Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super.Ct.Nos. RIF118602, RIF134927, Susan P. Finlay, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
James M. Crawford, 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, and Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Jaime Hernandez Torres was found guilty of a forcible lewd and lascivious act on a child under 14 (Pen. Code, § 288, subd. (b)(1)) and sentenced to six years in prison.
In this appeal, defendant contends that:
1. There was insufficient evidence of force to support the conviction.
2. Even assuming there was sufficient evidence of force, there was sufficient evidence of lack of force so as to require the trial court to instruct on the lesser included offense of a nonforcible lewd and lascivious act on a child under 14.
3. The trial court erred by admitting evidence that defendant had committed a prior sexual offense.
We find no prejudicial error. Hence, we will affirm.
I
PROCEDURAL BACKGROUND
Defendant was charged as follows:
Count 1: Sexual penetration of an unconscious victim (Pen. Code, § 289, subd. (d)), committed against Liliana M.
Count 2: Forcible lewd and lascivious act on a child under 14 (Pen. Code, § 288, subd. (b)), committed against Jane Doe.
A jury found defendant guilty on count 2. It could not reach a verdict on count 1, which the trial court then dismissed. (Pen. Code, § 1385, subd. (a).) Defendant was sentenced to six years (the midterm) in prison.
II
FACTUAL BACKGROUND
With respect to count 1: Liliana M., an adult, testified that defendant was the maintenance man at her apartment building. One day in June 2004, she awoke to find him in her room, masturbating himself and placing one finger inside her vagina.
With respect to count 2: By February 2007, defendant was the maintenance man at a different apartment building. On February 10, he was in the apartment where 11-year-old Jane Doe and her parents lived, fixing a bathroom sink. He started working on the front doorknob, even though he had not been asked to do so, telling Jane that it was loose.
The trial court ordered that the alleged victim be referred to by this fictitious name. (Pen. Code, § 293.5.)
Defendant then asked Jane to check the knob. When she stepped up to the door and wiggled the knob, defendant grabbed her from behind. He placed one hand around her stomach; with the other hand, he tried to touch her crotch. Jane, however, already had one hand over her crotch. Defendant tried to put his hand under hers, but she moved his hand out of the way and said “no.” He said, “Just for a little bit,” but she said “no” again. After a total of roughly 20 seconds, he let her go.
In pretrial statements, defendant denied Jane Doe’s allegations; he gave inconsistent accounts of a nonsexual encounter with a girl in the apartment, who supposedly told him that she was 17 years old.
III
EVIDENCE OF FORCE
Defendant contends that there was insufficient evidence of force to support his conviction for a forcible lewd and lascivious act on a child under 14. Alternatively, he contends that there was sufficient evidence of lack of force to require the trial court to instruct on the lesser included offense of a nonforcible lewd and lascivious act on a child under 14.
The crime of a nonforcible lewd act merely requires the commission of a lewd and lascivious act, with the requisite intent, on a child under 14. (Pen. Code, § 288, subd. (a).) The crime of a forcible lewd act also requires that the act be committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” Accordingly, a nonforcible lewd act is a lesser included offense of a forcible lewd act. (People v. Ward (1986) 188 Cal.App.3d 459, 472.)
Both crimes are felonies, punishable by three, six, or eight years in prison. (Pen. Code, § 288, subds. (a), (b).) However, a conviction for a forcible lewd act can trigger full consecutive sentencing, probation ineligibility, and other adverse consequences that a conviction for a nonforcible lewd act cannot. (Pen. Code, §§ 645, subds. (a), (c)(2), 667.6, subds. (a), (b), (e)(5), 667.61, subds. (a), (b), (c)(4), (d)(1), 1203.066, subd. (a)(1), 2933.5, subds. (a)(1), (a)(2)(J); Welf. & Inst. Code, § 6600, subd. (b).)
The first case to address the “force” element of a forcible lewd act was People v. Cicero (1984) 157 Cal.App.3d 465 [Third Dist.]. There, the court held that this element requires either physical force causing physical harm or “physical force substantially different from or substantially in excess of that required for the lewd act . . . .” (Id. at p. 484.) It reasoned, in part, that “[s]ubdivisions (b) and (a) of [Penal Code] section 288 on their face draw a distinction between those lewd acts that are committed by force and those that are not. . . . [T]he violation of subdivision (b) is manifestly a more serious offense than the violation of subdivision (a). . . . Subdivision (b) must therefore proscribe conduct significantly different from that proscribed by subdivision (a).” (Id. at pp. 473-474.) In the case before the court, the defendant had picked up two girls by the waist, carried them for about nine seconds, and while doing so, felt their crotches. (Id. at p. 470.) The court held that this constituted the necessary force. (Id. at pp. 474, 486.)
Later cases have unanimously adopted the Cicero standard, including at least one decision by the California Supreme Court. (People v. Alvarez (2002) 27 Cal.4th 1161, 1182.) Nevertheless, there has been some debate as to how it should be applied.
The earliest cases did not set the “force” bar particularly high. For example, in People v. Pitmon (1985) 170 Cal.App.3d 38 [Third Dist.], the court found sufficient evidence of force, stating that the “defendant’s manipulation of [the victim]’s hand as a tool to rub his genitals was a use of physical force beyond that necessary to accomplish the lewd act. . . . Further, the record reveals that in those instances in which [the victim] orally copulated defendant, defendant slightly pushed [the victim]’s back during each performance of that act. Again this displayed a use of physical force that was not necessary for the commission of the lewd acts.” (Id. at p. 48.)
Similarly, in People v. Mendibles (1988) 199 Cal.App.3d 1277 [Second Dist., Div. One], the trial court instructed the jury that “[p]sychological coercion, without physical touching, may constitute an application of force . . . .” (Id. at p. 1306.) The appellate court held that this was error. (Id. at pp. 1306-1307.) However, it found the error harmless: “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 as defined by Cicero. [Citation.] Given this evidence of physical force, there is no reasonable probability defendant would have obtained a more favorable result had there been no misinstruction. [Citation.]” (Id. at p. 1307, fn. omitted.)
In People v. Schulz (1992) 2 Cal.App.4th 999, however, the Sixth District took issue with these and similar cases. There, the defendant had grabbed the victim and held her by the arm while touching her breasts and vaginal area. (Id. at p. 1003.) The court stated: “We do not regard as constituting ‘force’ the evidence that defendant grabbed the victim’s arm and held her while fondling her. [Citations.] The ‘force’ factor differentiates the charged sex crime from the ordinary sex crime. 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.’” (Id. at p. 1004.) It recognized that Pitmon was “[c]ontra” (and it cited Mendibles with a “cf.”). (Schulz, at p. 1004.) The court nevertheless sustained the conviction because it found sufficient evidence of duress. (Id. at p. 1005.)
In People v. Senior (1992) 3 Cal.App.4th 765, an identical panel of the Sixth District stated similarly: “We also do not regard as constituting ‘force’ the evidence that defendant pulled the victim back when she tried to pull away from the oral copulations . . . .” (Id. at p. 774.) However, it, too, sustained the conviction based on duress. (Id. at pp. 775-776.)
Schulz and Senior were not warmly received by other courts. In People v. Babcock (1993) 14 Cal.App.4th 383, the defendant had held the hands of two victims and made them touch his crotch. (Id. at p. 385.) The First District, Division Two held that this constituted sufficient evidence of force. (Id. at p. 388.) It added: “We decline defendant’s invitation to follow the dicta in People v. Schulz, supra, 2 Cal.App.4th 999, and People v. Senior, supra, 3 Cal.App.4th 765. In our view, the fatal 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 corner 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 element of oral copulation. And, unlike the defendant in this case, we do not believe that grabbing the victims’ hands and overcoming the resistance of an eight-year-old child are necessarily elements of the lewd acts of touching defendant’s crotch.” (Ibid.)
In People v. Neel (1993) 19 Cal.App.4th 1784, the defendant had, at various times, either pushed the victim’s head down to make her orally copulate him or held her hand to make her masturbate him. (Id. at pp. 1785-1786.) The Third District held that this was sufficient evidence of force. (Id. at p. 1790.) It also stated: “[W]e disagree with the holdings in Senior and Schulz.” (Id. at p. 1786.) “The Schulz and Senior courts acknowledged that their interpretation of the ‘force’ requirement of [Penal Code section 288,] subdivision (b) was contrary to precedent. [Citations.]” (Id. at p. 1789.) “In our view, it is readily apparent that the force used in Schulz and Senior was applied to accomplish the lewd acts against the will of the victims and constituted physical force substantially different from and substantially in excess of that required for the lewd acts.” (Id. at p. 1790.)
Finally, in People v. Bolander (1994) 23 Cal.App.4th 155, a different panel of the Sixth District expressly repudiated Schulz and Senior. It labeled their discussions of the force issue “dicta” and “contrary to precedent.” (Bolander, at p. 159.) It stated: “[I]n light of convincing criticisms set forth in Babcock and Neel, we respectfully disagree with the interpretation of the ‘force’ requirement of [Penal Code] section 288, subdivision (b) discussed in Schulz and Senior. We instead join those courts which have held that ‘[i]n 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. [Citation.] As used in that subdivision, “force” means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” [Citations.]’ [Citation.]” (Id. at pp. 160-161, quoting People v. Neel, supra, 19 Cal.App.4th at p. 1787, quoting People v. Cicero, supra, 157 Cal.App.3d at p. 474.) In the case before it, it held that the “defendant’s acts of overcoming the victim’s resistance to having his pants pulled down, bending the victim over, and pulling the victim’s waist towards him constitute force within the meaning of [Penal Code section 288,] subdivision (b) . . . .” (Bolander, at p. 161; see also id. at p. 159.)
Accordingly, we review the evidence in this case under the standard stated in Cicero, Pitmon, Mendibles, Babcock, Neel, and Bolander, minus the gloss added in Schulz and Senior. Here, defendant grabbed Jane around the waist with one hand, while attempting to fondle her crotch with the other hand. This use of force to immobilize her and to prevent her from getting away was not significantly different from the use of force in Mendibles, where the victims tried to get away, but the defendant pulled them back. It was also similar to the use of force in Cicero itself, where the defendant picked the victims up by the waist and carried them for about nine seconds while fondling them. We therefore conclude that there was sufficient evidence of force.
This brings us to defendant’s alternative argument that the trial court erred by failing to instruct on the lesser included offense of a nonforcible lewd act. We may assume, without deciding, that there was sufficient evidence of lack of force to require such an instruction; even if so, the error was harmless.
“[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case . . . is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 165.) Here, in closing argument, defense counsel stated: “I suppose the force you could find, if you want to find, was holding her around the waist. That’s more than what would be necessary to do the touching part.” (Italics added.) Thus, he virtually conceded that defendant used force substantially different from or substantially in excess of that required for the lewd act. Defendant does not contend that this concession amounted to ineffective assistance; because the evidence of force in this case rose to nearly the same level as in Mendibles, where the appellate court found “unequivocal” evidence of force, such a concession could be a reasonable strategic choice. In light of the strength of the evidence, together with this concession, we see no reasonable probability that the jury would have found defendant guilty of only a nonforcible lewd act.
IV
EVIDENCE OF A PREVIOUS SEXUAL OFFENSE
Defendant contends that the trial court erred by admitting evidence that he had committed a prior sexual offense.
A. Additional Factual and Procedural Background.
In its trial brief, the prosecution indicated that it intended to offer evidence of the following prior sexual offense under Evidence Code section 1108: In 1996, defendant was operating an ice cream truck. He would give sisters Gloria O. (aged nine) and Angelina O. (aged seven) free ice cream or candy; then he would hold or stroke their hands. He would call Angelina “pretty.” On one occasion, he touched not only Angelina’s hand, but also her shoulder, and then her right breast area.
Defense counsel objected to this evidence under Evidence Code section 352. He argued that Angelina had not been able to positively identify defendant. He also argued that the evidence was prejudicial because it would bolster not only count 2, involving a sexual offense against Jane Doe, a minor, but also count 1, involving a sexual offense against Liliana M., an adult.
The prosecutor represented that the presentation of the evidence should not take more than about 30 minutes.
Defense counsel offered, in the event the trial court admitted the evidence, to stipulate that defendant had pleaded guilty to disturbing the peace. (Pen. Code, § 415.)
The trial court admitted the evidence under Evidence Code section 1108. It explained: “I realize that it’s 11 years old . . . . However, I think [Evidence Code section] 1108 does not exclude evidence of crimes of this nature based on length of time. If that’s what the legislature wanted, they would have told us. And . . . the primary reason is that people with a propensity or an attraction, if you will, to certain types of sexual activity, time doesn’t necessarily alter it. . . .
“Is it relevant? Well, yes, it’s relevant because it’s similar acts of a sexual nature involving a child. Is it unduly prejudicial because one of the alleged victims in this case is also a child? It’s certainly prejudicial, but I can’t find that it’s unduly prejudicial to the point where the jurors would just close their minds and say that’s it, case over. . . .
“With the stipulation that he did plead to a [Penal Code section] 415, . . . that gives the jurors perhaps a better sense of the type of activity that was involved . . . . The [identification] issue, I’m going to take it on [the prosecutor’s] representation that that is not time-consuming . . . .”
Accordingly, at trial, Gloria O., Angelina O., and a police officer were called and testified substantially in accordance with the prosecution’s offer of proof. Gloria identified defendant as the ice cream man; Angelina was unable to do so. At defense counsel’s request, the trial court took judicial notice, and instructed the jury, that defendant had been charged with battery and with annoying or molesting a child but had pleaded guilty to disturbing the peace.
The trial court instructed the jury that, if it found that defendant had committed the prior offense, it could, but was not required to, conclude “that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit . . . Penal Code [s]ection 288[, subdivision] (b) . . . . [¶] . . . Do not consider this evidence . . . for any other purpose.” (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 1191.)
B. Analysis.
Evidence Code section 1108 “permit[s] the admission, in a sex offense case, of the defendant’s other sex crimes for the purpose of showing a propensity to commit such crimes.” (People v. Falsetta (1999) 21 Cal.4th 903, 907.) It provides, as relevant here: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352.” (Evid. Code, § 1108, subd. (a).)
“By reason of [Evidence Code] section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
“This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
The prior offense was reasonably similar to the current offense, in that, in each case, defendant’s job placed him in proximity to prepubescent females, and defendant took advantage of this opportunity to grope them. Thus, it had substantial probative value concerning defendant’s propensity to commit similar offenses.
It was admittedly somewhat remote. Defendant argues that “[t]here were no interim sex offenses by appellant so as to lead one to conclude he had a continued propensity to commit such offenses . . . .” But not so; in between the 1996 offense against Angelina and the 2007 offense against Jane Doe, there was evidence of his 2004 offense against Liliana M. Defendant also asserts: “Based on the record, there was no indication that the trial court ever took [remoteness] into consideration in assessing the probative value of the evidence against its potential probative impact.” To the contrary, however, the trial court expressly acknowledged “that it’s 11 years old”; nevertheless, it concluded that the relevant propensity could persist for that long. We cannot say that this was outside the bounds of reason.
The fact that defendant had pleaded guilty to the prior offense made it more certain that it had in fact occurred, while lessening the possibility of jury confusion and lessening defendant’s burden of defending against the prior offense in this case. (People v. Wesson, supra, 138 Cal.App.4th at p. 970.) At the same time, the fact that he had pleaded guilty to disturbing the peace, rather than to molesting a child or some more serious charge, took some of the sting out of the evidence.
At trial, defense counsel did not argue that defendant would be prejudiced in any way, except by the tendency of the evidence to unfairly bolster the prosecution’s case on count 1. As it happened, the jury hung on count 1, and the trial court dismissed it. Thus, prejudice in this form was never realized.
Defendant argues (at some length) that the evidence was not admissible under Evidence Code section 1101, subdivision (b) to prove intent, motive, or absence of mistake. Inasmuch as the evidence was properly introduced under Evidence Code section 1108 to show propensity, we need not address these arguments.
At the request of defense counsel, the trial court instructed the jury that it could consider the prior offense, not only as evidence of propensity, but also as evidence of either intent or a common plan or scheme. If this was error, it would appear that it was invited. (People v. Turner (2004) 34 Cal.4th 406, 425-426.) In any event, defendant never contends that the trial court misinstructed the jury concerning this evidence; we conclude that any such contention has been forfeited.
We therefore conclude that the trial court did not err by admitting the evidence of the prior sexual offense.
V
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING J.