People v. Aguilar ( 2019 )

Filed 11/7/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B291637
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA115989)
v.
MOISES ALBERTO AGUILAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven Blades, Judge. Affirmed.
Melanie K. Dorian and Alex Coolman, under appointment
by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General of California, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Stephanie A. Miyoshi,
Deputy Attorney General, for Plaintiff and Respondent.
____________________
A jury convicted Moises Aguilar of forcible sexual
penetration and sexual battery. Aguilar appeals only the former
conviction, arguing there was no evidence of force and the trial
court erroneously instructed the jury. We affirm. Code
references are to the Penal Code.
I
These are the facts.
A.R.’s father dated and lived with Aguilar’s mother for
about five years. A.R. met Aguilar when she was 10 years old.
At one point, A.R. lived in the same house as her father, Aguilar’s
mother, and Aguilar. A.R. and Aguilar watched TV and played
games together.
Aguilar started touching A.R. inappropriately when she
was 13 or 14. Aguilar was 17. He grabbed A.R.’s chest and
bottom several times a month. This grabbing made A.R.
uncomfortable.
Early one morning, A.R. and Aguilar were watching TV.
A.R. was on a couch. Aguilar sat about a foot away. A.R. was
getting ready to sleep when Aguilar grabbed her chest. A.R. told
Aguilar no but he did not stop. He put his hand under A.R.’s
pants and underwear, rubbed her vagina, and put his fingers
inside. This hurt A.R. A.R. continued to say no but he would not
stop. A.R. resisted by grabbing and pulling his arm “the whole
time.” She could not pull his hand away because “he was too
strong.” A.R. was panicked and scared.
Aguilar grabbed A.R.’s arm and pulled it towards his penis.
A.R. was able to pull her arm away.
Aguilar moved his fingers in and out of A.R.’s vagina for a
long time. He stopped only when his mother approached. He
disengaged before his mother saw anything.
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A.R.’s 24-year-old sister M.R. also lived there. M.R.
returned from work late one night. Five or six people were on the
couch watching TV. M.R. squeezed on the couch, which was also
her bed, and tried to sleep. She lay on her stomach with her
hands over her head. A blanket covered her. Aguilar sat on the
couch near M.R.’s head.
Minutes later, M.R. felt a hand touch the side of her breast
under the blanket. She shoved her arm down to push the hand
away, signaling “your hand doesn’t belong there.” The hand
pushed her arm away and touched her breast again. M.R. turned
and saw it was Aguilar. M.R. grabbed his hand to push him off,
but he was stronger and started rubbing her breast. Aguilar put
his hand under M.R.’s bra. M.R. started to cry. She was sad and
afraid. She got up and walked out of the room.
M.R. told A.R. what Aguilar did. A.R. said Aguilar had
done the same to her. A.R. and M.R. told their mother. They
notified police.
A.R. made a pretextual call to Aguilar and told him she
heard what he did to M.R. Aguilar said, “I hate myself.” A.R.
reminded Aguilar he first “did it” to her, and Aguilar replied, “I
know . . . I hated the feeling so much . . . I hate it so bad.” He
also said, “I’m sorry what happened” and “I didn’t think what . . .
you would start to feel.” Aguilar asked A.R. to forgive him. He
said he was “done with that” and didn’t “want any of this to come
back because I know all the consequences it could do and, like,
it’s just, it’s just not the right way to go.” He promised he would
not do the same to others.
Aguilar told a detective he touched A.R.’s bottom and
breasts. A.R. “would say no” but Aguilar persisted because he
“was just being dumb” and “not thinking.” Aguilar also admitted
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repeatedly grabbing M.R.’s breast even though she kept pushing
his hand away. Aguilar said he put his finger in A.R.’s vagina.
A.R. told him no and tried to push his hand away. A.R. used “a
little bit of force, but like—she wouldn’t like, like, push me off or
anything.” Aguilar said the same at trial.
The jury found Aguilar guilty of one count of forcible sexual
penetration with a foreign object on a minor at least 14 years old
(§ 289, subd. (a)(1)(C)) and one count of sexual battery (§ 243.4,
subd. (e)(1)). The trial court sentenced Aguilar to six years.
II
Substantial evidence supports Aguilar’s conviction for
forcible sexual penetration.
We review the evidence in the light favorable to the
prevailing party to determine whether a rational jury could have
found the crime’s essential elements beyond a reasonable doubt.
(People v. Virgil (2011) 51 Cal. 4th 1210, 1263.) We accept all
evidence supporting the judgment, disregard contrary evidence,
and draw reasonable inferences in favor of the verdict. (Harley-
Davidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal. App. 4th 193,
213–214.) The defendant bears an enormous burden. (People v.
Thomas (2017) 15 Cal.App.5th 1063, 1071 (Thomas).)
Aguilar mistakenly argues there was no evidence of force
beyond that inherent in the penetration.
Forcible sexual penetration occurs when a person commits
the act “against the victim’s will by means of force.” (§ 289, subd.
(a)(1)(C).) “Force” includes circumstances where the victim did
not want to engage in the act and did not positively cooperate
with it. Force includes efforts to move and to position the victim’s
body. (Thomas, supra, 15 Cal.App.5th at p. 1071.)
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This record shows force. Aguilar persisted while A.R.
repeatedly said no. A.R. did not cooperate. She tried to push him
away. She was frightened and in pain. She struggled, but
Aguilar overpowered her.
This is not a close case.
Aguilar relies on People v. Schulz (1992) 2 Cal. App. 4th 999
(Schulz), but there is a chorus of disapproval for this opinion.
(E.g., People v. Alvarez (2009) 178 Cal. App. 4th 999, 1002.) The
victim in Schulz was nine. The defendant was an adult. (Schulz,
supra, 2 Cal.App.4th at p. 1005.) The Schulz decision impeaches
itself by stating that a modicum of holding and even restraining
cannot be regarded as force. (Id. at p. 1004.) But an adult does
use force when he physically restrains a nine-year-old child by
grabbing her arm, by cornering her while she cries, and by
holding her arm so he can touch her breasts and vaginal area.
(See ibid.) The adult is literally forcing himself upon the child.
Schulz’s contrary conclusion is mystifying.
The same comments go for Aguilar’s reliance on People v.
Senior (1992) 3 Cal. App. 4th 765 (Senior). The victim in Senior
was the defendant’s 13-year-old daughter. (Id. at p. 770.) Senior
followed Schulz and is just as baffling. The Senior opinion, for
instance, contains this troubling sentence: “We also do not
regard as constituting ‘force’ the evidence that defendant pulled
[his 13-year-old daughter] back when she tried to pull away from
the oral copulations in August.” (Id. at p. 774.) Immediately
following this sentence is a string of contra cites. We are with the
contra cites, because an adult pulling his unwilling 13-year-old
daughter back to oral copulation is using force.
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We reject Schulz and Senior. To demand more resistance
from a small victim is to misunderstand how more resistance
invites more injury.
Aguilar’s other arguments are wide of the target.
Illogically, he claims he could not “apply force using the same
hand that was committing the act of sexual penetration . . . .” He
also argues there was “no evidence [he] was flexing his arm.”
This is irrelevant. Aguilar claims there was no evidence he
“intended to use force . . . .” This misunderstands force.
III
The trial court had no sua sponte duty to give a nonforcible
sexual penetration instruction. We independently review a trial
court’s failure to instruct on a lesser included offense and view
the evidence in the light favorable to the defendant. (People v.
Millbrook (2014) 222 Cal. App. 4th 1122, 1137.) A trial court
must instruct on lesser included offenses when the evidence
raises a question as to whether all the elements of the charged
offense were present. The court need not do so when there is no
evidence the offense was less than charged. (People v. Breverman
(1998) 19 Cal. 4th 142, 154.) There is no evidence Aguilar
committed anything less than forcible sexual penetration. Thus
the trial court was not obligated to instruct on nonforcible sexual
penetration.
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
BIGELOW, P. J. GRIMES, J.
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