Filed 6/3/21 P. v. Gomez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E071806
v. (Super.Ct.No. RIF1801173)
JUAN BERNARDO GOMEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed,
Judge. Affirmed.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta and Xavier Becerra, Attorney Generals, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and
Respondent.
1 A jury found defendant and appellant Juan Bernardo Gomez guilty of 19 counts
of rape. (Pen. Code, § 261, subd. (a)(2).)1 The jury found true the allegation that the
rapes were committed against more than one victim. (§ 667.61, subd. (e)(4).) As to
Counts 1 through 8, the jury found true the allegations that the rapes were committed
against a minor who was 14 years of age or older. (§ 264, subd. (c)(2).) The trial court
sentenced defendant to prison for eight consecutive indeterminate terms of 25 years to
life (Counts 1 through 8) and 11 consecutive indeterminate terms of 15 years to life
(Counts 10 through 20), which amounts to a sentence of 365 years to life.
Defendant raises five issues on appeal. First, defendant contends substantial
evidence does not support the finding of duress for Counts 10 through 20. Second,
defendant asserts the trial court erred by giving the generic testimony unanimity
instruction (CALCRIM No. 3501) for Counts 10 through 20. Third, defendant asserts
the trial court erred by refusing his pinpoint instruction concerning duress. Fourth,
defendant contends the trial court erred by not sua sponte instructing the jury on two
allegedly lesser included offenses. Fifth, defendant asks this court to review sealed
school records to determine if they contain any discoverable information. We affirm the
judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 FACTUAL AND PROCEDURAL HISTORY
A. COUNTS 10 THROUGH 20: SISTER
M.R. (Sister) and defendant are half-siblings; they share the same mother.
Defendant is approximately 10 years older than Sister. Sister lived on a ranch in
Mexico. In November 2003, a few days before Sister’s 20th birthday, she came to live
in the United States for the first time. Sister moved into defendant’s two-bedroom
apartment. Other people who lived in the apartment were defendant, defendant’s wife,
defendant’s children, and two of Sister’s older brothers (Javier and Huber). A younger
brother, Manuel, came to live in the apartment after Sister arrived. When Sister arrived
in America, all of Sister’s family in America lived with defendant.
Sister relied more on defendant than on her other relatives because defendant had
been in America longer than the others so she felt he could offer the best advice. Sister
began working with defendant making guitar amplifiers, and defendant taught her about
the job. Defendant was self-employed and paid Sister for her work.
A few months after Sister arrived, defendant showed Sister pornographic movies.
Sister did not want to watch the movies and found them disgusting. When Sister
watched the movies, defendant kissed and touched Sister. Defendant told Sister that it
was normal in America for siblings to engage in sexual activity with one another.
Defendant told Sister to “unblock [her] mind and to let [her]self go with the flow.”
Over a period of months, defendant repeatedly told Sister it was normal in America for
siblings to engage in sexual activity. Defendant “eventually manipulated [Sister] into
believing it was true,” although she remained uncomfortable with the idea.
3 Sister felt she had to continue living with defendant because otherwise she would
be alone, and defendant convinced her that she “wasn’t capable . . . to be out on [her]
own.” Sister believed defendant because she did not know how to drive and did not
know “how life works” in the United States. Defendant told Sister that if she went to
the police then she could be questioned about her citizenship and her lack of
identification. Sister feared being deported.
Over the course of three to six months, the contact between defendant and Sister
progressed to Sister orally copulating defendant and then to vaginal intercourse. The
first time Sister engaged in intercourse with defendant she did so because she was
scared. The intercourse occurred approximately once per week while living in the
apartment and typically occurred in the bathroom or defendant’s bedroom. The
intercourse typically occurred when defendant’s wife (Wife) dropped off or picked up
the children from school. Defendant instigated the intercourse by asking Sister “to help
him out.” The intercourse typically involved Sister orally copulating defendant
followed by vaginal intercourse, in which defendant was behind Sister. Sister remained
still during the intercourse. Sister believed defendant “wanted a person that he could
use whenever he felt like it.”
Defendant decided that Sister would move into his bedroom. Defendant was “a
very jealous person and he didn’t want [Sister] to be around any other people that were
male;” defendant wanted Sister to himself. Sister told defendant that she would rather
sleep in the living room, but defendant told her that she would “be better off in the
4 bedroom” due to the other male siblings in the house. Sister moved into defendant’s
bedroom.
Sister never wanted to engage in intercourse with defendant because he is her
half-brother. When Sister rejected defendant’s sexual advances, defendant would say,
“[W]hy not? Why don’t you want it? You have to help me.” Defendant would also be
in a bad mood and yell about the home being dirty. Defendant never used physical
force against Sister, never threatened to physically harm her, and never threatened to
punish her. Sister continued engaging in intercourse with defendant over the years
because she “didn’t have anywhere to go,” she “was afraid to get out into the world,”
and she “thought [she] had no way out.”
Defendant tracked Sister’s menstrual cycle. Nevertheless, on two occasions,
defendant impregnated Sister. Defendant bought pregnancy tests for Sister on those two
occasions. Sister was scared to go to a medical clinic for an exam because she had
never been to a clinic for an obstetric exam and defendant told her that people at the
clinic would ask her questions. Defendant gave Sister pills that terminated the two
pregnancies.
When Sister told defendant she wanted to leave to see their mother, defendant
told Sister that she would be unable to financially assist their mother if she left. Sister’s
brothers, Javier and Huber, moved into their own residence. Sister did not move with
them because she was scared. Sister was scared because she “didn’t know what to do.”
Sister did not tell her relatives about the rapes because she thought they would not
believe her or they would blame Sister for provoking defendant.
5 In 2009, defendant’s family, Sister, and Manuel moved to a five-bedroom house
in Corona. At the house in Corona, Sister shared a bedroom with N.G., who is
defendant’s daughter. Defendant’s guitar amplifier business moved into the garage.
Sister found a second job working in a bakery. Her typical shift at the bakery was eight
hours per day, six days per week. Sister worked at the bakery for approximately two
years.
While in the house, intercourse between defendant and Sister occurred
approximately once per month. Also while in the house, when Sister rejected
defendant’s sexual advances, defendant “would hit things,” such as a table, which
scared Sister. Sister said that defendant “wanted to control [her].” She explained, “[H]e
wanted to know where I was going, who I was with, and what I was doing, who I was
with. He wanted to know—find out whether I had a boyfriend. And when I would go
out, he would always get upset.”
After “a number of years,” Manuel moved out of the Corona house. Sister said
she could have moved-out of the Corona house, but she chose to continue living with
defendant because defendant needed help making the mortgage payments. Sister
explained that she had developed skills with the guitar amplifiers, so she felt she needed
to stay in order to aid defendant in his business, which in turn would help pay the bills.
Sister and defendant ceased engaging in intercourse in approximately 2014. Sister
moved out of defendant’s home in 2015. Sister never wanted to engage in sexual
activity with defendant. She always found it uncomfortable and disgusting.
6 Counts 10 through 20 pertained to Sister and each count concerned a different
calendar year from 2004 through 2014.
B. COUNTS 1 THROUGH 8: DAUGHTER
N.G. (Daughter) is defendant’s daughter. Daughter was born in August 1997.
Defendant was born in May 1972. Defendant told Daughter that intercourse is a form of
exercise. When Daughter was 14 years old, she and defendant went to a house that had
been sold in order to clean it for the new owners. While in the vacant house, defendant
told Daughter that she could lose weight by engaging in intercourse. Defendant told
Daughter “it was going to hurt, but I’ll try to be as gentle as possible.” Defendant
directed Daughter to remove her jeans and underwear, which she did. Defendant pulled
down his own jeans and underwear. Defendant engaged in vaginal intercourse with
Daughter. During the intercourse, Daughter was still and felt as if she could not move.
Defendant engaged in intercourse with Daughter three to four times per week
from the time she was 14 years old until she was 18 years old. Defendant told Daughter
to “think of the family,” which Daughter understood to mean that if she spoke to people
about their sexual intercourse then the family would be separated. The idea of the
family being separated scared Daughter. In November 2015, Daughter told Wife, who
is Daughter’s mother, that defendant had been sexually abusing her. Wife then told
Daughter’s oldest brother about the abuse, and they brought defendant into the room.
Defendant denied the allegations and then went back to working downstairs.
In January 2016, after Daughter and defendant engaged in intercourse and
defendant ejaculated inside of her, Daughter wiped her vaginal area with a piece of
7 toilet paper and then placed it in a plastic bag. Daughter stored the toilet paper, in the
bag, in a drawer in her room. In April 2016, Daughter told her aunt Irene about
defendant’s sexual abuse. Irene contacted the police. The toilet paper in the plastic bag
was given to the police. DNA testing matched the sperm on the toilet paper to
defendant.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support the finding of duress
in relation to Sister.
“In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The
appellate court presumes in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978,
1053.)
Rape is an act of sexual intercourse with a person who is not the perpetrator’s
spouse where the intercourse “is accomplished against a person’s will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the
person of another.” (§ 261, subd. (a)(2).) “As used in this section, ‘duress’ means a
direct or implied threat of force, violence, danger, or retribution sufficient to coerce a
8 reasonable person of ordinary susceptibilities to perform an act which otherwise would
not have been performed, or acquiesce in an act to which one otherwise would not have
submitted. The total circumstances, including the age of the victim, and his or her
relationship to the defendant, are factors to consider in appraising the existence of
duress.” (§ 261, subd. (b).)
“ ‘The very nature of duress is psychological coercion. 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. We also note that such a threat also represents a
defendant’s attempt to isolate the victim and increase or maintain her vulnerability to
his assaults.’ ” (People v. Veale (2008) 160 Cal.App.4th 40, 48.)
We begin with the rapes that occurred in the apartment. Sister testified that
defendant is “the type of person that works you psychologically” and that defendant
“wanted to control [Sister].” Defendant isolated Sister while they lived in the apartment
by having her sleep in his bedroom and work as his employee; the two often worked
with only one another. Defendant isolated Sister from any law enforcement assistance
by implying that she would risk deportation if she sought help, and Sister feared
deportation. Defendant isolated Sister from medical care by scaring her regarding
questions that would be asked of her at a clinic. Defendant further isolated Sister by
convincing her “that the outside world was different, that people outside were not good
people.” Ultimately, defendant convinced Sister that she was not capable of surviving
9 on her own. The first time Sister engaged in intercourse with defendant, she did so
because she was scared. Sister explained, “I was afraid of the world because I didn’t
have too many people around me. I—I’m by myself.”
The foregoing evidence reflects that defendant used psychological coercion to
isolate Sister from any form of help (e.g., police or medical) and then convince her that
she could not survive alone, which effectively meant, in Sister’s mind, that she had to
stay with defendant because otherwise she would be alone and suffer harm. Sister
would suffer harm because, as defendant told her, “people outside were not good
people,” which implies they will harm Sister. If Sister suffered harm, then no one
would assist her because Sister cannot get medical care or go to the police without some
further risk. When defendant’s various statements are aggregated, they establish that
defendant made an implied threat of danger.
The implied threat of danger must be sufficient to coerce a reasonable person of
ordinary susceptibilities. (§ 261, subd. (b).) A reasonable person who moves to a new
country, where she does not know anyone other than the family in the apartment in
which she is residing, would rely heavily upon that family. If the relative with the most
experience in the new country warned the reasonable person to not go to the police
because the reasonable person could face citizenship questions, it would be reasonable
for that person to fear contacting the police. If the relative with the most experience in
the new country then advised that there are bad people in the outside world, that could
also appear to be good advice because the reasonable person simply has no basis by
which to gauge if the information is wrong and would want to err on the side of caution
10 given the inability to seek police and medical assistance. Due to the limited ability to
contact people who could provide assistance, combined with the threat of bad people in
the outside world, a reasonable person could feel helpless and believe that submitting to
defendant’s demands is the only way to remain safe. In sum, there is substantial
evidence that defendant made an implied threat of danger sufficient to cause a
reasonable person to acquiesce.
We now examine the rapes that occurred in the house in Corona. By 2009, when
the family moved to Corona, Sister had been in America for more than five years and, at
some point in Corona, she obtained a second job at a bakery. However, Sister was still
scared and felt cornered. In Corona, defendant began hitting objects when Sister
refused his sexual advances, which scared Sister. Sister testified that defendant tried to
control her by asking where she was going and who she was meeting and becoming
upset when she left the house. When Sister had to have contact with the police for the
instant case, she remained hesitant to speak with the police. Thus, while Sister had a bit
more independence in Corona, defendant’s psychological manipulation of Sister
persisted. From the foregoing evidence, a trier of fact could reasonably find that
defendant’s implied threat of danger continued through the rapes in Corona.
We now examine whether the ongoing implied threat of danger would be
sufficient to coerce a reasonable person of ordinary susceptibilities. (§ 261, subd. (b).)
By 2009, the reasonable person would have been raped on a weekly basis for
approximately five years. Under those circumstances, a reasonable person could
rationally conclude that there was no one to help her, so, in light of the implied threat of
11 more danger in the outside world, acquiescing to defendant’s demands was the only
choice.
In sum, there is substantial evidence that defendant made an implied threat of
danger sufficient to cause a reasonable person to acquiesce. Accordingly, we conclude
substantial evidence supports the jury’s finding of duress.
For multiple reasons, defendant asserts it is improper to find duress based upon
defendant’s warnings regarding the police. The first reason given by defendant is that
defendant did not tell Sister to avoid the police—he merely warned her that they would
ask her questions. The record reflects the following exchange during the direct
examination of Sister:
“[Prosecutor]: Did he ever tell you that you could not tell the police?
“[Sister]: Not directly.
“[Prosecutor]: Okay. What do you mean by that?
“[Sister]: My legal status.
“[Prosecutor]: Could you explain that for us[?]
“[Sister]: That for us it was very difficult to go and show up at a police station. I
was afraid.”
“[Prosecutor]: What made you afraid to go to the police?
“[Sister]: I was afraid to be arrested for me to leave.”
“[Prosecutor]: What made you afraid—what made you think the police were
going to arrest you?
“[Sister]: Because we didn’t have IDs from here.”
12 The foregoing exchange indicates that the information defendant conveyed to
Sister about the police caused her to fear being deported if she contacted the police.
As the direct examination continued, the prosecutor asked, “Did [defendant] tell you
that if you went to the police, you would be arrested?” Sister responded, “He would say
the first thing they’re going to ask you for is an ID.” The prosecutor asked, “Did it
make you afraid when he would tell you that?” Sister replied, “Yes. I wanted to solve
the problem, but I didn’t know how to solve it.” The foregoing evidence confirms that
defendant’s statements to Sister about interacting with the police caused her to fear that
she would be deported if she had contact with the police.
On cross-examination of Sister the following exchange occurred:
“[Defense counsel]: When you came to the United States, was [defendant] the
only person that said, hey, you know what? Be careful around the police or something
may happen such as deportation, or were other people telling you that?
“[Sister]: He would say to me to be careful that here it wasn’t easy to drive and
life wasn’t easy here.
“[Defense counsel]: I’m not sure how that answered my question. It sounds like
you had a fear of going to the police department, right?
“[Sister]: My fear was to be arrested.
“[Defense counsel]: Okay. Was the fear that you would be escorted out of the
country?
“[Sister]: Yes.
13 “[Defense counsel]: And when [defendant] would tell you, you know, if you go
to the police, potentially something could happen, you could get arrested and you could
be deported, did you take that as him giving you, like, some advice, or did you take that
as a threat?
“[Sister]: I did not take it as a threat, but I was basing it on him because he had
been in this country for longer.”
On cross-examination, Sister again confirmed that defendant’s statements about
interacting with the police caused her to fear being deported if she contacted the police.
Accordingly, we are not persuaded that defendant advised Sister that she would be
merely questioned by police if she were to contact them.
The second reason given by defendant for why we should not rely upon evidence
of warnings about the police is that Sister’s documented or undocumented immigration
status in the country was not in evidence because the prosecutor sought to have that
evidence excluded. While Sister’s immigration status in America was not expressly
stated for the record, it was clearly implied, in that Sister repeatedly said she feared
being deported. Sister’s fear of deportation indicated that she lacked necessary
immigration documents.
A third reason given by defendant is that there is no timeline for when defendant
spoke to Sister about the police. Sister said that the first time she engaged in intercourse
with defendant, she did so because she was scared. Sister said she had “sex with
[defendant] in [the apartment] all of those times” because she “thought [she] had no way
out” and “felt cornered.” One can reasonably infer that part of the reason Sister felt
14 scared upon the initial sexual intercourse was that she felt trapped and unable to seek
assistance from the police due to defendant’s comments. So, while defendant is correct
that a timeline for defendant’s comments about the police was not expressly set forth in
the record, one can reasonably infer from Sister’s testimony regarding her fear that the
information about the police was communicated before she engaged in sexual
intercourse with defendant.
A fourth reason given by defendant is that none of defendant’s comments about
the police preceded a particular sexual incident, so if defendant made a threat regarding
the police then it was not made to coerce Sister into sexual activity. This is not a case in
which an explicit threat of danger was made immediately prior to any particular sexual
incident. Rather, defendant created an ongoing environment of fear by convincing
Sister that she could not survive on her own and then isolating her. Defendant
effectively made Sister completely dependent upon him so that she had to acquiesce to
his sexual demands. That type of control and isolation combined with an implied threat
of harm from “outside people” and Sister’s fear reflect psychological coercion that
amounts to duress. (See People v. Senior (1992) 3 Cal.App.4th 765, 775 [“duress
involves psychological coercion”]; see also People v. Cardenas (1994) 21 Cal.App.4th
927, 938-939 [duress exists when victims were dependent on the defendant due to the
control he exerted over them].) In sum, substantial evidence supports defendant’s rape
convictions involving Sister.
15 B. UNANIMITY INSTRUCTION
1. PROCEDURAL HISTORY
As explained ante, Counts 10 through 20 pertained to Sister and each count
concerned a different calendar year from 2004 through 2014. On a jury instruction
request form, which lists numerous different jury instructions, defendant’s trial counsel
asked the trial court to instruct the jury with CALCRIM No. 3501, which is the generic
testimony unanimity instruction. Defense counsel did not request CALCRIM No. 3500,
which is the “regular” unanimity instruction.
During a discussion of jury instructions in the trial court, the court said, “3501
was the unanimity instruction. [¶] [Defense counsel], were you okay with the language
in that one?” Defense counsel responded, “I’m just starting to read it right now, your
Honor. [¶] . . . [¶] . . . I’m fine with it.”
The trial court instructed the jury with CALCRIM No. 3501, which provides,
“The defendant is charged with rape of [Daughter] in Counts 1—8 sometime during the
period of August 18, 2011 through and including August 17, 2015. The defendant is
charged with rape of [Sister] in Counts 10—20 sometime during the period of January
1, 2004 through and including December 31, 2014. [¶] The People have presented
evidence of more than one act to prove that the defendant committed these offenses.
You must not find the defendant guilty unless: [¶] 1. You all agree that the People have
proved that the defendant committed at least one of these acts and you all agree on
which act he committed; [¶] OR [¶] 2. You all agree that the People have proved that
16 the defendant committed all the acts alleged to have occurred during this time period
and have proved that the defendant committed at least the number of offenses charged.”
2. ANALYSIS
Defendant contends the trial court erred by giving the jury the generic testimony
unanimity instruction (CALCRIM No. 3501) for Counts 10 through 20, involving
Sister, because that instruction should only be given when the victim is a child. The
People assert defendant invited the alleged error or forfeited the issue. We choose to
address the merits of the contention. (See generally People v. Souza (2012) 54 Cal.4th
90, 114 [invited error requires counsel to have expressed a tactical purpose for the
error].)
The use of a generic testimony unanimity instruction was approved in People v.
Jones (1990) 51 Cal.3d 294, 300-302, 305, (Jones) which concerned the molestation of
a child under 11 years old. The Supreme Court explained that “[c]hild molestation
cases frequently involve difficult, even paradoxical, proof problems. A young victim . .
. assertedly molested over a substantial period by a parent or other adult residing in his
home, may have no practical way of recollecting, reconstructing, distinguishing or
identifying by ‘specific incidents or dates’ all or even any such incidents. (Indeed, even
a mature victim might understandably be hard pressed to separate particular incidents of
repetitive molestations by time, place or circumstance.” (Id. at p. 305.)
In such cases, the Supreme Court approved the use of the unanimity instruction
for generic testimony. (Jones, supra, 51 Cal.3d 294 at p. 321.) The court reasoned that
such an instruction is permissible “because credibility is usually the ‘true issue’ in these
17 cases, ‘the jury either will believe the child’s testimony that the consistent, repetitive
pattern of acts occurred or disbelieve it. In either event, a defendant will have his
unanimous jury verdict [citation] and the prosecution will have proven beyond a
reasonable doubt that the defendant committed a specific act, for if the jury believes the
defendant committed all the acts it necessarily believes he committed each specific
act.’ ” (Id. at p. 322.)
People v. Matute (2002) 103 Cal.App.4th 1437, 1447, involved a victim who was
15 and 16 years old at the time of the offenses. Despite the difference in ages between
the victims in Jones and Matute, the Matute court relied upon Jones in rejecting the
defendant’s assertion that his due process rights were violated by the use of generic
victim testimony. The Matute court wrote, “Concededly, the present case involves
crimes committed against a victim when she was 15 and 16 years old, and thus does not
fall squarely within the factual parameters of the Jones case, which involved
molestation of children under the age of 14. However, we conclude that the reasoning
and conclusions reached by the court in Jones are fully applicable under the
circumstances present here. . . . The fact [that the victim] was 15 and 16 at the time of
the crimes involved here makes little difference with regard to her inability to
differentiate among the continual rapes perpetrated by defendant.” (Id. at p. 1447.)
We agree with the reasoning of Matute. Sister was raped for a 10-year period
starting when she was 20 years old. Defendant’s raping of Sister tended to occur in the
same locations: in the bathroom and defendant’s bedroom in the apartment, and in
Sister’s bedroom in Corona. The rapes also tended to involve the same activity—Sister
18 orally copulating defendant and then vaginal intercourse in which defendant was behind
Sister. The rapes typically occurred at the same time of day: when Wife dropped off or
picked up the children from school while living in the apartment, and at night or when
people were away from home in Corona. The rapes occurred weekly in the apartment
(2004 to 2009), and then monthly in Corona (2009 to 2014). The trial did not take place
until 2018.
Given the 10-year time span of the rapes, that the rapes occurred on a weekly
basis for approximately five years and then a monthly basis for another five years, that
the rapes typically occurred in the same locations inside the two homes, that the rapes
tended to involve the same activities, and that defendant resided in both homes with
Sister, it was understandable that Sister, even though she was an adult, had difficulty
differentiating the incidents by time, place, or circumstance. Given the evidence, the
trial court could properly give the jury the generic testimony unanimity instruction.
(See Jones, supra, 51 Cal.3d at p. 1445 [“even a mature victim might understandably be
hard pressed to separate particular incidents of repetitive molestations by time, place or
circumstance”].)
Defendant contends we should not extend Jones and Matute to rape cases
involving adults because a lack of consent has to be shown as to each incident of rape,
which is a fact specific analysis that cannot be performed with generic testimony.
Defendant asserts the jury could have reasonably disagreed regarding which statement
or act by defendant caused Sister’s duress. Defendant points to the different statements
and acts relied upon by the prosecutor—defendant’s statements about Sister’s inability
19 to financially support her mother, defendant’s statements about the difficulty Sister
would experience if she were alone, defendant being upset when Sister rejected his
sexual advances, and defendant’s statements about Sister being asked for identification
if she went to the police. Defendant asserts the jurors could have found duress based
upon different statements or acts, so this is not a case in which the jury simply had to
decide whether to accept or reject Sister’s version of the events.
“In a case in which the evidence indicates the jurors might disagree as to the
particular act defendant committed, the standard unanimity instruction should be given.
[Citation.] But when there is no reasonable likelihood of juror disagreement as to
particular acts, and the only question is whether or not the defendant in fact committed
all of them, the jury should be given a modified unanimity instruction which, in addition
to allowing a conviction if the jurors unanimously agree on specific acts, also allows a
conviction if the jury unanimously agrees the defendant committed all the acts described
by the victim.” (Jones, supra, 51 Cal.3d at pp. 321-322.)
As explained ante, Jones is a child molestation case, so, in that case, “the acts”
did not involve an issue of consent. Because the instant case is a rape case, it involves
not only acts pertaining to intercourse but also acts pertaining to consent. The
testimony about the statements and acts that caused Sister duress were nearly as generic
as the testimony about the sexual incidents. For example:
“[Defense counsel]: Now, the question is why did you have sex with your
brother in [the apartment] all of those times then?
“[Sister]: I thought I had no way out.”
20 “[Defense counsel]: So you had sex because there was no way out. Did you feel
trapped financially?
“[Sister]: If I would have felt financially trapped, I would have said so from the
beginning.
“[Defense counsel]: So I don’t understand why you felt no way out. Why did
you feel that way that you had no way out?
“[Sister]: What I want you to understand that ours is two completely different
cultures. I was raised in a completely different manner than what it is here. And what
I’m understanding by your questions is that you are saying that I did this for some type
of interest or gain, and I did not.
“[Defense counsel]: But you said you did it because you had no way out. So
was there something your brother did to you that gave you no way out?
“[Sister]: He would say that the outside world was different, that people outside
were not good people.
“[Defense counsel]: So correct me if I’m wrong. So you had sex with him
because he said the outside world was different?”
“[Sister]: I didn’t do it because of that.
“[Defense counsel]: I’m asking you why you did it.
“[Sister]: Because I felt . . . [¶] . . . [¶] . . . cornered.”
“[Defense counsel]: What did your brother [defendant] do you to you [sic] to
make you feel cornered?
21 “[Sister]: In reality he thought that I wasn’t capable to be able to be out on my
own.
“[Defense counsel]: Okay. So he had that thought that you weren’t capable to
be out on your own and somehow did that concern you?
“[Sister]: He made me think that I truly wasn’t capable.
“[Defense counsel]: Okay. So he convinced you to believe that you couldn’t
make it on your own in the outside world?
“[Sister]: He’s the type of person that works you psychologically and he makes
you feel that way.”
In the prosecutor’s and defense counsel’s examinations of Sister, they both
repeatedly tried to coax Sister into explaining why she felt trapped in defendant’s
homes. The trial attorneys asked a variety of questions about financial pressure,
concerns about her mother, fear of violence, and fear of deportation. None of those
questions resulted in testimony about a specific threat immediately prior to a rape.
Rather, the result was a more global or aggregated picture of Sister fearing essentially
everyone to the point where she was effectively helpless, e.g., Sister’s testimony, “I was
afraid of the world” and that she “felt cornered.” In her testimony, Sister was fairly
clear about at least one thing—that it was not a single threat immediately prior to
intercourse that caused her to acquiesce. Despite the attorneys’ repeated questions
about what specifically caused Sister to feel trapped, she consistently rejected the notion
that it was one specific threat and explained that defendant “works you
psychologically.”
22 Accordingly, this is not a case where jurors might disagree as to the particular
statement or act that caused Sister duress. Given the evidence in the case, the jury
would have either accepted or rejected Sister’s testimony that defendant psychologically
manipulated her into believing that she was helpless. Therefore, we are not persuaded
by defendant’s assertion that some jurors would have found duress based upon one
threat while other jurors may have found duress due to a different threat.
C. PINPOINT INSTRUCTION
Defendant requested the jury be given a pinpoint instruction which read, “Duress
does not mean a direct or implied threat of hardship.” The prosecutor objected arguing
that the jury would be instructed on the definition of duress, so it did not need to be
instructed on what is excluded from the definition of duress. The trial court asked
defense counsel, “Why do I need to tell them what duress is not?” Defense counsel
responded by saying that, in his closing argument to the jury, he would assert that
hardship is not part of duress and “if [you] don’t believe what I’m saying, send a note to
the judge.” The trial court said it was fine with that being part of defense counsel’s
argument, but it would not give the pinpoint instruction.
The trial court gave the jury the following instruction regarding duress: “Duress
means a direct or implied threat of force, violence, danger, or retribution that would
cause a reasonable person to do or submit to something that she would not do or submit
to otherwise. When deciding whether the act was accomplished by duress, consider all
23 the circumstances, including the woman’s age and her relationship to the defendant.”
(CALCRIM No. 1000.)
In closing argument, defense counsel argued, “Duress does not mean [a] direct or
implied threat of hardship. Read that. That is not included in the instruction. That is
the state of the law though. If you want to double, triple check that, send a note to the
judge and that’s the answer you’re going to get back I would imagine because that’s the
law, that duress does not mean direct or implied threat of hardship because it would be
included within the definition of duress.”
a. Denial of the Pinpoint Instruction
Defendant contends the trial court erred by not instructing the jury that hardship
is excluded from the definition of duress because the proposed instruction was accurate
and not duplicative.
“Pinpoint instructions ‘ “relate particular facts to a legal issue in the case or
‘pinpoint’ the crux of a defendant’s case.” ’ (People v. Jo (2017) 15 Cal.App.5th 1128,
1173-1174.) “The trial court may properly refuse an instruction highlighting a defense
theory if it is ‘duplicative or potentially confusing.’ [Citation.] ‘[W]here standard
instructions fully and adequately advise the jury upon a particular issue, a pinpoint
instruction on that point is properly refused.’ ” (Id. at p. 1174.) We apply the de novo
standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The trial court instructed the jury on the definition of duress, which includes a
list of what does qualify as duress, e.g., an implied threat of danger. By defining what
24 does qualify as duress, the trial court necessarily explained that anything not on that list
does not qualify as duress. A further definition of duress, which explicitly excludes
hardship would have been duplicative. (See People v. Jo, supra, 15 Cal.App.5th at p.
1174 [the trial court instructed jury on malice, so a pinpoint instruction on “ways of
disproving malice would have been confusing, duplicative”].) Accordingly, we
conclude the trial court did not err.
b. Due Process
Defendant contends the trial court’s refusal to give the proposed pinpoint
instruction violated his federal right of due process by denying him the right to have the
jury adequately instructed on his defense theory. Defendant notes that the trial court
instructed the jury that if there were a conflict between the instructions and counsel’s
argument, then the jury had to follow the instructions. Defendant asserts that because
the jury was not instructed on hardship being excluded from the definition of duress, it
would have disregarded defense counsel’s argument as conflicting with the duress
instruction.
There was not a conflict between the instruction and counsel’s argument. In the
duress instruction, there is a list what qualifies as duress: “a direct or implied threat of
force, violence, danger, or retribution.” A threat of hardship is not included in the list.
Therefore, when defense counsel argued that a threat of hardship does not qualify as
duress, there was no conflict with the instruction—the instruction reflected, by
omission, that hardship was not part of the definition of duress and counsel said that
hardship was not part of the definition of duress. As a result, the jury would have had
25 no reason to disregard that portion of defense counsel’s argument. Accordingly, we
conclude defendant’s right of due process was not violated.
D. LESSER INCLUDED OFFENSE INSTRUCTIONS
1. CONTENTION
Defendant contends the trial court erred by not sua sponte instructing the jury on
the lesser included offenses of (1) incest (§ 285) as to both victims, and (2) statutory
rape (§ 261.5) as to Daughter. Defendant asserts that under the accusatory pleading test,
when taking into account evidence from the preliminary hearing, incest (§ 285) and
statutory rape (§ 261.5) were lesser included offenses of rape by duress (§ 261, subd.
(a)(2)) because there was evidence that Sister and Daughter consented to intercourse
with defendant. Defendant’s argument relies upon an expanded view of the accusatory
pleading test, set forth in People v. Ortega (2015) 240 Cal.App.4th 956.
2. ACCUSATORY PLEADING TEST
“Under the accusatory pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the latter is necessarily
included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Our
Supreme Court has explained, “Consistent with the primary function of the accusatory
pleading test—to determine whether a defendant is entitled to instruction on a lesser
uncharged offense—we consider only the pleading for the greater offense.” (People v.
Montoya (2004) 33 Cal.4th 1031, 1036, fn. omitted.)
Nevertheless, in Ortega, the Sixth District Court of Appeal utilized testimony
from the defendant’s preliminary hearing when applying the accusatory pleading test.
26 (People v. Ortega, supra, 240 Cal.App.4th at p. 967.) The appellate court explained,
“The evidence adduced at the preliminary hearing must be considered in applying the
accusatory pleading test when the specific conduct supporting a holding order
establishes that the charged offense necessarily encompasses a lesser offense.” (Ibid.)
In People v. Munoz (2019) 31 Cal.App.5th 143, the Second District, Division
One, Court of Appeal declined to follow Ortega. In Munoz, the appellate court
remarked that Ortega failed to discuss “the many Supreme Court cases . . . stating that
the accusatory pleading test looks solely to the language of the pleading itself.
[Citation.] Nor did Ortega . . . account for the practical concerns . . . that an expanded
accusatory pleading test would lead to inconsistent application and additional burden on
the courts.” (Munoz, at p. 158.) The Munoz court concluded it was “bound by Supreme
Court authority [citation], which makes clear that we are not to look beyond the
language of the accusatory pleading itself in assessing lesser included offenses.” (Ibid.)
In People v. Macias (2018) 26 Cal.App.5th 957, 964, the First District, Division
One, Court of Appeal “decline[d] to adopt Ortega’s ‘expanded accusatory pleading test
because it is contrary to Montoya,” which is the Supreme Court case, ante, that reflects
“ ‘only the pleading for the greater offense’ ” is considered in the accusatory pleading
test. (Ibid.)
In People v. Alvarez (2019) 32 Cal.App.5th 781, 787, the Fourth District,
Division One, Court of Appeal declined to follow Ortega. The Alvarez Court cited
Montoya, Munoz, and Macias and concluded that it was “required to follow Supreme
27 Court precedent” so it would “ ‘not . . . look beyond the language of the accusatory
pleading itself in assessing lesser included offenses.’ ” (Alvarez, at p. 788.)
We agree that we are bound by the Supreme Court precedent of Montoya and are
therefore limited to “consider[ing] only the pleading for the greater offense” when
applying the accusatory pleading test. (People v. Montoya, supra, 33 Cal.4th at p. 1036,
fn. omitted; Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57
Cal.2d 450, 456.) Moreover, the rule limiting the test to the pleading is particularly
necessary in the context of a trial court’s sua sponte duty to instruct on lesser included
offenses. It is an untenable expectation for a judge presiding over a trial to always
independently search through a preliminary hearing transcript searching for lesser
included offenses. Accordingly, in applying the accusatory pleading test, we limit our
examination to the first amended information.
3. INCEST
The law prohibiting incest provides, “Persons being within the degrees of
consanguinity within which marriages are declared by law to be incestuous and void,
who intermarry with each other, or who being 14 years of age or older, commit
fornication or adultery with each other, are punishable by imprisonment in the state
prison.” (§ 285.)
In the first amended information, Counts 10 through 20 pertained to Sister. Each
Count pertained to a different year, from 2004 through 2014. Other than the different
years, the charging language in the 11 counts is nearly identical.
28 In Count 20, the People alleged, “For a further and separate cause of action,
being a different offense from but connected in its commission with the charge set forth
in counts 1 through 19 hereof, the District Attorney of the County of Riverside hereby
accuses [defendant] of a violation of Penal Code section 261, subdivision (a), subsection
(2), a felony, in that on or about 1/1/2014, through and including 12/31/2014, in the
County of Riverside, State of California, the defendant did unlawfully have and
accomplish an act of sexual intercourse with a person, to wit, JANE DOE (M.R.), not
his/her spouse, against said person’s will, by means of force, violence, duress, menace
and fear of immediate and unlawful bodily injury on said person and another.”
The charges pertaining to Sister do not reflect that defendant and Sister are
relatives. Therefore, under the accusatory pleading test, the facts alleged in the first
amended information do not include all of the elements of incest.
In the first amended information, Counts 1 through 8 pertain to Daughter. Two
offenses were alleged per year from August 2011 through August 2015. So, Counts 1
and 2 pertained to August 18, 2011 through August 17, 2012, and Counts 3 and 4
pertained to August 18, 2012 through August 17, 2013, and so forth. Other than the
different years, the charging language in the different Counts is nearly identical.
In Count 8, the People alleged, “For a further and separate cause of action, being
a different offense from but connected in its commission with the charge set forth in
counts 1 through 7 hereof, the District Attorney of the County of Riverside hereby
accuses [defendant] of a violation of Penal Code section 261, subdivision (a), subsection
(2), a felony, in that on or about 8/18/2014, through and including 8/17/2015, in the
29 County of Riverside, State of California, the defendant did unlawfully have and
accomplish an act of sexual intercourse with a person, to wit, JANE DOE (N.G.), not
his/her spouse, against said person’s will, by means of force, violence, duress, menace
and fear of immediate and unlawful bodily injury on said person and another. [¶] It is
further alleged that the above offense was committed upon a minor who at the time of
the offense, was 14 years of age and older within the meaning of Penal Code section
264(c)(2).”
The charges pertaining to Daughter do not reflect that defendant and Daughter
are relatives. Therefore, under the accusatory pleading test, the facts alleged in the first
amended information do not include all of the elements of incest. Therefore, the trial
court did not err by failing to sua sponte instruct the jury on the offense of incest as to
either victim.
4. STATUTORY RAPE
The law pertaining to statutory rape provides, “Unlawful sexual intercourse is an
act of sexual intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a
person under the age of 18 years and an “adult” is a person who is at least 18 years of
age.” (§ 261.5, subd. (a).)
In People v. Wolcott (1983) 34 Cal.3d 92, our Supreme Court held that
enhancement allegations cannot be considered when applying the accusatory pleading
test. The court explained that, because a trier of fact must make a finding of guilt prior
to making a finding as to any enhancements, the “orderly, step-by-step procedure would
30 become muddled if evidence of the enhancement must be considered in determining
guilt of a lesser offense.” (Id. at p. 101, fn. omitted.) Alternative sentencing scheme
allegations are also not considered when applying the accusatory pleading test. (People
v. Woods (2015) 241 Cal.App.4th 461, 480, 482.)
Section 264, subdivision (c)(2), provides “Any person who commits rape . . .
upon a minor who is 14 years of age or older shall be punished by imprisonment in the
state prison for 7, 9, or 11 years.” Thus, the subsection sets forth an alternate sentencing
scheme or alternate penalty provision when a rape victim is a minor who is 14 years of
age or older. (People v. Jones (2009) 47 Cal.4th 566, 576 [An alternate sentencing
scheme is distinct from an enhancement “ ‘because it does not add an additional term of
imprisonment to the base term; instead, it provides for an alternate sentence”].)
Therefore, in terms of the accusatory pleading test, when examining the
allegations in the first amended information, we cannot consider the section 264,
subdivision (c)(2), alternate sentencing scheme allegation that Daughter was 14 years of
age or older. Within the allegations of the substantive rape charges pertaining to
Daughter, there is no allegation that Daughter was a minor at the time of the rapes,
which means the facts alleged do not set forth all the elements of statutory rape. As a
result, the trial court did not err by not sua sponte instructing the jury on statutory rape.
5. FEDERAL DUE PROCESS
Defendant contends the trial court’s lack of sua sponte instructions on incest and
statutory rape violated his federal rights of due process, in particular the rights to
present a defense and fundamental fairness. Defendant asserts that a main theory of his
31 defense was consent, so instructions on statutory rape and incest would have been
consistent with his defense. Defendant goes on to discuss substantial evidence and his
theory that the victims consented to intercourse with defendant.2
“Whether a trial court commits error by omitting an instruction on a lesser
included offense depends not only on whether the evidence supports the possible
commission of an alternative crime, but whether that alternative crime constitutes a
‘lesser included offense.’ ” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.) Neither
incest nor statutory rape are lesser included offenses of rape. As a result, the trial court
did not have a sua sponte duty to instruct on either incest or statutory rape. Therefore,
we conclude defendant’s federal constitutional rights were not violated.
E. SCHOOL RECORDS
Defendant’s trial counsel subpoenaed Daughter’s school records. The prosecutor
opposed the release of the school records to defense counsel. Defense counsel agreed to
have the trial court review the school records in camera. The trial court found no
discoverable information and sealed the school records.
Defendant requests this court review the trial court’s finding that there is no
discoverable information in Daughter’s school records. The People assert the records
are irrelevant, but do not oppose defendant’s request. We have independently reviewed
Daughter’s school records. The trial court did not abuse its discretion in concluding
2 There is an “instructional distinction between defenses and lesser included offenses.” (People v. Breverman (1998) 19 Cal.4th 142, 157.) For the sake of judicial efficiency, we will not delve into the distinction in this case.
32 there was not discoverable material in the records. (See People v. Avila (2006) 38
Cal.4th 491, 607 [independent review and abuse of discretion standard.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
RAPHAEL J.