41 Cal.App.5th 149
Cal. Ct. App.2019Background
- Defendant Scott McCann was charged with forcible sexual penetration by a foreign object (Pen. Code §289(a)(1)(A)) and related offenses after an incident at the Arlington Hotel on June 13, 2013.
- Victim Kevin C. had no memory of the incident; hospital records showed severe injuries (broken nose, subdural hematoma, ruptured bladder, rectal tear) requiring surgeries and a temporary colostomy.
- Security footage showed Kevin collapsed in the hallway; witnesses later saw McCann cleaning blood in his room and two witnesses (one in a pretext call) recorded McCann admitting to inserting a broom handle or jagged steel bar into Kevin’s rectum and striking him.
- At the preliminary hearing the magistrate held McCann to answer on most counts; McCann moved under §995 to dismiss count 1 (forcible penetration), and the trial court granted dismissal relying on People v. Kusumoto.
- The People appealed; the Court of Appeal held that People v. Griffin governs the definition of "force" for forcible sexual penetration, rejected Kusumoto’s narrower standard, and found sufficient cause to hold McCann to answer on count 1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal standard for "force" under §289(a)(1)(A) | Griffin controls: "force" means enough to overcome victim's will | Trial court applied Kusumoto (force must be substantially different/greater than that needed to accomplish the act) | Griffin governs; Kusumoto's stricter test is disapproved |
| Sufficiency of evidence to hold defendant to answer for forcible penetration | Admissions, pretext call, eyewitnesss, video, victim's nonconsent, and injuries provide reasonable/probable cause | Victim was intoxicated/unconscious; penetration occurred without force (took advantage of incapacitation) | Evidence sufficient to show probable cause; dismissal of count 1 reversed and remanded to deny §995 motion |
Key Cases Cited
- People v. Griffin, 33 Cal.4th 1015 (2004) (defines "force" for rape as sufficient to overcome the victim's will)
- People v. Kusumoto, 169 Cal.App.3d 487 (1985) (applied a narrower "force" test later disapproved by Griffin)
- In re Asencio, 166 Cal.App.4th 1195 (2008) (applies Griffin's force standard to §289 sexual-penetration cases)
- People v. Thomas, 15 Cal.App.5th 1063 (2017) (applies Griffin to forcible sexual penetration under §289)