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Name: People v. Alvarez
Case #: G040739
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 10/28/2009

Sufficient evidence of force existed for sex offenses involving force where appellant held the minor victim and resisted her attempts to push him away. Appellant was convicted of six counts of forcible lewd conduct on a child under the age of 14, for kissing, digitally penetrating, and fondling his girlfriend’s nine-year-old daughter. The victim said she resisted the acts, but was unable to get away. On appeal, appellant contended that there was insufficient evidence to support the convictions because the prosecution failed to prove he used force above and beyond that which was necessary to perpetrate the offenses, citing People v. Schulz (1992) 2 Cal.App.4th 999. The appellate court disagreed, and added its disapproval of the Schulz holding. Appellant carried the victim to the couch, and resisted her attempts to push him away. He grabbed her hand to place it on his penis, and held her “tight.” The application of force was substantially different than that required to commit a lewd touching.
Section 654 did not bar punishment on each of several separate lewd acts upon the minor. Appellant also contended that the court should have stayed punishment for at least one of the lewd acts committed against the victim under section 654, as it was “preparatory” to committing another of the acts. The appellate court rejected the argument, finding that each lewd act was separate and distinct, and none of the acts were necessary to accomplish the others.