P. v. Pena

Filed 4/10/07 P. v. Pena CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

Law offices of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Elizabeth A. Hartwig, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant was found guilty of 16 counts of committing lewd acts on a child under the age of 14 (Pen. Code, 288, subd. (a))^[1](counts 1 through 16) and four counts of forcible lewd acts on a child ( 288, subd. (b)(1)) (counts 17 through 20). Defendant was sentenced to a total term of 30 years in state prison. On appeal, defendant contends (1) there was insufficient evidence to support his conviction for 16 separate counts of lewd acts upon a child under the age of 14 within the meaning of section 288, subdivision (a); and (2) the trial court erred in denying his motion for new trial because there was insufficient evidence of force to support his conviction on counts 17 through 20 for violating section 288, subdivision (b)(1). We reject these contentions and affirm the judgment.

I

FACTUAL BACKGROUND

In the summer of 2003, then 12-year-old Jane Doe went to California to visit with defendant, her biological father.^[2] At that time, defendant was living with his parents, his two sisters, and his sisters children in his parents home in Corona. When Jane and her sister visited the crowded home, defendant and Jane slept in the television room or living room on separate air mattresses, while T. slept in the same room on the couch.

Sometime between June 2003 and August 2003, while Jane was visiting defendant, defendant began touching Janes chest underneath her top, her vagina underneath her panties, and her buttocks. The touching would occur at night while T. was sleeping nearby.

When defendant touched Janes chest, he made skin-to-skin contact. She described his actions as sort of squeezing her chest. Jane did not want defendant to touch her. Defendant started touching her chest soon after she got to Corona, and he touched her chest more than 10 times, although she was not sure of the exact number. However, she was sure that it happened more than 10 times.

Soon after she got to Corona, defendant also began touching her vagina with his hands under her panties, making skin-to-skin contact. Defendant touched the outside and inside of Janes vagina with his hand. The air mattresses where they slept were next to each other, and he would touch Jane as she lay on her back.

Jane also described how defendants penis touched her vagina when she would lay on top of defendant, and they would be laying stomach to stomach. She was unsure whether either of them was wearing underwear. The room was dark, and her sister was asleep. Jane testified that defendant put her on top of him, and she could feel defendants penis, like a hard lump, against her vagina. Defendant would move Jane up and down against his penis while he was holding her hips with both hands. She did not want this to happen and was just laying there blank. Afterwards, Jane would roll back over to her side, and defendant would just go to sleep. Jane stated that the above-described touching occurred once a night starting shortly after she arrived in Corona. Once when her aunt entered the kitchen and turned on the light while defendant was rubbing his penis against her, Jane just rolled over and it ended.

Jane also testified that defendant touched her buttocks underneath her panties. Defendant would grab her buttocks to move her over. He would also squeeze her buttocks while he moved her up and down on his penis as she lay on top of him.

Jane stated that the touchings happened about every night while she was visiting defendant in the summer of 2003. Defendant would start off by touching her chest, then touch her vagina and buttocks, and then place her on top of him; sometimes it would happen in a different order. However, every time defendant touched her, Janes three private areas (chest, vagina, and buttocks) got touched. The following day, defendant would act as if nothing had occurred.

When Jane was asked if defendant had ever made her touch him on his body part, Jane stated that she did not want to talk anymore. However, Jane eventually opened up and stated that defendant made her touch his penis with her hand. Defendant did something to [her] hand to get [her] hand to touch his penis. Defendant made Jane touch his penis once or twice.

During the time that defendant was touching Jane, he did not threaten her or say anything to her.

On cross-examination, Jane admitted she was angry about defendant spending more time with her sister T., since T. was a good basketball player and Jane was not. Jane opined defendant liked T. more than Jane.

Jane admitted that the first time defendant pulled her on top of him, she did not tell him to stop, and she did not yell to T. She stated that she did not tell T. what happened because she believed T. would not believe her. Jane also stated that she did not tell her grandmother because her grandmother did not care, and Jane thought it was her own fault it happened.

When Jane went back home to Oregon, she told an adult friend what defendant did to her. Her friend then told Janes mother. A week or two later Jane told a counselor at her school. The counselor called the police, and an investigation was initiated. Since then, Jane had not seen defendant, and the only time she had talked to defendant on the telephone was from the office of an Oregon state police detective.

Susan Ann Ingels, a certified sexual assault nurse examiner, examined Jane on February 2, 2004, when Jane was 13 years old, 4 feet 10 inches tall, and about 164 pounds. Jane told Ingels that she had been touched in the area of her vagina but not penetrated. Ingelss physical examination of Jane was consistent with Janes report of what happened to her.

T. testified that she and Jane flew from Oregon to California on July 10, 2003, to visit with their father (defendant) and their grandmother in Corona. They flew back to Oregon on August 9, 2003. T., Jane, and defendant slept in the living room. Jane slept on an air mattress, while T. and defendant alternated sleeping on the couch and on another air mattress.

On cross-examination, T. denied she ever slept on top of defendant or with him on the air mattress. She denied seeing her father touching Jane or seeing him sleeping on the same bed with Jane. She claimed that she was the last one to fall asleep. She admitted that she was a good basketball player and that she played basketball with defendant, but Jane did not. She also stated that Jane screamed at defendant that she hated him; she assumed Jane was jealous of T.s relationship with defendant. T. denied that defendant ever touched her (T.) inappropriately.

Oregon State Police Detective Molly Cotter interviewed Jane in January 2004 and was present for subsequent interviews. Jane told the detective that nothing happened at first, but the last two weeks of the 2003 visit, defendant touched her every single night. Jane also told the detective that when she tried to call out to T. for help, defendant would put his hand over her mouth to stop her.

On March 5, 2004, Detective Cotter arranged for Jane to place a telephone call to defendant to discuss what happened in July 2003. The tape-recorded call was played for the jury. In that call, defendant said he did not mean to touch Jane, but it was both their faults. He also said that it was a big mistake, that he was sick, and that there was a demon in him. He stated it was a sickness that goes through generation, and generation through generations, starting from a grandfather. He also told Jane that he felt real bad and ashamed for doing it, but that it was like a dream. In addition, defendant told Jane that she needed to look at her own behavior and how she learned to do such things, because she probably had lots of people touching her. However, he admitted that he should get locked up for it . . . . Defendant told Jane he did not want everyone to know she was a bad girl, claiming she was the one who initiated the actions. When he was not claiming to feel badly about what he had done and stating he should not have done it, defendant said he should not have lether do it to him. He described the events as something like a dream, where he woke up with her on top of him. He also complained that T. never did this to him when he and T. slept together or when T. lay on top of him. He explained, T. dont hump on me, rub like that. Jane told defendant that she did nothing wrong and that he was the parent.

Detective Cotter contacted Corona Police Detective Scott Currie about Janes allegations. Detective Currie interviewed defendant on March 29, 2004. The interview was tape recorded, and the audio tape was played for the jury.

In the interview, defendant described sleeping on a big air mattress with T. on one side of him and Jane on the other side of him. He stated that he woke up to find his pants half way down and Jane sliding down him. He claimed he told his mother Jane was rubbing on him, and his mother told him to sleep in separate beds. He admitted he went through the motions, the sexual motions, or the hump . . . with your clothes on, . . . the grinding with Jane. He also admitted that he had an erection. He explained that he woke up, felt Janes hand down in his pants, and she was on top of him. He pulled her up, she started to grind, and he let her do it. He denied exposing his erect penis to Jane and claimed this was the only time he reacted to her. He said that he might have rubbed his erect penis on her just a little bit, and he felt really bad afterward, even though it was her fault she had her hand in his pants or he had an erection. He also admitted that he put his hand on Janes buttocks, grabbed them, ground against her, and almost undressed her but stopped himself. He denied there was any penetration. He claimed that Jane lies and cries to be dramatic. He continually blamed Jane for his actions.

Defendant further stated that he went to church and repented. He explained that the demon must have found his weakness for sex and acted on it, because he can put T. right on top of him and nothing like that happens. He added that he did not have that problem with T. and that everybody loves T. He further said that Jane had problems because T. was popular and a star basketball player. He repeatedly denied any of this was his fault. He stated it was not his responsibility but was the result of a sickness passed from one generation to the next. He asked the detective if he could go to counseling instead of jail.

Dr. Laura Brodie, a clinical and forensic psychologist who wrote her dissertation on distinguishing childrens true allegations of sexual abuse from those which are false, testified about the Child Sexual Abuse Accommodation Syndrome (CSAA). She noted that it helps to explain how an abused child reacts to trauma differently than adults do, and therefore why such children endure abuse or speak out for different reasons than adults. She further pointed out that CSAA is not a diagnostic tool, but it is helpful in treating abused children because it explains strange behavior, changes in a story, self‑blame, or a childs concern about the impact of his or her statements on other people. CSAA is seen most often when the abuse involves a family member with a strong relationship to the child, those who are part of the childs life on a continuous basis.

The five considerations are (1) the dependency of the child, who is often helpless to escape; (2) the events that occur in secret, and the child is told to keep them a secret to avoid hurting the family; (3) the childs accommodation because he likes the abuser and is getting attention even if it is negative, together with gifts, or time with the abuser, as some form of payment; (4) disclosure years later, only when the child is safely away; and (5) recanting after the family falls apart to prevent the parent from going to jail.

In answer to a hypothetical question based on the facts of this case, Dr. Brodie testified that when a parent-child relationship is normal during the day and abusive at night, it could affect a childs willingness to disclose the abuse. Dr. Brodie also stated that it can be hard for a child to accept that disclosure of the abuse might cost her the relationship.

On cross-examination, Dr. Brodie acknowledged that there are situations involving false accusations with factors similar to those in CSAA. That is, there can be false accusations of abuse or embellishments that are prompted by an ulterior motive, in a custody case for example. There, the suggestibility of the child must be considered to ensure that reported abuse really happened and is not the result of pressure from a parent or the inability to tell the difference between truth and fiction.

Defendants mother testified on behalf of the defense. She stated that during T. and Janes visit, she never saw any inappropriate behavior between defendant and either daughter and that Jane never reported any misconduct. She also stated that Jane never complained about defendant playing favorites or not spending time with her. She claimed that Jane was a happy little girl who never got angry that summer. However, she testified about an incident in which Jane was angry about defendant not giving her money when she wanted it; Jane yelled at her father and said she would get even with him. Defendants mother also testified that Jane might tell lies. She acknowledged that defendant told her one time that Jane had been rubbing on him. However, defendant did not say anything about putting Jane on top of him or grinding his penis against her vagina or that he put his hands inside her pants and grabbed her buttocks. Defendants mother testified that she was shocked when defendant told her Jane was accusing him of child molestation.

Defendants sister also testified on behalf of the defense. She recalled the July 2003 events and testified that Jane was jealous of her fathers attention to her sister T. Jane had accused defendant of loving T. more than her (Jane). Defendants sister also stated that Jane argued with defendant about money and his not spending enough time with her. Jane never complained about defendant hurting her.

In addition, defendants sister described speaking with Detective Currie about a taped call in which defendant admitted molesting Jane. When she confronted defendant about the detectives statements, defendant said that something happened in the middle of the night when he was asleep. However, she stated that defendant did not tell her that he put Jane on top of him, rubbed his penis against her vagina, put his hand down her pants, grabbed her buttocks, had a demon in him exploiting his weaknesses for sex, or that he had a sickness that was passed down from generation to generation. She did not remember whether she told an investigator that after the allegations she had asked her daughter whether defendant had touched her.

II

DISCUSSION

A. Insufficient Evidence of Section 288, Subdivision (a) Violations

Defendant contends there was insufficient evidence to support his conviction for 16 separate counts of committing a lewd act upon a child under the age of 14 ( 288, subd. (a)). Specifically, he claims because Jane did not testify with sufficient certainty to support each of the 16 counts alleged, all 16 counts must be reversed.^[3]

When a defendant challenges the sufficiency of the evidence, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence â€‘‑ meaning, evidence that is reasonable, credible, and of solid value â€‘‑ must support each essential element of an offense. (Id. at pp. 577-578.) A judgment of conviction will not be set aside for insufficiency of the evidence unless it is clearly shown there is no basis on which the evidence can support the jurys conclusion. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326 [99 S.Ct. 2780, 61 L.Ed.2d 560]; People v. Davis (1995) 10 Cal.4th 463, 509; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even when the conviction rests primarily on circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

In assessing the sufficiency of the evidence in child molestation cases, our Supreme Court has acknowledged that such cases frequently involve difficult, even paradoxical, proof problems. (Jones, supra, 51 Cal.3d at p. 305.) In particular, children molested over a substantial period of time by an adult residing in their home may have no practical way of recollecting, reconstructing, distinguishing or identifying by specific incidents or dates all or even any such incidents. (Ibid.)

Our Supreme Court has designed an evidentiary standard to more appropriately balance defendants right to fair notice of the charges and to a reasonable opportunity to defend against those charges with the states need to ensure that resident child molesters are not immunized from substantial criminal liability merely because their victims are unable to recall precise details concerning the repeated incidents of abuse. (Jones, supra, 51 Cal.3d at pp. 305, 315-316.) Under this evidentiary standard, a child victims generic testimony may be sufficient to support a conviction for sexual abuse so long as the testimony describes: (1) the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g. lewd contact, intercourse, oral copulation or sodomy); (2) the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., twice a month or every time we went camping); and (3) the general time period in which these acts occurred (e.g., the summer before my fourth grade, or during each Sunday morning after he came to live with us), to assure the acts were committed within the applicable limitation period. (Id. at p. 316.) Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victims testimony, but are not essential to sustain a conviction. (Ibid.; see also People v. Matute (2002) 103 Cal.App.4th 1437, 1444-1445.)

As set forth above, Jones first requires that the generic testimony set forth the types of acts committed, e.g., lewd conduct, intercourse, oral copulation, etc. Jane testified that sometime in the summer of 2003 defendant began touching Janes chest underneath her top, her vagina underneath her panties, and her buttocks. When defendant touched Janes chest and vagina, he made skin-to-skin contact. She also testified that defendant touched the outside and inside of Janes vagina with his hand and put her on top of him so they were lying stomach to stomach and she could feel defendants penis, like a hard lump, against her vagina. Defendant would move her up and down against his penis while he was holding her hips with both hands, and he would grab and squeeze her buttocks. Defendant also made Jane touch his penis with her hand.

Defendant admitted that he went through the motions, i.e., the sexual motions, or the hump with your clothes on, the grinding with Jane. He also admitted that he had an erection; that he put his hand on Janes buttocks inside her clothing; that he grabbed Janes buttocks; and that he undressed Jane but stopped himself. There is nothing ambiguous in Jessicas description of the acts defendant committed and defendants admissions to Detective Currie, and therefore the testimony is sufficient under Jones as to the type of acts committed. Indeed, defendant does not contest the jurys finding that lewd touchings occurred.

Defendants primary contention is that Janes testimony as to the number of acts defendant committed was insufficient to support each of the counts charged. He claims that Janes testimony in this regards lacks sufficient certainty to support each of the counts alleged, as required by Jones. (Emphasis omitted.) Jones requires that the generic testimony describe the number of acts with sufficient certainty to support each of the counts charged, e.g., twice a month or every time we went camping.

Jane testified that defendant started touching her chest underneath her shirt soon after she got to Corona, and he touched her chest more than 10 times, although she was not sure of the exact number. In addition, she testified that soon after she arrived in Corona, defendant also began touching her vagina with his hands under her panties, making skin-to-skin contact. Jane also stated that defendant inappropriately touched her once a night. Every time defendant touched her, he touched all three of her private areas (chest, vagina, and buttocks). Jane also stated that defendant made her touch his penis once or twice. In addition, defendant essentially admitted that the acts as least occurred every night for two weeks. When Detective Currie commented that the acts defendant admitted to happened every night for the last two weeks, defendant stated that it did not happen for two weeks, but it might have for her, in her situation grinding on me, but . . . I never woke up . . . .

Janes testimony is at least as certain as the twice a month or every time we went camping approved in Jones; therefore, we find that the testimony is sufficiently certain to support the conviction on the 16 counts that defendant challenges. We agree Janes recollection of the number of acts defendant committed was at times vague. Her testimony, however, was not on the whole incredible. It was the jurys function to resolve inconsistencies and contradictions in her testimony. (See Jones, supra, 51 Cal.3d at p. 322 [noting the victims credibility is usually the true issue in child molestation cases].) On appeal, our function is limited to resolving inferences and inconsistencies in favor of the judgment. (People v. Cortes, supra, 71 Cal.App.4th at pp. 73-74.)

Finally, Jones requires that the testimony describe the general time period in which the acts occurred. Here, there is no dispute that the lewd acts took place in between June and August 2003, while Jane visited defendant in Corona. The testimony in regard to the time period is manifestly sufficient to describe the general time period in which the acts occurred.

Accordingly, viewing the evidence, as we must, in the light most favorable to respondent, we find the evidence is sufficient to support the 16 counts that defendant challenges as being supported by insufficient evidence.

B. Insufficient Evidence of Section 288, Subdivision (b) Violations

Defendant next argues the trial court erred in denying his motion for new trial because there was insufficient evidence of force to support his conviction on counts 17 through 20 for violating section 288, subdivision (b)(1).

In his motion for new trial, defendant asked the court to grant a new trial on the ground that insufficient evidence of force was adduced at trial. The trial court denied the motion, stating: I clearly remember the facts of the case. And you touched on a very important issue of legislative drafting. The (a) count requires a mere touching, and a mere touching is not force. Then the question is what is force and it is the common definition. Or lets rephrase that, it is the common definition if youre a semanticist and skilled in wording smithing. [] Court of Appeals has done just that. And there ha[ve] been a number of cases that say just the picking up a person and moving from one position to another is the force required by the statute. [T]he jury did their job appropriately. And the motion for new trial is denied.

In considering a motion for a new trial made on the ground of insufficiency of the evidence to support the verdict, the trial court independently weighs the evidence, in effect acting as a 13th juror. (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) The court must review the evidence independently, considering the proper weight to be afforded to the evidence, and then deciding whether there is sufficient credible evidence to support the verdict. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 364.)

The obligation to weigh the evidence independently includes an obligation to judge the credibility of witnesses independently. However, the obligation to weigh the evidence independently does not mean that the court should disregard the verdict or decide what result it would have reached if the case had been tried without a jury . . . . (People v. Robarge (1953) 41 Cal.2d 628, 633.) Therefore, while the court has broad discretion whether to grant a new trial, it is still guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] (People v. Davis (1995) 10 Cal.4th 463, 524.) However, although the trial court is to be guided by a presumption in favor of the correctness of the jurys verdict, this means only that the court may not arbitrarily reject a verdict that is supported by substantial evidence. If the court finds that the evidence is not sufficiently probative to sustain the verdict, it must order a new trial. (Robarge,at p. 633.)

The trial court has broad discretion in determining whether the evidence has sufficient probative value to sustain the verdict (People v. Robarge, supra, 41 Cal.2d at p. 633), and its order will not be reversed on appeal absent a manifest and unmistakable abuse of that discretion. (People v. Lewis, supra, 26 Cal.4th at p. 364.) The trial courts factual findings, express or implied, made on a motion for new trial will be upheld if supported by substantial evidence. (People v. Drake (1992) 6 Cal.App.4th 92, 97.) The order will be reversed only if it can be said as a matter of law that there is no substantial evidence to support a judgment contrary to the verdict. (People v. Sheran (1957) 49 Cal.2d 101, 109.)

Defendant contends the trial court erred in denying his motion for new trial because there was no evidence adduced at trial to show defendant exerted force in committing the lewd acts on Jane.

In the first case to address the meaning of force in section 288, subdivision (b), People v. Cicero (1984) 157 Cal.App.3d 465, the Court of Appeal held, [I]t is incumbent on 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. [Citation.] In the instant case, that requirement is doubly met: defendants acts of picking the girls up and carrying them along were applications of physical forcesubstantially 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] been undertaken against a victims will. [] . . . [F]orce should be defined as a method of obtaining a childs participation in a lewd act in violation of a childs will . . . . (Id. at pp. 474-476, first italics added.)

In the years since Cicero, force has been found where the defendant held an eight year olds hand to his penis while moving the hand to masturbate himself and slightly shoving the victims back while having the latter orally copulate him. (People v. Pitmon (1985) 170 Cal.App.3d 38, 48; accord, People v. Neel (1993) 19 Cal.App.4th 1784, 1786.) In People v. Mendibles (1988) 199 Cal.App.3d 1277, 1307, force was found when the victims tried to get away from the defendant but were pulled back and their heads were pulled forward so they could orally copulate him. (Accord, Neel, at pp. 1785-1786.) In People v. Bergschneider (1989) 211 Cal.App.3d 144, 153-154, Division One of this court found force when the defendant pushed away the hands of the slightly menatlly 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 defendants head away while he was orally copulating her. In People v. Babcock (1993) 14 Cal.App.4th 383, the defendant took the seven-year-old victims hand and made [her] touch him . . . and after the eight-year-old victim said no to the defendants request that she touch his penis, he grabbed her hand, put it on his penis, and pulled it back when she tried to pull it away. (Id. at p. 385.) The Court of Appeal upheld the jurys finding of force. (Id. at p. 388.)

In one of the several cases upon which defendant relies, People v. Schultz (1992) 2 Cal.App.4th 999, the defendant grabbed the victims arm after waking her and tried to get her off her bed. She got up and ran to a corner of her room. He grabbed her and held her arm and touched her breasts and vagina as she screamed and cried. The Court of Appeal concluded that the modicum of holding and . . . restraining here was insufficient force [s]ince ordinary lewd [and lascivious] touching often involves some additional physical contact . . . . (Id. at pp. 1003-1004.) However, the appellate court went on to uphold the conviction, concluding that duress had been demonstrated, thus rendering its comments about the force element of section 288, subdivision (b) dicta. In the other case, People v. Senior (1992) 3 Cal.App.4th 765, the same justice who authored Schultz concluded that there was no force where the victim pulled away from the defendant, but he pulled her back or held her in place, quoting the language used in that earlier opinion and adding, There was no evidence here of any struggle, however brief. (Senior, at p. 774.) However, as in Schultz, the appellate court concluded that duress had been shown and upheld the convictions, again rendering its comments about the force element of section 288, subdivision (b) dicta. (Senior, at pp. 775-776.)

The Babcock court found: This case is virtually indistinguishable from People v. Pitmon, supra, 170 Cal.App.3d 38. In Pitmon, the defendant grabbed the eight-year-old victims hand, placed it on his own genitals, and rubbed himself with the victims hand. [Citation.] On appeal, the defendant argued there was insufficient evidence to sustain a finding of force. [Citation.] The court rejected this contention, holding [t]here can be little doubt that [the] defendants manipulation of [the victims] 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 victims] hand throughout this act. [Citation.] Similarly, in this case, the evidence demonstrates [the] defendant grabbed Autumns and Rachels hands and forced them to touch his genitals. [] . . . [] We decline [the] defendants 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] defendants 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 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 defendants crotch. (People v. Babcock, supra, 14 Cal.App.4th at pp. 386, 388, fn. omitted.)

The court in Neel agreed with Babcock in declining to follow Schulz and Senior, adding the following to Babcocks reasoning: 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. A defendant may fondle a childs genitals without having to grab the child by the arm and hold the crying victim in order to accomplish the act. Likewise, an assailant may achieve oral copulation without having to grab the victims head to prevent the victim from resisting. Simply stated, such force is different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victims consent. (People v. Neel, supra, 19 Cal.App.4th at p. 1790.)

Finally, two years after Schultz and Senior, in People v. Bolander (1994) 23 Cal.App.4th 155, the Sixth District pulled back from the Schultz and Senior dicta. There, it found force where the defendant prevented the victim from pulling his shorts back up, bent the victim over, and pulled the victim toward him in order to sodomize him. The Sixth District noted that the language in its earlier cases was dictum, and it disagreed with that language. (Bolander, at pp. 159-161.) The court specifically stated: [I]n light of convincing criticisms set forth in Babcock and Neel, we respectfully disagree with the interpretation of the force requirement of 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 . . . 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.)

Defendant argues that he used no force in committing the lewd acts. Specifically, he argues [t]here is no evidence of resistance or protest on [Janes] part, or of his physically manipulating Janes hands against her will or restraining her. Defendants argument is unmeritorious. As the case law above shows, there is no need to show physical harm, resistance, restraint or constraint, or protest to meet the force requirement of section 288, subdivision (b). For the reasons set out in Babcock, Neel, and Bolander, we see no reason to resurrect the standard on which defendants argument is predicated. The jury could treat the evidence as showing that defendants initial touching of Janes buttocks went beyond the tactile contact necessary for achieving sexual gratification. The grabbing could be construed as intended to hold Jane in place on top of him as he moved her up and down against his own erection and thus prevent her escape. The jury could also infer that defendant used force when defendant placed Jane, who was about 164 pounds, on top of him, as well as when defendant once or twice did something to Janes hands to get her to touch his penis.

There is more than ample substantial evidence supporting the jurys conclusions that defendant used force in order to accomplish the lewd acts without the victims consent on counts 17 through 20.^[4]The trial court therefore properly denied his motion for new trial.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

McKINSTER

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] Janes mother and father lived together until she was two or three years old, when her mother took her and her two siblings to Oregon. She and her sister T., who was about a year older than Jane, visited their father every summer. At the time of trial, Jane lived in Oregon with a foster family. Her sister lived in a different foster home, while her younger brother resided with his stepfather.

^[3] Under counts 1 through 16, defendant was convicted of committing lewd acts with Jane, a violation of section 288, subdivision (a), during the period of June 2003 to August 2003.

Section 288, subdivision (a) provides as follows: 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, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

^[4] To the extent defendant argues the prosecutor committed misconduct during closing argument when she insisted that Jane had been forced to masturbate defendant despite no such fact in evidence, we find defendant waived this issue. Defendant did not make a timely and specific objection at trial, nor did he seek a curative admonition. To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. [Citations.] [Citation.] (People v. Farnam (2002) 28 Cal.4th 107, 167.)

Moreover, other than the passing reference in his opening brief, defendant fails to argue on appeal he is entitled to any relief based on the alleged prosecutorial misconduct or support his position with any citation or authority. [E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.] [Citations.] (People v. Stanley (1995) 10 Cal.4th 764, 793.)