Opinion
A159745
06-28-2021
THE PEOPLE, Plaintiff and Respondent, v. MARTIN FONSECA, Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-699371
BURNS, J.
A jury convicted Martin Fonseca of four counts of committing a forcible lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); counts one, two, five, and seven), and four counts of committing a non-forcible lewd act on a child under the age of 14 (§ 288, subd. (a); counts three, four, six, and ten). Fonseca appeals, arguing that there is no substantial evidence of force to support two of his convictions (counts one and seven). We affirm.
Undesignated statutory references are to the Penal Code.
Background
A.
The victims of counts one and seven are Fonseca's nieces, Jane Doe One and Jane Doe Two. Jane Doe One and Jane Doe Two were close in age to Fonseca's daughter (G.), and they often played with her and spent the night at Fonseca's home. Jane Doe One, who was 18 years old at the time of trial, testified that Fonseca first molested her when she was in approximately first grade.
With respect to count one, Jane Doe One testified that she was sitting on a couch, at Fonseca's home, while she, her sister, and brothers were watching television. Fonseca sat down next to her and put a blanket over both their laps-positioned so that their hands were not visible. Under the blanket, Fonseca unzipped his pants, and then “grabbed” Jane Doe One's hand. “[L]eading” her hand with his own, Fonseca placed Jane Doe One's hand on his penis. Fonseca then squeezed his hand over her hand. Although Jane Doe One said this did not hurt, she explained that “since [her] hand was under his, it would also... squeeze.” When she tried to pull her hand away and get up, Fonseca let her. She did not say anything because she was scared.
Jane Doe Two is Jane Doe One's older sister. Jane Doe Two, who was 20 years old at the time of trial, testified that Fonseca also touched her inappropriately, beginning around the time she was in third grade.
During the incident charged as count seven, Jane Doe Two recalled laying down on the floor, in the early morning. Fonseca laid down behind her, “hugg[ed]” her tightly around her waist, and pressed his penis against her bottom. Fonseca's penis was inside his underpants, but outside of his unbuckled pants. Jane Doe Two pretended that she was asleep and, mimicking how someone would move in their sleep, tried to move away from him. But Fonseca kept hugging her and, when she moved, “he would just pull me closer to him.” Fonseca also licked her ears, which terrified Jane Doe Two. Jane Doe Two cried silently, as Jane Doe One remained sleeping in front of her. Jane Doe Two tried again to move closer to Jane Doe One. But Fonseca, who was stronger than her, “just pull[ed her] back to him.” This incident lasted around two minutes, and ended when Fonseca got up and went to work.
B.
Fonseca denied any inappropriate touching of Jane Doe One or Jane Doe Two.
C.
The jury returned guilty verdicts on counts one and seven, as well as six additional counts involving Jane Doe One, Jane Doe Two, and their cousin, Jane Doe Three. The jury acquitted Fonseca on count nine and could not reach a verdict on count eight-both of which involved a fourth alleged victim. The jury also found true an enhancement allegation-that Fonseca committed lewd acts against more than one victim (§ 1203.066, subd. (a)(7)). The trial court sentenced Fonseca to an aggregate term of 24 years in state prison.
Discussion
A.
Fonseca contends insufficient evidence of force supports the jury's verdicts on counts one and seven. We disagree.
1.
When faced with a substantial evidence challenge, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - - that is, evidence which is reasonable, credible, and of solid value - - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate witness credibility. (People v. Jones (1990) 51 Cal.3d 294, 314.)
2.
To convict a person of committing a lewd act against a child by use of force (§ 288, subd. (b)(1)), “the prosecution must prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (In re Asencio (2008) 166 Cal.App.4th 1195, 1200; accord, People v. Soto (2011) 51 Cal.4th 229, 242 (Soto).) “ ‘The evidentiary key to whether an act was forcible is not whether the distinction between the “force” used to 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.' ” (People v. Morales (2018) 29 Cal.App.5th 471, 480.) The vast majority of courts have held that a defendant's act of grabbing, holding, or restraining a child to facilitate a lewd act is sufficient to support a finding that the lewd act was committed by means of force. (Ibid.; People v. Alvarez (2009) 178 Cal.App.4th 999, 1005; People v. Neel (1993) 19 Cal.App.4th 1784, 1790, disapproved on other grounds by Soto, supra, 51 Cal.4th at p. 248, fn. 12.)
Consent is not a defense to the crime of committing a lewd act on a child because a child under the age of 14 cannot consent to sex acts with an adult. (Soto, supra, at pp. 233, 238.) And, although the jury may consider a victim's resistance in assessing whether the defendant used force to accomplish the lewd act, resistance is not required. (People v. Babcock (1993) 14 Cal.App.4th 383, 387 (Babcock).)
3.
Relying on dicta in a pair of outlier cases from the Sixth District Court of Appeal, Fonseca contends that he did not use force “ ‘ “substantially different from”' ” or “ ‘ “substantially greater than”' ” necessary to accomplish the lewd acts. (See People v. Senior (1992) 3 Cal.App.4th 765, 774 [“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' ”]; People v. Schulz (1992) 2 Cal.App.4th 999, 1004 [“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' ”].)
We are unpersuaded. Fonseca's authorities have been repeatedly criticized, including by a different panel of the Sixth District. (See, e.g., People v. Bolander (1994) 23 Cal.App.4th 155, 160-161, disapproved on other grounds by Soto, supra, 51 Cal.4th at p. 248, fn. 12; People v. Alvarez, supra, 178 Cal.App.4th at p. 1004; Babcock, supra, 14 Cal.App.4th at p. 388 [Senior and Schulz “improper[ly] attempt to merge the lewd acts and the force by which they were accomplished as a matter of law”], italics omitted.)
Here, reviewing the record in the light most favorable to the judgment, we conclude there was substantial evidence that Fonseca used force to facilitate the lewd acts charged in counts one and seven. Jane Doe One testified that Fonseca “grabbed” her hand, moved it to his penis, and then “squeezed” her hand underneath his own. Fonseca makes much of the fact that Jane Doe One ultimately succeeding in pulling her hand away. But this was after the lewd act had already been accomplished and (preemptively) facilitated by Fonseca's forceful acts of grabbing and squeezing her hand. The lewd act could have been committed without Fonseca's additional acts of force. (Babcock, supra, 14 Cal.App.4th at pp. 385, 388.)
Jane Doe Two testified that Fonseca “hugg[ed]” her tightly around the waist when he rubbed his penis on her bottom. The jury could also consider the fact that she repeatedly tried to move away from him, but he pulled her back towards him. (Babcock, supra, 14 Cal.App.4th at p. 387.) Contrary to Fonseca's suggestion, his act of hugging or pulling Jane Doe Two was not the lewd act itself. Rather, Fonseca's acts of hugging and pulling Jane Doe Two facilitated the lewd act-rubbing his penis on Jane Doe Two's bottom-and were not incidental to it.
We conclude substantial evidence supports the verdicts. (See People v. Alvarez, supra, 178 Cal.App.4th at p. 1005 [holding victim “ ‘tight' ” and “ ‘hard' ” while digitally penetrating her constitutes force]; People v. Neel, supra, 19 Cal.App.4th at p. 1790 [force element met when defendant grabbed victim's wrist, placed her hand on his penis, and “ ‘ma[de]' ” her hand “ ‘go up and down' ”]; Babcock, supra, 14 Cal.App.4th at p. 388 [force element met when defendant grabbed both victims' hands and made them touch his genitals, and defendant also pulled one victim's hand back when she tried to pull away].)
Disposition
The judgment is affirmed.
We concur: NEEDHAM, ACTING P.J., RODRIGUEZ, J. [*]
[*] Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.