Filed 2/7/25 P. v. Towner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082736
v. (Super.Ct.No. INF2100349)
WILLIAM SPIVEY TOWNER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.
Affirmed.
Jennifer A. Gambale, 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, Christopher P. Beesley and
Namita Patel, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury convicted William Ray Spivey Towner of committing numerous sexual
offenses against two of his minor nephews. On appeal, he challenges the sufficiency of
the evidence that he committed five of the offenses by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury. We affirm.
BACKGROUND
Towner was born in March 1998. He is five feet eight inches tall and weighs 140
pounds. He is the maternal uncle of John Doe 1 and John Doe 2, who are first cousins.
Doe 1 was born in May 2011, and Doe 2 was born in February 2007. Doe 1 and Doe 2
were close and told each other everything. Doe 1 has a brother who is two years
younger.
In March 2022, Towner was charged by information with one count of oral
copulation of a person 10 years old or younger (Pen. Code, §§ 288.7, 289; count 1 [Doe
1]), three counts of forcible lewd and lascivious conduct with a child under the age of 14
(Pen. Code, § 288, subd. (b)(1) (§ 288(b)(1)); count 2 [Doe 1] & counts 5-6 [Doe 2]), and
two counts of forcible oral copulation of a child under the age of 14 (Pen. Code, § 269,
subd. (a)(4) (§ 269(a)(4)); counts 3-4 [Doe 2]). (Unlabeled statutory references are to the
Penal Code.) The information also alleged that Towner fell under the one strike law
(§ 667.61) because he committed the lewd and lascivious conduct offenses against more
than one victim (id., subds. (e)(4), (j)(2)).
2 Doe 1 and Doe 2 were 12 and 16 years old, respectively, when they testified at
trial. Doe 1 explained that he used to be close to Towner, whom Doe 1 loved and
described as his favorite uncle. According to Doe 1’s mother, Towner often babysat Doe
1 and his brother when Doe 1 was seven years old. Doe 1’s mother was a single parent
who worked as many shifts as she could, and Towner was the primary babysitter. Doe 1
viewed Towner as an authority figure and “somebody who would tell [Doe 1] what to
do.”
Doe 1 testified that Towner twice touched him inappropriately. The first incident
occurred when Doe 1 was seven years old. Doe 1 and his family lived in an apartment
that had one room and a bathroom. The room contained a bed for Doe 1’s mother and a
bunkbed for Doe 1 and his brother. Once while Towner was at the apartment alone with
Doe 1 and his brother, Doe 1 and Towner were lying together in the bottom portion of the
bunkbed watching a movie while Doe 1’s brother slept in the mother’s bed. Towner
started rubbing Doe 1’s legs and moved his hands toward Doe 1’s penis. Towner placed
his hand inside of Doe 1’s pants and underneath his underwear and touched Doe 1’s penis
for a short period. Doe 1 felt “scared” when Towner touched him and did not want to be
touched.
Towner stopped touching Doe 1 when Doe 1 said that he had to urinate. After
Towner stopped touching Doe 1, Towner told Doe 1 not to tell anyone. Doe 1 went to
the bathroom and then to his mother’s bed because he did not want Towner to touch him
again.
3 When Doe 1’s mother arrived home, Doe 1 told her what happened. She got mad
and yelled at Towner, which caused Doe 1 to feel sad because he loved Towner. Doe 1’s
mother filed a police report, but she said that nothing happened as a result. Doe 1’s
mother subsequently started to disbelieve Doe 1’s account because Doe 1 did not act like
he hated Towner.
The second incident occurred when Doe 1 was eight or nine years old. Towner
had moved in with Doe 1’s family, and they lived at a different residence, where Towner
shared a bedroom with Doe 1 and his brother. Towner frequently babysat Doe 1 and his
brother. One night, Doe 1’s mother took his brother to the hospital and left Doe 1 home
alone with his stepfather and Towner. Doe 1 went to his bedroom to sleep and found
himself alone in the bedroom with Towner. Doe 1 wrapped a blanket around himself
“like a burrito” in an attempt to prevent Towner from touching him again. Towner told
Doe 1 that he could watch television if Doe 1 let Towner touch him. Doe 1 acquiesced
because he “just wanted to get it over with.” Towner pulled the blanket off of Doe 1,
pulled off Doe 1’s pants and underwear, rubbed Doe 1’s penis, and sucked and licked
Doe 1’s penis. Towner stopped when he received a telephone call. Towner again told
Doe 1 not to tell anyone what happened.
Months later, in March 2021, Doe 1 told his mother about the second incident in
the context of telling her that he wanted to stay at his grandmother’s house. Doe 1
ultimately disclosed what happened because he worried that Towner would touch him
again, but he hesitated to tell his mother about the second incident because he did not
4 want Towner to get in trouble again. Doe 1’s mother called Towner, who denied doing
anything to Doe 1. She then called law enforcement and also told her mother. Law
enforcement interviewed Doe 1’s mother and had a forensic psychologist interview Doe
1. During his forensic interview, Doe 1 revealed that Doe 2 might be another victim of
Towner’s.
Doe 2 testified about seven specific incidents of inappropriate touching by Towner
when Doe 2 was between the ages of 10 and 12. Doe 2 also testified that Towner
touched him “a little bit” and “a few times” when Doe 2 was six or seven years old. Doe
2 described those incidents as “little dabs” that did not involve any sustained touching of
his penis.
Towner often babysat Doe 2, and Doe 2 confirmed that Towner was the “adult of
the house” when no other adults were present. One night when Doe 2 was 10 years old,
Towner slept over at Doe 2’s house in a separate bed in Doe 2’s bedroom.1 Doe 2 was
asleep in his own bed when he awoke to find Towner’s hand touching and rubbing Doe
2’s penis over his clothing. Towner was lying on the floor next to Doe 2’s bed. Doe 2
pretended to be asleep but twitched, causing him to move slightly, which prompted
Towner to instruct Doe 2 not to tell anyone what happened. Doe 2 believed that direction
applied to every subsequent incident in which Towner touched him.
The second incident occurred when Doe 2 and Towner were alone one night at the
apartment of another of Doe 2’s uncles. Doe 2 fell asleep in his other uncle’s bedroom
1 Doe 2 also testified that the first incident occurred when he was 11 or 12 years old.
5 while playing a video game. Doe 2 awoke to find Towner rubbing his penis over his
clothes for about six minutes. Doe 2 fell back asleep after Towner stopped.
The third incident occurred when Doe 2 was 10 or 11 years old and play fighting
or “roughhousing” with some of his cousins, including Doe 1, at an aunt’s house.
Towner punched Doe 2 “too hard” in the stomach, which scared Doe 2, so he ran into the
bathroom. Towner followed Doe 2 into the bathroom and touched Doe 2’s penis “a little
bit” over his clothing. Towner stopped touching Doe 2 because one of Doe 2’s cousins
(maybe Doe 1) punched Towner in the back. Towner and Doe 2 returned to playing with
the other cousins.
Earlier that day, Doe 1 had told Doe 2 that Towner “was touching him” and that
he did not know what to do about it.2 Doe 2 disclosed that Towner was touching him too.
The cousins devised a plan to assist one another if Towner started to touch either of them.
Doe 1 said that he and Doe 2 spoke more than once about Towner touching them. Before
telling Doe 1 about Towner touching him, Doe 2 had not told anyone else. He loved
Towner and did not want him to go to jail. Doe 2 also did not tell anyone else because he
was afraid.
Doe 2 described a fourth incident that occurred at Doe 2’s house while Towner
was staying overnight. Doe 2 fell asleep in the bottom half of a bunkbed with Towner
asleep on the floor next to the bed. Doe 2 awoke to find Towner stroking his penis,
which lasted for approximately seven minutes. Doe 2 could not recall whether Towner
2 Doe 2 also testified that Doe 1 first told Doe 2 about Towner touching him at one of the boys’ residences.
6 stroked his penis over or underneath Doe 2’s clothing. Doe 2 froze and did not know
what to do. When Towner stopped stroking Doe 2’s penis, Doe 2 went to the bathroom,
locked the door, and stayed there until the morning to prevent Towner from touching him
A fifth incident occurred when Doe 2 was 10 years old. Doe 2 and Towner were
alone together at another uncle’s apartment. Doe 2 was playing a video game, and
Towner asked Doe 2 to follow him to the bathroom. Towner closed the bathroom door,
and Doe 2 sucked Towner’s penis for a couple of minutes. Doe 2 could not recall how
Towner introduced the idea of Doe 2 sucking his penis, but Doe 2 said that it was
Towner’s idea. Doe 2 did not want to do it, but Towner did not force him. Doe 2
believed that if he refused, then “something could happen.” Doe 2 was “scared a little
bit.” Towner told Doe 2 to jump in the shower and close the curtain and hide if anyone
knocked on the door, which Doe 2 understood to mean that he should not tell anyone
about what happened.
Doe 2 said that during a sixth incident, which took place when Doe 2 was between
10 and 12 years old, Towner orally copulated Doe 2. Doe 2 was in his bedroom, and
Towner told him to go into the bathroom. Towner took off his clothes, and Doe 2 got on
his knees and started sucking on Towner’s penis. Towner suggested that he should suck
Doe 2’s penis, and Doe 2 agreed, even though it is not what he wanted. Doe 2 stood up
and took off his pants, and Towner got on his knees and sucked Doe 2’s penis. Doe 2
said they should stop, and they did. Doe 2 said that Towner did not force him to do
7 anything that day but confirmed that he had not wanted to do anything with Towner. Doe
2 said that he feared Towner.
During a seventh incident, Towner offered Doe 2 a ride home when Doe 2 was
walking home from a liquor store. Towner rubbed Doe 2 over his pants for a couple of
minutes while they drove home.
During closing argument, the prosecutor told the jury that the lewd and lascivious
conduct count involving Doe 1 (count 2) was based on the first time that Towner touched
Doe 1. With respect to the lewd and lascivious conduct counts involving Doe 2 (counts 5
& 6), the prosecutor told the jury that they could convict Towner of those offenses on the
basis of any of the incidents of Towner touching Doe 2 (other than two incidents
involving oral copulation), as long as the jury all agreed on the two incidents forming the
bases of those convictions. The trial court gave the jury a unanimity instruction
(CALCRIM No. 3500), instructing the jurors that they had to agree on the acts committed
to convict Towner.
The jury convicted Towner on all counts and found true the multiple victims
allegation under the one strike law. The trial court sentenced Towner to an aggregate
term of 120 years to life.
DISCUSSION
Towner contends that there is insufficient evidence that he accomplished the
forcible lewd and lascivious conduct offenses (counts 2, 5, & 6) against Doe 1 and Doe 2
and the forcible oral copulation offenses (counts 3 & 4) against Doe 2 by use of force,
8 violence, duress, menace, or fear of immediate and unlawful bodily injury. We disagree.
The record contains substantial evidence that all of those offenses were committed by
means of duress.3
Section 288(b)(1) prohibits the commission of a lewd or lascivious act on a child
under age 14 with the intent to arouse or satisfy the sexual desires of the perpetrator or
the child “by use of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.” Section 269(a)(4) prohibits aggravated
sexual assault of a child under age 14 by oral copulation accomplished by the same
means. (§§ 269(a)(4), 287, subd. (c)(2)(B).)
As used in both statutes, “duress” “means ‘“a direct or implied threat of force,
violence, danger, hardship or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to (1) perform an act which otherwise would not have been
performed or, (2) acquiesce in an act to which one otherwise would not have
submitted.”’” (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto), italics omitted, quoting
People v. Leal (2004) 33 Cal.4th 999, 1004; People v. Barton (2020) 56 Cal.App.5th 496,
517-518.) Whether the defendant used “duress is measured by a purely objective
standard,” so “a jury could find that the defendant used threats or intimidation to commit
a lewd act without resolving how the victim subjectively perceived or responded to this
3 “In reviewing a sufficiency of the evidence claim, our role is limited. We review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt.” (People v. Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11.) “We draw all reasonable inferences in favor of the judgment.” (Ibid.) “Matters of credibility of witnesses and the weight of the evidence are ‘“‘the exclusive province’”’ of the trier of fact.” (Ibid.)
9 behavior.” (Soto, at p. 246.) The relevant focus is “on the defendant’s wrongful act, not
the victim’s response to it.” (Ibid.) It is irrelevant “how the victim subjectively
perceived or responded to [the] behavior.” (Ibid.) In addition, “consent is not a defense
when the victim of a sex crime is a child under age 14.” (Id. at p. 247.)
“The very nature of duress is psychological coercion.” (People v. Cochran (2002)
103 Cal.App.4th 8, 15 (Cochran), overruled on another ground in Soto, supra, 55 Cal.4th
at p. 248, fn. 12; People v. Torres (2024) 107 Cal.App.5th 513, 535.) In determining
whether an offense was accomplished by duress, the trier of fact must consider the
totality of the circumstances, including the victim’s age, relationship to the defendant,
and relative size in relation to the defendant. (People v. Martinez (2024) 105 Cal.App.5th
178, 189 (Martinez); People v. Schulz (1992) 2 Cal.App.4th 999, 1005 (Schulz).) “Other
relevant factors include threats to harm the victim, physically controlling the victim when
the victim attempts to resist, and warnings to the victim that revealing the molestation
would result in jeopardizing the family.” (Cochran, at pp. 14-16.) Nevertheless, “[t]he
fact that the victim testifies the defendant did not use force or threats does not require a
finding of no duress; the victim’s testimony must be considered in light of her [or his] age
and her [or his] relationship to the defendant.” (Id. at p. 14.) “A simple warning to a
child not to report a molestation reasonably implies the child should not otherwise protest
or resist the sexual imposition.” (People v. Senior (1992) 3 Cal.App.4th 765, 775
(Senior).)
10 The record contains substantial evidence that Towner accomplished the lewd and
lascivious conduct offense (count 2) against Doe 1—the first time that Towner touched
Doe 1’s penis—by duress. When the incident occurred, Doe was seven years old, and
Towner was approximately 20 years old. The jury could reasonably infer that there was a
size disparity between Towner, who weighed 140 pounds, and Doe 1, who was seven
years old. In addition, Towner frequently babysat Doe 1, and Doe 1 loved Towner and
viewed him as an authority figure who was authorized to tell Doe 1 what to do. The jury
could reasonably infer that Doe 1’s young age and Towner’s relationship to Doe 1 as an
authority figure showed that Towner accomplished the lewd act against Doe 1 by duress.
After Towner touched Doe 1’s penis, Towner immediately told Doe 1 not to tell anyone
about what happened. Moreover, the first incident occurred when Towner was alone
with Doe 1 and his younger brother in a single apartment, where no other adults were
present, and Doe 1 felt afraid when Towner was touching him. The jury could
reasonably infer that Towner’s isolation of Doe 1 in a particularly vulnerable situation
along with the age and size disparity between Doe 1 and Towner and Towner’s position
of authority over Doe 1 show that Towner committed the offense by means of duress.
(Martinez, supra, 105 Cal.App.5th at p. 189; Schulz, supra, 2 Cal.App.4th at p. 1005;
Cochran, supra, 103 Cal.App.4th at pp. 14-16.) Moreover, the jury could reasonably
infer that Doe 1 actually felt threatened by Towner’s actions given that Doe 1 felt fearful
when Towner was touching him. (People v. Veale (2008) 160 Cal.App.4th 40, 47
(Veale).) A jury could also reasonably infer that a reasonable person in Doe 1’s
11 circumstances would have felt threatened when Towner told Doe 1 not to tell anyone
about the touching, even though that command was not followed by an explicit threat of
consequences if Doe 1 did tell. (Senior, supra, 3 Cal.App.4th at p. 775.) The totality of
circumstances supports a jury finding that Towner committed the forcible lewd and
lascivious conduct offense against Doe 1 (count 2) by means of duress.
Substantial evidence likewise shows that Towner accomplished the forcible lewd
and lascivious conduct offenses (counts 5 & 6) and the forcible oral copulation offenses
(counts 3 & 4) against Doe 2 by means of duress. As with Doe 1, there was an age
disparity between Doe 2 and Towner from which the jury could infer that there was also a
size disparity. Towner was nine years older than Doe 2 and a beloved uncle who
frequently babysat Doe 2 and whom Doe 2 viewed as an adult authority figure. Towner
started touching Doe 2 when he was six or seven years old. The first time that Towner
touched Doe 2’s penis, when Doe 2 was 10 years old, Towner instructed Doe 2 not to tell
anyone what happened. Doe 2 believed that admonishment applied universally to every
time that Towner molested him, and subsequently Doe 2 even complied with Towner’s
direction to orally copulate him because Doe 2 worried that “something could happen” if
he did not. The jury could reasonably infer that a reasonable person in Doe 2’s
circumstances would have interpreted Towner’s direction not to tell anyone as an implicit
threat. The jury also could reasonably infer that a reasonable person in Doe 2’s
circumstances would have consequently felt threatened and complied with Towner’s
sexual acts for that reason. (Cochran, supra, 103 Cal.App.4th at pp. 15-16; Veale, supra,
12 160 Cal.App.4th at p. 47; Senior, supra, 3 Cal.App.4th at p. 775) Moreover, Doe 2
expressed that he was afraid of Towner, and the jury could reasonably infer that the fear
was substantiated by Towner’s use of excessive force against Doe 2 when he was play
fighting with Doe 2 and his cousins. Again, the totality of the circumstances supports a
determination that Towner used duress in committing the lewd and lascivious conduct
offenses (counts 5 & 6) and the forcible oral copulation offenses (counts 3 & 4) against
Doe 2.
Towner relies on People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza) to
support a contrary conclusion concerning all five offenses. Espinoza concluded that there
was insufficient evidence of duress based only on the size and age disparity of the victim
and the defendant (a 12-year-old girl and her biological father) and the victim’s fear of
the defendant that was based on nothing more than that the father “continue[d] to molest
her.” (Id. at p. 1321.) Espinoza is factually distinguishable.4 Unlike in Espinoza,
Towner explicitly directed both Doe 1 and Doe 2 not to tell anyone about the abuse,
which the jury could reasonably infer operated as an implicit threat that “the child should
not otherwise protest or resist the sexual imposition.” (Senior, supra, 3 Cal.App.4th at
p. 775.) There is no evidence that the defendant in Espinoza gave any similar direction to
4 Espinoza’s persuasive force is also limited because the opinion’s analysis is primarily based on a statement in People v. Hecker (1990) 219 Cal.App.3d 1238, 1250 that “‘[p]sychological coercion’ without more does not establish duress.” (Espinoza, supra, 95 Cal.App.4th at p. 1321, quoting Hecker, at p. 1250.) In Cochran, the same court that decided Hecker later found the statement in Hecker “overly broad” and clarified that the “very nature of duress is psychological coercion.” (Cochran, supra, 103 Cal.App.4th at p. 15.) In Veale, we recognized Cochran’s limitation of Hecker. (Veale, supra, 160 Cal.App.4th at p. 48.)
13 his daughter. (Espinoza, at pp. 1292-1295.) Towner’s reliance on Espinoza is
accordingly misplaced.
For the foregoing reasons, we conclude that the record contains substantial
evidence that Towner committed the forcible lewd and lascivious conduct offenses
(counts 2, 5 & 6) and the forcible oral copulation offenses (counts 3 & 4) by means of
duress. Because we conclude that there is substantial evidence of duress, we need not
address whether Towner used force, fear, or menace in committing the offenses.
(Martinez, supra, 105 Cal.App.5th at p. 189, fn. 7; Cochran, supra, 103 Cal.App.4th at
p. 16.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
CODRINGTON Acting P. J.
RAPHAEL J.