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Filed 8/28/09 (Original published opn. filed 7/31/09; this supp. opn. is not certified for publication and may not be cited or relied on under Cal. Rules of Court, rule 1115. Because it modifies an otherwise published opinion, this supp. opn. has been posted with the published opinions to facilitate tracking subsequent history of the 7/31/09 opn.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

GRIFFIN DEWATERING CORPORATION,

Plaintiff and Respondent,

v.

NORTHERN INSURANCE COMPANY OF NEW YORK,

Defendant and Appellant.

G036896

(Super. Ct. No. 00CC04293)

SUPPLEMENTAL OPINION ON

DENIAL OF REHEARING

I. Supplemental Opinions on

Denial of Rehearing

California reviewing and appellate courts have found it useful, on occasion, to issue supplemental opinions explaining why they were denying rehearing, and indeed have done so since 1906. (See National Bank v. Los Angeles etc. Co. (1906) 2 Cal.App. 659.) In the present case, several factors prompt this supplemental opinion. The petition for rehearing cites two “new” authorities. It also provides a long list of “facts” it says should have been mentioned in the opinion. And we have also received a request for modification from an accountant (who does not otherwise appear to be connected with the case), who, in that request, reveals that he misunderstands our original opinion. He thinks we said that the insurer “did not breach the insurance policy.”

We issue this supplemental opinion to deal with “new” authorities, the proffered new “facts,” as well as make clear (now) that the insurer breached the policy; it just didn’t breach it unreasonably.

II. “New” Authority

The rehearing petition cites us to two “new” authorities, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723 (Wilson) and the as-yet unfinal Bosetti v. U.S. Life Ins. Co. in The City of New York (2009) 175 Cal.App.4th 1208 (Bosetti). Neither case is apposite, since both are explorations of the genuine dispute doctrine. (See Wilson, supra, 42 Cal.4th at pp. 723 [explaining why insurance company could not obtain summary judgment under genuine dispute defense where insurance company claimed that 21-year old plaintiff in an uninsured motorist case had a preexisting degenerative disk disease]; Bosetti, supra, 175 Cal.App.4th at pp. 1235-1241 [explaining why insurance company was entitled to summary adjudication of bad faith claim against it under genuine dispute doctrine].) And as we said in the original opinion, we do not address at all any arguable applicability of the genuine dispute doctrine to the case.

Moreover, neither Wilson nor Bosetti purports to change the rule that a request for a defense in a third party (liability) insurance policy is evaluated at the time the request is made, in light of the facts of the complaint against the insured and other facts known by the insurance company, in light of the potentiality rule.

III. New “Facts”

To read the petition for rehearing, one would almost believe that we had decided a different case. On pages 9 through 13 of the petition for rehearing appear a long list of “facts” that the insured says should, at least, have been included in the opinion. The gravamen of these “facts,” at least according to the petition, is that the insurer “knew” (the word is used no less than eight times) from the inception of the policy that the total pollution exclusion in its policy would not exclude the company’s liability for any sewage claims, and its employees readily admitted as much.

Preliminarily, it should be noted that almost all the “facts” which the petition for rehearing lists came from evidence developed after the trial court had ruled in a pre-trial motion in limine that the insurer had breached the insurance contract unreasonably as a matter of law. Those facts were not put before the trial judge in that fateful motion. Most of the evidence supporting them was developed as a part of the insurer’s punitive damages case, which went to the jury with the express understanding that the insurer breached the insurance policy unreasonably. Thus the most that might be made of these facts would be some sort of remand; the judgment (based on the in limine ruling) still could not stand.

However, it turns out that the list of “facts” contains some serious errors. The record references do not support the “facts” as framed in the petition for rehearing.

In an appendix to this supplemental opinion, we go through each of the 16 proffered “facts,” and explain how each one is either (a) irrelevant to the basic question of whether the insurer was reasonable when, for a time, it declined to defend the insured against the district’s suit for indemnity, or (b) is an incorrect statement of the record. The appendix in most cases sets forth the actual transcript verbatim.

We give one example right now. The petition for rehearing states as a “fact” this: “Northern knew the pollution did not bar coverage for the property damage claim by South Coast because Lynch [one of the insurer’s employees] testified, a sewage spill inside a house (‘in your basement’) was not an excluded ‘pollutant’ because ‘it wasn’t something that was polluting the environment.’ (15 AA 3625).” (Rehr. pet. at p. 9.)

But if one checks pages 3625 and 3626 of volume 15 of the Appellant’s Appendix, one merely finds testimony acknowledging that there was in-house discussion among the insurer’s employees concerning the applicability of the pollution exclusion to sewage claims and that some employees disagreed with others on the topic. That hardly shows the insurer itself “knew” there was coverage. It only shows in-house debate. Moreover, the record reference for what “Northern knew” is to testimony elicited in the context of a question that explicitly did not seek any “legal binding [sic] on anybody.”

In any event, all the proffered facts (whether accurate statements of the record or not) are irrelevant because, as the court stated in Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865, opinion evidence is irrelevant to the interpretation of an insurance policy. Under the heading (directly apropos to the petition for rehearing here): “Admission of Liability by Insurer’s Employees Does Not Establish Liability,” the Chatton court said: “Respondents’ final argument that there was coverage for advertising injury under the terms of the CGL policy because National Union’s employees themselves admitted the existence of such liability requires but a brief reply. It is well settled that the interpretation of an insurance policy is a legal rather than a factual determination [citations]. Consistent therewith, it has been held that opinion evidence is completely irrelevant to interpret an insurance contract. [Citations.]” (Chatton, supra, 10 Cal.App.4th at p. 865, original italics deleted, italics added .)

As the appendix shows, there were no actual admissions of liability in the case before us. Thus, Chatton, where there were admissions, applies a fortiori.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.

Appendix to Supplemental Opinion on Denial of Rehearing

There are 16 “facts” which the petition for rehearing says should have been in the original opinion. In this appendix we set out verbatim (with one long exception, there mostly verbatim) the entirety of each “fact,” and then explain why the “fact” was not in the original opinion. In most cases we have set out in the margin the actual testimony or language from the record to which the petition for rehearing refers, erring (alas, to the detriment of yet more trees) on the side of inclusiveness.

1. Fact as framed in the petition for rehearing: “Northern knew it was insuring Griffin’s operations, including its sewage by-pass operations, against claims and lawsuits alleging property damage, as evidenced by (1) Northern inspecting Griffin’s operations in 1993 and 1995 during and after its underwriting process and (b) [sic] describing Griffin’s covered ‘operations’ on the first page of Northern’s policy (AA 4032) as those of a ‘sewer contractor.’ (16 RT 3068, 3071).”

Reason not included in the original opinion: The record references are to the testimony of the insured’s expert. The testimony of a party’s bad faith expert that the expert thought a policy should cover sewage “operations” does not establish that the insurer “knew,” at least prior to the MacKinnon decision, that sewage claims were not within the purview of the policy’s pollution exclusion. Also, the opinion of an expert is not relevant to establish coverage as such. (See Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865 [“opinion evidence is completely irrelevant to interpret an insurance contract”].)

2. Fact as framed by the petition for rehearing: “Vanetta Smiley, Northern’s adjuster (who participated in denying Griffin a defense), knew that ‘the building of sewer bypasses was considered an operation for which Northern was insuring Griffin.’ (15 AA 3649 (Depo. P. 370:1-6)).”

Reason not included in the original opinion: The record reference merely shows that at the time of the deposition Smiley only acknowledged that sewage bypasses were an “operation for which” the insurer “was insuring” the insured. It is not an admission that, at the time the decision was made in 1999, Smiley thought the pollution exclusion could not apply to a sewage claim.

3. Fact as framed by the petition for rehearing: “Jerrie Lynch (Northern’s underwriter on Griffin’s policy and Mike Bernath (the author of Northern’s underwriting guidelines) believed sewage was not a pollutant, thereby raising the ‘potential’ that the claim was covered, obligating Northern to defend Griffin. (16 RT 3186-87)”

Reason not included in the original opinion: The record references to pages 3186-3187 show that the insured’s expert believed that a particular employee of the insurer named Speers made the decision to deny coverage maybe — or maybe not (the witness tried to qualify his answer) in consultation with another employee of the insurer named Bernath. To be charitable to the petitioner, it is possible that the petition also refers to testimony on the preceding page, in which the expert noted that different employees of the insurer had different views on the application of the pollution exclusion to sewage claims, which disagreement was apparently resolved by Speers (or maybe Speers and Bernath together) unilaterally. Just because one employee of an insurance company may believe that there is coverage does not necessarily make a denial of coverage unreasonable, a point that the expert appeared to concede in his answer to an insurance company’s right to “internal disagreement.”

4. Fact as framed by the petition for rehearing: “Northern knew the pollution exclusion did not bar coverage for the property damage claim by South Coast because, as Lynch testified, a sewage spill inside a house (‘in your basement’) was not an excluded ‘pollutant’ because ‘it wasn’t something that was polluting the environment.’ (15 AA 3625).”

Reason not included in the original opinion: We quote from all of page 3625 of the Appellant’s Appendix and into much of page 3626 in the margin. Lynch’s testimony simply shows that insurance company employees can disagree with each other. We know of no law that says that if an insurance company employee thinks that an exclusion might not apply to a given situation that that means any position to the contrary on the part of the insurance company is necessarily unreasonable.

5. Fact as framed in the petition for rehearing: “Northern knew that ‘the underwriting intent of putting the total pollution exclusion endorsement on the policy was so that Northern would be protected against certain environmental risks or harms associated with Griffin Remediation Company” (13 RT 2590, ital. added) a sister company of Griffin Dewatering Corporation. Indeed, Northern insisted on including the total pollution exclusion in the policy for that purpose. (13 RT 2592) Northern knew the pollution exclusion was not intended to exclude coverage for Griffin Dewatering’s sewage –related claims (id.) but to exclude claims related to Griffin Remediation’s activities (13 RT 2686) since those activities presented ‘environmental [matters] that could trigger pollution claims.’ (13 RT 2646-47).”

Reason not included in the original opinion: The record references to pages 2590 through 2592 are to the testimony of William Harrison, the insured’s broker. His testimony shows, in the context of a previous question involving workers’ compensation risks, that he thought the pollution exclusion should not preclude sewage claims. It also shows that the insured’s broker thought that the insured’s sister company, the “remediation” company, was indeed subject to the pollution exclusion. As noted above, opinion evidence cannot establish coverage.

6. Fact as framed in the petition for rehearing: “Northern knew the pollution exclusion did not bar coverage for property damage claims caused by sewage in connection with the South Coast project because Northern issued a Certificate of Insurance naming Griffin and South Coast as insured in connection with liabilities on that project, which dealt exclusively with sewage. (13 RT 2710-11; 17 AA 4178, 4181 (Certificate of Insurance)).”

Reason not included in the original opinion: The record reference to pages 2710 to 2711 of the reporter’s transcript is to testimony of Robert Gokoo, an attorney representing the district, which simply establishes that the district was itself an additional insured on the policy. The record reference to page 4178 is to Griffin’s proposal to do work for the district, and the reference to page 4181 is to the certificate of insurance that said: “South Coast Countys Water District is hereby added as an additional insured. . . .” None of this shows that the insurer intended that the pollution exclusion ever applied to sewage claims.

7. Fact as framed in the petition for rehearing: “Following Northern’s initial denial, Bill Harrison (Griffin’s insurance broker since 1987 who negotiated and placed the policy) directed one of his brokerage’s attorneys in its environmental division, Brett Reich, to prepare and send a written legal opinion to Northern (13 RT 2599) setting forth (1) caselaw holding that sewage claims were not barred by the pollution exclusion; and (2) an explanation why the exclusion did not bar the Waters claim, hence demonstrating a potential for coverage. (13 RT 2595-98, 2675, Exh. 74) The reasons Reich detailed included: . . . .” We omit the details of the argument set forth in the letter. Reason not included in the original opinion: A letter from the insured’s broker in 1996, more than seven years prior to the MacKinnon decision, making the legal case for coverage does not necessarily show that the insurer’s position was unreasonable. It only shows that the insurer was exposed to some of the insured’s arguments in favor of coverage.

8. Fact as framed in the petition for rehearing: “At trial, Tom Lysaught (Director of Northern’s Environmental Claims Unit who participated in the denial of Griffin’s claim) conceded that the Reich’s memorandum ‘was correct’ because (1) sewage is not necessarily a pollutant; (2) the pollution exclusion applies only to environmental harm; and (3) the exclusion is ambiguous (18 RT 3572, 3568-69), thus confirming Northern’s awareness of a potential for coverage, requiring a defense.”

Reason not included in the original opinion: The record reference to pages 3568 through 3569 of the reporter’s transcript do not show that Lysaught admitted that he thought it was ambiguous from the beginning; they only show that he recognized that courts had disagreed about application of the exclusion. Indeed, far from thinking that the broker’s letter was correct, the transcript shows that he continued to think it incorrect. The record reference to page 3572 of the reporter’s transcript simply shows while Lysaught recognized that the MacKinnon opinion had ultimately vindicated the broker’s position, there were “other cases” that had taken the insurer’s side.

9. Fact as framed in the petition for rehearing: “Harrison testified that, when Griffin’s policy came up for renewal, he voiced concern to Lynch about renewing with Northern. Harrison did so because Northern had denied the Water’s sewage claim because, as Lynch told Harrison, Northern “did not want to set precedent” given that there were ‘many, many other’ such claims. (13 RT 2612) But Lynch assured Harrison that if Griffin renewed, he would ‘come to Houston’ (13 RT 2611), ‘look [Griffin’s principals] in the eye’ (id.) and tell them that “[Northern] would agree to cover the – any similar-type sewage backup claims going forward” (id.).”

Reason not included in the original opinion: Pages 2610 through 2612 of the reporter’s transcript is simply the broker’s testimony that the insurer was willing to cover future sewage claims after the Waters claim. This part of the case was well covered in the original opinion explaining the parties’ disagreement over the scope of the Houston Oral Promise.

10. Fact as framed in the petition for rehearing: “Harrison testified that at the Houston meeting, Lynch stated Northern was ‘sorry that the Waters claim had not been covered’ (13 RT 2623-24) but in promising ‘to cover [sewage claims] going forward,’ Lynch meant that ‘[Northern’s] underwriting intent all along [including under the 1996 policy] . . . never contemplated not covering . . . sewage backup claims’ (13 RT 2612) that and Lynch ‘intended to cover these types of claims all along.[’] (13 RT 2614).”

Reason not included in the original opinion: Pages 2623 through 2624 of the reporter’s transcript simply recount Lynch’s attendance at the meeting giving rise to the Houston Oral Promise. It does not follow that because Lynch “was apologizing” for the way the Waters claim “went” that the insurer acted unreasonably in denying the defense of that same claim later. Page 2612 recounts the insured’s broker’s opinion that if the insurer was willing to cover sewage claims after the Waters claim, then there must have been an underwriting intent “all along” that the sewage claims would be covered. Lynch, however, never said that. Pages 2614 to 2615 similarly recounts what the broker thought Lynch thought, not what Lynch actually thought. Obviously the fact that a broker thought that an employee of an insurance company thought that a particular exclusion should not apply in a given instance is not substantial evidence that the insurer itself never intended the exclusion should apply.

11. Fact as framed in the petition for rehearing: “Harrison, Kazem Khonsari (Griffin’s President) and Eric McAnelly (Griffin’s in-house counsel) understood Lynch’s statements in Houston to mean that given the parties’ underwriting intent, Northern would ‘at least defend the action’ arising from the Waters claim. (13 RT 2629, 15 RT 3002, 15 RT 3007; 14 RT 2814).”

Reason not included in the original opinion: The record references simply recount why the insured re-submitted a request for a defense of the district’s suit. Page 2629 shows that the broker thought it was worth “another run,” pages 3001 and 3002 show the insured’s president’s recollection of the Houston Meeting that the insured would not assert the exclusion if anything in the future happened, page 3007 is to the same effect, except there the insured’s president was under cross-examination, and page 2814 was the testimony of a contract administrator working for the insured who also recounted the Houston meeting as one in which it was agreed that, if any sewage claims arose in the future, they would be covered. The topic of the Houston Meeting was well covered in the original opinion, and in fact the main reason the case took so long.

12. Fact as framed in the petition for rehearing: “During the Houston meeting, Khonsari ‘specifically asked [Lynch] if anything comes from South Coast are we covered, and the answer was yes.’ (15 RT 3019) Lynch responded that ‘anything that developed out of the Waters’ claim would be covered in the future.’ (15 RT 3022) ‘The main issue [Khonsari] was concerned about was our coverage about this sewage bypass.’ (15 RT 3005) Lynch ‘understood’ his concern, ‘assured [Khonsari] and [shook his] hand [saying] ‘that won’t be happening in the future, go on with your business. You’re covered. Don’t worry about it anymore.”’ (15 RT 3009).”

Reason not included in the original opinion: The opinion goes to some length to explain why the court could not affirm the judgment based on the Houston Oral Promise. (See slip. op. at pp. 38-39.) As the original opinion notes, had the insured added a cause of action based on the Houston Oral Promise, the conflict over whether the district’s suit on the Waters claim was a “future” suit within the meaning of the Houston Oral Promise would have been resolved in the insured’s favor.

13. Fact as framed in the petition for rehearing: “McAnelly, who attended the Houston meeting, had the same understanding from Lynch as Khonsari — that Northern would provide coverage for any claims related to the Waters incident in the future. If the Waters claim suddenly ‘c[a]me back to life the week after the Houston meeting,’ Northern would have ‘paid [it].’ ‘That’s what I understood’ at the 1997 Houston meeting. (14 RT 2814) (This testimony went unrebutted at trial; Northern presented no employee who attended the 1997 Houston meeting.).”

Reason not included in the original opinion: As with the previous fact, the original opinion recognizes that the insured’s side of the Houston Oral Promise was that the Waters claim would be covered if it iterated itself in the form of a future suit against the insured. (See slip op. at p. 3.) However, as the original opinion also explains, the insured elected to forego liability on a breach of the Houston Oral Promise and focus on liability under the written insurance contract. (See slip op. at pp. 17-19, 38-39.)

14. Fact as framed in the petition for rehearing: “Northern knew that South Coast’s complaint alleged a claim for ‘property damage’ within the meaning of the insuring clause of Northern’s policy (17 AA 4156-77), thereby raising a potential for coverage Northern could not conclusively eliminate based on a dispute regarding the pollution exclusion’s applicability — thus requiring Northern to defend.”

Reason not included in the original opinion: The swath of pages cited is to the complaint by the district against the insured. This “fact” is little more than a legal argument.

15. Fact as framed in the petition for rehearing: “Northern knew there was no California caselaw interpreting the pollution exclusion (15 AA 3668; 18 RT 3600) and hence no California law support for Northern’s position that the exclusion was unambiguous and barred Griffin’s claim.”

Reason not included in the original opinion: As explained in the original opinion, the absence of direct Supreme Court authority supporting the application of an exclusion to a given suit does not necessarily show that the application of the pollution exclusion to sewage is unreasonable. The original opinion also notes that at least two panels of the Court of Appeal, prior to MacKinnon, took a broad view of the total pollution exclusion.

16. Fact as framed in the petition for rehearing: “Northern knew that actual coverage existed, since when Griffin was sued in an earlier case (‘City of Vista’) in which sewage had spilled into a lagoon, Northern agreed to defend Griffin even though the policy contained a pollution exclusion containing the same definition of ‘pollutant’ as in the policy at issue here. (4 AA 829, 901, 905; RA 109; RA 6-7, 102-05)”

Reason not included in original: The record reference to page 829 of the appellant’s appendix is simply to the cover page of a reply by the insurer in a summary adjudication motion in 2003. Pages 901 and 905 of the appellant’s appendix are to a letter from AIG, which, while too long to reproduce verbatim, does not mention any City of Vista claim. Pages 6 and 7 of the Respondent’s Appendix are from the insured’s own in limine motion to exclude evidence that the insurer’s policy was anything but primary. Page 6 is from the supporting points and authorities asserting that the insurer had agreed to honor a 1998 request to defend a suit (not exactly an “earlier” case – recall that the Houston Meeting — where everyone agreed that the company would cover all future sewage claims — was in May 1997) involving the City of Vista. That case involved a sewage spill from drilling into a pipeline. Pages 102 to 103 of the Respondent’s Appendix is a letter from the insured’s contract administrator referencing the City of Vista suit. While the letter is too long to reproduce, we see nothing in it that the insured made a request for a defense in that suit prior to the 1997 Houston Meeting. The only date given about that suit, given on the first page of the letter, is to March 5, 1998, again, after the Houston Meeting had generated a promise that future claims (at least future non-Waters claims) would be covered. Page 109 is from an internal memo within the insurer about the City of Vista claim. Nothing in the memo contravenes the insured’s own pleadings that the request for a defense in the City of Vista case came in 1998.

Filed 3/3/09 Kurdoglayan v. Baghdassarians CA2/1

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 ONE

GREG KURDOGLAYAN et al.,

Plaintiffs and Respondents,

v.

AREG BAGHDASSARIANS et al.,

Defendants and Appellants.

B208350

(Los Angeles County

Super. Ct. No. EC046379)

APPEAL from a judgment of the Superior Court of Los Angeles County. Laura A. Matz, Judge. Affirmed.

Esquire Law Firm and Victor Hairapetian for Defendants and Appellants.

Law Offices of Eugene S. Alkana and Eugene S. Alkana for Plaintiffs and Respondents.

___________________________

Plaintiffs Greg Kurdoglayan and SK Vision filed a complaint against defendants alleging claims related to six separate real estate ventures. Defendants Areg Baghdassarians, Angeleno Builders, LLC, and 3810 Ramsdell, LLC moved to compel arbitration of the entire case. The trial court ordered arbitration limited to “the issues arising under the Operating Agreement of 3810 Ramsdell LLC dated January 19, 2006 only.” Baghdassarians appeals from that order. We must decide (1) whether the trial court correctly interpreted the Ramsdell arbitration agreement to encompass only those disputes related to the Ramsdell operating agreement, and (2) whether the trial court correctly found no additional arbitration agreement to encompass any of the remaining disputes. We conclude there was no error and affirm the trial court’s order.

Background

Kurdoglayan filed a complaint against Baghdassarians and other entities asserting claims related to six separate real estate ventures. Although, as Baghdassarians points out, every cause of action except for the seventh is labeled as “Against all defendants,” the substance of each cause of action belies the heading. The first through sixth causes of action relate to four separate real estate ventures, namely Angeleno Builders I, II, III, and V. These causes of action do not mention any other ventures. They are for, in order: (1) fraud, (2) declaratory relief, (3) equitable lien, (4) accounting, (5) constructive trust, and (6) intentional infliction of emotional distress. The seventh cause of action is for intentional interference with economic advantage and relates solely to a North Adams real estate venture. The eighth through tenth causes of action relate to the parties’ Ramsdell real estate venture only. These later causes of action do not mention the Angeleno Builders I, II, III, or V ventures or the North Adams venture. The eighth cause of action is for breach of contract and refers specifically to the written Ramsdell Agreement. The ninth and tenth causes of action allege claims for an accounting and for fraud and are based on the Ramsdell venture only.

Baghdassarians and 3810 Ramsdell, LLC moved to compel arbitration of all claims. In support of the motion, Baghdassarians and 3810 Ramsdell, LLC submitted two declarations from Areg Baghdassarians and one from defendants’ attorney. Areg Baghdassarians attached the following documents to his initial declaration: (1) an executed copy of the 3810 Ramsdell, LLC Operating Agreement (the “Ramsdell Agreement”), (2) an executed copy of the Angeleno Builders, LLC Operating Agreement, and (3) unsigned “Operating Agreements” relating to the Angeleno Builders I, II and III ventures (the “unsigned documents”). In his supplemental declaration, Areg Baghdassarians stated that the following companies had executed Operating Agreements, each of which contained an arbitration clause: 3974 Pennsylvania LLC, 3138 Montrose LLC, 2460 Oswego LLC, and 7223 Apperson LLC. He did not attach or otherwise submit copies of those operating agreements, which presumably would have shown, for example, the parties to the agreements and the terms of any arbitration clauses.

In opposition to the motion, Kurdoglayan submitted a declaration from Greg Kurdoglayan as well as a declaration from their attorney. In his declaration, Greg Kurdoglayan elaborated on the proposed structure of the entities that were to be involved in the separate real estate ventures at issue in the complaint.

The trial court granted the motion to compel arbitration as to the Ramsdell Agreement only. Baghdassarians appeals the trial court’s order, arguing arbitration should be compelled as to all disputes raised by the complaint, not just those related to the Ramsdell Agreement.

Discussion

Standards of Review. When there is no factual dispute as to the existence or language of an arbitration agreement, we must determine “the legal interpretation to be given that language and that is something we do de novo.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.) We review the trial court’s determination as to the existence of an agreement to arbitrate under the substantial evidence standard. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357.)

Arbitration of Claims. Code of Civil Procedure section 1281.2 requires the trial court to order arbitration if the court “determines that an agreement to arbitrate the controversy exists [and certain circumstances not relevant here do not exist].” “This language is mandatory, not precatory.” (Coast Plaza, supra, 83 Cal.App.4th at p. 687.) Conversely, if no valid agreement to arbitrate exists, the court must deny a motion to compel arbitration. Although the law favors arbitration, “[t]here is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.” (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) “The guiding principle is simple: ‘A party cannot be compelled to arbitrate a dispute that it has not elected to submit to arbitration.’” (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1069, quoting County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 245.)

The Ramsdell Agreement. There is no dispute that the Ramsdell Agreement contains a valid and enforceable arbitration clause. Rather, the dispute centers on the scope of that arbitration clause. The Ramsdell arbitration clause states: “Any action to enforce or interpret this Agreement, or to resolve disputes with respect to this Agreement as between the Company and a Member, or between or among the Members, shall be settled by arbitration in accordance with the provisions of this Agreement.” This language is clear. The agreement to arbitrate extends to (1) any action “to enforce or interpret” the Ramsdell Agreement and (2) any action “to resolve disputes with respect to [the Ramsdell] Agreement as between the Company and a Member, or between or among the Members.” The trial court correctly compelled arbitration of “the issues arising under the Operating Agreement of 3810 Ramsdell LLC.”

As an initial matter, Baghdassarians appears to misunderstand the trial court’s order. For example, Baghdassarians asserts the trial court “erred when it failed to order plaintiffs’ claims against Angelino Builders, LLC relating to Ramsdell to arbitration.” Elsewhere, Baghdassarians states the trial court compelled “arbitration of all of the nine causes of action involving Ramsdell.” These and similar statements are incorrect. The trial court ordered issues —not causes of action—arising under the Ramsdell Agreement to arbitration. This includes Ramsdell-related claims against Angeleno Builders, LLC, which is a signatory to the Ramsdell Agreement.

To be clear, it is not a question of who must go to arbitration, but what disputes must be arbitrated. The Ramsdell arbitration clause does not extend to disputes with respect to properties or ventures beyond the Ramsdell Agreement. Baghdassarians cannot use the Ramsdell Agreement to bootstrap into arbitration Kurdoglayan’s claims related to separate real estate ventures. Baghdassarians stretches the language of the Ramsdell arbitration clause to include any and all disputes between members to that Agreement, whether or not the dispute is related to the Ramsdell Agreement. Under Baghdassarians’ logic, any member to the Ramsdell Agreement can compel arbitration of any dispute with another member to that agreement. For example, a member could compel arbitration of a dispute arising from a car accident between members, or, in a less extreme example, a member could compel arbitration of a dispute arising from a separate real estate venture with another member. This latter example is what Baghdassarians attempts to do here. We do not agree with such a broad interpretation of the Ramsdell Agreement.

Cases cited by Baghdassarians do not support a different result. For example, Baghdassarians cites Cara’s Notions, Inc. v. Hallmark Cards, Inc. (4th Cir. 1998) 140 F.3d 566, in which the Fourth Circuit reversed an order refusing to compel arbitration. The Cara’s Notions arbitration clause encompassed “‘[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof, or any aspects of the relationship between Hallmark and [the plaintiff], or the termination thereof.’” (Id. at p. 568, italics in original, fn. omitted.) Because the Cara’s Notions arbitration clause is much broader than the one at issue here, that case is beside the point. Other courts have distinguished Cara’s Notions for this very reason. (See, e.g., Wachovia Bank, Nat. Ass’n. v. Schmidt (4th Cir. 2006) 445 F.3d 762, 769; Security Watch, Inc. v. Sentinel Systems, Inc. (6th Cir. 1999) 176 F.3d 369, 374, fn. 4.)

The Angeleno Builders, LLC Agreement. The only other signed agreement in the record is the Angeleno Builders, LLC Agreement. Armond Bagdasarian and Areg Baghdassarians are the sole signatories to that agreement.

But, again stretching language beyond logic, Baghdassarians argues that, in paragraph 20 of the complaint, Greg Kurdoglayan has unilaterally made himself a party to the Angeleno Builders, LLC Agreement. Even if the complaint is not a model of precise pleading, we cannot accept this argument. Under Baghdassarians’ logic, when someone wants to arbitrate a claim, that person or entity could simply file a verified document declaring themselves a party to the relevant arbitration agreement. The law does not support this argument. The arbitration provision in the Angeleno Builders, LLC Agreement does not apply here.

The Unsigned Documents. In addition to the Ramsdell Agreement and Angeleno Builders, LLC Agreement, Baghdassarians attached four unexecuted documents to the motion to compel. Standing alone, these unsigned documents are unenforceable. Similarly, they are unhelpful in determining the parties’ intent to arbitrate. Baghdassarians argues the unsigned documents indicate that the parties intended to arbitrate. Without more, however, the fact that the documents are unsigned could just as easily indicate disagreement with the terms (including the arbitration clauses) of the proposed agreements. Baghdassarians fails to demonstrate—through declarations in support of the motion to compel or otherwise—how or why the arbitration provisions in those documents should be enforced. Because Baghdassarians failed to ask the trial court for an evidentiary hearing on these issues, Baghdassarians cannot now ask us to order such a hearing. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) We agree with the trial court that Baghdassarians has not demonstrated the existence of any agreement to arbitrate disputes unrelated to the Ramsdell Agreement.

Our decision is consistent with Marsch v. Williams (1994) 23 Cal.App.4th 250, a case neither side cites. In Marsch, the parties had executed various agreements—the La Jolla agreements and the Horizon agreement—which controlled the operation of separate real estate developments. Only the Horizon agreement contained an arbitration clause. The complaint made reference to both the La Jolla agreements and the Horizon agreement, but sought damages based only on the La Jolla agreements, that is, the agreements without arbitration clauses. The defendant Williams moved to compel arbitration, arguing that “by relying on Williams’s conduct in Horizon to establish portions of his La Jolla case, Marsch’s complaint had its ‘roots in the relationship created by the Horizon [agreement]’ and was controlled by the arbitration clause in that agreement.” (Id. at p. 253.) The court disagreed, noting that the La Jolla agreements and the Horizon agreement “were not closely connected in purpose, did not incorporate one another’s terms, were not executed at the same time, and the breach of [one] did not necessarily lead to the breach of the [other].” (Id. at p. 256.)

Similar to the defendant in Marsch, Baghdassarians argues that, although Kurdoglayan’s claims arise from and relate to various different real estate ventures, some of which do not involve valid arbitration agreements, the claims should all be arbitrated under the Ramsdell arbitration clause because they are “intertwined,” “entangled,” and involve the same parties. But, as the Marsch court held in similar circumstances, when “the parties have separate contractual relationships, which involve separate enterprises and most importantly separate commercial risks, an arbitration clause which governs one contractual relationship cannot be imposed in the other relationship without undermining the parties’ reasonable expectations.” (Marsch v. Williams, supra, 23 Cal.App.4th at p. 256.)

Baghdassarians also argues that arbitration clauses in the unsigned documents should be enforced because Kurdoglayan relies on other portions of those same unsigned documents to support the complaint. Baghdassarians argues that Kurdoglayan cannot reject a portion of an agreement, while simultaneously embracing other portions. We are not persuaded. Kurdoglayan does not specifically rely on or mention the unsigned documents for any claim. In fact, as to the Angeleno Builders I, II, III and V disputes, Kurdoglayan does not assert a breach of contract claim. The only breach of contract claim is based on and relates to the Ramsdell Agreement.

None of Baghdassarians’ remaining arguments changes our analysis. For example, we are not persuaded by arguments based on equitable estoppel or the rights of nonsignatories and third party beneficiaries. Such arguments are only relevant once it is shown that a valid arbitration agreement (1) exists between the parties and (2) encompasses the disputes at issue. Here, the Ramsdell Agreement contains the only valid arbitration agreement between the parties. And, as explained above, that arbitration agreement is limited in scope.

Baghdassarians also argues that tort claims may be arbitrated. While we do not disagree with this point, it does not change our analysis. First, in ordering “the issues arising under the Operating Agreement of 3810 Ramsdell LLC” to arbitration, the trial court did not distinguish between contract and tort claims. The requirement for arbitration here is that the claims be related to the Ramsdell Agreement. Second, to the extent Baghdassarians is using this “torts may be arbitrated” argument to sweep all claims raised in the complaint into arbitration, he cannot do so. As explained above, only those disputes related to the Ramsdell Agreement may be arbitrated.

Finally, in further support of his “torts may be arbitrated” argument, Baghdassarians relies on Segal v. Silberstein (2007) 156 Cal.App.4th 627. Segal does not support Baghdassarians’ position. First, Segal is factually different. In Segal, Division 8 of this Court reversed the trial court’s order denying arbitration “[b]ecause the operating agreements of the parties’ business entities require[d] arbitration.” (Id. at p. 629.) In support of their motion to compel arbitration, defendants in Segal presented three signed agreements, each of which contained an arbitration provision. In contrast, here, Baghdassarians presented multiple unsigned documents, and only one signed agreement that does not cover all the disputes raised by the complaint.

Second, Segal does not address the issue we confront here, namely whether a court may compel arbitration of disputes not related to the agreement in which the arbitration clause is contained. In Segal, the Court addressed (1) the import of language found in the arbitration provisions designating arbitration as a “nonexclusive” dispute resolution process outside of Texas, (2) whether one of the signed agreements applied even though the entity created by that agreement was not a party to the lawsuit, (3) whether a separately pending action involving one of the Segal plaintiffs barred arbitration of the Segal claims under Code of Civil Procedure section 1281.2(c), and (4) whether that plaintiff had waived his right to arbitration by appearing in the other action. Segal v. Silberstein, supra, 156 Cal.App.4th at p. 632.) The Court’s analysis of those issues does not inform our decision here.

Disposition

The Ramsdell Agreement contains the only enforceable arbitration agreement between the parties. That agreement requires arbitration of “disputes with respect to [the Ramsdell] Agreement.” The Ramsdell arbitration agreement does not extend to other disputes between the parties. The record does not reveal evidence of any other arbitration

agreement between the parties. Accordingly, we affirm the trial court’s order compelling arbitration of disputes relating to the Ramsdell Agreement only.

NOT TO BE PUBLISHED.

BAUER, J.*

We concur:

MALLANO, P. J.

ROTHSCHILD, J.

Filed 3/3/09 P. v. Ruiz 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.

JOE JESSIE RUIZ,

Defendant and Appellant.

H031728

(Santa Clara County

Super. Ct. No. CC513151)

I. STATEMENT OF THE CASE

A jury convicted defendant Joe Jessie Ruiz of rape and five counts of committing a lewd acts on a minor under 14 years old by force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person and further found that defendant committed the acts against more than one victim and had a prior conviction for lewd conduct that qualified as a strike. (Pen. Code, §§ 261, subd. (a)(2), 288, subds. (a) and (b)(1), 667.61, subds. (a), (b), (d), and (e), 1170.12.) The court imposed a total sentence of 300 years, giving him presentence custody credit for 630 days.

On appeal from the judgment, defendant claims that (1) there is insufficient evidence of force, duress, or fear to support three of the lewd conduct convictions; (2) the court misinstructed the jury on the element of fear in connection with all counts of lewd conduct, and (3) the court’s instruction on reasonable doubt was constitutionally defective.

We find no merit to these claims and affirm the judgment.

II. FACTS

Defendant is the grandfather of his two victims, who called him “Papa.” He was considered the center of the family.

Victim 1 testified that one day, when she was eight years old and alone with defendant, he called her over, exposed himself, took her hand, put it on his penis, and, holding it there, masturbated. She cried and asked him to stop, but he told her to be quiet and continued using her hand. He then picked her up, put her on his lap, and penetrated her vagina. It hurt, and she was scared. She cried and asked him to stop, but he told her to be quiet and continued. When they heard Victim 1’s grandmother’s car in the driveway, defendant put her down and warned her not to say anything or else she would get into trouble. She stayed close to her grandmother the rest of the day because she was afraid of defendant.

On another occasion when Victim 1 was alone with defendant, he exposed himself, grabbed her by the head, and pushed her mouth onto his penis. She cried, and he told her to be quiet. She tried to move her mouth away, but he overcame her resistance. Eventually, she was able to get free, ran into the bathroom, and locked the door. She stayed there until her grandmother came home.

Victim 1 testified that defendant raped, digitally penetrated, and forced her to masturbate and orally copulate him on other occasions, but she had tried to forget these incidents and could not remember any other specific details. Throughout this period, she did not tell anyone about the molestation and was afraid of defendant.

When Victim 1 was around 14 years old and her family and grandparents were living together, defendant would grab her as she walked by him and touch her buttocks and genital area. And on numerous occasions, he would stare at her and masturbate. Victim 1 was still afraid of him and afraid to tell anyone.

Victim 2 testified that one night when she was 12 years old, defendant came up to her, kissed her on the lips, and tried to force his tongue into her mouth. She was scared and kept her mouth shut, but he continued trying. Eventually, he left. However, he returned a short time later and tried again. On another occasion, she was walking by him, and he grabbed her, and fondled her chest.

Victim 2 further testified that once, when she was 13 years old, she took a shower and, wrapped in a towel, went into another room to change. Defendant followed her, opened her towel, fondled her vagina, and then digitally penetrated her. She was afraid he would hurt her and did not resist. He stopped when she said Victim 1 was coming. Later he told her again not to say anything and offered to pay for her silence with money or gifts.

In 2005, when Victim 1 was 18 years old, she reluctantly revealed to her father generally what had happened. She was still afraid of what defendant might say or do and wondered whether anyone would believe her. Thereafter, she disclosed what had happened to a therapist, and in October 2005, she told the police.

In December 2005, Victim 2 generally revealed the molestation to her father. With Victim 1 present, she later disclosed it to the police. Victim 1 then made a recorded pretext call to defendant. She told him that she was angry at him because of what he had done to her and Victim 2 and pressed him to explain why he touched and grabbed her, exposed himself, and made her do things so many times. Defendant apologized, explaining that it happened because he got the “urge.” She was also angry at him for touching Victim 2 and asked if he was sorry for that. He said he was.

The prosecution also introduced evidence that in 1982, defendant admitted to police that he had repeatedly molested both of his daughters and was convicted of lewd conduct.

III. SUFFICIENCY OF THE EVIDENCE

Defendant contends there was insufficient evidence to establish that two of the charges of lewd conduct involving Victim 1 and one involving Victim 2 were accomplished by force, violence, duress, menace or fear of immediate and unlawful bodily injury.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Osband (1996) 13 Cal.4th 622, 690; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)

In the context of a prosecution under section 288, subdivision (b)(1), “ ‘ “force” ’ ” refers only to physical force, and it must be “ ‘ “substantially different from or substantially greater than the force needed to accomplish the act itself.” ’ ” (People v. Cardenas (1994) 21 Cal.App.4th 927, 939; People v. Pitmon (1985) 170 Cal.App.3d 38, 46; CALCRIM No. 1111.)

“[D]uress” 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 peformed or, (2) acquiesce in an act to which one otherwise would no have submitted.” (People v. Pitmon, supra, 170 Cal.App.3d at p. 50, fn. omitted; accord, People v. Leal (2004) 33 Cal.4th 999, 1004-1005, 1009-1010; People v. Cochran (2002) 103 Cal.App.4th 8, 13; CALCRIM No. 1111.)

“ ‘[F]ear’ ” means “ ‘(1) “A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension” [citation] and (2) “Extreme reverence or awe, as toward a supreme power” [citation].’ ” (People v. Cardenas, supra, 21 Cal.App.4th at pp. 939-940, quoting People v. Montero (1986) 185 Cal.App.3d 415, 425.) And for the purpose of section 288, subdivision (b), the commission of a lewd act by fear means that the minor is actually and reasonably afraid of immediate bodily injury or is actually but unreasonably afraid, and the defendant knows of the fear and takes advantage of it. (CALCRIM No. 1111; People v. Cardenas, supra, 21 Cal.App.4th at p. 940.)

In discussing “duress,” this court in People v. Schulz (1992) 2 Cal.App.4th 999 (Schulz), explained that “[p]hysical control can create ‘duress’ without constituting ‘force.’ ‘Duress’ would be redundant in the cited statutes if its meaning were no different than ‘force,’ ‘violence,’ ‘menace,’ or ‘fear of immediate and unlawful bodily injury.’ [Citation.] . . . [Citation.] . . . [citation] [D]uress involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] ‘Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim’ [are] relevant to the existence of duress.” (Id. at p. 1005.)

In Shultz, the defendant lived with his nine-year-old niece. One night, he woke her up “by grabbing her arm, cornered her while she cried, held her arm, and touched her breasts and vaginal area.” (Schulz, supra, 2 Cal.App.4th at p. 1004.) In finding the evidence sufficient to establish “duress,” the court explained, “On this occasion [the defendant] took advantage not only of his psychological dominance as an adult authority figure, but also of his physical dominance to overcome her resistance to molestation. (Id. at p. 1005.)

In People v. Senior (1992) 3 Cal.App.4th 765 (Senior), the defendant threatened to hit his daughter if she resisted his molestation. During later molestations, he restrained her. This court found that the initial threat together with the restraint was sufficient to establish that the latter acts were accomplished by duress. (Id. at pp. 775-776.)

In People v. Cochran, supra, 103 Cal.App.4th 8, the court explained that “[a] threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent.” (Id. at p. 15.)

On the other hand, in People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), this court found the evidence insufficient to establish duress. There, the defendant came in to the victim’s bedroom, sat on the bed, pulled her pants down, rubbed her breasts and vagina, and attempted to have intercourse. It was uncomfortable, and the minor was frightened and scared. However, she did not resist, and they did not speak to each other. (Id. at pp 1292-1293)

In Espinoza, we agreed with the analysis in Schultz but found it, Senior, and a number of other cases (People v. Sanchez (1989) 208 Cal.App.3d 721, People v. Hecker (1990) 219 Cal.App.3d 1238) to be factually distinguishable. (Espinoza, supra, 95 Cal.App.4th at pp. 1320-1321.) We reasoned that duress could not be based solely on the fact that the defendant was the victim’s father, he was bigger, her intelligence was limited, and she was afraid. “What is missing here is the ‘ “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.] Duress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat . . . ’ [Citation.] No evidence was adduced that defendant’s lewd act and attempt at intercourse were accompanied by any ‘direct or implied threat’ of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation.” (Id. at p. 1321.)

With these cases in mind, we turn to the facts in this case, focusing first on the acts against Victim 1 and then those against Victim 2.

During the first incident defendant grabbed Victim 1’s hand, held it on his penis, and used it to masturbate himself. He then raped her. When it was over, he warned that she would get into trouble if she told anyone. During the second incident, he pulled her head and mouth to his penis. In both incidents defendant forcibly overcame either her physical and/or verbal efforts to resist. We note that V testified that she was afraid of defendant, feared that he would harm her, and afraid of what he might do. Finally, defendant was older, bigger, and stronger than Victim 1; he was her grandfather and occupied a position of authority and importance in the family; and all of his acts took place inside the home when no one else was around.

In our view, a jury reasonably could find that, taken together, these particular acts and the surrounding circumstances created an implied threat that he might molest Victim 1 when they were alone and use force to overcome her resistance, inflict pain, if not physical harm, and injury, and cause adverse consequences or hardship—i.e., “trouble”—if she did not acquiesce to him. (See People v. Veale (2008) 160 Cal.App.4th 40, 50-51 [duress does not require a threatening action or statement but can be implied].) Based on this finding, the jury reasonably could conclude beyond a reasonable doubt that this implied threat facilitated and enabled defendant to commit his subsequent acts against Victim 1a—i.e., the repeated acts of rape, oral copulations, digital penetration, fondling, and masturbation—and, therefore, that were accomplished by duress. (E.g., People v. Cochran, supra, 103 Cal.App.4th at pp. 15-16; People v. Senior, supra, 3 Cal.App.4th at p. 775-776.)

Defendant’s reliance on Espinoza, supra, 95 Cal.App.4th 1287 is misplaced. There, the defendant never used force against the victim, caused her pain, overcame her verbal or physical resistance, or threatened adverse consequences if she did not stay silent about his conduct, all of which occurred in this case. Thus, Espinoza is distinguishable.

Concerning Victim 2, the prosecution relied on the theory that defendant committed the act of digital penetration by fear.

Victim 2 testified that twice defendant forcibly kissed her and tried to push his tongue into her mouth. He scared her, and she resisted. On another occasion, he grabbed and fondled her. Then one day, after she had showered and wrapped herself in a towel, defendant followed, opened her towel, and fondled and digitally penetrated her. She testified that he did not say anything, but she did not push him away because she was afraid he might hurt her.

In our view, the evidence of defendant’s relationship to Victim 2, his position in the family, his prior forcible effort to stick his tongue into her mouth while kissing her, her vulnerability alone and wrapped in a towel, and her fear at that time that he would hurt her supports a finding beyond a reasonable doubt that defendant accomplished the digital penetration by fear of immediate unlawful bodily injury.

In sum, therefore, we reject defendant’s claim there was insufficient evidence of force, duress, or fear to support his convictions under section 288, subdivision (b)(1).

IV. INSTRUCTION ON FEAR

Defendant contends that the court misinstructed the jury on fear.

The court gave CALCRIM No. 1111, which, as given, told jurors that to convict defendant of lewd conduct by force, violence, duress, etc., the prosecution had to prove that “in committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else”; “[a]n act is accomplished by fear if the child is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.” (Italics added.)

Defendant acknowledges that the first part of the instruction correctly informs jurors that the child must fear immediate and unlawful bodily injury. However, he argues that the second part negates that requirement and allowed jurors to convict him based on a finding that she simply afraid of something, anything, and not just immediate bodily injury.

In analyzing a claim of inadequate instructions, we do not focus on a single instruction but instead review the entire charge to the jury in light of the evidence and the arguments of counsel to determine whether there is a “reasonable likelihood” that the jury understood the instructions in the manner proposed by the defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)

Defendant reads the explanation of “fear” in isolation from the main part of the instruction it was meant to supplement. However, the jury was instructed to consider the instructions together. (CALCRIM No. 200.) The main part of the instruction established the elements that the prosecution must prove and simply, directly, and unequivocally explained that the child must fear immediate and unlawful bodily injury. The purpose of challenged part of the instruction was not to re-explain what the basis of or reason for the child’s fear must be; rather it was to explain a different aspect of the fear element: the child’s fear must be actual and reasonable; and if it is actual but not reasonable, then the defendant must knowingly exploit that fear. Thus, when considered as a whole, the two parts of the court’s instruction properly and correctly informed jurors that the prosecution had to prove that the child actually and reasonably feared immediate bodily injury; or actually and unreasonably feared such injury, and defendant knew and exploited that fear.

Defendant argues that the prosecution exacerbated the instructional deficiency during opening argument by repeatedly claiming that the evidence established that the minors were afraid without saying that they were afraid of immediate bodily injury. However, we presume the prosecutor understood the elements of the offense and was simply using verbal shorthand rather than repeat the entire statutory phrase “fear of immediate and unlawful bodily injury on the victim or another person . . . .” (§ 288, subd. (b)(1).) First, the prosecutor elsewhere expressly referred to the instructional requirement that a minor be afraid of immediate bodily injury. And second, defense counsel never objected or sought to have the court clarify its instructions or some possible ambiguity the prosecutor’s argument might be causing concerning the fear element.

Last, defendant points out that the corresponding CALJIC instruction includes what he claims is missing from the CALCRIM instruction. CALJIC No. 10.42 not only explains that the act must be accomplished by, among other things, fear of immediate and unlawful bodily injury but also states that “the fear of immediate and unlawful bodily injury must be actual and reasonable under the circumstances, or if unreasonable, the perpetrator must have known of the victim’s fear and taken advantage of it.” (Italics added.)

However, that the CALJIC adds the italicized language does not suggest, let alone establish, that its absence from the CALCRIM instruction renders that instruction erroneous or even ambiguous.

In sum, we do not find a reasonable likelihood that the jurors thought they could convict defendant based on a finding that the victims had some generalized, unspecific fear of something or did convict him under that erroneous impression. Rather, the CALCRIM instruction correctly stated—and we find that the jurors would have understood—and did understand, that the prosecution had the burden to prove that the act was accomplished by, among other things, fear of immediate and unlawful bodily injury to the child or someone else and that that fear had to be either actual and reasonable or actual and unreasonable; and, if it was actual and unreasonable, then the prosecution had to also prove that defendant knew of the child’s fear and exploited it.

V. THE REASONABLE DOUBT INSTRUCTION

Defendant contends that CALCRIM No. 220, which explains the prosecution’s burden to prove guilt beyond a reasonable doubt is, constitutionally defective.

In pertinent part, the instructions states, “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the trial.” (CALCRIM No. 220, italics added.)

Defendant argues that the italicized language erroneously requires “the jury to ‘compare’ the evidence ‘received’ at trial. The jury could have only interpreted this as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense. This language impermissibly imposed a burden on appellant to prove his innocence.” In other words, by requiring jurors to compare the evidence presented by both sides, the instruction implied that the defense had the burden to present evidence and thereby impermissibly shifted part of the prosecution’s burden to the defense.

In People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1118 (Garelick), this court rejected the same argument, noting that similar constitutional challenges had also been rejected in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154 (Hernández Ríos); People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks); and People v. Flores (2007) 153 Cal.App.4th 1088 (Flores).

We noted that in Hernández Ríos, the court observed that CALJIC No. 2.90 concerning reasonable doubt contained similar language referring to the “ ‘comparison and consideration of all the evidence,’ ” and had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17. (Garelick, supra, 161 Cal.App.4th at p. 1118; Hernández Ríos, supra, 151 Cal.App.4th at p. 1157.) We also reiterated the observation in Hernández Ríos that “ ‘CALCRIM No. 220 uses verbs requiring the jury to “compare and consider all the evidence that was received throughout the entire trial.” CALJIC No. 2.90 uses nouns requiring “the entire comparison and consideration of all the evidence” by the jury.’ [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1118, quoting Hernández Ríos, supra, 151 Cal.App.4th at p. 1157, italics in Hernández Ríos.) We agreed with the Hernández Ríos court’s conclusion “that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury that its decision must be based on the evidence” and its rejection of “the defendant’s claim that the instruction shifted the burden of proof.” (Garelick, supra, 161 Cal.App.4th at p. 1118.)

We further noted that in Westbrooks, the court rejected the contention that CALCRIM No. 220 prohibited the jury from considering the lack of physical evidence implicating the defendant in determining his guilt. We explained that the Westbrooks court held that the “sentence in question ‘merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial.’ [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1118, quoting Westbrooks, supra, 151 Cal.App.4th at p. 1509.) We also agreed with the Westbrooks court that “it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining the accused’s guilt.” (Garelick, supra, 161 Cal.App.4th at p. 1118; Westbrooks, supra, 151 Cal.App.4th at p. 1510.)

Similarly, we noted that in Flores, the court said that “ ‘[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.’ [Citation.]” (Garelick, supra, 161 Cal.App.4th at p. 1118, quoting Flores, supra, 153 Cal.App.4th at p. 1093.)

Defendant does not convince us that our analysis in Garelick or the analyses in Hernández Ríos, Westbrook, and Flores are wrong. Accordingly, we again reject his claim.

VI. DISPOSITION

The judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.