People v. Cochran

• Decision Date: 17 May 2001
• Docket Number: No. D034916.,D034916.
• Citation: 89 Cal.App.4th 103,107 Cal.Rptr.2d 119
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mac David COCHRAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

107 Cal.Rptr.2d 119

89 Cal.App.4th 103

The PEOPLE, Plaintiff and Respondent, v. Mac David COCHRAN, Defendant and Appellant.

No. D034916.

Court of Appeal, Fourth District, Division 1.

May 17, 2001.

As Modified on Denial of Rehearing June 14, 2001.

Review Granted September 19, 2001.

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

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany and Arlene Aquintey Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

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)). On appeal, Cochran contends 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 find merit to his last contention and therefore reverse the judgment on that count. In all other respects, we affirm.

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 email 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 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.

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 defendant guilty beyond a reasonable doubt.'" (People v. Jennings (1991) 53 Cal.3d 334, 364, 279 Cal.Rptr. 780, 807 P.2d 1009.) 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, 822 P.2d 385; People v. Pensinger (1991) 52 Cal.3d 1210, 1236, 278 Cal.Rptr. 640, 805 P.2d 899.) 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, 864 P.2d 103; People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.) 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, 800 P.2d 516; People v. Rich (1988) 45 Cal.3d 1036, 1081, 248 Cal.Rptr. 510, 755 P.2d 960.)

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, subds. (a)(3) & (4), 288, subd. (b)(1).)

"Force" as used in this context means "physical force substantially different from and 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, italics omitted.) 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].)²

"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 are factors to be considered in appraising the existence of duress." (People v. Pitmon, supra, at p. 51, 216 Cal.Rptr. 221.) 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. Senior, supra, 3 Cal.App.4th 765, 775, 5 Cal.Rptr.2d 14; People v. Schulz, supra, 2 Cal.App.4th 999, 1005, 3 Cal.Rptr.2d 799.)

The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant. Thus, in People v. Pitmon, supra, 170 Cal.App.3d 38, 47-48, 51, 216 Cal.Rptr. 221, the court found sufficient evidence of duress despite the victim's testimony the defendant did not use force or violence and never threatened to hurt her. The court stated that "at the time of the offenses, [the victim] was eight years old, an age at which adults are commonly viewed as authority figures. The disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of [her] relative physical vulnerability." (Id. at p. 51, 216 Cal.Rptr. 221; see also People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748, 256 Cal.Rptr. 446 [duress found where defendant molested 8-year-old granddaughter repeatedly over a three-year period and victim viewed defendant as a father figure]; People v. Superior Court (Kneip) (1990) 219 Cal. App.3d 235, 239, 268 Cal.Rptr. 1 ["Where the defendant is a family member and the victim is young, ... the position of dominance and authority of the defendant and his continuous exploitation of the victim" is relevant to determining duress].)

Cochran relies on People v. Hecker (1990) 219 Cal.App.3d 1238, 268 Cal.Rptr. 884, a decision by this court. In Hecker, the defendant molested his 12-year-old stepdaughter. She testified she was never consciously afraid the defendant would harm her and that, with exception of one incident where he held her head down during oral copulation, he never used physical force. She did not report the incidents because she felt "`guilty'" and did not want to be responsible for breaking up her mother's marriage. (Id. at p. 1242, 268 Cal.Rptr. 884.) She testified she felt "`pressured psychologically'" and "`subconsciously afraid.'" (Id. at p. 1250, 268 Cal.Rptr. 884.) "[T]here was no evidence [the defendant] was aware of and sought to take advantage of such fear." (Ibid.) We stated: "`Psychological coercion' without more does not establish duress. At a minimum there must be an implied threat of `force, violence, danger, hardship or retribution.'" (Id. at pp. 1250-1251, 268 Cal. Rptr. 884.) We rejected the People's argument that duress was established by the victim's testimony the defendant urged her not to report the molestations because it would ruin his marriage and naval career, stating "such testimony establishes merely the threat of hardship directed at `later disclosure of the sex acts and not [the failure to perform] the sex acts themselves.' " (Id. at p. 1251, fn. 7, 268 Cal. Rptr. 884, quoting from People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, fn. 8, 259 Cal.Rptr. 219, original italics omitted.)

We believe this language in Hecker is overly broad. The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to...