Bolander

1. Introduction

A jury found defendant John Anthony Bolander guilty of seven counts of child molestation; in each case, the victim was his nine-year-old stepson *157 Ryan A., born January 23,1982. Defendant had been charged by information with six counts of committing a lewd act with a child under fourteen years of age (Pen. Code, § 288, subd. (a) [counts 1, 2, 4, 6, 7, 8]) 1 and two counts of using force to commit a lewd act with a child under fourteen years of age (§ 288, subd. (b) [counts 3, 5]). The information alleged two prior prison terms (§ 667.5, subd. (b)). The jury could not reach a verdict as to count 4; that count was dismissed after the court declared a mistrial. At to count 3, the jury found defendant guilty of the lesser included offense (§ 288, subd. (a) ). As to the remaining six counts, defendant was found guilty as charged. In a bifurcated proceeding, defendant admitted the section 667.5, subdivision (b) allegations. After his motion for new trial was denied, defendant was sentenced to 25 years in state prison. On appeal defendant contends the trial court erred by (1) denying the motion for new trial, (2) stating inadequate reasons for imposing hilly…

I concur in the judgment and the rationale of the lead opinion except for its analysis of the sufficiency of the evidence of “force” to support count 5. With respect to that issue, I would suggest an alternative analysis.

A lewd act (Pen. Code, 1 § 288, subd. (a)) comes within the provisions of section 288, subdivision (b) if the act was committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . .” (§ 288, subd. (b).) The jury in this case *162 was instructed on this element of the offense and was further instructed that “[t]he term ‘force’ means physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (CALJIC No. 10.42.) The jury concluded that the act charged in count 5 violated section 288, subdivision (b). Defendant claims that there was insufficient evidence of “force” to support this finding.

The origin of the definition of “force” contained in CALJIC No. 10.42 is the Third District Court of Appeal’s decision in People v. Cicero (1984) 157 Cal.App.3d 465 [ 204 Cal.Rptr. 582 ]. The Cicero court posited that “ ‘. . .…

[Opinion certified for partial publication. [*] ]

OPINION

COTTLE, P.J. —

A jury found defendant John Anthony Bolander guilty of seven counts of child molestation; in each case, the victim was his nine-year-old stepson Ryan A., born January 23, 1982. Defendant had been charged by information with six counts of committing a lewd act with a child under fourteen years of age (Pen. Code, § 288, subd. (a) [counts 1, 2, 4, 6, 7, 8]) [1] and two counts of using force to commit a lewd act with a child under fourteen years of age (§ 288, subd. (b) [counts 3, 5]). The information alleged two prior prison terms (§ 667.5, subd. (b)). The jury could not reach a verdict as to count 4; that count was dismissed after the court declared a mistrial. At to count 3, the jury found defendant guilty of the lesser included offense (§ 288, subd. (a)). As to the remaining six counts, defendant was found guilty as charged. In a bifurcated proceeding, defendant admitted the section 667.5, subdivision (b) allegations. After his motion for new trial was denied, defendant was sentenced to 25 years in state prison. On appeal defendant contends the trial court erred by (1) denying the motion for new trial, (2)…