*1 [No. Sixth 1994.] H008927. Dist. Mar. PEOPLE,
THE Plaintiff Respondent, BOLANDER,
JOHN ANTHONY Defendant Appellant. [Opinion publication.*] for partial certified Court, 976.1, *Pursuant to California Rules of rule opinion publication this is certified Introduction; Evidence, only A, E; as to: 1. 2. Trial subparts Sufficiency Evidence as 5, and; to Count 11. Disposition, the separate concurring opinion. *2 Counsel Defendant
Richard J. under Court of for Ingram, appointment Appeal, and Appellant. Williamson, General, Assistant
Daniel E. Chief Lungren, Attorney George General, General, Bass, Christopher A. Attorney Attorney Ronald Assistant General, Leib, Wei and Rosen Plaintiff Attorneys J. Sharon Deputy Respondent.
Opinion
COTTLE, P. J.
1. Introduction jury guilty found defendant John Bolander of seven counts Anthony molestation; case, child in each nine-year-old stepson was his 23,1982. A., had been information charged by born Defendant January years with six lewd act with a child under fourteen committing counts Code, 288, 4, 6, 7, (Pen. 8])1 (a) subd. two counts age § [counts age fourteen using years force to commit a lewd act with a child under (§ 5]). alleged prior subd. The two prison information [counts 667.5, 4; (b)). terms could not reach a verdict as to count *3 that count was after At to count dismissed the court declared a mistrial. jury found included guilty defendant lesser offense counts, ). (a) As six remaining to defendant was found as guilty charged. 667.5, In a bifurcated proceeding, defendant admitted denied, (b) allegations. After his motion for new trial was defendant was sentenced 25 years to in state On defendant contends the trial prison. appeal trial, (1) erred by (2) court the motion new denying stating inadequate sentences, reasons for hilly (3) consecutive instruct imposing failing to sua offenses, on sponte included to to necessarily pursuant instruct failing CALJIC No. 2.02 regard on intent with and specific to count instruct- in a ing confusing sequence. Defendant also claims the evidence was 2.00, insufficient to his conviction for support count and that CALJIC Nos. 2.01, and are 2.90 constitutionally deficient.
2. Trial Evidence
A. Background molestations, At the time of the all of which occurred between and May November of defendant had been married to mother Janet for Ryan’s defendant, Janet, less than a year,2 Ryan, sister Ryan’s 17-year-old Janae, and Janae’s two-year-old son were in living Joshua a two-bedroom bed; house Scotts Ryan Valley. usually on the sofa slept living room he occasionally slept Janet and defendant’s bed in the master bedroom when they stayed watch up to television living room. Janae on slept twin in a daybed room she shared with her son. When defendant’s 16-year- old daughter Shawna joined family November she slept on the bottom portion of Janae’s daybed.3
At the time question, defendant day worked as every a contractor. His flexible; work schedule was he came home between 3:30 and p.m.; 8:30 on 1All further statutory references are Penal Code specified. unless otherwise law, an 2In effort simplify our discussion facts and the family members of the will referred to their first names. 3When defendant and Janet first moved to Valley July they Scotts lived in one bed; Ryan. little room Ryan slept with on slept Janet and on the defendant floor. awake, noises, Occasionally, Ryan would hear go sleep. and then back to Janet testified she and defendant would occasionally night make love at asleep. after Ryan hand, twelve-hour set at two she worked a jobs; the other Janet had hours to 8 from 8 a.m. duty Tuesdays through Thursdays shift as a nurse private as 4 p.m. shift from noon to p.m. Mondays Fridays a four-hour on there were times in a home. testified private care-giver Ryan patient’s came there. only person home from school when defendant was the other weekends, him to him on paying Defendant often took to work with Ryan him pick Ryan enjoyed wood and how to nail up showing things. Initially, months, join these wanted to outings. longer After a few when no Ryan defendant, if togo a Nintendo would buy Ryan defendant promised work with him.
B.-D.*
E. Count 5: 1990, in the fall of Janae’s day portion on Ryan asleep top when him if to watch daybed Ryan defendant awakened and asked wanted television. Defendant then shorts down. tried to pulled Ryan’s Ryan pull over, waist, them back but defendant bent his hand on up, Ryan put Ryan’s him, and did not pulled Ryan Ryan’s Ryan cry towards his anus. put penis home, although defendant was his anus. When his mother returned hurting home, he his Ryan got to visit a friend. When he came told permission mother what defendant had done to him.
F.-H.*
3. Motion New Trial* Sufficiency 4. the Evidence as to Count 5
Defendant contends the that the crime jury’s finding charged count 5 was committed either force or duress is not supported by substantial evidence.
In order to (b) establish “force” within the of subdivision meaning 288, section the prosecution must the defendant “used force show *See page footnote, ante,
159 substantially than that greater different from (1984) 157 (People Cal.App.3d the lewd act itself.” v. Cicero 582]; (1992) v. 5 Cal.App.4th 474 Gilbert People [204 660].) 1381 Cal.Rptr.2d [7
Here, Ryan his down. tried unsuc- Ryan testified defendant shorts pulled his then over and his cessfully pull Ryan put shorts Defendant bent up. Ryan’s Defendant his on waist and penis Ryan’s inside anus. hands put it.” “pulled” Ryan’s doing waist “towards him while was Applying Cicero, set forth we acts of principles inhibiting conclude that defendant’s over, Ryan from his back pulling up, bending Ryan shorts and pulling towards him constitute within the force 288, in “. . . defendant order to accomplish applied
the lewd acts (1993) without the victim’s consent.” v. Neel 19 Cal.App.4th 293].) 1790 We that our Cal.Rptr.2d recognize [24 is conclusion inconsistent with dicta two recent our opinions published district on this issue.
In People 799], 2 1004 Cal.App.4th Cal.Rptr.2d [3 Schulz in People 14], v. Senior 774 Cal.App.4th Cal.Rptr.2d of this district panel affirmed section convictions based on duress but dicta suggested the evidence of force was insuffi cient because lewd acts with a child under age “almost involve always some physical (Senior, contact other than lewd act [the itself]” *5 Cal.App.4th 774.) at “. p. and . . a modicum of even holding restraining and regarded cannot be as substantially different or excessive ‘force’ the [beyond force the required (Schulz, supra, for lewd 2 1004.) at Cal.App.4th act.]” p. in court and Senior acknowledged that the interpretation Schulz of the “force” requirement of subdivision of section 288 was contrary (Schulz, 1004; Senior, to precedent. 2 supra, at supra, 3 Cal.App.4th p. 774.) at Cal.App.4th p. at least two Recently, districts have with disagreed in the dicta and Senior (People v. 14 Schulz Babcock Cal.App.4th Neel, 688]; Cal.Rptr.2d People v. supra, 19 Cal.App.4th 1790), and the People ask us “to revisit this issue and reconsider prior [the] rulings in light of’ Babcock and Neel. Schulz,
In the defendant entered the victim’s room and tried her to off get room, her bed. When she ran ato comer of her the defendant her grabbed and held her arm arm, as she screamed and cried. While the victim’s holding the defendant touched her and vaginal (2 breasts area. at Cal.App.4th p. 1003.) In concluding this was insufficient evidence of force within the reasoned, of (b), court “We do not as regard constituting ‘force’ evidence that grabbed defendant the vic- arm tim’s and her held while . . fondling her. . The ‘force’ factor differen- tiates the sex charged crime with the ordinary sex crime. Since ordinary contact,
lewd a modicum touching often involves some additional physical different regarded substantially and even cannot be as holding restraining ” (2 1004.) or excessive ‘force.’ at Cal.App.4th p. Senior, In and made the vagina the defendant victim’s orally copulated Tfte that when “. . . she his victim testified orally copulate penis. licked her He her vagina. tried to when pull away pulled [the defendant] He held her back. She tried to from his shoulders.” pull away sucking penis. (3 forth 771.) Cal at on its of force as set .App.4th Relying interpretation Schulz, in the court concluded that it did “not as ‘force’ regard constituting tried evidence that defendant the victim back when she to pulled pull away from the oral the fact that copulations,” finding significant “[t]here 774.) (Id., no evidence here however any struggle, brief.” at p. above, in As noted Babcock and Neel with the dicta and disagreed Schulz in Senior. The court in Babcock that the flaw in the analyses reasoned Schulz in Senior “is their the lewd acts and the force improper attempt merge to Babcock, which by were as a matter law." they accomplished at The court then noted that the defendants’ Cal.App.4th in (ibid.) acts force and Senior were not an element” “necessarily Schulz of the lewd acts which reasoning ensued. Neel relied heavily upon Babcock, and then added its own criticism of the rationale of Schulz Cicero, 288,] Senior: “As explained element of force [section is intended undertaken as that the lewd act be requirement without victim’s consent force ‘physical substantially means different substantially greater from or than that accomplish view, lewd In act itself.’ our it is the force readily apparent [Citation.] used and Senior was the lewd acts applied accomplish against Schulz the will of the victims and constituted different substantially from excess of that the lewd acts. required defendant fondle a child’s child may genitals having grab without Likewise, the arm and hold the victim order to the act. crying *6 an assailant achieve oral may without to the victim’s copulation having grab stated, head to the victim from prevent resisting. such force is Simply different from and excess the of of force which is used accom- type Neel, lewd supra, similar acts with a plishing victim’s consent.” v. 1790.) 19 at Cal.App.4th p.
Here, the force defendant used on to the act of sodomy accomplish greater is no than that used to hold a victim who was to crying trying escape in a corner or that used to her hold a victim’s shoulders to pull prevent However, from resisting. of criticisms set forth light convincing Neel, Babcock and we disagree with the respectfully interpretation “force” requirement (b) of section subdivision discussed Schulz
161 Senior. We instead those courts which have held that subdivision join “[i]n force, violence, duress, menace, (b), the element of or fear of immediate and unlawful victim or bodily injury on the another is intended as person requirement the that the lewd act be undertaken without consent of the 475-476, (Cicero, victim. supra, 477-484.) 157 at As used in Cal.App.3d pp. subdivision, that ‘force’ means ‘physical different from or substantially greater than that the act necessary to lewd itself.’ accomplish 474; (Id., at Quinones p. People cf. 202 1158 Cal.App.3d v. Neel, . . . .” (People 1787.) v. at this Cal.App.4th Applying hand, standard the at we facts conclude that defendant’s acts overcom of down, ing victim’s resistance to his pulled having pants bending over, him pulling victim’s waist towards constitute force within the of “in meaning subdivision that defendant force in applied order to the lewd accomplish (19 without the victim’s consent.” act[] at Cal.App.4th we shall affirm the Accordingly, judgment as count 5.
In of our light conclusion that defendant’s acts within constitute force (b), of section we need not address defendant’s contention the evidence is insufficient to that defendant prove used duress (See sodomy. People Guiton Cal.4th 1116 45].) Cal.Rptr.2d P.2d 5.-10*
11. Disposition
The judgment is affirmed.
Bamattre-Manoukian, J., concurred. J., MIHARA, Concurring. I concur judgment and rationale of the lead opinion except for its analysis of the evidence sufficiency issue, “force” to count support 5. With I to that would an respect suggest alternative analysis. Code,1 (Pen.
A lewd act (a)) comes within provisions § force, if the act was committed “by use violence, duress, menace, or fear of immediate and unlawful on bodily injury *7 victim or the another person (b).) . . . .” The in this jury case footnote, ante, *See page 155. 1Subsequent statutory are references to the specified. Penal Code unless otherwise that further instructed was instructed on this element of the offense from term ‘force’ means force that is different physical substantially “[t]he the lewd than that substantially greater (CALJIC itself.” 10.42.) charged The that the act No. concluded there count 5 that (b). violated section subdivision Defendant claims was insufficient evidence of “force” to this support finding. is No. 10.42
The in CALJIC origin of the definition of “force” contained (1984) 157 People the Third District decision in v. Cicero Appeal’s Court “ that ‘. . . court posited Cicero Cal.App.3d 582]. in a force’ should defined a a child’s obtaining participation as method (Id. 476.) The court lewd act in a will at p. violation of child’s . . . .” with the legisla- that this was somewhat at odds acknowledged proposition since, language tive of the statute the history original statutory deleted the “against that the act be the will of the victim” was requiring However, the the Legislature. plausible court concluded that “. . . most it eliminate any 1981 amendment was that was purpose designed in a that resistance the victim requirement People prove prosecution 288,] (b).” (Id. 481.) The for violation of subdivision at Cicero p. [section court found that “. . . the did not intend its amendment Legislature [by (b)] that a subdivision to eliminate from subdivision requirement lewd victim act be undertaken the will of the victim where the against (Id. added.) suffers no harm.” at italics Based on this physical intent, analysis Legislature’s following Cicero court reached the conclusion. “Where a defendant a lewd act uses force to commit physical a child under the a upon age of and the child suffers harm as physical the defendant under consequence, has committed a lewd act use of force’ ‘by (b). Consent is no Where no harm to the child physical defense. occurred, (1) has the defend- has the burden of prosecution proving ant used different excess substantially from or (2) of that the lewd act and that the lewd act was required accomplished for. the will of the victim. . . . is an affirmative defense that the against [I]t (Id. consented to the lewd act.” at knowingly view, In Cicero my analysis diverges Legislature’s from both intent and the plain language of the statute. The result of this is a analysis which holding misconstrues the statute and definition provides misleading Furthermore, of force. utilization of Cicero's definition of force CALJIC No. 10.42 poses confusing jurors. serious Cicero's danger intent legislative led it down the The more analysis wrong apparent path. equally plausible legislative intent behind the 1981 amendment of section was to obviate the need prosecution prove lack of consent and rebut a defense claim of reasonable faith belief good *8 (the in unam- “Mayberry”2 defense). Legislature consent Since so-called 1981,1 in an the offense biguously eliminated of consent as element of lack with Cicero’s conclusion that this cannot element remains a of the agree part no prosecution’s case in where the use of force causes physical those cases of harm.3 Once lack of eliminated as an element the prosecu- consent was case, of tion’s it was definition force. Lack not reborn as a of part 288, consent is not an element section subdivi- of offense prohibited a (b), sion and the victim’s not an affirmative defense to such consent is charge. The victim’s lack thereof is immaterial. simply consent or in
What then does “force" mean? The term has the same meaning “force” 288, (b) in (robbery) section subdivision it and section as has section 261, with, (a)(2) subdivision Force not (rape). given meaning is or equated lack of in by, robbery consent or When the prosecutions rape. prosecu- tion seeks to show that a taking or an act of sexual intercourse was force, lack accomplished by prosecution means must both prove consent and force a or case. It is rape robbery of course true that rape 288, robbery prosecutions, prosecutions as under section subdivision (b), force be cannot established “something without evidence of more” than just prohibited act. more is convic- “[Sjomething required robbery [for just than that quantum of force which tion] is mere seizing of the Morales property.” 49 Cal.App.3d 157].) However, Cicero’s Cal.Rptr. [122 to define the “some- attempt thing more” which is required (b) in a section subdivision prosecution so ambiguous is that it confuses more than it clarifies.
For
force,
purposes
review
appellate
of evidence
sufficiency
standard
case need not
any
be
different
than it
in a
is
robbery or
rape case.
defendant
“force” if the
uses
prohibited
violence,
act is facilitated by the defendant’s use of physical
or
compulsion
than,
to,
against
constraint
the victim other
addition
the physical
contact which is inherent
in the prohibited
(Cf.
act.
Webster’s Collegiate
Dict.,
455.)
main distinction between this definition and the
Cicero is the omission of the requirement
one propounded
that the force
be “substantially different
from or substantially in excess of’ the physical
which
contact
is inherent
in the act. The
whether an
evidentiary key to
was forcible is not whether
the distinction between the “force” used to
2People
v. Mayberry
can
that since
the act. It follows
incidental to
merely
rather than being
act
is the same
prosecution
of force
a section
definition
no need
there is
robbery
rape prosecution,
a
as the definition of force
technical
has “no
force. “Force”
defining
instruction
understanding of
be within the
presumed
to the law and must be
peculiar
633, Anderson
64 Cal.2d
(People v.
jurors.”
robbery
“force”
defining
need for instruction
defendant used force to defendant’s including Ryan, defendant’s constraint of facilitated by Ryan. sodomize him so that could towards pulling Ryan conduct to the incidental merely was not this manner Defendant’s use count 5. the evidence supports sodomy. Consequently, June was denied Court Supreme for review petition Appellant’s Mosk, J., granted. that the should petition was of the opinion