PEOPLE v. MONTEJANO

No. F070213.

THE PEOPLE, Plaintiff and Respondent, v. SALOMON MONTEJANO, Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Randy S. Kravis , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Michael P. Farrell , Assistant Attorney General, Stephen G. Herndon and Melissa Lipon , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

SMITH, J.

Salomon Montejano subjected the niece of his girlfriend to routine sexual molestation for seven years, from the time she was five years old until she was 12. He was convicted of a total of 11 counts and received a sentence of 145 years to life. In this appeal, he argues the evidence was insufficient to support five of the counts. He also maintains there were several errors in the jury instructions and a fine and penalty assessments, totaling $1,650, were unauthorized.

The People do not address the fine issue in their brief. We agree with Montejano that the fine in question was inapplicable, but striking that fine brings the correctness of the trial court's calculation of other fines into question. It will be necessary to remand to allow the trial court to recalculate those other fines. We reject the remainder of Montejano's arguments.

FACTS AND PROCEDURAL HISTORY

The victim, referred to in the record only as Jane Doe, was born on April 20, 2000, and was the niece of Montejano's girlfriend, Christina, whom Montejano met in 2001. Montejano was arrested on February 20, 2013, one day after the victim reported the longstanding pattern of abuse to her mother. He was 37 years old at the time of trial in 2014.

The information filed by the district attorney charged Montejano with 13 counts, each of which described a crime committed by Montejano against the victim between the time when she was five years old and a date a few days before his arrest:

Count Offense Penal Dates Specified act Code1 section 1 Lewd act on a child 288, Apr. 20, under age 14 by subd. 2005, to force, violence, (b)(1) Apr. 19, duress, menace, or 2006 fear of immediate and unlawful bodily injury on the victim or another person 2 Same as count 1 Same as Same as "when the fendant forced count 1 count 1 Jane Doe to manually masturbate him when she was 5 years old" 3 Aggravated sexual 269, Oct. 20, "the first time assault of a child, subd. 2007, to digitally penetrated Jane Doe specifically forcible (a)(5) Oct. 19, when she was penetration in 2008 violation of § 289, subd. (a), of a child under age 14 and seven or more years younger than the perpetrator 4 Oral copulation or 288.7, Oct. 20, "the first time sexual penetration of subd. (b) 2007, to digitally penetrated Jane Doe a child age 10 or Oct. 19, when she was younger by a 2008 perpetrator age 18 or older 5 Aggravated sexual 269, Feb. 20, "the last time assault of a child, subd. 2012, to forced Jane Doe to orally specifically forcible (a)(4) Feb. 17, copulate him when she was 12 oral copulation in 2013 years old" violation of & 288a, of a child under age 14 and seven or more years younger than the perpetrator 6 Same as count 4 Same as Apr. 20, "the first time count 4 2010, to had Jane Doe orally copulate Apr. 19, him before 2011 7 Aggravated sexual 269, Apr. 20, "the first time assault of a child, subd. 2010, to forced Jane Doe to have sex specifically rape in (a)(1) Apr. 19, with him when she was 10 violation of § 261, 2011 years old" subd. (a)(2) or (a)(6) of a child under age 14 and seven or more years younger than the perpetrator 8 Sexual intercourse or 288.7, Apr. 20, "the first time sodomy with a child subd. (a) 2010, to forced Jane Doe to have sex age 10 or younger by Apr. 19, with him when she was 10 a perpetrator age 18 2011 years old" or older 9 Same as count 3 Same as Aug. 1, "digital count 3 2011, to in the video dated Aug. 30, 2011 10 Same as count 7 Same as Oct. 1, "intercourse count 7 2011, to videos dated Oct. 31, 2011 11 Same as count 7 Same as Oct. 1, "intercourse count 7 2011, to video dated 10/23/2011" Oct. 31, 2011 12 Same as count 7 Same as Dec. 1, "intercourse count 7 2012, to video dated Dec. 31, 2012 13 Same as count 7 Same as Feb. 15, "the last time count 7 2013 force[d] Jane Doe to have sex with him"

At trial, the victim's mother and aunt gave background testimony about their family. The mother and aunt had a close relationship. The victim and her mother lived in Madera. Montejano and the aunt met in 2001 and moved in together in Fresno in 2002. They moved to an apartment on Indiana Street in Porterville in 2002 or 2003, a house on River Springs Avenue in Porterville in 2006, and a house on Kevin Lane in Porterville in 2009 or 2010. In January 2013, they moved to a house on Bridge Way in Madera. The victim came to visit at each of these residences, sometimes with and sometimes without her mother. The victim often spent holiday vacations with the aunt and Montejano and sometimes went on out-of-town trips with them. Montejano sometimes accompanied the aunt on trips to see her parents (the victim's grandparents), and they saw the victim there. When the aunt and Montejano moved to Madera, Montejano began picking the victim up from school in the afternoon, and she would often go to his house at that time. During all this time, Montejano was employed as a butcher at a supermarket, first in Selma, then in Porterville, and finally in Madera. His work began early in the morning and ended early in the afternoon. The aunt's work as a waitress usually ended late in the evening. The aunt and Montejano had two children together.

The victim testified that Montejano routinely committed sex acts against her between 2005 and 2013. Her earliest memory of him touching her vagina was from when she was about five years old. She was not sure whether he penetrated her vagina with his finger or only rubbed it when she was that age. At another point in her testimony, she estimated that his finger first penetrated her vagina when she was eight or nine.

Even earlier, when the victim was between three and five, she recalled him putting her on his lap and shaking her. Montejano told her that she reacted to this in a way that caused him to believe she "wanted him." The victim also testified that during this very early period, Montejano would take her clothes off and play "doctor" by pinching her buttocks and pretending he had given her a shot. She did not tell her mother about these incidents because when "everything started" he told her "to keep it a secret," and she did.

At the River Springs Avenue house, where Montejano lived when the victim was around ages six to nine, Montejano penetrated her vagina with his finger every time or most of the times she visited there. Either before or after he began to penetrate her with his finger, he began showing her pornographic videos in order to persuade her to engage in sex acts with him. She testified, "[B]y showing me the videos . . . it was, like . . . . [h]e told me that it was okay because other people did it, so I guess . . . I kind of fell for it."

Still before the victim was around 10 years old, Montejano began causing her to orally copulate and manually masturbate him.2 When she manually masturbated him, he ejaculated.

When she was around 10, he began to penetrate her vagina with his penis. The first time was when Montejano lived in Porterville. After the first time, he had sexual intercourse with the victim every time she went to his house in Porterville, sometimes more than once a day. When he lived in Madera, it happened even more often, on most of the occasions when he picked her up from school.

Montejano caused the victim to manually masturbate him probably more than 10 times. He placed his penis in her mouth more than once, but not more than 10 times. Just during the time Montejano lived in Madera, he had sexual intercourse with the victim more than 10 times and probably more than 20 times.

At one point, the victim attempted to terminate her subjection to Montejano's abuse. She testified that when she was around 11 years old, she began trying to stay away from him by refusing to go to Porterville, avoiding him when he came to Madera, and refusing to speak with him on the phone. She succeeded in avoiding him for about a year, but her family pressured her to reconcile with him. In response to this pressure, she finally spoke to him. She told him she was willing to resume communication with him, but wanted it to be a normal relationship with an uncle. He said he would comply, but instead immediately began to touch her sexually, and afterward resumed his pattern of abuse.

Montejano took pornographic photos and videos of the victim. These were on a cell phone found during a search of Montejano's house. The phone was hidden on top of the garage door opener mounted on the ceiling of Montejano's garage. A police officer testified that there were more than 100 still photos of the victim undressed. The videos showed Montejano engaging in sex acts with the victim. The courtroom was cleared and the jury was shown four of these videos. The videos were made between August 21, 2011, and December 26, 2012, when the victim was 11 and 12 years old. The first video showed Montejano penetrating the victim's vagina with his finger on August 21, 2011, and the other three showed him having sexual intercourse with her on October 19, 2011, October 23, 2011, and December 26, 2012. The videos were used to support the charges in counts 9 through 12.

As Montejano's course of abuse progressed, he became possessive and threatening toward the victim. If she wanted to stay after school to watch a ball game, he became angry. On such occasions, "he would tell me how he, like, stopped all his plans to, like, stay with me," she testified. Then he would take her cell phone away. Once he found pictures of the band One Direction on her phone. This also made him angry and he seized the phone and deleted the pictures. He became angry and jealous if she complimented another person. "Sometimes he would say something like that I was only his and stuff like that," she said. This behavior frightened the victim and made her think "maybe I wasn't going to go out with, you know, anybody, that I was going to stay with him forever." Once, when she was in seventh grade, she told Montejano she wanted to end the sexual abuse. He responded by threatening to show his pornographic pictures of her to her peers. "[He] blackmailed me and told me, like, he was going to throw [the pictures] around the school and stuff." She believed him. On about three occasions, beginning when the victim was in fifth or sixth grade, Montejano threatened to kill her stepfather. This also frightened the victim.

The victim's mother testified about the events leading up to the victim's disclosure of the abuse and Montejano's arrest. In February 2013, she noticed changes in the victim's behavior. The victim sometimes began to cry for no apparent reason. The mother took her to a self-esteem workshop, but the victim's emotional condition did not improve. Next, the mother took the victim to a doctor to get a referral to a psychologist. The same day, they had a long conversation during which the victim disclosed the abuse. The next day, the mother took the victim to the school psychologist, who contacted the police.

A detective asked the victim to make a pretext call to Montejano. During the call, the victim referred to a recent incident in which she had been upset. She assured Montejano that in spite of her outburst, she had not told her mother they were having sex. Montejano responded by directing the victim to call her grandmother and say the victim and Montejano were not on bad terms. He also told her to delete all the text messages on her phone, because he feared her mother would take the phone and search it.

Montejano testified on his own behalf. He admitted having sexual contact with the victim, but only on the occasions shown in the videos that were played for the jury. He claimed the activity took place only from 2010 to 2012 and never happened during the time he lived in Madera. He said he never threatened anyone and never pressured the victim to do anything she did not want to do.

We will describe additional evidence later in this opinion, as part of our discussion of the sufficiency of the evidence.

The jury found Montejano not guilty of counts 1 and 2, which charged lewd acts by force when the victim was five years old. The victim recalled Montejano touching her vagina when she was around that age, but her recollection was vague. The jury found Montejano guilty of the remaining charges.

The court imposed an aggregate sentence of 145 years to life. This consisted of 25 years to life on count 8 plus 15 years to life, consecutive, on each of counts 3, 5, 6, and 9 through 13. The sentences on counts 4 and 7 were stayed pursuant to section 654.

DISCUSSION

I. Sufficiency of evidence

Montejano argues that the evidence was insufficient to prove counts 3, 7, 9, 10, and 11. When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)

A. Count 3

Count 3 charged Montejano under section 269, subdivision (a)(5), with aggravated sexual assault of a child under age 14 and seven or more years younger than the perpetrator. This offense requires proof of a violation of section 289, subdivision (a). That statute in turn requires proof of sexual penetration "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 another person." (§ 289, subd. (a)(1).)

The information stated that the act on which count 3 was based took place between October 20, 2007, and October 19, 2008, and that it happened "the first time the defendant digitally penetrated Jane Doe when she was 8 years old." The evidence showed that Montejano lived in the River Springs Avenue house when the victim was age six to around age nine. She testified that Montejano first penetrated her vagina with his finger at that house when she was around eight or nine, and then did so again every time or most of the times she visited there.

Montejano does not claim the evidence failed to establish sexual penetration within the time frame stated in the information. Instead, he claims the evidence did not prove he used force, violence, duress, menace, or fear of bodily injury. The People do not argue that they proved force, violence, menace or fear of bodily injury. They say the evidence was sufficient to prove duress.

Montejano also claims that even if there was duress, the evidence did not show a lack of consent on the victim's part. The jury was instructed that lack of consent is an element of the offense (separate from force, duress, etc.) and Montejano was not guilty if he reasonably believed the victim consented to the penetration.

We will address the claim about duress and the claim about consent in turn.

1. Duress

Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that would cause a reasonable person to submit to or perform an act the person would not otherwise submit to or perform. (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto); People v. Leal (2004) 33 Cal.4th 999, 1004-1010; People v. Senior (1992) 3 Cal.App.4th 765, 775 (Senior).) The jury was so instructed. Under case law cited by the People, we conclude there was sufficient evidence of duress in light of the totality of the circumstances, including the relative ages of Montejano and the victim and the close familial relationship between them.

In the context of sex crimes by adults against children, the Courts of Appeal have often held that duress can be shown by evidence of such factors as the relative sizes and ages of the defendant and the victim, the defendant's position of authority in the victim's family, and the continuous nature of the exploitation. In People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitmon), the victim was an eight-year-old boy and the defendant was an adult stranger. The defendant led the victim to a secluded place, took the victim's hand and placed it on the defendant's genitals, orally copulated the victim, and caused the victim to orally copulate the defendant. The Court of Appeal concluded that these lewd acts were accomplished by means of duress under section 288, subdivision (b). Significant were the facts that such a child commonly views adults as authority figures and the disparity in size means the child is physically vulnerable. (Pitmon, supra, at p. 51.) In People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, the Court of Appeal issued a writ directing the trial court to vacate its order dismissing multiple counts of child molestation involving force or duress. The defendant was a friend of the victim's mother and was accused of molesting the victim when the victim was between five and eight years old. In finding that the evidence of duress was sufficient to bind the defendant over for trial, the Court of Appeal relied on the longstanding relationship of trust between the defendant and the victim and the occurrence of the incidents outside the presence of other adults, among other things. (Id. at pp. 237-239.) In Senior, supra, 3 Cal.App.4th 765, there was sufficient evidence of duress where a father molested his 14-year-old daughter. Of significance were the victim's youth, the father's position of dominance and authority, his continuous exploitation of the victim, and his admonition to the victim not to tell anyone about the abuse. (Id. at pp. 775-776.) In People v. Cochran (2002) 103 Cal.App.4th 8 (Cochran), the victim was the defendant's nine-year-old daughter. Evidence sufficient to support the duress element included the relative ages and sizes of the victim and the defendant, the occurrence of the acts in the family home, video showing the victim participating only in response to the defendant's direction and showing her gagging and saying he was hurting her, his telling her not to tell anyone, and her feelings of anger and sadness about the abuse. The victim's testimony that the defendant did not beat, punish, grab or force her did not compel a finding of insufficient evidence. (Id. at pp. 15-16.) Finally, in People v. Veale (2008) 160 Cal.App.4th 40 (Veale), the victim was the seven-year-old stepdaughter of the defendant. Sufficient evidence of duress included the victim's age, the isolation of the places in which the molestation occurred, the defendant's status as an authority figure, and the victim's fear that the defendant would kill her mother if she told anyone of the abuse. The conclusion that the evidence was sufficient was not defeated by the facts that the victim said the defendant did not actually threaten or force her and sometimes desisted when she refused his requests to perform sex acts. (Id. at pp. 46-47.)

In light of these authorities, we have little hesitation in concluding there was sufficient evidence of duress in this case. Montejano was the father of the victim's cousins, she regarded him as her uncle, and he was treated as a member of her family. She was often entrusted to the care of him and her aunt. He began to exploit this family relationship to impose his sexual will on her from a very early age, carried out the abuse in isolation, and insisted that she keep it secret. Around the time of the act on which count 3 was based, he began to indoctrinate her with pornography. At six feet two inches tall and more than 200 pounds he was, of course, much larger than an eight-year-old girl. All this was in addition to the evidence that Montejano used secrecy, threats, and other forms of manipulation throughout the course of his abuse. The jury could properly find, under the reasonable doubt standard, that Montejano achieved his sexual objectives by duress.

Our conclusion is not altered by the fact that some of the factors we rely on (age, size, authority, availability of private locations) are commonplace in relationships between young girls and their adult male relatives. The Court of Appeal's remarks in Cochran are germane:

"Cochran contends that the factors noted by the trial judge (and upon which we have also relied) `exist universally between fathers (or father figures) and children' and that to adopt these factors would result in `no recognizable or enforceable distinction . . . between forcible crimes and consensual crimes' and `[t]he guarantee of due process of law will not permit [the] universal features of parent-child relationships to be substituted for a criminal law requirement of "force" or "duress."' Neither the trial court's ruling nor our ruling on appeal holds that the parent/child relationship, as a matter of law, establishes force or duress. Nonetheless, as a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present. This conclusion does not eliminate the distinction between subdivisions (a) and (b) of section 288 [i.e., the distinction between an offense requiring and one not requiring proof of force or duress]; those subdivisions may be violated by persons other than the child's parent or one having parental authority and under circumstances where the victim truly consents, e.g., a 13-year-old girl consenting to engage in sexual acts with her boyfriend." (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.)

Montejano relies on the victim's testimony that there were occasions on which he digitally penetrated her and she believed he might have stopped had she told him to, as well as occasions on which he put his penis in her mouth and he did stop because she told him to. He says this means there must not have been any implied threat of any sort. We disagree. The fact that an abuser sometimes stops when asked does not compel a finding that duress is unproven (Veale, supra, 160 Cal.App.4th at pp. 46-47), and a victim's mere belief that the abuser might stop if asked certainly does not compel such a finding. The jury could take these facts into account, but they did not oblige it to conclude duress was not proved.

Montejano points out that the direct threats shown by the evidence—Montejano's threats to kill the victim's stepfather and to distribute pornographic photos of the victim—happened after the act on which count 3 was based. She was in fifth or sixth grade when he said he would kill her stepfather and in seventh grade when he threatened to distribute the photos. Montejano also stresses that the victim's testimony about his jealousy and possessiveness related to events that apparently took place when he lived in Madera, which also was later than the assault in count 3. Express threats and overtly controlling behavior are not necessary to prove duress, however. Further, the combination of secrecy and early sexual grooming preceding the assault in count 3 on the one hand, with the express threats and controlling behavior afterwards on the other, lent support to the view that Montejano's entire course of abuse was pervaded by coerciveness toward the victim. This supported the jury's finding of duress.

Montejano avers that the cases cited above all included facts showing actual force or at least making the duress clearer than it is here. This may be so. (Veale, supra, 160 Cal.App.4th at pp. 46-47 [the defendant sometimes locked door during abuse and the victim feared the defendant would kill her or her mother]; Cochran, supra, 103 Cal.App.4th at p. 16 [the defendant implicitly threatened that family would break up if the victim did not comply]; Senior, supra, 3 Cal.App.4th at p. 775 [the defendant threatened to hit the victim if she moved during one act of molestation, physically controlled her during others and said parents would get divorced if she revealed abuse]; People v. Superior Court (Kneip), supra, 219 Cal.App.3d at p. 238 [the defendant threatened to spank and humiliate the victim]; Pitmon, supra, 170 Cal.App.3d at p. 51 [the defendant physically restrained the victim when he tried to escape].) But it does not follow that the evidence was insufficient to show duress here. The cited cases still collectively stand for the proposition that factors like those we rely on support a finding of duress; and we agree with the statement in Cochran that where such factors are present duress will also be present in all but the rarest cases. (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) This is not one of those rare cases. Instead, as we have said, the evidence indicated that Montejano's years-long course of abuse was characterized by coerciveness on his part from beginning to end.

Finally, Montejano cites People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza) and People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), two cases in which Court of Appeal panels staked out positions contrary to the authorities we have cited. In Espinoza, the defendant was convicted of a forcible lewd act and forcible rape of his 12-year-old daughter. The Court of Appeal held there was insufficient evidence of duress despite their family relationship, the disparity in their ages and sizes, the victim's intellectual disability, her fear of the defendant, and the fact that the defendant had molested her before the incidents on which the two counts were based. (Espinoza, supra, at pp. 1318-1322.) Among other things, the court believed it would be "circular reasoning" to base a finding of duress on the notion that the victim submitted to some acts of sexual abuse because of fear based on previous acts of sexual abuse. (Id. at p. 1321.) In Hecker, the defendant was convicted of several forcible lewd acts against his stepdaughter, who was 12 and 13 years old at the time. The Court of Appeal found insufficient evidence of duress or force even though the victim tried to resist, the acts hurt her, the defendant said his marriage and career would be ruined if she told anyone, she said she did not disclose the abuse for this reason, she said she was afraid of him, and medical experts presented evidence consistent with forcible abuse. (Hecker, supra, at pp. 1240-1242.) The court's view was that none of this proved force, and duress was not established because no threat was implied. (Id. at pp. 1249-1251.) "`Psychological coercion' without more does not establish duress," the court concluded. (Id. at p. 1250.)

Hecker has been criticized. In Cochran, the court declined to rely on Hecker, saying its language was overly broad and holding that "[t]he very nature of duress is psychological coercion." (Cochran, supra, 103 Cal.App.4th at p. 15.) Espinoza is open to similar criticism. In our view, these cases were wrongly decided. The juries reasonably found duress (at least) in both.

2. Consent

The jury was instructed that to find Montejano guilty on count 3, it must find that the victim did not consent to the act. It was further instructed that Montejano was not guilty if he reasonably believed the victim consented. The instructions stated that in order to consent, "a person must act freely and voluntarily and know the nature of the act."

Under all the circumstances of this case, the jury could properly find beyond a reasonable doubt that an eight-year-old child did not freely and knowingly consent to sexual penetration by her uncle's finger. The evidence showed that from an early age, he groomed and indoctrinated her to accept the false belief that what he was doing was acceptable activity. Montejano suggests the grooming and indoctrination are irrelevant to the issue of consent. He says, "[L]ack of consent is different from being effectively brainwashed into consenting even when that brainwashing comes from the defendant himself." Perhaps, but brainwashing by the defendant certainly is relevant to the question of whether a child victim's acquiescence in long-term systematic sexual abuse beginning at a preschool age is free, voluntary and knowing. Further, all the other evidence that supported the finding of duress also was relevant to the determination of whether the victim's acquiescence was free, voluntary and knowing. (See Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6 [factors relevant to duress in cases of sexual abuse of young children by adult relatives also relevant for purpose of distinguishing between consensual and nonconsensual acts].) Despite the extended treatment of consent in Montejano's briefs, we do not find the problem to be unusually difficult in this case.

Taking a step back from the details of Montejano's conduct and looking at the big picture—the totality of the circumstances—we find one thing to be clear. The victim was a victim of long-term child sexual abuse. She was not a partner in a romantic relationship. Montejano's argument boils down to a contention that in spite of this, the jury could not reasonably find what happened to her was not consensual—not just that they could find it was consensual, but that they could not find otherwise. In light of the record here, the meritlessness of this argument is clear.

B. Count 7

Count 7 charged a violation of section 269, subdivision (a)(1), which required proof that Montejano raped the victim within the meaning of section 261, subdivision (a)(2) or (a)(6). This charge was based on Montejano's first act of intercourse with the victim, which took place when she was 10 years old. Section 261, subdivision (a)(2) requires proof of sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." Subdivision (a)(6) requires proof of intercourse "accomplished against the victim's will 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."

Montejano does not contend that there was insufficient evidence of force, fear, threat or duress. Instead, he confines himself to arguing that the evidence did not support the jury's finding that the victim did not consent.3 As with count 3, the jury was instructed that lack of consent was an element of the offense in count 7, and Montejano was not guilty if he reasonably believed the victim consented. The instructions again stated that to consent, a person "must act freely and voluntarily and know the nature of the act." They also stated that lack of consent does not require the victim to "physically resist or fight back."

The victim testified in detail about the first time Montejano penetrated her vagina with his penis. She said he had attempted to do this previously, but could not force his penis in, so he decided to wait until after she began her menstrual period. When her period started, she was swimming in a lake. Montejano and another uncle realized what was happening and made fun of her, saying "`[y]ou're on your Bloody Mary' and stuff." When she realized this meant he would soon have sexual intercourse with her, it made her "feel bad." She was "really confused at that time" and "kind of didn't know what was going on." She did not want to lose her virginity to Montejano. She wanted to wait until she was grown up and married.

One day, after her period began, when she was 10, she was in Montejano's bedroom. He placed her on her back on the floor, raised her legs onto his shoulders, and pushed his penis into her vagina. This "hurt a lot." When asked whether she wanted him to do it, she testified, "Well, honest, everything was kind of, like, confusing to me. I didn't really know what I was feeling or going through."

In our discussion of consent in our analysis of count 3 above, we stated that the jury could find the then-eight-year-old victim, as the victim of a years-long scheme of systematic abuse by an adult relative to whose care she was regularly entrusted, did not consent to the placement of his finger in her vagina. We now conclude that there was ample evidence to support a finding that she continued not to consent to the abuse as it progressed beyond digital penetration, through coerced manual masturbation and oral copulation, to sexual intercourse. She testified that she wanted to wait until she was married to have sex instead of having sex with Montejano at the age of 10, and she demonstrated that she was confused and did not understand what was happening as he expanded the scope of his abuse. She also explained how Montejano controlled her body on the occasion on which count 3 was based. On this basis, a reasonable jury could readily find the victim did not submit to intercourse knowingly, freely and voluntarily.

Montejano argues that the victim's description of the intercourse—he placed her on her back, raised her legs, and penetrated her, while she lay passive—was fully consistent with consensual sex. This would perhaps be so if the victim had been an adult sex partner of Montejano's. But she was not. Montejano's reasoning leaves out the actual context of the act. The victim was 10 years old and had been sexually abused by Montejano for most of her life by the time it happened. She testified that she did not want to lose her virginity to Montejano and was confused by his actions. Whether the jury could reasonably find a lack of knowledge, freedom and voluntariness is not a close question. Whether it also could reasonably find the contrary is not a question we are called upon to answer.

Montejano contends the reasonableness of the jury's finding of no consent is undermined by the fact that the victim testified she did not know whether she could have stopped him from penetrating her vagina with his penis. But being able to prevent a rape does not amount to consent. The suggestion that it does is reminiscent of the discredited idea that a rape victim has not been raped unless she exercised utmost resistance and found she was not able to stop the rapist. Not knowing whether it would be possible to stop the rape also does not amount to consent. The jury could reasonably assign little significance to this testimony and it is not our role to reweigh it.

Finally, Montejano says the evidence did not show that he caused her to submit by a physical assault or express threats or that she feared him. The significance of these points was, once again, for the jury to weigh. There is no rule that there must be evidence of any of these things to establish that a victim's submission is not free, knowing and voluntary. They can, no doubt, help to show a lack of consent, but other facts can do so as well. In this case, there was ample other evidence that the systematically-abused child victim did not consent, as we have said.

C. Counts 9, 10, and 11

Count 9 charged the same offense as count 3 (§ 269, subd. (a)(5), aggravated sexual assault of a child by means of forcible penetration), this time based on the video recording showing Montejano penetrating the victim's vagina with his finger on August 21, 2011. Counts 10 and 11 charged the same offense as count 7 (§ 269, subd. (a)(1), aggravated sexual assault of a child by means of forcible rape), based on the video recordings showing Montejano penetrating the victim's vagina with his penis on October 19 and 23, 2011. Once again, for each of these three counts, the jury was instructed that the prosecution must prove the victim did not consent and that Montejano was not guilty if he reasonably believed she consented. Montejano again argues that the evidence was insufficient to show the victim did not consent to the sex acts.

All the considerations we discussed in connection with Montejano's claim that lack of consent was not proved for counts 3 and 7 apply to the present claim as well. In addition to these considerations, by the time of the acts in counts 9, 10, and 11, Montejano had begun threatening to kill the victim's stepfather. Montejano argues the evidence did not prove the victim's submission to continued abuse by him was caused by these threats, but we agree with the People's view: Under the circumstances, "[a] reasonable juror could infer that this threat was intended to convey to [the victim] that [Montejano] was capable of using lethal physical force to secure her continued submission," and that she took it that way. All this evidence was sufficient to show that a systematically abused 11-year-old child did not consent to the sex acts her uncle recorded himself perpetrating against her.

Montejano's briefs emphasize the video recordings. He contends that the victim's words and actions as depicted in the videos show that she allowed him to perform the sex acts willingly and even with enjoyment. In other words, his argument is that regardless of what he did to create and enforce the pattern of abuse prior to this time, the videos show that by the time they were recorded, he and she were in a consensual, indeed mutually enjoyable, sexual relationship, just as though the 11-year-old victim were an adult woman. The jury remained free, however, to find as it did in light of the record as a whole. Having viewed the videos, the jury could still reasonably find the victim was a child victim of a sustained and systematic course of sexual abuse who wanted to remain a virgin until she was an adult, did not grasp the significance of the abuse to which she was being subjected, and thus did not knowingly, freely and voluntarily choose to engage in sexual intercourse with Montejano.

Montejano's trial counsel made the same arguments about the videos that his appellate counsel makes now. The jury did not exceed the bounds of reason in rejecting those arguments.

II. Jury instructions

Montejano claims the trial court gave three reversibly erroneous jury instructions. A trial court in a criminal case is required to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) We review jury instructions under the de novo standard. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

As a threshold matter, the People argue that Montejano forfeited these contentions by failing to object to the three instructions at trial. Under section 1259, however, objection at trial is unnecessary if instructional error affected the defendant's substantial rights. It has been held that a defendant's substantial rights are affected if the instruction was reversibly erroneous. (People v. Mitchell (2008) 164 Cal.App.4th 442, 465; People v. Felix (2008) 160 Cal.App.4th 849, 857.) As there is no other way of determining whether the instructions were reversibly erroneous, we will consider the merits of Montejano's contentions despite the lack of objection.

A. Former CALCRIM No. 1191

The jury was instructed in accordance with former CALCRIM No. 1191, as follows:

"The People presented evidence that the defendant committed the crimes of rape, oral copulation, sexual penetration, and lewd and lascivious act with a child that were not charged in this case. "The crimes are defined for you in these instructions. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. [¶] . . . [¶] "Proof by a preponderance of the evidence is a different burden of proof [from] beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. "If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit [the charged offenses]. "If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider, along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [the charged offenses]. The People must still prove each charge beyond a reasonable doubt. Do not consider this evidence for any other purpose."

The purpose of this instruction was to allow the jury to apply Evidence Code section 1108, which made evidence of other sexual offenses committed by Montejano admissible to show a character trait for committing such offenses: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1108, subd. (a).)

Montejano expressly concedes that the evidence of uncharged offenses was admissible in this case, perhaps for a non-propensity purpose under Evidence Code section 1101. Further, he does not challenge the use of former CALCRIM No. 1191 to allow a jury to apply Evidence Code section 1108 as a general matter. But in his view, Evidence Code section 1108 (and thus former CALCRIM No. 1191) ought not to be applied in cases where, as here, the uncharged sex offenses were against the same victim as the charged offenses.

There was no error. There is no support in reason for Montejano's argument that it matters for purposes of Evidence Code section 1108 whether the uncharged offenses were against the same victim as, or a different victim from, the charged offenses. If uncharged offenses against a different victim tend to show a propensity to commit offenses of a certain kind, uncharged offenses against the same victim would also have a tendency to show a propensity to commit offenses of that kind.

Montejano avers that uncharged sex offenses against the same victim show not a propensity to commit sex offenses but only "a sexual interest in that particular victim." This makes little sense. Logic did not limit the jury to viewing Montejano's uncharged sex offenses against the victim as an indication of his "sexual interest" in her. The jury also could reasonably view those offenses as tending to show a propensity to act on that interest by committing sex crimes against her.

Montejano also relies on People v. Ennis (2010) 190 Cal.App.4th 721 (Ennis). This was a child molestation case in which the Court of Appeal considered a claim that propensity evidence should have been excluded under Evidence Code section 352, i.e., excluded on the ground that its probative value was substantially outweighed by its prejudicial effect. The court rejected the claim, reasoning that neither the probative value nor the prejudicial effect was very great, and the former did not outweigh the latter. (Ennis, supra, at pp. 733-734.) Regarding the probative effect, the court stated:

"Admittedly, the probative value seems slight. While evidence the defendant has committed other, similar crimes is always probative due to its suggestion he has a propensity toward that type of crime, when such evidence comes in a child molestation case, from the same witnesses who supplied the evidence of the charged crimes, and amounts to evidence that the defendant molested the child even more times than he was charged with, it wouldn't seem to advance the ball in any meaningful way." (Ennis, supra, 190 Cal.App.4th at p. 733.)

Although Ennis involved a challenge to the admissibility of the evidence, not the jury instructions on propensity, Montejano claims the above discussion implies that a propensity instruction should not be given in a case of this kind because the uncharged offense evidence has no tendency to establish a propensity.

Without determining how applicable it might have been in its own context, we conclude that the Ennis court's analysis of the probative value of evidence of this kind is not applicable here. Evidence of the uncharged offenses did "advance the ball," for the jury could first find those offenses by a preponderance of the evidence and then use that finding to support a finding that the charged offenses took place beyond a reasonable doubt. Where, as here, the jury faces a credibility contest because the defendant denies that the charged offenses or some of them took place, evidence that the defendant committed sex acts against the child "even more times than he was charged with," as Ennis put it, serves to support the believability of the victim's story by showing he had a propensity to do what she claims. The People charged Montejano with 13 offenses; he admitted that four incidents, those shown in the videos, took place, and denied all others. If the jury found, by a preponderance of the evidence, that the victim was telling the truth when she testified to dozens of acts of molestation in addition to those charged, then the likelihood of its accepting the prosecution's position on the 9 incidents whose existence was in dispute was substantially enhanced.

Montejano next suggests the uncharged-acts evidence was inadmissible under Evidence Code section 352 and therefore violated his right to due process of law. He cites People v. Falsetta (1999) 21 Cal.4th 903, 917, in which it was held that the court's discretion, when applying Evidence Code section 1108, to exclude propensity evidence under Evidence Code section 352 "saves" Evidence Code section 1108 from invalidity on due process grounds. Montejano suggests there was error under Evidence Code section 352 because the uncharged conduct lacks probative value for propensity purposes when it is against the same victim as the charged offenses. But as we have explained, the tendency of this evidence to show a propensity to commit the charged offenses was not undermined by the fact that it involved the same victim.

In sum, this case involved an ordinary application of Evidence Code section 1108 to evidence of uncharged sex crimes. The court correctly instructed the jury in accordance with former CALCRIM No. 1191.

B. CALCRIM No. 207

The written instructions received by the jury recited the time frames included in the information for each count. For instance, the instructions stated that counts 1 and 2 were alleged to have "occurred between April 20, 2005 and April 19, 2006." Further, in accordance with CALCRIM No. 207, the written instructions stated: "The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day." In the oral instructions, however, the court altered this final portion, stating instead: "The People are not required to prove that the crime took place exactly on the days indicated, but only that the crimes occurred reasonably close to those days or time periods."

Montejano argues that the alteration in the oral instruction was erroneous to the extent that it could have allowed the jury to find he committed the charged offenses on dates when the victim was too old according to the definitions of the offenses. Specifically, count 6 and count 8 required proof of a sex act occurring before the victim turned 11 years old, and the specified date ranges in the information and the jury instructions ended the day before her 11th birthday. Montejano says jurors applying the altered instruction could erroneously have found him guilty based on an act that happened when the victim was already 11, but was still close to her 11th birthday.

"`"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."'" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) We do "not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Instead, there is error if there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions, the entire trial record, and the arguments of counsel. (Ibid.) At the same time, if there is an error and it effectively omits an element of an offense (as Montejano claims happened here because of the age-10-or-under element), the error is reversible unless harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 10-12, 15.) Instructional error is harmless beyond a reasonable doubt if it is "`unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" (People v. Mayfield (1997) 14 Cal.4th 668, 774, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)

In light of these principles, we conclude there was no error. The jury was expressly instructed that the elements of the crimes charged in counts 6 and 8 included the requirement that the victim was 10 years old or younger. We presume jurors can understand and correlate the court's instructions (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088), and we see little reason to think the jurors in this case would not have grasped that although the prosecution did not have to prove the exact date on which the acts occurred, it did have to prove they occurred before the victim's 11th birthday. The charge as a whole thus did not omit the 10-years-old-or-younger element and it is not reasonably likely the jury misconstrued or misapplied the law regarding that element.

C. CALCRIM No. 370

The court gave the jury the following instruction in accordance with CALCRIM No. 370:

"The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict, you may, however, consider whether the defendant had such a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."

Montejano argues that this instruction was erroneous because it conflicted with the instructions on counts 3, 4, and 9. Counts 3 and 9 charged aggravated sexual assault on a child under 14 in the form of forcible penetration (§ 269, subd. (a)(5)), while count 4 charged sexual penetration of a child age 10 or younger (§ 288.7, subd. (b).) Each of these offenses defines sexual penetration by reference to section 289, which in turn states that sexual penetration must be "for the purpose of sexual arousal, gratification, or abuse." (§ 289, subd. (k)(1).) Montejano's contention is that this "purpose" is a motive and CALCRIM No. 370 relieved the prosecution of the burden of proving this element. We rejected a similar contention in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes). Fuentes argued that CALCRIM No. 370 conflicted with the requirement to prove a gang-related purpose to establish the gang-participation offense (§ 186.22, subd. (a)), the gang enhancement (§ 186.22, subd. (b)), and the gang murder special circumstance (§ 190.2, subd. (a)(22)). (Fuentes, supra, at p. 1139.) We held:

"An intent to further criminal gang activity is no more a `motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a `motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motived his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it." (Id. at pp. 1139-1140.)

We went on to explain that a motive is simply a reason for a perpetrator's action that is not included among the mental states the prosecution is required to prove to establish an offense, and that the instructions made this sufficiently clear. (Fuentes, supra, 171 Cal.App.4th at p. 1140.) We then distinguished People v. Maurer (1995) 32 Cal.App.4th 1121, in which it was held to be error to give a motive instruction similar to CALCRIM No. 370 in connection with a charge under former section 647.6, which prescribes punishment for "[e]very person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child," where the conduct would be an offense if the other person really were a child. We stated that former section 647.6 was a special case because it referred specifically to the perpetrator's motivation, creating a unique potential for confusion when combined with the standard motive instruction. (Fuentes, supra, 171 Cal.App.4th at p. 1140.)

The reasoning of Fuentes applies here as well. In effect, the jury instructions told the jurors that the People did not have to prove any reason or other mental state behind Montejano's conduct other than those included in the definitions of the offenses. There is no reasonable likelihood that the jury misconstrued or misapplied the law because of CALCRIM No. 370.

If the instruction had been erroneous, the error would have been harmless under any standard. Montejano's theory of prejudicial error requires a scenario in which CALCRIM No. 370 led the jury to find him guilty on counts 3, 4, and 9 even though it did not believe he had a purpose of gratifying his sexual desire. He says that because of CALCRIM No. 370, and despite the instructions specifically requiring such a purpose, the jury might never have thought about whether he was interested in gratifying his sexual desire, and consequently might not have found he was. In light of the record as a whole, this is exceedingly improbable.

III. Section 288 fine

At sentencing, the trial court imposed a fine of $200 pursuant to section 288, subdivision (e), plus associated assessments of $1,450, for a total of $1,650. In addition, the court imposed a fine of $300 under section 290.3, plus associated assessments of $930, for a total of $1,230. Montejano correctly points out that the section 288, subdivision (e), fine does not apply to any of the offenses of which he was convicted. It applies to section 288, subdivision (b), under which Montejano was charged in counts 1 and 2, but he was found not guilty on those counts.

It appears, however, that merely striking the $1,650 imposed for section 288, subdivision (e), and the associated assessments would result in the total fines imposed being erroneous in other ways. For instance, that $1,650 included multiple-count assessments under section 1465.8, subdivision (a), and Government Code section 70373. The fine imposed under section 290.3 included no assessments at all under those statutes, so no such assessments would remain if the $1,650 were simply stricken. But that does not appear to have been the trial court's intention. We will remand to allow the trial court to correct the fines imposed.

DISPOSITION

The fine and associated assessments imposed under Penal Code section 288, subdivision (e), are stricken. The case is remanded to the trial court to correct the remaining fines and assessments if necessary, in accordance with the discussion in part III above. The judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment and forward it to the appropriate correctional authorities.

PEÑA, Acting P.J. and MEEHAN, J., concurs.

FootNotes


1. Subsequent statutory references are to the Penal Code unless otherwise noted.
2. The time was established in part by the victim's identification of a picture of the River Springs Avenue house as the place where the activities began. People's exhibit No. 17 was a picture of that house.
3. A substantial portion of the People's brief on this issue is devoted to showing that Montejano accomplished the rape via force, fear, threat or duress. Unlike his argument on count 3, however, Montejano's argument here does not include a claim that these factors were all absent. He argues only that the prosecution failed to prove lack of consent. As the jury instructions indicated, lack of consent is a separate element from force, violence, duress, menace, or fear.

We understand Montejano's position here to be similar to his position in the second part of his argument on count 3: Even if there was duress, there still could have been a valid consent in spite of this. Our analysis similarly assumes duress is theoretically consistent with consent, but then concludes the totality of the evidence was sufficient to prove consent was absent.


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