate the distinction between subdivisions (a) and (b) of section 288; thos e subdivisions may be violated by persons other than the child’s parent or one having parental authority and under circumstances where the victim truly consents, e.g., a 13-ye ar-old girl consenting to engage in sexual acts with her boyfriend.” ( Cochran, p. 16, fn. 6.)
In People v. Veale , supra , 160 Cal.App.4th at page 48, the court relied on Cochran in finding that substantial evidence of dure ss supported defendant’s conviction. In that9 case, the victim, who was seven years old when the molestation began, testified that her stepfather did not threaten her or use phys ical force when he committed the charged offenses but that she feared defendant and fe ared that if she told anyone defendant was molesting her, defendant would kill her or her mother. ( Veale, pp. 46-47.) The court held that the evidence supported a reasonable inferenc e that “defendant made an implied threat sufficient to support a finding of duress, ba sed on evidence that [the victim] feared defendant and was afraid that if she told anyone about the molestation, that defendant would harm or kill [the victim], her moth er or someone else. Additional factors supporting a finding of duress include [the victim’s] young age wh en she was molested; the disparity between [the victim] and defe ndant’s age and size; and defendant’s position of authority in the family.” ( Id. at p. 47.) Here, the evidence at trial established that defendant repeatedly molested D. beginning when she was only eight years old. De fendant’s molestations took place in the family home. Defendant is the victim’s father and he occupi ed a position of authority in the family. He handled disciplinary matters a nd was responsible for the financial support of the family. Although defendant did not ex pressly threaten D., his actions reasonably support an implied threat that there would be adverse consequences if she told her mother. During the second inci dent when D.’s crying woke her mother, defendant’s lie about D.’s finger made it clear that she s hould not tell her mother what was happening. 2 D. began arguing more with her father as sh e became a teenager, bu t at the time of the early incidents she had a “normal” and respectf ul relationship with her father that made her feel like she had “no choice” but to co mply. There certainly was no evidence of consent or indication that D. complied for any reason other than submission to defendant’s parental authority. Even with respect to the la ter incidents, when D. was between thirteen and fifteen, D. testified that she felt that she could resist defendant only

2 Although defendant made th is comment in the course of the conduct underlying count 2, which did not require a showing of duress, it preced ed the conduct that formed the basis of the subsequent counts that di d require a showing of duress and, thus, was relevant to whether duress acco mpanied the later incidents.10 by stiffening her body and clen ching her legs, conduct which he physically overcame as he continued to molest her. (See People v. Schulz , supra , 2 Cal.App.4th at p. 1005 [“Physical control can create ‘duress’ withou t constituting ‘force.’ ”] .) It was only later when Dalia was able to resist defendant’s au thority that the abuse ceased. All of these circumstances support the reasonable inferen ce that Dalia’s acquiescence in defendant’s molestation was the result of duress she experi enced when confronted with her father’s demands. As in both Cochran and Veale, we find the language in Hecker , and in Espinoza to the extent it relied on Hecker , overbroad. Hecker and Espinoza are also factually distinguishable based on the considerable diffe rence in the victims’ ages. The victims in Hecker and Espinoza were 12 or 13 years of age when molested, while Dalia’s molestation began when she was only eight ye ars of age. Because of Dalia’s young age, she undoubtedly was mo re susceptible to coercion through fear and acceptance of her father’s position of authority. In short, there is no basis to disturb the jury’s finding that Dalia was molested by defendant under duress. Disposition The judgment is affirmed.

_ ____________ ____________ Pollak, Acting P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.