People v. Grim

Opinion

FRANSON, J.

*

Appellant Emery Elroy Grim was convicted by jury of one count of violating Penal Code

1

section 288, subdivision (b), to wit, a lewd and lascivious act upon his son, a minor under the age of 14. The jury further found true the alleged enhancements that appellant was statutorily ineligible for probation because he occupied a position of special trust and committed an act of substantial sexual conduct upon his victim (§ 1203.066, subd. (a)(9)), and because he employed force, violence, duress, menace, or fear of immediate and unlawful bodily injury in committing the section 288 violation (§ 1203.066, subd. (a)(1)).

Appellant was sentenced to prison for the middle term of six years.

Statement of Facts; Discussion

I.

Substantial evidence supports a finding of the use of force.

†

II.

The instructions and jury forms relating to the enhancement allegations were adequate.

A. Definition of “substantial sexual conduct. ”

Section 1203.066, subdivision (a)(9) bars probation for “[a] person who occupies a position of special trust and commits an act of substantial sexual conduct.”

“Substantial sexual conduct” includes oral copulation. (§ 1203.066, subd. (b).) Consequently, the jury was instructed on “oral copulation” as follows:

[1242]

“Any contact, however slight, between the mouth of one person and the sexual organ of another person constitutes ‘oral copulation’. Penetration of the mouth is not required.”

The above definition of “oral copulation” was derived from CALJIC No. 10.10 (5th ed. 1988 bound vol.). However, the 1989 revision (5th ed. pocket pt.) of that instruction changed the definition, which now reads: