People v. Bolander

MIHARA, J., Concurring.

I concur in the judgment and the rationale of the lead opinion except for its analysis of the sufficiency of the evidence of “force” to support count 5. With respect to that issue, I would suggest an alternative analysis.

A lewd act (Pen. Code, 1 § 288, subd. (a)) comes within the provisions of section 288, subdivision (b) if the act was committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . .” (§ 288, subd. (b).) The jury in this case *162 was instructed on this element of the offense and was further instructed that “[t]he term ‘force’ means physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (CALJIC No. 10.42.) The jury concluded that the act charged in count 5 violated section 288, subdivision (b). Defendant claims that there was insufficient evidence of “force” to support this finding.

The origin of the definition of “force” contained in CALJIC No. 10.42 is the Third District Court of Appeal’s decision in People v. Cicero (1984) 157 Cal.App.3d 465 [ 204 Cal.Rptr. 582 ]. The Cicero court posited that “ ‘. . . force’ should be defined as a method of obtaining a child’s participation in a lewd act in violation of a child’s will . . . .” (Id. at p. 476.) The court acknowledged that this proposition was somewhat at odds with the legislative history of the statute since, in 1981, the original statutory language requiring that the act be “against the will of the victim” was deleted by the Legislature. However, the court concluded that “. . . the most plausible purpose of the 1981 amendment was that it was designed to eliminate any requirement that the People prove resistance by the victim in a prosecution for violation of [section 288,] subdivision (b).” (Id. at p. 481.) The Cicero court found that “. . . the Legislature did not intend [by its 1981 amendment of subdivision (b)] to eliminate from subdivision (b) the requirement that a lewd act be undertaken against the will of the victim where the victim suffers no physical harm.” (Id. at p. 480, italics added.) Based on this analysis of the Legislature’s intent, the Cicero court reached the following conclusion. “Where a defendant uses physical force to commit a lewd act upon a child under the age of 14, and the child suffers physical harm as a consequence, the defendant has committed a lewd act ‘by use of force’ under subdivision (b). Consent is no defense. Where no physical harm to the child has occurred, the prosecution has the burden of proving (1) that the defendant used physical force substantially different from or substantially in excess of that required for. the lewd act and (2) that the lewd act was accomplished against the will of the victim. . . . [I]t is an affirmative defense that the victim knowingly consented to the lewd act.” (Id. at p. 484.)

In my view, the analysis in Cicero diverges from both the Legislature’s intent and the plain language of the statute. The result of this analysis is a holding which misconstrues the statute and provides a misleading definition of force. Furthermore, the utilization of Cicero's definition of force in CALJIC No. 10.42 poses a serious danger of confusing jurors. Cicero's legislative intent analysis led it down the wrong path. The more apparent and equally plausible legislative intent behind the 1981 amendment of section 288, subdivision (b) was to obviate the need for the prosecution to (1) prove lack of consent and (2) rebut a defense claim of reasonable good faith belief *163 in consent (the so-called “Mayberry” 2 defense). Since the Legislature unambiguously eliminated lack of consent as an element of the offense in 1981,1 cannot agree with Cicero’s conclusion that this element remains a part of the prosecution’s case in those cases where the use of force causes no physical harm. 3 Once lack of consent was eliminated as an element of the prosecution’s case, it was not reborn as a part of the definition of force. Lack of consent is not an element of the offense prohibited by section 288, subdivision (b), and the victim’s consent is not an affirmative defense to such a charge. The victim’s consent or lack thereof is simply immaterial.

What then does “force" mean? The term “force” has the same meaning in section 288, subdivision (b) as it has in section 211 (robbery) and section 261, subdivision (a)(2) (rape). Force is not equated with, or given meaning by, lack of consent in prosecutions for robbery or rape. When the prosecution seeks to show that a taking or an act of sexual intercourse was accomplished by means of force, the prosecution must prove both lack of consent and force in a rape or robbery case. It is of course true that in rape and robbery prosecutions, as in prosecutions under section 288, subdivision (b), force cannot be established without evidence of “something more” than just the prohibited act. “[Sjomething more is required [for a robbery conviction] than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales (1975) 49 Cal.App.3d 134, 139 [ 122 Cal.Rptr. 157 ].) However, Cicero’s attempt to define the “something more” which is required in a section 288, subdivision (b) prosecution is so ambiguous that it confuses more than it clarifies.

For purposes of appellate review of the sufficiency of evidence of force, the standard in a section 288, subdivision (b) case need not be any different than it is in a robbery or rape case. A defendant uses “force” if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act. (Cf. Webster’s Collegiate Dict., supra, p. 455.) The main distinction between this definition and the one propounded in Cicero is the omission of the requirement that the force be “substantially different from or substantially in excess of’ the physical contact which is inherent in the act. The evidentiary key to whether an act was forcible is not whether the distinction between the “force” used to *164 accomplish the prohibited act and the physical contact inherent in that act can be termed “substantial.” Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act. It follows that since the definition of force in a section 288, subdivision (b) prosecution is the same as the definition of force in a robbery or rape prosecution, there is no need for a jury instruction defining force. “Force” has “no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors.” (People v. Anderson (1966) 64 Cal.2d 633, 640 [ 51 Cal.Rptr. 238 , 414 P.2d 366 ] [no need for instruction defining “force” in a robbery prosecution].)

The facts of this case amply support the jury’s implied finding that defendant used force to facilitate his sodomization of Ryan. The lewd act was facilitated by defendant’s constraint of Ryan, including defendant’s conduct in pulling Ryan towards him so that he could sodomize Ryan. Defendant’s use of force in this manner was not merely incidental to the sodomy. Consequently, the evidence supports count 5.

Appellant’s petition for review by the Supreme Court was denied June 15, 1994. Mosk, J., was of the opinion that the petition should be granted.

Subsequent statutory references are to the Penal Code unless otherwise specified.

People v. Mayberry (1975) 15 Cal.3d 143 [ 125 Cal.Rptr. 745 , 542 P.2d 1337 ].

Force is a general term. When force causes physical harm, it is commonly called “violence." (Webster’s Collegiate Dict. (10th ed.) p. 1319.) A section 288, subdivision (b) offense may be predicated on either force or violence. (§ 288, subd. (b).) If the Legislature meant to require lack of consent whenever force did not cause physical harm, it could have said so by requiring lack of consent where there was “force" but not where there was “violence.”