California Court of Appeal Feb 7, 2025 No. E082736Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.)
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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).)
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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
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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,
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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.)
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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