Opinion
H046549
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. GREGORY ALAN LIND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1777782)
This is a People's appeal from an order granting in part defendant Gregory Alan Lind's Penal Code section 995 motion to dismiss the information on the ground that the magistrate had committed him without reasonable or probable cause. (§§ 995, subd. (a)(2)(B), 1238, subd. (a)(1).) The People argue that the trial court erred in dismissing two counts of forcible sexual penetration (§ 289, subd. (a)(1)) (counts 4 & 5).
All further statutory references are to the Penal Code.
As used in section 289, " '[s]exual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) " 'Foreign object, substance, instrument, or device' " includes "any part of the body, except a sexual organ." (§ 289, subd. (k)(2).) " 'Unknown object' " includes "any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body." (§ 289, subd. (k)(3).)
The People maintain that the trial court erred because, contrary to the court's understanding, they were not required to present evidence of force substantially different from or greater than the force necessary to complete the sexual penetrations that were charged in counts 4 and 5. They also assert that evidence of "the same operative set of facts can support the multiple charges and multiple convictions" and, accordingly, it did not matter whether the evidence also supported charges under section 289, subdivision (d) (sexual penetration of a victim who was unconscious of the nature of the act). They maintain that the dismissed counts should be reinstated.
Section 289, subdivision (d), states in pertinent part: "Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, 'unconscious of the nature of the act' means incapable of resisting because the victim meets one of the following conditions: [¶] . . . [¶] (3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. [¶] (4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose."
We find that the evidence presented at the preliminary hearing provided "some rational ground for assuming the possibility" (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 (Rideout)) that two acts of forcible sexual penetration had been committed and defendant was guilty of them. Accordingly, we reverse the order granting defendant's section 995 motion as to counts 4 and 5.
I
Procedural History
A first amended felony complaint against defendant alleged four felony counts: a count of sexual battery by fraud (§ 242, 243.4, subd. (c)), committed on or about September 28, 2017 (count 1); two counts of forcible sexual penetration (§ 289, subd. (a)(1)), both committed on or about September 28, 2017 (counts 2 & 3); and a count of sexual battery by fraud (§ 242, 243.4, subd. (c)), committed on or about and between January 1, 2013 and June 30, 2014 (count 4). The first three counts involved one victim, and the fourth count involved another victim.
The preliminary hearing was held on May 30, 2018. The court found there was sufficient cause to believe that defendant was guilty of all the alleged crimes charged and held him to answer.
By information filed June 7, 2018, defendant was charged with eight felony sex offenses committed against F. Doe: two counts of sexual battery by fraud, both committed on or about September 28, 2017 (§ 243.4, subd. (c)) (counts 1 & 2); a count of sexual battery by fraud, committed on or about or between September 1, 2012 and September 28, 2017 (§ 243.4, subd. (c)) (count 3); two counts of forcible sexual penetration, both committed on or about September 28, 2017 (§ 289, subd. (a)(1)) (counts 4 & 5); two counts of sexual penetration where the victim was unconscious of the nature of the act, both committed on or about September 28, 2017 (§ 289, subd. (d)) (counts 6 & 7); and a count of sexual penetration where the victim was unconscious of the nature of the act, committed on or about or between September 1, 2012 and September 28, 2017 (§ 289, subd. (d)) (count 8). The information also charged defendant with committing sexual battery by fraud against another victim on or about or between January 1, 2013 and June 30, 2014 (§ 243.4, subd. (c)) (count 9).
On August 28, 2018, defendant filed a motion to set aside the information pursuant to section 995, subdivision (a)(2)(B). Defendant argued that counts 1 through 3 should be set aside because F. Doe testified at the preliminary hearing that he touched her through her clothing. He contended that counts 4 and 5 should be set aside because the alleged sexual penetrations were not accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
At the hearing on October 2, 2018, the superior court granted the People's motion to amend counts 1 through 3 to charge violations of 243.4, subdivision (e) (misdemeanor sexual battery involving touching of an intimate part). It granted defendant's section 995 motion as to counts 4 and 5.
II
Discussion
A. Background
The Preliminary Hearing
The preliminary hearing was held on May 30, 2018. F. Doe, the alleged victim of counts 4 and 5 of the information, testified at the hearing.
F. Doe had been defendant's neighbor in the same office building since 2009. Her office was approximately three doors down from his office.
F. Doe, who was 44 years old at the time of the preliminary examination, began receiving chiropractic services from defendant in approximately 2010 or 2011. She was a "reiki master" and did "energy healing." She went to him for chiropractic services, and he went to her for reiki services. They had a friendly relationship.
On September 28, 2017, F. Doe went to defendant's office for an appointment. She suffered from asthma and allergy symptoms, and she went in that day for treatments to open up her chest area to help her breathe easier. Defendant had her lie down, face up, on a chiropractic table to check her spine. She was wearing a blouse and a long skirt. Then he had her lie face down. Defendant did an adjustment of her spine, using two hands in the middle of her back. He then checked the rest of her body. Toward the end of the session, he had her stand and cross her arms, and he adjusted her by lifting her up from behind.
Defendant then instructed F. Doe to again lie face down to recheck her spine. She recalled that he had a chiropractic device called an "activator" in his hand. An activator was a silver tool with a rubber-like end that was used for making chiropractic adjustments, usually to "a bone area."
F. Doe then had "the sensation of something penetrating [her] anal cavity as well as something on the outside, the tailbone, as well as in the inside[,] penetrating [her] anal cavity." "[I]t just kind of happen[ed]." "It felt like something was going in and out of [her] anal cavity and something was adjusting at the top of the tailbone at the same time." "[I]t was painful."
F. Doe told defendant, "That's very painful." He asked, "Is it sharp or dull." She responded, "Sharp." Defendant replied, "Okay. I'll adjust it." But "instead of removing himself, he kept doing it" for approximately another 10 seconds. She remembered silently saying to herself in her head, "[J]ust please be done."
F. Doe recalled that he had done some similar "tailbone adjustment" once or twice within the prior two years or so, but he had not done the adjustment for so long or that deeply, and it had not been as painful. During the first incident, she was thinking that "[t]his is uncomfortable, but it's a part of my spine and he's a doctor that deals with spinal issues, so I must . . . need[] it." She could not specifically recall the second incident. F. Doe recalled being uncomfortable during the "tailbone adjustments."
Before September of 2017, defendant had "slightly" penetrated her anal cavity, and during such "adjustment" she had felt "pressure" and had "just wanted it to be done." F. Doe had not complained of discomfort to defendant because she believed that chiropractors "get everything in line [in the spine], including the tip of the tailbone," and that there had been "a medical reason for [doing] that."
On September 28, 2017, F. Doe felt greater penetration of the anal cavity. "It felt like it was tearing [her] as it was going in." It was inserted in "maybe half a digit of a finger . . . or more." But there was no skin-to-skin contact. The "adjustment" lasted a total of approximately 15 seconds.
While she was still lying face down, defendant put his hand at the crease of her left buttock cheek and hamstring over her clothing, and he said that her "pelvic" needed to be adjusted as well. He said, "You've got to let me do what I've got to do here." "[W]hen he said 'here,' he thrust his hand straight up [her] vagina on the left side, . . . fingers protruding, and then [moved violently] to the right [in her vagina], and then [pushed] straight up" as high as he could. She estimated that her vagina had been penetrated "[a]bout two to three inches." She felt pain and "a lot of pressure," and thought that she "could even feel his nails." But she also stated that the movement in her vagina was over her clothing. Defendant's hand on the crease between her left buttocks cheek and hamstring "remained stationary."
"It happened very fast . . . ." While it was happening, F. Doe was thinking, "[O]h, my God, what is he doing there? There's no bone there. What is he doing there?" She was thinking, "I want this to stop right now." She estimated that the vaginal penetration was over in "probably five seconds."
The appointment was then over, and she got up and put on her jewelry and sweater. They engaged in a little friendly conversation, and she wished him a happy birthday and left.
F. Doe did not confront defendant because she did not "know what had just happened." She "was processing and . . . in a little bit of shock . . . ." She was "just trying to not let [her] voice sound broken up because [she] didn't know how to respond . . . ."
After the visit, F. Doe drove to her husband's workplace. While driving, she was "replaying it in [her] head" and becoming "increasingly uncomfortable, not being able to rationalize what happened." She immediately told her husband what had happened.
After she got home, she found a fecal stain in her underwear. F. Doe still wanted to believe that defendant, who had been a mentor to her, had a medical cause for his actions. Later that same night, she called a friend who was a chiropractor in Fresno.
The next day, her husband called several chiropractors. F. Doe called the Board of Examiners for chiropractors, and she was told it might be a law enforcement matter. Afterwards, she contacted law enforcement.
F. Doe experienced pain in her vaginal and anal areas for about 24 hours after the incident, and during that time, it was difficult to urinate and defecate. She underwent a SART examination, but the examiner had to stop the anal examination when it became too painful.
At some point, an officer helped F. Doe make a pretext call to defendant. A recording of the call was admitted into evidence, and the magistrate listened to it off the record.
As indicated, defendant was held to answer.
Section 995 Motion
By notice of motion filed August 28, 2018, defendant moved to set aside and dismiss counts 1 through 5 of the information pursuant to section 995, subdivision (a)(2)(B). It was argued that counts 4 and 5 should be set aside because the alleged sexual penetrations were not accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury.
At the conclusion of the hearing on defendant's section 995 motion, the court granted the motion as to counts 4 and 5. The court explained: "[T]he [L]egislature doesn't speak to pain. It speaks to force and accomplishing against someone's will. And I'm not going to go down the rabbit hole of whether sex is supposed to hurt or not." It stated: "My reading of subdivision A is, that force has to be more than the force of the event, itself. And under these facts, [subdivision] D addresses the situation, where it is accomplished without force, but under the guise of medical treatment." The trial court was impliedly referring to subdivisions (a) and (d) of section 289. B. Governing Law
The court granted the prosecution's motion to amend counts 1, 2, and 3 to charge a misdemeanor violation of section 243.4, subdivision (e). The court accepted defendant's waiver of formal arraignment and plea of not guilty as to those three amended counts.
"The purpose of the preliminary hearing is to determine whether there is probable cause to conclude that the defendant has committed the offense charged. [Citations.] Probable cause exists if a person ' " ' "of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion" ' " ' that the defendant committed the crime. [Citations.]" (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8; see People v. Arroyo (2016) 62 Cal.4th 589, 594 [under section 872, a magistrate must hold the defendant to answer "when it appears from the examination that a public offense has been committed and there is sufficient cause to believe the defendant is guilty"]; see also People v. San Nicolas (2004) 34 Cal.4th 614, 654 (San Nicolas) ["The term 'sufficient cause' in section 872, subdivision (a) ' "is generally equivalent to 'reasonable and probable cause' " ' in section 995, subdivision (a)(2)(B), i.e., ' "such a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." ' [Citation]"].)
"[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court . . . sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate . . . ." (People v. Laiwa (1983) 34 Cal.3d 711, 718; see People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
"Insofar as the Penal Code section 995 motion rests on issues of statutory interpretation, our review is de novo. [Citation.] Insofar as it rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt' [citations]." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072 (Lexin).)
When the offenses charged in counts 4 and 5 were allegedly committed, section 289, subdivision (a)(1)(A), provided, and still does provide: "Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years." (Italics added.) Similarly, forcible rape is statutorily defined as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator" (§ 261, subd. (a)) where "it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2), italics added.) The language of section 289, subdivision (a)(1)(A), essentially parallels the statutory language defining forcible rape.
In People v. Griffin (2004) 33 Cal.4th 1015 (Griffin), the California Supreme Court held that no specialized legal definition of force applied to forcible rape. (Id. at pp. 1023-1026.) It determined that the special definition of "force" that had been applied to forcible lewd acts on a child under the age of 14 years (now § 288, subd. (b)(1)) in People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), disapproved on another point in People v. Soto (2011) 51 Cal.4th 229, 248 (Soto), did not apply to forcible rape. (Griffin, supra, at pp. 1018-1019.) Cicero had "held that conviction of forcible lewd acts on a minor requires evidence of 'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' [Citation.]" (Id. at p. 1018.) But the Supreme Court concluded that Cicero's definition of force was "contrary to the plain language of the forcible rape statute and fail[ed] to recognize the significant differences the element of 'force' plays in the crimes of forcible lewd acts on a minor and forcible rape." (Id. at pp. 1018-1019.)
Under section 288, subdivision (a), "a person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." A person who commits such an act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" is subject to greater punishment. (§ 288, subd. (b)(1).) There is no requirement under section 288 that such act be accomplished against the victim's will. In Soto, the California Supreme Court held that "the victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances." (Soto, supra, 51 Cal.4th at p. 233, fn. omitted.) The court made clear that "the prosecution need not prove that a lewd act committed by use of force, violence, duress, menace, or fear was also against the victim's will." (Id. at p. 248.) The court disapproved Cicero, and the cases following it, to the extent that they were inconsistent with its holding in Soto. (Ibid.)
In Griffin, the California Supreme Court observed that "there is considerable difference between the crime of lewd acts by force on a child under the age of 14, with which Cicero was directly concerned (see § 288, former subd. (b), now subd. (b)(1)), and the crime of forcible rape." (Griffin, supra, 33 Cal.4th at p. 1026.) The court explained: "The Cicero court was clearly focusing on the distinctions between nonforcible lewd acts under section 288, subdivision (a), and forcible lewd acts proscribed by former subdivision (b), now (b)(1), of that section. The [Cicero] court reasoned that in order for the statutory scheme of section 288 to make sense, the Legislature must have intended that the 'force' required to commit a forcible lewd act under subdivision (b) be substantially different from or substantially greater than the physical force inherently necessary to commit a lewd act proscribed under subdivision (a)." (Griffin, supra, 33 Cal.4th at p. 1027.)
In Griffin, the Supreme Court found that the "same distinction [between nonforcible and forcible acts] does not arise in the context of the rape statute." (Griffin, supra, 33 Cal.4th at p. 1027.) It explained: "The element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288. When two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated." (Ibid.)
In Griffin, the Supreme Court reiterated: " '[T]he fundamental wrong at which the law of rape is aimed is not the application of physical force that causes physical harm. Rather, the law of rape primarily guards the integrity of a woman's will and the privacy of her sexuality from an act of intercourse undertaken without her consent. Because the fundamental wrong is the violation of a woman's will and sexuality, the law of rape does not require that "force" cause physical harm. Rather, in this scenario, "force" plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim's will.' [Citation.]" (Griffin, supra, 33 Cal.4th at p. 1025.) It stated that "[t]he gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Id. at p. 1027.)
Griffin made clear that in a forcible rape prosecution, the issue of "force" is whether "the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker." (Griffin, supra, 33 Cal.4th at p. 1027.) Accordingly, the question of force is "simply whether [the] defendant used force to accomplish intercourse with [the victim] against her will, not whether the force he used overcame [the victim's] physical strength or ability to resist him." (Id. at p. 1028.) To prove forcible rape by means of force, the prosecutor must merely " 'show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].' [Citation.]" (Id. at pp. 1023-1024.)
The Supreme Court in Griffin recognized that "prior to the 1980 amendment of section 261, conviction of forcible rape required that the accused employ that degree of force necessary under the circumstances to overcome the victim's resistance [citation] . . . ." (Griffin, supra, 33 Cal.4th at p. 1025.) The court stated: " 'Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction [of forcible rape].' [Citation.]" (Id. at p. 1028.)
Based on the record before it, the Supreme Court determined in Griffin that "[t]he jury could reasonably infer that by pinning her arms to the floor, [the] defendant was able to achieve penetration on the occasion in question without [the victim's] consent before she was able to register her objection." (Griffin, supra, 33 Cal.4th at p. 1029.) Consequently, it concluded that the evidence was "sufficient to support the jury's determination that [the] defendant used force, as that term is commonly used and understood, to accomplish intercourse against [the victim's] will." (Ibid.) C. Analysis
The People assert that "there was sufficient cause to believe that defendant forcibly penetrated [F.] Doe's anus and vagina while he pretended to provide legitimate medical treatment." Their reasoning is as follows: "Defendant created circumstances inducing [F.] Doe's trust that he was touching her appropriately as part of a legitimate medical treatment[.] [Defendant t]hen attacked her by surprise by inserting an instrument into her anal cavity and his fingers into her vagina. In doing so, defendant 'forcibly' penetrated [her], because he did so without her consent and caught [her] completely unaware."
Defendant maintains that the trial court correctly understood that sexual penetration by means of force required evidence that he used force greater than the force of the event itself, citing People v. Senior (1992) 3 Cal.App.4th 765 (Senior). Defendant also argues that, in any case, the court ruled that the evidence was insufficient to hold him for counts 4 and 5 because the sexual penetrations were accomplished without force and under the guise of medical treatment. He asserts that the alleged victim "did not testify to any act of force or restraint against her leading up to or during the alleged anal penetration."
The People argue that the trial court applied the wrong standard of force and that defendant's appellate argument also "rests on the erroneous definition of force." They contend that "[u]nder the correct standard, the evidence need only demonstrate force necessary to overcome [the alleged victim's] will."
In People v. Quinones (1988) 202 Cal.App.3d 1154 (Quinones), disapproved on another point in Soto, supra, 51 Cal.4th at p. 248 & fn. 12 (see ante, fn. 5), the defendant was convicted of one nonforcible lewd act and a forcible lewd act (§ 288, subds. (a) & (b)). (Quinones, supra, at p. 1156.) In Quinones, this court followed Cicero's definition of force. (Id. at p. 1158.)
Subsequently, in Senior, this court relied on Quinones for the definition of force as to multiple sex offenses, not just lewd acts. Defendant Senior was convicted of nine counts: two counts of lewd acts on a victim under 14 years of age (former § 288, subd. (b)) (counts 1 & 2); two counts of sexual penetration (§ 289, subd. (a)) (counts 3 & 7); and five counts of oral copulation (§ 288a, subd. (c) (counts 4, 5, 6, 9, & 10). (Senior, supra, 3 Cal.App.4th at p. 769.) The jury found true kidnapping enhancements as to counts 9 and 10. (Id. at pp. 769-770.) On appeal, defendant Senior challenged the convictions of counts 3 through 7, which included the two counts of sexual penetration, on the ground that the evidence was insufficient to prove that each unlawful act was "accomplished by 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury.' [Citations.]" (Id. at p. 774.)
This court stated in Senior: "As this court recognized in People v. Quinones (1988) 202 Cal.App.3d 1154, 'force' means ' "physical force substantially different from or substantially in excess of that required for the lewd act." ' (Id. at p. 1158.)" (Senior, supra, 3 Cal.App.4th at p. 774.) We agreed that there was insufficient evidence of force to support the challenged convictions, stating: "The 'force' factor differentiates the charged sex crime from the ordinary sex crime. 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. [Citation.]" (Ibid.)
As already indicated, section 289, subdivision (a)(1)'s language is the analog of the statutory language construed in Griffin. In light of Griffin's reasoning, we agree that the "substantially different from or substantially greater than" definition of force does not apply to forcible sexual penetration as defined in section 289. Griffin in effect abrogated Senior's contrary holding as to the force necessary to prove forcible sexual penetration.
Like the rape statute considered in Griffin, section 289 does not criminalize sexual penetration and differentiate the punishment therefor based on whether the sexual penetration was nonforcible or forcible. "Just as consensual sexual intercourse between adults does not violate the law against rape, the law against forcible sexual penetration is not violated when adults engage in consensual sexual penetration, even if that penetration is accomplished by physical force greater than that normally required to accomplish an act of sexual penetration. [Citation.]" (In re Asencio (2008) 166 Cal.App.4th 1195, 1204-1205 (Asencio) [evidence sufficient to support conviction of aggravated sexual assault of a child by forcible sexual penetration (§ 269, subd. (a)(5))].)
An act of sexual penetration accomplished against a victim's will by means of force (§ 289, subd. (a)(1)) requires merely "the use of force sufficient to overcome the victim's will. [Citations.]" (Asencio, supra, 166 Cal.App.4th at p. 1205.) No specialized legal definition of force is required for sexual penetration accomplished against the victim's will by means of force. (See id. at pp. 1204-1205; cf. Griffin, supra, 33 Cal.4th at pp. 1023-1024; cf. also People v. Hale (2012) 204 Cal.App.4th 961, 978 [forcible sodomy under former section 286, subd. (c)(2) (now § 286, subd. (c)(2)(A))]; People v. Guido (2005) 125 Cal.App.4th 566, 576 [forcible oral copulation under former section 288a, subdivision (c)(2) (now § 287, subd. (c)(2))].)
We agree that the record suggests that in ruling on defendant's section 995 motion, the trial court mistakenly believed that the crime of sexual penetration accomplished against the victim's will by means of force (§ 289, subd. (a)(1)) required evidence of force greater than the force of the act itself. But, as Griffin indicated with respect to forcible rape, " ' " '[t]he kind of physical force is immaterial. . . .' " ' [Citation.]" (Griffin, supra, 33 Cal.4th at p. 1024.) The issue of force was only "whether the use of force served to overcome the will of the victim to thwart or resist the attack." (Id. at p. 1027.)
On appeal from an order granting a defendant's section 995 motion on the ground that "the defendant had been committed without reasonable or probable cause" (§ 995, subd. (a)(2)(B)), "[w]e conduct an independent review of the evidence, but [we] will not substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. (People v. Hall (1971) 3 Cal.3d 992, 996.) We will not set aside an information 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' (Ibid.)" (San Nicolas, supra, 34 Cal.4th at p. 654; People v. Uhlemann (1973) 9 Cal.3d 662, 667.) The evidence that justifies a holding order "need not be sufficient to support a conviction. [Citations.]" (Rideout, supra, 67 Cal.2d at p. 474).
Here there was evidence that the anal penetration was perpetrated without warning and with such force that F. Doe felt "like it was tearing" her, and the penetration immediately caused her "a lot of pain." She complained to defendant that it was "very painful", but defendant "kept doing it" for a total of approximately 15 seconds. The vaginal penetration was preceded by defendant's vaguely threatening statement, "You've got to let me do what I've got to do here." As he was saying "here," defendant abruptly "thrust his hand straight up [her] vagina," and F. Doe thought that she felt his fingernails. "It happened very fast," and she felt pain and "a lot of pressure." His fingers moved "very violently" inside her vagina, from left to right, and pulled out quickly.
Drawing all reasonable inferences in favor of the information, we conclude that F. Doe's testimony provides a rational ground for assuming the possibility that defendant's acts of anal penetration and vaginal penetration constituted acts of sexual penetration accomplished against her will by means of force in violation of section 289, subdivision (a)(1). Thus, the evidence presented at the preliminary hearing was sufficient to hold defendant to answer for two acts of forcible sexual penetration committed on or about September 28, 2017 and supported counts 4 and 5 of the information. (See §§ 289, subd. (a)(1), 995, subd. (a)(2)(B); Lexin, supra, 47 Cal.4th at p. 1072.)
DISPOSITION
The order granting defendant's section 995 motion as to counts 4 and 5 is reversed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
GROVER, J.