Cicero

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

Factual and Procedural Background

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

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

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

I respectfully dissent. While I abhor the occurrence of any lewd acts in our community, I cannot support a conviction of defendant under Penal Code section 288, subdivision (b), “by use of force.” There is no question in my mind that defendant was properly convicted of section 288, subdivision (a), having committed a lewd or lascivious act “upon or with the body, or any part or member thereof, of a child under the age of 14 years, ...” But there is no showing of force used in this case to support a conviction under subdivision (b).

Notwithstanding the majority’s analysis compelling the conclusion the prosecution need not prove a child resisted the lewd act, and aside from the conclusion defendant may have fraudulently induced the children to play, either in order to commit the lewd act or to facilitate the lewd act, the facts do not demonstrate defendant used force to commit the act. By using this case to decide the resistance question, the majority posits a standard where virtually any physical touching constitutes force. We might as well deem any violation of subdivision (a) to be automatically a violation of subdivision (b). In fact, if one were to follow this case, even the…

[Opinion certified for partial publication. [*] ]

OPINION

SIMS, J.

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

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

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

The information also alleged defendant had served a separate prison term as a consequence of prior convictions (for violation of §§ 220 [assault with intent to commit rape] and 245 [assault with a deadly weapon]) to be used as an enhancement pursuant to…