People v. Valentine

• Decision Date: 21 November 2001
• Docket Number: No. B109409.,B109409.
• Citation: 93 Cal.App.4th 1241,113 Cal.Rptr.2d 748
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Randy Alan VALENTINE, Defendant and Appellant.

113 Cal.Rptr.2d 748

93 Cal.App.4th 1241

The PEOPLE, Plaintiff and Respondent, v. Randy Alan VALENTINE, Defendant and Appellant.

No. B109409.

Court of Appeal, Second District, Division 7.

November 21, 2001.

Review Denied February 27, 2002.^*

The Law Offices of Dennis A. Fischer, Dennis A. Fischer, Santa Monica, and John L. Ryan, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General,

Linda C. Johnson, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, Acting P.J.

Appellant, Randy Alan Valentine (Valentine) was convicted following jury trial of 21 counts¹ of sex offenses against two young victims, N.C. and V.R. Valentine was thereafter sentenced to a total term of 81 years and four months in state prison and given a $15,000 fine. This appeal followed and raised the issue whether threatened "hardship" remains a form of "duress" justifying convictions for forcible oral copulation and forcible penetration by a foreign object. In our initial opinion in this case we concluded it does not and reversed the convictions for those offenses, a decision unaffected by Supreme Court review. Nonetheless, we amplify our initial opinion in this issue to take account of intervening decisions from other Courts of Appeal.

Our initial decision also held appellate courts ordinarily should not correct a prosecutor's failure to request a parole revocation fine in the trial court. The Supreme Court granted review limited to the latter issue—the parole revocation fine. After deciding People v. Smith,² the Supreme Court remanded this case with an instruction we reconsider in light of that opinion. Consistent with the Supreme Court's decision in Smith we impose a parole revocation fine on appellant.

FACTS AND PROCEEDINGS BELOW

Both of the victims, N.C. and V. R., attended eighth grade during the 1990-91 school year at the same middle school. Appellant was the girls' English teacher that year. Both girls spent a lot of time "hanging out" with appellant in his classroom during the school year. Appellant began physically molesting N.C. before Christmas 1990 and her fourteenth birthday in March 1991. The sexual nature of the molestation increased from rubbing, hugging and kissing to the fondling of N. C.'s breasts by the end of the school term.

That summer, appellant arranged a special summer session class solely for N.C. and V. R., ostensibly to prepare the girls for high school. During the session the sexual molestation continued both on and off campus.

A.V. is both the mother of N.C. and the wife of appellant. At the time her daughter attended the middle school, A.V. was a teacher's assistant at the school. She and appellant began dating the summer between N. C.'s eighth and ninth grades. As a result of the relationship with N. C.'s mother, appellant was a frequent visitor at their family apartment.

The molestation of N.C. continued and indeed escalated to the point appellant was digitally penetrating her vagina during the summer of 1991 while he dated her mother. In approximately October 1991, appellant moved into the family apartment. The molestation continued and soon included oral copulation, despite N. C.'s repeated requests appellant stop.

N.C. testified she did not report the incidents to anyone due to her fear her younger brothers would lose a father figure and her mother would lose a boyfriend. Additionally N.C. expressed concern her mother would blame her and send her to live with her father in Mexico, if the molestation was discovered.

During the years of molestation, appellant would tell N.C. he loved her and wanted to marry her. Instead, appellant married N. C.'s mother in December 1993. But even after the marriage the situation continued. Appellant, now her stepfather, frequently sexually molested N.C. throughout her high school years.

In April, 1995, the family moved for financial reasons to appellant's condominium in La Habra, where they all lived together until August or September, 1995. It was then N.C. moved out to attend college. Within one week of her departure, appellant ordered his wife, A. V., and her two sons out of the condominium. It was only then N.C. informed her mother of the long history of sexual molestation she had endured.

V.R. had been similarly victimized by appellant during her eighth grade school year. Like N. C, she had spent a lot of time with appellant alone in his classroom with the door closed. During this time, appellant had fondled her breasts, kissed her and promised to marry her someday. He told her not to tell anyone about their relationship. This conduct continued through the special summer session tutorial appellant had arranged for V.R. and N.C. It was then V.R. reported the incidents of abuse to her mother. But the two of them opted not to report the situation to anyone and instead tried to put the situation behind them.

Appellant was charged and convicted of 21 counts of sexual abuse. However, all but nine years and four months of his 81-year sentence is attributable to 12 of those counts, involving forcible oral copulation and forcible digital penetration of N.C. It is those counts which are the primary subject of this appeal.

DISCUSSION

Appellant contends the trial court erred in failing to instruct the jury on the meaning of the term "menace" and in the definition it gave for the term "duress." While we find the defendant waived any error in the trial court's failure to adequately define "menace" we conclude the trial court erred by including threatened "hardship" as a form of duress. Since we find this instructional error, as compounded by the prosecutor's argument, was prejudicial, we must reverse the forcible digital penetration and forcible oral copulation convictions which account for 72 years of the 81-year sentence imposed on appellant and remand for possible retrial before a properly instructed jury.

I. THE TRIAL COURT'S FAILURE TO DEFINE THE TERM "MENACE" CONSTITUTED INVITED ERROR.

Initially we examine the record to determine whether appellant requested modification of the instructions given at trial. When a court gives instructions to a jury on a particular point at the request of the defense, the doctrine of invited error is activated to prevent the individual charged from gaining a reversal on appeal because of the erroneous instructions.³

Here appellant concedes his trial counsel urged the court to give an instruction containing the term "menace." Neither this instruction nor any other, however, defined "menace" because the court assumed "menace" is a word of common understanding.

Appellant failed to tender any instruction defining "menace." To allow him the chance to object now would be to fly in the face of the well settled rule, "... defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions."⁴

II. THE TRIAL COURT ERRED IN ITS INSTRUCTION DEFINING "DURESS" AS INCLUDING THREATENED "HARDSHIP."

Appellant contends the element of duress underlying his convictions under counts 2-11, 13 and 16 were improperly based on the threat of hardship to the victim and her family. Appellant further contends that as to those counts, he was improperly sentenced to full, separate and consecutive terms in prison based on a faulty definition of duress. We agree with appellant insofar as we find the trial court erred in its instruction on duress and thus appellant may have been convicted on the basis of threatened "hardship." We do not reach the sentencing issue since we reverse all twelve of the above counts.

Appellant was charged and convicted in counts 3 through 10 of eight separate instances of foreign object penetration (Pen. Code, § 289, subd. (a))⁵ and of four acts of oral copulation (Pen.Code, § 288a, subd. (c))⁶ in counts 2, 11, 13 and 16. He was sentenced to full separate and consecutive terms for each violation pursuant to the authority of Penal Code section 667.6, subdivision (d) which provides in relevant part:

"... full, separate, and consecutive term shall be served for each violation of ... subdivision (a) of Section 289, ... of committing oral copulation in violation of ... Section ... 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim...." (Emphasis added)

Appellant contends the prosecution must establish the acts here were accomplished by means of duress—or one of the other listed forms of unlawful pressure—in order to convict him for forcible oral copulation and forcible digital penetration and thus to properly invoke this sentencing scheme. Furthermore, appellant contends the evidence of duress must not include "hardship" as it was a factor explicitly eliminated by the Legislature from the definition of duress when it amended the definition of duress in code sections for forcible rape and spousal rape.

As part of the instructions on forcible oral copulation and forcible digital penetration, the jury was instructed on various theories of duress, including hardship.

"As used in these instructions, the term `duress' 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. The total circumstances, including the age of the victim, and her relationship to defendant, are factors to consider in appraising the existence of duress." (Italics added.)

In giving this instruction, the trial court erred by including "a direct or implied threat of ... hardship" within the definition of duress. After thoroughly examining the legislative history we conclude the California Legislatur...