Trial court erred in dismissing forcible sexual penetration count in information where it relied on the wrong standard of force in deciding whether there was sufficient evidence to support the charge. McCann was charged with forcible sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)(A)) and other offenses based on evidence that he inserted an object into the victim’s rectum while the two were drinking together in a hotel room. The victim had no memory of what happened and sustained very serious injuries. At the preliminary hearing, there was evidence McCann told a friend he put a wooden broomstick or handle in the victim’s anus, and told the victim he put a jagged steel bar in the victim’s rectum. The victim testified he would not consent to having anything “shoved up” his rectum. The trial court granted McCann’s Penal Code section 995 motion to dismiss the charge of forcible sexual penetration by a foreign object, citing People v. Kusumoto (1985) 169 Cal.App.3d 487. The People appealed. Held: Reversed. Section 289, subdivision (a)(1)(A) makes it a crime to commit an act of sexual penetration when the act is “accomplished against the victim’s will by means of force.” In Kusumoto, the court held that section 289 requires the use of “force substantially different from or greater than that necessary to accomplish the act itself.” However, in People v. Griffin (2004) 33 Cal.4th 1015, the California Supreme Court subsequently analyzed the language “accomplished against a person’s will by means force” in the context of Penal Code section 261 (forcible rape) and determined that the jury must decide whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force facilitated sexual penetration or prevented the victim from physically resisting. Courts have applied Griffin’s interpretation of “force” to section 289, subdivision (a)(1)(A) and, under this standard, there was a rational ground to believe McCann was guilty of forcible sexual penetration. [Editor’s Note: The court concluded that Kusumoto was implicitly disapproved by Griffin.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A156467.PDF