*1 July Sixth Dist. H002645. 1988.] [No. PEOPLE, v. Respondent,
THE Plaintiff and Appellant. Defendant and QUINONES, MARIN GUADALUPE partial publication.*] [Opinion certified * 976.1, 976(b) is certified for Rules rules this to California Pursuant through publication exception parts with the *2 Counsel Schleicher,
Estelle A. the Court of appointment Appeal, Defendant and Appellant. General, White,
John K. Van Attorney de Steve Chief Assistant Kamp, General, General, Attorney John H. Sugiyama, Attorney Assistant Martin Matthias, General, S. Kaye and Ronald S. Deputy Attorneys for Plaintiff and Respondent.
Opinion verdict, CHAPMAN, J.* Marin By jury Guadalupe defendant molesting acts of a child under separate was convicted two *3 fourteen, i.e., 288, count one a violation of Penal Code section subdivision force, 288, without and count two a violation of section subdivision (a), (b), sentenced serve in state He raises eight prison. with force. He was to on Each will be addressed in this eight separate grounds appeal. separately opinion.
Summary of Facts mother, Quinones nine-year-old lived with Norma and her Elena. One 1986, work, night May of while Norma’s mother was at Quinones ap- lay Norma as she her bed on the proached verge falling asleep. Elena, Quinones normally took Norma to the bed he shared with removed her and then touched her tell panties, vagina. Quinones told Norma not to anyone what had and that she would be if she did. happened, spanked Norma refrained from her telling Quinones’s mother because of threat. later, 20th, home, May
Some time away when Elena was from again Quinones carried Norma from her bed to his own. While her to his carrying bed, Quinones money to her and said that she him promised give should let bed, knees, “do to her. In things” Quinones lowered Norma’s to her pants her, climbed and kissed her on atop the mouth. He then her spread legs this, and moved slightly up During and down. Norma felt his “pee pee” her touching Quinones also her to touch “pee pee.” forced his “pee pee” incident, with her hand. At one point during Quinones struck Norma on the cheek cry. when she to The next began morning, Norma reported this second incident to her mother.
Quinones testified and denied engaging any sexual misconduct with described, Norma. He denied specifically committing acts Norma claimed she was simply lying.
The jury convicted molestation subd. for simple (§ (a)) the first incident and aggravated (§ molestation subd. (b)) second.
*Assigned by Chairperson of the Judicial Council. 1Subsequent statutory references are to the Penal Code unless otherwise noted.
Discussion 1.-6.* Be the Will “Against to Instruct That the Lewd Act Failure ” Victim under section subdivi next contends his conviction Appellant be reversed because the trial court failed to instruct that a (b), sion must *4 conviction under this section that the lewd acts were accom requires proof “against the will of the victim.” At the time the crimes were com plished mitted and subdivision or prosecuted, (b) proscribed section lewd force, violence, duress, menace, “by lascivious conduct on a child use of or 1981, 1064, 1, threat . . . .” great bodily (See harm Stats. ch. p. 4093.) § The trial court instructed that “force means force that is physical substan tially different substantially necessary from or than that to accom greater However, the plish lewd act itself.” the court did not instruct that the force must overcome the will of the victim. Quinones cites v. Cicero (1984) Cicero,
582], as support argument. for his the court construed the term 288, “force” as used section subdivision (b). undertaking After an exten below, analysis sive greater which is related in detail the court formulated following the definition: “Where a defendant uses physical force to commit 14, a lewd act a child under upon the the child suffers physical harm aas the defendant consequence, ‘by has committed a lewd act use of force’ under subdivision . . . (b). Where no harm physical to the child has occurred, the has the prosecution burden of that the defendant proving (1) used force physical substantially substantially different from or in excess of that for the required lewd act and that the lewd act was accomplished 484, against the will the victim.” at (Id. p. added.) italics The broader before the court question was whether a 1981 amendment to section subdivision which deleted (b), language that the lewd conduct 1064, 1, be the “against will of the victim” (Stats. ch. p. 4093), § meant that this was no an element of the crime in all longer circumstances. The court concluded the amendment did not delete this element from the crime. The court first noted that “duress” “menace” and great threats of bodily necessarily harm that the crimes imply against were carried out the
* ante, page See foonote did not the Legislature the court concluded Consequently,
victim’s will. at (Cicero, supra, in all circumstances. eliminate this element intend to 477-478.) pp. acts a that the requires showing next decided that “force” also
The court no victim where the victim carried the will of the against were out suffers amendment that the of the 1981 purpose harm. The court reasoned physical element, but, instead, the of the victim” “against was not to remove the will the vic- by resistance “any People prove to eliminate requirement (b). (Id. p. 481.) in a section subdivision tim” prosecution Cicero, and instead majority We with the respectfully disagree case. The dissent agreed of the dissent that adopt reasoning deleting that a of the 1981 amendment majority “plausible purpose” for the prose- to eliminate the “against language requirement will” was “Even by the victim. The dissent continues: so cution to resistance prove must still show the lewd act majority concludes prosecution the victim if the victim suffered no against was undertaken the will of stated, may be met circumstantial harm. That it physical requirement, reasonably used to demonstrate the lewd act enough force was proof mis- fl|] was undertaken the will of the victim. That conclusion is *5 against It writes back into the subdivision what the guided. precisely Legislature .... the Legislature simply wrote out of the subdivision believe [We] will, and against the lewd act in subdivision need not be the recognized (a) thus, fact, it need not be in the use of force under subdivision In (b). statute, the of the the act in subdivision can be commit- plain language (b) subdivision, if ted with consent and still be a violation of the force knowing used. the it is something perpetrator applies; indepen- is Force is limited to victim, under-14-year-old fl|] dent of the actions or of the In thoughts age the statute creates a class under the and the protected [our view] act, force, if done with is a violation of subdivision of ‘know- (b) regardless consent,’ will,’ the or whether the victim resisted.” ing ‘against (Cicero, at 487-488 P. italics in supra, pp. (dis. Regan, Acting J.), original.) opn. we the Cicero that a conviction based on Although agree majority with “duress,” “menace,” bodily necessarily or “threat of harm” great implies the at (Cicero, “will of victim” has been overcome 477- supra, pp. 478), the same cannot be said of a conviction on the use of force. As based observed, Regan Justice is limited to something perpetrator “[f]orce we believe the first of the definition of force applies.” Consequently, part in suggested substantially force different from or sub- Cicero—“physical in stantially excess of that for the act”—is sufficient. Since required lewd this definition given, was we find no instructional error.
1159 Aggravation as Factor Age Victim on Nor relied improperly the trial court contends Finally, Quinones term for the upper in aggravation imposing as a factor age ma’s an 14) age be under the the victim charges, age (that since section Court, agree rule We 441(d).) Rules of (Cal. element of the offense. resentencing. and remand for this contention term, “I believe that factors the court stated:
In imposing upper factor, that the the factors in outweigh mitigation; specific aggravation And I at the time of the sexual assault. under the of eleven age victim was children, in the enough impact depend- that there difference believe was The (sic).” factor in mitigation their that that is an ing age appropriate upon in aggravation. noted no other factors court “submit” 10-year-old that molestation of a 9- or
Although People child, more youth, reason of the victim’s relative should be viewed as 13-year-old, they than the molestation of a 12- or concede aggravated be remand- accordingly case law holds otherwise and that the matter should v. resentencing. (1981) ed for Ginese (People Cal.App.3d 383].) Ginese, the trial court the defendant to the term on a upper sentenced charge, citing ages section 288 of the victims—nine and elev- specific en—and, minority (At more their as factors in generally, aggravation. on California Rules of rule 475-476.) Relying 441(d), pp.
v. Flores the Ginese court held it error to was rely on the of the victims since an factor is an element of the age-range (Ginese, supra, pp. 476-477.) offense. *6 “[ejxtreme youth range
The court also noted that within the given age ... in be viewed as a victim vulnerable’ rela- might making ‘particularly tion to others within the but in those instances or age range, dependency fear invariably is also as involvedand should be stated the basis the vulnerabil- for ity.” added.) italics Since the trial court did not cite fear or (Id. p. in vulnerability, of its of the Court of dependency support finding Appeal the bare reference in ages found to the victims’ an factor specific improper aggravation. (Ibid.) case,
Similarly, in this the trial court did not state that fear or dependen- cy—due relatively to Norma’s the basis for young age—was aggravation. Nor did the court make a as to another factor finding potential aggravating in namely advantage listed that the defendant took of probation report, a position special Consequently, agree trust. we with and issue, The resentencing. remanded for that the case must be
People course, resentencing. may be addressed specifically
Disposition in resentencing the case is remanded for The is reversed and sentence In all other respects, the views in this expressed opinion. accordance with is affirmed. the judgment J., concurred.
Capaccioli, BRAUER, Acting J., I join opinion and Concurring Dissenting. P. resentencing. orders remand for of the court as to that which except part is not v. Ginese 383] merely I that decision if it is construed to hold clear. do not quarrel a a is an element of a crime or a age degree that where a of child specific on the basis of may crime the court not the defendant’s sentence aggravate that used 421(a)(9), namely California Rules of rule defendant “[t]he the crime.” if Ginese is so interpreted minors in the commission of But considerably as to on the basis of a victim’s below preclude aggravating age offense, not be wrong1 that which is an element of the Ginese is and should determining followed. A trial is well within his that a defend- judge rights if nine-year-old ant is far more and if he molests a than depraved dangerous sexually he the same conduct with a thirteen- engages perhaps precocious view, out, did, a one that a year-old. my judge points trial who as this victim of molestation was nine has stated sufficient grounds term. 443 make clear that the of the Rules imposition upper enumeration in the rules not exclusive and need sentencing judge not of the rules. parrot ponderous prose for review the Court was denied October
Appellant’s petition Supreme 13, 1988, Broussard, J., was of the should be petition granted. *7 entirely unexceptionable People v. 1Ginese derives solace from the but different case of years dividing
Flores There the line was 16 777]. old, age, sentencing judge gave the victims were between 14 and 16 and the no reason except particularly young age." that “the victims were vulnerable due to their