Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FVI022630, Jon D. Ferguson, Judge.
Richard Schwartzberg, 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, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P. J.
On June 16, 2006, a jury found defendant and appellant Robert Dale Morgan guilty of forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1) (count 1)); lewd act upon a child under the age of 14 (§ 288, subd. (a) (count 2)); resisting an executive officer (§ 69 (count 3)); and resisting arrest (§ 148, subd. (a)(1) (count 4)).
All further statutory references are to the Penal Code unless otherwise indicated.
On August 22, 2007, the trial court (1) sentenced defendant to the upper term of eight years in state prison on count 1; (2) stayed the eight-year state prison term on count 2; (3) sentenced defendant to a concurrent two-year state prison term on count 3; and stayed the one-year county jail term on count 4.
On November 27, 2007, defendant filed a motion to modify his sentence; he requested that the trial court strike his conviction on count 2. On December 17, 2007, the trial court granted defendant’s motion.
On appeal, defendant contends that (1) there is insufficient evidence to support a finding of forcible lewd act upon a child under section 288, subdivision (b)(1) (count 1); and (2) his conviction for resisting arrest under section 148 (count 4) should be stricken because it is a lesser included offense of resisting an executive officer under section 69 (count 3). For the reasons set forth below, we shall strike defendant’s conviction for resisting arrest under section 148 (count 4). In all other respects, the judgment is affirmed.
I
FACTUAL AND PROCEDURAL HISTORY
A. Counts 1 and 2
Defendant is the victim’s uncle. At the time of the sexual assault, September 29, 2005, the victim’s grandfather, defendant’s sister (K.—age 19), and defendant (age 24), were living together in the grandfather’s trailer in Apple Valley. The victim, who was 12 years old at the time, was visiting her family at the grandfather’s trailer.
The victim and her 18-month-old niece (K.’s daughter) got into the shower together. Before entering the shower in the master bedroom, the victim turned on the radio, located just outside the bathroom door. The master bedroom door was closed, but not locked, and the bathroom door was open.
While the victim was undressing to get into the shower, she saw defendant standing at the master bedroom door, rubbing his eyes as if he had just woken up. Defendant said, “[t]urn down the music.” The victim covered herself up, and shut and locked the bathroom door. The victim thought defendant had turned down the radio. Later, when defendant was not in the vicinity of the bathroom, the victim got out of the shower and turned up the radio. She believed she had locked the master bedroom door. She then got back into the shower; she had left the bathroom door open.
The victim then saw a blur through the shower door. When the shower door opened, she saw defendant. She said, “I’m in here. I’m taking a shower.” The victim pushed the shower door closed so defendant could not get into the shower. Because there are two doors to the shower, defendant went back and forth between the two doors, trying to open them while the victim tried to keep them closed.
Finally, when the victim could no longer hold the doors closed, defendant, who was undressed, was able to enter the shower. Once in the shower, defendant put his hands on the victim’s hips and tried to pull her against him. The victim, in a loud voice, told defendant to “[g]et off of me” and pushed him off. Defendant shushed her. When the victim’s hands were on defendant’s chest, trying to push him off, defendant’s penis brushed against the victim’s leg. The victim managed to push defendant away and got out of the shower.
The victim’s niece was screaming in the shower while the victim struggled with defendant. The victim estimated that the struggle with defendant took six or seven minutes.
The victim ran out of the bathroom; she was naked, crying, and screaming. She met K. in the hallway. K. had been in the kitchen, washing dishes. K. heard some screaming and banging before she met up with the victim in the hallway. As K. was going toward the bathroom to get her daughter out of the shower, she saw defendant run naked from the master bedroom to his room.
K., the victim’s niece, and the victim went into K.’s bedroom and locked the door. The victim then called her mother. K. then called the grandfather. The grandfather picked up K., the victim’s niece, and the victim from the trailer and took them to his furniture store where the victim met her mother. Once at the store, the victim told her mother and grandfather what had happened; that defendant, who was naked, got into the shower and pulled her against him.
The victim’s mother did not call the police about the incident. When interviewed by the police a couple days after the incident, the victim’s mother told the interviewing officer that she did not report the incident because she did not want to lose her job; she worked at the grandfather’s furniture store. K. did not report the incident to the police because the grandfather and the victim’s mother told her not to. J., a friend of the victim’s older sister, heard about the incident and called the police after the victim told him she wanted something done about it. The grandfather and the victim’s mother did not want J. to call the police.
B. Prior Acts
Prior to the shower incident, when the victim was 11 or 12 years old, she was sitting on the couch in the living room of the grandfather’s trailer one evening, around 2:00 a.m., watching television. The victim saw defendant about 12 feet away in the kitchen, with his hands in his shorts, playing with his penis, looking at her. The victim was changing channels on the television to let defendant know that she was awake. Defendant sat on the couch, about five inches to the victim’s right side. Defendant said something that contained a reference to her “[p]ussy.” The victim stated, “No, you’re my uncle, that’s nasty.” Defendant then took his left hand, slid it under her buttocks, and grabbed it. The victim pushed defendant’s hand away and told him to stop, which he did. The victim did not tell anyone about the incident because she feared defendant may have been kicked out of the home or other bad things would happen to him.
When K. was about nine years old, she lived with defendant (her brother) and her father (the victim’s grandfather) in a two-bedroom house in Hesperia. In the master bedroom, defendant asked her if she would have “oral intercourse” with him. There was access to a small attic space from the large master bedroom closet. In the attic space, defendant told K. to put her mouth on his penis and “go up and down.” K. did what defendant told her to do. Defendant told K. not to tell anyone or she would get hurt. K. told her friend, T.J., and later told T.J.’s mother. K. moved out of the Hesperia house and went to live with T.J.’s family.
In September 2001, K. was 15 years old and living with her father and defendant again. She slept on the couch in the living room. One morning, between 5:00 and 6:00 a.m., K. awoke to find defendant’s penis touching her mouth and chin area. Defendant was standing over her, naked. When K. asked, “What are you doing?[,]” defendant ran into his room. K. grabbed the telephone, ran outside, and called her sister, who is the victim’s mother. K. later told her father; he stated that K. could come to work with him everyday so she would not have to be home alone.
C. Counts 3 and 4
On October 1, 2005, Deputy Maddox met with and separately interviewed J. and the victim. Deputy Maddox, in uniform, then contacted and obtained statements from the victim’s mother and K.
Deputy Maddox then went to the grandfather’s trailer and contacted defendant. Defendant was unable to provide any details about the September 29, 2005, incident except that he had turned down the radio volume when the victim was in the shower. While sitting on the couch with defendant, Deputy Maddox told defendant that he was under arrest, and that he needed to stand up and place his hands behind his back. When Deputy Maddox tried to place the handcuffs on defendant, defendant began sliding away from the deputy. Defendant then lunged forward. This caused both the deputy and defendant to crash into a table. The struggle continued, with Deputy Maddox continuously ordering defendant to stop. Deputy Maddox gave defendant a burst of pepper spray in his face and they both fell to the floor. Defendant then began running away. The struggle continued, with defendant grabbing the deputy’s gun. Deputy Maddox then put both of his hands on the gun and twisted it away from defendant. Defendant shouted, “Oh, my God, oh, my God, kill me.”
Defendant ran out of the trailer, traveling approximately 300 yards before Deputy Maddox caught him. The deputy struck defendant several times on his back with his baton. The deputy then placed handcuffs on defendant. Deputy Maddox estimated that the struggle lasted about five minutes from when he “initiated the arrest to the actual arrest.”
II
ANALYSIS
A. The Evidence of Force Was Sufficient to Support a Conviction of Forcible Lewd Act Upon a Child (Count 1)
Defendant contends that the evidence of force was insufficient to support a conviction on count 1. Defendant requests that we “reverse [the] conviction [or] reduce [count 1] to [a] violation of Penal Code section 288, subdivision (a),” instead of a violation of section 288, subdivision (b). We disagree with defendant’s assessment of the evidence.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22, quoting People v. Catlin (2001) 26 Cal.4th 81, 139, quoting in part Jackson v. Virginia (1979) 443 U.S. 307, 319; see also People v. Wader (1993) 5 Cal.4th 610, 640; People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
B. The Conviction Is Supported by Substantial Evidence
In count 1, defendant was convicted of violating section 288, subdivision (b)(1). A violation of section 288, subdivision (b)(1), occurs when a defendant commits a lewd or lascivious act with a child under the age of 14 “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.”
The type of force required to prove that lewd or lascivious acts occurred under section 288, subdivision (b)(1), differs from the force required to prove forcible rape under section 261 and forcible oral copulation under section 269. To prove that force was used in the commission of a lewd or lascivious act under section 288, subdivision (b)(1), where the victim has suffered no physical harm, the prosecution must prove “that the defendant used physical force substantially different from or substantially in excess of that required for the lewd act.” (People v. Cicero (1984) 157 Cal.App.3d 465, 484 (Cicero).) Here, the trial court gave the instruction that “[t]he force used must be substantially different from or substantially greater than the force needed to accomplish the act itself.”
In Cicero, supra, 157 Cal.App.3d 465, the Court of Appeal held that the People proved that defendant used force: “[D]efendant’s acts of picking the girls up and carrying them along were applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches. [¶] . . . [¶] . . . [The requirement of] ‘force’ plays merely a supporting evidentiary role, as necessary only to insure an act of [molestation] has been undertaken against a victim’s will. [¶] . . . [¶] . . . ‘[F]orce’ should be defined as a method of obtaining a child’s participation in a lewd act in violation of a child’s will . . . .” (Id. at pp. 474-476.)
In the years since Cicero, force has been found in many circumstances. In People v. Pitmon (1985) 170 Cal.App.3d 38, the Court of Appeal found sufficient evidence of force where the defendant held an eight-year-old victim’s hand to his penis while moving the hand to masturbate himself and slightly shoving the victim’s back while having the latter orally copulate him. (Id. at p. 48.)
In People v. Mendibles (1988) 199 Cal.App.3d 1277, force was found when the victims tried to escape from the defendant, but were pulled back, and their heads were pulled forward so they could orally copulate him. (Id. at p. 1307.)
In People v. Bergschneider (1989) 211 Cal.App.3d 144, Division One of this court found force when the defendant pushed away the hands of the slightly retarded 14-year-old victim when she placed them at her vagina to prevent the defendant from having intercourse with her. It was also found when she unsuccessfully tried to push the defendant’s head away while he was orally copulating her. (Id. at p. 153.)
In People v. Babcock (1993) 14 Cal.App.4th 383, the Court of Appeal upheld the jury’s finding of force where the defendant took a seven-year-old victim’s hand and “‘made [the victim] touch him.’” In addition, when another eight-year-old victim told the defendant “no” when he requested she touch his penis, he grabbed her hand and put it on his penis. When she tried to pull away, the defendant pulled her hand back. (Id. at pp. 385, 388.)
In People v. Bolander (1994) 23 Cal.App.4th 155, the defendant pulled the victim’s shorts down. The victim tried to pull them back up, but the defendant bent him over, inserted his penis in the victim’s anus, and pulled the victim toward him by the waist. (Id. at p. 158.) The appellate court held: “[D]efendant’s acts of inhibiting [the victim] from pulling his shorts back up, bending [the victim] over, and pulling [the victim] towards him constitute force within the meaning of subdivision (b) of section 288, in that ‘. . . defendant applied force in order to accomplish the lewd acts without the victim’s consent.’ [Citation.]” (Id. at p. 159, quoting People v. Neel (1993) 19 Cal.App.4th 1784, 1790.)
In People v. Young (1987) 190 Cal.App.3d 248, the defendant told his daughter to get in bed. He put her on top of him, pulled down her pants, and penetrated her with his finger and with his penis. (Id. at pp. 252, 258.) The court held: “[S]ubstantial evidence was presented . . . which would support a finding by the jury that defendant accomplished an act of sexual intercourse with [the victim] by means of force and against her will.” (Id. at p. 258.) “[S]ome force was used by defendant in both the penetration and the physical movement and positioning of [the victim]’s body in accomplishing the act.” (Ibid.)
We note, however, the Young court nevertheless went on to reverse the rape charge. It reasoned that, although there was sufficient evidence of force, there was insufficient evidence of fear. (People v. Young, supra, 190 Cal.App.3d at pp. 258-259.) “From this record, we are unable to state with any degree of certainty which theory the jury may have used to find defendant guilty of rape. Reversal is therefore required.” (Id. at p. 259, fn. omitted.)
There was ample evidence of force in this case. Here, as described in more detail above, the evidence showed that the victim actively resisted defendant’s repeated attempts to enter through one, then the other, shower door before the victim’s strength was overcome. Then, when defendant, who was naked, pulled the victim, who was also naked, toward his body by his hands on each of her hips, the victim resisted, pushing his chest with her hands. At this point, defendant’s penis “brushed” against the victim’s leg. Thereafter, the victim was able to push defendant away and flee.
Notwithstanding this evidence, defendant contends that the touching of his penis to the victim’s leg was “inadvertent” and occurred as the victim “ran away.” The victim’s testimony refutes defendant’s contention. At the trial, the victim testified as follows:
“Q Okay. So you have your hands against his chest trying to push him off of you, he’s pulling you towards him, and his penis brushes up against your leg?
“A Yes.
“Q Okay. Now, what happens after that?
“[¶] . . . [¶] “Q Well, what happens after his penis brushes up against your leg? Then what happens?
“A Then I pushed him away and got out.”
The victim testified that during her struggle with defendant, his penis touched her. Thereafter, she was able to escape.
Based on the above, we find that the evidence was sufficient to establish force. “Whether a defendant used ‘physical force substantially different from or substantially in excess of that required for the lewd act’ (People v. Cicero, supra, 157 Cal.App.3d at p. 484) is properly left as an issue for the jury to resolve. . . . The jury was properly instructed as to the definition of force and, after carefully reviewing and re-reviewing the evidence before it, concluded there was sufficient evidence of force. Since the finding is supported by substantial evidence, we are bound to uphold it on appeal.” (People v. Babcock, supra, 14 Cal.App.4th at p. 388.)
C. The Conviction for Resisting Arrest Under Section 148, Subdivision (a) (Count 4), Must Be Stricken
Defendant contends, and the People concede, that defendant’s conviction for resisting arrest (count 4) must be stricken because it is based on an identical act to, and is a lesser offense necessarily included in, the resisting an executive officer offense (count 3). We agree.
“[M]ultiple convictions may not be based on necessarily included offenses. [Citation.] [‘If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed’].” (People v. Pearson (1986) 42 Cal.3d 351, 355.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citations.]” (Ibid.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
There are two ways in which the offense of resisting an executive officer under section 69 can be committed: (1) an attempt by threats or violence to deter or prevent an officer from performing a lawful duty; and (2) resisting by force or violence an executive officer’s performance of his duties. (In re Manuel G. (1997) 16 Cal.4th 805, 814.)
Here, the evidence established and the trial court only instructed on the second theory. (CALCRIM No. 2652.) Moreover, the prosecutor only argued the second theory—resisting by force or violence.
Based on the argument and instructions as to sections 69 and 148, subdivision (a), offenses, “it appears to be impossible to violate the second type of offense in section 69 without also violating section 148[, subdivision] (a)(1),” under the statutory elements test. (People v. Lacefield (2007) 157 Cal.App.4th 249, 257.) Therefore, the resisting arrest conviction in count 4 must be stricken.
III
DISPOSITION
The judgment is modified by striking the conviction as to count 4, misdemeanor resisting arrest under section 148. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect these modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: KING, J. MILLER, J.