People v. Sosa CA4/1 ( 2021 )

Filed 1/22/21 P. v. Sosa CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076457
Plaintiff and Respondent,
v. (Super. Ct. No. SCN384049)
JORGE LUIS SOSA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert J. Kearney, Judge. Affirmed.
Jay K. Temple for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant
Attorney General, Julie L. Garland, Assistant Attorney General,
Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff
and Respondent.
Between 2011 and 2016, IP’s childhood was marred by the sexual abuse
he endured from his great-uncle, defendant Jorge Luis Sosa.1 IP’s younger
brother, LS, was also molested by Sosa, though less frequently. At his trial,
Sosa denied any wrongdoing and suggested that perhaps two testicular
“exams” he gave to IP had been misconstrued. IP, LS, and another adult
nephew all testified that Sosa had sexually abused them. A jury convicted
him of 26 out of the 27 charged counts.
On appeal, Sosa claims his due process rights were violated by the
broad time spans associated with certain counts. We need not reach the
particulars of his argument since we find this claim was forfeited. He also
challenges the evidence supporting various convictions, claiming that
(1) specific and general incidents cannot be sufficiently distinguished, (2) the
testimony failed to establish the force necessary for certain counts, and
(3) the evidence falls short of demonstrating some offenses were completed to
the degree of contact or penetration that is statutorily required. For reasons
we explain below, we conclude there was sufficient evidence presented for a
reasonable jury to find Sosa guilty beyond a reasonable doubt as to each of
the challenged counts. Consequently, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Sosa’s Abuse of IP and LS
Jorge Sosa was the uncle everyone loved. He was fun-loving, involved
with his family, and supportive. Sosa had no children of his own, but
maintained strong ties with his extended network of nieces and nephews.
His house in Escondido was a gathering place, and it was not uncommon for
1 With the exception of the defendant, we refer to parties in this case by
their initials or first names to protect privacy interests. (Cal. Rules of Court,
rule 8.90.)
2
Sosa and his long-term partner Robert to open their home to family members
or friends who needed a place to stay. At various times, both the garage and
the bar were converted into bedrooms to accommodate more people.
So when Sosa’s niece Ivon found herself laid off after giving birth to her
fifth child, she turned to her uncle, who had always been her confidant and a
source of support. Sosa suggested she and the kids move to Escondido to live
with him, rent free, until she got on her feet. He said it would be a new
beginning for all of them. Ivon agreed.
They moved into Sosa’s house in early 2011. Ivon and her infant
daughter stayed in a bedroom while her two older daughters and two sons, IP
and LS, slept in the converted bar. The family stayed until 2013, when Ivon
leased an apartment just down the street. Even then, Sosa’s house remained
a central location in the children’s lives. One of Ivon’s older daughters, IH,
lived there during her senior year in high school and the boys were regularly
sent over to their uncle’s house when Ivon needed childcare. Throughout the
years, Sosa also helped Ivon financially. She accepted small loans from him,
including $1,700 in 2017 she needed to file for bankruptcy.
At some point after they moved into the house, Sosa began molesting
IP. IP generally remembered that it happened “throughout middle school,”
but he also recalled incidents from the period when his family lived with Sosa
and after they moved out. IP turned nine in the summer of 2011, so he could
have been as young as eight when the abuse started. It continued until mid-
2016, and was only disrupted because IP moved to Los Angeles to live with
his father. After that, Sosa turned his attention to LS. The younger boy was
about twelve years old at the time.
For years, IP remained silent about the abuse; he was embarrassed and
thought no one would believe him given Sosa’s beloved status in the family.
3
He also noted that Sosa was “very nice” to Ivon and that “he helped us just a
lot.” But in early 2018, two events prompted IP to tell someone. The first
was a holiday gathering where he learned from his cousin that his Uncle
Patrick had also been abused by Sosa as a child. The second was a classroom
conversation where IP’s male teacher shared that he had been molested as a
child. That same day, IP called Patrick to tell him what happened. Patrick
assured IP it was not his fault and, at IP’s request, called Ivon to tell her.
While she was still on the phone with Patrick, Ivon asked LS if Sosa had
touched him, and her youngest son nodded. The next day, Patrick drove
down from Los Angeles with IP and they went with Ivon and LS to file a
police report in Escondido. Within a few days, both IP and LS had forensic
interviews to document their accounts.
Sosa was charged by the San Diego District Attorney with 27 counts in
total; counts 1 through 25 concerned his abuse of IP, alleging oral copulation
with a child 10 years or younger (Pen. Code, § 288.7, subd. (b)),2 forcible lewd
or lascivious acts on a child under 14 years (§ 288, subd. (b)(1)), and
aggravated sexual assault of a child under 14 years (§ 269, subd. (a)). Only
counts 26 and 27 addressed Sosa’s abuse of LS, alleging lewd or lascivious
acts on a child under 14 years, but without force (§ 288, subd. (a)). Most
counts also included allegations of more than one victim (§ 667.61, subds. (b),
(c) and (e)), and substantial sexual conduct with a child under 14 (§ 1203.66,
subd. (a)(8)).
2. The Trial
LS, IP and Patrick all testified about Sosa’s abuse. While no other
family members witnessed anything inappropriate, IH did notice that Sosa
2 All further statutory references are to the Penal Code.
4
“catered to the boys,” took them on special outings, and generally paid more
attention to them.
LS testified that Sosa touched him inappropriately once, likely
sometime in 2017, after his brother moved to Los Angeles. They were in
Sosa’s bedroom with the door closed. At first, Sosa asked to see LS’s pubic
hair. Then he reached down LS’s pants and touched his nephew’s penis with
his hand. Although LS initially reported to police that this happened twice,
he only testified to one incident at trial.
IP recounted a much longer history of abuse. His uncle was a father
figure whom he trusted and loved very much. Sosa started “touching” him
after his family moved into the house. It happened “whenever we would be
alone” and usually took place in Sosa’s room.3 He testified in general terms
that Sosa orally copulated him often and typically touched his penis during
these episodes, which happened more than once both while he lived with Sosa
and afterward. He could not remember every time the abuse happened, but
he did have distinct memories of some incidents: one that took place in the
shower, one in his sister’s room, one in the garage, and events that occurred
the night before Sosa took him to the fair.
As to the shower incident, IP remembered one time when the other
shower in the house was occupied by one of his siblings, so he went into the
master bathroom—which was connected to Sosa’s room—to shower. Sosa
came in, reached into the shower, touched his penis, and told him he loved
him and would not hurt him.
The garage incident took place after IP’s family moved down the street.
At his mom’s instruction, IP went to Sosa’s house one day after school to pick
3 Although Sosa’s partner of more than 30 years also lived in the house,
they slept in separate bedrooms.
5
out a Halloween costume. Sosa took him to the garage where the costumes
were stored and pulled out a box, but then took off IP’s pants, held his arms
down, and orally copulated him. He stopped when they heard Ivon’s car pull
up in the driveway. This was the only time something happened in the
garage.
The incident in IH’s room also occurred during this general time frame.
IH moved back to Sosa’s house during her last year in high school and stayed
in the same room the children had previously shared. At some point, IP, Sosa
and IH were all in that room when she left to take a shower. Sosa then held
IP down on the floor, took off his pants, touched IP’s genitals with his hands,
and orally copulated him. IH came back briefly, apparently to retrieve
something she forgot, and Sosa pulled IP’s pants back up and pretended he
had been tickling IP. IH never saw anything inappropriate take place.
In addition to these distinct events, IP also remembered instances
when the abuse escalated. On at least three occasions, Sosa made IP engage
in sodomy.4 He used lotion on IP’s penis and directed it to Sosa’s “butthole”;
this happened more than one time. IP did not provide granular details but
did distinguish between the “butthole” and “outside of the butt” to indicate
where his penis went. On one occasion, Sosa also used his penis to touch IP’s
butthole.
The last specific incident IP could remember took place the night before
Sosa took IP and LS to the Del Mar fair in the summer of 2016. The boys
spent the night, and IP was nearly asleep in the living room when Sosa got
him up and pulled him into the bedroom. He stroked IP’s penis with his
4 Sodomy is “sexual conduct consisting of contact between the penis of
one person and the anus of another person.” Although the conventional
understanding of forcible sodomy might assume the victim as the person who
was penetrated, the statute makes no such distinction. (§ 286, subd. (a).)
6
hand, orally copulated him, and then touched IP’s “butthole” with his finger.
At that point, IP pushed his hand away and managed to leave. Sosa
apologized. That same night, Sosa also made IP orally copulate him. This
incident seemed difficult for IP to recount; he testified in general terms at the
preliminary hearing that Sosa pulled his head toward Sosa’s penis and tried
to force copulation, but at trial he explained that was not how it happened.
No physical force was used, he just trusted Sosa—who made him think it
would be okay.
Patrick’s account, which detailed three incidents from his childhood,
was offered as propensity evidence. There were significant similarities
between the type of behavior Patrick recounted and that reported by IP and
LS. It started when Patrick was 8 to 10 years old. The first time, Sosa made
Patrick expose himself, grabbed Patrick’s penis and then masturbated in
front of him. In the second incident, Sosa orally copulated Patrick while
another cousin slept in the same room. Patrick was able to leave during the
third incident before it went very far, but Sosa started by massaging Patrick
with lotion and then apologized when Patrick got up and left.
Patrick’s experience was broadly corroborated by his oldest child, who
testified that her father relayed the story of his abuse to her before she and
her siblings visited Sosa’s house for an overnight. He told her so she could
keep an eye out for her younger siblings during the trip. For his part, Patrick
remembered this conversation differently. He thought he talked to all of his
children about molestation to help them be aware of what could happen and
disclosed his experience with Sosa to demonstrate that “sometimes it’s the
people that you least expect.” Generally, Patrick thought his abuse was an
isolated relational dynamic and gave Sosa the benefit of the doubt that he
would not repeat the behavior.
7
The defense witnesses included Robert (Sosa’s partner), Oscar (another
nephew), Theresa and the defendant. Oscar and Theresa both lived in the
house after IP and LS moved out and never observed inappropriate conduct
between Sosa and the boys. Oscar also lived with Sosa for periods in his
childhood and was never abused. Robert generally expressed his shock at the
allegations.
Sosa’s account was something short of a blanket denial; although he
asserted he was never inappropriately sexual with his nephews, he said he
gave IP two testicular exams and showed him how to masturbate when his
nephew complained of pain.5 But he denied it was sexual, and also denied
ever touching Patrick or LS in any way. Sosa’s interview with the police,
where he discussed these exams, was also played for the jury. There was
scant evidence offered to suggest a motive for any of Sosa’s nephews to
fabricate the allegations. Sosa apparently removed Ivon as a beneficiary on
his retirement accounts in 2017, and in closing argument the defense
suggested the boys lied for “financial reasons.” But even from the defense
perspective it was unclear how Ivon, her sons, or Patrick would benefit
financially from conspiring to frame Sosa for sexual abuse.
The jury convicted Sosa of counts 1 through 26 out of the 27 charged
and found all the associated allegations true. He was only acquitted on the
last count, which alleged a second incident as to LS.
5 Sosa worked as a pediatric medical assistant and it was not uncommon
for him to attend to medical complaints in the family.
8
DISCUSSION
1. Due Process
The defendant’s first contention concerns the broad time periods
associated with his convictions. He asserts these date ranges—some of which
exceed five years—denied him due process because they prevented him from
mounting an effective defense. The crux of Sosa’s argument is that because
there is no authority expressly approving such long time periods, they must
be constitutionally impermissible.
We first observe that the primary authority on this point, People v.
Jones (1990) 51 Cal.3d 294 (Jones), suggests a contrary conclusion. The
Jones court considered the tension between due process and the often generic
nature of sexual abuse allegations from children, and determined that in
cases where the defendant either lives with or has “continuous access” to the
child, generic allegations “by no means deprive the defendant of a reasonable
opportunity to defend.” (Id. at pp. 299, 320.) This is largely because alibi and
mistaken identity defenses can rarely be employed by defendants who have
ongoing access to and a relationship with a child-victim. In such cases,
denying the abuse and challenging the child’s credibility is usually the only
feasible course. (Id. at p. 320.) Sosa attempts to distinguish his case from
Jones because he did not live with IP and LS during the entire period in
which the crimes occurred. But in making this argument, he ignores his
routine and continued access to the children. He lived just down the street,
and the witnesses offered a general consensus that IP and LS visited Sosa’s
residence frequently after they moved out. Sosa thus had continuous access
to the children throughout and, accordingly, the rationale in Jones applies to
all of his convictions—not merely those from the period where the boys lived
with him.
9
The defendant takes further issue with any application of Jones that
would broaden it beyond the two-month time periods it considered. (Jones,
supra, 51 Cal.3d at p. 303.) Subsequent cases indicate some expansion is
permissible but provide little guidance on the upper limits. (See People v.
Gear (1993) 19 Cal.App.4th 86, 95 [applying Jones where the abuse occurred
over several months]; Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 989
[approving the appellate court’s application of Jones where charged date
ranges spanned more than one year].) However, we need not reach the more
difficult question of whether a six-year period pushes Jones’s due process
analysis past its parameters because we conclude Sosa forfeited this claim.
According to Sosa, he raised a due process concern about the length of
the charging periods at the beginning of the preliminary hearing. Prior to
IP’s testimony, defense counsel did lodge some concerns regarding the
complaint, noting that although she had no problem with the prosecutor
charging date ranges in general, she could not easily determine which
conduct aligned with which dates—a problem that was magnified by the poor
audio quality in IP’s forensic interview. The court discussed these challenges
with counsel and acknowledged the due process implications. It also
commented that more changes might be merited after they heard IP’s
testimony. When the hearing concluded, the court allowed the prosecution to
amend the timeframes in the complaint consistent with IP’s descriptions and
bound over on all the counts. Sosa was arraigned on an information filed two
weeks later.6
But even if we liberally construe defense counsel’s early comments as
challenging the length of the date ranges, the objection should have been
6 The People filed an amended information at the time of trial that
abandoned a handful of the counts.
10
pursued after the pleading changes that followed the preliminary hearing.
Given the number of incidents and the problem with the forensic interview,
both the prosecution and the defense lacked clarity as to the precise nature of
IP’s allegations before the hearing. It was only afterward that the People
were able to ensure that the charging allegations in the information would be
consistent with IP’s anticipated trial testimony such that Sosa could fully
understand the nature of the charges. It was at this point that Sosa should
have alerted the trial court if he truly believed the date ranges specified in
the information precluded him from mounting a defense.
Yet there were no objections or even concerns raised on these grounds
either at the conclusion of the preliminary hearing or in the intervening
period of about a year before the trial began. And procedural devices were
available for just this purpose. Sosa could have demurred to the information
(§ 1004) or filed a motion to set it aside (§ 995). (See, e.g., People v. Garcia
(2016) 247 Cal.App.4th 1013, 1022; see also People v. Pompa-Ortiz (1980)
27 Cal.3d 519, 523.) Because he did not take any steps to challenge the broad
time ranges on due process grounds at any point after the preliminary
hearing, Sosa’s attempt to revive this argument on appeal fails. (See People
v. Riggs (2008) 44 Cal.4th 248, 292 [to preserve a due process claim,
defendants must properly raise it in the trial court].)
2. Sufficiency of the Evidence
Sosa also contends there was insufficient evidence presented at trial to
sustain his convictions as to abuse of IP, and he raises various theories on
this point that we address in turn. At the outset, however, we note that in
making these arguments Sosa faces significant challenges. When considering
a sufficiency-of-the-evidence challenge, appellate courts review the record in
the light most favorable to the judgment to determine if there is reasonable
11
and credible evidence from which any rational jury could have concluded the
defendant was guilty beyond a reasonable doubt. (People v. Johnson (1980)
26 Cal.3d 557, 578.) We also “presume ‘ “in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” ’ ” (People v. Thompson (2010) 49 Cal.4th 79, 113.) “We do not
reweigh the evidence, resolve conflicts in the evidence, or reevaluate the
credibility of witnesses.” (People v. Pre (2004) 117 Cal.App.4th 413, 421.)
To understand Sosa’s arguments, it is necessary to summarize his
convictions and the conduct and time periods associated with each. There are
two kinds of charges at issue in this case—those supported by IP’s generic
testimony about the abuse, and those based on testimony concerning specific
incidents he remembered. The counts based on generic testimony were often
charged as first and last times for a particular type of conduct during a
certain period. There are three primary time periods, although some counts
do not align precisely with these dates: the first spans from January 1, 2011
to July 7, 2013, when IP lived with Sosa; the second covers July 8, 2013 to
April 30, 2016, when IP lived in a nearby apartment; and the third runs from
May 1, 2016 to July 26, 2016, the summer immediately before IP moved to
Los Angeles.
Counts 1 through 7 all took place during the first period. Counts 1
through 4 (based on two incidents each charged in the alternative under two
different statutes) allege a first and last time that Sosa orally copulated IP.
Counts 5 through 6 cover a first and last time where Sosa touched IP’s penis
with his hand. Count 7 is based on the specific shower incident where Sosa
came into the bathroom and touched IP’s penis.
Counts 8 through 11, and 13 through 16 all took place during the
second period. Counts 8 through 11 are counterparts to 1 through 4,
12
concerning the first and last times that Sosa orally copulated IP (again
charged in the alternative). Counts 13 and 14 are the first and last time Sosa
touched IP’s penis with his hand. Counts 15 and 16 are based on specific
incidents and, respectively, they concern Sosa orally copulating IP in the
garage and touching IP’s penis in IH’s room.
Counts 12, and 21 through 24 happened in the third period and cover
abuse that occurred the night before the fair—namely, Sosa’s oral copulation
of IP, sexual penetration of IP’s anal opening with Sosa’s finger, and IP’s oral
copulation of Sosa.7 Finally, counts 17 through 20 span the first two periods,
from 2011 to 2016, and are charged in the alternative for two incidents: the
first and last time that Sosa made IP engage in sodomy.
a. Distinguishing first and last incidents from specific incidents
Sosa asserts that IP’s generic testimony supporting counts 1 through 6,
8 through 11, and 13 through 14 cannot be differentiated from the
particularized incidents that support Sosa’s convictions for conduct in the
garage, the shower, IH’s room, and before the fair. After a careful review of
the record, we conclude that a reasonable jury could find these incidents were
all separate based on IP’s testimony.
IP’s general testimony specified that Sosa abused him “whenever we
would be alone.” It happened in Sosa’s room, where IP recalled Sosa would
sometimes lock the door, and then “tell me that he won’t hurt me, that it’s
going to be okay[,] [and then] take off my clothes and touch me in places I
wouldn’t like.” When he elaborated more on what generally occurred, IP
explained that Sosa would orally copulate him “the most,” and that this
conduct happened both while they lived together and afterward. He also
7 While count 12 was charged in a broader period, IP testified at trial
that it happened the night before the fair.
13
answered affirmatively when asked if Sosa orally copulated him “often,” and
if there were “multiple” incidents of this kind that spanned the first and
second periods. Linking the copulation with manual touching, IP explained
that Sosa usually touched his penis with his hand at some point during the
episodes of oral copulation. He affirmed that Sosa touched him this way
more than once both when he lived with Sosa and after his family moved out.
Taken as a whole, IP’s testimony indicates Sosa generally abused him
in the master bedroom and that he touched IP’s penis with his hand and
orally copulated him at least twice in both the first and second periods.
There is also a strong suggestion that this occurred more than twice.
Although phrases like “whenever we would be alone” are admittedly
ambiguous regarding frequency, a strong inference can be drawn that this
abuse was a regular fixture of IP’s childhood.
In terms of distinguishing the specific incidents IP recalled from the
less memorable first and last times, there were significant factors setting the
specific incidents apart that could lead a reasonable jury to conclude they
were additional abuse events.
As to the shower incident, IP specifically testified that he could not
really remember the first time that Sosa touched his penis with his hand, but
he had a distinct memory of an incident in the shower. This indicates it was
not the first time. At other points, IP expressed difficulty in recalling last
incidents of abuse, and affirmed that it happened so often he could not
remember every time. Given our deferential standard of review, this is
enough for the jury to reasonably conclude the specific shower incident did
not overlap with the first or last time Sosa touched IP’s penis while they lived
together.
14
The incidents in IH’s room and the garage were both distinguished by
their unusual settings, and this difference provided enough grounds for a
reasonable jury to conclude they were distinct from the more routine abuse IP
described as taking place in Sosa’s room. (See Jones, supra, 51 Cal.3d at
p. 316 [describing how reference to abuse in a certain location can help
establish the number of acts in child molestation cases].) Indeed, the
prosecutor suggested that this change of setting accounted for IP’s stronger
recollection; it was precisely the deviation from the norm that made these
incidents memorable.
A similar logic applies to the abuse that occurred the night before the
fair. Although it happened in a familiar setting—Sosa’s bedroom—it was
distinguished by the activity. It was also set off temporally, taking place in a
distinct third charging period during the summer before IP moved to Los
Angeles. IP remembered this night well, perhaps because it was the only
time that he was made to orally copulate Sosa and that Sosa touched IP’s
anal opening with his finger. It is unclear if the latter happened more than
one time, but IP’s testimony indicated it was not a common occurrence.
The prosecution’s treatment of these as independent events throughout
the trial reinforces our conclusion that a reasonable jury could have
concluded as much. In the prosecutor’s closing argument, she specifically
distinguished the incidents in the garage, the shower, IH’s room, and the
night before the fair from the other charges. She also explained that some
other counts, which were charged in the alternative, provided two different
paths to a conviction for the same underlying conduct. The reasonableness of
this particular jury’s deliberations are not determinative in our review, but it
is helpful to note that it is highly unlikely Sosa’s jury mistakenly believed the
same conduct could form the basis for the specific and generic counts. He was
15
convicted of the generic and specific counts as separate incidents by the same
attentive panel that found there was insufficient evidence that he abused LS
more than once.
This issue was further considered by the trial court at Sosa’s
sentencing hearing when it stayed some of the alternatively charged counts
based on section 654. The court made a finding that the specific incidents
were distinct from the first and last generic incidents. “There were certain
counts, first time, last time, within a certain date range. There were also,
separate from those counts, particular incidents that the victims were able to
recall and stood out to them that were charged separately. “I don’t find that
those were covering the same acts . . . I do find all the counts are different
acts, different locations, different time frames.” (Italics added.) Given the
record before us, we are convinced a reasonable jury could draw the same
conclusion. Insofar as Sosa argues we should attend to inconsistencies in IP’s
testimony, particularly parts of his cross-examination where he expressed
more uncertainty than in his direct testimony, we decline the invitation to
reweigh IP’s credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
b. Evidence of force or duress
Next, Sosa asserts that IP’s testimony was insufficient to support the
element of force needed to convict on counts 3 through 7, 10 through 11, and
13 through 14. All of these fall under section 288, subdivision (b)(1), which
penalizes an aggravated lewd act on a child under 14 by means of “force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person.” Sosa correctly notes that IP testified he was
never threatened, but he glosses over duress—one of the enumerated
possibilities in subdivision (b) and the one that best fits this fact pattern.
16
An outright threat is not required to sustain a conviction under
subdivision (b). (§ 288, subd. (b).) Duress is an independent aggravating
factor apart from the others listed. (People v. Schulz (1992) 2 Cal.App.4th
999, 1005 (Schulz) [“ ‘Duress’ would be redundant in the cited statutes if its
meaning were no different than ‘force,’ ‘violence,’ ‘menace,’ or ‘fear of
immediate and unlawful bodily injury.’ ”]; see also People v. Soto (2011) 51
Cal.4th 229, 239 (Soto) [detailing the legislative history of section 288,
subdivision (b) and amendments to the list of aggravators].) Even when “the
victim testifies the defendant did not use force or threats [that] does not
preclude a finding of duress.” (People v. Thomas (2017) 15 Cal.App.5th 1063,
1072 (Thomas).) In this statutory context, duress is defined as “ ‘a direct or
implied threat of force, violence, danger, hardship or retribution’ ” that is
enough to coerce a reasonable person to engage in, or submit to, acts they
would otherwise not have performed. (People v. Leal (2004) 33 Cal.4th 999,
1004.) Juries are instructed to “consider all the circumstances” in evaluating
duress, including the age of the child and the child’s relationship with the
defendant. (CALCRIM No. 1111; see also People v. Cochran (2002) 103
Cal.App.4th 8, 16 (Cochran).) Consequently, we assess whether the
evidence—including the holistic “totality of the circumstances”—provided a
basis for a rational jury to conclude that IP was coerced into the lewd acts by
an implied threat of hardship, danger or retribution.
A review of the relevant case authority puts the facts of this case
comfortably within the realm of duress. “When the victim is young and is
molested by her father in the family home, duress will be present in all but
the rarest cases.” (Thomas, supra, 15 Cal.App.5th at pp. 1072‒1073.)
Although Sosa was not IP’s biological father, he was seen by many family
members in this light. IP described his relationship with Sosa in these
17
terms: “He was like a father to me. I just—I loved him very much. I trusted
him.” Nearly all the testifying family members repeated this
characterization; Sosa was a father figure to many in the family, and IH
noted that he took on this role for the boys in particular. They would camp
together in the back yard, play video games, and he planned “special days”
for them. Considering Sosa’s fatherly role, IP’s young age when the abuse
began (likely eight or nine), and the fact that they lived together, there is no
reason to distinguish this case from others that find duress when a father
molests a child in the family home. (See Cochran, supra, 103 Cal.App.4th at
p. 15 [duress supported when a nine-year-old victim seemingly went along
with her father’s abuse].)
Several other factors indicative of duress are also present here. IP was
much smaller than Sosa, who weighed approximately 250 pounds. (Schulz,
supra, 2 Cal.App.4th at p. 1005 [relative size of abuser and victim is a duress
factor].) One obvious reason that size matters is the offender’s ability to
physically control the child, which happened here; IP explained that on
several occasions he could not physically get away from Sosa, who held his
arms down or held him down on the ground to accomplish the lewd acts. IP
would try to push him off, but Sosa would not let him. In IP’s words, “He was
too big . . . . I wasn’t strong enough to push him away from me.” Although
this might amount to no more than the force physically necessary to complete
the assault—which would fall short of establishing force under subdivision
(b)—it is nonetheless an additional indicator of duress. (Soto, supra, 51
Cal.4th at p. 242; Thomas, supra, 15 Cal.App.5th at p. 1072 [abuser
“physically controlling the victim when the victim attempts to resist”
supports duress].) Continuous abuse over time and assaults that “took place
in an isolated room out of the presence of other adults” are yet more
18
indicators of duress that were also present in this case. (People v. Superior
Court (Kneip) (1990) 219 Cal.App.3d 235, 238‒239 (Kneip).) These factors
alone may be enough for a reasonable jury to find the lewd acts were
committed by duress. (See Mena v. Muniz (C.D.Cal., Nov. 18, 2015, No. CV
15-2691-JGB (KS)) 2015 U.S. Dist.Lexis 171615, *15.) But the psychological
manipulation and the power dynamics in the family provide even more
significant evidence of duress.
Sosa groomed IP to accept the abuse, starting with touching and oral
copulation and then introducing more varied sex acts over time. He used his
“longstanding relationship of trust” (Kneip, supra, 219 Cal.App.3d at p. 238)
to manipulate IP, telling the boy he loved him and would not hurt him. He
even apologized when IP managed to leave the room—a tactic he piloted on
Patrick. Indeed, Sosa retained Patrick’s trust such that as an adult, he still
gave Sosa the benefit of the doubt. The results of his grooming IP were even
more severe. IP continued to trust Sosa even during incidents of abuse. He
testified that, although he did not want to engage in sex acts with Sosa, his
uncle “made me think it was okay.” As we have previously observed, “[t]he
very nature of duress is psychological coercion.” (Cochran, supra, 103
Cal.App.4th at p. 15.)
The uneven division of power in the family may have compounded
Sosa’s coercive influence on IP, and certainly demonstrates an implied threat
of hardship. When the molestation started, IP’s family was living with Sosa
because Ivon had lost her job and was caring for a new baby. Although the
nuances of this arrangement might have been best understood by the adults
involved, children are capable of appreciating their parent’s dependence on
another person. And this dynamic was not lost on IP. In explaining why he
stayed silent about the abuse, IP mentioned that Sosa helped his family a lot.
19
He was also acutely aware of his mother’s close relationship with Sosa.
Ivon loved her uncle, depended on him, and looked up to him. Even after IP
moved to Los Angeles and no longer lived with his mother, it was so difficult
for him to confront her with the shattering news of Sosa’s abuse that he
asked Patrick to tell her instead. All of this evidence supports the conclusion
that the family power dynamics, in which Sosa provided both financial and
emotional stability, contributed to an implied threat of hardship if IP did not
submit to the abuse.
Taken as a whole, the record tells the story of a young boy who was
singled out and preyed on by a beloved uncle who supported his mother in
multiple ways. Sometimes IP physically resisted the abuse—but it did not
matter. His uncle would hold him down or grab his arms. This degree of
force, while not overtly violent, sent a message that he needed to submit.
And he did. He submitted out of necessity, but also out of love and trust,
even though the abuse embarrassed him and made him uncomfortable. He
endured it for many years, initially protecting his family’s relationships and
stability while his mother got back on her feet; he then continued to do so
when she relied on his abuser for childcare and small loans. It was not
necessary for his uncle to hint that adverse consequences would follow if the
boy told someone. He knew that his family could lose his uncle’s support,
which was a strong fiber in the social fabric that provided them with
stability.
Given this broader context, a reasonable jury could find beyond a
reasonable doubt that the abuse was accomplished by means of duress.
Whether any other inferences could be drawn from the record is irrelevant.
(Marroquin v. Hernandez (C.D.Cal., Jan. 24, 2013, No. CV 08-2658-CJC (JC))
2013 U.S.Dist.Lexis 52659, *28, *46 [faced with a record that could support
20
either a finding of duress or lack thereof, the reviewing court must respect
the jury’s inference].)
c. Evidence supporting counts 7 and 12
Sosa advances a thin argument that IP’s testimony is inconclusive as to
whether the defendant actually touched IP’s penis during the shower
incident. In the relevant portion of his testimony, IP emphasized he “tried to
scoot away from him” and the defendant kept “trying to reach for [IP’s]
penis.” The prosecutor then asked, “And were you standing in the shower
when [Sosa] used his hand to touch your penis?” to which IP replied, “Yes.”
The defendant asserts that, due to the form of this question, it would be
“entirely speculative to say whether the testimony meant anything other
than: yes I was standing in the shower.” We need not speculate to conclude
that IP answered affirmatively because the question was an accurate
description of how this incident took place. Moreover, a reasonable jury could
easily conclude he answered yes to both parts of the question.
Sosa also contends there was insufficient evidence of force or duress to
support counts 7 and 12 specifically. We refer to our discussion above on that
point.8 We also note the defendant’s faulty premise that duress must be
demonstrated for each count in isolation; if a jury were bound by that
analytical approach, its ability to consider the holistic circumstances would
be undermined. (See Mendez v. Davey (C.D.Cal., Aug. 18, 2017, No. EDCV-
8 In challenging count 12, Sosa suggests this conviction requires an
additional showing (beyond what is required for a section 288, subdivision
(b)(1) offense) that the act was accomplished against the victim’s will. (§ 269,
subd. (a)(4); § 287, subd. (c)(2)(A).) This statutory factor is irrelevant in a
child abuse case. The jury instruction, which was provided, explains this
element as a lack of consent. (CALCRIM No. 1015.) It is well established that
children cannot consent to sex acts with adults as a matter of law. (Soto,
supra, 51 Cal.4th at p. 238.)
21
15-2496-PSG (JEM)) 2017 U.S.Dist.Lexis 156852, *25 [“California permits
generic testimony in child molestation cases . . . and does not require the
prosecution to specifically link the evidence of force to each act of sexual
assault.”].)
d. Evidence that penetration occurred as to counts 17, 18 and 23
The defendant’s last argument is that IP’s testimony did not clearly
establish penetration occurred—which is a necessary element for three of his
convictions. Counts 17 and 18 (§§ 269, subd. (a)(3), 286, subd. (a)) and Count
23 (§§ 269, subd. (a); 289, subds. (a) and (k)) all require sexual penetration,
“however slight.”
But these statutes do not provide clear definitions or explain precisely
what constitutes anal penetration. We turn to People v. Paz (2017) 10
Cal.App.5th 1023 (Paz), which gave thorough treatment to this question. In
Paz, the court considered the historical development of the sodomy law and
its relation to the other three major sex offenses—rape, oral copulation, and
sexual penetration. (Id. at pp. 1030‒1033.) Relying on the Supreme Court’s
commentary in People v. White (2017) 2 Cal.5th 349, 357 that “the provisions
regarding the four major sex crimes [substantively] parallel each other,” the
Paz court reasoned that penetrative thresholds defined in rape law should
inform what constitutes penetration of the anus. (Paz, at p. 1032.) In the
context of rape, penetration of the external female genital organs—that is,
the outer labia majora—is sufficient “even if the rapist does not thereafter
succeed in penetrating into the vagina.” (People v. Karsai (1982) 131
Cal.App.3d 224, 232.) The Paz court went on to provide a detailed analysis of
the anatomy of the anus and conclude that the outermost part of the perianal
skin—marked by the wrinkled or folded dermis that radiates from the anus—
is as much a part of the external anal structure as the labia is to the vagina.
22
(Paz, at pp. 1034‒1035.) Finding “no reason to adopt different penetration
rules for the anus and the vagina,” it consequently held that there must be
“penetration past the buttocks and into the perianal area but [not]
penetration beyond the perianal folds or anal margin.” (Id. at p. 1038.)
The question before us, then, is whether the testimony elicited at trial
would allow any reasonable jury to conclude beyond a reasonable doubt that
the incidents IP described involved penetration past the buttocks and of, at a
minimum, the perianal folds or anal margin; under Paz, nothing more is
required. (Paz, supra, 10 Cal.App.5th at p. 1038.) The defendant argues IP’s
testimony was too vague on this point, but we disagree. IP distinguished
between touching that occurred to the “outside of the butt” and the
“butthole.” A jury could reasonably have inferred “outside of the butt” meant
buttocks and “butthole” meant anus. That is actually the plain conclusion,
given the colloquial meaning of the terms IP used. (See Merriam-Webster’s
Online Dictionary (2021)
[as of Jan. 20, 2021], archived at , and
[as of Jan. 20, 2021],
archived at .) As such, a reasonable jury that
credited his testimony could have found there was penetration on all three
counts consistent with the Paz court’s “broad view of genital boundaries.”
(Paz, at p. 1037.) We sincerely doubt that IP meant to describe another part
of the anatomy shy of the anus when he used the term “butthole.” Even if
that were a possibility, however, the evidence need not “conclusively rule out
various scenarios under which defendant might not be guilty.” (People v.
Bolden (2002) 29 Cal.4th 515, 553.) It only needs to support the judgment.
That threshold has been met in this case.
23
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
24