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Name: People v. Garcia
Case #: H040914
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/31/2016

In trial for forcible lewd act on child, prosecution need not establish the day on which the offenses occurred when the information only alleges “on or about” dates. Garcia was convicted of 16 counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)). On appeal he claimed the evidence was insufficient because specific charged acts were not linked to a particular one-year period set forth in the charging document, which alleged only that the acts occurred “on or about” each of those periods. Held: Affirmed. In People v. Jones (1990) 51 Cal.3d 294, the court held that the victim’s generic testimony that the abuse occurred once or twice a month during the charged periods was substantial evidence supporting the convictions. The victim must describe the kinds of acts with sufficient specificity to show unlawful conduct and to differentiate between the various types of proscribed conduct, and must describe the number of acts with sufficient certainty to support each of the counts charged. Further, the victim must describe the general time period the acts occurred. Here, the charging document alleged that each count occurred “on or about or between” a one-year period corresponding to the complainant’s ages of six, seven, eight, and nine. Garcia’s claim, that the proof of the first eight counts was insufficient because no evidence linked particular acts to those specific one-year periods, fails. This was not required. The precise time that each offense occurred need not be stated in the accusatory pleading, except where time is a material ingredient in the offense (Pen. Code, § 955).

There was sufficient evidence of force or duress to support the convictions. Garcia claimed the evidence failed to show he used force or duress during the offenses. However, in the context of Penal Code section 288, subdivision (b) “duress” means an implied threat of harm or hardship. A defendant uses “force” if the act is facilitated by his application of physical violence or constraint. Garcia repeatedly threatened to harm the complainant’s mother if she would not submit to his acts and would restrain and direct the complainant physically. This was sufficient evidence of force.

The full opinion is available on the court’s website here: