People V. Galvarino-Gonzalez - G028091, 2003 Cal. App. Unpub. LEXIS 5138 (May 27, 2003)

Rule:

Forcible rape requires proof beyond a reasonable doubt that the victim's will was overcome by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 261, subd. (a)(2)).

Facts:

Myrna A. was mentally disabled. The emergency room physician who examined her for evidence of sexual trauma thought she appeared to be mentally retarded. At the prosecution's request, the court did not require her to take the standard oath but rather allowed her to testify after simply promising to tell the truth. In November 1999 she left the apartment at around 8:00 p.m. and went to wait for her brothers in a nearby alley. Her mother went to check on her an hour later but could not find her. She testified that while she was in the alley, defendant Hector Galvarino-Gonzalez drove by in a truck with a male friend. She waved at defendant and he stopped; he told her to get in, but she declined. However, defendant hugged her and lifted her into the truck. Defendant dropped off his friend and drove her to a local motel. Once inside the room, he touched her breasts and vaginal area. He helped her lie down on the bed and touched her everywhere. She told him to stop, but he did not listen. Despite her efforts and protestations, defendant succeeded in pulling off her pants. Defendant unsuccessfully attempted oral copulation and anal intercourse with Myrna and then raped her. A jury convicted defendant of one count of false imprisonment by violence or menace, a lesser included offense in the charged count of kidnapping to commit rape, and one count of forcible rape. The court sentenced the defendant to six years in state prison for the forcible rape, and to a two-year prison term, to be served concurrently, for the false imprisonment.

Issue:

Was there sufficient evidence for the defendant’s forcible rape conviction?

Answer:

Yes.

Conclusion:

The Court held that there was sufficient evidence that supported the forcible rape conviction. Forcible rape requires proof beyond a reasonable doubt that the victim's will was overcome by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 261, subd. (a)(2)). The court ruled that the evidence was sufficient to support the jury's finding Myrna's will was overcome by force. That although defendant’s actions were not violent or especially brutal, they nonetheless forced defendant’s will on a very unwilling, vulnerable victim. Given the victim’s childlike, compliant nature, neither substantial nor violent force was necessary to overcome her will. Thus, the court concluded that the cumulative effect of defendant’s persistent touching, false imprisonment, and domination of the victim, and his physical overpowering of her in the struggle over her pants, constituted force sufficient for conviction under section 261, subdivision (a)(2). That, in sex offense cases, it was not unusual for the element of force to be supplied by acts necessary to accomplishing the sex offense.