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Keywords

defendantappealverdict

defendant

Related Cases

People v. Bolander, 23 Cal.App.4th 155, 28 Cal.Rptr.2d 365

Facts

The defendant was found guilty of multiple counts of child molestation against his stepson, Ryan, during a period when they lived together with Ryan's mother. The molestations occurred between May and November of 1990, with the defendant often being alone with Ryan after school. On one occasion, the defendant pulled down Ryan's shorts and sodomized him while using physical force to prevent Ryan from resisting. The jury was unable to reach a verdict on one count, which was subsequently dismissed.

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 14 years of age (Pen.Code, § 288, subd. (a) [counts 1, 2, 4, 6, 7, 8]) and two counts of using force to commit a lewd act with a child under 14 years of age (§ 288, subd. (b) [counts 3, 5]).

Issue

Did the defendant's actions constitute 'force' under California Penal Code section 288, subdivision (b) in the context of the lewd acts committed against the minor victim?

Rule

To establish 'force' under section 288, subdivision (b), the prosecution must show that the defendant used physical force substantially different from or greater than that necessary to accomplish the lewd act itself.

In order to establish 'force' within the meaning of subdivision (b) of section 288, the prosecution must show the defendant 'used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'

Analysis

The court analyzed the evidence presented, noting that the defendant's actions of pulling down Ryan's shorts, bending him over, and pulling him towards himself constituted force as they inhibited Ryan's ability to resist. The court referenced previous cases to clarify that the force used must be distinct from the physical contact inherent in the lewd act, and concluded that the defendant's actions met this threshold.

Applying the principles set forth in Cicero, we conclude that defendant's acts of inhibiting Ryan from pulling his shorts back up, bending Ryan over, and pulling Ryan towards him constitute force within the meaning of subdivision (b) of section 288, in that 'defendant applied force in order to accomplish the lewd acts without the victim's consent.'

Conclusion

The Court of Appeal affirmed the judgment, concluding that the evidence supported the jury's finding of force in the commission of the lewd acts.

Accordingly, we shall affirm the judgment as to count 5.

Who won?

The People (prosecution) prevailed in the case, as the court upheld the conviction based on the sufficient evidence of force used by the defendant.

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