Opinion
BENSON, J. Following a jury trial, defendant John Calvin Babcock was convicted of several sexual assault charges involving minors. Defendant’s sole contention on appeal is that there is insufficient evidence of force to sustain the convictions on two counts of forcible lewd and lascivious conduct. (See Pen. Code, § 288, subd. (b).)1 We disagree and affirm.
I. Factual and Procedural Background
On March 14,1991, defendant was charged with multiple counts of sexual assault against a number of different victims, all of whom were minors. Only counts 12 and 14 of the information are at issue in this appeal.2 Count 12 charged defendant with committing a forcible lewd and lascivious act on Autumn R., a seven-year-old girl, in violation of section 288, subdivision (b).3 Count 14 charged defendant with committing a forcible lewd and lascivious act on Rachel P., an eight-year-old girl, also in violation of section 288, subdivision (b).
[385]At trial, Autumn initially had some difficulty recalling the events giving rise to count 12. When reminded about a conversation she had had with a police investigator, however, Autumn recalled that defendant “took my hand and made me touch him.” The incident occurred in the back bedroom of the house in which defendant lived with Autumn and her mother. According to Autumn, defendant made her touch his crotch for “a couple minutes." Defendant had his pants on at the time of the touching. Defendant took the stand in his own defense and denied that this incident had occurred.
Rachel also had some difficulty recalling the events giving rise to count 14. When reminded of her conversation with the police investigator, however, Rachel recalled that defendant had asked her to touch “his private” and that she had said “no.” When asked to demonstrate what had happened, Rachel indicated that defendant had grabbed her hand and touched his crotch with it. She tried to pull her hand away, but defendant pulled it back. Defendant denied asking Rachel to touch his crotch. He admitted he may have grabbed Rachel’s wrist but denied pulling it towards his genitals.
Although section 288, subdivision (b), criminalizes lewd and lascivious acts on a child under the age of 14 years “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” (italics added), the prosecutor in this case elected to proceed only on a theory of force. Accordingly, the trial court instructed the jury only on force, defining it as “physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (See People v. Cicero (1984) 157 Cal.App.3d 465, 484 [204 Cal.Rptr. 582].)
After requesting that Autumn’s testimony be reread, including the “portion of Autumn’s testimony regarding the use of force,” the jury convicted defendant of both counts 12 and 14 as well as other offenses. The trial court sentenced defendant to a total term of 13 years, including a 3-year consecutive sentence on count 12 and a 3-year consecutive sentence on count 14. Defendant has filed a timely notice of appeal.
II. Discussion
As the jury was properly instructed, the force contemplated by section 288, subdivision (b), is “physical force substantially different from or substantially in excess of that required for the lewd act.” (People v. Cicero, supra, 157 Cal.App.3d at p. 484; see also People v. Bergschneider [386](1989) 211 Cal.App.3d 144, 154 [259 Cal.Rptr. 219]; People v. Pitmon (1985) 170 Cal.App.3d 38, 46 [216 Cal.Rptr. 221].) Defendant asserts there is insufficient evidence of such force to sustain the convictions on counts 12 and 14.4 Accordingly, defendant contends we must reverse the convictions on these counts or, at a minimum, reduce them to convictions for nonforcible lewd and lascivious conduct. (See § 288, subd. (a).)5
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314 [270 Cal.Rptr. 611, 792 P.2d 643], citations omitted.) Applying this standard of review, we conclude the convictions on counts 12 and 14 are supported by substantial evidence of defendant’s use of force.
This case is virtually indistinguishable from People v. Pitmon, supra, 170 Cal.App.3d 38. In Pitmon, the defendant grabbed the eight-year-old victim’s hand, placed it on his own genitals, and rubbed himself with the victim’s hand. (Id. at p. 44.) On appeal, the defendant argued there was insufficient evidence to sustain a finding of force. (Id. at p. 47.) The court rejected this contention, holding “[t]here can be little doubt that defendant’s manipulation of [the victim’s] hand as a tool to rub his genitals was a use of physical force beyond that necessary to accomplish the lewd act. The facts show defendant had hold of [the victim’s] hand throughout this act.” (Id. at p. 48.) Similarly, in this case, the evidence demonstrates defendant grabbed Autumn’s and Rachel’s hands and forced them to touch his genitals.6
[387]Furthermore, as to Rachel, the evidence indicates defendant overcame her resistance when she attempted to pull her hand away from his crotch. Although resistance is not required to prove forcible sexual assault, the jury could reasonably have considered Rachel’s resistance in assessing whether defendant used force to accomplish the lewd act. (Cf. People v. Barnes (1986) 42 Cal.3d 284, 304 [228 Cal.Rptr. 228, 721 P.2d 110].) In People v. Bergschneider, supra, 211 Cal.App.3d at page 154, for example, the court held that evidence the victim unsuccessfully tried to push the defendant’s head away while he was attempting to perform oral copulation “represented] the application of force ‘substantially greater than that necessary to accomplish the lewd act itself.’ ” Likewise, in People v. Mendibles (1988) 199 Cal.App.3d 1277, 1307 [245 Cal.Rptr. 553], the court held that evidence the defendant pulled the victims back as they tried to get away and pulled their heads forward to get them to perform oral copulation was “unequivocal evidence of the application of physical force as defined by Cicero."
Defendant in this case urges us to reject the above authorities in favor of dicta in the recent opinion in People v. Schulz (1992) 2 Cal.App.4th 999 [3 Cal.Rptr.2d 799], In Schulz, the defendant woke up the nine-year-old victim at night in her bedroom. (Id. at pp. 1003,1005.) “He grabbed her arm, trying to get her off her bed. She got up and ran to a corner of her room. He grabbed her and held her arm in the comer and she screamed and cried. On direct examination she testified he did not touch her breasts or vagina on this occasion. On cross-examination she testified he did touch her breasts and vaginal area when he got her in the comer.” (Id. at p. 1003.) On appeal, the defendant claimed there was insufficient evidence of force or duress. (Id. at p. 1004.) The Sixth District agreed as to force, stating “[w]e do not regard as constituting ‘force’ the evidence that defendant grabbed the victim’s arm and held her while fondling her. . . . The ‘force’ factor differentiates the charged sex crime from the ordinary sex crime. Since ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.’ ” (Ibid., citations omitted.) The court specifically noted that the opinions in People v. Pitmon, supra, 170 Cal.App.3d 38, People v. Bergschneider, supra, 211 Cal.App.3d 144, and People v. Mendibles, supra, 199 [388]Cal.App.3d 1277, were to the contrary. (People v. Schulz, supra, 2 Cal.App.4th at p. 1004.) After suggesting the evidence of force was insufficient, the Schulz court then upheld defendant’s conviction under section 288, subdivision (b), on the grounds of “duress.” (2 Cal.App.4th at p. 1005.)
The Sixth District recently followed its opinion in Schulz in People v. Senior (1992) 3 Cal.App.4th 765 [5 Cal.Rptr.2d 14]. In Senior, the court stated “[w]e ... do not regard as constituting ‘force’ the evidence that defendant pulled the victim back when she tried to pull away from the oral copulations.” {Id. at p. 774.) The court again rejected the contrary decisions in Pitmon, Bergschneider, and Mendibles and again upheld the convictions on the grounds of “duress.” {Id. at pp. 774-775.)
We decline defendant’s invitation to follow the dicta in People v. Schulz, supra, 2 Cal.App.4th 999, and People v. Senior, supra, 3 Cal.App.4th 765. In our view, the fatal flaw in defendant’s argument, and in the analyses in Schulz and Senior, is in their improper attempt to merge the lewd acts and the force by which they were accomplished as a matter of law. Unlike the court in Schulz, we do not believe that holding a victim who was trying to escape in a corner is necessarily an element of the lewd act of touching her vagina and breasts. Unlike the court in Senior, we do not believe that pulling a victim back as she tried to get away is necessarily an element of oral copulation. And, unlike the defendant in this case, we do not believe that grabbing the victims’ hands and overcoming the resistance of an eight-year-old child are necessarily elements of the lewd acts of touching defendant’s crotch.
Whether a defendant used “physical force substantially different from or substantially in excess of that required for the lewd act” (People v. Cicero, supra, 157 Cal.App.3d at p. 484) is properly left as an issue for the jury to resolve. In this case, the prosecutor argued to the jury that “taking the hand and pulling it on his penis was force extra than what had to be used [for] him to commit that act. ... We have force because he reached and grabbed [her] and put her hand [on his] privates.” As discussed above, the evidence supports this argument. (See, ante, p. 385.) Moreover, the jury had before it evidence of Rachel’s resistance. (See, ante, p. 385.) The jury was properly instructed as to the definition of force and, after carefully reviewing and re-reviewing the evidence before it, concluded there was sufficient evidence of force. Since this finding is supported by substantial evidence, we are bound to uphold it on appeal. (See People v. Jones, supra, 51 Cal.3d at p. 314.)
[389]III. Disposition
The judgment is affirmed.
Smith, J., concurred.
All further statutory references are to the Penal Code, unless otherwise indicated.
Because we address only the evidence pertaining to counts 12 and 14, we need not address defendant’s motion to strike references to the other counts from the Attorney General’s brief.
Section 288, subdivision (b), provides as follows: “Any person who commits an act described in subdivision (a) [a lewd or lascivious act on a child under the age of 14 years] by [385]use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”
Since the prosecutor elected not to have the jury instructed on violence, duress, menace, or fear of immediate and unlawful bodily injury (see § 288, subd. (b)), the only issue before us is whether there is sufficient evidence of force to uphold the jury’s verdict.
“[T]he prison terms provided for violation of subdivisions (a) and (b) of section 288 are identical. There are, however, collateral consequences which attach to a conviction under subdivision (b). For instance, a violation of subdivision (b) constitutes a violent felony within the meaning of section 667.6, mandating a substantial sentence enhancement where the defendant has been previously convicted of a violent felony and authorizing full, separate and consecutive sentences under certain circumstances.” (See People v. Hecker (1990) 219 Cal.App.3d 1238, 1249 [268 Cal.Rptr. 884].)f
People v. Raley (1992) 2 Cal.4th 870 [8 Cal.Rptr.2d 678, 830 P.2d 712], relied upon by our dissenting colleague, is distinguishable. In Raley, a death penalty case, the Supreme Court was addressing whether the special circumstance set forth in section 190.3, factor (b)— namely, “ ‘[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence,’ ”—was present. (2 Cal.4th at p. 906.) One of the incidents relied on by the prosecution was an incident in which defendant “took [the seven- or eight-year-old victim’s] [387]hand and touched his penis with it.” (Id. at p. 908.) Before addressing whether the special circumstance was present, the Supreme Court noted, “Defendant may be correct to argue that the evidence was insufficient to support a conviction for a lewd act with force or coercion, as defined by section 288, subdivision (b).” (Ibid., italics added.) Since the issue before the Supreme Court was the applicability of section 190.3, factor (b), not section 288, subdivision (b), the court’s comments were necessarily dicta, and equivocal dicta at that. Moreover, the facts of Raley are distinguishable from those in this case. Unlike here, there was no evidence the defendant in Raley “made” the victim touch his genitals or that he did so for “[a] couple minutes.”