Stanford Law School - Robert Crown Law Library

Filed 8/9/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S109734
v.
Ct.App. 2/7 B152731
BRYANT D. GRIFFIN,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. GA043525

Defendant Bryant Griffin was convicted by a jury of five counts of child
molestation and one count of forcible rape. He argued on appeal that his forcible
rape conviction must be reversed because the trial court erred in failing to instruct
sua sponte on the special legal definition of “force” required for conviction of that
offense. He further contended the evidence would have been insufficient as a
matter of law to sustain his conviction of forcible rape under that standard.
A majority of the Court of Appeal agreed, concluding that the definition of
force, as it is used in the forcible rape statute (Pen. Code, § 261, subd. (a)(2)),1 has
a specialized legal meaning that would not be known to the average lay juror. The
court placed principal reliance on People v. Cicero (1984) 157 Cal.App.3d 465
(Cicero), the case that first articulated a specialized legal definition of the element
of force required for conviction of lewd acts by force on a child under the age of

1
All further statutory references are to the Penal Code unless otherwise
indicated.
1

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14. (§ 288, subd. (b)(1).) Cicero held that conviction of forcible lewd acts on a
minor requires evidence of “physical force substantially different from or
substantially greater than that necessary to accomplish the lewd act itself.” (Id. at
p. 474.) The Court of Appeal in this case believed that same specialized definition
of force must be applied to forcible rape prosecutions under section 261,
subdivision (a)(2), and that trial courts have a sua sponte duty to specially instruct
the jury with that definition in such cases. The Court of Appeal went on to reverse
defendant’s conviction of forcible rape for insufficient evidence of force under
Cicero’s definition of that element.
We conclude that the Court of Appeal erred in applying the Cicero
definition of force applicable in forcible lewd conduct prosecutions to this rape
case. The Court of Appeal’s holding is contrary to the plain language of the
forcible rape statute, and fails to recognize the significant differences the element
of “force” plays in the crimes of forcible lewd acts on a minor and forcible rape.
For reasons explained more fully below, we conclude the trial court was under no
duty to instruct the jury sua sponte on the commonly understood definition and
usage of the term “force” as it is used in the rape statute (§ 261, subd. (a)(2)).
Under the applicable and deferential substantial evidence standard of review, we
find that the force utilized by defendant, as that term is commonly understood, is
sufficient to sustain the conviction of forcible rape. Accordingly, the judgment of
the Court of Appeal shall be reversed.
FACTS AND PROCEDURAL BACKGROUND
Defendant had known Latasha J. since she was five years old. He and
Latasha’s mother, Vernida H., had an off-and-on relationship since 1989.
Defendant began molesting Latasha in 1994 when she was between 10 and 11
years old. He typically had her touch his penis. He would then place his hand and
2

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mouth on her vagina. Latasha told her grandmother, aunt, and a school teacher
about the incidents, but did not tell her mother because defendant told Latasha her
mother would not believe her. Latasha’s teacher reported the initial molestations
to the police, and defendant ultimately pled guilty to a misdemeanor of annoying
or molesting a child under the age of 18. (§ 647.6.) Defendant was placed on
probation and ordered to stay away from Latasha, who temporarily went to live
with her maternal grandmother.
Latasha’s mother believed her relatives had convinced Latasha to make up
these things about defendant because they did not like him. Latasha eventually
came to believe there was no reason to report further misconduct since defendant
had only received probation for molesting her. Latasha moved back in with her
mother, brother, and defendant when she turned 13. She would arrive home from
school about 1:30 in the afternoon, while her mother was still at work. She was
often home alone with defendant, who worked sporadically. He molested her
about once or twice a week between 1996 and 1997. Again, the molestations
followed a familiar pattern—defendant would place Latasha’s hand on his erect
penis, then place his hand inside her vagina, then orally copulate her. He told
Latasha no one would believe her, and that her mother might not love her anymore
if she told her about it. Latasha did not tell anyone about the ongoing sexual
abuse, which continued until mid-1998 when Latasha had a boyfriend and spent
more time away from home.
In May 2000, defendant no longer lived with Latasha’s mother, but
sometimes spent the night. One night in May, Latasha came home late. She did
not have a key to the house, and defendant let her in. She went into the kitchen to
prepare a bottle for her infant daughter. Defendant joined her, instructed her to
touch his penis until it was erect, and digitally penetrated her.
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Defendant and Latasha then entered the den and sat down on the floor, where
defendant orally copulated her. Defendant told Latasha to lie on the floor.
Latasha testified that defendant, without her consent and against her will, partially
penetrated her vagina with his penis after moving his body on top of hers while
holding or pinning her arms to the floor so that she was unable to move them:
“Q. Let me ask you, specifically. You are sitting on the floor and what did
he do, specifically?
“A. Lay down. He told me to lay down and I laid down and he started
putting his mouth on my vagina and then he got on top of me and I was . . . .
“Q. . . . Was he holding your wrists with his hands?
“A. Yes.
“Q. And were your arms on the floor?
“A. On my back on the floor, yes.
“Q. He was on top of you?
“A. (Nods.)
“Q. Were you able to move your arms?
“A. No, they were like that.
“Q. Was what he did without your consent?
“A. Yes.
“Q. Against your will?
“A. Yes.
“Q. And he held your arms down while he put his penis inside you?
“A. Yes.”
On redirect examination, Latasha confirmed that she did not want to have
sexual intercourse with defendant, and that it was without her consent and against
her will.
4

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Believing defendant would still avoid punishment for his sexual assaults
upon her, Latasha initially told no one about the incident. However, defendant and
her mother were involved in a custody battle over their three-year-old son, which
prompted Latasha to tell her mother about the molestations because she did not
want defendant doing the same thing to her little half brother. Latasha’s mother at
first was too distracted by the custody proceedings to tell the police about the
molestations and rape. Later in July, Latasha’s mother told the mediator in the
custody dispute matter about Latasha’s accusations of sexual assault. She and
Latasha then went to the police.
Defendant testified and denied that any molestations or rape had occurred.
He explained that in 1994 he began to discipline Latasha. She would never
comply and would never listen to him. She told him he was not her father and she
did not have to obey him. He acknowledged having pled guilty to what he called
“harassment” of Latasha. He also admitted a prior conviction for purchasing and
possessing cocaine base for sale.
Defendant testified he rarely saw Latasha when he lived with her mother
because he was always at work, and Latasha often left the house for a few days at
a time. He denied ever touching Latasha inappropriately and denied all sexual
assault allegations. He suggested Latasha and her mother had made the stories up
to gain leverage in the custody dispute.
Defendant was charged with committing a lewd act upon a child between
October 1, 1996 and February 1997; oral copulation of a person under the age of
16 between February 1997 and October 1998; sexual penetration by a foreign
object of a person under the age of 16 between February 1997 and October 1998;
oral copulation of a person under the age of 18 between May 1, 2000 and May 30,
2000; sexual penetration with a foreign object of a person under the age of 18
5

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between May 1, 2000 and May 30, 2000, and forcible rape. He was convicted as
charged and sentenced to an aggregate state prison term of six years.
A majority of the Court of Appeal concluded that the definition of force, as
used in the forcible rape statute (§ 261, subd. (a)(2)), has a specialized legal
meaning that would not be known to the average lay juror, and requires proof of
“physical force substantially different from or substantially greater than that
necessary to accomplish the lewd act . . . .” (Cf. Cicero, supra, 157 Cal.App.3d at
p. 474 [defining “force” in forcible lewd act prosecutions under section 288,
former subd. (b), now subd. (b)(1)]; see also People v. Pitmon (1985) 170
Cal.App.3d 38, 52 [same]; CALJIC No. 10.42 [same].) The Court of Appeal
majority opined that “[j]ust what actions or gestures will constitute the ‘force’
sufficient to demonstrate the sexual act was against the will of a victim varies with
the circumstances and age of the victim.” After reviewing the facts of several
sexual abuse decisions, the court concluded that “the record evidence does not
permit a finding [defendant] used ‘force’ to overcome Latasha’s will in order to
commit the act of intercourse. That is to say, there was no evidence [defendant]
applied any force substantially greater than or different from that necessary in
order to commit the act of intercourse.” With specific regard to the evidence that
defendant held Latasha’s wrists pinned to the floor as he penetrated her, the Court
of Appeal majority concluded, “[i]n the context of this case [defendant’s] act of
holding her wrists is equivocal at best. Given the absence of evidence of any type
of physical gesture designed to overcome Latasha’s will, holding her wrists at this
particular moment during the sex act is just as consistent with consensual
relations.”
Justice Perluss, in a separate concurring and dissenting opinion, disagreed
that the element of force in the crime of rape has any specialized legal definition,
that the trial court was under a sua sponte duty to instruct on the definition of force
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as used in section 261, subdivision (a)(2), or that the record evidence pertaining to
defendant’s use of force in raping the victim was insufficient to sustain his
conviction of rape.
DISCUSSION
Rape is a general intent offense. (People v. Osband (1996) 13 Cal.4th 622,
685.) Forcible rape is defined as “an act of sexual intercourse accomplished with
a person not the spouse of the perpetrator . . . [¶] (2) [w]here it is accomplished
against a person’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)
(2).)2
The term “force” as used in the rape statute is not specifically defined.
Although trial courts, generally, have a duty to define technical terms that have
meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise
instruct on commonly understood words or terms used in statutes or jury
instructions. “When a word or phrase ‘ “is commonly understood by those
familiar with the English language and is not used in a technical sense peculiar to
the law, the court is not required to give an instruction as to its meaning in the
absence of a request.” ’ [Citations.] A word or phrase having a technical, legal
meaning requiring clarification by the court is one that has a definition that differs
from its nonlegal meaning. [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568,
574.)

2
Rape without proof of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury can also be perpetrated against victims who, because of
a mental disorder or developmental or physical disability, are incapable of giving
legal consent (§ 261, subd. (a)(1)), and under other statutorily prescribed
circumstances.
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There are several nonlegal definitions of “force” that have been cited in the
cases construing penal provisions that incorporate the term. “One nonlegal
meaning of force is ‘to press, drive, attain to, or effect as indicated against
resistance . . . by some positive compelling force or action.’ (Webster’s 3d New
Internat. Dict. (1993) p. 887, col. 2, italics omitted.) Another is ‘to achieve or win
by strength in struggle or violence.’ (Ibid.)” (People v. Elam (2001) 91
Cal.App.4th 298, 306 [assault with intent to commit forcible oral copulation under
§ 220].) If we conclude the Legislature’s use of the term “force” in the rape
statute was not intended to have any specialized legal meaning significantly
different from such common usage definitions, then trial courts are under no
obligation to instruct sua sponte on the definition of the term. (People v. Elam,
supra, 91 Cal.App.4th at p. 306.)
A plain reading of section 261 in its entirety supports a conclusion that the
Legislature did not intend the term “force,” as used in the rape statute, to be given
any specialized legal definition. (See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973,
978 [statutory subdivisions within same section must be interpreted consistently
with one another].) In 1990, the Legislature added “duress” and “menace” to
section 261 as further means by which rape could be accomplished against a
victim’s will, and added subdivisions (b) and (c) to specifically define those terms.
(Stats. 1990, ch. 630, § 1, p. 3096.) Although the Legislature thus saw fit to
expressly and specifically define the terms “menace” and “duress” as utilized in
section 261, subdivision (a)(2), it has not seen fit to do the same for the term
“force,” also found in subdivision (a)(2). This supports a conclusion that no
specialized legal meaning was ever intended for that term. (See City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74, 88.)
Nor is there anything in the common usage definitions of the term “force,”
or in the express statutory language of section 261 itself, that suggests force in a
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forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. (Cicero, supra, 157 Cal.App.3d at p. 474, italics
added.) To the contrary, it has long been recognized that “in order to establish
force within the meaning of section 261, subdivision (2), the prosecution need
only show the defendant used physical force of a degree sufficient to support a
finding that the act of sexual intercourse was against the will of the [victim].”
(People v. Young (1987) 190 Cal.App.3d 248, 257-258.) Even prior to the pivotal
1980 amendment of the rape statute, when the victim’s resistance to the rapist’s
attack and the rapist’s act of overcoming that resistance by force or violence still
had to be shown (see discussion below), it was nevertheless understood that
“ ‘ “The kind of physical force is immaterial; . . . it may consist in the taking of
indecent liberties with a woman, or laying hold of and kissing her against her
will.” ’ ” (People v. Tollack (1951) 105 Cal.App.2d 169, 171, quoting People v.
Bradbury (1907)151 Cal. 675, 677, italics added.)
The legislative history of the 1980 amendment of section 261 further
supports a conclusion that the Legislature intended “force” to have a common
usage meaning, rather than a specialized legal definition, and that hence there is no
sua sponte duty to specially instruct the jury in a rape case on the definition of that
term.
“Until its amendment in 1980, former section 261, subdivisions 2 and 3
defined rape as an act of sexual intercourse under circumstances where the person
resists, but where ‘resistance is overcome by force or violence’ or where ‘a person
is prevented from resisting by threats of great and immediate bodily harm,
accompanied by apparent power of execution . . . .’ [¶] The Legislature amended
section 261 in 1980 to delete most references to resistance. (Stats. 1980, ch. 587,
§ 1, p. 1595.) In pertinent part, the statute now defines rape as ‘an act of sexual
9

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intercourse accomplished with a person not the spouse of the perpetrator, under
any of the following circumstances: . . . [¶] (2) Where it is accomplished against
a person’s will by means of force or fear of immediate and unlawful bodily injury
on the person or another.’ ” (People v. Barnes (1986) 42 Cal.3d 284, 292, fns.
omitted (Barnes).)3 “Prior to 1981, when an accused was charged with rape by
means of force or violence, the jury was instructed, in accordance with the
language of former section 261, subdivision 2, that the ‘element’ of resistance
must be proved. (Former CALJIC No. 10.00 (1979 rev.).) By contrast, the 1982
revision of CALJIC No. 10.00 mirrored the statutory change and now allows the
jury to convict of rape by force or fear under section 261, subdivision (2), without
proof of victim resistance.” (Barnes, supra, 42 Cal.3d at p. 296, fns. omitted.)
The elimination of the resistance requirement from the rape statute was the
Legislature’s response to concerns that rape victims who resisted their attackers
oftentimes suffered greater physical injuries than victims who did not resist, and to
the further circumstance that prosecutors were increasingly either unable or
unwilling to file rape charges where victim resistance could not be proved.
(Barnes, supra, 42 Cal.3d at p. 302.) We observed in Barnes that elimination of
the resistance requirement from the rape statute “effected a crucial change in the
fact-finding process” (id. at p. 296) “consistent with the modern trend of removing
evidentiary obstacles unique to the prosecution of sexual assault cases.” (Barnes,
supra, 42 Cal.3d at p. 301.) We explained that “By removing resistance as a

3
As noted, section 261, subdivision (2) was subsequently amended to add
sexual penetration by “duress” or “menace” as alternate means by which rape
could be accomplished against a victim’s will (now § 261, subd. (a)(2)), and to
add subdivisions (b) and (c) which specifically define those terms. (Stats. 1990,
ch. 630, § 1, p. 3096.)

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prerequisite to a rape conviction, the Legislature has brought the law of rape into
conformity with other crimes such as robbery, kidnapping and assault, which
require force, fear, and nonconsent to convict.” (Id. at p. 302.)
Whereas, prior to the 1980 amendment of section 261, conviction of
forcible rape required that the accused employ that degree of force necessary
under the circumstances to overcome the victim’s resistance (Barnes, supra, 42
Cal.3d at p. 304), under the modern rape statute, the jury no longer evaluates the
element of force in terms of whether it physically prevents the victim from
resisting or thwarting the attack. As one court observed, “By eliminating the
resistance requirement, the Legislature clearly intended to change prior law with
regard to the use of force in rape.” (People v. Young, supra, 190 Cal.App.3d at
p. 259.) “[T]he fundamental wrong at which the law of rape is aimed is not the
application of physical force that causes physical harm. Rather, the law of rape
primarily guards the integrity of a woman’s will and the privacy of her sexuality
from an act of intercourse undertaken without her consent. Because the
fundamental wrong is the violation of a woman’s will and sexuality, the law of
rape does not require that ‘force’ cause physical harm. Rather, in this scenario,
‘force’ plays merely a supporting evidentiary role, as necessary only to insure an
act of intercourse has been undertaken against a victim’s will.” (Cicero, supra,
157 Cal.App.3d at p. 475.)
Barnes’s recognition that the element of force plays a similar role in
robbery and rape prosecutions lends further support to our conclusion that the
Legislature did not intend force to have a special meaning as used in the rape
statute. “Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) As with the crime of rape,
resistance by the victim is not a required element of robbery. (People v. Mungia
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(1991) 234 Cal.App.3d 1703, 1708.) As with rape, for purposes of the crime of
robbery, the degree of force utilized is immaterial. (People v. Garcia (1996) 45
Cal.App.4th 1242, 1246 [light “tap” on shoulder of robbery victim]; see also
People v. Jones (1992) 2 Cal.App.4th 867, 871.) Critically, this court has held that
“The terms ‘force’ and ‘fear’ as used in the definition of the crime of robbery have
no technical meaning peculiar to the law and must be presumed to be within the
understanding of jurors.” (People v. Anderson (1966) 64 Cal.2d 633, 640.) By
parity of reasoning, the same conclusion must be reached regarding the
requirement of force found in the rape statute.
The Court of Appeal majority placed principal reliance on Cicero, supra,
157 Cal.App.3d 465, the case that first articulated the specialized legal definition
of “force” required for conviction of lewd acts by force on a child under the age of
14. (§ 288, subd. (b)(1).) Cicero held that conviction of forcible lewd acts on a
minor requires evidence of “physical force substantially different from or
substantially greater than that necessary to accomplish the lewd act . . . .” (Id. at
p. 474.) The following year the same court, in People v. Pitmon, supra, 170
Cal.App.3d 38, held that because the requirement of “force” in section 288,
subdivision (b) has “a specialized meaning not known to the average lay juror,”
the trial court had erred in failing to instruct sua sponte on that term. (Pitmon, at
p. 52.)
The Court of Appeal majority in this case believed that same specialized
definition of force must be applied to forcible rape prosecutions under section 261,
subdivision (a)(2), and that trial courts accordingly have a sua sponte duty to
specially instruct the jury with that definition in forcible rape cases. The Court of
Appeal’s reliance on Cicero was misplaced.
Cicero was not a forcible rape case. There is considerable difference
between the crime of lewd acts by force on a child under the age of 14, with which
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Cicero was directly concerned (see § 288, former subd. (b), now subd. (b)(1)), and
the crime of forcible rape. Section 288 is broken down into two subdivisions and
proscribes very different conduct than that which constitutes forcible rape under
section 261, subdivision (a)(2). Subdivision (a) of section 288 criminalizes all
lewd acts committed with a child under the age of 14 with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the
child. (§ 288, subd. (a).) Subdivision (b)(1) of section 288, in turn, increases the
punishment for the same acts proscribed in subdivision (a) when they are
accomplished by the use of force, violence, duress, menace, or threat of great
bodily harm. (§ 288, subd. (b)(1).)
The Cicero court examined the two subdivisions of section 288 as they
related to one another and concluded, “Subdivisions (b) [now (b)(1)] and (a) of
section 288 on their face draw a distinction between those lewd acts that are
committed by force and those that are not. Because of the application of sections
1203.066, subdivision (a)(1), and 667.6, subdivision (d), the violation of
subdivision (b) is manifestly a more serious offense than the violation of
subdivision (a). The sentencing court cannot grant probation to a defendant
convicted of subdivision (b). (§ 1203.066, subd. (a)(1).) In many cases, a
defendant convicted of two or more offenses under subdivision (b) will face a
mandatory term in state prison that is at least twice as long as the term available to
a defendant who commits multiple offenses under subdivision (a). (§ 667.6, subd.
(d).) The consequential statutory distinction between subdivisions (a) and (b)
must be given significance, because the Legislature is not presumed to use
statutory language in a sense which would render nugatory or redundant
important provisions of a statute. [Citations.] Subdivision (b) must therefore
proscribe conduct significantly different from that proscribed by subdivision (a).”
(Cicero, supra, 157 Cal.App.3d at pp. 473-474, italics added.)
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The Cicero court was clearly focusing on the distinctions between
nonforcible lewd acts under section 288, subdivision (a), and forcible lewd acts
proscribed by former subdivision (b) [now (b)(1)] of that section. The court
reasoned that in order for the statutory scheme of section 288 to make sense, the
Legislature must have intended that the “force” required to commit a forcible lewd
act under subdivision (b) be substantially different from or substantially greater
than the physical force inherently necessary to commit a lewd act proscribed under
subdivision (a).
That same distinction does not arise in the context of the rape statute. The
element of force in forcible rape does not serve to differentiate between two forms
of unlawful sexual contact as it does under section 288. When two adults engage
in consensual sexual intercourse, whether with or without physical force greater
than that normally required to accomplish an act of sexual intercourse, the forcible
rape statute is not implicated. The gravamen of the crime of forcible rape is a
sexual penetration accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury. As
reflected in the surveyed case law, in a forcible rape prosecution the jury
determines 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 physically facilitated
sexual penetration or prevented the victim from physically resisting her attacker.
The Legislature has never sought to circumscribe the nature or type of forcible
conduct that will support a conviction of forcible rape, and indeed, the rape case
law suggests that even conduct which might normally attend sexual intercourse,
when engaged in with force sufficient to overcome the victim’s will, can support a
forcible rape conviction. (See People v. Tollack, supra, 105 Cal.App.2d at p. 171
[“The kind of physical force is immaterial . . . it may consist in . . . laying hold of
and kissing [the victim] against her will.”) Nor has the rape law ever sought to
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quantify the amount of force necessary to establish the crime of forcible rape, at
least not until the courts in People v. Mom (2000) 80 Cal.App.4th 1217, 1224,
People v. Bergschneider (1989) 211 Cal.App.3d 144, 153, and the instant case
sought to apply Cicero’s special definition of force for forcible lewd act
prosecutions to forcible rape cases.
The question for the jury in this case was simply whether defendant used
force to accomplish intercourse with Latasha against her will, not whether the
force he used overcame Latasha’s physical strength or ability to resist him. As we
explained in Barnes, “Although resistance is no longer the touchstone of the
element of force, the reviewing court still looks to the circumstances of the case,
including the presence of verbal or nonverbal threats, or the kind of force that
might reasonably induce fear in the mind of the victim, to ascertain sufficiency of
the evidence of a conviction [of forcible rape].” (Barnes, supra, 42 Cal.3d at
p. 304.)
We therefore conclude that the Court of Appeal erred in applying Cicero’s
“substantially different from or substantially greater” definition of force,
applicable in forcible lewd conduct prosecutions under section 288, subdivision
(b)(1) (see CALJIC No. 10.42), to this forcible rape case. The trial court was
under no duty to specially instruct sua sponte on the commonly understood
definition of force as it is used in the rape statute (§ 261, subd. (a)(2)). To the
extent People v. Mom, supra, 80 Cal.App.4th 1217, 1224, and People v.
Bergschneider, supra, 211 Cal.App.3d 144, 153, reached the same conclusion,
under similar reasoning, as did the Court of Appeal majority in this case, those
decisions are disapproved.4

4
We recognize that recently, in In re John Z. (2003) 29 Cal.4th 756, 763, a
forcible rape case under section 261, subdivision (a)(2) involving the withdrawal

(footnote continued on next page)
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In considering defendant’s claim of insufficiency of the evidence of force
necessary to affirm his conviction of forcible rape, we must determine only
whether, on the record as a whole, any rational trier of fact could find him guilty
beyond a reasonable doubt. (Barnes, supra, 42 Cal.3d at p. 303.) We view the
evidence in the light most favorable to the prosecution, and presume in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Under that applicable deferential standard of review, we conclude the
evidence in this case is sufficient to support the jury’s determination that
defendant used force, as that term is commonly used and understood, to
accomplish intercourse against Latasha’s will. Defendant pinned Latasha’s arms
to the floor as he penetrated her vagina with his penis. The victim unequivocally
testified she did not consent to the act of intercourse and that it was accomplished
against her will. At trial, defendant never claimed that he reasonably believed
Latasha consented to intercourse. Rather, he denied ever touching Latasha
inappropriately and denied all sexual assault allegations, claiming Latasha and her
mother had falsely accused him to gain leverage in an ongoing custody dispute. In

(footnote continued from previous page)

of initial consent to sexual intercourse, this court cited People v. Mom, supra, 80
Cal.App.4th at page 1224, when briefly pondering whether the defendant’s use of
force was sufficient to convict him of forcible rape. Clearly, the forcible conduct
utilized in that case—grabbing the victim’s waist, pulling her back down, and
rolling her over to facilitate the continuation of sexual intercourse (In re John Z.,
at p. 760)—would have been sufficient under any standard. We did not have the
issue of whether the Cicero/Mom specialized definition of force is applicable in
forcible rape cases directly before us in In re John Z. Accordingly, our citation to
People v. Mom, and our mention of the “substantially greater/substantially
different” definition of force followed in People v. Mom was dicta, and is not
controlling on the point of law we decide today.
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evaluating the credibility of both the victim’s and defendant’s testimony, the jury
had before it evidence of defendant’s longstanding history of sexually molesting
Latasha as a minor. He began molesting her in 1994 when she was between 10
and 11 years old and had continued to molest her once or twice a week during the
years 1996 and 1997. Several years earlier he had pled guilty to a misdemeanor of
annoying or molesting a child under the age of 18 and had been placed on
probation and ordered to stay away from Latasha. Finally, moments before the act
of sexual penetration that formed the basis of the forcible rape count here in
question, defendant, following a familiar pattern, had ordered Latasha to touch his
penis until it was erect, digitally penetrated her, and orally copulated her.
On appeal, defendant now urges there was no evidence that Latasha
demonstrated any unwillingness to engage in these sexual activities, or that she
objected to the intercourse until defendant had partially penetrated her, at which
point she was able to stop him by getting up. These contentions, however, do not
demonstrate that the evidence was insufficient to support the forcible rape
conviction. Defendant had engaged in various types of criminal sexual conduct
(digital penetration, oral copulation) with Latasha in the past which, based on her
reports to her family members and teacher, led to his prior conviction of molesting
a minor. Moreover, Latasha had never previously encountered defendant’s
attempt to have intercourse with her, as this was his first attempt. The jury could
reasonably infer that by pinning her arms to the floor, defendant was able to
achieve penetration on the occasion in question without Latasha’s consent before
she was able to register her objection. The circumstance that defendant did not
apply additional force to continue the intercourse after Latasha objected does not
eliminate his culpability for his initial penetration of Latasha against her will by
use of force.
17

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The evidence, taken as a whole and viewed in the light most favorable to
the guilty verdict, is sufficient to support the conviction of forcible rape.
CONCLUSION
The judgment of the Court of Appeal is reversed, and the matter remanded
to that court for further proceedings consistent with the views expressed herein.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

18

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Griffin
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 100 Cal.App.4th 917
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S109734
Date Filed: August 9, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: C. Edward Simpson

__________________________________________________________________________________

Attorneys for Appellant:

Patricia A. Scott, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Ana R. Duarte, Susan Sullivan Pithey, Donald E. De Nicola, Marc
J. Nolan and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae
on behalf of Plaintiff and Respondent.

19

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia A. Scott
Post Office Box 83087
San Diego, CA 92138-3087
(619) 296-4514

Allison H. Chung
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2058

20

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Opinion Information

Date:	Docket Number:
Mon, 08/09/2004	S109734

Disposition
Aug 9 2004	Opinion: Reversed

Dockets
Sep 6 2002	Petition for review filed   appellant Bryant D. Griffin
Sep 10 2002	Received Court of Appeal record   one doghouse sent overnight with petition.
Sep 26 2002	Answer to petition for review filed   By counsel for appellant {Bryant D. Griffin}.
Sep 26 2002	Request for depublication (petition for review pending)   By the People
Oct 23 2002	Petition for Review Granted; issues limited (criminal case)   Briefing and argument shall be limited to the issues raised in the respondent's petition for review. Votes: George, CJ., Baxter, Chin and Moreno, JJ.
Nov 19 2002	Request for extension of time filed   to file opening/brief merits respondent asking to > 12-22-2002
Nov 22 2002	Counsel appointment order filed   Upon request of appellant for appointment of cunsel, Patricia Scott is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief is filed.
Dec 16 2002	Request for extension of time filed   to file resp.'s Opening Brief/Merits asking to Jan.,21, 2003 [2nd. request]
Dec 23 2002	Extension of time granted   Based on the representation of Allison H. Chung, counsel for respondent, that she anticipates filing respondent's opening brief on the merits within such time, the time to file this brief is extended to and including January 21, 2003.
Jan 21 2003	Opening brief on the merits filed   counsel for resp (Attorney General)
Feb 13 2003	Change of Address filed for:   Counsel for Appellant {Bryant Griffin}.
Feb 14 2003	Request for extension of time filed   by counsel for appellant requesting to March 22, 2003 to file answer brief on the merits. (recv'd in San Diego)
Feb 25 2003	Extension of time granted   To March 24, 2003 to file Appellant's Answer Brief on the Merits.
Mar 20 2003	Request for extension of time filed   Appellant asking for a 30-day extension to April 23, 2003 to file Appellant's Answer Brief on the Merits.
Mar 27 2003	Extension of time granted   Based on the representation of Patricia A. Scott, counsel for appellant, that she anticipates filing appellant's answer brief on the merits by April 23, 2003, the time to file this brief is extended to and including that date. No further extensions are contemplated.
Apr 23 2003	Answer brief on the merits filed   In San Diego by counsel for appellant {Bryant D. Griffin}.
May 9 2003	Request for extension of time filed   to file reply brief/merits asking to June 12 Attorney General, Allison Chung
May 14 2003	Extension of time granted   Based on the representation of Allison H. Chung, counsel for respondent, that barring unforessen circumstances, respondent's reply brief will be filed on or before June 12, 2003, the time to file this brief is extended to and including that date. No further extensions are contemplated.
Jun 12 2003	Reply brief filed (case fully briefed)   by respondent
Jun 13 2003	Compensation awarded counsel   Atty Scott
Jun 23 2003	Received application to file Amicus Curiae Brief   Criminal Justice Legal Foundation in support of Respondent {The People}.
Jun 27 2003	Permission to file amicus curiae brief granted   Criminal Justice Legal Foundation in support of Respondent.
Jun 27 2003	Amicus Curiae Brief filed by:   Criminal Justice Legal Foundation in support of Respondent. Answer is due within twenty (20) days.
Jul 21 2003	Response to amicus curiae brief filed   By appellant {Bryant D. Griffin} to AC Brief of Criminal Justice Legal Foundation./ 40(K).
Apr 28 2004	Case ordered on calendar   5-26-04 9am in San Francisco (re sched from 6-2-04, L. A. @ 1:30 p.m.)
May 26 2004	Cause argued and submitted
Aug 9 2004	Opinion filed: Judgment reversed   and remanded. Majority Opinion by Baxter, J. joined by George, C.J., Kennard, Werdegar, Chin, Brown & Moreno JJ.
Aug 25 2004	Compensation awarded counsel   Atty Scott
Sep 13 2004	Remittitur issued (criminal case)
Sep 20 2004	Received:   Receipt for remittitur
Oct 6 2004	Returned record   To 2 DCA Div 7.

Briefs
Jan 21 2003	Opening brief on the merits filed
Apr 23 2003	Answer brief on the merits filed
Jun 12 2003	Reply brief filed (case fully briefed)
Jun 27 2003	Amicus Curiae Brief filed by:
Jul 21 2003	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website