Sufficiency of Evidence (Sex Offenses)
Category > Sufficiency of Evidence (Sex Offenses)
Updated 3/7/2024Evidence that defendant touched the victims “two or three times” was insufficient to support three convictions. Defendant was convicted of three counts each of lewd conduct involving two victims. The victims testified that they were touched “two or there times” and “two to three times.” Evidence supported only two convictions as to each victim.id: 26378
Updated 2/23/2024Conviction for sex with a child 10 years old or younger was reversed absent independent evidence of the corpus delicti.There was evidence independent of defendant’s confession that he committed three acts of sexual abuse against his daughter. However, there was insufficient evidence to support the charge of a sex act with a child 10 years old or younger under Penal Code section 288.7, subd. (b). There was no evidence other than defendant’s statement indicating that he engaged in a sex act with the minor before her 11th birthday. The prosecution did not present evidence sufficient to satisfy the corpus delicti rule as to that count, and the conviction was reversed. id: 26906
Updated 2/23/2024The evidence didn’t support a conviction for transmitting harmful material to a minor where defendant sent the material to an adult posing as a minor.The evidence was insufficient to support defendant’s convictions under Penal Code section 313.1(a) for transmitting harmful matter to a minor, where the record shows he sent the material to an adult who was posing as a minor. He could have been convicted of an attempt but that wasn’t charged.id: 26921
Updated 2/4/2024Evidence was insufficient to support a conviction for molesting or annoying a child where the defendant with a history of child molest wrote frequent emails to a family friend. Defendant was convicted of multiple counts of child molestation in the 1980's and was surgically castrated in 2001 and released in 2007. In 2018, he was convicted of several counts of annoying or molesting minors and related offenses. The evidence was insufficient to support the conviction as to two counts of annoying or molesting Steven under Penal Code section 647.6. Defendant was a friend of Steven’s family and something of a “father figure” or “older brother” to the boy. The fact that he wrote Steven frequent emails did not satisfy section 647.6, and the prosecution was wrong in adding that defendant’s history could be considered. id: 27345
Defendant’s rape convictions were reversed where the evidence was insufficient to support a conviction on the factual theory the prosecution elected to argue.Evidence showed that defendant raped the victim in the house, but not in the vacant apartment. The prosecution argued only that he raped the victim in the apartment. When the prosecution has elected to proceed on one factual theory, and when that election has obviated the need for a unanimity instruction, the court is bound by the prosecution’s election. Here, because the prosecution’s elected theory was not supported by substantial evidence, defendant’s forcible rape and rape in concert convictions were reversed.id: 25238
Evidence that defendant kissed the boy on the top of his head and hugged the other before bed was insufficient to support his convictions for annoying a child. Defendant was convicted of several counts of annoying or molesting a child under Penal Code section 647.6, subd.(a). However, the evidence was insufficient to support two of the counts because there was no evidence of objectively irritating behavior. Defendant coached the boys in soccer and they spent many nights at his house. The evidence that he hugged one boy and gave the other a brief goodnight kiss on the top of head were not objectively disturbing actions. id: 24476
The rape conviction was reversed where the evidence was insufficient to support it under the theory the prosecution elected even though evidence supported the conviction under a different theory.The prosecution presented evidence that the rape occurred both in the bedroom and in a vacant apartment. During argument, the prosecutor took the position that the rape occurred in the vacant apartment. But there was insufficient evidence of force in that incident. When the prosecution has elected to proceed on one theory - thus obviating the need for a unanimity instruction, the reviewing court is bound by that election. The rape conviction was reversed for insufficient evidence and a retrial was barred by double jeopardy principles.id: 24290
The evidence did not support the convictions for penetrating an unconscious person where the victim was not unconscious but merely laying on her back and unaware. Defendant was convicted of sexual penetration of an unconscious person and oral copulation of an unconscious person. The victim was laying face down when defendant inserted a finger in her vagina, and she told him to stop. He thereafter put his mouth on her vagina and she again protested. The evidence was insufficient to support either conviction because it did not show the victim to be unconscious. That she was unaware that the attack was coming did not establish a lack of consciousness.id: 22621
The record did not show the television clips showing a naked lady dancing or two people having sex constituted “harmful matter” for the purposes of section 228.2, subd.(a) . Defendant was convicted of sending or exhibiting harmful matter to a minor in violation of Penal Code section 228.2, subd.(a). The victim was a 16 year-old friend of defendant’s daughter. The incident happened during a sleepover at defendant’s house. After his daughter went to bed, he and his daughter’s friend watched television and saw two scenes involving pornography. The first showed a naked woman during which they watched for a few minutes and the second (which they viewed for 45 minutes) showed a man and a woman having sex, although it only showed their upper bodies and from a side angle. The victim’s testimony was insufficient to show the television segments constituted “harmful material” as defined in section 313. The conviction of violating section 288.2 was reversed.id: 20892
Burglary finding could not be sustained on the theory the minor entered the residence with the intent to aid and abet her own statutory rape.The juvenile court found the minor had committed a burglary by entering a residence with the intent of aiding and abetting her own statutory rape. However, the minor was the intended and protected victim of the predicate felony used to support the burglary finding. As such, she could not harbor the culpable state of mind necessary to commit the burglary, because under any theory she could not commit the crime of her own statutory rape.id: 9608
Soliciting minors to engage in lewd conduct does not constitute a violation of section 653f, subd.(c).Defendant's conduct in soliciting minors to engage in lewd conduct with him did not constitute a violation of Penal Code section 653f, subd.(c), which makes it a crime to "solicit another to commit... any violation of section 288." Asking a minor to engage in lewd conduct with the person making the request does not fall within the plain meaning of the statute because the minor would not, by and acceding to the request, violate section 288.id: 16772
Section 288 requires a sexual touching and mere touching with lewd intent is insufficient.The trial court erred in instructing the jury that a lewd or lascivious act was any touching of the body of a child with the specific intent to arouse or gratify the sexual desires of either party. Penal Code section 288 mandates the commission of a lewd or lascivious act upon or with the body of the victim, separate and apart from the intent of the perpetrator. However, the error was harmless where the four acts alleged involved genital touching.id: 10055
Defendant could not be convicted of both the greater and lesser offenses in the same count.The jury returned guilty verdicts on counts 2 through 11 for both the greater offense of forcible lewd conduct with a minor under Penal Code section 288, subd.(b), and the lesser offense of nonforcible lewd conduct under section 288, subd, (a), However, the convictions of the lesser offenses were reversed as a person cannot be convicted of both the lesser and greater offenses in an individual count.id: 18477
There was insufficient evidence to support a finding of duress in the forcible lewd act and attempted rape counts where the victim was scared but the defendant made no direct or implied threats.The forcible lewd act count under Penal Code section 288, subd.(b), and the attempted rape count under section 261, subd.(a)(2), were premised solely on the theory of "duress." However, the evidence was insufficient to support a finding of duress. The defendant lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts. While the victim feared defendant during the molest, there was no evidence that he made any direct or implied threat in accomplishing the acts.id: 16681
Indecent exposure under section 314 requires that a defendant display his bare genitals to the victim.Defendant exposed himself to a motel clerk wearing flesh-colored underpants and a lace bra. He was convicted of indecent exposure under Penal Code section 314, subdivision 1, on the theory that partial nudity without genital exposure met the exposure element of the statute. However, the phrase "exposes his person" under section 314 means a display of defendant's entirely unclothed body, including the bare genitals.id: 16760
High school teacher did not unlawfully restrain his student for purposes of sexual battery as he kissed and touched her prior to her telling him to stop.Appellant was a high school teacher who went running with a female student who may have been infatuated with him. After the run he kissed her, touched her breasts and grabbed her buttocks. Her feelings then changed and she told him to stop and pushed him away. Evidence did not support the sexual battery conviction pursuant to Penal Code section 243.3 for the conduct prior to her pushing him away as there was no evidence of lack of consent or that her submission was compelled by appellant's words, acts or authority. However, evidence did support the sexual battery conviction on a separate count where appellant entered the wrestling room with the victim, placed the mats up against the door and then touched her breasts. His placing of the mats up against the door constituted "unlawful restraint" under section 243.3.id: 10048
Evidence did not support conviction for rape by foreign object of an unconscious victim during a massage where the victim was conscious and resisted when defendant crossed the boundaries.Defendant was convicted of rape by foreign object of an unconscious person (Penal Code section 289(d)(3) and oral copulation of an unconscious person (section 288a,(f)(3), based on acts performed on the victim during a paid massage. The prosecution's theory was that the victim was unconscious because of defendant's fraud in fact where she consented to a massage but was unconscious of the nature of the sex acts. However, the record showed the victim was fully aware of the defendant's acts, and when he transgressed the appropriate boundaries of the massage she told him to stop and resisted. The convictions were reversed since the evidence showed the victim was not unconscious at the time of the improper conduct.id: 19902
Defendant's knowledge that victim consumed alcohol does not satisfy the element of privity for rape accomplished by administration of alcoholPenal Code section 261, subdivision (a)(3) - rape accomplished by administration of alcohol - described a crime where the victim is prevented from resisting an act of sexual intercourse, by any intoxicating or anesthetic substance or any controlled substance, administered by <U>or with the privity of the accused</U>. Defendant argued the trial court erred in instructing with a modified version of CALJIC 10.02 that the alcohol could be administered with the perpetrator's knowledge. Actual knowledge does not equate with the statutory element of privity. The defendant must administer the enumerated substance to the victim's body by injection, inhalation, ingestion or other means. The error was prejudicial where the jury could have found appellant guilty based solely on a finding that appellant knew the victim consumed alcohol.id: 10025
Defendant's instructing the victim to touch, without any actual touching, is insufficient to constitute a lewd or lascivious act.At defendant's child molest trial the jury was instructed that: Where a person instructs a child under the age of 14 to touch such person and that person has the specific intent to arouse, appeal to or gratify the sexual desires of either party, such person may be guilty of a lewd or lascivious act in violation of section 288(a). No touching of the person-child by the person is required. The instruction is flawed in that it suggests the mere instruction to touch, without any actual touching, is sufficient to constitute a lewd or lascivious act. Such conduct at most would constitute an attempted violation of section 288(a). However, the error was harmless under the Chapman standard where the victim testified she touched defendant's penis at defendant's instigation.id: 10024
An innocuous touching such as the touching of a shoulder, even with the requisite intent, will not support a conviction under section 288.Defendant was convicted of committing a lewd act on a child under 14 (Penal Code section 288, subdivision (a)). It was alleged that he had the young girl touch his shoulder and then his genitals. Giving of CALJIC 10.41 was erroneous in the instant case because an innocuous touching, such as the touching of defendant's shoulder will not suffice for purposes of section 288, even with the requisite specific intent. However, the error was harmless beyond a reasonable doubt where the prosecutor relied exclusively on the touching of the genitals as the lewd act forming the basis of the charge.id: 10018
Evidence was insufficient to show intent to arouse under section 288, subdivision (a) where 11 year-old boy touched the breasts of 12 and 13 year-old girls.An 11 year-old boy was found to have committed four counts of lewd conduct on a minor in violation of Penal Code section 288, subdivision (a). Contrary to defendant's claim, the statute can be violated even if the perpetrator is younger than the victim. Moreover, evidence supported the finding of knowledge of the wrongfulness of his action where his mother had told him it was wrong to touch girls in certain places, the victims declined or resisted his advances, and he resorted to extorting one victim into compliance. However, the evidence did not show an intent to satisfy his sexual desires. There was no evidence that he had reached puberty, and his action in touching the breasts of the 12 and 13 year old victims was more consistent with an intent to annoy and obtain attention than with sexual arousal.id: 15401
The evidence was insufficient to show three molest offenses occurred within three months for purposes of section 288.5.Defendant was convicted of continuous sexual abuse of a child under 14 pursuant to Penal Code section 288.5. However, the evidence did not support that conviction because there was no substantial evidence showing that the assaults occurred within the relevant statutory time periods. Although there was ample evidence that at least three sexual qualifying offenses occurred during the charging period, there was no substantial evidence that at least three months had elapsed between the first and third offense committed against the victim as a 13 year old.id: 19840
Evidence did not support sexual battery conviction where defendant forced the victim's hand to touch his penis.There was insufficient evidence to support defendant's sexual battery under Penal Code section 243.4, subd.(a), where the defendant forced the victim's hand to touch his penis. An "intimate part" for purposes of this section does not include the victim's hand. Moreover, it is the perpetrator who must touch the victim's intimate part, not the other way around.id: 16363
Evidence did not support lewd acts convictions where victim was unable to describe the specific incidents or dates.Defendant was convicted of several counts of lewd and lascivious acts upon children. Evidence supported conviction on counts where the victim testified to three specific acts of molestation; one when he moved in with defendant, another on a camping trip on Memorial Day weekend, and the last incident two days before he moved out of defendant's house. The evidence was insufficient to support conviction on the counts that the victim was unable to describe the specific incidents or dates to enable the jury to differentiate among the various incidents.id: 16419
Updated 6/1/2024Evidence of victim’s intoxication was sufficient to trigger the relaxed force standard and supported the conviction of kidnapping to commit rape.Defendant was convicted of kidnapping to commit rape. The trial court did not err by instructing that the force element would be met with evidence of deception. Evidence that the victim’s intoxication level impaired her judgment was sufficient to support the conviction.id: 28267
Updated 6/1/2024Toxicology and witness testimony established the victim was unconscious for purposes of section 261(a)(3).Defendant argued the evidence was insufficient to show the victim’s intoxication level rendered her incapable of consenting to have sex. However, the evidence showed she had a blood alcohol content of .18, and she had alprazolam as well, which would have compounded the alcohol’s effects. Defendant acknowledged that she was intoxicated when they walked to her car and she was passing out.id: 28266
Updated 2/26/2024Evidence supported sexual battery by fraud conviction where defendant tricked the victim into believing that massaging her breasts was part of therapy.Evidence supported defendant’s conviction for sexual battery by fraud under Penal Code section 243.4(c), where as a psychologist at a mental health clinic on a military base, he touched the victim’s breast claiming it to be part of an “exposure therapy.”id: 27257
Updated 2/26/2024Even where the victim could not remember the incident due to intoxication, evidence of injuries to his bladder and rectum along with defendant’s admission to inserting a broom handle into the victim’s rectum was sufficient to bind him over for forcible sexual penetration.Preliminary hearing testimony showed that defendant and the victim has been drinking before the incident, and the victim had no memory of what happened to him. After the attack, the victim had a broken nose, ruptured bladder and torn rectum, and he was required to use a colostomy bag for months afterward. The trial court granted defendant’s Penal Code section 995 motion finding there was no evidence that the victim’s will was overcome by physical force. However, there was sufficient cause to hold defendant to answer for the charge of forcible sexual penetration.id: 26445
Updated 2/26/2024Evidence supported the forcible sexual assault where defendant pulled his resisting 13 year-old daughter back to him for oral copulation as she resisted him.There was sufficient evidence of force to support the forcible sexual penetration conviction where defendant persisted in pulling his 13 year-old daughter back to him for oral copulation as she continually tried to push him away.id: 26495
Updated 2/22/2024Evidence supported the finding of duress where a teacher at a military academy molested a 14 year-old cadet who was powerless to stop the abuse. Defendant was a teacher and program director at the Army-Navy Academy, a military boarding school. He was convicted of molesting a 14 year-old cadet under duress. Evidence supported the finding of duress. Defendant was an authority figure who established himself as a father figure. The victim explained that because he was in a lockdown military school, and was captive in a sense, he had nowhere to go. id: 27075
Updated 2/3/2024Lack of actual consent is not a required element of rape of an intoxicated person. Defendant argued the trial court erred by failing to instruct that to prove rape of an intoxicated person, the prosecution had to prove the victim did not consent. However, the prosecution did not have to prove the victim did not give consent, it had to prove she could not consent due to the intoxication. Lack of actual consent is not a required element of rape of an intoxicated person. id: 27747
Updated 1/31/2024Evidence supported the finding of restraint for sexual battery purposes where the massage therapist assaulted women during a massage.Defendant, a massage therapist, was convicted of two counts of sexual battery, under Penal Code section 243.4(a). Contrary to his claim, there was sufficient evidence of restraint to support the conviction. While the women agreed to the exertion of physical restraint in the context of a massage, they did not agree to being physically assaulted in the process. Moreover, at the time of one assault, the victim was physically pinned to the table as the defendant was pressing his body against hers.id: 28074
Touching a five year-old’s teeth while she slept was a lewd act for purposes of Penal Code section 190.3, factor (b) evidence.The trial court did not err in allowing as aggravating penalty phase evidence that defendant had previously committed a lewd act with his five year-old niece, as he touched her teeth with his fingers while she was sleeping. Also, there was no error by labeling the written instruction as “a lewd act on a child.”id: 26074
Evidence supported that defendant acted with a lewd intent when pushing a child on a swing given that he touched other children improperly under similar circumstances.Defendant argued there was insufficient evidence to support his lewd act conviction against Jan Doe 2 because the testimony regarding the touching of her private parts was vague, and pushing a child on a swing is innocent and commonplace. However, the evidence established the touchings were done with a lewd intent given that he touched her improperly on another occasion, he threatened her, and touched others with a sexual intent under similar circumstances. id: 25951
Defendant was properly convicted of digital penetration by artifice or concealment where he snuck into bed and penetrated his friend’s unconscious wife.Defendant, an invited guest, knowing his friend was asleep in the living room, entered a bed where his friend’s wife was asleep and digitally penetrated her vagina without her knowing consent but without resistance. He argued the evidence didn’t support his conviction for sexual penetration by artifice, pretense or concealment under Penal Code section 289, subd.(f). However, the jury could find concealment due to defendant’s multiple acts to refrain from disclosing his identity.id: 25811
The sexual penetration element of sodomy requires penetration past the buttock and into the perianal area, but does not require penetration beyond the folds or anal margin.Defendant argued there was insufficient evidence of anal penetration to support his conviction for sodomy by force because the victim never testified that he put his penis inside her anus or rectum, and while there was evidence of trauma to the perianal area there was no injury to the anus itself. However, penetration beyond the buttocks and into the perianal folds is sufficient to establish the requisite penetration - namely, sexual penetration of the anal opening.id: 25208
The trial court did not err by refusing to instruct that simple battery is a lesser included offense of lewd conduct by a caretaker.Defendant was convicted of committing a lewd act on a dependant adult by a caretaker in violation of Penal Code section 288, subd. (c)(2). The trial court did not err by refusing to instruct on simple battery (section 242) as a lesser included offense because lewd conduct does not require a harmful or offensive touching.id: 24952
Evidence showed that defendant was motivated by an interest in sex for purposes of section 288.4(b) when he reinitiated contact with the 15 year old and pursued a sexual rendezvous.Defendant was convicted of violating Penal Code section 288.4, subd.(b), which prohibits an adult from arranging a meeting with a minor for the purpose of engaging in lewd activity. The provision requires that the “motivated by” element of the offense requires that the sexual motivation be a substantial factor in the commission of the proscribed conduct. Substantial evidence supported that element where defendant reinitiated contact with “Maria” (the fictitious person created by the police) after learning that she was 15 and continued to pursue a sexual rendezvous. The trial court did not err by failing to instruct sua sponte on the “motivated by” element.id: 24843
There was sufficient evidence of force to support the aggravated sexual assault of a child where defendant overcame the scared victim’s will by putting her in an uncomfortable position and penetrating her. Evidence supported the finding that defendant forcibly molested his five year-old daughter. He took her to the bathroom, lifted her onto the sink, positioned her facing the mirror and penetrated her. She was scared the entire time. Evidence was sufficient to show defendant used force to overcome the victim’s will.id: 25371
Evidence of duress was shown by defendant’s ongoing violence and threats against his young daughter and it didn’t matter that she did not resist.The evidence of duress was sufficient to support defendant’s conviction for the aggravated sexual assault of his young daughter given their relationship, his ongoing violent conduct and threats, and his warning that the family would be jeopardized if she reported him. It did not matter that she didn’t resist his aggressive acts.id: 25372
The chiropractor was properly convicted of sexual penetration by fraudulent misrepresentation even though the victim did not believe he was acting for professional purposes at the time of the act. Defendant, a chiropractor, was convicted of sexual penetration by fraudulent misrepresentation of professional purpose in violation of Penal Code section 289, subd.(d)(4). The evidence was sufficient to support his conviction even though the victim protested and did not believe defendant was acting for professional purposes at the time of the act. The victim’s misgivings do not exonerate a defendant under section 289, subd.(d)(4). id: 25139
It was not necessary that each charged act of molest be linked to a particular specific one-year period alleged in the information.Defendant was convicted of 16 counts of forcible lewd acts on a child. He argued the convictions were not supported by substantial evidence because the evidence at trial did not link each act of abuse to a particular one of the specific one-year periods alleged in the amended information. However, it was not necessary for the prosecution to prove that specific charged acts occurred during each of the one-year periods alleged in the information since the information alleged only that the occurred “on or about” each of those periods. id: 24736
While there was no direct evidence of penetration other than defendant’s statement, the corpus delicti was established by circumstantial evidence including statements of the young victim and a witness.Defendant argued the evidence was insufficient to establish the corpus delicti of sexual penetration. While the only direct evidence of the offense was defendant’s admission that he touched the young victim improperly while giving her a piggy back ride, there was circumstantial evidence including claims by another girl that defendant touched her vagina, and a young witness said defendant was on top of the victim on the bed moving his hips up and down, and when the victim told him to stop he responded that she should just go with it. This was enough to establish the corpus delicti.id: 24630
Sexual battery applies to a defendant who gropes a woman who is unable to resist due to intoxication. Defendant argued that reversal of his misdemeanor sexual assault battery count was required because there is no crime of sexual battery of an intoxicated or unconscious woman. He was convicted based on evidence that he had his hand on the drunken woman’s breast as he and another man transported her from the hotel bar to a room where she would spend the night. Contrary to defendant’s claim, section 243.4 applies to sexual groping of a victim who is unable to resist due to intoxication. id: 21956
Defendant’s act of squeezing the buttocks of the 13 year-old victim demonstrated an intent to obtain sexual arousal. Defendant argued the evidence was insufficient to show that he touched the 13 year-old victim with the intent of obtaining sexual arousal. However, the evidence supported the Penal Code section 288, subd.(a) conviction where defendant touched the victim on an intimate part of her body (the buttocks) in a manner most naturally considered sexual (squeezing) and the jury was informed he had a propensity for touching women in this matter.id: 24285
Evidence supported the convictions of sex with a person unable to give consent where the bus driver defendant had been having sex with a woman with an IQ of 37.Defendant was a bus driver for a nonprofit agency that provided work programs for people with disabilities. He was convicted of sex acts with a person incapable of giving consent. Evidence showed the 49 year-old victim was incapable of giving consent. She had the mental age of a three or four year-old (37 IQ), was partially blind, could not read, write or drive. While she had “feelings like any other woman” she became uncomfortable when seeing sex on TV.id: 24164
Evidence supported the rape of an intoxicated or unconscious person convictions where the victim was falling down drunk a couple of hours before the intercourse. Defendant argued the evidence was insufficient to support his convictions for the rape of an intoxicated or unconscious victim because there was no evidence of her condition at 5:30 a.m, the time the intercourse occurred. However, the evidence showed she was “totally wasted” leaving the nightclub at 2:00 a.m., had trouble walking into her hotel thereafter, and fell out of bed and remained on the floor. The evidence shows defendant knew or should have known the victim was incapable of resisting due to her drunkenness. id: 24132
Defendant who watched her boyfriend molest her daughter was properly convicted as an aider and abettor of continuous sexual abuse of a child. Defendant knew that her boyfriend was molesting her daughter but she did nothing to protect her child. She was properly convicted of continuous sexual abuse as an aider and abettor.id: 23323
The force needed to commit aggravated sodomy under section 286(c)(2) need not be greater than the force used to engage in the act.Defendant argued the evidence did not support his conviction of forcible sodomy because that offense requires evidence that the force used was greater than that necessary to accomplish the sex act itself. However, the prosecutor was only required to prove the act of sodomy was accomplished by enough force to overcome the victim’s will. That was established here where the 290 pound man positioned himself on top of the nine year-old girl and refused to stop when she told him she was in pain.id: 22656
Evidence supported the forcible lewd acts convictions where the larger adult defendant was home alone with small children and pinned them down while performing lewd acts.Evidence supported defendant’s convictions of forcible lewd acts against two children, ages five and 10 years old, where he was alone in the house with the children, was larger and pinned them down by laying on top of them. The jurors could also find duress where a child would have no means of calling for help in that situation.id: 22632
Oral copulation does not require penetration or ejaculation.Defendant argued the evidence was insufficient to support the oral copulation conviction or the special circumstance finding that the murder occurred during oral copulation because mere contact between a mouth and a penis does not constitute oral copulation. However, the trial court properly instructed that any contact, however slight, between the mouth of one person and the sexual organ of another constitutes oral copulation. Proof of ejaculation is not required.id: 22498
Evidence supported the finding that the rape victim was unconscious (rather than merely drunk) where defendant told police she was “out cold” during the sex. Defendant argued the evidence was insufficient to support his conviction for the rape of an unconscious victim (Penal Code section 261, subd.(a)(4)) because the victim was drunk but not unconscious. However, there was sufficient evidence to support the conviction including his statements to police that she was “out cold” during the sex and that she never told him she wanted to have sex. The victim also testified that she had no memory of the event and never consented to have sex. id: 22479
Evidence supported the finding that the sexual assault victim who suffered from cerebral palsy resulting in communication difficulties and physical disabilities was mentally incapable of giving consent.Defendant was convicted of committing several sex offenses upon a person physically or mentally incapable of giving consent. Substantial evidence supported the jury’s findings that the 15 year-old victim who suffered from cerebral palsy resulting in severe communication difficulties combined with physical disabilities, was mentally incapable of consenting to the sexual offenses committed upon her by the defendant.id: 22448
Contradictions and inconsistencies in witness testimony did not render the evidence “inherently improbable.” Defendant was convicted of several counts of child molestation involving two victims. He argued the evidence was insufficient to support the convictions because the testimony of the victims and his wife was “inherently improbable.” However, that standard requires that the challenged evidence be “unbelievable per se.” Here, defendant’s claim was based on a series of comparisons, contradictions and inferences which amounted to an attack on witness credibility. This did not meet the “inherently improbable” standard.id: 21889
Evidence supported the conviction of annoying or molesting a child where defendant was found masturbating at a school even though he did know a specific victim in advance.Defendant argued the evidence was insufficient to support his conviction for annoying or molesting a child under Penal Code section 647.6, subd. (a) because there was no evidence that he directed his criminal conduct toward a specific child as required by the statute. However, evidence that defendant masturbated in his car while parked in front of a high school as school was getting out, supported the conviction even absent evidence that a specific victim was known by defendant before the incident.id: 21813
Evidence supported the lewd act convictions where defendant was not present and did not see the girls touching themselves while putting on the clothing he asked them to wear. Defendant argued the trial court erred in denying his motion for acquittal of two counts of committing lewd acts against minors under Penal Code section 288, subd.(a). The touching occurred when defendant was playing the "money game" with the girls who removed their clothing and changed into the clothing defendant gave them to wear while he was in another room. Defendant was not present and did not observe the girls touch themselves while changing clothes but the evidence showed he was exploiting the girls by directing them to change into provocative clothing before playing the money game.id: 21636
Section 311.4, subd.(c) does not require evidence that a parent personally filmed his daughter using a sex prop that he provided her.Defendant provided his daughter with a dildo and encouraged her to participate in the production of a digital representation of sexual conduct over the internet, which she did. He argued that he was wrongly convicted of violating Penal Code section 311.4, subd.(c) because that provision requires evidence that he personally filmed his daughter using the sexual prop. However, the evidence supported the conviction as a parent violates the statute by knowingly permitting a minor to engage in or assist others in posing or modeling for purposes of preparing representations of sexual conduct.id: 21644
Corpus delicti rule was satisfied where, in addition to defendant's statements, the victim said defendant touched her many times.Defendant argued the corpus delicti rule prohibited his prosecution for several counts of child molest because the only evidence to support the counts was his own testimony. However, the victim testified defendant molested her more that once but less than 50 times, and the police officer testified the victim said defendant had touched her "on many occasions." This satisfied the corpus delicti rule. id: 21643
Evidence supported the rape convictions as there was no evidence showing the prostitute victims consented to having sex with a knife held to their throat and they did not have to communicate their withdrawal of consent.Defendant was convicted of four counts of forcible rape of prostitutes. He argued the women consented to the sex in exchange for money, and although each objected to his use of a knife, the knife use did not automatically terminate the consent. However, the previously given consent was terminated once he produced the knife and threatened them and the victims were not required to communicate their withdrawal of consent to defendant.id: 21735
There was no consent to the sexual assault by the officer who was authoritative, restrained the victim and threatened incarceration. Defendant, a school district police officer, was convicted of several counts of sexual assault against a 21 year-old woman the officer detained following an illegal U-turn. During a search, defendant touched the victim’s breasts and penetrated her vagina. He argued the evidence did not support the convictions because she consented to the touching and there was no evidence of force or threat. However, there was no consent as the victim was in no position to refuse the authoritative defendant, and she was unlawfully restrained at the time. The evidence also showed the acts were committed by threat of incarceration.id: 21524
There was sufficient evidence of duress to support the section 288, subd.(b) conviction where the victim performed the sex acts fearing that if she did not defendant would inform her grandmother that she had stolen money from her. Defendant argued there was insufficient evidence of coercion to support the conviction of lewd act by menace, fear, or duress under Penal Code section 288, subd.(b). However, duress was established by the evidence that the victim felt coerced to perform the sex acts on defendant because she feared he would tell her grandmother that she had taken money from the grandmother’s bedroom.id: 21443
Defendant who had consensual sex with community work release participants he was supervising at a county animal shelter was properly convicted of violating section 289.6.Defendant argued he could not be convicted of consensual sexual activity with a confined adult within the meaning of Penal Code section 289.6 because the incidents did not occur in a detention facility. However, defendant's sexual activity with community work release participants at a county animal shelter qualified under the statute.id: 21495
Evidence supported the attempted lewd act conviction and special
circumstance finding based on defendant’s preparation, prior crimes and lack of any other motive. Evidence was sufficient to support the conviction for attempting to commit a lewd act on the victim and the special circumstance finding that he killed the victim while attempting to commit the act. Evidence of defendant’s preparation, prior crimes, and
lack of any other motive for the abduction shows an intent to commit a lewd act on the victim. Moreover, defendant’s statements trying to hide the sexual conduct further supported the offense.id: 21011
The Court of Appeal erred in finding the evidence was insufficient to support rape for felony murder purposes after ignoring the prior rape evidence it determined was erroneously admitted. The prosecution charged defendant with felony murder, with rape and burglary as the underlying felonies, with the burglary based on the entry of the victim’s apartment with the intent to commit rape. The Court of Appeal erred in finding the evidence was insufficient to support felony murder. The court found the evidence did not show entry with intent to rape, the victim failed to consent, or that she resisted in a way the law required at the time of the offense (1976). However, the court erred in ignoring other–offense evidence. First, the evidence was properly admitted under Evidence Code section 1108. Next, when considering the sufficiency of the evidence the court must consider all evidence including evidence that should not have been admitted. Here, the evidence showed defendant was a serial rapist, his actions here were consistent with his past offenses, and supported an intent to rape and killing during rape.id: 20891
Evidence of torture was sufficient to support the murder conviction notwithstanding that the final beatings were separated by time from the previous beatings.Defendant argued that his first degree murder by torture conviction had to be reversed because there was no evidence that his final blow or blows to his stepdaughter were part of a deliberate and premeditated intent to inflict extreme and prolonged pain. However,that defendant's final beatings were separated by time from the previous beatings was entirely inconsequential. The evidence established that defendant perpetrated a deliberate vicious course of conduct against the helpless child over a course of months, intensifying the beatings in the last few weeks of her life. There is no question that defendant's acts were part of his wilful, deliberate and calculated intent to inflict pain on the victim.id: 10035
Attempted lewd act conviction did not require that defendant actually enter a hotel room with a minor.Evidence supported the conviction for an attempted lewd act on a child where defendant drove to the bus stop intending to meet “Hope”, and he had condoms, Viagra, a bikini and bubble bath in the trunk of his car. This was beyond the preparation stage and the police were not required to wait until he actually entered a hotel room with a minor.id: 20712
Evidence supported a conviction of aggravated sexual assault of a child where the defendant slightly penetrated the child’s vagina with his fingers.The amount of force required to establish a violation of Penal Code section 269, subd.(a)(5) (aggravated asexual assault of a child through sexual penetration) is that force which is sufficient to overcome the victim’s will. Evidence supported the conviction here where defendant pulled down the victim’s underwear, slightly penetrating her vagina with his finger as he rolled on top of her. Defendant further violated section 288, subd.(a), which does not require penetration, where he placed his erect and exposed penis on the victim’s vagina.id: 20615
Evidence showed the unpaid pastor fraudulently represented a “professional purpose” for purposes of penetration of a person unconscious of the nature of the act.Defendant argued the evidence was insufficient to support his conviction for sexual penetration of a person unconscious of the nature of the act under Penal Code section 289, subd.(d)(4). He claimed that because he was an unpaid pastor, the jury could not find that he fraudulently represented a “professional purpose.” However, the evidence showed defendant purported to have a “professional purpose” as he penetrated the victim to verify her virginity. id: 20361
Seven year old victim's fear that her stepfather would kill her or her mother if she reported the molest incidents established duress for purposes of section 288, subd.(b).There was sufficient evidence of duress to support the child molest conviction under Penal Code section 288, subd.(b), where the seven year old victim feared the defendant, who had a position of authority as her stepfather, and where the victim believed that defendant would kill her or her mother if she reported the incidents. Moreover, the trial court properly instructed under CALCRIM No. 1111 that if the section 288, subd.(b) offense is based on the victim's fear, a threatening statement or action is not required.id: 20093
Evidence supported the magistrate's finding that defendant abused a dependent adult under section 368(b) where the victim described an act of sodomy by the HIV positive defendant.Defendant was bound over for trial on a charge of felony abuse of a dependent adult under circumstances likely to cause great bodily harm under Penal Code section 368, subd.(b)(1). The incident involved an act of sodomy of a mentally retarded man by a person who was HIV positive. Contrary to defendant's claim, the requisite likelihood was supported by evidence that the victim saw defendant's semen and that he was sodomized. Moreover, in light of the victim's apparent disabilities, evidence supported a finding that defendant knew the victim was a dependent adult. The Penal Code section 995 motion was properly denied.id: 17617
Despite the lack of physical force or threats, evidence supported a finding of duress where the nine year-old victim complied with her father's sexual demands fearing that her refusal would break up the family.Defendant was convicted of aggravated sexual assault of a child under Penal Code section 269, and forcible lewd acts under section 288, subd.(b). Both require proof of force or duress. The nine year-old victim testified there were no force or threats by the defendant who was her father. The evidence nevertheless established duress since she was a vulnerable child who engaged in the sex acts only in response to her father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. In light of her age, relationship to defendant, and the implied threat that she would break up the family if she did not comply, the evidence supported the finding of duress.id: 15041
Evidence supported the finding that pinching a 14 year old's breast was a sexual battery.Evidence supported the juvenile court's finding that the minor committed a sexual battery by pinching the breast of a 14 year old girl, despite his claim that this was a playful touching as he had done with this girl in the past. The minor's purpose on this occasion was properly inferred from the act and circumstances which showed he grabbed her following a
perceived act of disrespect.id: 19343
Defendant, an employee in a group home, was properly convicted of rape of a developmentally disabled person who was incapable of giving consent.Defendant was convicted of the rape of a developmentally disabled person. (Penal Code section 288a, subd.(g) and
289, subd.(b).) Contrary to defendant's claim, there was sufficient evidence, that at the time and under the circumstances, the victim's mental impairment, and particularly her impaired understanding of the sex acts involved, rendered her incapable of giving legal consent. This does not mean that the victim could never have consensual sex. Moreover, given the requirement that the defendant either must know or should know that the victim is incapable of giving legal consent, the
statutes are not unconstitutionally vague.id: 19277
Evidence supported defendant's conviction of forced oral copulation by threat of future retaliation despite his claim that the threat was immediate rather than a future threat to retaliate.Defendant argued the evidence was insufficient to support his conviction for oral copulation accomplished by threat of future retaliation under Penal Code section 288a, subd.(c)(3), because his threat to shoot the victim was immediate and not a threat of future retaliation. According to defendant, the alleged crime should have been charged under subdivision (c)(2). However, the possibility that the jury may have been misled concerning whether the crime required the threatened shooting to occur immediately or in the future does not establish that defendant was convicted of the wrong crime. Under the circumstances, it was objectively reasonable for the victim to believe defendant intended to harm her if she did not go along with his demands.id: 18798
Evidence of anal penetration through the victim's clothing supported the sodomy conviction.Defendant argued the evidence was insufficient to support the sodomy conviction because anal penetration through the clothing is a violation of Penal Code section 289, a crime that was not charged. However, there was substantial evidence that defendant committed sodomy based upon the victim's testimony that she saw defendant's penis and felt it poke her covered behind. There was little question that the penetration occurred as the child suffered pain the next day.
id: 18783
Defendant's act of forced penetration supported the forcible rape charge even though the victim actively engaged in sexual foreplay.The victim voluntarily and actively engaged in sexual foreplay with defendant, and continued to do so after he twice attempted penetration and was rebuffed. However, she made it clear to him that she did not want to be penetrated and his subsequent efforts were both against her will and physically painful to her. Defendant forced his penis into the victim's vagina causing her pain. While the force inherent in the act of penetration may not be sufficient to show forcible rape, the evidence in this case supported the conviction.
id: 18665
Rubbing the victim's vagina over her clothes constitutes substantial sexual conduct for purposes of section 803, subd.(g). The prosecution argued that otherwise time barred molest counts could be charged pursuant to Penal Code section 803, subd.(g) if the complaint is filed within one year of the report to a law enforcement agency. That provision applies if the crime involves substantial sexual conduct excluding masturbation that is not mutual. Defendant argued that rubbing the victim's vagina over her clothes did not constitute substantial sexual conduct because there was no skin to skin contact and not every indirect touching of a child's genital area constitutes masturbation. However, an interpretation of the term "masturbation" more restrictive than the touching of genitals in section 288, subd.(a) would be contrary to the legislative purpose of section 803, subd.(g).id: 18440
Defendant's previous thigh touching of a 14 year-old girl constituted a section 288(a) offense for purposes of section 1108, where the conduct also involved hugging, flirting and secrecy.Defendant argued the trial court erred by admitting under Evidence Code section 1108 evidence of a previous incident in which he touched the thigh of a 14 year-old because that conduct did not constitute an offense under Penal Code section 288, subd.(a). However, the evidence showed defendant acted with the requisite sexual intent where the witness also described "close hugging," defendant's flirting with her, and a request for secrecy.id: 17931
Indecent exposure conviction was valid even though no one actually saw defendant's genitals.Defendant's conviction for indecent exposure under Penal Code section 314, subd.(1) was valid even though there was no evidence that anyone actually saw his naked genitals. The evidence established that defendant exposed himself in the presence of others. Visual observation of the exposed genitals is not an element of the offense. Moreover, the trial court did not err by refusing to give a special instruction defining exposure of one's person as the display of the person's naked genitalia.id: 17685
Evidence supported conviction of creating child pornography where the 15 year-old girl was photographed on defendant's garage floor in her underwear posing in an unnatural and sexually suggestive manner.Defendant was convicted of creating child pornography and sexual exploitation under Penal Code sections 311.3 and 311.4. He argued the evidence did not support the convictions. In the photograph he scanned into his computer, a 15 year-old girl was seated on the floor of his garage. She was wearing a patterned bra and differently patterned bikini underpants. Her hands were on her knees with her legs splayed to display her crotch area. The pose was unnatural and sexually suggestive. A reasonable jury could have found a violation of the charged statutes.id: 17697
Circumstantial evidence showed defendant was not married to the 15 year-old victim.Defendant argued the evidence was insufficient to support the rape conviction because there was no proof that he and the victim were not married. The evidence showed the victim was 15 years old and had a boyfriend. She lived with her mother while defendant lived with his girlfriend. Finally, the victim's best friend did not recognize defendant. The evidence supported the finding that defendant was not married to the victim.id: 17289
Defendant's threatened imprisonment of the victim's loved ones constituted duress for purposes of his convictions of various sex offenses.Defendant caused four women to submit to various sex acts by duping them into believing it was the only way to keep their husbands out of jail following alleged hit and run incidents. Defendant's threatened imprisonment of the victims' loved ones constituted duress by threats of danger or retribution under Penal Code section 261, and duress under section 288a and 289. Contrary to defendant's claim, the victims' decision to engage in sexual encounters with him was not unreasonable.id: 17163
Evidence supported a finding of duress for defendant's forcible lewd acts on his nine year-old daughter where she feared she would break up the family if she did not comply.Evidence supported defendant's convictions of aggravated sexual assault of a child and forcible lewd conduct of a child based upon sexual incidents with his nine year-old daughter. He argued there was insufficient evidence of duress, and the victim testified defendant did not use force or threats. However, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply supported a finding of duress.id: 17042
Multiple convictions were proper where defendant fondled different parts of a child's body during a single incident.Defendant was properly convicted of multiple violations of Penal Code section 288 arising from a single incident, during which he fondled several different areas of the victim's body. id: 16859
Evidence supported indecent exposure conviction where defendant angrily exposed his penis to another driver in a "road rage" incident.Defendant was convicted of indecent exposure under Penal Code section 314, subd.(1), based on an incident of "road rage" in which he angrily exposed his penis to the other driver. He argued there was no evidence he acted with the "lewd" intent required to support the conviction. However, since defendant exposed his genitals to the other driver in an attempt to annoy or offend her, the evidence was sufficient to support the conviction.id: 16795
Sodomy conviction was supported by evidence where doctor testified rectal bruising was "consistent with" penile penetration.The pathologist testified the rectal bruising which occurred prior to the death was consistent with penetration by a blunt object such as a penis or a finger. This testimony was sufficient to support the conviction of forcible sodomy.id: 16663
That the victim was unable to recall the particular days on which she was molested did not render her testimony insufficient as a matter of law.Defendant was convicted of multiple sex offenses. He argued that the evidence as to these offenses was too vague and generic to support convictions on the individual counts. The victims testimony that the acts occurred twice a week from August 1985 to July 1987 is equivalent to specific testimony that defendant molested her twice each week as alleged in the information. Moreover, a unanimity instruction was not required. Where all of the acts presented to prove a particular charge are identical and the defense to all of them is the same, reasonable jurors must necessarily reject the defense and find that all the acts were committed in order to return a guilty verdict.id: 16420
Evidence supported conviction of attempted lewd acts where defendant's methods were strikingly similar to those in which he accomplished lewd acts on minors.Defendant was convicted of two counts of committing lewd acts on minors and one count of attempting that offense. He argued the evidence was insufficient to support the attempt conviction which involved the second victim. However, the methods of operation regarding all three victims were strikingly similar. Defendant's attempt to have the second victim ingest drugs, his comment, which frightened her, and his offer of money for sex went beyond mere preparation. The fact that she interpreted his request to be for sex at some future point is not determinative. The jury was free to infer that had she, like her sister, agreed to his request, defendant would have proceeded at that moment with the lewd and lascivious acts, just as he had with the other two victims.id: 15399
Evidence supported defendant's conviction of rape with a foreign object in concert where he locked the bedroom door to facilitate Hilario's digital penetration.Defendant argued the evidence was insufficient to support his rape with a foreign object conviction since there was no proof he was acting in concert with Hilario when Hilario inserted his finger into the victim's vagina. However, defendant facilitated Hilario's digital penetration by locking the bedroom door and blocking the victim's means of escape. The evidence supported his conviction as an aider and abettor.id: 15400
Testimony of victims and pharmacist regarding drugs used and their effects on the body supported the conviction of sodomy by use of drugs.Defendant was convicted of sodomy by use of drugs in violation of Penal Code section 286, subd. (i). The testimony of the victims and a pharmacist, identifying the drugs used, and their effect on the body supplied sufficient evidence from which the court could conclude the drugs given the boys prevented them from resisting the defendant's sexual advances.id: 15402
Evidence established force for section 288, subdivision (b) conviction where defendant grabbed the victim's hand not to lead it to his penis but to restrain her from escaping.The evidence showed the victim ran around the room in an effort to escape. The jury could reasonably have concluded defendant grabbed her wrist, not simply to lead her hand to his penis, but to restrain her from escaping. That established force substantially different from and greater than the type of force necessary to accomplish the lewd act itself. Evidence therefore supported the conviction under Penal Code section 288, subdivision (b).id: 10029
Evidence of a struggle prior to intercourse was sufficient to support the rape conviction.Defendant argued that although the evidence was sufficient to prove that he engaged in sexual intercourse with victim, it was insufficient to prove that he did so while she was alive or without her consent. However, there was expert testimony that before death she suffered a bruise above the knee on her inner thigh. The bruise was consistent with use of a knee to force the victim's legs apart. A rational trier of fact could have found beyond a reasonable doubt that at the time of the intercourse the victim was alive and did not consent.id: 10030
Evidence of defendant as a father figure and repeated threats supported convictions of child molestation by duress.Defendant had status as a father figure in the victim's mind, he repeated threats that the victim's mother would hit her if she told anyone of the nature of the acts, he physically pulled her and required her to perform sex acts. This was substantial evidence of duress supporting the convictions of child molestation by duress.id: 10031
Evidence of duress supported faith healer's conviction of sex offenses where he utilized the threat of divine intervention to coerce victims into acquiescence.Defendant held himself out to be a faith healer and rendered treatment to various female believers of the religion Curanderismo. His activities under this guise led to his conviction of several counts of sexual misconduct including violations of Penal Code sections 289, and 288, subdivision (b). He argued that all acts were consensual and did not involve force and therefore the evidence was insufficient to support conviction under the above provisions. However, there was evidence of force as defendant held the victims down when he inserted his hand in their vagina, and used a pillow to stifle the screams. Moreover, evidence of duress was substantial as defendant who had created a position of trust utilized the threat of divine intervention to coerce the victims into acquiescence.id: 10032
Evidence of mass production of child pornography videotapes satisfied the commercial purpose requirement.Defendant argued the evidence was insufficient to support the conviction for child pornography under Penal Code section 311.4, subdivision (c) based upon a lack of evidence of a commercial purpose. However, evidence was presented that tapes of virtually the same acts and participants were made every other weekend for 18 months. It could be inferred that rather than being stockpiled for personal use, the material was being sold as quickly as it was being produced.id: 10033
Evidence of molestation acts was sufficiently specific where the victim testified to acts occurring at different locations on different days.Defendant was convicted of four counts of lewd acts upon a child. The evidence was sufficiently specific as to each count where the victim testified the acts took place at different locations on different days. Moreover, the jury was properly instructed on its duty to agree unanimously on the particular act when the evidence shows more than one act was committed.id: 10034
Evidence supported charge that photographer used minors to pose for sex acts despite the fact that models were not nude.Evidence supported the charge of using a minor to pose for a film or photograph involving sexual conduct under Penal Code section 311.4, subdivision (c). The models were posing for the purpose of developing a photo portfolio. However, defendant diminished his subjects by focusing on their private parts after directing them to assume unnatural and sexually suggestive positions. That the models were covered by panties or swimsuits did not negate the nature of the sexual conduct.id: 10036
Evidence supported charges of annoying or molesting a child against defendant who photographed the crotches of young models.Evidence supported the charges of annoying or molesting a child under Penal Code section 647.6 against defendant photographer. Defendant directed the young models to pose in suggestive and unnatural positions to facilitate his viewing and photographing of the crotch area. Defendant's viewing was combined with the affirmative conduct that could ordinarily cause annoyance or offense to the subject of his attentions.id: 10037
Evidence supported child molest convictions against victims who never removed their underwear.Appellant argued that because the evidence showed only eight, not fourteen separate incidents of penis touching that only eight counts of Penal Code section 288, subd. (a) could be sustained. He claimed some children certified they took off their clothes but did not testify they took off all of their clothes. However, the statute is violated even if the children did not remove their underwear.id: 10038
Evidence supported child molest count where defendant rubbed the victim's stomach, back and thigh.Defendant argued the eleven year old victim's testimony that he rubbed her stomach, back and thigh was insufficient to support the "lewd and lascivious act" requirement of Penal Code section 288, subdivision (a). However, the act need not be inherently sexual as the crime is committed by any touching of a child with the requisite intent. Given the record of defendant's pattern with young girls, the jury reasonably could have found defendant committed the acts with the requisite intent.id: 10039
Evidence supported conviction of forcible lewd act where defendant grabbed the eight year old victim's hand and forced her to touch his genitals.Defendant was convicted of forcible lewd and lascivious conduct (Penal Code section 288, subd. (b)). He argued there was insufficient evidence of force to sustain the convictions. However, the evidence demonstrated that defendant grabbed the victim's hands and forced her to touch his genitals. Furthermore, the evidence showed defendant overcame the victim's resistance when she attempted to pull her hand away from his crotch. The evidence supported the conviction as defendant used physical force substantially in excess of that required for the lewd act.id: 10040
Evidence supported forcible child molest conviction where defendant covered the victim's mouth and pushed her backward while accomplishing various sex acts.Young girl testified that defendant's forearm was over her mouth rendering her unable to cry out during the sexual assault, and that in response to her attempt to move, he pushed her back. It was not necessary to accomplishment of the sexual acts that she be prevented from moving or crying out. Defendant's acts, therefore, exceeded any force necessary to the acts and evidence supported the conviction under Penal Code section 288, subdivision (b).id: 10041
Evidence supported molestation convictions despite the failure to allege and prove offenses on specific dates.Defendant was convicted of several sex offenses with different victims. He argued the convictions could not stand because the prosecution failed to prove any specific violations of the law. However, defendant did not present an alibi defense, but rather sought to undermine the victim's credibility. Moreover, there is no requirement that the particular date of the offense be provided as long as the evidence is otherwise sufficient to permit the jury to differentiate one act from another and assess and agree upon defendant's guilt with respect to each separate act charged.id: 10042
Evidence supported rape in concert conviction although there was only one defendant in the room where the victim was raped.Evidence supported the rape in concert conviction despite the fact that none of defendant's crime partners were in the bathroom when defendant forcibly raped the victim. After defendant finished raping the victim he ordered her to remain in the bathroom and one of his crime partners then entered and sexually assaulted her. Although none of defendant's companions were in the bathroom when he raped the victim, they were present in the home when the rape occurred, and their acts assisted him in committing the rape.id: 10043
Evidence supported the intent to commit rape where defendant dragged the victim to an isolated area, tried to kiss her mouth, fondle her breasts and told his friend he would be getting a piece of that.Evidence was sufficient to support the finding that defendant had the specific intent to commit rape required for his convictions of assault with intent to commit rape and kidnapping with intent to commit rape. The force he used was that required to overcome the 16 year old victim's will. He grabbed her arm forcing her to hang up the phone, then, while holding her arm tightly, led he to the dumpster enclosure area. She attempted to scream but could not. Her lack of experience may have led to her non-use of force to resist defendant's grip. Moreover, evidence that he said he would get a piece of that, coupled with his touching her breasts and pressing his body and erection against her back established defendant's intent to complete a sexual act.id: 10044
Evidence supported the section 288, subdivision (a) conviction where defendant placed the victim over his knees and pulled her pants down in front of a camera.Evidence supported defendant's conviction of Penal Code section 288, subdivision (a) where he placed the victim over his knees, pulled her pants down and displayed her bare buttocks to a camera. The evidence was conflicting as to whether he actually touched her bare buttocks with his hands. However, section 288, subdivision (a) does not require that any particular part of the body be touched. The contact involved in placing the victim over defendant's knees, or pulling down her pants would suffice.id: 10045
Evidence supported the sexual battery finding despite the victim's ambiguous response.Evidence supported the finding of sexual battery notwithstanding that the victim's statement that he touched her breast could equally mean contact with her skin or contact through her clothing. At the hearing the judge had the benefit of seeing the witness which included the observation of her indications. Moreover, the evidence established that appellant pulled down her leotard and bra strap.id: 10046
Evidence supported two rapes notwithstanding the victim's failure to describe a penal withdrawal in between two different acts of intercourse.Victim testified that defendant penetrated her while she was lying on her back and afterwards turned her over and penetrated her vagina from the rear. The evidence was sufficient to support two rapes notwithstanding that the victim did not expressly describe a penal withdrawal separating the two acts of intercourse.id: 10047
Forcing children to drink urine supported a conviction of child molestation under section 288, subdivision (b).Forcing the children to drink urine constituted a lewd act within the meaning of Penal Code section 288, subdivision (b). Moreover, the act of compelling a child to drink urine from a bottle or cup was a sufficient touching to constitute a violation of the provision.id: 10049
Generic testimony regarding specific conduct during a stated time period is sufficient to support a child molest conviction.Evidence is sufficient to support a conviction in child molest cases where the victim specifies the type of conduct and its frequency over a stated period of time notwithstanding the lack of detail regarding a particular date.id: 10050
Inhibiting child molest victim from pulling his shorts up, bending the victim over and pulling him towards defendant constituted force under section 288, subdivision (b).Defendant argued the evidence did not support the finding that the lewd act committed on the child was accomplished by force. However, the defendant's acts of overcoming the victim's resistance to having his pants pulled down, bending the victim over and pulling the victim's waist toward him constitute force within the meaning of Penal Code section 288, subdivision (b).id: 10051
Insertion of a finger into the victim's anus prior to insertion of the penis constituted two separate violations of section 289.Defendant argued consecutive sentences were improper under Penal Code section 667.6, subdivision (c) because the digital penetration was accomplished solely to facilitate the insertion of defendant's penis into the victim's rectum, rather than for the purpose of sexual arousal, gratification, or abuse. However, substantial evidence supported the court's finding that the two sexual acts were separate and done with the intent to humiliate the victim and for defendant's own sexual purposes. Despite pleading from the victim that he stop defendant followed the digital penetration with penile penetration. This degradation was demonstrated by the separate and distinct penetrations. Each penetration constituted a separate violation of section 289.id: 10052
No due process denial for imprecise charges of child molestation where appellant had uninterrupted access to victim and there was no alibi defense.Appellant denied committing any sexual assaults but admitted the victims frequently stayed with him. The defense was not alibi or misidentification but denial coupled with an attack on the victim's credibility. Under the circumstances, any lack of specificity in tying particular attacks to specific times, dates, locations or charges did not deny appellant due process of law.id: 10053
Rape conviction was supported by evidence despite the lack of resistance where lack of consent was not disputed and defendant's actions frightened the victim.Defendant approached the victim as she slept on the living room floor, removed her pants, fondled her buttocks and had intercourse with her. He conceded that they met for the first time that night and that she did not consent to any sexual act or intercourse. The Court of Appeal reversed the rape conviction finding insufficient evidence of force or fear of immediate and unlawful bodily injury where screaming or resistance by the victim may have interrupted the intercourse. However, evidence established fear as the victim told officers she did not move because she feared defendant would do something violent. The jury could reasonably have found defendant created the situation which frightened the victim and that such fear allowed him to accomplish sexual intercourse with the victim against her will.id: 10054
Sexual battery victim was unlawfully restrained by defendant's words, acts and authority.Defendant was convicted of sexual battery and argued there was no evidence that he physically restrained the victim at the time of the touching. The victim had been making out with her boyfriend when she was ordered out of the car by defendant who presented himself as an authority figure - an employee of the company that owned the property where the car was parked. He repeatedly ordered her boyfriend to remain in the car. He continually threatened them with police action if they did not cooperate. Victim's liberty was being controlled by defendant's words, acts and authority and forced her to remain where she did not want to be. The victim was therefore unlawfully restrained within the meaning of section 243.4, subd. (a).id: 10056
Testimony of a four year old is sufficient to convict a defendant of child molest.The child molest victim's story was essentially uncorroborated. Defendant argued that because the victim was less than five years old, his testimony alone could not be considered substantial evidence to support the conviction. However, California law does not require corroboration of the testimony of a child sexual abuse victim. The four year old victim's testimony was sufficient to support the conviction of child molestation.id: 10057
Testimony that defendant put his mouth down there supported the conviction of oral copulation.Defendant argued the victim's testimony that appellant touched his mouth down there was insufficient to show that he put his mouth on her sexual organs. However, this testimony came following the court's statement for the record that the victim was pointing to her vagina and she answered three questions that appellant touched her there with his fingers. The jury could reasonably infer that down there included her sexual organs.id: 10058
That the jury chose to acquit appellant of false imprisonment did not compel reversal of the sexual battery conviction.Appellant argued that because the jury acquitted him from felony and misdemeanor false imprisonment, they must have found no unlawful restraint occurred. However, the record established that appellant for his own sexual gratification, repeatedly touched the victim intimately against her will. She resisted physically and verbally and expressed a desire to go home, but appellant, being heavier and stronger than victim, restrained her despite her pleas. That the jury chose to acquit appellant of false imprisonment did not compel reversal of the sexual battery conviction.id: 10059
The element of force in section 288, subd. (b) is satisfied by evidence that the defendant applied force in order to accomplish the lewd act without the child's consent.Defendant argued that his acts of pulling the victim back when she tried to pull away from the oral copulation, and physically manipulating the victim's hand and preventing her from pulling it away during the masturbation, did not constitute the use of force within the meaning of Penal Code section 288, subd. (b). However, the element of force in that provision is satisfied by evidence that the defendant applied force in order to accomplish a lewd act without the child's consent.id: 10060
There was a sufficient factual basis for the guilty plea to forcible child molest notwithstanding evidence that the acts were accomplished by request and reward to the victims.Appellant moved to withdraw his guilty plea to several counts of child molest by force or duress under Penal Code section 288, subdivision (b), arguing there was an insufficient factual basis for the plea. He claimed the record showed no force or duress, but rather showed the offenses were accomplished by request and reward to the victims. However, the victims testified that appellant made them engage in various sex acts and forced them to do other things. That appellant may have rewarded the girls for gratifying his desires by giving them money or taking them places did not excluded the possibility of duress. The court's finding that a factual basis for the plea existed was supported by the record.id: 10061
Touching the victim's thigh while masturbating constituted a lewd act under section 288.Defendant was convicted of child molestation under Penal Code section 288, subdivision (a). He argued that touching the victim's mid-thigh while masturbating was not a lewd act under the statute. However, any touch in fulfillment of a sexual fetish, is harmful to a child and prohibited by the statute.id: 10062
27 months between defendant's injury and his killing of the police was, as a matter of law, sufficient to allow passion to cool.In a pursuit following a bank robbery, the police shot defendant rendering him a paraplegic. More than two years later, defendant shot and killed two officers. He argued the court erred in refusing to instruct on voluntary manslaughter arising from provocation and heat of passion. However, the period of two years and three months between defendant's injury and the killing of the police is, as a matter of law, sufficient to allow passion to cool.id: 10016
Adult's lying on top of nine year old boy established force for molestation statute.The prosecutor at the preliminary hearing made the requisite showing of force or duress under Penal Code section 288, subdivision (b), (forcible sexual conduct with a child). The defendant lied on top of the nine year old boy, who was rendered unable to move away because of the weight of the adult on top of him. The molestation only stopped when the boy kicked the adult six times in the stomach. Clearly the defendant used physical force substantially different from and substantially greater than that necessary to fondle the victim.id: 10017
Circumstantial evidence may establish corpus delicti of rape-penetration need not be established.Partially clothed condition of the victim's body, clear evidence of force applied to her, and the presence of semen on the external genital area of the victim permit a reasonable inference that a rape occurred. Evidence of penetration was not necessary to establish the corpus delicti. Further, the corpus delicti of the burglary was established given the evidence of forcible rape inside the residence.id: 10019
Corpus delicti for rape was established where a young woman's body was found unclothed, in a remote locale.Appellant argued there was insufficient evidence to establish the corpus delicti of rape. The evidence showed that the victim was found, unclothed, in an irrigation canal. She had been dead for several weeks and her body was badly decomposed. There was no evidence of seminal fluids or penetration. However, when the body of a young woman is found unclothed in a remote locale, an inference arises that some sexual activity occurred, thus satisfying the requirement that there be some showing of a loss, injury or harm.id: 10020
Court properly denied the motion for a judgment of acquittal notwithstanding the conflict in the evidence concerning appellant's participation in the five rapes.The victim testified that four men held her arms and legs and one held her head while the sixth raped her. There were five separate acts of intercourse. Although the evidence concerning appellant's level of participation was in conflict, one witness' testimony implicated him as an active participant in all of the rapes. The court properly denied the motion for judgement of acquittal.id: 10021
Defendant waived any error in failing to request a hearing to determine the necessity of a support person to assist the child molest victim.Defendant argued the trial court erred in failing to hold a hearing to determine the necessity of a support person to accompany the six year-old child molest victim to the witness stand. However, defendant waived any claim of error by failing to request a hearing and determination of necessity, or otherwise object to the presence of a support person.id: 10022
Defendant's holding of his niece while he fondled her supported a finding of duress thereby establishing forcible child molest.Defendant was convicted of sexually molesting his niece pursuant to Penal Code section 288, subdivision (b). The evidence established that he grabbed the victim's arm and held her while fondling her. This evidence was insufficient to support a finding of force under section 288, subdivision (b). However, the physical control did establish duress which supported the conviction. Defendant took advantage not only of his psychological dominance as an adult authority figure, but also of his physical dominance to overcome her resistance to molestation.id: 10023
Doctor's testimony is sufficient to establish the number of acts committed by resident child molester.Defendant, an accused resident child molester argued the evidence was insufficient to support the judgment as to any count because the victim's testimony failed to establish with specificity either the kinds or the number of lewd acts committed. However, the testimony sufficiently established that defendant committed three different types of lewd acts: vaginal penetration, anal penetration, and oral copulation. That the testimony contained inconsistencies went to the credibility rather than the specificity. Moreover, the doctor's testimony finding that it would have taken at least six vaginal penetrations and at least twelve to fourteen anal penetrations to produce the instant injuries supported the conviction on fifteen counts. There is no requirement that the number of acts need be established by the victim's testimony alone.id: 10026
Duress was established in child molest convictions where the victim was defendant's daughter.Defendant convicted of several counts involving the molestation of his daughter. He argued the evidence was insufficient to support a finding that the oral copulations and digital vaginal penetrations were accomplished by force, fear, violence, duress or menace as alleged. Given that there was no evidence of a struggle, notwithstanding evidence of holding or restraining, the evidence did not support a finding of force. However, the convictions were supported by a evidence of duress where defendant subjected the victim to psychological pressure: He was her father and an authority figure; during the first molestation, he threatened to hit her if she moved; his pulling her back when she attempted to pull away suggested greater resistance would be answered with greater force.id: 10027
Even a seemingly innocent act such as stroking a child's hair or rubbing her back can be lewd or lascivious when viewed under the totality of circumstances.Defendant argued the evidence was insufficient to support a conviction of Penal Code section 288, subdivision (a) as to count 6 where it was alleged that he dangled the victim's hair and rubbed her back. Defendant lured the victim to the fence on the pretense that he wanted to show her something in the back yard. He then began to fondle her hair and back, and instructed the victim not to tell her mother. The evidence was sufficient to support the conviction as even seemingly innocent conduct, such as stroking a child's hair or rubbing her back can be found to be lewd and lascivious when viewed in the totality of the circumstances.id: 10028
Any touching of a minor with the requisite sexual intent will sustain a conviction under section 288.Penal Code section 288 imposes criminal liability on anyone who willfully and lewdly commits any lewd or lascivious act upon the body of a child under the age of 14 with the intent of arousing the lust, passions or sexual desires of either party. The section is violated by any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.id: 9917
Shoving the victim into the car and grabbing her breasts established an intent to commit rape for purposes of assault with intent to commit rape.Defendant argued that despite evidence from which the jury could find he intended something sexual and without consent, the evidence fell short of showing he intended to accomplish an act of sexual intercourse necessary for a conviction of assault with intent to commit rape under Penal Code section 220. However, defendant grabbed the victim by her hair, pushed her into the driver's seat of the vehicle and shoved his hand underneath her sweater, touching both of her breasts. This conduct is consistent with an intent to commit rape and the evidence supported a conviction under section 220.id: 9711
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245