1

Filed 12/15/21 P. v. Maya-Zapata CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS MAYA-ZAPATA,

Defendant and Appellant.

 

 A156982

 (Contra Costa County

 Super. Ct. No. 51715069)

Appellant Jesus Maya-Zapata was tried before a jury and 

convicted of 17 sexual offenses arising from his abuse of his 

stepdaughter over a period of several years that began when she 

was less than ten years old. He appeals from a judgment 

sentencing him to prison for 75 years to life plus 40 years, 

arguing: (1) the court should have granted his motion to 

suppress statements made and evidence seized during his police 

interrogation; (2) the prosecutor’s peremptory challenge of a 

Latinx woman during voir dire violated Batson v. Kentucky

(1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 

Cal.3d 258 (Wheeler); (3) several of the counts were committed 

without force, violence, fear or duress, a necessary element of the 

crimes charged; (4) the court should have instructed on additional 

lesser included offenses as to some of the counts; (5) the court’s 
2

instructions lessened the prosecution’s burden to prove certain 

elements of certain crimes; (6) appellant’s sentence constitutes 

cruel and unusual punishment; and (7) the cumulative effect of 

the trial errors requires reversal. We affirm.

I. BACKGROUND

Jane Doe was born in 1999 and her parents divorced when 

she was four. Appellant (who was born in 1981) began living 

with her mother shortly thereafter. Doe did not like appellant at 

first, but they gradually became closer and she came to view him 

as a father figure. Appellant was in charge of discipling Doe 

when she was younger, which he did by yelling at her or pulling 

on her ears.

When she was about nine years old, appellant began to 

touch Doe in a sexual way. She remembered her age because she 

was still in elementary school and the family lived on Sheryl 

Drive, and also because the touching coincided with her 

menstrual period, which she began having when she was nine 

years old. 

Appellant began by touching Doe’s legs, thighs, and vagina 

over her clothes. Doe was afraid but did not tell her mother what 

was happening because she did not think her mother would 

believe her. Appellant always told Doe’s mother that Doe was a 

bad person and Doe’s mother would react by hitting her or yelling 

at her. The touching progressed and appellant would grab her 

hand and put it on his penis. He started putting his fingers 

inside her vagina.
3

When Doe was 10 years old, appellant began having sexual 

intercourse with her once or twice a week. Doe did not tell her 

mother because she believed she would take appellant’s side. 

The family moved to Linda Street and appellant continued to 

have sexual intercourse with Doe, using a condom for protection. 

He initiated the sex by bribing Doe, offering her “money and 

stuff,” and “[i]t was either cooperate or get punished for it.” He 

told Doe he would tell her mother she was talking back and being 

bad to get her in trouble, and he threated to take away her phone 

and iPod. When she gave in, appellant would lay her on the bed 

and remove her clothes. 

Doe began giving appellant oral sex about once a week. 

She did not want to but appellant would offer her things and “it 

was either that way or no way.” The intercourse and oral sex 

continued, with appellant “bribing” Doe by giving her money or 

letting her go out with her friends or convincing her mother to let 

her go out with her friends.

The family moved to a house on Frances Road, and 

appellant began having anal sex with Doe once or twice a month. 

It was very painful for Doe and she bled from it; appellant told 

her he would use more lubrication.

The sexual contact continued, as did appellant’s efforts to 

persuade Doe to participate by taking away her phone and by 

threatening to tell Doe’s mother she was acting badly. Appellant 

would offer her money in exchange for sexual acts, with the 

amount offered dependent on the act, and she came to see that 

behavior as “normal.” Doe remembered an incident in which 
4

appellant caught her texting a boy and pulled her ears, similar to 

how he had done when she was a young child. 

Appellant stopped touching Doe when she was 16 or 17. 

Her grandmother had come to live with the family, and because 

Doe felt her grandmother supported her, she started to refuse 

appellant’s demands for sex. On one occasion appellant texted 

Doe and offered her $100 for sex, and she refused and threatened 

to call the police. Appellant told her she was missing out. 

Doe had a boyfriend whom appellant did not like, and in 

the summer of 2016 (when Doe was 17), she told him what 

appellant had done to her. Doe’s boyfriend gave her the courage 

to speak out and she told her grandmother, who told her mother. 

Doe ran away to live with her boyfriend’s family and then went to 

the police. 

Doe first met with a deputy sheriff in a Walgreen’s parking 

lot accompanied by her mother because she did not want to meet 

appellant at the residence. She told the deputy that appellant 

had begun molesting her when she was nine years old and that 

they began having sexual intercourse when she was 10 years old. 

The deputy passed the information to a detective in the special 

victims’ unit, who interviewed her regarding the molestations.

Doe told the detective that appellant had started having 

intercourse with her when she was 10, and oral and anal sex 

when she was 11. The detective arranged for Doe to participate 

in a recorded pretext call, which was played for the jury.

In the call, Doe told appellant she was confused about her 

feelings. Appellant told her “You like for me to do it to you, 
5

actually.” Appellant offered to help Doe with money and when 

Doe asked him if he would want sex, responded “Well, yes, I 

would indeed like it. Of course, if—like we say, I beg for it.” He 

also told her that if they started having contact again they 

wouldn’t have to have anal sex, but later in the call told her 

“that’s also part of a couple” when she stated that she would not 

want to have sex that way. Appellant acknowledged having 

offered and given Doe money for sex and explained that he did it 

because he liked her. He estimated they had been having sex

since she was 12 or 13 years old. He stated that Doe had wanted 

sex, and denied that she had been only 10 years old when they 

started. When Doe mentioned that she had been “little,” 

appellant told her, “No, not little, well, you were the one who 

wanted it.” 

Doe identified a photograph of appellant’s penis that had 

been taken from appellant’s phone.

Appellant was charged with sexual intercourse with a child 

10 years of age or younger (Pen Code,1 § 288.7, subd. (a); count 1); 

oral copulation or sexual penetration of a child 10 years of age or 

younger (§ 288.7, subd. (b); count 2); lewd act on a child under 14 

(§ 288, subd. (a); count 3); sodomy of a child under 14 with a tenyear age difference (§ 286, subd. (c)(1); count 4); aggravated 

sexual assault (rape) on a child under 14 with a ten-year age 

1 Further statutory references are to the Penal Code unless 

otherwise indicated.
6

difference2 (§ 269, subd. (a)(1)/269, subd. (a)(2) and (a)(6)); counts 

5 and 6); two counts of aggravated sexual assault (sodomy) on a 

child under 14 (§ 269, subd. (a)(3)/261, subds. (a)(2) and (a)(6); 

counts 7 and 8); aggravated sexual assault (oral copulation) on a 

child under 14 (§§ 269, subd (a)(4)/former 288a,3 subds. (c)(2), 

(c)(3) and (d); count 9); four counts of forcible lewd acts on a child 

(§ 288, subd. (b), counts 10 through 13); forcible oral copulation of 

a minor 14 years of age or older (§ 288a, subd. (c)(2)(C); count 14); 

sodomy of a person under 16 years of age (§ 286, subd. (b)(2)); 

count 15); and two counts of lewd act on a minor with a ten-year 

age difference (§ 288, subd. (c)(1); counts 16 and 17). He was 

convicted of all counts following a jury trial.

II. DISCUSSION

A. Motion to Suppress

Appellant argues he was prejudiced because the court 

should have granted his in limine motion seeking to suppress 

certain evidence on the grounds that it was obtained without a 

valid waiver of the right to counsel, in violation of Miranda v. 

Arizona (1966) 384 U.S. 436 (Miranda). We reject the claim.

2 Section 269 was amended in 2006 to reduce the 10-year 

age difference required for a violation of the statute to seven 

years. (Stats. 2006, ch. 337, § 6; Initiative Measure (Prop. 83), 

§ 5.) Appellant was more than 10 years older than Doe so the 

amendment is immaterial for our purposes.

3 Renumbered as § 287 effective January 1, 2019. (Stats. 

2018, ch. 423 (SB 1494).)
7

1. Procedural Background.

Appellant was interrogated by two sheriff’s detectives after 

the pretext call. He was advised of his Miranda rights, including 

the right to speak to an attorney during questioning, and he 

indicated that he understood these rights. 

The lead interrogating detective then asked appellant some 

general questions and stated: “Okay. I’m going to be . . . honest 

with you, okay? I’m going to be honest and I’m going to tell you 

why we’re here, but I want you to. . . look me in the face, please. 

I also want you to be very honest with us. We’re going to ask you 

some things but I would like you to be honest; okay? We could 

have—" Defendant interjected, “Didn’t you say you were going to 

bring a lawyer or something?” The detective replied, “No, it’s just 

going to be us right now; okay? There are two sides to 

everything. . . .” Appellant proceeded to make incriminating 

statements to the detectives and wrote a letter of apology to Doe 

at their behest. He also gave the detectives permission to search 

his cell phone, which yielded a picture of his penis and text 

messages to Doe in which he offered her $100 for sex. 

Appellant moved to suppress his incriminating statements 

as involuntary, arguing that his question “[d]idn’t you say you 

were going to bring a lawyer or something” was an invocation of 

the right to counsel and the detectives should have immediately 

ceased their questioning at that point or should have at least 

clarified what was meant by the statement. He alternatively 

argued that notwithstanding his earlier indication that he 

understood each of his Miranda rights, his question indicates he 
8

had not really understood he had the right to have counsel 

present during questioning. Appellant also moved to suppress 

the evidence found on his cell phone during the interrogation as 

the fruit of the poisonous tree. (See Wong Sun v. United States

(1963) 371 U.S. 471, 485.)

The court denied the motion. Appellant’s statements and 

the apology letter were never introduced at trial. The 

prosecution did introduce the text message in which appellant 

asked Doe for sex in exchange for money and the photograph of 

appellant’s penis (which Doe identified at trial).

Appellant now argues that the court should have 

suppressed the evidence. He acknowledges that the statements 

and apology letter were not introduced at trial, but contends he 

was nonetheless prejudiced because they could have been 

introduced as impeachment evidence had he testified, and the 

knowledge of this possibility discouraged him from testifying and 

explaining the circumstances regarding the charges. (See People 

v. Jablonski (2006) 37 Cal.4th 774, 813 [defendant did not forfeit 

challenge to voluntariness of statement where he failed to testify 

and statement was never introduced].) Appellant argues that the 

photograph of his penis and text messages to Doe were the 

product of the unlawful interrogation and were prejudicial 

because they corroborated Doe’s testimony. 

2. Validity of Initial Waiver of Miranda Rights.

Appellant claims his initial waiver of Miranda was not 

knowing and voluntary. We disagree.
9

“Miranda makes clear that in order for defendant’s 

statements to be admissible against him, he must have 

knowingly and intelligently waived his rights to remain silent, 

and to the presence and assistance of counsel.” (People v. Cruz

(2008) 44 Cal.4th 636, 667 (Cruz).) The prosecution has the 

burden of proving that an accused understood a Miranda

advisement. (Berghuis v. Thompkins (2010) 560 U.S. 370, 384.) 

A suspect’s “ ‘expressed willingness to answer questions after 

acknowledging an understanding of his or her Miranda rights 

has itself been held sufficient to constitute an implied waiver of 

such rights.’ ” (People v. Sauceda-Contreras (2012) 55 Cal.4th 

203, 221.) After a knowing and voluntary waiver, interrogation 

may proceed “ ‘ “until and unless the suspect clearly requests an 

attorney.” ’ ” (People v. Dykes (2009) 46 Cal.4th 731, 751.) 

Although we must independently review the ultimate legal 

question of whether a statement was obtained in violation of 

Miranda, we accept the trial court’s factual findings if they are 

supported by substantial evidence. (People v. Scott (2011) 52 

Cal.4th 452, 480.) “[W]hether a particular defendant understood 

and knowingly waived his rights is essentially a factual question, 

which we review only for substantial evidence.” (People v. 

Jenkins (2004) 122 Cal.App.4th 1160, 1173, fn. 2.)

Here, appellant was advised of his Miranda rights, 

including the right to have an attorney present during 

questioning, and answered without qualification that he 

understood his rights. Although appellant did not specifically 

indicate that he waived his Miranda rights, his express and 
10

unambiguous acknowledgment that he understood them was 

sufficient to show a knowing and voluntary waiver. (Cruz, supra, 

44 Cal.4th at pp. 667–668.) Substantial evidence supports the 

trial court’s determination that appellant initially waived his 

rights.

3. Invocation of Right to Counsel

Appellant alternatively argues that after his initial waiver, 

he invoked his right to counsel. Again, we disagree.

Upon the assertion of the right to counsel, all questioning 

must cease until an attorney is present. (Edwards v. Arizona

(1981) 451 U.S. 477, 484–485; People v. Cunningham (2015) 61 

Cal.4th 609, 646 (Cunningham).) However, “[f]or a statement to 

qualify as an invocation of the right to an attorney. . . the 

defendant ‘must unambiguously request counsel.’ ” 

(Cunningham at p. 646.) If a reasonable police officer would not 

understand a defendant’s statement to be an unambiguous and 

unequivocal request for counsel, officers have no duty to ask 

clarifying questions. (Davis v. United States (1994) 512 U.S. 452, 

461–462 (Davis).) 

“[A] reviewing court—like the trial court in the first 

instance—must ask whether, in light of the circumstances, a 

reasonable officer would have understood a defendant’s reference 

to an attorney to be an unequivocal and unambiguous request for 

counsel, without regard to the defendant's subjective ability or 

capacity to articulate his or her desire for counsel, and with no 

further requirement imposed upon the officers to ask clarifying 
11

questions of the defendant.” (People v. Gonzalez (2005) 34 

Cal.4th 1111, 1125.) 

Appellant’s question as to whether the detective would be 

bringing an attorney was not an unambiguous request for 

counsel. (See Davis, supra, 512 U.S. at pp. 459, 462 [“ ‘Maybe I 

should talk to a lawyer’ ” was not an unambiguous or unequivocal 

request for counsel]; People v. Molano (2019) 7 Cal.5th 620, 659 

[statement by defendant that he would “ ‘feel more comfortable’ ” 

if he spoke to a public defender first was not a “ ‘clear assertion’ ” 

of the right to counsel]; Cunningham, supra, 61 Cal.4th at p. 645 

[suspect did not unequivocally request counsel by stating, 

“ ‘Should I have somebody here talking for me, is this the way it’s 

supposed to be?”]; People v. Shamblin (2015) 236 Cal.App.4th 1, 

20 [“ ‘I think I probably should change my mind about the lawyer 

now. . . I think I need some advice here’ ” did not show clear 

intention to invoke right to counsel].) The detectives were not 

obligated to stop their interrogation and clarify what appellant 

meant by his question.

4. Effect of Question on Initial Waiver/Harmless Error

Appellant argues that his question about whether the 

detectives would be bringing an attorney indicates that he did not 

subjectively understand in the first place the Miranda

advisement that he was entitled to have an attorney present. He 

also argues that the lead detective’s response to his question 

about whether they were going to bring a lawyer—"No, it’s just 

going to be us right now”—was misleading in that it suggested 

appellant did not have a right to have counsel present. 
12

Even if we construed appellant’s statement in this way and 

assume a Miranda violation, reversal is not required. We review 

a Miranda violation under the harmless-beyond-a-reasonable 

doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. 

(People v. Elizalde (2015) 61 Cal.4th 523, 542.) The People must 

show, beyond a reasonable doubt, that the error did not 

contribute to the jury's verdict. (Ibid.)

As noted, the incriminating statements to the detectives

and the apology letter to Doe that they elicited during the 

interrogation were not introduced into evidence and could not 

have directly affected the verdict. Appellant posits that he was 

prevented from testifying by the possible use of the statements 

and letter as impeachment evidence, but that evidence would 

have been admissible for impeachment purposes even if the

detectives had been found to have violated Miranda, so we cannot 

attribute his failure to testify to any assumed Miranda violation. 

(People v. Nguyen (2015) 61 Cal.4th 1015, 1075–1076 

[incriminating statement to police, even if taken in violation of 

Miranda, is admissible as impeachment if defendant elects to 

testify].) The other evidence was strong: in addition to Doe’s 

testimony, appellant acknowledged sexual contact with her 

during the recorded pretext call, whose admissibility is not 

challenged, and he further acknowledged that the contact 

occurred when Doe was 12 or 13 years old. To the extent he 

would have denied that Doe was even younger had he testified, 

he had claimed as much during the pretext call, telling Doe she 

had not been as young as she remembered.
13

Turning to the photograph of appellant’s penis and the text 

messages to Doe which were found on his phone, those items 

were physical evidence that appellant seeks to suppress as the 

fruits of the alleged Miranda violation. “The fruit of the 

poisonous tree doctrine does not apply to physical evidence seized 

as the result of a noncoercive Miranda violation.” (People v. 

Davis (2009) 46 Cal.4th 539, 598; People v. Brewer (2000) 81 

Cal.App.4th 442, 454–455; People v. Whitfield (1996) 46 

Cal.App.4th 947, 955–957.) Appellant argues that a Miranda

violation renders an interrogation inherently coercive, but courts 

have repeatedly held that a violation of the prophylactic rules of 

Miranda does not mean a statement was coerced. (E.g., Davis at 

p. 598; People v. Bradford (1997) 14 Cal.4th 1005, 1039–1040.)

Even if we assume the photograph and text message should 

have been excluded, their admission was patently harmless. The 

photograph was relevant only because Doe identified it as 

depicting appellant’s penis, but from the other evidence in the 

case (including the pretext call, in which appellant admitted 

sexual contact with Doe), it was clear Doe was familiar with that 

part of appellant’s anatomy. The text message to Doe confirmed 

the sexual nature of her relationship with appellant and his 

practice of offering her money for sex, but he acknowledged the 

same thing in the pretext call. 

B. Batson/Wheeler Motion

Appellant contends the court should have granted his 

Batson/Wheeler motion because the prosecution’s reasons for 
14

excusing a Latinx woman were a pretext for ethnic bias. We 

disagree.

1. Background

Prospective Juror Hernandez was a single 23-year-old 

server with an Associates of Arts degree who had received 

training as an aviation mechanic. She indicated on her 

questionnaire that she had had a positive experience with law 

enforcement, and she had been “taken in handcuffs for my own 

protection from abuse.” This abuse was not sexual in nature, and 

she wrote that neither she nor a close family member had ever 

been a victim of sexual abuse. She revealed she had been 

arrested for assaulting her mother, but that the charges against 

her were dropped because of the history of child abuse. She also 

indicated that she believed sexual abuse was wrong, but would 

not judge another person without having all the facts. She had 

sat on another jury in an eviction case. 

When Hernandez was questioned during voir dire, she 

indicated that despite her positive experiences with law 

enforcement, she believed she could judge the credibility of a law 

enforcement witness fairly because “[t]hey’re all human. 

Everyone makes mistakes.” She explained that she had sat on 

the jury in a landlord-tenant case about a rent increase where the 

Section 8 tenant claimed insufficient notification of the increase 

and the landlord had not kept adequate records. Hernandez had 

enjoyed that experience and had learned a lot about tenants’

rights. She stated she did not have an emotional reaction to the 

charges in this case and would be able to listen to the evidence 
15

and the witnesses. She did not have a husband, boyfriend or 

kids, and tended to stay away from jobs involving kids because 

she didn’t know how to “communicate with them properly.” In 

the event Hernandez saw the evidence differently than the other 

jurors, she stated she would reexamine the evidence but could 

vote her conscience. 

The prosecutor exercised a peremptory challenge against 

Hernandez, and defense counsel made a Batson/Wheeler motion. 

An unreported sidebar conference was held. In a reported 

conference outside the presence of the jury panel, defense counsel 

put her reasons for the motion on the record, indicating that 

Hernandez was “Latina” and observing that appellant was 

“Latino,” and while one of the other prospective jurors (who 

ultimately sat on the jury) might be Latina, nothing Hernandez 

had said had indicated a bias. The court indicated that it had 

asked the prosecutor to respond even though it did not appear 

that the challenge to Hernandez had been racially motivated, and 

it further stated that the defense had used peremptory challenges 

against three Latino jurors.

The prosecutor gave three reasons for excusing prospective 

juror Hernandez: (1) Hernandez had been arrested for assaulting 

her mother, and even though she had not been charged and 

believed the police were kind to her, “for me, having a previous 

arrest is a red flag as a juror;” (2) Hernandez had been on a civil 

jury and seemed to side with a person who had been on welfare, 

indicating a tendency to favor the “underdog;” and (3) Hernandez 

was young and came across as less mature than the other jurors
16

The court denied the Batson/Wheeler motion, observing: “I will 

say, my observations of her were also that she was very 

immature. She was giggling. She took up a lot of time with her 

answers and did seem somewhat enthusiastic and anxious to 

serve as a juror.”

2. Legal Framework

The state and federal constitutions forbid prosecutors from 

using peremptory challenges to remove jurors on account of race, 

ethnicity, gender or membership in a similar cognizable class.

4

(Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 

276–277; People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) A 

defendant who suspects a juror has been challenged for a 

discriminatory reason must bring a motion under 

Batson/Wheeler, at which point the trial court will analyze the 

claim using a familiar three-prong test. First, it must determine 

whether the defendant has made a prima facie showing the 

prosecutor exercised a peremptory challenge based on race, 

ethnicity or some other impermissible ground. Second, if the 

showing is made, the burden then shifts to the prosecutor to 

4 Appellant was tried in 2019. In 2020, the Legislature 

passed Assembly Bill 3070, which enacts Code of Civil Procedure 

section 231.7 and codifies the principle that peremptory 

challenges may not be based on membership in a racial, ethnic or 

similar group. (Stats. 2020, ch. 318, §§ 1–3.) Among other 

things, the changes affect the standard of appellate review and 

make certain reasons for peremptory challenges presumptively 

invalid. (Code Civ. Proc., § 231.7, subds. (e)–(g), (j).) The changes 

are effective for criminal trials in which jury selection begins on 

or after January 1, 2022, and the new law does not apply to 

appellant’s trial. (See Code Civ. Proc., § 231.7, subd. (i).)
17

demonstrate the challenge was exercised for a neutral reason. 

Third, the court determines whether the defendant has proven 

purposeful discrimination by evaluating the proffered reasons 

and determining whether they are legitimate or pretextual. 

(Lenix, at p. 612; see People v. Manibusan (2013) 58 Cal.4th 40, 

77.)

In this case, the trial court made no express finding 

regarding a prima facie case of discrimination, but asked the 

prosecutor to explain her reasons for excusing Hernandez. We 

therefore review this as a third-prong case, and review for 

substantial evidence the trial court's determination that the 

challenge was not discriminatory. (People v. McDermott (2002) 

28 Cal.4th 946, 971 [whether opponent of a peremptory challenge 

has proved purposeful discrimination is reviewed for substantial 

evidence]; People v. Williams (2013) 58 Cal.4th 197, 280–281 

[when court ruled on ultimate question of intentional 

discrimination, question of whether defendant established a 

prima facie case of discrimination is moot].) This standard 

requires us to give “great deference to the trial court's ability to 

distinguish bona fide reasons from sham excuses,” at least so long 

as the court made “a sincere and reasoned effort to evaluate the 

nondiscriminatory justifications offered.” (People v. Burgener

(2003) 29 Cal.4th 833, 864.)

A prosecutor’s reason for excusing a juror does not need to 

be well-founded so long as it is not discriminatory. (Purkett v. 

Elem (1995) 514 U.S. 765, 768.) “ ‘[E]valuation of the 

prosecutor's state of mind based on demeanor and credibility lies 
18

“peculiarly within a trial judge’s province.” ’ ” (People v. Stevens

(2007) 41 Cal.4th 182, 198.) It is presumed an advocate’s use of 

peremptory challenges was constitutional. (People v. Lewis and 

Oliver (2006) 39 Cal.4th 970, 1009.) The ultimate issue is 

“whether it was more likely than not that the challenge was 

improperly motivated.” (Johnson v. California (2005) 545 U.S. 

162, 170.)

Appellant tries to pick apart the prosecutor’s stated reasons 

for excusing prospective juror Hernandez—her criminal arrest, 

her apparent sympathy toward the “underdog,” and her maturity 

relative to that of the other jurors—but none of these reasons 

were “ ‘implausible or fantastic’ ” and they were all unrelated to 

race. (People v. Huggins (2006) 38 Cal.4th 175, 227.) We are 

required to defer to the trial court so long as it undertook a 

“ “ “ ‘sincere and reasoned effort’ to evaluate the prosecutor’s 

explanations.” ’ ” (Ibid.) It did so.

Appellant’s attempt to use comparative juror analysis for 

the first time on appeal also fails. Appellant focuses on three 

seated jurors, noting that Juror No. 57 had friends in law 

enforcement and had positive experiences with law enforcement 

officers as people; that Juror No. 79 had a former girlfriend who 

had been raped as a teenager and followed the “MeToo” 

movement in the news; and that Juror No. 90 had sat on a jury in 

a manslaughter case that reached a verdict and followed 

childhood sex cases because he had an 11-year-old daughter. He

contrasts these responses with prospective jurors whom the 

prosecution excused, who had negative feelings about law 
19

enforcement or were critical about the prosecution of child sex 

abuse cases, and argues that Hernandez’s responses were closer 

to those of the seated jurors. 

The three seated jurors cited by appellant were mature 

men with significant educational and life experience, all of whom 

had children, and they had little in common with Hernandez. 

Juror 57’s positive experiences with law enforcement were based 

on his friendships with officers whereas Hernandez’s arose from 

their kind treatment of her during an arrest. And while Juror 

Nos. 79 and 90 can be broadly said to have expressed an interest 

in or knowledge of childhood sex abuse, Hernandez’s abuse as a 

child was not sexual in nature.

Though comparative juror analysis can be done on appeal 

even if a comparative review was not conducted below (Lenix, 

supra, 44 Cal.4th at p. 622), we agree with appellant’s 

acknowledgement that in this case, there was “very little to 

compare.” Certainly, there is not enough to infer that the only 

reason for excluding Hernandez was her ethnicity. 

C. Evidence of Duress

Counts 5 through 14 (two counts of aggravated sexual 

assault on a child by means of rape, two counts of aggravated 

sexual assault on a child by means of sodomy, one count of 

aggravated sexual assault on a child by means of oral copulation, 

four counts of forcible lewd conduct, and one count of forcible oral 

copulation) each required proof that the sexual act at issue was 

accomplished by force, violence, fear or duress. (§§ 269, subd. 

(a)/261, subds. (a)(2) & (a)(6)/286, subds. (c)(2), (c)(3)/288a, subds. 
20

(c)(2), (c)(3), 288, subd. (b)(1).) Appellant challenges the 

sufficiency of the evidence to prove this element. We reject the 

claim.

We apply the well-established and “highly deferential” 

substantial evidence standard. (People v. Lochtefeld (2000) 77 

Cal.App.4th 533, 538.) “The proper test for determining a claim 

of insufficiency of evidence in a criminal case is whether, on the 

entire record, a rational trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citations.] On appeal, we 

must view the evidence in the light most favorable to the People 

and must presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence.

[Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) 

Appellant argues that despite the prosecutor’s suggestion 

that force could be proved because of the size disparity between 

him and Doe, there was no evidence the acts were committed by 

force or violence because he did not use more force than was 

necessary to commit the sexual acts. It is not necessary to decide 

this issue, because the prosecutor relied on duress and the

evidence was sufficient to support the convictions based on this 

theory. (See People v. Perez (2005) 35 Cal.4th 1219, 1232–1233

[court must affirm if jury was instructed on factually valid theory 

supported by the evidence, unless it can be demonstrated jury 

convicted based on factually invalid ground].)

The jury was instructed that “duress” in the context of 

sodomy, oral copulation and lewd conduct is “a direct or implied 

threat of force, violence, danger, hardship, or retribution that 
21

causes 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, consider all the 

circumstances, including the age of the other person and her 

relationship to the defendant.” Duress in the context of rape was

similarly defined, but, as the jury was properly instructed, it did

not include a threat of “hardship.” (People v. Leal (2004) 33 

Cal.4th 999, 1007–1008.)

To determine whether duress was used, the finder of fact 

should consider “various circumstances, including the

relationship between the defendant and the victim, and their 

relative ages and sizes (People v. Senior (1992) 3 Cal.App.4th 765, 

775.) “ ‘Where the defendant is a family member and the victim 

is young, . . . the position of dominance and authority of the 

defendant and his continuous exploitation of the victim’ is 

relevant to the existence of duress.” (Ibid., quoting People v. 

Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; see 

People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 (Cochran), 

disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 

229, 248, fn. 12;

5 People v. Schulz (1992) 2 Cal.App.4th 999, 

1005.) The victim's testimony must be considered in light of her 

age and her relationship to the defendant. (Cochran, supra, at 

pp. 13–14.)

5 In Soto, supra, 51 Cal.4th at p. 248, footnote 12, the court 

disapproved language in Cochran and other cases suggesting the 

consent of the victim is a defense to the crime of forcible lewd acts 

under section 288, subdivision (b)(1).
22

In this case, the evidence shows that appellant began 

molesting Doe when she was only nine years old and he was a 

father figure to her. There was a significant disparity in their 

age, size and power dynamic. Appellant disciplined Doe by 

yelling at her and pulling on her ears, and he threatened to tell 

her mother she was bad and used threats and bribery to get her 

to comply with his demands for sex. Though the acts underlying 

the counts in question occurred when Doe was a little older than 

when the sexual abuse first began (12 to 14 years old instead of 9

to 10 years old), the continuing nature of the sexual contact, 

fostered by appellant’s bribery, threats and manipulation, were 

sufficient to constitute duress when considering the totality of the 

circumstances. (Cochran, supra, 103 Cal.App.4th at p. 13–14.)

Appellant argues that psychological coercion is not enough 

to establish duress and there must be some kind of direct or 

implied threat, citing People v. Hecker (1990) 219 Cal.App.3d 

1238 (Hecker) and People v. Espinoza (2002) 95 Cal.App.4th 1287.

The reasoning of those cases has been undermined by Cochran, 

supra, 103 Cal.App.4th at page 15 (decided by the same court 

that decided Hecker), in which the court found duress where the 

evidence supported a finding that the victim’s compliance in the 

sexual acts was derived from the “psychological control [her 

father] exercised over her and was not the result of freely given 

consent.” 

Appellant suggests his actions in threatening to take Doe’s

phone away from her or to not allow her to see her friends was 

not a threat of hardship, but was simply an exercise of parental 
23

authority. Taking a phone from a preteen is an act of parental 

authority; threatening to do so in order to have sex is not.

C. Lesser Included Offenses

The court instructed the jury on lesser included offenses as 

to several of the counts, most of which contained the element of 

force and were distinguishable from the charged crimes due to 

the age element of the offense. Appellant contends the court 

committed prejudicial error in additionally failing to instruct on 

sexual intercourse with a minor (§ 261.5), nonforcible sodomy 

with a minor (§ 286, subds. (b) or (c)) and nonforcible oral 

copulation with a minor (former § 288a, subds. (b)(1) and (c)(1); 

see § 287) as lesser included offenses of counts 5, 6, 7, 8 and 9, 

which alleged aggravated sexual assault on a child under 14

under section 261, subdivision (a)(2) & (6), and count 14, which 

alleged forcible oral copulation with a minor 14 or older under 

section 288, subdivision (a). We reject the claim.

“Under California law, a lesser offense is necessarily 

included in a greater offense if either the statutory elements of 

the greater offense, or the facts actually alleged in the accusatory 

pleading, include all the elements of the lesser offense, such that 

the greater cannot be committed without also committing the 

lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117–118.) 

“California decisions have held for decades that even absent a 

request, and even over the parties’ objections, the trial court must 

instruct on a lesser offense necessarily included in the charged 

offense if there is substantial evidence the defendant is guilty 

only of the lesser.” (Id. at p. 118.) We review the failure to 
24

instruct on a lesser included offense by asking whether it is 

reasonably probable appellant would have obtained a more 

favorable outcome had the jury been so instructed. (People v. 

Breverman (1998) 19 Cal.4th 142, 177–178 (Breverman).)

We assume for the sake of argument that the nonforcible 

offenses were lesser included offenses of the charged crimes 

under either the elements or accusatory pleadings test. But 

assuming that notwithstanding the lack of a request the court 

should have instructed on the nonforcible offenses, the failure to 

do so was not prejudicial because it is not reasonably probable 

the jury would have reached a result more favorable to appellant 

if so instructed. (Breverman, supra, 19 Cal.4th at pp. 177–178.) 

The rape underlying counts 5 and 6 was alleged to have 

been committed between March 31, 2009 and March 30, 2013; the

sodomy underlying counts 7 and 8 was alleged to have been 

committed on March 30, 2011 to March 31, 2013, and from March 

31, 2009 to March 31, 2013, respectively; the oral copulation 

underlying count 9 was alleged to have been committed between 

March 31, 2009 and March 30, 2013; and the oral copulation 

underlying count 14 was alleged to have been committed between 

March 31, 2013 and March 31, 2016. The jury was instructed on 

nonforcible lewd conduct as a lesser included offense for forcible 

lewd conduct in counts 10 to 13 (§ 288, subd. (a) and (b)(1)), 

alleged to have occurred between March 31, 2008, and March 30, 

2013, yet it convicted appellant of the greater crime of forcible 

lewd conduct. 
25

The duress in this case was overarching, born of the 

parental relationship between appellant and Doe and the history 

of the sexual abuse. It is inconceivable that a jury which, when 

faced with the option of nonforcible lewd conduct, nonetheless 

convicted appellant of forcible lewd conduct, would have 

concluded that the sexual intercourse, sodomy and oral 

copulation committed during the same time frame was committed 

without duress. 

We recognize that count 14 was alleged to have occurred 

later than the forcible lewd conduct in counts 10, 11, 12 and 13

(March 31, 2013 to March 31, 2016 versus March 31, 2008 to 

March 30, 2013), but given the nature of the duress in this case, 

which was based primarily on the parental relationship, it is not 

reasonably probable that a jury would have determined it 

somehow evaporated during the later years. Remand is not 

required.

D. Instructional Error

Although he did not object in the trial court, appellant 

argues the trial court’s use of pattern legal instructions were 

legally erroneous in several respects. Assuming the error has not 

been forfeited, we conclude there was no prejudicial error.

1. Failure to Define “Menace”, “Retaliation” or 

“Retribution”

In CALCRIM Nos. 1000, which defined the elements of 

forcible rape, “duress” was defined to include a threat of 

“retribution.” In CALCRIM Nos. 1015, 1030 and 1111, which 

defined the elements of forcible oral copulation, forcible sodomy, 
26

and forcible lewd acts, the court defined “duress” to include a 

threat of “hardship” or “retribution.” Appellant contends these 

terms had a specific legal meaning and should have been defined. 

We disagree. 

The terms used in the jury instructions were the same as 

those used in the statutes at issue. “If the jury would have no 

difficulty in understanding the statute without guidance, the 

court need do no more than instruct in [the] statutory language.” 

(People v. Estrada (1995) 11 Cal.4th 568, 574.) Appellant seems 

to argue that because the statutes defining the crimes allow for a 

conviction if the crimes were committed by “menace,” the 

instruction should have defined that term as well. But the 

instructions did not include that term and, as the People note, 

the prosecution did not argue it as a theory of the case.

2. Specific Intent to Threaten

Appellant next argues that the jury should have been 

instructed that “duress” requires a specific intent to threaten. 

The requirement that a sexual offense be committed “by ‘force, 

violence, duress, menace, or fear of immediate and unlawful

bodily injury’ ” does not require a specific intent. (Senior, supra, 

3 Cal.App.4th at p. 776.) “It describes types of intimidating 

conduct by the defendant and not any particular state of mind of 

the defendant.” (Ibid.) The trial court was not required to 

instruct on an element that was not required.

3. Parental Prerogatives

Appellant argues that the court should have instructed the 

jurors that they should consider “the legitimate objectives of 
27

parenting” in assessing whether appellant used duress to 

accomplish his sex crimes. He acknowledges that no case so 

holds, and we will not be the first court to say that duress is 

somehow less culpable if it is based on the dynamics of a parental 

relationship. 

We agree with appellant that “all parenting entails a 

compulsive environment.” When the goals of that “compulsive” 

environment serve the legitimate objectives of parenting—

compelling a child to do her homework or go to bed at a 

reasonable hour, for example—that is obviously not duress in the 

criminal sense. When, however, the parental relationship is 

perverted so that the parent uses the same authority to coerce

the child into performing sexual acts with the parent, that is 

another matter entirely, and the defendant is not entitled to hide 

behind the veil of “parental prerogatives.”

4. Hardship

With the exception of the charges based on rape, the jury 

was instructed on “hardship” as a basis for duress. This was 

appropriate. (See Leal, supra, 33 Cal.4th at pp. 1004–1010.)

E. “Hardship” as Component of Duress

Appellant argues that “hardship,” as used to define a basis 

of duress in the instructions, was unconstitutionally vague. We 

disagree. (Leal, supra, 33 Cal.3d at pp. 1004–1010.)

F. Cruel and Unusual Punishment

Appellant argues that his sentence—which is the practical 

equivalent of life without the possibility of parole—constituted 

cruel and unusual punishment because it was disproportionate to 
28

the offenses in violation of the United States and California 

Constitutions. (See U.S. Const., 8th Amend.; Cal. Const., art. I, 

§ 17.) We disagree. (People v. Baker (2018) 20 Cal.App.5th 711, 

719–734 [life sentence for single count under § 288.7 where 

defendant molested niece was not cruel and unusual 

punishment]; People v. Retanan (2007) 154 Cal.App.4th 1219, 

1231 [sentence of 135 years to life for offender who molested 

several children was not disproportionate]; People v. Alvarado

(2001) 87 Cal.App.4th 178, 199–201 [life sentence for single count 

of rape during robbery did not violate cruel and unusual 

punishment clauses]; People v. Bestelmeyer (1985) 166 Cal.App.3d 

520 [sentence of 129 years to life not unconstitutional per se 

when defendant was convicted of 25 sex crimes against single 

child victim].)

G. Cumulative Error

Appellant argues the cumulative effect of the errors in this 

case require reversal even if individually they do not. There is 

essentially nothing to cumulate, and we reject the claim. (People 

v. Lewis (2001) 25 Cal.4th 610, 635.)

III. DISPOSITION

The judgment is affirmed.
29

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

BURNS, J.

People v. Maya-Zapata/ A156982