P. v. Deleon CA1/4 filed 8/4/26

Filed 8/4/26 P. v. Deleon CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
v.
HENRRY N. DELEON,
Defendant and Appellant.

A172730
(MarinCounty
Super. Ct. No.SC217396A)
Henrry Deleon appeals his multiple sexual assault convictions, including two convictions foraggravated sexual assault of a child under the age of 14. Deleon claims that the trial court erred by denying his motion for acquittal of judgment under Penal Code section 1118.1 and by imposing consecutive sentences on his aggravated sexual assault convictions in violation of section 654.We affirm.
BACKGROUND
Jane Doe was born in Guatemala in 1999. She lived with her grandmother, and both of her parents were living in the United States.She first came to the United Statesin June 2011 and moved into a house in Richmond with her father, mother, and brother.
Jane Doe explained that commencing in the fall of 2011, when she was 11,her father asked her for a kiss after they went to get something to eat and Doe said no. Her father asked her not to tell anyone, including her mom, because it was a game between them. A couple days later, her father came into her room and asked if she wanted to sleep with him. Doe said yes and her father laid down next to her. Deleon did not do anything on that night. This sort of behavior continued where Deleon would ask to come in and sleep next to Doe.
Eventually, while Doe was still 11,Deleon would come into Doe’s room late at night and touch her legs, breasts and vagina over her clothes. He initially came into her room approximately three times a week and repeated those actions, and the following week he began touching Doe beneath her clothes. For these encounters in Doe’s room, Deleon would ask if he could lay down and touch her, to which Doe did not know what to say. Deleon laid on top of Doe and rubbed his penis on her pelvis very harshly, making her pelvis hurt the following day. Deleon continued doing this for a couple of weeks, sometimes with his bare penis, and occasionally asked Doe if she wanted him to penetrate her. Doe would respond that she was not sure and indicated that she did not know what was wrong or right. Deleoneventually stopped engaging in this behavior with Doe at home.
Deleon then began driving Doe to her middle school in San Rafael. During the drive Deleon would touch her leg while driving and would sometimes ask Doe to take off her underwear so he could touch her vagina. Doe would comply because Deleon would hit Doe if she did not do it. Deleon would get upset with her if she did not comply and he had hit Doe with his hand on her mouth, nose, legs, and arms previously while he was driving. Deleon regularly took Doe to school because her mother stayed at home to take care of her brother who was recently born, and he regularly touched Doe until December 2011.
During the beginning of 2012, when Doe was 12, Deleon bought a pack of condoms, showed them to Doe, and Doe told him that she could hide them for him. Doe’s mother found the condoms the next morningand Deleon got upset at Doe. On the way to school that morning, Deleon hit Doe and told her that he was going to take her virginity. Deleon drove her to a workshop where he held church services as a pastor and told Doe to lay down on a piece of plywood, take off her underwear, and lift up her dress. Doe did as she was told and Deleon penetrated Doe’s vagina. Doe stated that she was in a lot of pain but Deleon told her not to scream. After Deleon completed having intercourse with his 12 year-old daughter, Doe could not get up and Deleon had to help her to the car. Doe was unable to go to school that day because she was bleeding.
Approximately a week later, Deleon had sex with Doe again.Doe explained that they would leave their house early in the morning, before school, so they had time to stop by the workshop where Deleon would penetrate her or have Doe masturbate him with her hands. Doe recalled that this occurred two to three times a week. In 2013, Deleon’s church moved to San Rafael, and the same abuse continued there in the church lobby or his office.
When asked whether Doe ever said no or tried to resist, she explained that she did not know she could say no. She stated that she was scared during those times at the workshop because anytime she hesitated Deleon would tell her that she could not say anything because he would go to jail and her siblings would be placed in foster care and Doe would be deported back to Guatemala because she did not have any immigration status. Deleon also mentioned that he was the only member of the family working and supporting the family and that Doe’s mother could not support her because she was not working. Because of this, Doe would give in to Deleon’s demands so that she did not hurt her family or end up back in Guatemala.
In 2014, Doe found out she was pregnant. Initially, Deleon was very happy that Doe was pregnant. The next day, however, Deleon was very upset at Doe and told her to get rid of the baby right away. On February 3, 2014, Doe had an abortion and Deleon dropped her off and picked her up after the procedure. Doe never informed her mother that she was pregnant because it was a secret between her and Deleon. Deleon told Doe that they had to have each other’s back and whatever happens, she could tell him and he would always be there for her.
When asked whether Doe believed the relationship with Deleon was inappropriate, she responded that she did not know it was inappropriate. Doe thought Deleon was her boyfriend, and he told her she was his girlfriend.
Deleon and Doe continued to have sex approximately one or two weeks after the abortion, when Doe was 14 years old. At that point they continued to have sex two to three times a week and this continued until Doe was 21 years old.
In February 2022, Deleon was charged by information with five felony counts: Lewd act upon a child under the age of fourteen on or about December 28, 2010, to December 28, 2011 (§ 288, subd. (a); count 1); attempted aggravated assault of a child on or about December28, 2010, to December 28, 2012 (§ 664/269 subd. (a)(1); count 2); Aggravated sexual assault of a child on or about December 28, 2010, to December 28, 2012 (§ 269, subd. (a)(1); count 3); Aggravated sexual assault of a child on or about December 28, 2010, to December 28, 2013 (§ 269, subd. (a)(1); count 4); and rape on or about December 28, 2013, to December 28, 2016 (§ 261, subd. (a)(1).) The information also alleged various aggravating factors.
After the prosecution rested, Deleon filed a motion for judgment of acquittal under section 1118.1. The trial court found sufficient evidence had been presented to sustain a conviction for every count in the information and denied Deleon’s motion.
The jury found Deleon guilty on all counts. The trial court found all aggravating factors true and sentenced Deleon to a total aggregate sentence of 22 years plus 30 years to life consisting of 15 years to life for both counts 3 and 4,an upper term of 9 years for count two as the principal term, 2 years for count 1 as one third the middle term, and an upper term of 11 years for count 5.
DISCUSSION
Section 1118.1
“ ‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review.” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
Deleon argues the trial court erred when it denied his section 1118.1 motion for two reasons. First, as to count 5 (forcible rape), he alleges there was no evidence the sexual intercourse was not consensual and done against Doe’s will by means of duress or violence during the specified time period. Second, as to counts 3 and 4 (aggravated sexual assault of a child), he alleges that Doe’s generic testimony “failed to establish what act occurred when” such that the jury likely “based their multiple convictions on the same evidence” because they alleged the same offense with overlapping time periods. We address each contention in turn.
Count 5 (Forcible Rape)
Section 261, subdivision (a)(2) provides that “[r]ape is an act 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.” Duress is further defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress.” (§ 261, subd. (b)(1).)
Deleon argues that the evidence failed to establish that the sexual intercourse was accomplished against Doe’s will because there was no violence or duress during the time frame alleged for count 5, from December 28, 2013, to December 28, 2016. Specifically, Deleon argues that Doe’s specific testimony related to conduct and events that occurred before December 28, 2013, andsuggests that Doe’s belief that he was her boyfriend undermines a finding ofongoing duress. We disagree.
First, we note that Deleon does not contest that duresswas present when he first began to sexually abuse Doe. There is substantial evidence to support a finding of duress when Deleon first had sex with Doein the beginning of 2012. Doe had just immigrated into the United States from Guatemala. She was only 12 years old.Deleon was in a position of authority as Doe’s father and because he was the pastor in theirchurch. “When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073.) Deleon was upset at Doe and hit her before he took her virginity. Doeexplained that she was scared during the abuse at the workshop because Deleon would tell her that she could not say anything because he would go to jail and her siblings would be placed in foster care and Doe would be deported back to Guatemala. (See People v. Cochran (2002) 103 Cal.App.4th 8, 15 [“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 acquiesce in the molestation, may constitute a threat of retributionand may be sufficient to establish duress.”], disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
The fact that Doe testified that she believed Deleon was her boyfriend does not negate a finding of duress. (People v. Thomas, supra,15Cal.App.5th at p. 1072 [“The fact that the victim testifies the defendant did not use force or threats does not preclude a finding of duress”].) Deleon clearly overcame Doe’s will when he began having sex with her. Doe did not enter a sexual relationship with Deleon willingly. Deleon groomed Doeby periodically increasing the severity of his sexual assaults, urging Doe to keep his behavior a secret, and physically intimidating her on occasion. Deleon’s decade of sexual encounters with his daughter was facilitated through a foundation of duress. Whether Doe believed she was in a loving and consensual relationship with her father after years of sexual abuse is irrelevant. (People v. Soto, supra, 51 Cal.4th 229, 246 [“duress is measured by a purely objective standard,” focusing “on the defendant’s wrongful act, not the victim’s response to it”].)Where, as here, the sexual abuse was initiated under duress when Doe was 11 yearsold and continued uninterrupted for years, theevidence of prior duress supports a reasonable inferenceof the existence of duress during the time frame alleged in count 5. Therefore, we find there was substantial evidence to support a guilty verdict as to count 5.
Counts 3 & 4 (Aggravated Sexual Assault of a Child)
Section 269, subdivision (a)(1) provides that any person who commits rape, in violation of section 261, subdivision (a)(2) or (a)(6), upon a child who is under the age of 14 and seven or more years younger than the person is guilty of aggravated sexual assault of a child.
Deleon argues that Doe’s generic testimony was not sufficient to differentiate between separate offenses where the overlapping time frames in counts 3 and 4 “make it impossible to determine whether the jury convicted appellant of the same conduct twice.”We are not persuaded.
In People v. Jones (1990) 51 Cal.3d 294, our supreme court addressed whether “generic” testimony of a victim may be sufficient to sustain a conviction for child molestation. Jones held that “generic” testimony regarding multiple molestations over a certain time period, even if lacking in details as to the specific dates, times, places, or circumstances, is sufficient to support a conviction. (Id. at pp.315–316.)Jones explains that “the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction.” (Ibid.) Rather, to sustain a conviction, there must be evidence describing (1) “the kind of act or acts committed with sufficient specificity”; (2) “the number of acts committed with sufficient certainty to support each of the counts alleged”; and (3) “the general time period in which these acts occurred . . . .” (Ibid., italics omitted.) “[G]eneric testimony (e.g., an act of intercourse ‘once a month for three years') outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction.” (Id. at p. 314.)
Here, the information alleged two violations of section 269, subdivision (a)(1), the first between December 28, 2010, to December 28, 2012, and the second between December 28, 2010, and December 28, 2013. These time periods cover the time frame from when Doe was 11to 12, and when Doe was 11 to 13 years old, respectively. Doe testified that Deleon first had sex with her in the beginning of 2012. She described that it occurred in the workshop after her mother discovered the box of condoms she was hiding. Doe specified that Deleon put a piece of plywood on the ground, told her to lift her dress and take off her panties and then penetrated her vagina.Doe then testified that Deleon continued to have sex with hertwo to three times a week after this first incident.Doe also described that Deleon’s church moved to San Rafael in 2013, and that the abuse continued unabated at the new church.
Based on this testimony, we find there was sufficient evidence to support a finding as to both counts of aggravated sexual assault of a child. Doe testified to the kind of act committed (vaginal penetration), the number of acts committed (two to three times a week), and the general time period the acts were committed (in the workshop during 2012, and in the new church during 2013 and beyond).
Moreover, Doe’s testimony regarding the first act of intercourse included specific details of the event. By itself it is sufficient to sustain count 3 because the event occurred in early 2012—within the time frame alleged in that count. Doe’s testimony of sexual intercourse with Deleon inside the new church, when Deleon’s church moved, is sufficient to support the second count of aggravated sexual assault of a child because it occurred in 2013, within the time period in count 4 but after the time period described in count 3. Based on Doe’s testimony, there was substantial evidence for the jury to find there were at least two distinct acts of aggravated sexual assault of a child, one between December 2010 and December 2012 and another between December 2010 and December 2013.
Section 654
Lastly, Deleon argues the trial court erred by failing to stay his punishment as to count 4 under section 654 because substantial evidence did not support a finding that counts 3 and 4 were based on separate conduct or acts. We disagree.
“An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)“By its plain language section 654 does not bar multiple punishment for multiple violations of the same criminal statute,”it “applies to an act that is punishable in different ways by different provisions of law.”(People v. Correa (2012) 54 Cal.4th331, 334, 337.)
“Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo.” (People v. Corpening (2016) 2 Cal.5th 307, 311–312.) “We review any factual findings underlying the trial court’s ruling for substantial evidence.” (People v. Washington (2021) 61 Cal.App.5th 776, 795.)
Here, Deleon was convicted and punished for violating the same statute in counts 3 and 4. As we determined above,each count was a separate criminal offense and was supported by substantial evidence. Section 654 is inapplicable because there weremultiple acts that were punished under the same provision of law. Therefore, we find the trial court did not err in imposing a consecutive sentence as to Deleon’s convictions on counts 3 and 4.
DISPOSITION
The judgment is affirmed.

_________________________
Sweet, J.*

WE CONCUR:

_________________________
Brown, P. J.

_________________________
Streeter, J.