There was substantial evidence that appellant sexually abused his daughter by means of force, violence, duress, menace, and threats of injury based on his continual physical abuse. A jury convicted Thomas of various aggravated sexual assault offenses after his daughter testified that Thomas repeatedly molested her between the ages of four and fourteen. She recalled Thomas physically moving her into certain positions during the abuse. Apart from the sexual abuse, Thomas also physically abused his daughter. Thomas did not deny the allegations in a pretext phone call with his daughter and in a letter he wrote to her mother. He appealed, arguing that there was insufficient evidence that he committed the sexual assaults by means of force, violence, duress, menace, and threats of injury. Held: Affirmed. To determine whether a person used force, violence, duress, menace, or instilled fear of bodily injury, a jury may consider the totality of the circumstances, such as the child’s age, her relationship to the defendant, the physical control of the child when she attempted to resist, or the threats of harm to the child or others if she tells someone about the molestation. Here, the evidence demonstrated a vulnerable, isolated child who was compelled to participate in sex acts in response to parental authority and violent intimidation and not the result of freely given consent. Because of the daughter’s young age when the abuse began and Thomas’ position of authority, she was particularly susceptible to being coerced. “The jury could reasonably have found that his continual beatings constituted an implied threat of violence or danger if she did not submit to his sexual abuse.” The jury could also have found Thomas guilty by menace and for acts accomplished by fear.

Trial counsel was not ineffective when he failed to object to the detective’s testimony about what the daughter reported. At trial, the detective testified that the daughter told him Thomas orally copulated her when she was between five and seven years old (the daughter had testified that she did not recall whether Thomas orally copulated her when she was younger than eight). Trial counsel did not object on grounds of hearsay and, on appeal, Thomas argued that this constituted ineffective assistance of counsel. The Court of Appeal disagreed. Evidence Code section 1235 codifies the hearsay exception for a witness’ prior inconsistent statement. “Generally it is true that the testimony of a witness indicating that he or she does not remember an event is not inconsistent with a prior statement describing the event. [Citation.] But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.” (People v. Fierro (1991) 1 Cal.4th 173, 221 [internal quotations omitted].) Here, the daughter’s testimony was inconsistent “in effect” with the earlier dates of oral copulation that she previously told the detective. As a result, “[i]t was reasonable for defense counsel to not object because the meritless objection would have been properly overruled.” Even if the court determined that trial’s counsel performance was deficient, Thomas could not demonstrate prejudice as a result of the ineffective assistance because his own statements to his daughter and detectives established that the oral copulation occurred when his daughter was between five and seven years old. Based on the overwhelming evidence of the dates of Thomas’ abuse of his daughter, he failed to show a reasonable probability that the result of the trial would have been different but for his counsel’s alleged conduct.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E065260.PDF