Babcock

I dissent from that portion of the majority opinion upholding count 12, the forcible lewd and lascivious act (Pen. Code, § 288, subd. (b); all further section references are to that code) against Autumn R. While I concur in the remainder of the opinion, I would modify count 12 to reflect conviction for a nonforcible lewd act (id., subd. (a)), affirm as modified and remand for resentencing.

Section 288, subdivision (b), criminalizes lewd or lascivious acts on a child under the age of 14 years “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim . . . .” Because the prosecutor here elected to proceed only on the theory of force, the court instructed only on that element, defining it as “physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” This accords with settled case law defining the requisite force as “physical force substantially different from or substantially in excess of that required for the lewd act . . . .” (People v. Cicero (1984) 157 Cal.App.3d 465, 484 [ 204 Cal.Rptr. 582 ]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 154 [ 259…

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

I. Factual and Procedural Background

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

*385 At trial, Autumn initially had some difficulty recalling the events giving rise to count 12. When reminded about a conversation she had had with a police investigator, however, Autumn recalled that defendant “took my hand and made me touch him.” The…

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

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

At trial, Autumn initially had some difficulty recalling the events giving rise to count 12. When reminded about a conversation she had had with a police investigator, however, Autumn recalled that defendant "took my hand and made me touch him." The incident occurred in the…