People v. Guenther

324 Cal.Rptr.3d 765

The PEOPLE, Plaintiff and Respondent,

v.Jeffrey Duvall GUENTHER, Defendant and Appellant.

H049810

Court of Appeal, Sixth District.

Filed August 22, 2024

Trial Court: County of Santa Clara, Trial Judge: Honorable Elizabeth C. Peterson (Santa Clara County Super. Ct. No. C2016355)

Kyle Gee, by appointment of the Court of Appeal under the Sixth District Appellate Program, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General and Allen R. Crown, Deputy Attorney General, for Plaintiff and Respondent.

Danner, J.

In this appeal, we examine the legal definition of—-and appropriate jury instructions for—duress in a prosecution for sodomy and oral copulation by duress (Pen. Code, §§ 287, subd. (c)(2)(A), 286 subd. (c)(2)(A))¹ perpetrated on an adult victim. We consider the relationship between the crimes of sodomy and oral copulation by duress and a related provision criminalizing sodomy and oral copulation by threatening retaliation (§§ 287, subd. (c)(3), 286, subd. (c)(3)). Appellant contends the latter provisions were the proper charges under the law and facts, and the trial court prejudicially erred in its instructions to the jury. In deciding this appeal, we review the statutory language and legislative history of sections 286 and 287, case authority on sexual offenses involving duress, and the extensive trial evidence of the relationship between the defendant and the victim. We conclude that the trial court did not err in its instructions on duress.

A jury convicted appellant Jeffrey Duvall Guenther of 20 total counts of oral copulation by duress and sodomy by duress (§§ 287, subd. (c)(2)(A), 286, subd. (c)(2)(A)) against Jane Doe.² The trial court sentenced him to consecutive lower terms of three years on each count for a total prison sentence of 60 years.

Doe was an employee in Guenther’s insurance company. For many months, Doe and Guenther engaged in an in-office romantic and sexual affair. Over time, Guenther became more controlling and verbally abusive of Doe, requiring her to participate in a daily routine of providing him oral sex each morning and submitting to anal sex each afternoon, as well as on weekends when so directed. At trial, Doe testified that she participated consensually in the sex acts for many months. However, as Guenther’s demands and treatment of her worsened, she expressed to him that she wanted to end the sexual relationship.

He told Doe that he would decide when she could "just be [his] employee." Guenther compelled Doe to continue submitting to daily sex acts by intensifying his control over her daily activities and threatening variously to terminate her employment, reduce her pay, and leave her to her debts if she failed to service him sexually and submit to his demands. Guenther testified at trial that he believed, based on the nature of their relationship and what he perceived as Doe’s continued expressions of love and sexual interest, that the charged sex acts were consensual.

On appeal, Guenther challenges the jury instructions on duress as the means of accomplishing the sex offenses and on the reasonable "mistake of fact" defense as it applies in the context of those offenses. Guenther also asserts the trial court erred in allowing Doe to express her lay opinion as to whether Guenther believed the charged acts were consensual. Guenther further challenges his sentence as a de facto life term without the possibility of parole in violation of the constitutional prohibitions against cruel and/or unusual punishment.

For the reasons explained below, we conclude that Guenther has not demonstrated reversible error as to any of his claims on appeal. We affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

In July 2021, the Santa Clara County District Attorney filed a first amended information (information) charging Guenther with 10 counts each of oral copulation by force, violence, menace, duress, or fear (§ 287, subd. (c)(2)(A); counts 1-10) and sodomy by force, violence, menace, duress, or fear (§ 286, subd. (c)(2)(A); counts 11-20).³ The information named Jane Doe as the alleged victim in all 20 counts, which allegedly occurred between September 6, 2020, and November 18, 2020.

The jury trial began in late May 2021. Doe testified over the course of seven days, and Guenther testified in his own defense. The theory of prosecution, reflected in the verdict forms submitted to the jury, was that Guenther had committed the charged crimes by duress. The jury found Guenther guilty of all 20 counts.

In February 2022, the trial court denied a motion for a new trial filed by Guenther on grounds including insufficient evidence to establish the theory of duress. The court sentenced Guenther to consecutive mitigated terms of three years as to each of the 10 counts of oral copulation and 10 counts of sodomy, for a total of 60 years in state prison.

B. Summary of Evidence Presented at Trial⁴

1. Jane Doe

Doe was 36 years old at the time of the trial and had a 14-year-old daughter. She had been living in Gilroy for about nine years and was divorced. Doe has a high school education and has earned a few certifications, including her insurance license in August 2018 while employed at Guenther’s company.

In 2018, Doe was experiencing financial hardship and had medical debt. Doe had previously been employed as an administrative assistant but left the job because she did not like her manager. Doe’s church pastor referred her to an individual who sent her resume to South Valley Insurance (SVI), a local insurance company owned by Guenther. SVI specializes in providing and servicing group health and other insurance benefits for small businesses. Doe interviewed with Guenther in March 2018, and he offered her a position with SVI.

Doe began working for SVI in mid-April 2018 and performed secretarial and client account management services. Guenther’s father also worked for the company at that time but retired shortly after Doe’s employment. Other than a part-time summer intern, Doe for several months was the only employee other than Guenther. She was new to the insurance industry, and Guenther provided her training. Guenther began to flirt with Doe about a week after she was hired. She initially felt shy and uncomfortable but became more comfortable as she saw how hard he worked to build his business, which she admired.

On May 10, 2018, Doe stayed at the office to attend a small business function with Guenther. Guenther opened a bottle of wine he kept on hand for clients and became flirtatious. Doe was sitting in a chair across from Guenther’s desk. He came to her side, unzipped his pants to expose his erect penis, and pushed her head towards him. She was surprised and uncomfortable. She performed oral sex on him though he did not ejaculate. There was no kissing or discussion beforehand and the fellatio "wasn’t necessarily consensual." On the way back from the event in his car, Guenther held Doe’s hand.

After May 10, 2018, Guenther continued to be flirtatious with Doe, and she reciprocated. They began to be physically intimate, including "hand jobs," oral sex by and for both partners, and within a few months, sexual intercourse and anal sex. Doe enjoyed the attention Guenther gave her. She knew he was married and had children and "hated" herself for being intimate with him but was "lonely" and liked the relationship. The relationship was exciting, and Doe enjoyed the sex. They used a "butt plug" to facilitate anal sex, which she brought from home, and other sex toys that Guenther introduced, including a vibrator that was primarily for Doe.

During the first months of her employment, through the summer of 2018, Doe quickly learned the insurance work and was able to assist Guenther substantially with administrative tasks, allowing him to focus on other aspects of the business, He "treated [her] well." It also became "standard" that she would "have to stop work to fulfill his … physical needs" by performing sex acts. At the beginning, the intimacy did not occur daily but after about two months became more frequent. Doe thought of the relationship as a "friends with benefits type of … a thing," even though he was her boss.

Guenther did not condition any employment benefits on sex during that time, and Doe willingly participated. She was the first to say " I love you,’ " and he later reciprocated. There were two times early in 2018 that Guenther "ended it," which made Doe unhappy. They restarted the relationship each time shortly after and agreed it would have to be "mutual" for one of them to end it.

SVI paid for Doe to prepare for and take the exam for her insurance license, which she received in August 2018. Doe received a raise in her hourly pay after obtaining her license. Doe received an additional raise and became a salaried employee in November 2019.

Doe and Guenther eventually began communicating outside of work by text message, primarily through Instagram’s direct messaging application. This platform allowed them to communicate privately with texts, photos, and videos and allowed a user to "unsend" a message. Doe did not tell anyone about the relationship with Guenther. Their sexual relations occurred in the office. They never went to a hotel, to dinner or a movie, or on any kind of traditional date. Guenther told Doe that if they saw each other outside of the office—at church, for example—she was to pretend she did not know him.

Beginning in 2019, other employees joined SVI. Doe and Guenther continued to work alone in the early mornings and late afternoons. Ashley became an administrative assistant in January 2019, taking over many of the administrative tasks from Doe, and Stacy joined in November 2019 as an account manager, in a position similar to Doe’s. Doe worked from 8:00 a.m. to 5:00 p.m., and...