People v. Babcock

KLINE, P. J., Concurring and Dissenting.

I dissent from that portion of the majority opinion upholding count 12, the forcible lewd and lascivious act (Pen. Code, § 288, subd. (b); all further section references are to that code) against Autumn R. While I concur in the remainder of the opinion, I would modify count 12 to reflect conviction for a nonforcible lewd act (id., subd. (a)), affirm as modified and remand for resentencing.

Section 288, subdivision (b), criminalizes lewd or lascivious acts on a child under the age of 14 years “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim . . . .” Because the prosecutor here elected to proceed only on the theory of force, the court instructed only on that element, defining it as “physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” This accords with settled case law defining the requisite force as “physical force substantially different from or substantially in excess of that required for the lewd act . . . .” (People v. Cicero (1984) 157 Cal.App.3d 465, 484 [ 204 Cal.Rptr. 582 ]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 154 [ 259 Cal.Rptr. 219 ]; People v. Pitmon (1985) 170 Cal.App.3d 38, 46 [ 216 Cal.Rptr. 221 ].)

Requiring “substantially different or excess” force (the Cicero test) respects the legislative distinction between subdivision (a) of the section, which as a matter of fundamental policy makes lewd acts with a young child criminal even though the child may have consented to the acts, and subdivision (b), which envisions greater penal consequences where the perpetrator acts against the child’s will. ( Cicero, supra, 157 Cal.App.3d 465, 473-474 .) Implicitly recognizing that children of tender years are unlikely to resist an adult, the Legislature does not require proof that resistance was overcome. However, it does require proof in the total circumstances that the lewd act was against the victim’s will (id., at pp. 481-482), and the Cicero test serves that requirement where will is overcome by force.

Like my colleagues, I reject recent contrary suggestions from the Sixth District. Embracing the dissenting view in Cicero , that court has held that jury instruction on different or excess force is adequate without instructing on the need to overcome a child’s will. (People v. Quinones (1988) 202 Cal.App.3d 1154, 1157-1158 [ 249 Cal.Rptr. 435 ].) Apparently building on *390 that precedent, and now unhinged from the force requirement’s will-of-the-child rationale, the Sixth District disowns precedent applying the Cicero test, and with twisted results. In People v. Schulz (1992) 2 Cal.App.4th 999 [ 3 Cal.Rptr.2d 799 ], a nine-year-old girl was awakened in her bed at night by the defendant, ran into a corner trying to escape and there held by him, screaming and crying, as he fondled her breasts and vaginal area. Said the court: “We do not regard as constituting ‘force’ the evidence that defendant grabbed the victim’s arm and held her while fondling her. [Citations.] The ‘force’ factor differentiates the charged sex crime from the ordinary sex crime. Since ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.’ ” (Id., at p. 1004.) In People v. Senior (1992) 3 Cal.App.4th 765 [ 5 Cal.Rptr.2d 14 ], the Sixth District said: “We ... do not regard as constituting ‘force’ the evidence that defendant pulled the victim back when she tried to pull away from the oral copulations .... [Citations.] . . . Since ordinary oral copulation . . . almost always involve[s] some physical contact other than genital, a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.’ ” (Id., at p. 774.) Both opinions note contrary holdings in Pitmon, Bergschneider and People v. Mendibles (1988) 199 Cal.App.3d 1277 [ 245 Cal.Rptr. 553 ], evidently conceding that they are not meaningfully distinguishable. 1

I cannot fathom how grabbing and restraining a screaming child while fondling her (as in Schulz) or pulling back her head to overcome the child’s resistance to oral copulation (as in Senior) are not forcible lewd acts. Both unequivocally show excess force used to overpower an unwilling child. To be sure, “ordinary” lewd touching does often involve some physical contact beyond the touching itself. This is especially so in a case like ours, where the act is performed not on the child but by the child on the perpetrator, at the perpetrator’s instigation. However, Schulz and Senior go too far, apparently disregarding whether the amount of force used shows that the will of the child was overcome. They have abandoned the central inquiry under Cicero and left no principle in its place for defining “excess” or “different” force.

Applying familiar review principles (People v. Jones (1990) 51 Cal.3d 294, 314 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ]), I agree that sufficient evidence of excess force exists for count 14. Rachel said defendant asked her to touch *391 “his private” and that she said “no.” Asked to demonstrate what happened, she indicated that he had grabbed her hand and touched his crotch with it. She tried to pull her hand away, but he pulled it back. This was more than the force minimally needed to have her touch his crotch. Defendant overcame her resistance when she tried to pull her hand away. As the majority note, actual resistance is not necessary but is a good indicator of the child’s will being overborne. (Cf. People v. Barnes (1986) 42 Cal.3d 284, 304 [ 228 Cal.Rptr. 228 , 721 P.2d 110 ]; see, e.g., Bergschneider, supra, 211 Cal.App.3d 114, 154 [child pushed perpetrator’s head away during oral copulation]; Mendibles, supra, 199 Cal.App.3d 1277, 1307 [perpetrator pulled children back as they tried to get away and pulled their heads forward to get them to perform oral copulation].)

As to count 12, however, only the lewd act itself is shown. Autumn testified that defendant, while they were in the back bedroom, “took my hand and made me touch him.” He made her touch his crotch, over his pants, for “[a] couple minutes.” This shows nothing more than the force minimally necessary to commit the act. Without moving her hand to his crotch, the lewd touching could not occur. The majority’s assertion that this “forced” Autumn to touch him (maj. opn., ante, p. 386) does not make it so in a legal sense. Autumn said he “made” her touch him, but that in itself shows no more than that he physically moved her hand to him—i.e., that the touching was not at her instigation. Autumn gave no indication that defendant took her hand in a rough manner and, unlike Rachel, did not physically demonstrate the event on the stand. She was not even asked how she felt about it. I can agree that it took “force” to move her hand, but this was not force “substantially different from or substantially in excess of that required for the lewd act. . . .” ( Cicero, supra, 157 Cal.App.3d 465, 484 .)

Nor is the majority’s reliance on Pitmon, supra, 170 Cal.App.3d 38 , fruitful. There the defendant grabbed an eight-year-old boy’s hand, placed it on his own genitals, and rubbed himself with the hand. The court held: “There can be little doubt that defendant’s manipulation of [the boy’s] hand as a tool to rub his genitals was a use of physical force beyond that necessary to accomplish the lewd act. The facts show defendant had hold of [the] hand throughout this act.” {Id., at p. 48, italics added.) Our record does not show that defendant rubbed himself with the hand, as in Pitmon , or applied any force beyond moving Autumn’s hand to his crotch. Evidence of substantially different or excess force is entirely lacking.

Closer to our facts is People v. Raley (1992) 2 Cal.4th 870 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ], where the defendant invited a seven- or eight-year-old girl into his bedroom, shut the door, told her to undress from the waist down, *392 undressed himself and then “took her hand and touched his penis with it” before being interrupted by the child’s mother coming home (id., at p. 908). The Supreme Court observed, as to whether this supported a special circumstance of actual or threatened force or violence (§ 190.3, subd. (b)): “Defendant may be correct to argue that the evidence was insufficient to support a conviction for a lewd act with force or coercion, as defined by section 288, subdivision (b). There was little or no evidence, apart from the fact of disparity in size and age, that defendant used force or violence beyond the force necessary to accomplish the lewd act.” ( 2 Cal.4th at p. 908 , citing Cicero among other cases.) Nevertheless, the entire course of criminal conduct (he had pushed the girl out a window afterward and threatened to beat her up if she said anything) adequately showed threats of force or violence. We have no such further facts here—only the indistinguishable fact that defendant “took” a child’s hand and placed it to his (covered) genitals.

Where evidence fails to support an element of an offense, we may obviate the need for retrial by modifying the judgment to reflect conviction for any supported lesser-ineluded or lesser-degree offense. (§§ 1181, subd. 6, 1260; People v. Odie (1951) 37 Cal.2d 52, 56-57 [ 230 P.2d 345 ].) Defendant has argued that his lewd-act conviction lacks evidentiary support for the force element under section 288, subdivision (b), but does not dispute that the evidence supports a nonforcible lewd-act conviction under section 288, subdivision (a). A forcible lewd act necessarily includes a nonforcible one under the section. (People v. Ward (1986) 188 Cal.App.3d 459, 472 [ 233 Cal.Rptr. 477 ].)

I would accordingly modify the judgment, affirm as modified and remand for resentencing. (Cf. People v. Alexander (1983) 140 Cal.App.3d 647, 666-667 [ 189 Cal.Rptr. 906 ].) The sentence options for the court are significantly different with the modification. The court imposed a mitigated term of three years for count 12, which is the same mitigated term prescribed for a nonforcible lewd act. (§ 288, subds. (a) and (b).) However, the court had felt bound to impose a full consecutive sentence and to exclude that count from the principal-subordinate sentencing scheme it used for other counts. (§§ 1170.1, 667.6; see also People v. Hecker (1990) 219 Cal.App.3d 1238, 1249 [ 268 Cal.Rptr. 884 ].)

Appellant’s petition for review by the Supreme Court was denied July 15, 1993.

“(Contra, People v. Pitmon (1985) 170 Cal.App.3d 38 , 48 . . . —physical manipulation of hand and pushing on back during lewd touching; People v. Bergschneider (1989) 211 Cal.App.3d 144 , 154 . . . —pushing head against victim’s hands during oral copulation; cf. People v. Mendibles (1988) 199 Cal.App.3d 1277 , 1307 . . . —pulling head forward during lewd touching.” ( Senior, supra, 3 Cal.App.4th 765, 744 ; Schulz, supra, 2 Cal.App.4th 999, 1004 .)