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Name: In re Asencio
Case #: B207133
District 2 DCA
Division: 7
Opinion Date: 09/15/2008

The amount of force required to establish a violation of Penal Code section 269, subdivision (a)(5), aggravated sexual assault of a child through forcible sexual penetration, is force which is sufficient to overcome the victim’s will. Petitioner argued there was insufficient evidence to support his conviction for aggravated sexual assault because the element of force had not been proven by substantial evidence. The appellate court considered the definition of “force” in various sex offense statutes, in particular forcible lewd acts, forcible rape, and forcible oral copulation. The forcible sexual penetration statute is akin to the forcible rape and forcible oral copulation statutes in that the gravamen of the crime is that the act is accomplished against the victim’s will by force or other listed coercive means. (See People v. Griffin (2004) 33 Cal.4th 1015; People v. Guido (2005) 125 Cal.App.4th 566.) It contrasts the forcible lewd acts statute in that the force does not serve to differentiate whether the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the act itself. (See People v. Cicero (1984) 157 Cal.App.3d 465.) Here, evidence that appellant pulled down the child’s underwear and rolled over on top of her was sufficient to support the requisite finding of force.