People v. Cicero

Decision Date21 June 1984
Docket NumberCr. 12259
Citation157 Cal.App.3d 465,204 Cal.Rptr. 582
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Kalvin Joseph CICERO, Defendant and Appellant.

Quin Denvir, State Public Defender, and Gabriel C. Vivas, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Criminal Division, Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Jane Kirkland Fischer, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

In this case, 1 we construe the term "force" in Penal Code section 288, subdivision (b), 2 which makes criminal the commission of a lewd act by force upon a child under the age of 14.

FACTUAL AND PROCEDURAL BACKGROUND

Facts and circumstances material to the published portion of this opinion are as follows:

Defendant was charged in an information with two counts of violation of section 288, commission of lewd and lascivious acts upon a child under the age of 14 years on February 20, 1982. The information also alleged that the acts had been committed by force or violence (§§ 288, subd. (b); 1203.066, subd. (a)(1)), that defendant was a stranger to the victims and made friends with them for the purpose of committing the lewd acts (§ 1203.066, subd. (a)(3)), and that the acts were committed on more than one victim at the same time or in the same course of conduct (§ 1203.066, subd. (a)(7)).

The information also alleged defendant had served a separate prison term as a consequence of prior convictions (for violation of §§ 220 [assault with intent to commit rape] and 245 [assault with a deadly weapon] ) to be used as an enhancement pursuant to Penal Code section 667.5, subdivision (b). Defendant waived a jury and was tried by the court. During trial, defendant admitted the prior convictions and service of the prison term.

The evidence was largely uncontradicted. On February 20, 1982, Corinna B., age 11, and Michelle H., age 12, were riding their bikes on a paved walkway or bike path next to the Lindo Channel, a waterway in Chico. The girls stopped and got off their bikes at a point where the path and the waterway ran under a freeway. Defendant, who was 24 years old, was jogging. He approached the girls and asked them their names and where they went to school. The conversation was friendly; defendant told the girls he lived down the street and went to Chico State.

The girls started to throw rocks into the water. Then the girls began to play at pretending to throw each other into the water. Michelle asked defendant to help her throw Corinna into the water and defendant came over and said, "[W]hy don't I throw you both in the water."

Defendant then picked up the girls by the waist, one under each arm, and began to carry them along. As he did so, the girls slipped down and he moved his hands between their legs. While carrying the girls along in this fashion, defendant opened and closed his hands on the girls' crotches. Defendant carried the girls along for about nine seconds, covering a distance of 15 to 20 feet. The girls, who were laughing, thought at that moment defendant was playing a game and that it was "an accident" that he was feeling their crotches; they therefore made no attempt to get away.

With defendant still holding each girl around the waist, the trio sat down. Corinna told defendant she was getting scared and was supposed to be home. Defendant replied he would let the girls go if Corinna would give him a kiss. Corinna kissed him on the cheek. 3

At that point Michelle pulled defendant's arm away and ran away, distracting defendant sufficiently so that Corinna, too, slipped out of his arm and ran.

After the girls broke away from defendant's grasp, they ran along the path up the hill. Defendant ran past them, stopped at the top of the hill and asked the girls, "[A]re you sure there's nothing I can do?" He told the girls not to tell anybody.

Defendant then got in his car and drove away. Corinna memorized the license plate number. The girls then ran to Michelle's house, a couple of blocks away, where they told her 21-year-old sister what had happened. To Michelle's sister, the girls appeared shaken, nervous and uncertain of what had happened. They were starting to cry. The girls said the man had tried to give Corinna a french kiss and had grabbed at their private parts.

At the conclusion of trial, the court found defendant guilty of two counts of having committed a lewd or lascivious act on a child under the age of 14 by force (§§ 288, subd. (b); 1203.066, subd. (a)(1)), although the court found no violence or threat of great bodily harm. The court also made findings that defendant was a stranger who made friends with the victims for the purpose of committing the lewd acts (§ 1203.066, subd. (a)(3)) and that the acts were committed on more than one victim at the same time or in the same course of conduct (§ 1203.066, subd. (a)(7)).

Pursuant to section 667.6, subdivision (d), the court sentenced defendant to the middle term of six years in state prison on count 1, and to the lower term of three years consecutive on count 2. 4 The court then added one year for the prior prison term enhancement, for a total of ten years in state prison.

Defendant contends on appeal, among other things, that his sentence was excessive because there was insufficient evidence to support a finding of "force" which required the court under section 667.6, subdivision (d), to impose full consecutive sentences. We affirm.

DISCUSSION
I

We address defendant's contention there is insufficient evidence to support the trial court's finding that he committed the charged lewd acts by force.

A

The test to determine the sufficiency of the evidence is whether, viewing the whole record in a light most favorable to the judgment below, a rational trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738.) While an appellate court must determine whether substantial evidence on the whole record supports each essential element of an offense (id., at p. 577, 162 Cal.Rptr. 431, 606 P.2d 738), we are mindful that "... '[I]t 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. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267, citation omitted.)

B

Section 288 5 makes criminal any lewd act upon a child under the age of 14 years.

Subdivision (a) of that section 6 prohibits any such act upon or with any part of the body of the child with the intent to satisfy the sexual desires of either the defendant or the child. Punishment for violation of subdivision (a) is fixed at three, six or eight years in state prison. Subdivision (b) makes criminal the commission of the same acts accomplished "by use of force, violence, duress, menace, or threat of great bodily harm ...." The punishment is also three, six or eight years in state prison.

In this appeal, the importance of the trial court's findings that force was used on two victims originates in the mandates of section 667.6. If the offenses were committed by force on separate victims or on the same victim on separate occasions, section 667.6, subdivision (d), requires the sentencing court to impose full consecutive sentences. 7 Section 667.6, subdivision (d), effectively removes choices otherwise permitted the sentencing court for concurrent or limited consecutive sentences (see § 1170.1), and for permissive full consecutive sentences. (See § 667.6, subd. (c); People v. Belmontes (1983) 34 Cal.3d 335, 343-346, 193 Cal.Rptr. 882, 667 P.2d 686.)

C

We turn now to the question of whether lewd acts were accomplished "by use of force" upon the victims in the present case. We focus first on the interval during which defendant picked up the girls and, while carrying them along, felt their crotches. There is no dispute defendant committed lewd acts on the girls when he felt their crotches; the contention is no force was used as a matter of law.

1.

Subdivision (b), containing "by use of force," was added to section 288 in 1979. (Stats.1979, ch. 944, § 6.5, p. 3254.) To our knowledge, no reported case has discussed the meaning of "force" in subdivision (b).

Therefore, "We are guided by the fundamental rules of statutory construction. A court ' " 'should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' " ' (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732 [114 Cal.Rptr. 460, 523 P.2d 260], quoting People v. Superior Court (1969) 70 Cal.2d 123, 132 [74 Cal.Rptr. 294, 449 P.2d 230].) To determine such intent, the court must turn first to the language of the statute itself. (People v. Knowles (1950) 35 Cal.2d 175, 182 .)" (Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 608, 189 Cal.Rptr. 871, 659 P.2d 1160.) Every statute should be construed with reference to the whole system of law of which it is a part. (Moore v. Panish (1982) 32 Cal.2d 535, 541, 186 Cal.Rptr. 475, 652 P.2d 32.)

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. Because of the application of sections 1203.066, subdivision (a)(1), and 667.6, subdivision (d), the violation of subdivision (b) is manifestly a more serious offense than the violation of subdivision (a). The sentencing court cannot grant probation to a defendant convicted of subdivision (b). (§ 1203.066, subd. (a)(1).) In many cases, a defendant convicted of two or more offenses under subdivision (b) will face a mandatory term in state It necessarily follows that if...

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