Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07WF1245 Carla Singer, Judge.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey Koch and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Martin Brian Santoso was convicted of two counts of committing forcible lewd acts upon his 13 year old daughter. On appeal, defendant argues there was insufficient evidence he used force in committing the acts that was substantially greater than that necessary to commit the lewd acts themselves. We disagree. The record contains evidence that in committing one act, defendant pinned his daughter to the bed, using the weight of his body, and held her down by the waist and the shoulders. In committing the other act, defendant cornered his daughter, and she physically resisted while he committed the lewd act. There was substantial evidence supporting defendant’s convictions, and we therefore affirm.
Statement of Facts and Procedural History
In May 2007, defendant was living with his 13 year old daughter, A. On Mother’s Day 2007, A. was lying down on defendant’s bed. Defendant told A. he was lonely and to give him a hug. A. told defendant she was tired. Defendant got on top of A. and kissed her. A. testified defendant “forced me down with his body. I was on the bed, obviously, so he came over me. And, um, he put his body over me so I was not able to go anywhere.” A. could feel the weight of defendant’s body on top of her.
A. then felt defendant’s tongue against her lips, so she tried to kick him. A. then felt defendant’s hand moving under her shirt. Defendant touched A.’s breasts. Although A. struggled to get away, the more she tried to do so, “the more he would become more aggressive.” Defendant was holding A. down by her shoulders, and then by her waist. Defendant lifted A.’s shirt and placed his mouth on her breasts. Defendant reached down toward her genital area and tried to touch her there.
As soon as defendant got off of her, A. ran out of the house and stayed away for several hours. A. testified she was disgusted and wanted to kill herself. A. eventually went back home because she had “nowhere else to go.”
On a separate occasion that same weekend, defendant approached A. when she was in a corner, between the bed and television set, and tried to get on top of her. Defendant touched A.’s breasts under her shirt. Defendant told A. she would enjoy it. A. tried to get away from defendant by pushing him with her hands and kicking him.
A. could not remember at trial if this incident occurred before or after the previously described incident, but was sure it happened at a distinct and separate time during the same weekend.
Defendant was charged with two counts of committing a forcible lewd act upon a child under 14 years of age. (Pen. Code, § 288, subd. (b)(1).) (All further statutory references are to the Penal Code.) A jury convicted defendant of both counts. The trial court denied defendant’s request for probation, and sentenced defendant to two consecutive six-year sentences, for a total term of 12 years. Defendant timely appealed.
Discussion
Defendant does not challenge the sufficiency of the evidence that he committed lewd acts, but argues on appeal only that there was insufficient evidence he committed forcible lewd acts upon A. “‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
For purposes of section 288, subdivision (b)(1), “[f]orce... means physical force that is ‘“substantially different from or substantially greater than that necessary to accomplish the lewd act itself.”’ [Citation.]” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004 (Alvarez).) In Alvarez, a different panel of this court held that “acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves” satisfy the force requirement under section 288, subdivision (b)(2) because they are “‘different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victim’s consent.’ [Citation.]” (Alvarez, supra, 178 Cal.App.4th at p. 1005.)
Defendant argues that the correct rule for determining whether a lewd act is forcible is set forth in People v. Schulz (1992) 2 Cal.App.4th 999, 1004 (Schulz), where the appellate court held, “[s]ince 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.’” In Alvarez, supra, 178 Cal.App.4th at page 1004, however, this court concluded that Schulz is simply “wrong.” Other courts have reached the same conclusion, and rejected Schulz. (See People v. Bolander (1994) 23 Cal.App.4th 155, 160 [violation of section 288, subdivision (b) found where “force defendant used on [the victim] to accomplish the act of sodomy is no greater than that used to hold a crying victim who was trying to escape in a corner or that used to pull and hold a victim’s shoulders to prevent her from resisting”]; People v. Neel (1993) 19 Cal.App.4th 1784, 1790 [“defendant’s acts of forcing the victim’s head down on his penis when she tried to pull away and grabbing her wrist, placing her hand on his penis, and then ‘making it go up and down’ constitute force within the meaning of [section 288, ] subdivision (b) in that defendant applied force in order to accomplish the lewd acts without the victim’s consent”]; People v. Babcock (1993) 14 Cal.App.4th 383, 387 388 [grabbing the victim’s hand and placing it on the defendant’s penis was evidence of force under section 288, subdivision (b)].) We reject defendant’s request that we revisit our conclusion in Alvarez that Schulz was wrongly decided.
In committing both lewd acts, there is substantial evidence that defendant used force against A. Although the information was not clear on this point, defendant and the Attorney General agree that count 1 involved the act where defendant touched A. while she was in a corner of the bedroom, while count 2 involved the act where defendant got on top of A. while she was on defendant’s bed.) As to count 2, the evidence of force is strong. A. testified defendant prevented her from moving off the bed by placing the weight of his body on top of her. Further, defendant was holding down A. by her shoulders and her waist. The more A. struggled to get away, the more aggressive defendant became.
The evidence as to count 1 is less, but we nevertheless conclude there was substantial evidence of force used by defendant against A. in excess of that necessary to commit a lewd act upon her. Defendant cornered A. between the bed and television. Most significantly, A. testified she resisted defendant. Although A. had difficulty differentiating between the two incidents, she testified that “every time [her] dad tried to do the touching that made [her] feel uncomfortable, ” she would try to push him away, using her hands and kicking him. “Although resistance is not required to prove forcible sexual assault, the jury could reasonably have considered [the victim]’s resistance in assessing whether defendant used force to accomplish the lewd act. [Citation.]” (People v. Babcock, supra, 14 Cal.App.4th at p. 387.)
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.