People v. Aguilar

Filed 11/7/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B291637

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA115989) v.

MOISES ALBERTO AGUILAR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven Blades, Judge. Affirmed. Melanie K. Dorian and Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent. ____________________

A jury convicted Moises Aguilar of forcible sexual penetration and sexual battery. Aguilar appeals only the former conviction, arguing there was no evidence of force and the trial court erroneously instructed the jury. We affirm. Code references are to the Penal Code. I These are the facts. A.R.’s father dated and lived with Aguilar’s mother for about five years. A.R. met Aguilar when she was 10 years old. At one point, A.R. lived in the same house as her father, Aguilar’s mother, and Aguilar. A.R. and Aguilar watched TV and played games together. Aguilar started touching A.R. inappropriately when she was 13 or 14. Aguilar was 17. He grabbed A.R.’s chest and bottom several times a month. This grabbing made A.R. uncomfortable. Early one morning, A.R. and Aguilar were watching TV. A.R. was on a couch. Aguilar sat about a foot away. A.R. was getting ready to sleep when Aguilar grabbed her chest. A.R. told Aguilar no but he did not stop. He put his hand under A.R.’s pants and underwear, rubbed her vagina, and put his fingers inside. This hurt A.R. A.R. continued to say no but he would not stop. A.R. resisted by grabbing and pulling his arm “the whole time.” She could not pull his hand away because “he was too strong.” A.R. was panicked and scared. Aguilar grabbed A.R.’s arm and pulled it towards his penis. A.R. was able to pull her arm away. Aguilar moved his fingers in and out of A.R.’s vagina for a long time. He stopped only when his mother approached. He disengaged before his mother saw anything.