Filed 1/27/14 P. v. Rosas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ROSAS,

Defendant and Appellant.

 B241854

 (Los Angeles County

 Super. Ct. No. KA091280)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Tia Fisher, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. 

Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and 

Respondent.

_____________________________________________
2

Jose Rosas (appellant) appeals the judgment following a jury trial in 

which he was found guilty of committing five counts of a lewd or lascivious act 

upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1, 3, 5, 

7 & 8),

1

sexual intercourse by a person over 18 years of age with a child who is 

10 years of age or younger (§ 288.7, subd. (a); count 2), a forcible lewd or 

lascivious act upon a child under the age of 14 years (Pen. Code, § 288, 

subd. (b)(1); count 4), and continuous sexual abuse of a child under the age of 14 

(§ 288.5, subd. (a); count 6).2 

The trial court sentenced appellant to an aggregate determinate term of 

30 years, as follows: for count 6, a determinate term of 16 years; for count 4 a 

consecutive determinate term of eight years; and for counts 1, 7 and 8 consecutive 

determinate terms of two years each (one-third the middle term of six years). 

It then imposed, for count 2, a fully consecutive term of 25 years to life. The 

terms for counts 3 and 5 were imposed concurrently. The total term in state prison 

was 55 years to life.

 

1 All further references are to the Penal Code unless otherwise indicated.

2 Count 1, a lewd act upon a child under the age of 14, was alleged to have 

occurred on or between September 19, 2004, and September 18, 2006. Count 2, 

sexual intercourse by a person over 18 years of age with a child 10 years or 

younger, was alleged to have occurred on or between September 20, 2006, and 

September 18, 2007. Count 3, a lewd act upon a child under the age of 14, was 

alleged to have occurred between September 20, 2006, and September 18, 2007.

Count 4, a forcible lewd act upon a child under the age of 14, was alleged to have 

occurred on or between September 19, 2007, and December 29, 2009. Count 5, 

lewd act upon a child under the age of 14, was alleged to have occurred on or 

between September 19, 2007, and December 31, 2009. Count 6, continuous 

sexual abuse, was alleged to have occurred between January 1, 2010, and July 13, 

2010. Counts 7 and 8, committing a lewd act upon a child under 14 years of age, 

were alleged to have occurred on or about July 14, 2010. 
3

He contends that he is entitled to a reduction of his conviction in count 4 

by striking the jury findings of duress and/or force and imposing the lesser term of 

punishment for a violation of section 288, subdivision (a), as the evidence is 

insufficient to show he accomplished this offense by force and/or duress.

BACKGROUND

We view the evidence in the light most favorable to the verdict and resolve 

all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. 

Barnes (1986) 42 Cal.3d 284, 303.)

1. The prosecution case.

Jane Doe (Jane) was born in September 1996.3 Fourteen-year-old Jane 

testified that from age eight through 14 she lived with her mother R., her 

stepfather appellant, an older sister M., and her younger brother Abraham. They 

lived in the rear house on the same lot as her aunt’s Azusa residence. Jane called 

appellant “dad,” and he was the only father she had known; he had moved in with 

her mother when she was very young. 

Jane testified that appellant had engaged her in continuous sexual abuse 

from the time she was eight years old until she was 13 years old, at which time she 

reported the abuse. Jane recalled that at about age eight or nine, appellant started 

showing a sexual interest in her. He began staring at her and rubbing her chest 

underneath her clothing. When Jane was nine or 10 years old, her mother took the 

children with her to Mexico. Appellant did not accompany them. 

When Jane was age 10, they returned to Azusa. The family again took up 

residence with Jane’s aunt, living in one room in the residence at the front of the 

property where her aunt lived. Immediately upon their return, appellant started 

having sexual intercourse with her on a daily basis. He digitally penetrated her 

 

3 During the proceedings, the victim’s true name was not revealed. She was

referred to as “Jane Doe” throughout the trial. In this appeal, we also will refer to 

her as “Jane Doe,” or “Jane.”
4

vagina some six to 11 times. When she was 12 years old, he began orally 

copulating her as well. At trial, she claimed he never sodomized her. She said 

that the older she became, the more frequently he molested her. 

Jane said that, primarily, appellant raped her at night in the kitchen when 

everyone in the household was asleep. On other occasions, he raped her in the 

family’s bedroom when they were alone during the day. He would even call Jane 

in from play in order to rape her. 

Jane was afraid to report the sexual abuse to her mother. Initially, she 

believed her mother would not believe her. She had concluded her mother loved 

appellant more than she loved Jane. Later, Jane was afraid to upset her mother as 

her mother had diabetes, and Jane believed her complaint might aggravate her 

mother’s diabetes. 

On July 14, 2010, when Jane was age 13, appellant raped her twice in the 

early morning. That evening, her mother questioned her about why she was 

looking so sad. Jane could not stand the abuse anymore and told her mother that 

appellant had raped her that morning. Jane’s sister telephoned the police. 

Jane indicated she had not wanted to engage in sexual activity with 

appellant. But he would wake her up at night and signal her he wanted her in the 

kitchen. If she did not get up or indicated, “No,” he would tell her or wave at her, 

“Come.” Or he would tap her foot, waking her up. She would “make a little lie 

that [she was] going to go drink water, but [she didn’t].” If she refused to go, the 

next day he would be “mad” at her and would not assist her if she needed some 

help. Sometimes she did not go if she was tired. On other occasions, she would 

not go because she really did not “want this anymore.” 

Once she was in the kitchen, he would start touching her. Then he would 

tell her “to bend over” or “something like that.” He had demonstrated for her the 

position in which he wanted her to kneel on the floor -- on her hands and knees. 

When she got into position, he would then pull her pants or panties down, take off 

his lower clothing and rape her. When he inserted his penis, it would hurt.
5

During sexual intercourse, he would lean on her back and put his hands on her 

shoulders. Then he would move back and forth until he ejaculated, and he would 

quickly remove his penis from her vagina. He apparently did not always use a 

condom.

If he abused her during the daytime, he would “make up a little lie” about 

requiring her to do a chore and have her enter the bedroom. He would close and 

lock the door and pull the curtains down. Then he would tell her to lie on the bed. 

The first time he raped her, he lay down where she was sleeping on the floor. 

He lay against her back and pulled her pants down and inserted his penis into her 

vagina. She could not recall whether he hugged her to him to achieve penetration. 

Later, when he had her enter the bedroom, he would have her kneel on the edge of 

the bed with her arms on the bed. He would put a hand on her shoulder. 

At one point, Jane asked appellant to stop. He replied, “No.” She asked 

him why he was doing to this to her, and he did not reply. 

At trial, Jane claimed that when appellant put his penis in her vagina, she 

did not attempt to move away from him. However, at the preliminary hearing, she 

testified that on occasions, she would attempt to get away. Sometimes, she was 

able to crawl away from him. But many times, she was unable to do so as 

appellant held her in place by putting his hands on her shoulders. 

Malinda Wheeler (Wheeler), a forensic nurse specialist, testified to Jane’s 

post-complaint sexual assault examination. Jane told Wheeler that appellant had 

threatened her, “ ‘Don’t tell anyone or I won’t let you go out with your friends.’ ” 

Jane said that appellant had been sexually assaulting her since age eight, and it had 

been going on day and night. Jane told Wheeler that appellant had sodomized her

in the past but denied digital penetration and oral copulation. Wheeler concluded 

that Jane had an abrasion on the opening to the vagina, which was consistent with 

sexual activity. She had a loss of hymenal tissue consistent with past trauma and 

an anal tear at the 12:00 o’clock position that was less than a week old. 
6

On July 14, 2010, after Jane reported the abuse to her mother, appellant was 

arrested. After a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436 

(Miranda)), he admitted to the transporting deputy that he had had sexual 

intercourse with Jane that day. He claimed he did not begin having sexual 

intercourse with Jane until she was 12 and a half years old, and he had had 

sexual intercourse with her about 30 times. 

On July 15, 2010, Los Angeles County Deputy Sheriff Janet O’Bryan 

spoke to appellant. After another Miranda waiver, he claimed that he started 

having sex with Jane six months previously at age 12 at Jane’s request. He 

admitted having sexual intercourse with Jane on the morning of July 14, 2010, and 

that he had previously orally copulated Jane. He said the sexual abuse was limited 

to some 30 incidents in the last six months. He agreed that his wife took the 

children to Mexico in 2006, and they were gone about a year, returning in August 

or September 2007. 

2. The Defense.

Appellant, age 51, testified that he had orally copulated Jane on the 

morning of July 14, 2010, stopped, and shortly thereafter returned to the bedroom 

to have sexual intercourse with her. Otherwise, he had engaged in sexual 

intercourse with her on only three previous occasions in February and March of 

that year and only after Jane was 12 and a half years old. He claimed he had 

engaged in no further sexual or lewd acts with her. On the occasions of these acts, 

he never held her down, threatened her or told her she could not see her friends. 

He succumbed to having sexual relations with Jane as she had insisted he “tickle” 

her. 

When he was arrested, he told the arresting deputy he had had sex with 

Jane only five times, but the deputy told him to say it had occurred more often. 

The deputy told him if he admitted more acts, the authorities would file fewer 

charges against him. So he admitted 30 acts of sexual misconduct, instead of the 

five sexual acts he had actually committed. During the subsequent interview with 
7

Deputy O’Bryan, he simply repeated the false claim of 30 acts of sexual 

misconduct. 

DISCUSSION

1. Sufficiency of the evidence.

Recently, in People v. Whisenhunt (2008) 44 Cal.4th 174, the 

California Supreme Court summarized the well-established standard of review. 

“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not 

determine the facts ourselves. Rather, we “examine the whole record in the light 

most favorable to the judgment to determine whether it discloses substantial 

evidence—evidence that is reasonable, credible and of solid value—such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.” [Citations.] We presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] 

The same standard of review applies to cases in which the prosecution relies 

primarily on circumstantial evidence . . . . [Citation.] “[I]f the circumstances 

reasonably justify the jury’s findings, the judgment may not be reversed simply 

because the circumstances might also reasonably be reconciled with a contrary 

finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s 

credibility. [Citation.]’ [Citation.]” (People v. Whisenhunt, supra, 44 Cal.4th 

at p. 200.)

“ ‘ “Although an appellate court will not uphold a judgment or verdict 

based upon evidence inherently improbable, testimony which merely discloses 

unusual circumstances does not come within that category. [Citation.] To warrant 

the rejection of the statements given by a witness who has been believed by the 

[trier of fact], there must exist either a physical impossibility that they are true, or 

their falsity must be apparent without resorting to inferences or deductions. 

[Citations.] Conflicts and even testimony which is subject to justifiable suspicion 

do not justify the reversal of a judgment, for it is the exclusive province of the trial 

judge or jury to determine the credibility of a witness and the truth or falsity of the 
8

facts upon which a determination depends. [Citation.]”. . . .’ [Citation.]” 

(People v. Barnes (1986) 42 Cal.3d 284, 303-304, 306.) 

The uncorroborated testimony of a single witness is sufficient to sustain a 

conviction unless it is physically impossible or inherently improbable. (People v. 

Young (2005) 34 Cal.4th 1149, 1181.) Indeed, “ ‘[t]he testimony of a single 

witness is sufficient to uphold a judgment even if it is contradicted by other 

evidence, inconsistent or false as to other portions. [Citations.]’ ” (In re Robert V. 

(1982) 132 Cal.App.3d 815, 821.) 

2. Other relevant legal principles.

In pertinent part, section 288 provides, as follows. “(a) Except as provided 

in subdivision (i), any person who willfully and lewdly commits any lewd or 

lascivious act, including any of the acts constituting other crimes provided for in 

Part 1, upon or with the body, or any part or member thereof, of a child who is 

under the age of 14 years, with the intent of arousing, appealing to, or gratifying 

the lust, passions, or sexual desires of that person or the child, is guilty of a felony 

. . . [¶] (b)(1) Any person who commits an act described in subdivision (a) by use 

of force, violence, duress, menace, or fear of immediate and unlawful bodily injury 

on the victim or another person, is guilty of a felony . . . .” (Italics added.)

In order to establish “force” within the meaning of section 288, subdivision 

(b), the People must show a defendant used physical force “ ‘substantially 

different from or substantially greater than that necessary to accomplish the lewd 

act itself.’ [Citation.]” (People v. Soto (2011) 51 Cal.4th 229, 242 (Soto).)

Duress means “ ‘ “a direct or implied threat of force, violence, danger, 

hardship or retribution sufficient to coerce a reasonable person of ordinary 

susceptibilities to (1) perform an act which otherwise would not have been 

performed or, (2) acquiesce in an act to which one otherwise would not have 

submitted.” ’ [Citation.]” (Soto, supra, 51 Cal.4th at p. 246.) 
9

“There is some overlap between what constitutes duress and what 

constitutes force. This is because duress is often associated with the use of 

physical force, which may, but need not be present to have duress. However, as 

we have pointed out, the terms cannot be treated synonymously. An application of 

the previously stated rule of statutory construction dictates that we find that 

force, as used in the context of section 288, subdivision (b), refers only to physical 

force. To extend the meaning of that word to cover psychological coercion would 

be tantamount to rendering the word ‘duress’ meaningless in that statute.” 

(People v. Pitmon (1985) 170 Cal.App.3d 38, 50, fn. 9, overruled on another point 

in Soto, supra, 51 Cal.4th at p. 248, fn. 12.) 

The totality of the circumstances are to be considered in appraising the 

existence of duress. (Soto, supra, 51 Cal.4th 229, 246, fn. 9.) Such factors may 

include a notable disparity in the physical size and age between the defendant and 

the victim (Pitmon, supra, 170 Cal.App.3d at p. 51), physical control that does not 

amount to “force” (People v. Senior (1992) 3 Cal.App.4th 765, 775), and a longstanding relationship of trust or commission of the crime in an isolated location 

(People v. Superior Court (Kneip) (1990) 219 Cal.App.3d at pp. 238-239 (Kneip)). 

“A threat to a child of adverse consequences . . . may constitute a threat of 

retribution and may be sufficient to establish duress, particularly if the child is 

young and the defendant is her parent.” (People v. Cochran (2002) 103 

Cal.App.4th 8, 15, overruled on another point in Soto, supra, 51 Cal.4th at p. 248, 

fn. 12; see Kneip, supra, 219 Cal.App.3d at p. 238-239 [molestations took place in 

an isolated room out of the presence of other adults, and the boy was threatened 

with humiliation and shame if he did not cooperate]; People v. Bergscheider

(1989) 211 Cal.App.3d 144, 154, overruled on another point in People v. Griffin

(2004) 33 Cal.4th 1015, 1028 [threat of punishment and restriction held sufficient 

to convict defendant accused of sexual misconduct with 13-year-old 

stepdaughter].) 
10

“ ‘Lack of consent is not an element of the offense prohibited by section 

288, subdivision (b), and the victim’s consent is not an affirmative defense to such 

a charge. The victim’s consent or lack thereof is simply immaterial.’ [Citation.]” 

(Soto, supra, 51 Cal.4th at p. 245.) “ ‘[T]he victim’s actual consent does not 

eliminate the fact that the defendant actually uses violence, compulsion or 

constraint in the commission of the lewd act, nor does the victim’s consent 

diminish the defendant’s culpability or immunize the defendant from suffering the 

penal consequences that arise from a forcible lewd act.’ Likewise, with respect to 

implied coercion or duress, a ‘child victim’s actual consent does not eliminate the 

fact that the perpetrator utilizes duress in the commission of the lewd act, and does 

not reduce the perpetrator’s culpability or eliminate the penal consequences that 

attach due to the perpetrator’s conduct.’ ” (Ibid.)

Whether a defendant used “force” or “duress” are factual issues to be 

determined by the trier of fact. (People v. Babcock (1993) 14 Cal.App.4th 383, 

388, citation omitted; Kneip, supra, 219 Cal.App.3d at p. 238.)4 

3. The analysis.

Substantial evidence is found in this record to support the jury’s findings of 

force and/or duress. 

Jane testified to or made statements at the preliminary hearing and to the 

forensic nurse, Wheeler, that demonstrate force and duress. Appellant engaged in 

duress to get Jane to cooperate in the sexual activity by threatening not to let her 

play with her friends and by withholding assistance from her on the days 

following any refusal to get out of bed to join him in the kitchen. He used his 

 

4

The decision in People v. Woffinden was ordered reprinted for tracking 

pending review by the California Supreme Court at 31 Cal.App.4th 1664 and 

ordered depublished. (29 Cal.Rptr.2d 538; 871 P.2d 1133.) Review was later 

dismissed. (40 Cal.Rptr.2d 402; 892 P.2d 1145.) 
11

authority as her father to order her into the kitchen in the dead of night and in from 

play so he could engage in forcible lewd acts with her.

Further, Jane testified that appellant in effect had ordered her into the 

kitchen at night when she did not wish to go by telling her to “Come” when she 

ignored his signal to get out of bed. If she tried to crawl away from him when he 

started having sexual intercourse with her, he held her in place with a hand or 

hands on her shoulders. On one occasion, she asked him to “stop.” He refused 

and then did not reply when she asked why he was subjecting her to sexual abuse.

The above evidence demonstrates circumstances amounting to duress and 

that appellant used physical force substantially different from or substantially 

greater than necessary to accomplish the lewd acts.

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.