In People v. Espinoza (2002) 95 Cal.App.4th 1287, the defendant molested his 12-year-old daughter, L., on five occasions. (Id. at. p. 1292.) The daughter was " 'very scared' " and " 'frightened.' " (Id. at p. 1293.) During the fifth molestation, the defendant engaged in several lewd acts with the daughter. When he attempted to put his penis in her vagina, she moved to prevent penetration. For this act, the defendant was convicted of attempted rape and forcible lewd act pursuant to Penal Code section 288 , subdivision (b). (Id. at pp. 1291-1293.) The trial court found the presence of duress for these two counts based on the daughter's dependence on the defendant, the size and age disparities, the daughter's limited intellectual ability and her fear of the defendant. (Id. at p. 1319.) On appeal, the Court found that there was insufficient evidence of duress stating: "The only way that we could say that defendant's lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.'s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that the 'victim 's participation was impelled, at least partly, by an implied threat . . . .' " (Id. at p. 1321.) In that case, the court held there was insufficient evidence of duress, reasoning: "The only way that we could say that the defendant's lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.'s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that 'the victim's participation was impelled, at least partly, by an implied threat . . . .' No evidence was adduced that the defendant's lewd act and attempt at intercourse were accompanied by any 'direct or implied threat' of any kind. While it was clear that L. was afraid of the defendant, no evidence was introduced to show that this fear was based on anything the defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Espinoza, supra, at p. 1321.) During the fifth molestation, the defendant engaged in several lewd acts with the daughter. When he attempted to put his penis in her vagina, she moved to prevent penetration. For this act, the defendant was convicted of attempted rape and forcible lewd act pursuant to Penal Code section 288, subdivision (b). (Id. at pp. 1291-1293.) The trial court found the presence of duress for these two counts based on the daughter's dependence on the defendant, the size and age disparities, the daughter's limited intellectual ability and her fear of the defendant. (Id. at p. 1319.) On appeal, this court found that there was insufficient evidence of duress stating: "The only way that we could say that defendant's lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.'s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that the 'victim 's participation was impelled, at least partly, by an implied threat . . . .' " (Id. at p. 1321.) In sum, the defendant was convicted of forcible lewd acts on a child (Pen. Code, 288, subd. (b)) and attempted forcible rape (id., 261, subd. (a)(2), 664), as well as four counts of lewd acts on a child (id., 288, subd. (a)) for earlier acts of molestation he perpetrated on his 12-year-old developmentally challenged daughter. (Espinoza, supra, 95 Cal.App.4th at pp. 1291, 1292-1293.) The Espinoza court described the molestation upon which the forcible lewd acts and attempted forcible rape charges were based as follows: "The fifth and final molestation occurred in the early morning hours . . . . On this occasion, he not only rubbed the victim's body but he also put his tongue in her mouth, licked her vagina and tried to put his penis in her vagina. The victim could feel 'something going in me.' The victim 'moved' to prevent defendant's penis from going inside her." (Espinoza, supra, at p. 1293.) The court said nothing else about how the defendant attempted the intercourse other than that the defendant did nothing to overcome the victim's movement and he "did not grab, restrain or corner" the victim as had happened in a case the Espinoza court distinguished, People v. Schultz (1992) 2 Cal.App.4th 999. (Espinoza, supra, at p. 1320 & fn. 8.) The victim in Espinoza testified she was afraid defendant would " 'come and do something' " if she reported the molests, so she did not report what had happened. (Id. at p. 1293.) The prosecution's theory was duress. (Id. at p. 1319.) The Espinoza court reasoned that the evidence did not establish an implied threat by defendant, because there was no evidence the victim's fear was the result of something the defendant did or said. (Id. at pp. 1320 & fn. 8, 1321.)