People v. Torres
This text of People v. Torres (People v. Torres) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Filed 12/18/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081367
v. (Super.Ct.No. INF2101817)
ELOY JAIME TORRES, SR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and
Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant of three counts of forcible rape and three counts of
incest (among other offenses) against his biological daughter, who was 16 and 17 years
old at the time. He argues the incest charges should be reversed because the prosecution
1 did not present genetic testing evidence or evidence he was married to and cohabiting
with the victim’s mother when the victim was conceived. He argues such evidence is
necessary to establish he was the victim’s biological father, making both the jury
instructions and the evidence insufficient. We reject his arguments because these kinds of
evidence, while potentially sufficient to establish biological parenthood, are not necessary
to do so, and the prosecution presented other kinds of evidence sufficient to establish
appellant was the victim’s biological father.
Appellant also appeals the sufficiency of the evidence he committed forcible rape
rather than statutory rape. He argues the prosecution did not establish the victim’s lack of
consent or that he accomplished sexual intercourse by force or duress. We conclude there
was ample evidence the teenage victim did not consent to any of the three incidents of
sexual intercourse. We affirm the conviction on the first incident because there was
sufficient evidence to establish appellant used force to accomplish the act. We affirm the
convictions on the two subsequent incidents because the evidence of the appellant’s
elaborate grooming scheme, which included providing addictive narcotics, isolating the
victim, and threatening her with the loss of a desired parent/child relationship, was
sufficient to establish a direct or implied threat that would coerce a reasonable teenager of
ordinary susceptibilities to submit to sexual intercourse.
We also reject appellant’s argument that his sentence of 22 years 8 months
followed by a life sentence without possibility of parole is cruel and unusual. We
therefore affirm the judgment.
2 I
FACTS
Defendant and appellant, Eloy Jaime Torres, Sr., was tried for various crimes
related to several incidents of sexual activity with his teenage daughter, Jane Doe, which
resulted in her pregnancy and an abortion.1
Torres’s parents, Aurora and Arturo, adopted Doe when she was three months old
because they believed Torres and Doe’s biological mother were not responsible enough
to raise a baby. Torres and Doe’s biological mother had lost other children in
dependency.
After the adoption, Torres and Doe’s biological mother moved to Oklahoma,
where they lived for over a decade and had other children. During that period, Doe had
little contact with Torres or her biological mother. Eventually they returned to California,
where they lived at Aurora and Arturo’s house for about two years before moving into an
apartment.
When Doe was about 14 or 15 years old, Torres and Doe’s biological mother
divorced, and Torres moved in with his parents and Doe at their home in Indio. Torres
initially slept in the living room, but later moved to the back yard. At first, Doe did not
want any sort of relationship with Torres.
During her sophomore year of high school, Doe was suspended for drug
possession. Aurora told Torres about Doe’s problem and urged him to speak to her.
1 The trial court granted a motion to keep Jane Doe’s identity confidential.
3 Torres took the opportunity, but not in the manner Aurora intended. He asked Doe about
the suspension and asked if she smoked marijuana. Doe said she did, and Torres offered
her a pipe. Doe thought the pipe looked strange but smoked it with Torres. She later
discovered the pipe contained methamphetamine, not marijuana.
Over the next several months, Torres and Doe spent time together, watching
movies, listening to music, and taking bike rides. Torres encouraged Doe to visit him in
the evenings, while her grandparents (and adoptive parents) were asleep. After moving to
the back yard, Torres slept in a sleeping bag on a massage bed. Later, he moved into a
tent.
While using the massage bed, Torres told Doe she should lay close to him so
Aurora and Arturo would think he was alone if they looked into the yard. Eventually, he
convinced Doe to climb inside his sleeping bag with him. At first, they would lie together
as Torres smoked his pipe and blew methamphetamine smoke into Doe’s mouth from
about an inch away, a practice called “shotgunning.” Eventually, Torres convinced Doe
to lie in the sleeping bag facing him in a hugging position. Doe said she felt
uncomfortable because she was so physically close to Torres and didn’t like hugging him.
Several times she refused, and appellant would get frustrated and withdraw, or as Doe
described it, “throw a little silent fit.” Once, Torres put his hand on Doe’s buttocks. Doe
said it felt “weird” and uncomfortable and that she did not know how to react.
Early on, Doe told Torres she liked girls and was not interested in men. She told
him, “I’m lesbian” and mentioned she had a girlfriend, although she confided she had not
4 yet had a sexual relationship with anyone. Torres urged Doe to “giv[e] being straight a
chance,” told her she may want children, and tried to convince her to wear more feminine
clothing. Doe insisted her sexual orientation was fixed and told Torres “I don’t like
[men’s] penises,” and insisted “I hate how they look. They look like aliens. They just
disgust[] me. I wouldn’t want to have that inside me.” Doe testified she twice told Torres
she would never want a penis inside her. He told her she didn’t know what she wanted.
Despite these protests, Torres continued introducing sexual topics and touching
into their relationship. He would joke with Doe about sex and show her pornography of
“mature women” on his tablet or his phone. Doe approximated that five out of seven
nights a week they would get into the sleeping bag at around 11:00 p.m., smoke drugs,
and Torres would touch her buttocks. This pattern continued for about five to six weeks.
Eventually, Torres began trying to touch her vaginal area too. Doe said, “I felt
disgusted because it was my dad. I didn’t want it, and it didn’t feel right.” Torres would
ask Doe if he could touch her, and she would respond, “No, I don’t want to do it.” He
would then ask why not and keep “begging and begging.” Sometimes he would pressure
her to let him touch her “just real quick.” Doe said she felt annoyance and pressure and
would eventually relent, and Torres would “do what he wanted to do” while she laid
there. This went on for about three weeks. Doe said she did not know who to talk to, and
questioned whether her friends would help her if she told them.
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 12/18/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081367
v. (Super.Ct.No. INF2101817)
ELOY JAIME TORRES, SR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and
Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant of three counts of forcible rape and three counts of
incest (among other offenses) against his biological daughter, who was 16 and 17 years
old at the time. He argues the incest charges should be reversed because the prosecution
1 did not present genetic testing evidence or evidence he was married to and cohabiting
with the victim’s mother when the victim was conceived. He argues such evidence is
necessary to establish he was the victim’s biological father, making both the jury
instructions and the evidence insufficient. We reject his arguments because these kinds of
evidence, while potentially sufficient to establish biological parenthood, are not necessary
to do so, and the prosecution presented other kinds of evidence sufficient to establish
appellant was the victim’s biological father.
Appellant also appeals the sufficiency of the evidence he committed forcible rape
rather than statutory rape. He argues the prosecution did not establish the victim’s lack of
consent or that he accomplished sexual intercourse by force or duress. We conclude there
was ample evidence the teenage victim did not consent to any of the three incidents of
sexual intercourse. We affirm the conviction on the first incident because there was
sufficient evidence to establish appellant used force to accomplish the act. We affirm the
convictions on the two subsequent incidents because the evidence of the appellant’s
elaborate grooming scheme, which included providing addictive narcotics, isolating the
victim, and threatening her with the loss of a desired parent/child relationship, was
sufficient to establish a direct or implied threat that would coerce a reasonable teenager of
ordinary susceptibilities to submit to sexual intercourse.
We also reject appellant’s argument that his sentence of 22 years 8 months
followed by a life sentence without possibility of parole is cruel and unusual. We
therefore affirm the judgment.
2 I
FACTS
Defendant and appellant, Eloy Jaime Torres, Sr., was tried for various crimes
related to several incidents of sexual activity with his teenage daughter, Jane Doe, which
resulted in her pregnancy and an abortion.1
Torres’s parents, Aurora and Arturo, adopted Doe when she was three months old
because they believed Torres and Doe’s biological mother were not responsible enough
to raise a baby. Torres and Doe’s biological mother had lost other children in
dependency.
After the adoption, Torres and Doe’s biological mother moved to Oklahoma,
where they lived for over a decade and had other children. During that period, Doe had
little contact with Torres or her biological mother. Eventually they returned to California,
where they lived at Aurora and Arturo’s house for about two years before moving into an
apartment.
When Doe was about 14 or 15 years old, Torres and Doe’s biological mother
divorced, and Torres moved in with his parents and Doe at their home in Indio. Torres
initially slept in the living room, but later moved to the back yard. At first, Doe did not
want any sort of relationship with Torres.
During her sophomore year of high school, Doe was suspended for drug
possession. Aurora told Torres about Doe’s problem and urged him to speak to her.
1 The trial court granted a motion to keep Jane Doe’s identity confidential.
3 Torres took the opportunity, but not in the manner Aurora intended. He asked Doe about
the suspension and asked if she smoked marijuana. Doe said she did, and Torres offered
her a pipe. Doe thought the pipe looked strange but smoked it with Torres. She later
discovered the pipe contained methamphetamine, not marijuana.
Over the next several months, Torres and Doe spent time together, watching
movies, listening to music, and taking bike rides. Torres encouraged Doe to visit him in
the evenings, while her grandparents (and adoptive parents) were asleep. After moving to
the back yard, Torres slept in a sleeping bag on a massage bed. Later, he moved into a
tent.
While using the massage bed, Torres told Doe she should lay close to him so
Aurora and Arturo would think he was alone if they looked into the yard. Eventually, he
convinced Doe to climb inside his sleeping bag with him. At first, they would lie together
as Torres smoked his pipe and blew methamphetamine smoke into Doe’s mouth from
about an inch away, a practice called “shotgunning.” Eventually, Torres convinced Doe
to lie in the sleeping bag facing him in a hugging position. Doe said she felt
uncomfortable because she was so physically close to Torres and didn’t like hugging him.
Several times she refused, and appellant would get frustrated and withdraw, or as Doe
described it, “throw a little silent fit.” Once, Torres put his hand on Doe’s buttocks. Doe
said it felt “weird” and uncomfortable and that she did not know how to react.
Early on, Doe told Torres she liked girls and was not interested in men. She told
him, “I’m lesbian” and mentioned she had a girlfriend, although she confided she had not
4 yet had a sexual relationship with anyone. Torres urged Doe to “giv[e] being straight a
chance,” told her she may want children, and tried to convince her to wear more feminine
clothing. Doe insisted her sexual orientation was fixed and told Torres “I don’t like
[men’s] penises,” and insisted “I hate how they look. They look like aliens. They just
disgust[] me. I wouldn’t want to have that inside me.” Doe testified she twice told Torres
she would never want a penis inside her. He told her she didn’t know what she wanted.
Despite these protests, Torres continued introducing sexual topics and touching
into their relationship. He would joke with Doe about sex and show her pornography of
“mature women” on his tablet or his phone. Doe approximated that five out of seven
nights a week they would get into the sleeping bag at around 11:00 p.m., smoke drugs,
and Torres would touch her buttocks. This pattern continued for about five to six weeks.
Eventually, Torres began trying to touch her vaginal area too. Doe said, “I felt
disgusted because it was my dad. I didn’t want it, and it didn’t feel right.” Torres would
ask Doe if he could touch her, and she would respond, “No, I don’t want to do it.” He
would then ask why not and keep “begging and begging.” Sometimes he would pressure
her to let him touch her “just real quick.” Doe said she felt annoyance and pressure and
would eventually relent, and Torres would “do what he wanted to do” while she laid
there. This went on for about three weeks. Doe said she did not know who to talk to, and
questioned whether her friends would help her if she told them. Torres told Doe that if
anyone found out, he would be killed in jail. The thought of something bad happening to
her father scared her.
5 It was at this point that Torres moved from the massage bed into a tent he erected
in the back yard. Doe began tying her bottom clothing tight to prevent Torres from
touching her buttocks. Torres would ask, “Why is this so tight?” and loosen the clothing.
Doe said she responded, “Why do you think it’s tight? It’s because I don’t want you in
my pants.” Torres responded, “You don’t know. You don’t know what you want. You
haven’t done anything with anybody.” Torres started asking Doe to dress in skirts or
dresses, rather than her usual baggy sweats. He would give her skirts, dresses, and thong
underwear and tell her to put them on. He also suggested she might feel more feminine if
she painted her fingernails. She declined, but let him paint her toenails because she wore
closed toed shoes and the nail polish would not show.
When Torres painted her toenails, he would have Doe lie back and he would open
her legs with his hand. The first time he did this, she felt uncomfortable and closed them.
Torres asked her to leave her legs open, saying “I want to see” as he looked at her vaginal
area. This time, and other times, she was wearing a skirt and thong underwear at Torres’s
request. She tried closing her legs at least twice but appellant kept pushing them open.
This happened several times, including at least twice when Doe was not wearing
underwear. Doe felt like she had no choice because Torres would get frustrated and ask
her to leave her legs open, and then “kind of beg” until she complied.
Eventually, Torres wanted to have sex with Doe, who was then 16 years old.
Torres told Doe he was frustrated with his partner, saying she would not satisfy him
sexually and would just “lay there.” The first time the two had sexual intercourse, they
6 were engaged in the toenail painting ritual, Doe was wearing a skirt and thong, and
Torres had given Doe methamphetamine. Torres asked Doe for sex and she refused. He
pressured her, told her no one would know, and she tried to put him off by saying she did
not want to get pregnant and penises look disgusting. He told her she did not know what
she wanted and reassured her “once you feel it, it will feel good.” He kept asking,
commented that he was sexually frustrated, then watched a movie for a while, before
trying to touch her vagina again and asking “Can I do it?” Doe said, “No, no.”
Torres became frustrated for a while but then kept pressuring Doe until she said,
“Okay. Fine, go ahead,” and, “Just do what you have to do.” She told him he would have
to wear a condom because she did not want to get pregnant. On cross-examination, she
testified that the first incident proceeded in two stages. First Torres asked to put his penis
on her clitoris, and then he escalated by asking to put his penis inside her vagina. Doe
said she let him proceed because she knew he would not stop asking and if he did not get
his way he would withdraw. She said she was not afraid he would get angry, but said she
wanted to avoid his sulking. She also explained allowing sexual contact was the only way
to get him to give her attention.
Torres put on a condom, moved Doe’s thong to the side and placed his penis “on
top of” her vagina and a few minutes later penetrated her vagina with his penis as she lay
on her back on the padding he used as a bed. Doe said she was tense, felt pain, and
wanted to cry when he penetrated her. She described the pain as feeling as if “something
was ripping” and said she reacted by exclaiming and scrunching her face. Torres became
7 frustrated because Doe was so tense and told her to relax. She responded, “How can I not
be tense? It hurts. And I don’t want it.” Torres responded, “ You’re tensing up. You’re
just thinking too much about it. You’ll be fine.” For a while, Doe tried to get Torres off
her, pushing on his thighs with her hands. She said Torres adjusted, “put more force into
it,” and continued. She said she was too weak to push Torres off, and she eventually
stopped trying. Doe said Torres then “continued until he finished.” Afterward, she
changed her clothes and left because she did not like how she felt. When they saw each
other next, they acted like it had not happened.
The second time they had sexual intercourse, Doe testified she was under the
influence of marijuana as well as methamphetamine Torres had supplied. They re-enacted
the toenail painting ritual while Doe wore the feminine clothing Torres requested and
provided. Torres put his hand on her thighs and moved her legs open, and Doe tried to
close them. Torres opened her legs again, and when she tried to close them again, he
questioned why and grew silent. Doe re-enacted his response by turning her head,
sighing, and shrugging her shoulders. She said his reaction “made [her] feel upset
because [she] didn’t want him to feel that way.” After his “silent fit,” Torres again
requested sex. Doe said she did not want to have sex because the last time hurt, and she
was worried about becoming pregnant. Torres told Doe intercourse would feel better the
more often they did it. Doe eventually said “okay, fine” but insisted Torres had to wear a
condom.
8 Doe said she was worried Torres would grow angry if she refused. She said she
was afraid when Torres would yell at her, which he did when he was trying to discipline
her as a father. She said he would get aggressive and those incidents sometimes played a
factor in her decision to allow sexual touching or intercourse. She recalled an incident,
after the first time they had intercourse, when he got mad at her for sneaking out with her
friends. When she returned, she appeared to ignore Torres and her adoptive parents while
they were lecturing her. Torres got upset, grabbed her phone and slammed it on a table,
breaking it in half. He then threw the phone into the pool. She denied his anger was a
concern during the first incident of sexual intercourse, but said it was a concern “the
second and third time.”2 She explained that she did not know appellant well and did not
know if he would “completely lose it” if she refused him.
Torres put on a condom and vaginally penetrated Doe from behind while she was
on her knees and forearms on the padding he used as a bed. Doe said Torres put her in
that position. During the sex, Doe looked down and saw the condom had come off. She
immediately pushed herself away. Torres claimed the condom had slipped off, put it back
on, and asked if they could continue. Doe objected because she felt wet and said she
thought he had secreted pre-ejaculate. Torres tried to persuade Doe it would be all right
and the wetness was her own lubricant, but Doe said she knew she was not aroused. Doe
gave conflicting testimony about whether they continued having intercourse that time. At
2 Doe also testified about a near confrontation between Torres and one of her male friends involving a knife, but that occurred in August 2021 and would not have given her a basis for fear when they engaged in sexual intercourse earlier.
9 first, she said he put the condom back on and continued, but she later concluded she was
confusing that incident with a later incident, and they did not continue having intercourse
that day. Instead, she said, “I got upset, and I left.”
Doe said she believed she was pregnant after the second incident, and she missed a
period in April or May 2021. Doe told Torres when she missed her period, and he told
her they could get a test and research abortion options. A pregnancy test came back
positive. Doe said she had not had sexual intercourse with anyone else, and it was
impossible that anyone else was the father.
Despite the pregnancy, Torres wanted to continue having sex with Doe. Doe
testified they had sexual intercourse during the pregnancy at least eight more times,
though she told a forensic interviewer during the investigation that it happened only three
times. She said she understated the frequency because she was afraid of what would
happen to Torres.
Doe said Torres gave her methamphetamine before, during, and after sex. After
the first two times, Doe said she did not always say no expressly, “but it was the same
type of situation where he would get frustrated. He threw a whole fit. And then
eventually, he would ask me again until I would say yes, or I would give in, I mean.” She
clarified that “I didn’t say yes. I would be, ‘Okay. Go, go ahead. Fine.’ ” Doe testified
that she did not like the penetrative sex but did like when Torres performed oral sex on
her. She explained “I did like it, but it was just because . . . what do you expect? You’re
being touched down there. But I didn’t like, necessarily want it” and never asked for it.
10 She testified about another occasion, when Doe’s grandparents came home
unexpectedly and interrupted a sexual encounter by asking Doe to help bring items into
the house. Doe said she had been refusing to have sex with Torres, but he was persistent
and eventually offered to pay her $95. She said she acquiesced because he already did it
so much and “at this point, it doesn’t matter.” However, he paid her only $40 because he
“didn’t finish” due to the interruption. Instead, he made her return later. Doe used the
money to buy marijuana. She used methamphetamine only when Torres gave it to her.
When she was on methamphetamine, she said she “couldn’t really think straight” and she
didn’t “really care at that point.”
Doe kept returning to the tent because Torres would yell for her until she came.
She eventually stopped expressly refusing sex because it was the only way Torres would
spend time with her. Doe would ask, “Why can’t we just have a regular day where you
don’t have to do this stuff?” But she said Torres would become aggressive. When Doe
wanted to see her girlfriend, he would say the girlfriend was probably cheating on her and
she should also cheat. Doe said she felt pressured to keep having sex and to “keep up
with the lie.” She was afraid someone would kill Torres in prison if she told anyone what
happened.
Doe developed serious morning sickness, and Aurora took her to the doctor
several times, though no one could figure out the cause. Eventually, Aurora saw Doe’s
stomach had expanded and confronted her over the pregnancy. At first, Doe refused to
say who the father was because she was afraid she would be angry. When Aurora asked
11 Doe if Torres was the father, Doe became very quiet. Doe hugged Aurora, and Aurora
started screaming. She asked again whether Torres was the father, and Doe admitted he
was. Aurora screamed, “Oh, no, not my son.” Arturo then confronted Torres, but he
denied being the father.
Doe and Aurora filed a police report in October 2021. Doe went to a children’s
health center for an examination, then to Loma Linda Medical Center. An obstetrician at
Loma Linda University Hospital performed an ultrasound that revealed Doe’s fetus had
multiple severe anomalies incompatible with life. Close genetic relationship between
biological parents increases the risk of such genetic anomalies. After an ethics
consultation, doctors recommended terminating the pregnancy because it was likely the
fetus would not survive after childbirth. Doe underwent a medical procedure under
general anesthesia to terminate the pregnancy. Doe reported numbness in one of her
lower extremities about two weeks after the procedure and experienced stabbing pain and
was unable to walk for around six weeks afterward.
A registered nurse assisted in the medical procedure and collected blood samples
from Doe and tissue samples from the fetus. A DNA analyst with the California
Department of Justice received the samples from the fetus, a DNA sample from Doe, and
a DNA sample from Torres. As the analyst explained, “Once you’ve developed a DNA
profile for an individual, you can see two alleles, which are just genetic variants that you
would get from either your mother or your father. And you have two at every location
that we look at when we develop a DNA profile.” Because they had DNA profiles from
12 the mother and the fetus, the analyst was “able to then see which alleles have to have
come from the father.” Torres’s DNA profile did not exclude him as the father.
The analyst then “calculate[d] what the probability of seeing this DNA profile
from the [fetus] would be if the suspect is the father versus what the probability of seeing
that evidence would be if another random, unrelated individual was the father.” The
“likelihood ratio” based on allele frequencies in the Hispanic population showed it would
be 2.6 billion times more likely to see the fetus’s DNA profile if Torres was the father
compared to an unrelated, randomly chosen person of Hispanic descent.3 The analyst
interpreted that ratio as providing “very strong support” that Torres was the father of the
fetus.
On August 29, 2022, the Riverside County District Attorney’s Office filed an
information charging Torres with three counts of aggravated rape by force on a minor
aged 14 years or older. (Pen. Code, §§ 261, subd. (a)(2) & 264, subd. (c)(2), unlabeled
statutory citations refer to this code.) According to the information the first incident
3 A likelihood ratio is a measure of the frequency of the alleles in a population and should not be interpreted as an expression of the likelihood that Torres was or was not the father. (McDaniel v. Brown (2010) 558 U.S. 120, 128 [“[I]f a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor’s fallacy”]; see also Norrgard, K. (2008) Forensics, DNA Fingerprinting, and CODIS Nature Education 1(1):35 [“It is important to understand that this number is the probability of seeing this DNA profile if the crime scene evidence did not come from the suspect but from some other person. To regard the number as the probability that the suspect is the source of the crime scene evidence is to commit the ‘prosecutor’s fallacy’”].)
13 (count 3) occurred between December 2020 and April 30, 2021, the second (count 1)
occurred between May 1, 2021 and June 30, 2021, and the third (count 4) occurred
between July 1, 2021 and October 17, 2021. The information alleged Torres personally
inflicted great bodily injury on Doe (by impregnating her) while committing the second
rape offense. (§§ 12022.8, 667.61, subd. (d)(6).)
The information also charged Torres with additional offenses related to the same
three acts of sexual intercourse. It alleged he committed three counts of incest (§ 285).
Count 6 corresponded to the chronologically first rape offense (count 3), count 7
corresponded to the second rape offense (count 1), and count 8 corresponded to the third
rape offense (count 4). The information also charged one count of sexual intercourse with
a minor more than three years younger (§ 261.5, subd. (c)) and alleged Torres personally
inflicted great bodily injury in the commission of that offense (§§ 12022.7, subd. (a),
1192.7, subd. (c)(8)). This statutory rape offense (count 2) corresponds to the second rape
(count 1) and incest (count 7) offense. The information also charged Torres with one
count of showing harmful or obscene matter to a minor (§ 288.2, subd. (a)(2), count 5)
and one count of furnishing cannabis to a minor aged 14 or older (Health & Saf. Code,
§ 11361, subd. (b), count 9).
The information alleged as aggravating factors that the victim was particularly
vulnerable under California Rules of Court, rule 4.421(a)(3), that Torres was charged
with more than one crime under California Rules of Court, rule 4.421(a)(7), that Torres
took advantage of a position of trust and confidence under California Rules of Court, rule
14 4.421(a)(11), and that he had multiple prior convictions of numerous and increasing
seriousness under California Rules of Court, rule 4.421(b)(2).
On March 3, 2023, a jury convicted Torres of all counts and found true all the
allegations against him. On May 19, 2023, in bifurcated proceedings, Torres admitted
three of the aggravating factors, and the prosecution dismissed the multiple prior
conviction aggravating factor.
The trial court sentenced Torres to a term of life without the possibility of parole
for rape of a minor over the age of 14 where the defendant inflicted great bodily harm on
the victim while committing the rape (count 1). (§ 667.61, subd. (l).) The court also
imposed consecutive, determinate midterm sentences of four years for furnishing
cannabis to a minor 14 or older (count 9), two nine-year terms for separate incidents of
forcible rape of a minor 14 or older (counts 3 and 4), and a one-third the midterm
sentence of eight months for showing obscene materials to a minor (count 5). Torres’s
total aggregate sentence is 22 years 8 months followed by life without the possibility of
parole.
The court imposed but stayed one-third the midterm sentences of eight months for
each of the three incest offenses (counts 6, 7, and 8) corresponding to the rape offenses
(counts 3, 1, and 4, respectively). The court imposed but stayed a midterm two-year
sentence for the statutory rape conviction, corresponding to the second rape offense, and
a three-year enhancement for inflicting great bodily injury in committing that offense.
15 II
ANALYSIS
A. The Incest Convictions
Torres argues we should overturn his convictions on three counts of incest because
the only proper proof that he was Doe’s biological father is genetic testing or evidence he
was married to and cohabiting with Doe’s biological mother at the time of Doe’s
conception.
He argues the trial court erred by failing to instruct the jury that if the prosecution
“failed to prove that [Torres] is the biological father of [Jane Doe] through either of these
methods, you must find that he is not the biological father of [Jane Doe] and you must
find him not guilty of this charge.” He also argues that without such evidence the
convictions must be reversed because substantial evidence does not establish he was
Doe’s biological father. Both arguments fail because the law does not limit proof of
biological fatherhood as Torres suggests.
1. Instruction on incest
The trial court instructed the jury that “[t]o prove that the defendant is guilty of
[incest], the People must prove that: [¶] . . . [t]he defendant had sexual intercourse with
another person,” at the time “he was at least 14 years old,” “the other person was at least
14 years old,” and “[t]he defendant and the other person are related to each other as
biological parent and child.”
16 The instruction is a modified version of CALCRIM No. 1180, which directs the
court to “insert description of relationship from Family Code section 2200.” (CALCRIM
No. 1180.) That section defines incestuous marriages as those “between parents and
children, ancestors and descendants of every degree, and between siblings of the half as
well as the whole blood, and between uncles or aunts and nieces or nephews.” (Fam.
Code, § 2200.) Thus, sexual intercourse between people having any of those relationships
would constitute criminal incest. The trial court modified the instruction to include only
the biological parent/child relationship relevant here.
Torres argues here, as he did at trial, that proof of incest should be limited to the
kinds of proof identified as establishing a family relationship under the Family Code. He
points to Family Code section 7555, which sets out the standard for finding a person to be
a biological parent through genetic testing. “[A] person is identified under this part as a
genetic parent of a child if genetic testing complies with this part and the results of the
testing disclose both of the following: [¶] (1) The person has at least a 99 percent
probability of parentage, using a prior probability of 0.50, as calculated by using the
combined relationship index obtained in the testing. [and] [¶] (2) A combined
relationship index of at least 100 to 1.” (Fam. Code, § 7555.) He also points to Family
Code section 7540, which establishes, with some exceptions not relevant here, “that the
child of spouses who cohabited at the time of conception and birth is conclusively
presumed to be a child of the marriage.” (Fam. Code, § 7540.)
17 Torres relies on People v. Russell (1971) 22 Cal.App.3d 330 (Russell) as
establishing that the conclusive presumption of parentage applies in criminal cases. And,
though he does not refer to the provision, the Family Code says expressly that the genetic
testing standard applies in criminal cases. (Fam. Code, § 7556 [“this part applies to
criminal actions,” subject to certain limitations].) Indeed, Family Code section 7556,
subdivision (c) says “[t]he court may direct a verdict of acquittal if the person is found
not to be a genetic parent pursuant to Section 7555.”
Torres asked the trial court to instruct the jury that the prosecution was required to
prove either (1) Torres was the genetic parent of Doe using the standard set out in Family
Code section 7555 or (2) Torres and Doe’s mother were married and cohabiting at the
time Doe was conceived and that failing such proof “you must find [Torres] not guilty of
this [incest] charge.” The parties agree the prosecution did not attempt to establish the
parent/child relationship by submitting genetic testing or proof of marriage and
cohabitation at the time of conception. We review de novo the trial court’s refusal to
instruct the jury as Torres requested. (People v. Scully (2021) 11 Cal.5th 542, 592.)
The trial court did not err. The statutory and case authority Torres relies on
establish that certain kinds of evidence are sufficient to establish a parent/child
relationship in a criminal case, not what kinds of evidence are necessary to establish that
relationship. In Russell, the defendant was convicted of incest for having sexual
intercourse with his niece. He challenged the conviction on the ground that his niece’s
mother was his half sister not his full sister, and “uncles and nieces who engage in sexual
18 intercourse are not guilty of incest unless they are related by the full blood.” (Russell,
supra, 22 Cal.App.3d at p. 333.) There was conflicting evidence of whether the
defendant’s mother and father lived together when he was conceived, so the trial court
instructed the jury to find the husband was the defendant’s father “if you find that [the
husband] and the defendant’s mother . . . were living together at that time. . . . You must
not consider or discuss, nor should it enter into your deliberations in any way, whether or
not [the husband] and [mother] actually engaged in sexual relations with each other or
with any other persons at that time. If you have a reasonable doubt that they were living
together at the time of [defendant’s] conception, then you are not bound to find that [the
husband] is the father of defendant.” (Id. at p. 334.)
Russell holds that the conclusive presumption of parentage applies in criminal
cases and overcomes other evidence about the identity of the parent. But Russell does not
hold that, absent evidence triggering the presumption, no other evidence of parentage
may be considered. In other words, evidence of marriage and cohabitation is sufficient,
but not necessary, to establish parentage. Russell therefore does not apply to a case like
this where no evidence addressed the marital and cohabitation status of the parents at the
time of conception. In such cases, other evidence may prove the parent/child relationship.
The same is true of the statutory provisions related to genetic testing for parentage.
As we noted, section 7556 specifies that genetic testing evidence applies in criminal
actions. However, the same provision says an order for genetic testing “shall be made
only upon application of a party or on the court’s initiative.” (Fam. Code, § 7556, subd.
19 (a).) That means genetic testing evidence is not required. And while a genetic test
showing a defendant was “found not to be a genetic parent” under the genetic testing
standard in section 7555 may allow a directed verdict of acquittal, the statute directs that
absent genetic testing evidence, “the case shall be submitted for determination upon all
the evidence.”4 (Fam. Code, § 7556, subd. (c).) In other words, genetic testing may be
sufficient to establish or disprove the existence of a parent/child relationship in an incest
prosecution, but such evidence is not required. Once again, other relevant evidence may
establish the parent/child relationship.
It follows that the trial court did not err by refusing Torres’s proposed
modification to the instruction on the crime of incest.
2. Substantial evidence of incest
Torres also argues the incest convictions were not based on substantial evidence.
However, his position is a corollary of his argument about the jury instructions, because
he argues the evidence was insubstantial only because there was no evidence of genetic
testing or marital cohabitation. As we have established, such evidence is not required.
On a challenge to the sufficiency of the evidence, we review “the whole record to
determine whether any rational trier of fact could have found the essential elements of the
4 If a defendant is “found not to be a genetic parent,” there would be a definitive genetic test result establishing there is no parental relationship. In contrast, if a defendant is “not found to be a genetic parent,” there would be no definitive genetic test result, either because the test was inconclusive or there was no test.
20 crime . . . beyond a reasonable doubt,” and ask whether that evidence is “reasonable,
credible, and of solid value.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The evidence met that standard. The Court of Appeal has held testimony by the
victim is sufficient to establish a parent/child relationship. (People v. Herman (1950) 97
Cal.App.2d 272, 273-274.) The court has also recognized as sufficient evidence that the
defendant held the victim out as or acknowledged her as his daughter. (People v. Roberts
(1947) 82 Cal.App.2d 654, 655-656.) Here, Doe testified Torres is her biological father
and Aurora and Arturo, Torres’s parents, are her biological grandparents. She also
testified she felt disgust when they had sexual contact because he was her father. Torres’s
parents also testified that Torres was Doe’s biological father, and they turned to him for
help talking to her when she got into trouble at school for drug use because of that
relationship. Doe also testified Torres acknowledged their relationship to her by
questioning why she would not say, “I love you, Dad.” He also told Doe he would be
killed in prison if anyone found out about their sexual relationship, especially after she
became pregnant. The genetic testing of the fetus corroborated the evidence. The fetus
had severe anomalies that can be caused by the close genetic relationship between
parents.
We conclude this evidence provided substantial support for the jury’s guilty
verdict on the incest convictions and therefore will affirm the convictions on those
counts.
21 B. Rape Convictions
Torres faced three forcible rape charges under section 261, subdivision (a)(2).
Forcible rape requires proof the defendant (1) engaged in the act of sexual intercourse
with the alleged victim, (2) without her consent, and (3) did so “against [her] will by
means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person or another.” (§ 261, subd. (a)(2); see also CALCRIM No. 1000.)
Torres faced greater sentencing exposure because Doe was a minor 14 years old or older,
increasing the sentencing triad applicable to each count to imprisonment for 7, 9, or 11
years. (§ 264, subd. (c)(2).) Torres faced a sentence of life without the possibility of
parole for inflicting great bodily injury on Doe by impregnating her during the
commission of the second chronological rape offense (count 1). (§ 667.61 subd. (l); see
also § 12022.8.)
“In the context of rape, ‘against the victim’s will’ is synonymous with ‘without the
victim’s consent.’” (People v. Giardino (2000) 82 Cal.App.4th 454, 460.) “In
prosecutions under Section 261 . . . in which consent is at issue, ‘consent’ means positive
cooperation in act or attitude pursuant to an exercise of free will. The person must act
freely and voluntarily and have knowledge of the nature of the act or transaction
involved.” (§ 261.6, subd. (a).) “[E]vidence that the victim suggested, requested, or
otherwise communicated to the defendant that the defendant use a condom or other birth
control device, without additional evidence of consent, is not sufficient to constitute
consent.” (§ 261.7.) A woman who initially consents to intercourse may change her mind.
22 If the woman communicates her change of mind by words or acts which a reasonable
person would understand as withdrawing consent, but the defendant nevertheless forcibly
continues the act of intercourse, the act is committed without consent. (In re John Z.
(2003) 29 Cal.4th 756, 760.)
There is no special amount of force required to prove forcible rape. The term force
as used in the forcible rape statute has “a common usage meaning, rather than a
specialized legal definition.” (People v. Griffin (2004) 33 Cal.4th 1015, 1024 (Griffin).)
“The question for the jury . . . was simply whether defendant used force to accomplish
intercourse with [Doe] against her will, not whether the force he used overcame [her]
physical strength or ability to resist him.” (Id. at p. 1028.) The jury had to find beyond a
reasonable doubt defendant used “enough physical force to overcome the other person’s
will.” (CALCRIM Nos. 1015, 1045.) “ ‘Force’ includes circumstances where the victim
did not want to engage in the act and the evidence does not otherwise establish the
victim’s positive cooperation in act or attitude. [Citation.] It also includes the force used
to accomplish “the penetration and the physical movement and positioning of [the
victim’s] body in accomplishing the act.” (People v. Thomas (2017) 15 Cal.App.5th
1063, 1071.)
By contrast, the term “duress” is defined by statute. “ ‘Duress’ means a direct or
implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable
person of ordinary susceptibilities to perform an act which otherwise would not have
23 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 the victim’s relationship to
the defendant, are factors to consider in appraising the existence of duress.”5 (§ 261,
subd. (b)(1); see also Griffin, supra, 33 Cal.4th at p. 1023 [noting “the Legislature . . .
saw fit to expressly and specifically define the terms ‘menace’ and ‘duress’ . . . [but] it
has not seen fit to do the same for the term ‘force’ ”].) “The fact that the victim testifies
the defendant did not use force or threats does not preclude a finding of duress.” (People
v. Thomas, supra, 15 Cal.App.5th at p. 1072.)
Torres conceded in the trial court and concedes here that he engaged in three
incidents of unlawful sexual intercourse with a minor—violations of section 261.5—but
argues the evidence did not support a finding that Doe did not consent to sexual
intercourse or that he accomplished sexual intercourse by duress or force.6 Because the
5 The statutory definition of “duress” has its origin in the ordinary meaning of the word “duress.” In 1985, the Court of Appeal introduced the definition after consulting a dictionary to construe “duress” as it appears in section 288. (People v. Pitmon (1985) 170 Cal.App.3d 38, 50 (Pitmon).) In 1990, the Legislature incorporated the Pitmon definition into the forcible rape statute when it expanded the offense to include cases of sexual intercourse accomplished against a person’s will by means of duress or menace. (Sen. Bill No. 2586, 1990 Cal. Legis. Service, ch. 630; cf. Assembly Bill No. 187, 1993 Cal. Legis. Serv., ch. 595 [removing threat of “hardship” from the statutory definition]; see also People v. Leal (2004) 33 Cal.4th 999, 1005 [recounting this history].) 6 Rape may be proven by showing nonconsensual intercourse was accomplished by fear or menace, both statutorily defined terms. However, the prosecution expressly chose to proceed under force and duress theories on count 3 and under a duress theory on counts 1 and 4. We limit our discussion to those theories.
24 first incident charged as forcible rape involves substantially different circumstances, we
will discuss it separately from the second and third incidents.7
We review the record for substantial evidence. We examine the entire record and
draw all reasonable inferences in favor of the judgment to determine whether there is
reasonable and credible evidence from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (People v. Jackson (2014) 58 Cal.4th 724,
749.) It is not enough to justify reversal that the evidence might reasonably be reconciled
with a contrary finding. (Ibid.) “All intendments are in favor of the judgment and a
verdict will not be set aside unless the record clearly shows that there is not sufficient
evidence based upon any hypothesis whatsoever. [Citation.] Defendant bears an
‘enormous burden.’ ” (People v. Thomas, supra, at 15 Cal.App.5th at p. 1071.)
1. The first incident of sexual intercourse (count 3)
There is substantial evidence that Doe did not consent the first time Torres had
sexual intercourse with her. To begin with, Doe had previously made clear she was a
lesbian and had an aversion to sexual involvement with men in general. She had also told
Torres repeatedly that she did not want to engage in sexual touching. On the day in
question, Doe initially refused Torres’s advances before eventually acquiescing.
The incident started with Torres giving Doe methamphetamine and she said she
was high when these events occurred. When Torres first asked Doe for sex she refused.
He asked “Why not?” and reassured her they were alone and nobody would know. She
7 The chronologically first incident was charged as count 3, the second was charged as count 1, and the third was charged as count four.
25 told him she did not want to get pregnant. He told her “once you feel it, it will feel good”
and continued asking for sex and commenting that he was sexually frustrated with his
partner. Torres then went back to watching a movie before reinitiating by trying to touch
Doe’s vagina again. He again asked for sexual intercourse, and she again refused. When
he asked for a reason, she said she was refusing for the same reasons she had given him
before. She also reiterated she did not want to have sex with him because she was not
attracted to men and did not want a penis inside her.
Torres became frustrated and persisted until Doe finally said, “Okay, fine, go
ahead,” and told him to “[j]ust do what you have to do.” She insisted that he wear a
condom. Initially he asked to put his penis “on top” of her clitoris. After a few minutes,
he asked if he could “go inside” her vagina. Doe resisted again and restated her reasons
against having intercourse, but Torres persisted, reassured her that it would feel good, and
she acquiesced. Doe testified she knew Torres would not stop asking because he was
persistent, and if he did not get his way he would throw a “silent fit.”
The jury could reasonably have found, based on this evidence alone, that Doe did
not positively cooperate and her submission to sex was not free and voluntary consent.
She testified she consistently refused Torres’s sexual advances and, pushing back against
his insistence, explained in detail her reasons for not wanting to engage in intercourse.
She told the jury she gave in to his pressure campaign because he would not stop, and she
was worried about their relationship, which she felt was threatened by his withdrawal
when she refused him. No evidence indicated her positive cooperation. It is true that she
26 did not physically resist Torres when he initiated sexual intercourse and that she directed
him to wear a condom. However, it is well established by statute and case law that,
absent other evidence of consent, juries and reviewing courts may not base a finding of
consent on lack of physical resistance or by requesting that a perpetrator wear a condom.
(§ 261.7; People v. Barnes (1986) 42 Cal.3d 284, 303; see also CALCRIM No. 1000.)
We conclude the evidence of lack of consent was not only substantial but overwhelming.
There is also substantial evidence that Doe objected to and tried to stop the
intercourse while it was happening. Withdrawal of consent during intercourse nullifies
any earlier consent. (In re John Z., supra, 29 Cal.4th at p. 758.) Doe testified she felt pain
after Torres penetrated her vagina. She said she struggled against him for that reason and
resisted by using her hands to try to push him off her. Torres did not stop, but instead
adjusted, applied more force, and continued. Doe said she gave up trying to push him
away because she was too weak to get him to stop. Doe also clearly expressed that she
did not want to continue when Torres told her not to be tense, responding “How can I not
be tense? It hurts. And I don’t want it.” Torres responded, “You’re just thinking too much
about it. You’ll be fine” and “continued until he finished.” The jury could reasonably
have found, based on this evidence, that Doe communicated her lack of consent while the
intercourse was occurring and that a reasonable person in Torres’s position would have
understood she withdrew her consent. (In re John Z., at p. 762.)
The same testimony supports the jury’s finding that Torres accomplished the
intercourse through force. As in John Z., “the force defendant exerted in resisting [Doe’s]
27 attempts to stop the act was clearly ample to satisfy section 261, subdivision (a)(2).” (In
re John Z., supra, 29 Cal.4th 756, 763; see also In re Jose P. (2005) 131 Cal.App.4th
110, 116 [“the force inherently involved in the penetration itself was sufficient”].) Here,
Doe testified she tried to push Torres off her and end the intercourse when Torres had her
hips pinned down with his hands and she was experiencing pain. Torres responded by
adjusting and applying more force to continue the intercourse. Doe’s testimony about that
incident was sufficient to warrant a jury finding that Torres used force against Doe to
accomplish their first act of sexual intercourse. (People v. Young (1987) 190 Cal.App.3d
248, 258 [holding it was sufficient to support forcible rape verdict that “some force was
used by defendant in both the penetration and the physical movement and positioning of
[the victim’s] body in accomplishing the act”].)
We therefore conclude the jury’s verdict on count three, that Torres committed
forcible rape the first time he had sexual intercourse with Doe, was supported by
substantial evidence.
2. The second and third incidents of sexual intercourse (counts 1 and 4)
Torres argues the prosecution failed to present sufficient evidence for the jury to
find Doe lacked consent or acquiesced under duress during their second and third acts of
sexual intercourse. We conclude the evidence was more than sufficient to show lack of
consent, as the inception of these incidents largely repeated the inception of the first
incident. Although a closer question, we conclude substantial evidence also supported a
finding of duress.
28 Concerning consent, Doe testified she was again under the influence of marijuana
and methamphetamine provided by Torres. The second incident began with Torres asking
Doe to wear feminine clothing while he painted her toenails, by this point a familiar
ritual. Doe said Torres moved her legs open, and Doe tried to close them. Torres
responded to her resistance by withdrawing, an implicit threat to the relationship she did
want from her father. After sulking for a while, Torres requested sex, and Doe told him
she did not want to have sex because the last time hurt and she was worried about
becoming pregnant. Torres responded by reassuring her that intercourse would feel better
the more often they did it. Doe eventually said “okay, fine” but insisted Torres had to
wear a condom. The script was similar during later incidents of sexual intercourse. Doe
conceded she did not always say no expressly, but said the same scenario played out.
Torres would get frustrated by her lack of cooperation, he would withdraw for a while,
and then he would ask again until she gave in. On one occasion, after she was already
pregnant, he offered to pay her as well.
In our view, as in the first incident, this evidence provided the jury a substantial
basis for finding Doe did not consent to the intercourse because they could reasonably
have found she did not positively cooperate, but instead submitted under pressure.
The question remains, however, whether she acquiesced due to force or duress. On
these rape counts, the prosecution proceeded under a duress theory. Duress in the context
of rape is “a direct or implied threat of force, violence, danger, or retribution sufficient to
coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise
29 would not have been performed, or acquiesce in an act to which one otherwise would not
have submitted.” (§ 261, subd. (b)(1).) The statute directs the factfinder to consider “[t]he
total circumstances, including the age of the victim, and the victim’s relationship to the
defendant . . . in appraising the existence of duress.” (Ibid.) The factfinder should also
consider threats to harm the victim, physically controlling the victim, and warning the
victim that disclosing the misconduct could jeopardize the family or the perpetrator.
(People v. Senior (1992) 3 Cal.App.4th 765, 775; People v. Schulz (1992) 2 Cal.App.4th
999, 1005 (Schulz).)
Multiple courts have recognized that “[t]he very nature of duress is psychological
coercion.” (People v. Cochran (2002) 103 Cal.App.4th 8, 15, disapproved of on another
ground by People v. Soto (2011) 51 Cal. 4th 229; see also People v. Veale (2008) 160
Cal.App.4th 40, 48; Schulz, supra, 2 Cal.App.4th at p. 1005 [“duress involves
psychological coercion”]; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d
235.)8 As the Cochran court explained “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.”
(Cochran, at p. 15; see also People v. Senior, supra, 3 Cal.App.4th at p. 775.)
8 These cases all involve convictions for child molestation rather than rape, but as we have seen, ante at pages 24 to 25 and footnote 5, the same definition of duress applies in both contexts.
30 Here, the prosecution argues Doe submitted to acts of sexual intercourse she did
not want out of concern refusing his advances would cause Torres to act violently or deny
her the parental affections she wanted from him. Though she denied being afraid of
Torres during the first occasion of sexual intercourse, she testified he had exploded in
anger and smashed her phone when she was being disciplined for misbehavior sometime
after the first occasion of sexual intercourse. She said that experience affected her
thinking when she submitted to sexual intercourse the second and third times. She
explained she did not know if he would “completely lose it” if she refused him. She also
repeatedly emphasized Torres’s withdrawal (his “silent fits”) whenever she refused him,
indications that he was withdrawing the parental affection she testified that she wanted.
In the context of these rape convictions, the question is whether this evidence was
sufficient to justify the jury’s finding that Doe faced a threat that would coerce a
reasonable person in her circumstances to acquiesce to his demands for sexual
intercourse. We conclude the evidence on these two counts was sufficient to sustain the
verdicts. To start, Doe testified that she was concerned about his aggression and prior
outburst during the second and later incidents of sexual intercourse. She complained he
yelled and spoke aggressively to her when he was trying to assert himself in his parental
role, including the occasion when he grabbed and broke her phone. The jury was entitled
to accept her testimony that she was concerned he could act the same way if she actively
resisted his sexual advances.
31 Also important is the evidence of Torres’s implicit threat that he would withdraw
his parental affections if she did not give in to his advances. A jury could have heard
Doe’s testimony about Torres’s “silent fits” and concluded these were nothing more than
temporary attempts to manipulate Doe. But the jury could also have concluded Torres
was implicitly communicating to Doe something more—that refusing his advances would
threaten her hopes for the parental relationship and the parental affections she craved. She
testified she believed that allowing sexual contact was the only way Torres would spend
time with her and complained to him that they never spent time together without sexual
conduct. A jury could reasonably have concluded that Doe felt refusing Torres presented
an existential threat to their parent/child relationship and submitted for that reason. On
substantial evidence review, we give force to all reasonable findings and inferences in
support of the judgment, so we credit that inference.
It is true some factors distinguish this case from the typical duress case involving
abused children. The most important difference is that the other cases involve much
younger children. In Cochran, the child was nine years old. (Cochran, supra, 103 Cal.
App.4th at p. 15.) In Schulz, the child was of elementary school age. (Schulz, supra, 2
Cal.App.4th at pp. 1002-1004.) In Pitmon, the child was eight years old. (Pitmon, supra,
170 Cal.App.3d at p. 50.) The statute directs the factfinder to consider the age of the
victim in deciding whether they acted under duress, and it is evident it would take less to
psychologically coerce an elementary school student than it would to coerce a high
school student. But a 16- or 17-year old is still a minor and still vulnerable to
32 manipulation and coercion by adults and parental figures. We conclude, even though Doe
was nearing adulthood and was more mature than the typical victim found in the case
law, there was substantial evidence to support the jury’s finding that she acted under
duress.
This case presents a more sophisticated scheme to coerce the teenage Doe than the
typical duress case. Doe and her adoptive parents testified that she had trouble at school
due to marijuana use. Aurora asked her son to step in and give Doe advice—to occupy a
parental role. Doe was vulnerable and in need of parental guidance, and Doe herself
testified she wanted a parent/child relationship with Torres. Torres responded by waiting
until the adoptive parents were away and then asking if she smoked marijuana. When she
said yes, he offered her a pipe, but instead of marijuana, the pipe contained
methamphetamine. This was Doe’s introduction to that extremely addictive drug, and
Torres then became her supplier. That relationship, the jury could reasonably infer,
allowed Torres to isolate her, make her dependent on him, and facilitate his advances.
(See Cochran, supra, 103 Cal.App.4th at p. 15 [“attempt to isolate the victim and
increase or maintain her vulnerability to his assaults” supports finding of duress].)
That is precisely what happened. Torres began inviting Doe to visit with him in
the back yard. He convinced her that she needed to keep her visits secret, induced her to
climb into his sleeping bag with him to remain unseen, and there regularly smoked
methamphetamine with her. Once she was drawn in, he began slowly introducing
sexuality, touching her buttocks, discussing sexual topics, sharing pornography, and
33 touching her vagina. After a few weeks of slow escalation, he put up a tent, which further
isolated Doe and provided cover for him to escalate even more. Under that additional
cover, Torres convinced her to change into feminine clothes, allow him to paint her
toenails and increase his sexual touching, and eventually to introduce sexual intercourse.
According to Doe, at each step along the way, she resisted, but Torres employed
the familiar tactics of abusers who use duress rather than force. He told her he would go
to prison and be killed if she told anyone what was happening between them. He
repeatedly withdrew his affections and threatened the loss of the parent/child relationship
she wanted. He also increased her isolation and, by supplying drugs, increased her
dependence on him. Eventually, she said she came to fear he could become physically
aggressive or violent if she forcefully resisted his advances after he displayed aggression
and violence when she resisted his authority to discipline her for going out with her
friends without permission.
Given the considerable evidence of Torres’s attempts to psychologically coerce
Doe into sexual intercourse—to groom her as his victim—we conclude the jury had
substantial evidence from which to conclude Torres’s conduct introduced threats
sufficient to coerce a reasonable person of ordinary susceptibilities and Doe’s age to
submit to sexual intercourse. We therefore affirm the forcible rape convictions on counts
1 and 4.
34 C. Constitutionality of the Sentence
Torres argues his sentence, 22 years 8 months followed by a consecutive sentence
of life without the possibility of parole, is cruel and unusual under the United States
Constitution, because it will require him to serve a term longer than his remaining life
span.
Both the United States Constitution and the California Constitution prohibit
imposing cruel or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I,
§ 17.) However, Torres raises his claim under the federal constitution alone, and he does
not argue that his sentence is disproportionate to the sentences imposed in California for
other crimes or in other jurisdictions for the same crimes. Successful challenges under the
Eighth Amendment are extremely rare. (People v. Weddle (1991) 1 Cal.App.4th 1190,
1196.) Unless a defendant’s sentence is grossly disproportionate, the courts will not find
an Eighth Amendment violation. (Ewing v. California (2003) 538 U.S. 11.) We review
Torres’s claim de novo. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.)
Torres relies primarily on Coker v. Georgia (1977) 433 U.S. 584, 592.
However, Coker is a death penalty case and is therefore not apposite. Torres’s real
complaint is he will not be able to complete his sentence during his natural lifetime. To
support finding such a sentence cruel and unusual, he refers us to the concurring opinion
of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600-601 (Deloza). There, the
trial court had sentenced the defendant to 111 years in prison, and Justice Mosk argued
the length of the sentence alone made it cruel and unusual. “A sentence of 111 years in
35 prison is impossible for a human being to serve, and therefore violates both the cruel and
unusual punishments clause of the Eighth Amendment to the United States Constitution
and the cruel or unusual punishment clause of article I, section 17 of the California
Constitution.” (Ibid.)
As Torres contends here, Justice Mosk argued, “A grossly excessive sentence can
serve no rational legislative purpose, under either a retributive or a utilitarian theory of
punishment. It is gratuitously extreme and demeans the government inflicting it as well as
the individual on whom it is inflicted. Such a sentence makes no measurable contribution
to acceptable goals of punishment.” (Deloza, supra, 18 Cal.4th at pp. 601-602 (conc. opn.
of Mosk, J.).)
Justice Mosk’s reservations have no application here. His target was not life
sentences in general, but “century-plus sentences” that vastly exceed the human lifespan.
(Deloza, supra, 18 Cal.4th at p. 602 (conc. opn. of Mosk, J.).) For defendants, like
Torres, “convicted of numerous counts,” Justice Mosk concluded, “[t]he maximum
sentence that should be imposed is one a defendant is able to serve: life imprisonment.”
(Ibid.) That is precisely the kind of sentence Torres received for multiple counts of incest
and rape. California courts have consistently upheld sentences that exceed a defendant’s
life expectancy. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231
[upholding sentence of 135 years to life].) Torres’s sentence of 22 years 8 months plus
life without parole is simply a life sentence and is short compared to the sentences in the
cases Justice Mosk decried.
36 Here, though the sentence is severe, so too is the gravity of the offense. Torres
raped his 16- to 17-year old daughter several times over several months, using drugs and
threats to their parent/child relationship to induce her. In the end, he impregnated his
daughter with a nonviable fetus and caused her to have a medically difficult abortion. His
conduct was reprehensible and leads us to conclude the comparison between the crime
and the sentence does not give rise “ ‘to an inference of gross disproportionality.’ ”
(Graham v. Florida (2010) 560 U.S. 48, 60) As a result, Torres’s federal claim fails at the
threshold stage. We need not engage in a comparative analysis. In any event, Torres has
identified no basis for thinking his punishment is disproportionate to the punishments
assigned to other crimes in California or to the same crimes in other jurisdictions.
Torres’s sentence is not cruel and unusual punishment.
III
DISPOSITION
We affirm the judgment.
RAPHAEL J. We concur:
RAMIREZ P. J.
MILLER J.
Related
Cite This Page — Counsel Stack
People v. Torres, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-torres-calctapp-2024.