Opinion
B230223
11-08-2011
In re DAVID A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID A., Defendant and Appellant.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PJ45099)
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark R. Frazin, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, Deputy Attorney General, for Plaintiff and Respondent.
* * * * * *
The minor, David A., appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602, upon findings he had committed a forcible lewd act on a child under 14 years of age in violation of Penal Code section 288, subdivision (b)(1), sodomy by use of force in violation of section 286, subdivision (c)(2), four counts of lewd acts with a child under the age of 14 in violation of section 288, subdivision (a), and misdemeanor sexual battery in violation of section 243.4, subdivision (e)(1). The juvenile court ordered minor placed in a sexual abuse residential treatment program.
All further references are to the Penal Code, unless otherwise indicated.
Section 286, subdivision (c)(2) was amended by Stats. 2010, ch. 219, § 6 and was renumbered subdivision (c)(2)(A) without substantive changes. All further references are to subdivision (c)(2)(A).
Appellant contends (1) the trial court erred in admitting his statements to prove he understood the wrongfulness of his conduct (§ 26; In re Gladys R. (1970) 1 Cal.3d 855 (Gladys R.)) because appellant exercised his right to remain silent under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) before his statements were made, and (2) there was insufficient evidence of force to sustain the allegations of a forcible lewd act and forcible sodomy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to a family outing to the park in June 2009, appellant's eight-year-old cousin, E.O., had slept over at appellant's house three or four times between March and May 2009. Appellant, a "big kid," was born in July 1996 and was almost 13 at the time of the charged incidents.
During the first sleepover, appellant showed E.O. pictures of naked people "doing things," and asked E.O. if he wanted to do those things. Appellant then pulled down E.O.'s pants and underwear and put his penis inside E.O.'s anus. During another sleepover, appellant kissed E.O. on the lips. E.O. was told to "put down" his own pants and underwear and appellant then placed E.O.'s penis inside appellant's mouth and licked it.
On June 22, 2009, E.O. went to the park with his parents, sister, grandmother, aunts, appellant, and appellant's sister. While E.O. and appellant were in the bathroom, appellant again put E.O.'s penis in his mouth and licked it. E.O. asked appellant to stop but appellant did not. Appellant then made E.O. lick appellant's penis even though E.O. did not want to do so. Later that same day at the park, appellant and E.O. went to retrieve a ball from the family van that was parked about a half-mile from where the family was gathered. When appellant and E.O. got into the van, appellant closed the door behind them. Appellant then kissed E.O. on the lips and put his penis on E.O.'s buttocks. Appellant did all of these acts against E.O.'s will. That evening, and in greater detail the next day, E.O. told his father about what appellant had done at the park, and during the sleepovers.
On July 9, 2009, appellant's mother and sister took him to the police station at the request of investigating officer, Los Angeles Police Detective Rene January. Although appellant was not under arrest or in custody, Detective January read appellant his Miranda rights prior to interviewing him. Detective January told appellant that this was his opportunity to tell her what had happened because she only had one side of the story. When appellant indicated that he did not want to talk about the incidents involving E.O., Detective January left the room. A few minutes later Detective January returned and asked appellant a series of questions to satisfy the Gladys R. requirement that appellant, who was under the age of 14, knew right from wrong. Detective January recorded appellant's responses to the Gladys R. questions. Appellant stated that he did know the difference between right and wrong. When asked, "Do you know it is wrong to do sexual acts, like touch someone's private parts, make them touch your private parts, when they don't want to do that?," appellant answered, "Yes."
After completing the Gladys R. questioning, Detective January spoke to appellant's mother and sister, outside of appellant's presence. Appellant's sister translated for her mother. During the conversation, appellant's mother stated that she had told appellant that it was wrong to force someone to do sexual acts against their wishes. Appellant's sister translated this statement for Detective January. Detective January then arrested appellant.
At the adjudication hearing, appellant's sister testified that her mother told Detective January that she had instructed appellant that it was wrong to force someone to do sexual acts against their wishes. Appellant's mother testified that she did not remember making that statement but did acknowledge that she discussed a television show about rape with appellant to teach him right from wrong. The court denied appellant's motion to suppress his responses to the Gladys R. questions, explaining that "the minor . . . proceeded to talk about . . . whether or not he understood the difference between right and wrong, and I find that this was voluntary and not in violation of any of his rights, and information regarding Gladys R. will come in."
DISCUSSION
I. The Gladys R. Inquiry
Appellant contends that once he expressly invoked his right to remain silent, Detective January was required to cease all questioning. Appellant contends the Gladys R. inquiry that followed violated Miranda, and admission of his statements reflecting his understanding of the wrongfulness of his actions was prejudicial error under Chapman v. California (1967) 386 U.S. 18, 24.
"Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (Pen. Code, § 26, subd. (One).) To defeat the presumption, the People must show by 'clear proof' that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602. (In re Gladys R., supra, 1 Cal.3d at p. 867.)" (In re Manuel L. (1994) 7 Cal.4th 229, 231-232, fns. omitted.) To sustain its burden, "the prosecution must present clear and convincing evidence that the minor knows the wrongfulness of his conduct in order to sustain a finding that he is a person falling within [Welfare and Institutions Code] section 602." (Id. at p. 234.)
Custodial Setting
After being taken into custody by police or otherwise deprived of his or her freedom of action in any significant manner, a person must be given Miranda warnings apprising the person of his or her right to remain silent, that any statement the person makes may be used against the person and that the person has the right to counsel, retained or appointed. (Miranda, supra, 384 U.S. at pp. 444-445.)
"The court further held in Miranda that if the suspect indicates that he or she does not wish to speak to the officer or wants to have counsel present at questioning, the officer must end the interrogation." (People v. Neal (2003) 31 Cal.4th 63, 67.) "'[I]f the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. . . .' [Citation.]" (Id. at p. 80.)
To invoke the protections of Miranda, a suspect must be subjected to "custodial interrogation." (Miranda, supra, 384 U.S. at p. 444.) "Custodial interrogation has two components." (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) "'Custodial' means 'any situation in which "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."' [Citations.] Interrogation '"refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect."' [Citations.]" (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161; see also People v. Mayfield (1997) 14 Cal.4th 668, 732.)
Based upon the record presented to us we find that appellant was not subjected to custodial interrogation within the meaning of Miranda when he responded to the inquiries in the Gladys R. questionnaire. To make this determination, we examine all of the circumstances surrounding the interrogation, measured against the objective, legal standard of a reasonable person in the suspect's position. (People v. Ochoa (1998) 19 Cal.4th 353, 401.)
Among the relevant factors we consider are: whether contact was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; where the interview took place; whether police informed the person that he or she was under arrest or in custody; how long the interrogation lasted; how many police officers participated; whether the police were aggressive, or accusatory; and whether the police used interrogation techniques to pressure the suspect. (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.)
Appellant was brought to the police station by his mother in response to a request by Detective January to speak to him. Appellant's mother and sister remained at the station while appellant was questioned in the interview room. The record indicates that he was not formally arrested or advised that he was in custody during the questioning.
An important factor in our determination of custody status is the nature of the questioning. Appellant was interviewed only by Detective January and there was no confrontational or accusatory component to the questioning of appellant. "'[A]ccusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave' than would general and neutral investigative questions. Thus, on the issue of custody, courts consider highly significant whether the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational, threatening, intimidating, and accusatory. [Citations.]" (People v. Aguilera, supra, 51 Cal.App.4th at p. 1164.) After appellant told Detective January that he understood his Miranda rights, she asked if he wanted to talk about what happened. Although appellant gave an ambiguous response Detective January did not continue to ask questions or coerce him in any way. Detective January actually left the room for a few minutes before returning with the Gladys R. form. The entire inquiry was neither coercive in nature nor prolonged in duration. (In re Joseph R. (1998) 65 Cal.App.4th 954, 960.)
Appellant contends that an important part of the reasonable person analysis is consideration of appellant's age because "a child's age properly informs the Miranda custody analysis." (J.D.B. v. North Carolina (2011) __ U.S. __ [131 S.Ct. 2394, 2399, 180 L.Ed.2d 310, 319].) Appellant argues that his youth and lack of experience support the conclusion that he reasonably believed that he was in custody at the time of the questioning.
But the test for custody depends on the objective circumstances of the interrogation and the subjective views of the person being interrogated are equally as unimportant as those of the interrogating officer. (Stansbury v. California (1994) 511 U.S. 318, 323.) Juvenile status is relevant and to be considered but "[n]o one factor is dispositive." (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.) "[T]he interplay and combined effect of all the circumstances" surrounding appellant's questioning did not create "a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (Ibid.)
Appellant attempts to distinguish the facts here from In re Kenneth S. (2005) 133 Cal.App.4th 54. In that case, police officers interviewed the minor after his foster mother voluntarily took him to the police station for questioning. Officers isolated the minor in a separate room and obtained various admissions from him during the course of an interview. This court found Miranda did not require exclusion of those admissions because the minor was not in custody at the time of the interview. Specifically, we found the minor "was subjected to neither actual nor constructive restriction on his freedom" because (1) his foster mother voluntarily brought him to the police station and (2) before they began the interview, the interviewing officer told the minor he was not under arrest and was free to leave at any time. Although the interview was conducted in a section of the police station to which the public was not given free access and the minor would have required the accompaniment of an officer to leave, we found this was insufficient to lead a reasonable person in the minor's position to understand that he was in custody. (In re Kenneth S., supra, at p. 65.)
This case is similar in many respects to In re Kenneth S. In both cases the minors were at the police station voluntarily and accompanied by a parent. Both were taken to nonpublic areas of the station for questioning and would require the assistance of an officer to leave. Neither minor was told they were in custody or under arrest. Appellant points out that the door to the interview room was ajar and minor's mother was close by in In re Kenneth S., while his mother remained at the front desk. But neither appellant's mother nor sister, who were present at the station, asked to accompany appellant into the interview room.
Appellant argues that the significant difference between the two cases involves the issuance of Miranda warnings. The minor in In re Kenneth S. did not receive Miranda warnings before the interview and was told he was not under arrest and free to leave. Appellant argues that the fact he was given Miranda warnings would convey to a reasonable person that he was not free to leave. Detective January's subjective decision to read appellant his Miranda rights and abide by appellant's decision to refrain from talking about the incident is not determinative of the custody issue. (People v. Peevy (1998) 17 Cal.4th 1184, 1199.) Detective January's subjective views concerning the nature of the interrogation, or her beliefs concerning appellant's potential culpability "may be one among many factors" that bear upon the assessment whether appellant was in custody, but only if her views or beliefs were somehow manifested to appellant "and would have affected how a reasonable person in that position would perceive his or her freedom to leave." (Stansbury v. California, supra, 511 U.S. at p. 325.) There is no such evidence here.
Appellant was never restrained, nor was he ever told he was under arrest or in custody. Detective January did not coerce or try to intimidate appellant in any way. She was courteous and polite to him during the brief questioning and her interview of appellant was neither custodial nor an interrogation for the purposes of Miranda. We are satisfied the Gladys R. statements were properly admitted.
II. Sufficiency of the Evidence
Appellant contends that there was insufficient evidence of force to sustain the allegations of forcible sodomy and a forcible lewd act because the act of pulling down E.O.'s pants and underwear does not constitute force within the meaning of section 288, subdivision (b)(1), or section 286, subdivision (c)(2)(A).
Both allegations relate to the first sleepover when appellant pulled down E.O.'s pants and underwear and inserted his penis into E.O.'s anus. Appellant's motion to dismiss or in the alternative to reduce the allegations from forcible to nonforcible was denied.
"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. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the trier of fact could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.)
The same principles apply with respect to juvenile proceedings under section 602 of the Welfare and Institutions Code. (In re Jesse L. (1990) 221 Cal.App.3d 161, 165.) "The trier of fact, not the appellate court, must be convinced of the minor's guilt, and if the circumstances and reasonable inferences justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (In re James B. (2003) 109 Cal.App.4th 862, 872.)
A. Forcible Sodomy—Section 286, Subdivision (c)(2)(A)
Appellant was convicted of forcible sodomy which is defined as "sexual conduct consisting of contact between the penis of one person and the anus of another person" (§ 286, subd. (a)) "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." (§ 286, subd. (c)(2)(A).) Appellant contends the act of pulling down E.O.'s pants and underwear does not constitute force within the meaning of section 286, subdivision (c)(2)(A).
The definition of the word "force" in sexual offense statutes depends on the offense involved. (In re Asencio (2008) 166 Cal.App.4th 1195, 1200.) To convict for committing a forcible lewd act against a child in violation of section 288, subdivision (b), 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. (People v. Cicero (1984) 157 Cal.App.3d 465, 474 (Cicero).)The amount of force for a rape conviction is the amount sufficient to overcome the victim's will. (People v. Griffin (2004) 33 Cal.4th 1015, 1027 (Griffin))This level of force also applies for convictions of aggravated sexual assault of a child by rape and by forcible oral copulation. (§ 269, subd. (a)(1), (4).) (People v. Guido (2005) 125 Cal.App.4th 566, 574-576 (Guido))Similarly, a conviction for aggravated sexual assault of a child through sexual penetration is that force which is sufficient to overcome the victim's will. (In re Asencio, supra, at p. 1200.)
The question here is what amount of force is required to establish forcible sodomy. We conclude that under the reasoning articulated by the courts in Cicero, Griffin, Guido, and In re Asencio, the amount of force necessary to commit this offense is that force which is sufficient to overcome the victim's will. As there is evidence from which a reasonable trier of fact could have concluded that appellant used force sufficient to overcome E.O.'s will, we reject appellant's argument that the evidence was insufficient to sustain the petition.
1. Cicero
In Cicero, supra, 157 Cal.App.3d 465, the court's determination that some amount of force beyond the force necessary to accomplish the act was required was based on statutory analysis. At the time of the offenses in Cicero, section 288, subdivision (a) made it a criminal offense to "'commit any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child.'" (Cicero, supra, at p. 472, fn. 5.) At all relevant times, section 288, subdivision (b) made it a separate felony to violate section 288, subdivision (a) "by use of force, violence, duress, menace, or threat of great bodily harm." (Cicero, supra, at p. 472, fn. 5.)
The Cicero court observed this statutory distinction and stated that "Subdivisions (b) and (a) of section 288 on their face draw a distinction between those lewd acts that are committed by force and those that are not." (Cicero, supra, 157 Cal.App.3d at p. 473.) The court noted that "the violation of subdivision (b) is manifestly a more serious offense than the violation of subdivision (a)." (Ibid.) Because the Legislature is not presumed to use statutory language in a manner that would render nugatory or redundant important provisions of a statute, the Cicero court concluded that "[s]ubdivision (b) must therefore proscribe conduct significantly different from that proscribed by subdivision (a)." (Id. at pp. 473-474.)
The court concluded: "It necessarily follows that if commission of a lewd act itself constitutes the minimum proscribed conduct under subdivision (a), then in cases where 'force' is charged under subdivision (b) . . . it is incumbent upon the People to prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (Cicero, supra, 157 Cal.App.3d at p. 474, fn. omitted.) In Cicero, physical force was evidenced by the defendant picking up his victims by the waist, and while carrying them, opening and closing his hands on their crotches: these acts were "applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches." (Ibid.)
2. Griffin
In Griffin, supra, 33 Cal.4th 1015, the court looked to the statutory definition of rape in section 261, subdivision (a)(2): "Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶] (2) [w]here 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).) The Supreme Court discerned no evidence that the Legislature intended "force" to have a specialized legal definition. (Griffin, supra, at pp. 1022-1023.) The Supreme Court observed that there was nothing in the common use of the term "force" or the language of section 261 that would suggest a heightened force requirement like that in Cicero, supra, 157 Cal.App.3d at page 474. (Griffin, supra, at p. 1023.)
In contrasting the rape statute with section 288, the court emphasized that the Cicero court was focused on the distinctions between nonforcible lewd acts and forcible lewd acts, while that distinction does not arise in the context of the rape statute. (Griffin, supra, 33 Cal.4th at p. 1027.) The court reasoned: "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. The 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." (Ibid.)
The Supreme Court concluded that in a rape case, the "question for the [trier of fact] . . . [is] simply whether defendant used force to accomplish intercourse with [the victim] against [the victim's] will, not whether the force he used overcame [the victim's] physical strength or ability to resist him." (Griffin, supra, 33 Cal.4th at p. 1028.)
3. Guido
In Guido, supra, 125 Cal.App.4th 566, the Court of Appeal considered what amount of force was necessary to establish the aggravated sexual assault of a child by forcible oral copulation under section 269, subdivision (a)(4). That section provided that aggravated sexual assault of a child takes place when a person commits oral copulation (within the meaning of paragraph (2) or (3) of subdivision (c), or (d), of section 288a) on a child under 14 years of age and the perpetrator is more than a specified number of years older than the victim. (Guido, supra, at pp. 574-575.)
At the time of the offenses in Guido, the perpetrator had to be 10 or more years older than the victim; the period is now seven years. (§ 269, subd. (a) as amended by Stats. 2006, ch. 337, § 6.)
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Considering both Cicero and Griffin, the Guido court observed that the statute prohibiting forcible oral copulation was more like that prohibiting rape than the lewd acts statute. "These concepts [from Griffin, supra, 33 Cal.4th 1015] apply equally to the crime of forcible oral copulation. Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful." (Guido, supra, 125 Cal.App.4th at p. 576.)
The Guido court concluded that a special definition of "force" is not necessary and oral copulation by force is established when a reasonable trier of fact finds beyond a reasonable doubt that defendant accomplished an act of oral copulation by the use of force sufficient to overcome the victim's will. (Guido, supra, 125 Cal.App.4th at p. 576.) In comparing the acts of oral copulation and sodomy, the Guido court noted that both crimes were required to be "accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Ibid.)
4. In re Asencio
In In re Asencio, supra, 166 Cal.App.4th 1195, the defendant was convicted of aggravated sexual assault of a child, not by means of forcible oral copulation as in Guido, supra, 125 Cal.App.4th 566, but by violating section 269, subdivision (a)(5), forcible sexual penetration within the meaning of section 289, subdivision (a). Section 289, subdivision (a)(1)(A) (former subdivision (a)(1)) provides, "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."
Rejecting the analysis of Cicero, and guided by the reasoning in Griffin, the In re Asencio court found that "the element of force in a forcible sexual penetration offense 'does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288.'" (In re Asencio, supra, 166 Cal.App.4th at p. 1204 citing Griffin, supra, 33 Cal.4th at p. 1027.) The court reasoned that because "consensual sexual intercourse between adults does not violate the law against rape, [then] 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." (In re Asencio, supra, at pp. 1204-1205.) The court added: "The gravamen of the crime of forcible sexual penetration is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or the fear of immediate and unlawful bodily injury on the victim or another person, just as forcible rape under section 261, subdivision (a)(2) is sexual intercourse accomplished against the victim's will by force or other listed coercive means. (See Griffin, [supra,]at p. 1027; see also Guido, supra, 125 Cal.App.4th at pp. 574-576 [applying Griffin rationale to forcible oral copulation].)" (In re Asencio, supra, at p. 1205.)
In concluding that the forcible sexual penetration statute is conceptually akin to the rape statute, and seeing no reason to apply a different concept of the term "force" to forcible rape and forcible oral copulation on the one hand (per Griffin and Guido), and to forcible sexual penetration on the other, the In re Asencio court stated: "We conclude that forcible sexual penetration within the meaning of section 289, subdivision (a)(1) is proven when a [trier of fact] finds beyond a reasonable doubt that the defendant accomplished an act of sexual penetration by the use of force sufficient to overcome the victim's will. (Griffin, supra, 33 Cal.4th at p. 1028; Guido, supra, 125 Cal.App.4th at p. 576.)" (In re Asencio, supra, 166 Cal.App.4th at p. 1205.)
5. Forcible Sodomy and the Evidence at the Adjudication Hearing
Similar to In re Asencio, the reasoning of Griffin guides our analysis here because unlike the lewd acts in Cicero, the element of force in a forcible sodomy offense does not differentiate between two forms of unlawful sexual contact. (Griffin, supra, 33 Cal.4th at p. 1027.) The law against forcible sodomy is not violated when adults engage in consensual sodomy, even if penetration is accomplished by physical force greater than that normally required to accomplish an act of sodomy. The gravamen of the crime of forcible sodomy 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 on the victim or another person, just as forcible rape under section 261, subdivision (a)(2) is sexual intercourse accomplished against the victim's will by force or other listed coercive means. (See Griffin, supra, at p. 1027; see also Guido, supra, 125 Cal.App.4th at pp. 574-576 [applying Griffin rationale to forcible oral copulation].)
Because the forcible sodomy statute is comparable to the rape statute, we apply the same concept of the term "force" to forcible sodomy here as applicable to forcible rape, forcible oral copulation, and forcible penetration (per Griffin, Guido, and In re Asencio) and conclude that forcible sodomy within the meaning of section 286, subdivision (c)(2)(A) is proven when a trier of fact finds beyond a reasonable doubt that the defendant accomplished an act of forcible sodomy by the use of force sufficient to overcome the victim's will. (Griffin, supra, 33 Cal.4th at p. 1028; Guido, supra, 125 Cal.App.4th at p. 576; In re Asencio, supra, 166 Cal.App.4th at p. 1205.)
The evidence in this case is sufficient to support the court's determination that appellant used force, as that term is commonly used and understood, to accomplish forcible sodomy against E.O.'s will. First, appellant was large, almost 13, while E.O. was only eight. Next, appellant pulled down E.O.'s pants and underwear and inserted his penis into E.O.'s anus. E.O. testified that he did not want to participate in any sexual acts with appellant and asked appellant to stop. It can be inferred that this act was performed against E.O.'s will. Based on the age and size difference, and E.O.'s objections to participating in sexual acts, a reasonable trier of fact could find on this evidence that appellant used sufficient force to overcome E.O.'s will. (See, e.g., In re Asencio, supra, 166 Cal.App.4th at pp. 1205-1206 [holding that appellant's act of pulling down victim's underwear and rolling his body on top of the victim were sufficient acts of force to support the trier of fact's findings].) Substantial evidence supports the court's finding of forcible sodomy in violation of section 286, subdivision (c)(2)(A).
B. Forcible Lewd Act—Section 288, Subdivision (b)(1)
Appellant contends the act of pulling down E.O.'s pants and underwear does not constitute force within the meaning of section 288, subdivision (b)(1).
Section 288 imposes felony liability upon "any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years . . . ." (§ 288, subd. (a).) Appellant's petition was sustained under subdivision (b)(1), which applies to anyone " who commits an act described in subdivision (a) by use of force . . . on the victim . . . ." (§ 288, subd. (b)(1).) Confirming the Cicero analysis above, the Supreme Court recently held that the "appropriate definition of the force required for an aggravated lewd conduct conviction under section 288[, subdivision (b)(1)]" is force that is "'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'" (People v. Soto (2011) 51 Cal.4th 229, 242, citing People v. Cicero, supra, 157 Cal.App.3d at p. 474.)
Appellant's act of pulling down E.O.'s pants and underwear went beyond what was necessary to commit the lewd act itself because "a lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body." (People v. Martinez (1995) 11 Cal.4th 434, 444.) "[I]gnor[ing] the boy's request to get off of him and to stop fondling him," among other things, constituted "physical force substantially different from and substantially greater than necessary to fondle" the boy. (People v. Stark (1989) 213 Cal.App.3d 107, 112.)
Appellant's contention that there was no evidence that force was used to pull down E.O.'s pants and underwear is undermined by the testimony. E.O. testified that all of the sexual acts perpetrated by appellant were against his will and that he asked appellant to stop. With respect to this incident, E.O. testified that appellant "pulled my pants down." A reasonable trier of fact could conclude from this testimony that a forcible act occurred. Substantial evidence supports the court's finding of a forcible lewd act in violation of section 288, subdivision (b)(1).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
DOI TODD
We concur:
P. J.
BOREN
J.
CHAVEZ