NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

McKINSTER, J.

Richard Allen Gary, defendant and appellant (defendant), appeals from the judgment entered following a trial in which a jury found him guilty on 20 counts of committing lewd acts by force or violence (Pen. Code, § 288, subd. (b)(1)), one count of oral copulation by force (Pen. Code, § 288a, subd. (c)), one count of forcible sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1)), and one count of aggravated sexual assault by force on a minor (Pen. Code, § 269, subd. (a)(4)), and the trial court sentenced him to serve a total term of 141 years in state prison.1

Defendant raises two claims of error in this appeal: (1) He was improperly convicted of both a lesser and greater offense, namely forcible oral copulation as alleged in count 21, and aggravated sexual assault as alleged in count 23; and (2) The evidence was insufficient to support a finding that defendant committed the crimes alleged in counts 1 through 18, and count 22 by the use of force or violence. The Attorney General appropriately concedes the first issue, and therefore we will dismiss count 21. Otherwise we will affirm.

FACTS

Jane Doe, defendant's daughter, testified in pertinent part that she was born in 1992 and lived with her mother until she was eight years old. In 1997, when she was five years old, Jane Doe was visiting defendant. She was wearing a bathing suit because she had been in her grandmother's Jacuzzi. Defendant removed her bathing suit and Jane Doe lay down naked on a bed in the trailer where defendant lived. Defendant got in bed next to her so that Jane Doe's back was against defendant's chest. Defendant put his arm around Jane Doe and rested his hand over her vagina. Jane Doe went to sleep.

When she was eight years old, Jane Doe went to live with defendant because her mother was having difficulty caring for Jane Doe and all Jane's siblings. Jane Doe testified that when she was eight or nine years old, she and defendant were living in an apartment with defendant's girlfriend, Myrna, and Myrna's son. Jane Doe recalled an incident in which defendant came downstairs naked and, when he saw Jane Doe in the living room, said, "Oh, I didn't know you were standing there." Defendant covered himself with his hand and then uncovered himself and said, "Well, you've seen a grown man naked before, haven't you?"

Jane Doe testified that when she was nine or 10 years old defendant kissed her and put his tongue in her mouth. When she was 11 or 12 years old she and defendant were sitting on the couch watching television when defendant tickled her sides and then rubbed her breasts. That happened about two times. Jane Doe was 11 or 12 years old when defendant first asked her to tickle his thighs while he masturbated and eventually ejaculated.2 Jane Doe said defendant would call her into his bedroom. He would be naked lying on the bed, and would have her tickle his inner thighs while he masturbated. This happened once or twice a week until she was 13 years old. One time Myrna tickled one of defendant's legs while Jane tickled the other and defendant masturbated. Other times when defendant called her into his room, defendant asked Jane Doe to expose her breasts while he masturbated. Although defendant asked two or three times, Jane Doe only "flashed" him once.

Twice while they lived in the apartment on Hemlock, defendant called Jane Doe into his bedroom and had her masturbate him. When she initially resisted defendant grabbed Jane Doe's wrist and wrapped her hand around his penis. When Jane Doe tried to pull her hand back, defendant would keep pulling her hand to make her touch his penis. Touching defendant's penis "grossed [Jane Doe] out." Defendant directed Jane Doe to move her hand up and down on his hard penis. Defendant used baby oil which made his penis "slimy" (sic).

Jane Doe was 12 years old when defendant called her into his bedroom and told her to videotape while he and Myrna had sex. Jane Doe testified that she held the video camera for about five minutes. At some point defendant handed Jane Doe the dildo he kept by the bed and had her insert it in his rectum. Jane Doe had seen defendant use the dildo on himself. Myrna testified that defendant once had her insert a dildo in his rectum. She also confirmed that Jane Doe was in the room once while she and defendant were having sex. Defendant later told Myrna that a video was taken but she never saw that videotape.

When Jane Doe was between 11 and 13 years old, defendant came into her bedroom once at night. Defendant got in bed next to Jane Doe and put his arm around her. Defendant then got on the floor, kneeled down next to her bed, and pulled down Jane Doe's pants. Defendant put Jane Doe's legs over his shoulders and then put his mouth on her vaginal area and inserted his tongue in her vagina. When Jane Doe pushed defendant's head away and told him to stop, he said, "Please." Jane Doe pushed defendant's head away several more times but he continued to put his mouth on her vagina. Eventually defendant stopped and left the room.

Jane Doe described other instances of inappropriate behavior by defendant which included him coming into the bathroom while she was taking a shower; taking photographs of Jane Doe and another young girl while they were both dressed in lingerie they had just purchased at a yard sale, purportedly to wear as Halloween costumes; and playing a board game similar to spin the bottle with defendant and a 16-year-old female friend of his. According to the friend, defendant invited her over for a slumber party and she, defendant, and Jane Doe played a "spinning sex game." When the game was over, defendant was naked, and Jane Doe and she were wearing only their bras and panties.

Defendant told Jane Doe what they were doing were normal father and daughter things. In sixth or seventh grade, one of Jane Doe's friends asked whether anything was going on sexually between defendant and Jane Doe. When Jane Doe said no, the friend told her that defendant made her feel weird and she thought he was disgusting. Jane Doe decided she no longer wanted to live with defendant. Eventually Jane Doe reported defendant.

Additional facts pertinent to the issues defendant raises on appeal will be recounted below.

DISCUSSION

The Attorney General, as previously noted, concedes defendant's first claim of error, which is that because the crime of forcible oral copulation alleged in count 21 is a lesser included offense of aggravated sexual assault, the crime alleged in count 23, defendant cannot be convicted of both crimes. (See People v. Reed (2006) 38 Cal.4th 1224, 1227 ["A judicially created exception to the general rule permitting multiple conviction `prohibits multiple convictions based on necessarily included offenses.'"].) The trial court stayed execution of defendant's sentence on count 21 but in fact the trial court should have dismissed the charge.

Defendant next contends the evidence was insufficient to support the jury's verdicts finding him guilty of committing the crimes alleged in counts 1 through 18 and 22 with the use of force and duress. We disagree for reasons we now explain.

"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

The crimes charged in counts 1 through 18 and count 22 all require the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.3 At trial the prosecutor relied on the theory that defendant committed the alleged acts by the use of duress.

"For purposes of section 288, subdivision (b), [and section 289, subdivision (a)(1),] `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." [Citations.]' [Citation.]" (People v. Veale (2008) 160 Cal.App.4th 40, 46 [Fourth Dist., Div. Two] (Veale), quoting People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran).) "`"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." [Citation.]' [Citations.] `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.' [Citations.]" (Veale, at p. 46.)

As recounted above, the evidence presented at trial shows that when Jane Doe was five years old defendant removed her bathing suit, and after the naked child was in bed, defendant got in next to her and placed his hand over her vagina. When Jane Doe was eight or nine years old and living with defendant, he exposed his naked body to her. When she was nine or 10 years old defendant put his tongue in Jane Doe's mouth when he kissed her. Jane Doe was 11 or 12 years old when defendant first asked her to tickle his thighs while he masturbated and eventually ejaculated. Jane Doe testified that defendant and she engaged in this conduct at least once a week until Jane Doe was 13 years old and stopped living with defendant. When she was 11 or 12 years old defendant twice rubbed Jane Doe's breasts and two or three times asked her to expose her breasts to him while he masturbated. Jane Doe was 12 years old when defendant called her into his bedroom and told her to videotape him while he was having sex with his girlfriend. During this same incident, defendant had Jane Doe insert a dildo in his rectum. Also while she was between 11 and 13 years old defendant twice grabbed Jane Doe's hand, placed it on his penis, and had her masturbate him. During this same time, i.e., while Jane Doe was between 11 and 13 years old, defendant once came into her room at night, kneeled down next to her bed, and told Jane Doe to put her legs over his shoulders, after which defendant put his mouth on her vaginal area and inserted his tongue in her vagina.

Jane Doe testified that she did not tell her mother or anyone else about defendant's actions until she was 13 years old because (1) defendant told her the conduct was normal between a father and daughter; (2) defendant said it would be best not to tell; and (3) she thought the conduct was right and wanted to make her father happy. Jane Doe also testified, in general and not in reference to anything specific, that there were times she wanted to disobey her father but she did not because she was scared. She explained, "[W]hen he gets mad, he gets really mad. And—just like a normal parent, he would spank me, but it was really hard." Jane Doe also related an incident that occurred when she was 13 years old and told her grandmother that defendant smoked marijuana. When defendant found out he grounded Jane Doe and said things to her that made her feel like he was "disgusted" with her and she "wasn't part of the family."

Defendant cites People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker) as support for his claim that the evidence is insufficient to support a finding of duress because the evidence shows only psychological coercion. (Id. at pp. 1250-1251.) In Veale we observed that the court that decided Hecker abandoned it as "overly broad" in Cochran, supra, where the court stated, "`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 acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent. We also note that such a threat also represents a defendant's attempt to isolate the victim and increase or maintain her vulnerability to his assaults.' [Citation.]" (Veale, supra, 160 Cal.App.4th at p. 48, citing Cochran, supra, 103 Cal.App.4th at p. 15.)

Although a close case, we nevertheless are of the view that the previously recited evidence viewed in its totality is sufficient to support a reasonable inference defendant committed the acts of molestation by use of duress. The facts that support such an inference are that defendant is Jane Doe's father; he committed the acts of molestation while Jane Doe was fairly young and lived in his home; and Jane Doe did not disobey defendant even though at times she wanted to, because she was afraid he would spank her and he spanked really hard. Jane Doe's testimony regarding the marijuana incident also supports the finding of duress, albeit only with respect to acts defendant committed when Jane Doe was 13 years old.

Accordingly, we will affirm defendant's convictions on the counts in question.

DISPOSITION

The judgment is modified by dismissing count 21. As modified the judgment is affirmed.

We concur:

Hollenhorst, Acting P.J.

King, J.