People v. Babcock

• Decision Date: 22 March 1993
• Docket Number: No. A054926,A054926
• Citation: 17 Cal.Rptr.2d 688,14 Cal.App.4th 383
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Calvin BABCOCK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 688

17 Cal.Rptr.2d 688

14 Cal.App.4th 383

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Calvin BABCOCK, Defendant and Appellant.

No. A054926.

Court of Appeal, First District, Division 2, California.

March 22, 1993.

Review Denied July 15, 1993.

Rita L. Swenor, Sonoma, under appointment by the Court of Appeal, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., and Christopher J. Wei, Deputy Atty. Gen., San Francisco, for respondent.

BENSON, Associate Justice.

Following a jury trial, defendant John Calvin Babcock was convicted of several sexual assault charges involving minors. Defendant's sole contention on appeal is that there is insufficient evidence of force to sustain the convictions on two counts of forcible lewd and lascivious conduct. (See Pen.Code, § 288, subd. (b).) ¹ We disagree and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 14, 1991, defendant was charged with multiple counts of sexual assault against a number of different victims, all of whom were minors. Only counts 12 and 14 of the information are at issue in this appeal. ² Count 12 charged defendant with committing a forcible lewd and lascivious act on Autumn R., a seven-year-old girl, in violation of section 288, subdivision (b). ³ Count 14 charged defendant with committing a forcible lewd and lascivious act on Rachel P., an eight-year-old girl, also in violation of section 288, subdivision (b).

At trial, Autumn initially had some difficulty recalling the events giving rise to count 12. When reminded about a conversation she had had with a police investigator, however, Autumn recalled that defendant "took my hand and made me touch him." The incident occurred in the back bedroom of the house in which defendant lived with Autumn and her mother. According to Autumn, defendant made her touch his crotch for "a couple minutes." Defendant had his pants on at the time of the touching. Defendant took the stand in his own defense and denied that this incident had occurred.

Rachel also had some difficulty recalling the events giving rise to count 14. When reminded of her conversation with the police investigator, however, Rachel recalled that defendant had asked her to touch "his private" and that she had said "no." When asked to demonstrate what had happened, Rachel indicated that defendant had grabbed her hand and touched his crotch with it. She tried to pull her hand away, but defendant pulled it back. Defendant denied asking Rachel to touch his crotch. He admitted he may have grabbed Rachel's wrist but denied pulling it towards his genitals.

Although section 288, subdivision (b), criminalizes lewd and lascivious acts on a child under the age of 14 years "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" (emphasis added), the prosecutor in this case elected to proceed only on a theory of force. Accordingly, the trial court instructed the jury only on force, defining it as "physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (See People v. Cicero (1984) 157 Cal.App.3d 465, 484, 204 Cal.Rptr. 582.)

After requesting that Autumn's testimony be reread, including the "portion of Autumn's testimony regarding the use of force," the jury convicted defendant of both counts 12 and 14 as well as other offenses. The trial court sentenced defendant to a total term of 13 years, including a 3-year consecutive sentence on count 12 and a 3-year consecutive sentence on count 14. Defendant has filed a timely notice of appeal.

II. DISCUSSION

As the jury was properly instructed, the force contemplated by section 288, subdivision (b), is "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, 204 Cal.Rptr. 582; see also People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, 259 Cal.Rptr. 219; People v. Pitmon (1985) 170 Cal.App.3d 38, 46, 216 Cal.Rptr. 221.) Defendant asserts there is insufficient evidence of such force to sustain the convictions on counts 12 and 14. ⁴ Accordingly, defendant contends we must reverse the convictions on these counts or, at a minimum, reduce them to convictions for non-forcible lewd and lascivious conduct. (See § 288, subd. (a).) ⁵

"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643, citations omitted.) Applying this standard of review, we conclude the convictions on counts 12 and 14 are supported by substantial evidence of defendant's use of force.

This case is virtually indistinguishable from People v. Pitmon, supra, 170 Cal.App.3d 38, 216 Cal.Rptr. 221. In Pitmon, the defendant grabbed the eight-year-old victim's hand, placed it on his own genitals, and rubbed himself with the victim's hand. (Id. at p. 44, 216 Cal.Rptr. 221.) On appeal, the defendant argued there was insufficient evidence to sustain a finding of force. (Id. at p. 47, 216 Cal.Rptr. 221.) The court rejected this contention, holding "[t]here can be little doubt that 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. The facts show defendant had hold of [the victim's] hand throughout this act." (Id. at p. 48, 216 Cal.Rptr. 221.) Similarly, in this case, the evidence demonstrates defendant grabbed Autumn's and Rachel's hands and forced them to touch his genitals. ⁶

Furthermore, as to Rachel, the evidence indicates defendant overcame her resistance when she attempted to pull her hand away from his crotch. Although resistance is not required to prove forcible sexual assault, the jury could reasonably have considered Rachel's resistance in assessing whether defendant used force to accomplish the lewd act. (Cf. People v. Barnes (1986) 42 Cal.3d 284, 304, 228 Cal.Rptr. 228, 721 P.2d 110.) In People v. Bergschneider, supra, 211 Cal.App.3d at p. 154, 259 Cal.Rptr. 219, for example, the court held that evidence the victim unsuccessfully tried to push the defendant's head away while he was attempting to perform oral copulation "represent[ed] the application of force 'substantially greater than that necessary to accomplish the lewd act itself.' " Likewise, in People v. Mendibles (1988) 199 Cal.App.3d 1277, 1307, 245 Cal.Rptr. 553, the court held that evidence the defendant pulled the victims back as they tried to get away and pulled their heads forward to get them to perform oral copulation was "unequivocal evidence of the application of physical force as defined by Cicero."

Defendant in this case urges us to reject the above authorities in favor of dicta in the recent opinion in People v. Schulz (1992) 2 Cal.App.4th 999, 3 Cal.Rptr.2d 799. In Schulz, the defendant woke up the nine-year-old victim at night in her bedroom. (Id. at pp. 1003, 1005, 3 Cal.Rptr.2d 799.) "He grabbed her arm, trying to get her off her bed. She got up and ran to a corner of her room. He grabbed her and held her arm in the corner and she screamed and cried. On direct examination she testified he did not touch her breasts or vagina on this occasion. On cross-examination she testified he did touch her breasts and vaginal area when he got her in the corner." (Id. at p. 1003, 3 Cal.Rptr.2d 799.) On appeal, the defendant claimed there was insufficient evidence of force or duress. (Id. at p. 1004, 3 Cal.Rptr.2d 799.) The Sixth District agreed as to force, stating "[w]e do not regard as constituting 'force' the evidence that defendant grabbed the victim's arm and held her while fondling her.... 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.' " (Ibid., citations omitted.) The court specifically noted that the opinions in People v. Pitmon, supra, 170 Cal.App.3d 38, 216 Cal.Rptr. 221, People v. Bergschneider, supra, 211 Cal.App.3d 144, 259 Cal.Rptr. 219, and People v. Mendibles, supra, 199 Cal.App.3d 1277, 245 Cal.Rptr. 553, were to the contrary. (People v. Schulz, supra, 2 Cal.App.4th at p. 1004, 3 Cal.Rptr.2d 799.) After suggesting the evidence of force was insufficient, the Schulz court then upheld defendant's conviction under section 288, subdivision (b), on the grounds of "duress." (2 Cal.App.4th at p. 1005, 3 Cal.Rptr.2d 799.)

The Sixth District recently followed its opinion in Schulz in People v. Senior (1992) 3 Cal.App.4th 765, 5 Cal.Rptr.2d 14. In Senior, the court stated "[w]e ... 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, 5 Cal.Rptr.2d 14.) The court again rejected the contrary decisions in Pitmon, Bergschneider, and Mendibles and again upheld the convictions on the grounds of "duress." (Id. at p. 774-775, 5 Cal.Rptr.2d 14.)

We decline defendant's invitation to follow the dicta in People v. Schulz, supra, 2 Cal.App.4th 999, 3 Cal.Rptr.2d 799, and People v. Senior, supra, 3 Cal.App.4th 765, 5 Cal.Rptr.2d 14. In our view, the fatal flaw in defendant's argument, and 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...