Filed 2/8/24 P. v. Ortega CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

RUBEN ORTEGA , Defendant and Appellant. D081153

(Super. Ct. No. SCN412267 )

APPEAL from a judgment of the Superior Court of San Diego County, Kelly C. Mok , Judge

. Judgment a ffirmed.
Pauline E. Villanueva , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General , A. Natasha Cortina and Melissa Mandel , Deputy Attorney s General, for Plaintiff and Respondent. INTRODUCTION Over a n eight

- year period, Ruben Ortega sexually abused Jane Doe , the daughter of his then live

- in girlfriend (Mother)

. A jury found him guilty of2

the 30 counts alleged against him. 1 The court sentenced Ortega to two consecutive indeterminate terms of 15 years to life fo r counts seven and eight and a total of 93 years in prison on the remaining charges. On appeal, Ortega argues the evidence does not support the forcible sex offen s es (cou n ts 1 through 29) because insufficient evidence shows he committed these offenses by means of force, fear, menace, or duress. Viewing the evidence in the light most favorable to the judgment, we conclude substantial evidence supports these counts. Accordi ngly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND In 2009, Mother lived in Carlsbad with Jane Doe and Doe ’s younger sister

. Ortega moved into the home in 2011 or 2012, when Jane Doe was around 11 years old. The first act of abuse occurred when Jane Doe was 11 years old. Ortega entered her room when Mother was away from the home and touched
Jane Doe ’s vaginal area over her underwear with three fingers in a circular
motion

. Jane Doe did not say anything to Or tega when he started touching her vaginal area because she “was in shock and uncomfortable” with him doing that to her. She felt like she could not tell Ortega to stop because she was “just scared as anything.”

1 All undesignated statutory references are to the Penal Code. The 30 counts were based on the “first” and “last” time each type of offense occurred, based on Jane Doe ’s age and consisted of : six counts of forcible lewd act upon a child (counts 1 through 6; § 288, subd. (b)(1)); two counts of aggravated sexual assault of a child (counts 7 and 8; § 269 subd. (a)); eight counts of forcible rape (counts 9, 10, 15, 16, 19, 20, 24, 27; § 261, subd. (a)(2)); nine counts of forcible oral copulation (counts 11 through 14, 17, 18, 21, 22, and 25; former § 288a, subd. (c)(2)(A)); three counts of sodomy by use of force (counts 23, 26, 29; § 286, subd. (c)(2)(A)); one count of forcible oral copulation (count 28, § 287, s ubd. (c)(2)(A)); and one count of harmful matter sent to a minor with intent to seduce (count 30; § 288.2, subd. (a))

.3

Another incident occurred when Ortega had Jane Doe alone in the
home and he “forced” her to stay in her room, remain quiet , and lay down. After she laid down, Ortega touch ed her vaginal area and then penetrated her over her underwear with his penis as she cried in silence. More than twice, when Jane Doe was 12 years old, Ortega touch ed her vaginal area over her underwear with his penis when Mother napp ed or was away from the
home.
When Jane Doe was 13 years old, Ortega “started to take off [her] underwear and penetrate [her] with his penis and force his body on [her] ” until he ejaculated. Ortega had sex with her more than twice when she was 13 years old. After Jane Doe turned 14, Ortega touch ed her vagina with his hand and penetrated her with his hand and penis. When no one else was home, Ortega “would tell [her] to stand in the middle of the hallway and
leave [her] shirt on but take off [her] underwear and just turn around slowly, and that’s what [she] did. And he would make [her] go [in Mother’s] room
and [she] would just lay on [her] stomach and just not move. Then he would just penetrate [ her from behind] with his penis.” T his happened almost every time Ortega was alone with Jane Doe. After Jane Doe turned 15 years old , Ortega “would force [her] to

. . . give him oral sex and force [her] head onto his penis until he ejaculated into [her] mouth. He would make [her] try to swallow it.” This happened many times in the living room, kitchen, Mother’s bedroom, or her bedroom. Ortega
also penetrated Jane Doe ’s vagina with his penis more than twice. Ortega
also started giving Jane Doe alcohol and marijuana. When she turned 16 , Ortega continued to have sex with Jane Doe. This happened more than once
in a minivan, the kitchen, living room, or Mother’s room. Ortega also4

frequently made Jane Doe orally copulate him. Ortega also sodomize d Jane
Doe.
When Jane Doe turned 17, Ortega started to orally copulate her

. He continued to force Ja ne Doe to orally copulate him and continued having intercourse with her “all over” the family home including the garage. After
Jane Doe turned 18 the sexual intercourse continued until three weeks before
her 19 th birthday. Jane Doe stated she smoke d marijuana “because [she] wanted to forget everything and not feel anything physically.” She claimed
she was “addicted to marijuana because I just was numb physically and mentally.” Three weeks before her 19 th birthday Jane Doe was texting a male friend

. W hen Ortega saw the text , he spat in front of her face and demanded
she give him the phone. He told her to get in the car and then “started getting mad at [her] out of control” and balled his hand in front of her face as if he was going to punch her. T he next day Jane Doe p ack ed her belongings
and had her Father pick her up

. She left because she had enough “Of all the pain that it caused [her] from the beginning. [She] just felt reckless of [her] own body and

. . . couldn’t handle it anymore.” Eventually, Jane Doe told one of her cousins about the abuse. Jane
Doe ’s aunt t hen called Doe who “finally broke down” and told her aunt what had happened. Father overhead the conversation and Jane Doe told Father
about the abuse . They called the police and went to the police station that night. The following day, a police detecti ve interviewed Jane Doe for at least
three hours. The detective opined that Jane Doe was not cognitively impaired. He noticed , however, that when talking to Jane Doe “she may not necessarily be processing exactly what you ’ re saying in the momen t” and he
would sometimes need to say things a couple times or in different ways . As5

an example of this, when asking Jane Doe whether Ortega used force, she might say “no.” Other times when he asked about Ortega using force “ she would explain and describ e [Ortega] using force. For example, ‘ I would say

“ no ” and he would just go for it ’ or ‘ he would continue until he ejaculated ’ or ‘ I would try and push him off and he would force me to keep going for a little bit, ’ and that was kind of her response. ” DISC USSION
I

. Standard of Review In reviewing the sufficiency of the evidence, “we must ‘ “review the entire record in the light most favorable to the judgment,” ’ and then determine whether it contains ‘ “evidence that is reasonable, credible, and of solid value” ’ such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.” ( People v. Ware (2022) 14 Cal.5th 151, 167.) We “presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence.” ( P eople v.
Medina (2009) 46 Cal.4th 913, 919.) “ Although circumstances might also reasonably be reconciled with a contrary finding, it does not warrant reversal of the judgment. [Citation.] All intendments are in favor of the judgment
and a verdict will n ot be set aside unless the record clearly shows that there is not sufficient evidence based upon any hypothesis whatsoever. [Citation.] Defendant bears an ‘enormous burden.’ ” ( People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
II.

Substantial Evidenc e Supports All Counts Ortega’s convictions for the forcible sex offen s es (counts 1 through 29) required that the jury find he committed the offenses by “force, violence,6

duress, menace , or fear of immediate and unlawful bodily injury.” (§ § 269 subd. (a ), 288, subd. (b)(1) , 261, subd. (a)(2) , former 288a, subd. (c)(2)(A) , 286, subd. (c)(2)(A) .) Because the statutory language is in the disjunctive, a conviction may be supported by eviden ce of any one of the listed factors

. ( See People v. Young (1987) 190 Cal.App.3d 248, 259.) T he People prosecuted the case on the theory Ortega committed the offenses by means of duress. The instructions defined duress as “the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do or submit to something that he or she would not
otherwise do or submit to. When deciding whether the act was accomplished by duress, c onsider all the circumstances, including the age of the child and her relationship to the defendant. ” (CALCRIM Nos. 1111, 1000, 1015 , 1030 .) Other pertinent factors include threats to harm the victim, physically controlling the v ictim, and warning the victim that revealing the molestation would jeopardize the family. ( People v. Cochran (2002) 103 Cal.App.4th 8, 14 ( Cochran ) , overruled on another point in People v. Soto (2011) 51 Cal.4th 229, 248, f n. 12 ( Soto ) .) “Physical contro l can create ‘duress’ without constituting ‘force.’ ” ( People v. Shulz (1992) 2 Cal.App.4th 999, 1005 ( Shulz ) .) That an appellant does not use force or overt threats does not prevent a finding of
duress because the victim ’ s testimony should be considered in light of her age and relationship to the appellant. ( Cochran , at p. 14

. ) “ [T] he legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim.” ( Soto , at p. 246 .) We disagree with Ortega ’s conten tion that his convictions for the forcible sex offenses must be reversed because there was insufficient evidence of duress

. Although Jane Doe never saw Ortega as a father figure , Mother described him as a partner or spouse responsible for her children’s safety and7

wellbeing when she was not home. Ortega was 19 years older and larger
than Jane Doe , and she described him as “super strict.” Jane Doe had

a ttention deficit hyperactivity disorder and experienced difficulties in the areas of speech development, learning processes and comprehension. Ortega
knew Jane Doe had learning disabilities. Mother described Jane Doe as “very shy, very gullible, just a little la

- la land ” and as someone who “wouldn ’t talk back.” Ortega stated Jane Doe “likes to keep to herself and [is] very quiet

. ” When asked if Jane Doe was easily manipulated, Ortega responded , “If you tell her something, she believes it.” The detective in charge of the investigation similarly d escribed Jane Doe as “very timid and soft spoken, seemingly shy.” T he jury could reasonably infer from these circumstances
that shy and young Jane Doe perceived Ortega as an authority figure whose
directi ons to her were not requests but orders to be followed.
The record show s Ortega continuously molested Jane Doe over a n eight

- year period beginning when she was 11 years old and that the
molestation occu rred in their family home and outside the home when Ortega
had Jane Doe alone. During the first act of abuse, Jane Doe described being “really scared” and “in shock” when Ortega entered her room and touched her vaginal area over her underwear with his fin gers

. Jane Doe was too scared to tell him to stop and believed Mother would yell at her

. For the next incident, Ortega “forced” Jane Doe to stay in her room,
remain quiet and lay down before he again penetrated her over her underwear with his penis

. Ortega later told Jane Doe to not tell anyone . He told her, “This is our little secret. You better not tell your mom or else she’s going to do something and probably call CPS on us.” She believed Ortega and did not tell anyone what he had done to her. At the time, Jane Doe did not know what CPS stood for but believed someone would take her away from her8

family. “ A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposit ion. ” ( People v. Senior (1992) 3 Cal.App.4th 765, 775 .) Ortega groomed Jane Doe to accept the abuse, starting with touching her vaginal area with his penis over her underwear, to increasingly more

severe sex acts as she grew older. Jane Doe ’s testimon y shows Ortega psychological ly domina ted her as an adult authority figure

. When she was 13 years old, Jane Doe felt she could not tell anyone what was happening, stating: “I was just shutting down at that point. I just felt like I couldn’t

trust anybody. I felt numb.” At age 14, Jane Doe described feeling as if “ I wasn’t a part of my body. I felt like he owned my body and would force me to have sex with him.”
When Jane Doe turned 15, Ortega increased the psychological pressure

on Doe by telling her that he preferred spend ing time with her rather than
Mother

. T his made Jane Doe uncomfortable and she did not tell Ortega that she did not want to spend time with him “because [she] was afraid of what he would do to [her].” Jane Doe described how Ortega “force [d] [her] to act like

. . . [she] was in a relationship with him

. ” This psychological pressure included telling Jane Doe he loved her, did not want her to leave him , and
how he did not love Mother. J ane Doe stated this was “[v]ery confusing” to
her. When asked what she thought when Ortega stated he loved her , J ane Doe responded, “I wanted to commit suicide and just not be in the family no more. Just run away. I didn’t want to live anymore.”
T hroughout her high school years , J ane Doe did not want to be in a relationship with Ortega and felt like he “ controlled” h er

. When asked how Ortega controlled her , J ane Doe responded : “He would get mad at me if I would talk to my dad over the phone or go visit him, or if I were to go and try9

to hang out with some of my friends, and he would try to manipulate me into staying home. Or he would get mad at me every time I go visit my famil y on my dad’s side or

-- yeah. Simply as going on a walk.” Ortega also spent a lot of time having conversations with J ane Doe about being in a relationship,
which “ confused ” and “ scared ” Doe and caused her to be “ just numb most of the time.”
J ane Doe s moke d marijuana “because [she] wanted to forget everything and not feel anything physically.” B y the time she was 18 years old , J ane Doe described being “addicted to marijuana because I just was numb physically and mentally.” Ultimately, J ane Doe left th e family home because she had enough “ [o] f all the pain that it caused [her] from the beginning. [ She] just felt reckless of [her] own body and just

. . . couldn’t handle it anymore.”
In addition to psychological pressure , Ortega exhibited physical control

over J ane Doe , which can create duress without constituting force. ( Shulz,

supra , 2 Cal.App.4th at p. 1005.) J ane Doe consistently testified that Ortega “forced” her to participate in the sex acts and that her fear caused her to acquiesc e to Ortega’s advances. When Ortega first molested her, J ane Doe described being “scared , ” “in shock” and “afraid to move.” During ano ther incident, Ortega “forced” J ane Doe to stay in her room, remain quiet and lay
down. Once, Ortega used his hands to move J ane Doe ’s body into different positions. For oral sex, J ane Doe stated Ortega forced her head onto his penis. She described how Ortega put his hand on the back of her head until he ejaculated and once when she tried to pull away Ortega “forced” his penis
into her mouth

. J ane Doe also believed Ortega would hit her, stating : “He would not lay a finger on me, but it just felt like he would threaten me, and his tone of voice when he would get mad at me every time I at least tried to10

say no about having oral

-- my mouth and his penis. It just felt like I couldn ’ t say no to him. [He would] [j] ust manipulate my mind.” Relying on People v. Espinoza (2002) 95 Cal.App.4th 1287 and People v.
Hecker (1990) 219 Cal.App.3d 1238 2

, Ortega asserts duress requires more than mere psychological coercion or manipulation and must include evid ence of an implied threat of force, violence, danger, hardship, or retribution

. ( Hecker , at pp. 1250

– 1251.) Several courts have rejected t his argument that psychological coercion without more does not establish duress. In Cochran , supra , 103 Cal.App.4th 8 , t he same court that decided Hecker declined to follow it, finding its language to be overly broad . The Cochran court explain ed : “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 reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defenda nt is her parent. We also note that such a threat also represents a defendant ’ s attempt to isolate the victim and increase or maintain her vulnerability to his assaults.” ( Cochran , at p. 15 ; accord, People v. Veale (2008) 160 Cal.App.4th 40, 4 9 [ “ ‘[D]uress involves psychological coercion.’ ” ]; People v. Mejia (2007) 155 Cal.App.4th 86, 101 [warning victim not to report incidents “bespeaks psychological coercion, not normal sexual relations”].) Additionally, the Supreme Court later approved a defin ition of duress in child molestation

cases consistent with Cochran , describing duress as “ ‘us[ing] some form of

2 Hecker overruled in part in Soto , supra , 51 Cal.4th at page 248, footnote 12.11

psychological coercion to get someone else to do something.’ ” ( Soto , supra , 51 Cal.4th 229 at p. 243.) “We ‘ must accept logical inferences t hat the [factfinder] might have drawn from the circumstantial evidence. [Citation.] ’ . . . Where the circumstances reasonably justify the trier of fact ’ s findings, a reviewing

court ’ s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment ’ s reversal.” ( People v.
Zamudio (2008) 43 Cal.4th 327, 357

– 358.) Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found
that Ortega took advantage of his authoritative position and J ane Doe ’s timidity, age, and vulnerability . The jury could also reasonably conclud e , based on the totality of the circumstances, that J ane Doe ’ s acquiescence was derived from the psychological and physical control Ortega exercised over her and was not the result of freely given consent. I n s ummary, substantial evidence supports the jur y ’ s implied finding of duress. Thus, we reject Ortega’ s substantial evidence challenge to the forcible sex offenses. DISPOSITION
T he judgment is affirmed.

DO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.