Filed 6/28/16 P. v. Carmalt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WALLACE SAMUEL CARMALT,

Defendant and Appellant.

 H038402

 (Santa Clara County

 Super. Ct. No. F1035060)

Over the course of two trials, Wallace Samuel Carmalt was found guilty of one 

count of forcible lewd conduct and five counts of aggravated sexual assault on a child 

under the age of 14. He challenges certain evidentiary rulings, jury instructions, and the 

sufficiency of the evidence to support the aggravated sexual assault convictions resulting 

from the second trial. Finding no error, we will uphold those convictions. We will 

further uphold the denial of defendant’s motion for a new trial on forcible lewd conduct 

under the doctrine of judicial estoppel. We will correct errors in the trial court’s fees and 

penalty assessment calculations, and affirm the judgment as modified.

I. TRIAL COURT PROCEEDINGS

A. BACKGROUND

Defendant was charged by information with six counts of aggravated sexual 

assault (rape) of Angela Doe, a child under 14 years of age and more than 10 years 
2

younger than defendant (Pen. Code, §§ 269, 261, subd. (a)(2)1; counts 1 through 6) and 

13 counts of forcible lewd conduct on Angela Doe, a child under 14 years of age (§ 288, 

subd. (b)(1); counts 7 through 19). The information alleged one count of aggravated 

sexual assault for every year between Angela’s eighth and fourteenth birthdays. The 

forcible lewd conduct charges were identical—all alleged to have occurred between 

Angela’s eighth and fourteenth birthdays. A jury found defendant guilty of one count of 

forcible lewd conduct (count 7) and not guilty of the aggravated sexual assault alleged to 

have occurred when Angela was eight (count 1). The jury was unable to reach 

unanimous verdicts on the remaining counts and a mistrial was declared as to those 

counts. 

The case was retried before a different judge after the judge who presided over the 

first trial retired. Defendant represented himself at both trials. Defendant moved pretrial 

to dismiss the deadlocked counts on double jeopardy grounds. He argued that all 

remaining counts should be dismissed because the first jury had not attributed a specific 

act to the count 7 forcible lewd conduct verdict, and he supported that position with 

declarations from jurors number 4 and number 9 stating that no juror assigned or 

designated any specific act to that count.

2

The court denied defendant’s motion as to the 

aggravated sexual assault charges (counts 2 through 6), but the prosecutor conceded 

defendant’s position as to the surviving counts of forcible lewd conduct (counts 8 

through 19), and the court dismissed those counts.

Defendant was found guilty in the second trial of the five remaining aggravated 

sexual assault charges. He was sentenced to consecutive 15-years-to-life terms on each 

count, for a total term of 75 years to life. He received eight years on count 7 stayed 

 

1 Undesignated statutory references are to the Penal Code.

2 Both jurors also referenced “discussion with my fellow jurors” about defendant’s 

possible sentence, including counseling, and about the possibility that defendant would 

not be retried if he were found guilty of only one count.
3

pursuant to section 654. The court imposed a $10,000 restitution fund fine (§ 1202.4, 

subd. (b)), a $10,000 suspended parole revocation restitution fine (§ 1202.45), a $150 

court security assessment (§ 1465.8, subd. (a)(1)), a $150 court facilities assessment 

(Gov. Code, § 70303), a $129.75 criminal justice administrative fee (Gov. Code, § 29550, 

subd. (c)), a $200 sex offense conviction fine (§ 290.3), and $600 in penalty assessments. 

The court made a “general order of restitution,” but that order was not reflected in the 

minutes or abstract of judgment.

3

Defendant moved for a new trial on several grounds including juror misconduct 

during the first trial to challenge the validity of the count 7 verdict. Relying on the same 

declarations used to support his double jeopardy challenge (plus a third similar 

declaration executed after that motion was heard), defendant argued that the first jury had 

committed misconduct in several ways including failure to follow the instruction 

requiring unanimity as to a specific act supporting the verdict on count 7. The prosecutor 

argued in opposition that defendant’s declarations were inadmissible under Evidence 

Code section 1150. The prosecutor also rebutted defendant’s declarations with 

declarations from five other jurors who stated that the jury had unanimously agreed on a 

specific act supporting count 7.4 That motion was denied. In concluding that the juror 

misconduct allegations did not provide a basis for a new trial, the court noted that 

 

3 We understand the general restitution order to be an order reserving jurisdiction 

to determine the amount of victim restitution at a later time. (See People v. Guardado

(1995) 40 Cal.App.4th 757, 762–763. We deem the order’s omission from the minutes 

and abstract of judgment a clerical error. (People v. Hong (1998) 64 Cal.App.4th 1071, 

1075.) We will order the trial court to amend those documents to reflect that order. 

(Id. at pp. 1084–1085.)

4 According to three of the prosecution’s declarations, juror number 9 was 

concerned during deliberations that defendant was being “railroaded” and “thrown under 

the bus.” Two of those jurors stated that juror number 9 expressed his reluctance to vote 

guilty because he did not want defendant to go to prison. A fourth juror wrote that an 

alternate juror said one of the jurors tried to recruit other jurors during cigarette breaks to 

vote not guilty. 
4

Evidence Code section 1150 bars statements in juror declarations about the misuse of the 

jury unanimity instruction.

B. SECOND TRIAL EVIDENCE

1. Prosecution’s Case

a. Charged conduct

Angela testified that she was born in February 1991. When she was five or six, 

her father and his girlfriend (who later became Angela’s stepmother) rented a room in 

their home to defendant. Defendant moved with the couple twice and lived with them 

until 2006. Angela spent every other weekend and every Wednesday night at her father’s

home until she was 13. During that time, her father was disabled and addicted to 

painkillers, and her stepmother was absent from the house for extended periods of time, 

working and caring for her elderly parents. As a consequence, Angela was left alone and 

spent most of her time with defendant, who was 29 years her senior. Defendant was nice 

to Angela: They hung out, played games, went for food, swam, played karaoke, and told 

jokes. He was there for her when she needed help.

When Angela was about seven, defendant began showing her pornographic films. 

When she was eight or nine, defendant initiated sexual contact with Angela, having her 

simulate the pornographic acts with him. Defendant would put pornography on the 

television or computer, take off Angela’s clothes, and rub his penis on the inside of her 

vaginal lips in one of three positions until he would ejaculate. This happened in 

defendant’s bedroom during every visit with her father until Angela was 13 and stopped 

the visits because she did not want to be around defendant. Although Angela was not 

scared of defendant, she did not understand what was going on and she was scared of the 

situation. Angela never removed her own clothes or positioned herself; rather, she was 

maneuvered by defendant, who was a lot bigger than her. She never told him “no,” and 

he did not cause her physical pain. He told her not to tell anyone, and she did not tell 
5

because she thought it was her fault. Although she hated defendant and she knew his 

behavior was wrong, she returned to his bedroom because her “body still liked it.” 

One time in the garage Angela and her friend Kiki masturbated defendant’s penis 

with their hands.5 Kiki was also present when defendant “did it” to Angela in his room.

Angela disclosed the molestation to a friend’s father, who testified that he had 

been extremely concerned about Angela’s behavior, including self-cutting, alcohol and 

drug use, and depression. He met Angela when she was 16, observed her in an 

“enormous amount of pain,” and had expressed his concern for several months before she 

made her disclosure. Another year passed before she agreed to go to the police. 

Angela’s father recalled defendant commenting that he wanted to move to a state 

where marrying a 13 or 14 year old girl was legal. Angela’s stepmother recalled 

defendant considering marriage to a 12, 13, or 14 year old to be perfectly normal. 

b. Uncharged conduct (propensity evidence)

Defendant lived with his sister for extended periods of time when he was in his 

twenties. His sister’s stepdaughter Nicole testified that she was born in 1978 and met 

defendant when she was eight. Defendant was flirtatious, told Nicole he was interested in 

her romantically, and when she was 12 he said he loved her, would marry her, and she 

would be the mother of his children. When Nicole was 12 or 13, her stepmother told 

defendant he could not be in the home alone with her. Nicole testified at age 33 that she 

knew defendant found her sexually attractive when she was 8, 9, and 10 years old. 

Nicole identified a picture of herself in a collage found during a search of 

defendant’s residence. The picture was taken when she was about 13, and her head was 

superimposed on a wedding dress. The collage was found in an envelope also containing 

a four-page composition titled “Why I wish to marry Nicole.” In that writing defendant 

 

5 Kiki testified that she watched Angela masturbate defendant’s penis and that 

occurred on more than one occasion when she and Angela were 10 or 11. She recalled 

Angela looking frightened and saying “I don’t want to do this.”
6

described meeting Nicole: “There while visiting my sister Ethel’s house I met for the 

first time a pretty young girl who was then at the age of eight and who was the only one 

present amongst a group of people who was dressed up very nicely and wearing a fancy 

laced white dress with a pink ribbon and her hair fixed quite nice. At that precise 

moment when I for the first time looked at her, I heard a voice say ‘that is your bride.’ ” 

He also wrote “I am thoroughly in control of my passions. ... Though one day I have 

hope to be permitted to unbridle the passions that I have for Nicole. ... I remain 

respectful to the wishes of her guardians and the laws of the land. ... To her my love 

shall always be faithful, the dearest girl I know, Nicole.” Defendant had acknowledged 

creating the collage and writing when Nicole was 12 or 13. 

2. Defendant’s Case

Several character witnesses testified that they had hired defendant as a handyman,

and none had observed any conduct suggesting that he was a child molester or rapist. 

Angela’s stepmother’s brother, who had attended family events with defendant, had 

never observed any behavior suggesting defendant was a child molester or rapist. 

Defendant had fathered a child in 2007. The child’s maternal step-grandmother Kay had 

observed nothing to indicate defendant was a rapist or molester. Kay also testified that 

her daughter, Karen, had met defendant when she was a mentally disadvantaged 20-yearold who acted 15 or 16.

Angela’s stepmother testified that defendant liked young girls and that Karen was 

mentally 14 or 15 when she and defendant met. Angela’s stepmother acknowledged 

having a close and at times emotionally dependent relationship with defendant over the 

years.

Defendant argued that Angela fabricated the allegations because she was jealous 

of defendant’s relationship with Karen. He also argued that the prosecution had not 

proved that the sexual acts were committed by force or duress.
7

II. DISCUSSION

A. THE NEW TRIAL MOTION

1. Juror Declarations

Evidence Code section 1150—governing the admissibility of juror declarations to 

challenge a verdict’s validity—provides: “[A]ny 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.” In construing 

Evidence Code section 1150 shortly after its enactment, our Supreme Court distinguished 

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. Hutchinson (1969) 71 Cal.2d 342, 349.) Hutchinson explained 

that “[t]he only improper influences that may be proved under section 1150 to impeach a 

verdict ... are those open to sight, hearing, and the other senses and thus subject to 

corroboration.” (Id. at p. 350.) 

Defendant supported his new trial motion with three juror declarations, each 

containing an identical paragraph 4. He argues that the first sentence of that paragraph—

“Also, during deliberations, neither I, the jury foreman, nor any of the other jurors 

discussed assigning or designating any specific act to Count 7”—alleges objective 

conduct under Hutchinson.

6

 Thus, defendant continues, the court abused its discretion by 

failing to consider that statement in ruling on the new trial motion. According to 

 

6

Paragraph 4 continued: “When we unanimously agreed to find the defendant 

guilty of Count 7 it was not based on a specific act to which we all agreed, but merely as 

a violation of PC§288(b)(1). When we decided the verdicts on counts 7-19, we were 

only voting on whether or not any PC§288(b)(1) violation had occurred involving the 

defendant and his accuser rather than on a specific act.” 
8

defendant, the statement shows that the jurors failed to reach a unanimous verdict 

regarding count 7 as required by the jury instructions, and the failure to follow the 

unanimity instruction constitutes prejudicial jury misconduct. Defendant argues that the 

prosecution’s opposing declarations are subjective mental process inadmissible under 

Evidence Code section 1150.

2. Judicial Estoppel

We requested supplemental briefing on whether the doctrine of judicial estoppel 

bars defendant from seeking a new trial on count 7 based on an inconsistent position he 

took in his double jeopardy motion. After considering the parties’ arguments, we 

conclude that the doctrine applies here. (Green v. Superior Court (1985) 40 Cal.3d 126, 

139 [“the failure to have urged [a] theory below does not preclude our reliance on it to 

affirm the trial court’s ruling.”].) 

Judicial estoppel is an equitable doctrine that “ ‘precludes a party from gaining an 

advantage by taking one position, and then seeking a second advantage by taking an 

incompatible position.’ ” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 (Aguilar).) The 

doctrine applies in both civil and criminal cases. (See Aguilar; Zedner v. United States

(2006) 547 U.S. 489; Murphy v. Commonwealth of Massachusetts (1900) 177 U.S. 155.) 

“ ‘The doctrine’s dual goals are to maintain the integrity of the judicial system and to

protect parties from opponents’ unfair strategies.’ ” (Aguilar, at p. 986.) The elements of 

judicial estoppel are “ ‘(1) the same party has taken two positions; (2) the positions were 

taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful 

in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); 

(4) the two positions are totally inconsistent; and (5) the first position was not taken as a 

result of ignorance, fraud, or mistake.’ ” (Id. at pp. 986–987.) 

Defendant acknowledges that four elements are present here. He argued two 

positions during the course of his criminal prosecution: (1) that the count 7 verdict 

precluded retrial on the other 12 forcible lewd act counts based on the prohibition against 
9

double jeopardy, and (2) that prejudicial juror misconduct invalidated the count 7 verdict. 

The double jeopardy motion was successful and not attributable to ignorance, fraud, or 

mistake. But defendant presses that the doctrine’s remaining element, which requires the 

“conflicting positions [to] be clearly inconsistent so that one necessarily excludes the 

other” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182), is not 

satisfied here. 

Although a verdict was necessary to the double jeopardy motion, defendant argues 

that the type of verdict was inconsequential because the motion could have been 

supported by either a guilty or a not guilty verdict. Accordingly, he contends that the 

double jeopardy motion relied only on the fact that the jury rendered a verdict on count 7, 

not on the fact that the verdict was for guilt. According to defendant, to be totally 

inconsistent with his double jeopardy position, his new trial motion would have had to 

argue for “no verdict at all for count 7,” not for a new trial which would allow a new 

verdict. But in the double jeopardy motion, defendant had to take the position that the 

guilty verdict on count 7 was valid. By arguing in the new trial motion that the lack of 

unanimity rendered the same verdict constitutionally invalid, defendant’s position was 

wholly inconsistent with the position he advanced in the double jeopardy motion, which 

resulted in the dismissal of 12 counts of forcible lewd conduct. Defendant’s remedy for 

the claimed juror misconduct—a new trial as opposed to no verdict—has no bearing on 

the inconsistent positions he took with respect to the verdict’s validity. Defendant could 

not have prevailed in the new trial motion without having the verdict deemed invalid, and 

he could not have prevailed in the double jeopardy motion without the same verdict being 

valid. 

Defendant does not challenge this court’s discretion to apply judicial estoppel on 

appeal. Rather, he argues that the doctrine should not apply because he did not intend to 

be self-contradictory or to obtain an unfair advantage. We view the record differently. 

Before the second trial, defendant could have used his juror declarations to seek a new 
10

trial on count 7 based on juror misconduct (the absence of unanimity) invalidating the 

verdict. But he could not have moved for a new trial based on invalidity and at the same 

time moved for dismissal based on double jeopardy. By bringing his double jeopardy 

motion, defendant made a tactical decision to use the valid verdict to obtain dismissal of 

the 12 remaining forcible lewd conduct counts instead of seeking to invalidate the verdict 

for lack of unanimity which would have resulted in a retrial on all 13 forcible lewd 

conduct counts. Allowing defendant now to change his position after retrial would 

provide an unfair advantage because he cannot be retried on the dismissed counts, a 

recourse that would have been available to the prosecution had defendant not brought and 

prevailed on his double jeopardy motion.

Defendant argues that we should remand for the trial court to exercise its 

discretion to apply the doctrine in the first instance. We decline to do so. This case has a 

lengthy history in the superior court, and we are not inclined to add to that court’s duties 

an inquiry that we are authorized and able to resolve on the record before us. We 

therefore do not reach the merits of defendant’s argument on appeal that the count 7 

verdict should be reversed based on the jury’s failure to deliberate and reach unanimous 

agreement on the specific act supporting the verdict.

B. SECOND TRIAL CHALLENGES

1. Specific Acts Evidence

Defendant argues, and the Attorney General concedes, that the trial court erred by 

not allowing defendant to present evidence of specific instances of conduct to rebut the 

prosecution’s evidence showing defendant’s propensity for sexual misconduct with 

young girls. The prosecution’s propensity evidence was admitted under Evidence Code 

section 1108. That section provides an exception to the inadmissibility of character 

evidence offered to prove a person’s conduct under Evidence Code section 1101. 

Evidence Code section 1108 applies to criminal actions for sexual offenses, and it allows 

for admissibility of other sexual offenses to show conforming conduct. In People v. 
11

Callahan (1999) 74 Cal.App.4th 356, 379, recently cited with approval by the California 

Supreme Court (People v. Cottone (2013) 57 Cal.4th 269, 288), the court held that a 

defendant is permitted to introduce any of the three types of character evidence—opinion, 

reputation, and specific instances of conduct—to rebut evidence introduced by the 

prosecution under Evidence Code section 1108. Accordingly, we will accept the 

Attorney General’s concession that the trial court erred by excluding defendant’s 

evidence of specific instances of conduct to rebut the prosecution’s propensity evidence,

and we will assess the error for prejudice.

We analyze evidentiary error under People v. Watson (1956) 46 Cal.2d 818, 836 

(Watson), which provides for reversal only when “it is reasonably probable that a result 

more favorable to the appealing party would have been reached in the absence of error.” 

(Evid. Code, § 354 [precluding relief from judgment unless the erroneous exclusion of 

evidence “resulted in a miscarriage of justice”]; People v. McAlpin (1991) 

53 Cal.3d 1289, 1311 [applying Watson harmless error review to erroneous exclusion of 

evidence].) On this record, it is not reasonably probable that defendant would have 

received a more favorable result had his character witnesses testified to specific instances 

when defendant behaved appropriately in the presence of girls.7 

Defendant presented several witnesses who testified that he did not have character 

traits indicative of a rapist or child molester. One witness described that she met 

defendant when she hired him for a construction job around the time her daughter 

graduated from high school. Defendant spent a lot of time on her property and she 

observed no behavior causing her concern that he was a molester or child rapist. Another 

 

7 Defendant has not identified with any particularity the specific instances of 

conduct excluded by the erroneous evidentiary ruling. He made an offer of proof that his 

witnesses would testify to “[s]pecific acts of good conduct that they’ve observed.” He 

proffered testimony that he worked in the witnesses’ homes around children, that the 

witnesses observed his interaction with children, and that his behavior gave no indication 

that he was a pedophile or a rapist.
12

witness met him as a handyman. She had observed his behavior and interaction with her 

family, and she was never concerned that he might be a sexual predator, rapist, or 

molester. More than once she had referred defendant to other families with children, and 

she had never received any reports from those families concerning his behavior in their 

homes.

A third witness also met defendant as a handyman. Defendant spent lengthy 

periods of time in her home and she never observed any behavior suggesting he was a 

rapist or a child molester. She had recommended defendant to friends with children and 

those friends never reported any inappropriate behavior. A fourth witness testified that 

defendant had worked on several properties where her relatives, including children, lived. 

No one ever reported trouble and she never observed anything suggesting defendant had 

an interest in raping or molesting young girls. Angela’s stepmother’s brother testified to 

knowing defendant for about 20 years. He had attended family events where defendant 

and children were present, and he never observed inappropriate behavior suggesting 

defendant was interested in molesting or raping children. Finally, Kay, the stepmother of 

defendant’s ex-girlfriend Karen and step-grandmother of defendant’s daughter, testified 

that she had known defendant for seven years, and his behavior had never suggested that 

he might be a rapist or a molester. 

We find no prejudice here because the opinion testimony of defendant’s character 

witnesses implied that they had observed only appropriate conduct on defendant’s part. 

(See People v. Callahan, supra, 74 Cal.App.4th at p. 380.) Thus, little would have been 

added had the witnesses elaborated on specific instances on which they based their 

opinion testimony. Further, the prosecution’s case was strong. Angela was articulate and 

her testimony was internally consistent. Her testimony was corroborated by the 

testimony of Kiki, Nicole, Angela’s father, and the father of Angela’s friend to whom she 

made her disclosure. It was also corroborated by the collage and writing defendant 

created when Nicole was a girl, and by Angela’s stepmother, a defense witness who 
13

testified that defendant liked young girls, that defendant’s presence disturbed Angela, and 

that she believed Angela who, because of defendant, had become a broken child.

Defendant argues that the right to introduce admissible evidence is a state law 

entitlement protected by the federal due process clause. Specifically, defendant argues 

that the California Supreme Court, in People v. Ashe (1872) 44 Cal. 288 (Ashe), “created 

an entitlement that a defendant may introduce evidence of his good character as a 

defense.” In Ashe, the California Supreme Court rejected a jury instruction that good 

character evidence was “entitled to no weight, except in doubtful cases.” (Id. at p. 290.) 

In so ruling, the court explained that good character “is a circumstance tending, in a great 

or less degree, to establish [a defendant’s] innocence, and it is not to be put aside by the 

jury, in order to ascertain if the other facts and circumstances, considered by themselves, 

do not establish [] guilt beyond a reasonable doubt.” (Id. at p. 291.) 

Ashe foretold what is now well-established and recognized in the Evidence 

Code—that character evidence is relevant to prove or disprove guilt. (Evid. Code, 

§ 1102.) But Ashe does not hold that a defendant has an unfettered right to introduce 

character evidence, and we do not view that case as creating a due process interest in the 

introduction of evidence beyond that recognized in the right to a fair trial. (Strickland v. 

Washington (1984) 466 U.S. 668, 684–685 [“The Constitution guarantees a fair trial 

through the Due Process Clauses[.]”].) When evidentiary error occurs, due process is 

violated only when that error makes the trial fundamentally unfair. (People v. Partida

(2005) 37 Cal.4th 428, 439.) 

As we have detailed, defendant offered a vigorous defense through character 

witnesses. In light of the extensive good character testimony, the excluded evidence was 

not central to defendant’s claim of innocence, but would have provided only further 

foundation for the witnesses’ opinions that defendant did not possess the character trait of 

a rapist or child molester. Little value would have been added had defendant been able to 

ask character witnesses about specific interactions between himself and young children 
14

because observations of appropriate interaction with children were implicit in the 

witnesses’ testimony. For these reasons, the trial court’s erroneous evidentiary ruling did 

not result in a fundamentally unfair trial. 

In supplemental briefing, defendant argues the evidentiary error deprived him of a 

meaningful opportunity to present a complete defense. Defendant presented several 

character witnesses to rebut the prosecution’s propensity evidence. Even if we were to 

assume the court’s evidentiary error amounted to a violation of Sixth Amendment right to 

compulsory process,8for the reasons we have already explained, that error would be 

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; Crane 

v. Kentucky (1986) 476 U.S. 683, 691.) 

2. Substantial Evidence of Force or Duress

The jury convicted defendant of five counts of aggravated sexual assault of a child 

predicated on defendant committing rape “against [the child’s] will by means of force, 

violence, duress, menace, or fear of immediate and unlawful bodily injury on the [child].” 

(§§ 269, subd. (a)(1), 261, subd. (a)(2).) The terms “force, violence, duress, menace, or 

fear of immediate and unlawful bodily injury on the victim” are used in the disjunctive. 

Thus, a conviction may be supported by substantial evidence of any of those provisions. 

(People v. Hale (2012) 204 Cal.App.4th 961, 976.) 

Defendant argues that insufficient evidence supports the five aggravated sexual 

assault verdicts. Specifically, he contends that substantial evidence fails to establish that 

he committed sexual intercourse against the will of Angela using force or duress. “When 

considering a challenge to the sufficiency of the evidence to support a conviction, we 

review the entire record in the light most favorable to the judgment to determine whether 

 

8 We reject the Attorney General’s assertion that defendant forfeited this claim by 

failing to identify the constitutional error below. We understand defendant to be arguing 

that the evidentiary error had the additional legal consequence of violating the Sixth 

Amendment right to compulsory process. (People v. Halvorsen (2007) 42 Cal.4th 379, 

408, fn. 7.)
15

it contains substantial evidence—that is, evidence that is reasonable, credible, and of 

solid value—from which a reasonable trier of fact could find the defendant guilty beyond 

a reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We will affirm a 

conviction if “ ‘ “any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” ’ ” (People v. Alvarez (1996) 14 Cal.4th 155, 224, 

italics omitted.) 

Substantial evidence supports the prosecution’s theory that Angela’s will was 

overcome by defendant’s physical use of force. The evidence shows each time defendant 

sexually assaulted Angela, he removed her clothes and underwear, moved her into a 

sexual position, spread her legs with his hands, and held or moved her body as he rubbed

his penis inside her labia. Angela never removed her own clothes, and her position was

always controlled by defendant. Defendant was 29 years older and physically larger than 

Angela.

Substantial evidence also supports a finding that the rapes were committed against 

Angela’s will by duress. Duress, as an element of a sex offense against a minor, means

“a direct or implied threat of force, violence, danger, hardship or retribution sufficient to 

coerce a reasonable [child] 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. Pitmon (1985) 170 Cal.App.3d 38, 50.) 

The existence of duress depends on the total circumstances including the child’s age, 

relationship to defendant, and relative physical vulnerability. (People v. Superior Court

(Kneip) (1990) 219 Cal.App.3d 235, 238.) The record contains considerable evidence 

showing defendant psychologically coerced Angela to engage in sexual acts. Defendant

began abusing Angela at a very young age, and she remained physically and emotionally 

vulnerable as the abuse persisted. Defendant was an unyielding source of attention, 

companionship, meals, and support to Angela, filling a void created by her absent 

parents. Defendant told Angela not to tell anyone, including her father and stepmother. 
16

Angela testified that she was not scared of defendant, but she was scared of the situation

and she blamed herself. Defendant’s age, size, and relationship with Angela and her 

family all support an implied threat constituting duress. 

3. Jury Instructions

A lesser offense is necessarily included within a charged offense “if either the 

statutory elements of the greater offense, or the facts actually alleged in the accusatory 

pleading, 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.) The parties do not dispute that unlawful sexual intercourse with a minor (statutory 

rape) is a lesser included offense of aggravated sexual assault (rape) of a child under 

either test.9 

Defendant argues that the trial court committed error by not sua sponte instructing 

the jury on the lesser included offense of statutory rape. A trial court must instruct sua 

sponte on any lesser included offense “which find[s] substantial support in the evidence.” 

(People v. Breverman (1998) 19 Cal.4th 142, 162. “ ‘Substantial evidence’ in this 

context is ‘ “evidence from which a jury composed of reasonable [persons] 

could ... conclude[]” ’ that the lesser offense, but not the greater, was committed.” 

(Ibid.) With that standard in mind, we conclude that the failure to instruct on the lesser 

 

9

The elements of aggravated sexual assault (rape) of a child are (1) sexual 

intercourse with a non-spouse, (2) against the victim’s will by “force, violence, duress, 

menace, or fear of immediate and unlawful bodily injury on the person or another,” (3) a 

victim under 14 years old, and (4) a defendant at least 7 years older than the victim. 

(§§ 269, 261, subd. (a)(2).) Statutory rape is defined as “an act of sexual intercourse 

accomplished with a person who is not the spouse of the perpetrator, if the person is a 

minor.” (§261.5, subd. (a).) Because aggravated sexual assault (rape) of a child cannot 

be committed without committing an act of sexual intercourse with a non-spouse minor, 

statutory rape is a lesser-included offense of aggravated sexual assault/forcible rape under 

the statutory elements test. Statutory rape is also a lesser-included offense under the 

accusatory pleading test here because counts 2 through 7 alleged that defendant 

committed a violation of rape under section 261, subdivision (a)(2) upon Angela who was 

under the age of 14.
17

included offense was error. (People v. Cole (2004) 33 Cal.4th 1158, 1215 [reviewing de 

novo whether the trial court was required to instruct on the lesser included offense].) We 

also conclude, however, that defendant has failed to show prejudice from the error 

because it is not reasonably probable that a jury would have convicted him of statutory 

rape instead of forcible sexual assault had they been presented with that option. (Watson, 

supra, 46 Cal.2d at p. 836.) 

No reasonable jury would have found an absence of force or duress on this 

record.10 Defendant was physically larger and significantly older than Angela. Angela 

relied on defendant, who lived in her father’s home, for food, companionship, and 

support. Defendant exposed Angela to pornography when she was six or seven, and he 

was regularly raping her by the time she was nine. Defendant physically manipulated 

Angela into sexual positions, and she was scared of the situation. Defendant told her not 

to tell anyone, and she did not tell because she thought the abuse was her fault. Angela 

hated defendant and engaged in self-destructive behavior for several years before finally 

disclosing the abuse. Notwithstanding that Angela entered defendant’s room freely and 

at times “liked the feeling,” the rapes would not have occurred but for defendant’s 

physical and psychological manipulation of a vulnerable child. 

4. Cumulative Error

We reject defendant’s cumulative error argument. We find no prejudice from the 

trial court’s errors viewed separately or collectively, and our examination of the entire 

record shows no miscarriage of justice (Cal. Const., art. VI, § 13) or due process 

violation.

 

10 Defendant argues that the first trial’s deadlock demonstrates that evidence of 

force or duress was far from overwhelming. But the juror declarations in the record do 

not show disagreement among the jurors regarding force or duress. The declarations 

reveal a minority of jurors concerned with the possibility defendant would be sentenced 

to prison and speculating as to whether he would be retried if he were only found guilty 

of one of the 19 charged offenses. 
18

C. ERRONEOUS ASSESSMENTS

The trial court imposed $600 in penalty assessments without identifying the 

individual assessments supporting that figure. The parties agree that $600 is incorrect, 

and they further agree to imposition of the following mandatory penalty assessments: 

$200 under section 1464, $40 under section 1465.7, $70 under Government Code section 

70372, and $140 under Government Code section 76000. The parties agree that penalty 

assessments under Government Code sections 76000.5 and 76104.7 cannot be imposed 

because those assessments took effect after defendant committed the offenses. (People v. 

Voit (2011) 200 Cal.App.4th 1353, 1374.) 

The parties disagree whether imposition of the Government Code section 76104.6 

penalty assessment, effective November 3, 2004, can be imposed without violating ex 

post facto principles. Defendant committed four of the five aggravated sexual assaults 

before February 2004 (counts 2 through 5), and the fifth assault (count 6) sometime 

between February 2004 and February 2005. The forcible lewd act (count 7) occurred 

sometime between February 1999 and February 2005. 

Counts 2 through 5 cannot serve as a basis for a Government Code 

section 76104.6 penalty assessment because those offenses occurred before the 

assessment’s November 3, 2004 effective date. Nor can count 6 or 7 support the 

assessment because nothing in the record establishes that those convictions were based on 

acts occurring after November 3, 2004. Accordingly, imposition of the Government 

Code section 76104.6 penalty assessment would violate the prohibition against ex post 

facto laws. 

We also note errors in the trial court’s calculation of court security (§ 1465.8) and 

facilities assessments (Gov. Code, § 70373). (People v. Woods (2010) 

191 Cal.App.4th 269, 272 [court security and facilities assessments are mandatory].) 

Those assessments are imposed on each conviction, including convictions stayed under 

section 654. (People v. Sharret (2011) 191 Cal.App.4th 859, 865; People v. Crittle
19

(2007) 154 Cal.App.4th 368, 370–371.) The court security assessment is $40 per 

conviction (§ 1465.8) and the facilities assessment is $30 per conviction (Gov. Code, 

§ 70373). For the six convictions here, the court should have imposed a $240 court 

security assessment (instead of $150) and a $180 facilities assessment (instead of $150). 

In supplemental briefing, the parties recognize our authority to correct unauthorized 

assessments, and we will do so. (In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. 

Stewart (2004) 117 Cal.App.4th 907, 911–912.)

III. DISPOSITION

The judgment is modified to reflect imposition of a $240 court security assessment

(Pen. Code, § 1465.8, subd. (a)(1)), a $180 facilities assessment (Gov. Code, § 70373), 

and the following penalty assessments: (1) a $200 state penalty assessment (Pen. Code, 

§ 1464, subd. (a)(1)); (2) a $40 state surcharge (Pen. Code, § 1465.7); (3) a $70 court 

construction penalty (Gov. Code, § 70372); and (4) a $140 additional penalty 

(Gov. Code, §76000). As modified, the judgment is affirmed.

The superior court clerk is directed to prepare and transmit to the Department of 

Corrections and Rehabilitation a corrected abstract of judgment and minutes reflecting 

our disposition, including the corrected court security and facilities assessments, and the 

amount of and statutory basis for each penalty assessment. The corrected abstract and 

minutes also shall include the trial court’s general restitution order. 
____________________________________

Grover, J.

WE CONCUR:

____________________________

Rushing, P.J. 

____________________________

Márquez, J.