103 Cal.App.4th 8, D034916, People v. Cochran

CourtCalifornia Court of Appeals
Writing for the Court[7] The opinion of the court was delivered by: Kremer, P. J.
Citation126 Cal.Rptr.2d 416,103 Cal.App.4th 8
PartiesPeople v. Cochran
Date25 October 2002
Docket NumberD034916

Page 8

103 Cal.App.4th 8

126 Cal.Rptr.2d 416

THE PEOPLE, Plaintiff and Respondent,

v.

MAC DAVID COCHRAN, Defendant and Appellant.

D034916

California Court of Appeal, Fourth District, First Division

October 25, 2002

Page 9

[Copyrighted Material Omitted]

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COUNSEL

Gregory Marshall, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany

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and Arlene Aquintey Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

KREMER, P. J.—

Mac David Cochran, following a court trial, was found guilty of 27 counts of aggravated sexual assault of a child (Pen. Code,1 § 269), 10 counts of forcible lewd conduct with a child under 14 years of age (§ 288, subd. (b) (1)), and one count of employment of a minor to produce pornography for "commercial purposes" (§ 311.4, subd. (b)). Cochran appealed, contending there was insufficient evidence of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to support the aggravated assault and forcible lewd conduct offenses; and there was insufficient evidence of commercial purposes to support the remaining count.

We rejected Cochran's arguments relating to the sufficiency of the evidence to support the aggravated assault and forcible lewd conduct offenses and affirmed the judgment to that extent. We reversed the section 311.4, subdivision (b) count on the basis there was insufficient evidence to support a finding Cochran had a commercial purpose and then, upon denial of a motion for a rehearing, modified the opinion so as to reduce Cochran's conviction of section 311.4, subdivision (b) to a conviction of section 311.4, subdivision (c), which did not require proof of a commercial purpose.

The Supreme Court granted the Attorney General's petition for review of our holding as to section 311.4, subdivision (b). The Supreme Court issued an opinion holding the evidence was sufficient to support a finding that Cochran had a commercial purpose and therefore was sufficient to support his conviction of section 311.4, subdivision (b). (People v. Cochran (2002) 28 Cal.4th 396 [121 Cal.Rptr.2d 595].) The Supreme Court reversed and remanded for further proceedings consistent with its opinion. Consistent with the Supreme Court's opinion, we affirm the superior court judgment in toto.

Facts

The FBI, after receiving information that someone had posted child pornography on an Internet newsgroup, obtained the e-mail address of the individual who posted the pornography and traced the e-mail address to Cochran. A search of Cochran's home was conducted. In the home police found a videotape Cochran had made of his daughter and himself, and from which the photographs on the Internet were taken. The videotape shows Cochran directing his daughter to engage in various sexual acts such as

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displaying her vaginal area to the camera, digitally penetrating herself, and penetrating herself with a dildo and a vibrator. The videotape also shows Cochran engaging in various sexual acts with his daughter, including penetrating her vagina with his finger, a dildo, a vibrator, his penis, and sodomizing her. This videotape constituted the primary evidence against Cochran.

The FBI also seized a packet of printouts from the same newsgroups to which Cochran had posted photographs of his daughter. These printouts included photographs of child pornography and subject lines stating, inter alia, "[I] did my part ... now it['s] everyone else['s] turn [sic] no nudies," and "[I] did my part. [D]on't complain if you don't post ...." One contained a message stating: "Hi there. I have tons of Preeteens [sic] & Animals pics. If you wana trade big time please e-mail me .... P.S. here is some [samples] of the things I have...." These printouts were evidently posted by individuals other than Cochran and do not contain photographs of his daughter.2

After he was arrested, Cochran said something to the effect of "when you're caught, you're caught." Cochran admitted posting the photographs, stating he had made the stills in the past two months prior to the search in early February 1998 and had posted the photographs on the Internet one time. He also admitted having had a sexual relationship with his daughter for the past four months.

The daughter testified the sexual relationship with her father began in the summer before the search, when she started the fourth grade. He filmed her with the video camera only one time. She was not afraid of him. Sometimes he would hurt her "[j]ust a little bit, but not that much," and when she told him it hurt, he would stop. Afterwards, Cochran would give her money, things for school or candy. He told her not to tell anybody because he would get into trouble and would go to jail. She was sometimes sad and sometimes mad about the things Cochran was doing to her.

Discussion

I. Sufficiency of Evidence—Force or Duress

When an appellant challenges the sufficiency of the evidence to support a conviction, the appellate court reviews the entire record to see " 'whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the

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defendant guilty beyond a reasonable doubt.' " (People v. Jennings (1991) 53 Cal.3d 334, 364 [279 Cal.Rptr. 780].) We view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. (People v. Kelly (1992) 1 Cal.4th 495, 528 [3 Cal.Rptr.2d 677]; People v. Pensinger (1991) 52 Cal.3d 1210, 1236 [278 Cal.Rptr. 640].) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23]; People v. Jones (1990) 51 Cal.3d 294, 314 [270 Cal.Rptr. 611].) The test on appeal is not whether we believe the evidence established the defendant's guilt beyond a reasonable doubt, but whether " ' " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Kelly (1990) 51 Cal.3d 931, 956 [275 Cal.Rptr. 160]; People v. Rich (1988) 45 Cal.3d 1036, 1081 [248 Cal.Rptr. 510].)

The offenses of aggravated sexual assault and forcible lewd acts on a child under the age of 14 years require proof that "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" was used. (§§ 269, subd. (a) (3) & (4), 288, subd. (b) (1).)

"Force" as used in this context means "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr. 582].) A number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act. (See People v. Babcock (1993) 14 Cal.App.4th 383, 386-388 [17 Cal.Rptr.2d 688], and cases cited therein; but see People v. Schulz (1992) 2 Cal.App.4th 999, 1004 [3 Cal.Rptr.2d 799] [force not found when defendant grabbed victim's arm and held her while fondling her]; People v. Senior (1992) 3 Cal.App.4th 765, 774 [5 Cal.Rptr.2d 14] [force not found when defendant pulled the victim back when she tried to pull away from oral copulations].)3

"Duress" as used in this context means "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (People v. Pitmon (1985) 170 Cal.App.3d 38, 50 [216 Cal.Rptr. 221]; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579 [8 Cal.Rptr.2d 392].) "The total circumstances, including the age of the victim, and [her] relationship to defendant

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are factors to be considered in appraising the existence of duress." (People v. Pitmon, supra, at p. 51.) Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. (People v....

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