Force used in sexual penetration includes circumstances where the victim struggles to push aggressor away. Aguilar lived with his mother, his mother’s boyfriend, and his mother’s boyfriend’s minor daughter A.R. When A.R. was about 13 years old, Aguilar touched her genitals while sitting next to her on the couch. A.R. told him to stop and attempted to pull his arm away from her body. A.R. repeatedly said no but could not pull his hand away because “he was too strong.” Aguilar grabbed her arm and pulled it towards his penis then digitally penetrated her until someone came into the room. He was convicted of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(C)) and sexual battery (Pen. Code, § 243.4, subd. (e)(1)). On appeal, Aguilar argued that there was no evidence of force beyond that inherent in the penetration. Held: Affirmed. Forcible sexual penetration occurs when a person commits the act against the victim’s will by means of force. “Force” includes circumstances where the victim did not want to engage in the act and did not positively cooperate with it, as well as efforts to move and to position the victim’s body. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.) The record in this case showed force. Aguilar persisted while A.R. repeatedly said no. A.R. did not cooperate. She struggled to push him away, but Aguilar overpowered her. This was not a close case. The court rejected Aguilar’s reliance on People v. Schulz (1992) 2 Cal.App.4th 999 and People v. Senior (1992) 3 Cal.App.4th 765, finding that the conclusions in those cases were “mystifying” and “baffling.”

The trial court had no sua sponte duty to give a nonforcible sexual penetration instruction. 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 was no evidence Aguilar committed anything less than forcible sexual penetration. Thus, the trial court was not obligated to instruct on nonforcible sexual penetration.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B291637.PDF