California Court of Appeal Feb 15, 2022 No. E075824Unpublished
Filed 2/15/22 P. v. Gonzalez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075824
v. (Super. Ct. No. RIF1803889)
JOSE CORDOVA GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. William R. Chidsey, Jr.,
Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D.
Butera, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
NTRODUCTION
Defendant and appellant, Jose Gonzalez sexually abused his step-granddaughter,
B.C., for 10 years, beginning when B.C. was six years old. Defendant appeals from
judgment entered following jury convictions for attempted sexual intercourse or sodomy 1 of a child 10 years of age or younger (Pen. Code, §§ 664, 288.7, subd. (a) ; count 1); two
copulation by force (§§ 664, 288a, subd. (c)(2)(A); count 6); and misdemeanor indecent
exposure (§ 314, subd. (1); count 7). The court sentenced defendant to an aggregate term
of 65 years and four months to life.
Defendant contends there was insufficient evidence of force, fear, or duress
required to support his convictions for aggravated sexual penetration (count 4),
aggravated oral copulation (count 5), and attempted oral copulation by force (count 6).
Defendant also argues that the trial court abused its discretion by admitting evidence of
1 Unless otherwise indicated, all further statutory references are to the Penal Code. Former section 288a (renumbered § 287 and amended by Stats. 2018, c. 423 (S.B.1494), § 49, eff. Jan. 1, 2019) applies here to defendant’s charged crimes committed between 2014 and July 2018.
2
his prior uncharged sexual misconduct against his sister-in-law, O.P. We reject
defendant’s contentions and affirm the judgment.
II.
FACTS
Defendant is B.C.’s step-grandfather. He married B.C.’s maternal grandmother
(MGM) shortly after B.C. was born in 2002. When B.C. was about six years old, she
lived in a two-room apartment in Ontario, with her mother (Mother), her father, and her
younger brother. Defendant and MGM also lived with them. Defendant and MGM took
care of B.C. and her brother after school, while her parents worked late into the evening.
B.C. was six years old and in kindergarten when defendant first sexually abused
her. While MGM was in the shower, defendant led B.C. to his bedroom, pulled down his
pants and B.C.’s pants, took off the rest of B.C.’s clothes, placed her on his lap facing
away from him, and pressed B.C.’s genitals against his. Defendant held her there as she
attempted to wiggle off his lap. When defendant heard the shower turn off, he stopped,
quickly dressed B.C., and told her to go play. This happened once or twice a week for
two to three years while defendant lived with B.C. in the Ontario apartment. B.C.
recalled that on one occasion during this time, defendant told her not to tell anyone about
the abuse.
In 2010, when B.C. was eight years old and in the third grade, she moved to
Riverside with her parents and brother. They lived with B.C.’s paternal grandparents and
uncle for a year and one half. Defendant and MGM remained at the Ontario apartment
3
but continued to visit B.C. and her parents two or three times a month, during which
defendant continued to sexually abuse her. During the family gatherings, defendant
grabbed B.C.’s buttocks and breasts when he passed by. B.C. testified that he did it “all
the time,” and B.C. would push him away. Defendant also cornered her, pulled down his
pants, and exposed his penis.
When B.C. was in the fourth or fifth grade, she and her family moved to another
home in Riverside. About the same time, defendant and MGM moved to a home next to
B.C.’s. Defendant sexually abused B.C. more frequently because her parents again left
her in MGM and defendant’s care, including overnight. During this time defendant made
B.C. touch his genitals. B.C. would try to get away. Sometimes defendant would hold
her hand and not allow her to pull it away. Defendant would also grab B.C.’s face and
kiss her on the lips, and she would push him away. This conduct continued while B.C.
was in the sixth and seventh grade. Defendant also showed B.C. pornography and
prevented her from changing the channel.
B.C. testified she did not want to spend the night with defendant and MGM
because she knew defendant would molest her. She did not tell anyone about the abuse
because she feared that if she did, defendant would hurt her. B.C. testified that defendant
did not hit her or expressly threaten her. Nevertheless, he scared her because she had
observed him become somewhat aggressive and do “dumb things” when he drank a lot.
In the seventh grade, the sexual abuse escalated. Defendant digitally penetrated
B.C.’s vagina twice. B.C. tried to push him off her. Defendant also pulled down her
4
pants and orally copulated her four or five times. Although B.C. feared defendant would
harm her, several times when she was tired of the abuse, she aggressively tried to push
him off her. During this period of time, defendant also exposed his penis and
masturbated in front of B.C.
When B.C. was in 8th grade, she fought off defendant’s attempts to have sex with
her. While B.C. was at MGM and defendant’s house, defendant pulled down her pants,
bent her over, and tried unsuccessfully to insert his penis in her. B.C. tried to fight back.
She would move away from defendant. B.C. did not tell anyone because she did not
think anyone would believe her. B.C. testified she was scared of defendant and afraid he
would hurt her if she told anyone about the sexual abuse. Defendant also attempted to
force B.C. to perform fellatio on him by grabbing her head and pushing it toward his
genitals. B.C. refused to put his penis in her mouth and shoved defendant away. This
happened multiple times.
The sexual abuse ended when B.C. was in high school and she felt she had
become strong enough to defend herself from defendant’s advances. Even after the abuse
stopped, B.C. did not tell anyone about the abuse until August 2018, because she did not
want to ruin her relationship with her family. However, when B.C. and her family moved
back in with defendant and MGM, B.C. began engaging in self-harm and expressing
suicidal thoughts. She pleaded with Mother to move out. At about this time, Mother
began noticing defendant committing bizarre and inappropriate behavior. On two
occasions, while in the house, he exposed himself to Mother and he called her into his
5
closet while he was naked. Mother became suspicious of defendant. She asked B.C. if
defendant had committed any inappropriate conduct directed towards her. B.C., who was
16 years old and a sophomore in high school, tearfully told Mother defendant had
sexually abused her since she was six years old. Mother immediately took B.C. to O.P.’s
house and called the police. B.C. testified that had Mother not questioned her about
defendant, B.C. would not have reported the abuse because she felt old enough and
strong enough to fight off defendant and she did not want to risk disrupting the family
dynamic.
In August 2018, Detective Olivas of the Riverside Police Department Sexual
Assault Child Abuse Unit interviewed B.C. and O.P. B.C. described prolonged abuse by
defendant, which included digital penetration and oral copulation. B.C. also participated
in a forensic examination. The normal test results were anticipated because of B.C.’s
delayed reporting of the abuse and the rapid healing of the genital area, resulting in
superficial wounds and exogenous DNA typically disappearing within 72 hours.
O.P. testified that on several occasions defendant had touched her buttocks and
breasts when he had been drinking or when no one else was present. He also often
looked at her “in an insinuating way,” sucked on his finger, or stuck his tongue out and
moved it around while looking at O.P. On one occasion, while O.P. was talking to
MGM, defendant walked behind MGM and pulled down his shorts, exposing his penis to
O.P. O.P. did not say anything to MGM because she thought it was unlikely MGM
6
would believe her. This incident occurred one or two months before Detective Olivas
interviewed O.P. in August 2018.
Defendant’s brother-in-law, M.G., testified that when he lived near defendant,
defendant was like a second father to M.G.’s four sons. After defendant moved away, he
and M.G. continued to stay in touch and see each other at family gatherings once a
month. M.G. testified that defendant was a responsible and conscientious family man.
M.G. sponsored defendant to become a U.S. citizen. M.G. believed the charges against
defendant were not consistent with defendant’s true good character.
Defendant’s niece, R.G., testified defendant is her father’s brother. Defendant
lived with her family until she was almost 14 years old. He acted as a second father to
her and her siblings. R.G. is still very close to defendant and sees him about every month
at family events. R.G. testified defendant had never behaved inappropriately with her.
III.
SUFFICIENCY OF EVIDENCE
Defendant contends there was insufficient evidence to support findings that the
sexual abuse offenses alleged in counts 4, 5, and 6 were accomplished by force, fear, or
duress. We disagree.
“A court reviews the record for substantial evidence. [Citation.] The court
examines the entire record and draws 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. [Citation.]
7
Although circumstances might also reasonably be reconciled with a contrary finding, it
does not warrant reversal of the judgment. [Citation.] 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.’ [Citation.]” (People v. Thomas (2017) 15 Cal.App.5th
1063, 1071 (Thomas).)
A. Aggravated Sexual Assault Crimes (Counts 4, 5 & 6)
An aggravated sexual assault, as defined in section 269, subdivision (a), includes
the charged crimes of oral copulation, attempted oral copulation by force, and sexual
penetration upon a child. (§ 269, subd. (a)(4) & (5); § 288a, subds. (c)(2) & (c)(3));
§ 289, subd. (a)); see CALCRIM No. 1123.) Convictions for these crimes require
substantial evidence that the acts of oral copulation and sexual penetration were
“accomplished against the victim’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim” or “by threatening to
retaliate in the future against the victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the threat.” (§ 288a, subd. (c)(2) & (3); § 289,
subd. (a); see also CALCRIM Nos. 1045, 1015.)
On appeal, defendant does not dispute that the evidence was sufficient to support
findings that he committed the charged acts of oral copulation, sexual penetration, and
attempted oral copulation. However, he argues there was insufficient evidence that the
offenses were committed by use of force, fear, or duress.
8
1. Use of Force
As applied to aggravated sexual assault crimes, “‘[a] defendant uses “force” if the
prohibited act is facilitated by the defendant’s use of physical violence, compulsion or
constraint against the victim other than, or in addition to, the physical contact which is
inherent in the prohibited act.’ [Citation.] ‘The evidentiary key to whether an act was
forcible is not whether the distinction between the “force” used to accomplish the
prohibited act and the physical contact inherent in that act can be termed “substantial.”
Instead, an act is forcible if force facilitated the act rather than being merely incidental to
the act.’ [Citation.] ‘[A]cts of grabbing, holding and restraining that occur in
conjunction with the lewd acts themselves’ are sufficient to support a finding that the
lewd act was committed by means of force. [Citation.]” (People v. Morales (2018) 29
Cal.App.5th 471, 480.) The trial court instructed the jury that “[a]n act is accomplished
by force if a person uses enough physical force to overcome the other person’s will.”
(CALCRIM Nos. 1045, 1015.)
This court in Thomas, supra, 15 Cal.App.5th at page 1071, describes the term
“force,” as applied to aggravated sexual assault crimes, as including “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.’ [Citation.]”
9
In Thomas, supra, 15 Cal.App.5th 1063, the defendant, who was the victim’s
father, was convicted of nine counts of aggravated sexual assault on a child. The
defendant in Thomas sexually abused the victim for 10 years, beginning when she was
four or five years old and living with both of her parents. The defendant continued to
sexually abuse her when she spent weekends with the defendant after he and the victim’s
mother separated and later divorced. During this time, the defendant would hit the victim
and yell at her. Because of the violent beatings, the victim feared telling anyone about
the abuse, out of fear the defendant would beat her again. (Id. at p. 1067.) The Thomas
defendant admitted he sexually abused the victim but on appeal argued there was
insufficient evidence the offenses were aggravated sexual assault crimes committed by
force, fear, menace, or duress. (Id. at p. 1066.)
We concluded in Thomas that, “reviewing the record in the light most favorable to
the judgment, there was substantial evidence that defendant’s physical abuse coerced
Jane Doe into acquiescence” during the defendant’s sexual abuse of her. (Thomas, supra,
15 Cal.App.5th at p. 1071.) With regard to the crime of sexual penetration, we explain in
Thomas that there was sufficient evidence of force because “[a] reasonable jury could
find that the sexual penetration was committed against Jane Doe’s will and that defendant
used sufficient force to overcome her will by leading her by the hand into the bathroom,
positioning her body on the sink before digitally penetrating her.” (Id. at p. 1072, italics
added.)
10
In People v. Morales, supra, 29 Cal.App.5th at page 480, the court also held there
was sufficient evidence of the use of force based on the victim’s testimony that the
defendant held her in such a manner that she could not move while he positioned her up
against the trunk of a tree and penetrated her private parts with his finger. The Morales
court stated that “[t]his testimony amply established that defendant used force to facilitate
the lewd act, rather than merely incidentally touching Jane Doe 1 in the course of the
lewd act.” (Id. at p. 480.) The court concluded that the “defendant’s ‘grabbing, holding,
and restraining’ of Jane Doe 1 to facilitate his lewd act was substantial evidence of the
requisite force.” (Ibid.; People v. Alvarez (2009) 178 Cal.App.4th 999, 1005 (Alvarez)
[“acts of grabbing, holding and restraining that occur in conjunction with the lewd acts
themselves” satisfied the force requirement.].)
(a) Sexual Penetration by Force
Here, there was sufficient evidence to support the jury’s finding that when
defendant committed the sexual penetration offense, he used force. B.C. testified that,
while she was in the 7th and 8th grades, defendant inserted two fingers into her vagina on
two separate occasions. In both instances, he put his hand down her pants and forced two
fingers into her vagina. B.C. testified that it hurt her “really bad” because he pushed his
fingers deep inside her. B.C. did not try to stop him, other than tell him it hurt and push
him off her.
B.C.’s testimony that she resisted defendant by pushing him “off ” of her was
sufficient to establish that defendant was using force when committing sexual
11
penetration. In addition, B.C. testified defendant caused her to suffer extreme pain when
he pushed two fingers deep into her vagina. The jury could have reasonably found that
defendant used more force than was necessary to perform digital vaginal penetration
against B.C.
(b) Attempted Oral Copulation by Force
There was also substantial evidence defendant used force when committing the
offense of attempted oral copulation. Such evidence included B.C.’s testimony that she
attempted to repel defendant’s repeated attempts to force her to orally copulate him. B.C.
testified that defendant would position his penis in front of her face and against her
cheek, grab her hand, place her hand on his genitals, and grab her head and force it down
towards his penis. These acts of grabbing, holding, and restraining B.C. when attempting
to force her to orally copulate him were sufficient to support a finding of force. (Alvarez,
supra, 178 Cal.App.4th at p. 1005.)
Citing People v. Senior (1992) 3 Cal.App.4th 765, 774 (Senior), defendant argues
the facts in the instant case do not support a finding defendant used force. In Senior, the
court held there was insufficient evidence the defendant committed oral copulation by
using force because the only evidence of use of force was that the victim tried to pull
away. The Senior court stated that, since ordinary oral copulation almost always involves
“some physical contact other than genital, a modicum of holding and even restraining
cannot be regarded as substantially different or excessive ‘force’” where there is no
evidence of any struggle. (Id. at p. 774.)
12
The courts in People v. Babcock (1993) 14 Cal.App.4th 383, 388 (Babcock), and
People v. Neel (1993) 19 Cal.App.4th 1784, 1790, rejected Senior’s holding there was
insufficient evidence of force. In Babcock, the defendant grabbed the victims’ hands and
forced the victims to touch his genitals. When one victim attempted to pull her hand
away, defendant overcame her resistance. We agree with Babcock that the analyses in
Senior was flawed by an “improper attempt to merge the lewd acts and the force by
which they were accomplished as a matter of law.” (Babcock, supra, at p. 388; see also
People v. Bolander (1994) 23 Cal.App.4th 155, 163.)
Here, evidence that defendant grabbed B.C.’s hand, placed it on his genitals,
grabbed her head, and forced her head down towards his penis was sufficient to support a
finding that defendant used force when committing the offense of attempted oral
copulation. Defendant argues there was insufficient evidence of force because, when
B.C. resisted, defendant did not overpower her resistance. B.C. walked away from him
without defendant forcing her to comply. But the evidence of defendant’s use of force
before B.C. resisted was sufficient to support a finding that defendant attempted to orally
copulate B.C. using force beyond that needed to commit the act of oral copulation itself.
(c) Oral Copulation by Force
As to the oral copulation offense (count 5), we conclude there was insufficient
evidence defendant used force. B.C. testified that defendant pulled down her pants to her
knees and placed his mouth on her genitals on four or five separate occasions. This
occurred within about the same time frame as the sexual penetration offenses, while she
13
was in the 7th and 8th grades. B.C. testified that when defendant put his mouth on her
genitalia, it was uncomfortable. B.C. would try to push him away but, at times, she was
afraid to stop him. Other times she would get tired of defendant sexually abusing her.
She then would get aggressive and push him away. B.C. testified she did not stop
defendant from pulling down her pants because she was scared. The oral copulation
occurred at defendant’s home while MGM was in the bathroom, sleeping, or outside in
the garden. B.C. feared that if she told MGM what was happening, defendant would
deny it, lie, and blame B.C. B.C. also testified that she was afraid defendant would hurt
her but she did not say why she feared this.
Although there was evidence that on some occasions defendant used force when
he committed sexual acts other than oral copulation, the evidence was insufficient to
support a finding he used force when committing the charged oral copulation offense.
There was no evidence he used any force other than what was necessary to commit oral
copulation.
When assessing whether defendant used force to commit oral copulation, the jury
could consider B.C.’s resistance to his acts. (Babcock, supra, 14 Cal.App.4th at p. 387.)
In Babcock, the court stated that, “[a]lthough resistance is not required to prove forcible
sexual assault, the jury could reasonably have considered Rachel’s resistance in assessing
whether defendant used force to accomplish the lewd act.” (Id. at p. 387.) The Babcock
court added that “[w]hether a defendant used ‘physical force substantially different from
14
or substantially in excess of that required for the lewd act’ [citation] is properly left as an
issue for the jury to resolve.” (Id. at p. 388.)
In Alvarez, supra, 178 Cal.App.4th 999, the court held there was sufficient
evidence to prove the defendant used force beyond that necessary to perpetrate the
charged offenses of forcible lewd conduct and aggravated sexual assault against a nine-
year-old child. (Id. at pp. 1002, 1004.) When the Alvarez defendant committed the first
offense, the child resisted and attempted to push him away. He held her “hard” and
“tight” when he inserted his finger into her vagina and refused to stop when the child
asked him to. The child was unable to get away. The defendant made her grab his penis.
When she let go, he grabbed her hand and held it around his penis. During a second
incident, the defendant pulled the child on his lap and digitally penetrated her vagina.
The child tried to fight him off and begged defendant to relent. Defendant refused. He
took her hands, placed them on his penis, and forced her to “pull on it.” The child tried to
move her hands away but the defendant held them there. (Id. at pp. 1003, 1005.)
The court in Alvarez stated that, “[o]n this record, it is clear appellant applied
physical force that was substantially different from that necessary to accomplish the lewd
acts themselves. All that was necessary to commit this act was a lewd touching. The
application of force here was substantially different, regardless of whether it was
substantially greater. Accordingly, there is sufficient evidence to uphold his convictions
for forcible lewd conduct and aggravated sexual assault.” (Alvarez, supra, 178
Cal.App.4th at p. 1005.)
15
The court in Senior explained that “[t]he ‘force’ factor differentiates the charged
sex crime from the ordinary sex crime. Since ordinary oral copulation and digital
penetration almost always involve some physical contact other than genital, a modicum
of holding and even restraining cannot be regarded as substantially different or excessive
‘force.’” (Senior, supra, 3 Cal.App.4th at p. 774.) But as discussed above, the courts in
Babcock, supra, 14 Cal.App.4th at page 388, and People v. Neel, supra, 19 Cal.App.4th
at page 1790, rejected Senior’s holding that there was insufficient evidence of force
because the Senior court merged the force necessary to accomplish the requisite elements
of the crime of oral copulation with the use of additional force used to perform the
offense. (Babcock, supra, 14 Cal.App.4th at p. 388.)
Here, there was no evidence that when defendant committed oral copulation, he
used force different than that necessary to perpetrate the charged offense of oral
copulation. (Senior, supra, 3 Cal.App.4th at p. 774; Alvarez, supra, 178 Cal.App.4th at
pp. 1002, 1004.) There was also no evidence of any struggle or repression. There was
evidence that, when defendant committed the oral copulation offenses, at times, B.C.
would push him away. However, there was no evidence that defendant persisted or
responded with force after B.C. pushed him away. Unlike in Babcock and Alvarez, there
is no evidence defendant overcame B.C.’s resistance when she pushed defendant away.
2. Duress and Fear
Although there was insufficient evidence defendant used force when committing
oral copulation, there was sufficient evidence defendant used duress. A showing of use
16
of any one of the factors of force, fear, or duress will suffice to establish the offense is an