People v. Neel

Opinion

A jury found that, from September 1990 through May 1991, defendant committed nine acts of lewd conduct with his nine-year old daughter. The jury determined that six of the acts, in which the daughter either orally copulated defendant or masturbated his penis with her hand, were accomplished by means of force. On one occasion, with his hand defendant “push[ed] [the victim’s] head down ... on his private.” When the

On appeal defendant contends, among other things, the evidence is insufficient to support the findings he used force to accomplish the six acts involving oral copulation and masturbation. He cites People v. Senior (1992) 3 Cal.App.4th 765 [ 5 Cal.Rptr.2d 14 ] and People v. Schulz (1992) 2 Cal.App.4th 999 [ 3 Cal.Rptr.2d 799 ] for the proposition that his acts of pulling the victim back when she tried to pull away from the oral copulation, and physically manipulating the victim’s hand and preventing her from pulling it away during the masturbation, did not constitute the use of “force” within the meaning of section 288, subdivision (b). (Senior, supra, at p. 774; Schulz, supra, at p. 1004.)

In the published portion of this opinion, we disagree with the holdings in Senior and Schulz. As we shall explain, the element of “force” in section 288, subdivision (b) is satisfied by evidence that the defendant applied force in order to accomplish the lewd act without the child’s consent.

In the unpublished parts of our opinion, we reject defendant’s remaining contentions. Accordingly, we shall affirm the judgment.

Discussion

Section 288, subdivision (b) provides that one “who commits an act described in subdivision (a) [lewd or lascivious act with a child under the age of 14] by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be guilty of

In subdivision (b), the element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person is intended as a requirement that the lewd act be undertaken without the consent of the victim. (Cicero, supra, 157 Cal.App.3d at pp. 475-476, 477-484.) As used in that subdivision, “force” means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (Id.., at p. 474; cf. People v. Quinones (1988) 202 Cal.App.3d 1154 , 1158 [ 249 Cal.Rptr. 435 ].)

Applying these principles, the Cicero court upheld the subdivision (b) convictions of a defendant who picked up two girls, moved his hands between their legs, opened and closed his hands on the girls’ crotches as he carried them along, and then asked one of the girls to kiss him. (157 Cal.App.3d at p. 470.) The evidence supported the convictions because the lewd acts of fondling the victims’ genital areas were undertaken without the victims’ consent and were accomplished by the applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches, i.e., picking them up and carrying them along as the defendant committed the lewd acts. (Id., at pp. 474, 485-486.)

Since Cicero, a number of appellate courts have addressed the element of force in subdivision (b). Until Schulz and Senior, the decisions were uniform and consistent with Cicero. (See People v. Pitmon (1985) 170 Cal.App.3d 38 [ 216 Cal.Rptr. 221 ]; People v. Mendibles (1988) 199 Cal.App.3d 1277 [ 245 Cal.Rptr. 553 ]; People v. Bergschneider (1989) 211 Cal.App.3d 144 [ 259 Cal.Rptr. 219 ].)

In Mendibles, the defendant held the two victims as he made them wash his penis on one occasion and orally copulate him on another occasion. (199 Cal.App.3d at pp. 1285-1286.) The Second District, Division One concluded this evidence was sufficient for convictions under subdivision (b): “In each instance, the victim stated she tried to get away from defendant, but he pulled her back. In addition, [one victim] testified defendant pulled her head forward then forced her to perform an act of oral copulation; [the other victim] gave similar testimony. This is unequivocal evidence of the application of physical force [within the meaning of subdivision (b)].” (199 Cal.Ap.3d at p. 1307.)

In Bergschneider, the victim testified that, when the defendant attempted to orally copulate her, the victim unsuccessfully tried to push his head away. The Fourth District, Division One concluded: “This represents the application of force ‘substantially greater than that necessary to accomplish the lewd act itself.’ ” (211 Cal.App.3d at p. 154.)

This uniformity in assessment of the “force” element of subdivision (b) was broken by Schulz, supra, 2 Cal.App.4th 999 and Senior, supra, 3 Cal.App.4th 765 .

In Schulz, the defendant entered the victim’s room and tried to get her off her bed. When the victim ran to a corner of the room, the defendant grabbed and held her arm as she screamed and cried. While he held the victim’s arm, the defendant touched her breasts and vaginal area. (2 Cal.App.4th at p. 1003.) The Court of Appeal, Sixth Appellate District held this was insufficient evidence of force within the meaning of subdivision (b). The court

In Senior, the defendant orally copulated the victim’s vagina and made her orally copulate his penis. “According to the victim, she tried to pull away when [the defendant] licked her vagina. He pulled her back. She tried to pull away from sucking his penis. He held her shoulders.” (3 Cal.App.4th at p. 771.) Citing Schulz, the Sixth District held: “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 .... Since ordinary oral copulation and digital penetration almost always involve some physical contact other than genital, a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force.’ There was no evidence here of any struggle, however brief.” (Id,., at p. 774.)

The Schulz and Senior courts acknowledged that their interpretation of the “force” requirement of subdivision (b) was contrary to precedent. (Schulz, supra, 2 Cal.App.4th at p. 1004; Senior, supra, 3 Cal.App.4th at p. 774.) Nevertheless, the Sixth Appellate District departed from that precedent, because, as we have noted, the Schulz and Senior courts concluded that lewd acts with a child under 14 “almost always involve some physical contact other than [the lewd act itself]” and that “a modicum of holding and even restraining cannot be regarded as substantially different or excessive ‘force’ [beyond the force required for the lewd act.]” (Senior, at p. 774; Schulz, at p. 1004.)

The First District, Division Two, recently criticized the rationale of Schulz and Senior and declined to follow their interpretation of the force requirement of subdivision (b). (People v. Babcock (1993) 14 Cal.App.4th 383 , 388 [ 17 Cal.Rptr.2d 688 ].) The Babcock court concluded that the flaw in the analyses in Schulz and Senior “is in their improper attempt to merge the lewd acts and the force by which they were accomplished as a matter of law. Unlike the court in Schulz, we do not believe that holding a victim who was trying to escape in a comer is necessarily an element of the lewd act of touching her vagina and breasts. Unlike the court in Senior, we do not believe that pulling a victim back as she tried to get away is necessarily an

The judgment is affirmed.

Puglia, P. J., and Sims, J., concurred.

Appellant’s petition for review by the Supreme Court denied February, 10, 1994.