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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.