California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County,
No. KA115989 Steven Blades, Judge. Affirmed.
Melanie K. Dorian and Alex Coolman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Becerra, Attorney General of California, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Stephanie A. Miyoshi,
Deputy Attorney General, for Plaintiff and Respondent.
convicted Moises Aguilar of forcible sexual penetration and
sexual battery. Aguilar appeals only the former conviction,
arguing there was no evidence of force and the trial court
erroneously instructed the jury. We affirm. Code references
are to the Penal Code.
are the facts.
father dated and lived with Aguilar's mother for about
five years. A.R. met Aguilar when she was 10 years old. At
one point, A.R. lived in the same house as her father,
Aguilar's mother, and Aguilar. A.R. and Aguilar watched
TV and played games together.
started touching A.R. inappropriately when she was 13 or 14.
Aguilar was 17. He grabbed A.R.'s chest and bottom
several times a month. This grabbing made A.R. uncomfortable.
one morning, A.R. and Aguilar were watching TV. A.R. was on a
couch. Aguilar sat about a foot away. A.R. was getting ready
to sleep when Aguilar grabbed her chest. A.R. told Aguilar no
but he did not stop. He put his hand under A.R.'s pants
and underwear, rubbed her vagina, and put his fingers inside.
This hurt A.R. A.R. continued to say no but he would not
stop. A.R. resisted by grabbing and pulling his arm
“the whole time.” She could not pull his hand
away because “he was too strong.” A.R. was
panicked and scared.
grabbed A.R.'s arm and pulled it towards his penis. A.R.
was able to pull her arm away.
moved his fingers in and out of A.R.'s vagina for a long
time. He stopped only when his mother approached. He
disengaged before his mother saw anything.
24-year-old sister M.R. also lived there. M.R. returned from
work late one night. Five or six people were on the couch
watching TV. M.R. squeezed on the couch, which was also her
bed, and tried to sleep. She lay on her stomach with her
hands over her head. A blanket covered her. Aguilar sat on
the couch near M.R.'s head.
later, M.R. felt a hand touch the side of her breast under
the blanket. She shoved her arm down to push the hand away,
signaling “your hand doesn't belong there.”
The hand pushed her arm away and touched her breast
agaiN.M.R. turned and saw it was Aguilar. M.R. grabbed his
hand to push him off, but he was stronger and started rubbing
her breast. Aguilar put his ...