Error and/or relief
We shall reduce one conviction to reflect a lesser included offense, remand for resentencing, and otherwise affirm the judgment.
First Holding:
In considering the sufficiency of evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We also accept logical inferences that the jury might have drawn from the circumstantial evidence. We do not resolve credibility issues or evidentiary conflicts.
Authority:
People v. Osband (1996) 13 Cal.4th 622, 690
People v. Baker (2021) 10 Cal.5th 1044, 1103
People v. Young (2005) 34 Cal.4th 1149, 1181
Second Holding:
In considering the substantiality of generic testimony regarding multiple indistinguishable instances of child sexual abuse, a victim of child molestation need not specify precisely the date, time, or circumstances of each crime. Rather, the victim must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, a requirement that can be met with such testimony as “twice a month” or “every time we went camping.”
Authority:
People v. Jones (1990) 51 Cal.3d 294, 299–300, 315–316
Third Holding:
The jury was instructed pursuant to CALCRIM No. 1015 that duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to, and that in making its determination the jury should consider all the circumstances, including the age of the other person and his relationship to the defendant.
As to fear, the jury was told, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid.” The existence of duress is an objective inquiry, and it is not dependent on the response exhibited by a particular victim.
We consider the totality of the circumstances, including the victim’s relationship to the perpetrator, whether the perpetrator physically controlled the victim when the victim attempted to resist, and the relative physical vulnerability of the victim. Duress may arise in a variety of ways related to psychological and/or situational factors between the perpetrator and victim, including an uneven power dynamic between a victim and perpetrator inhabiting a position of authority. Not all forms of coercion necessarily constitute duress, however.
Authority:
People v. Soto (2011) 51 Cal.4th 229, 246
People v. Guenther (2024) 104 Cal.App.5th 483, 518 [courts apply reasonable person standard to inquiry into duress]
People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073
People v. Veale (2008) 160 Cal.App.4th 40, 44, 47
People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321
Fourth Holding:
A variance between the crime charged and proved is not material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.
Authority:
PEN 960 [No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits]
People v. Williams (1945) 27 Cal.2d 220, 226
People v. Maury (2003) 30 Cal.4th 342
Fifth Holding:
A lesser offense is necessarily included in a charged offense if one of two tests is met: either all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense (the “elements test”) or the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed (the “accusatory pleading test”). We do not consider the evidence presented at trial to determine whether one offense is necessarily included in the other.
Authority:
People v. Lopez (1998) 19 Cal.4th 282, 288–289
People v. Cheaves (2003) 113 Cal.App.4th 445, 454
People v. Ortega (1998) 19 Cal.4th 686, 698
Sixth Holding:
Despite the constitutional prohibition of a second trial if a conviction is reversed for insufficient evidence, when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.
Authority:
PEN 1181
PEN 1260
People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225
People v. Navarro (2007) 40 Cal.4th 668, 677
People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321–1322, 1324 [reducing conviction to reflect lesser included offense where there was no evidence defendant used direct or implied threat to commit a lewd act]
Seventh Holding:
We review a court’s award of restitution to a victim for abuse of discretion, reversing only if it is arbitrary or capricious. An abuse of discretion exists when there is no rational and factual basis for the amount of restitution ordered. The court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.
Authority:
People v. Gomez (2023) 97 Cal.App.5th 111, 116