People of Guam v. Normandy Ilagan Penaflorida

                    IN THE SUPREME COURT OF GUAM



                                PEOPLE OF GUAM,
                                      Plaintiff-Appellee,

                                              v.

                   NORMANDY ILAGAN PENAFLORIDA,
                                  Defendant-Appellant.


                           Supreme Court Case No. CRA22-001
                           Superior Court Case No. CF0734-18


                                         OPINION


                               Cite as: 

                        Appeal from the Superior Court of Guam
                        Argued and submitted on August 11, 2022
                              Via Zoom video conference



Appearing for Defendant-Appellant:                 Appearing for Plaintiff-Appellee:
Brian E. Kegerreis, Esq.                           Woodrow D. Pengelly, Esq.
Assistant Public Defender                          Assistant Attorney General
Public Defender Service Corporation                Office of the Attorney General
779 Rte. 4                                         Prosecution Division
Sinajana, GU 96910                                 590 S. Marine Corps Dr.
                                                   Tamuning, GU 96913
People v. Penaflorida, 

, Opinion                                             Page 2 of 11


BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;
and KATHERINE A. MARAMAN, Associate Justice.


TORRES, J.:

[1]     Defendant-Appellant Normandy Ilagan Penaflorida appeals his conviction for Fourth

Degree Criminal Sexual Conduct (As a Misdemeanor). On appeal, Penaflorida asserts that the

government failed to provide sufficient evidence that the element of force or coercion was used to

accomplish sexual contact under 9 GCA § 25.30(a)(1). We affirm the trial court’s judgment of

conviction.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

[2]     In December 2018, the then-fourteen-year-old victim, A.C.C., reported that Penaflorida

had inappropriately touched her. Penaflorida was charged with Second Degree Criminal Sexual

Conduct (“CSC”) (As a First Degree Felony), and Fourth Degree CSC (As a Misdemeanor).

[3]     A.C.C. testified that, on the day of the incident, she was in the living room when

Penaflorida—her uncle—began “wiggling the door” to be let in after she greeted him. Transcript

(“Tr.”) at 99 (Jury Trial, July 26, 2021). A.C.C.’s father, who suffers from kidney failure, was

asleep in another room. A.C.C. testified that, after she let Penaflorida in, Penaflorida hugged her

for about 20-30 seconds and that his hand was on her buttocks—specifically, on her “butt cheek”—

during that hug. Id. at 99-100. A.C.C. testified that when Penaflorida put his hand on her buttocks,

she “didn’t know what to think,” id. at 99, and that it made her “feel really shocked and

uncomfortable,” id. at 102. When asked “what was happening with [her] upper body” during the

hug, A.C.C. testified, “Nothing, I was just really shocked.” Id. She said that before releasing her,

Penaflorida told her, “You are sexy.” Id. at 99. A.C.C. then testified that before leaving,

Penaflorida asked her not to tell her father, and that when she went to kiss Penaflorida goodbye on
People v. Penaflorida, 

, Opinion                                               Page 3 of 11


the cheek out of respect, he kissed her on the lips. When asked how she felt when Penaflorida

kissed her, A.C.C. testified, “I didn’t know what to think. I was just really shocked.” 

.

[4]     Guam Police Department Officer Donny T. Pangelinan also testified to details Penaflorida

shared in an interview after being read his Miranda rights. Pangelinan testified that Penaflorida

asked “if he was going to receive a long jail time.” 

. Pangelinan testified that Penaflorida

said that “he [knew he was] in trouble, because his niece, [A.C.C.], was angry about him kissing

her.” 

. Pangelinan testified that Penaflorida admitted to saying A.C.C. looked sexy, and

that Penaflorida said he “accidentally rested his left hand right above [A.C.C.’s] butt area” for “[a]

few seconds” before “he moved it away and apologized.” 

. Finally, Pangelinan testified

that, after asking Penaflorida why he instructed A.C.C. not to inform her father, Penaflorida said

it was “because he knew what he did was wrong.” 

.

[5]     The jury found Penaflorida not guilty of Second Degree CSC and guilty of Fourth Degree

CSC (“CSC IV”). Penaflorida was sentenced to one year of imprisonment with all but 60 days

suspended and with credit for time served. He was ordered to pay a fine, found liable for restitution

in an amount to be determined at a later hearing, and ordered to perform community service.

Penaflorida timely appealed his conviction.

                                         II. JURISDICTION

[6]     This court has jurisdiction to hear appeals from a final judgment of the Superior Court

under 

(a)(2) (Westlaw current through 

), 7 GCA §§ 3107

and 3108(a) (2005), and 8 GCA § 130.15(a) (2005).

                                   III. STANDARD OF REVIEW

[7]     “Where a defendant raised the issue of sufficiency of the evidence by a motion for

judgment of acquittal, we review the trial court’s denial of the motion de novo.” People v. Song,
People v. Penaflorida, 

, Opinion                                                               Page 4 of 11

 ¶ 26 (citing People v. Anastacio, 

 ¶ 10). A sufficiency-of-the-

evidence analysis requires us to “review the evidence presented at trial in the light most favorable

to the People and determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. This is a ‘highly deferential standard of

review.’” 

 (internal citations omitted). “[T]he People ‘must be afforded the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn therefrom.’” 

 ¶ 28

(quoting State v. Sisk, 

 (Tenn. 2011)). “It is not the province of the court . . . to

resolve conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; such matters are for the jury.” 

 ¶ 29

(quoting State v. Williams, 

 (Iowa 2005)).

                                                 IV. ANALYSIS

[8]      Under 9 GCA § 25.30, a person is guilty of CSC IV “if he or she engages in sexual contact

with another person and if . . . (1) force or coercion is used to accomplish the sexual contact . . . .”

9 GCA § 25.30(a)(1) (2005).1 Under 9 GCA § 25.10, force or coercion includes, but is not limited

to, a non-exhaustive list of circumstances, the most pertinent of which to this case are: “(A) when

the actor overcomes the victim through the actual application of physical force or physical




          1
            At the time of the incident underlying this case, 9 GCA § 25.30(a) provided two alternative circumstances
that would constitute CSC IV: when “(1) force or coercion is used to accomplish the sexual contact,” or when “(2) the
actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.”
9 GCA § 25.30(a)(1)-(2) (2005). Earlier this year, the statute was amended to add a third alternative: when “(3) the
victim is at least fourteen (14) years of age and under sixteen (16) years of age.” 9 GCA § 25.30(a)(3) (added by

-079:1 (Feb. 9, 2022)). The penalty portion of the statute was also amended to allow for a reduction
from a felony of the third degree to a misdemeanor only when the defendant is a first-time offender and the victim is
at least 18 years old, see 9 GCA § 25.30(b) (as amended by 

-079:1 (Feb. 9, 2022)); the prior statute
allowed such a reduction for all first-time offenders regardless of the age of the victim, see 9 GCA § 25.30(b) (2005).
The statute was further amended a few months later to change the phrase “mentally defective” to “mentally impaired.”
9 GCA § 25.30(a)(2) (as amended by 

-101:6 (June 15, 2022)). While these amendments are irrelevant
to this appeal because they predated the sexual contact underlying Penaflorida’s conviction, the court notes the recent
developments in the statute, as the first set of amendments became law a week after Penaflorida filed this appeal.
People v. Penaflorida, 

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violence;” and “(E) when the actor, through concealment or by the element of surprise, is able to

overcome the victim.” 9 GCA § 25.10(a)(2)(A), (E) (2005).

[9]     Penaflorida argues that the trial court’s denial of his motion for judgment of acquittal was

improper because Plaintiff-Appellee People of Guam (“the People”) did not satisfy the “force or

coercion” element of CSC IV under 9 GCA §§ 25.30 and 25.10. Appellant’s Br. at 4-9 (May 2,

2022). Specifically, Penaflorida states that A.C.C. did not present evidence that Penaflorida used

force or coercion in accomplishing the alleged sexual contact. Id. at 5. He claims a lack of force

or coercion based on this court’s holding in People v. Tenorio, 

, and the Michigan

cases cited there. Appellant’s Br. at 7-9.

[10]    In Tenorio, we cited to People v. Kusumoto, 

 (1985), a California Court

of Appeal case which held that the force required in a California rape statute was not met where

“the victim’s will was not overcome by any physical force substantially different from or greater

than that necessary to accomplish the act itself.” Tenorio, 

 ¶ 44 (quoting Kusumoto,

). The Kusumoto court cited Wharton on Criminal law for the proposition

that force is not the force inherent in the sexual act itself, but the force used or threatened to prevent

or overcome resistance. Kusumoto, 

.

[11]    We recognize that Kusumoto’s test for “force” in forcible rape cases is no longer good law.

The California Supreme Court implicitly disapproved the holding in Kusumoto in People v. Griffin,

 (Cal. 2004). In Griffin, the court examined the force necessary for forcible rape

under California law. 

. The term “force” in the California rape statute was not explicitly

defined. 

 Griffin rejected the argument that the offense requires the use of physical force

“substantially different from or substantially greater than” that necessary to accomplish the act

itself. 

. “To the contrary,” the court explained, “it has long been recognized that ‘in
People v. Penaflorida, 

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order to establish force within the meaning of [California’s forcible rape statute], 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].’” Id. at 1094 (second alteration

in original) (quoting People v. Young, 

 (Ct. App. 1987)). The Griffin court

explained:

         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. Instead, the gravamen of the
         crime of forcible rape is a sexual penetration accomplished against the victim’s will
         by means of force . . . .”

Id. at 1096.

[12]     The Griffin court did not explicitly cite Kusumoto when rejecting the “substantially

different from or substantially greater than” definition of force in forcible rape cases. Instead, it

cited People v. Cicero, 

 (Ct. App. 1984), a case from a California Court of

Appeal decided a year before Kusumoto, as Cicero was the first case to articulate the “substantially

different from or substantially greater than” definition of force and was the case upon which the

lower court principally relied when it reversed Griffin’s conviction. 2 Griffin, 

. Recently, in People v. McCann, 

, 55-57 (Ct. App. 2019), the California

Court of Appeal recognized that Kusumoto’s use of the “substantially different from or

substantially greater than” definition of “force” in forcible rape cases was implicitly disapproved

by Griffin.




          2
            Griffin did not reject the Cicero definition of force in all cases. Rather, the Griffin court distinguished the
type of cases in which Cicero’s definition was meant to apply. Griffin, 

. Cicero involved the crime
of commission of a lewd act by force upon a child under the age of 14. 

. Griffin recognized the
reasoning behind Cicero’s application of a “substantially different from or substantially greater than” definition of
force in lewd act prosecutions and explained why such a definition does not apply in forcible rape cases. Griffin, 

.
People v. Penaflorida, 

, Opinion                                           Page 7 of 11


[13]    In Tenorio, this court examined the Michigan Supreme Court case of People v. Carlson,

 (Mich. 2002) (per curiam), through the lens of Kusumoto. This court noted that

the Carlson court rejected Kusumoto and held that the equivalent Michigan statute for CSC III did

not require the use of force to “overcome” the victim. Tenorio, 

 ¶ 46 (citing Carlson,

). This court also stated that the Carlson court “did not address the statutory

language requiring that ‘force or coercion’ based on actual physical force be sufficient to

‘overcome[] the victim.’” 

 (alteration in original) (emphasis added) (citing Mich. Comp. Law

Ann. § 750.520b(1)(f)(i); 9 GCA § 25.10(a)(2)(A) (2005)). This court ultimately found that “the

force used by Tenorio was not sufficient to ‘overcome[] the victim,’ and was ‘nonviolent’ and

‘incidental to [the] act of sexual penetration.’” Id. ¶ 48 (first quoting 9 GCA § 25.10(a)(2)(A)

(2005); and then quoting Carlson, 

). We recognize the possible implication in

Tenorio that the force used must be sufficient to overcome the victim, and we acknowledge that

such an implication contradicts the non-exhaustive nature of 9 GCA § 25.10(a)(2)’s list of

circumstances demonstrating force or coercion. See 9 GCA § 25.10(a)(2) (2005) (“Force or

Coercion includes but is not limited to any of the following circumstances: (A) when the actor

overcomes the victim . . . .” (third emphasis added)).

[14]    To the extent Tenorio can be read to suggest that the force used must always be sufficient

to “overcome the victim,” see id. ¶¶ 48-49, we overrule this part of Tenorio. While we often treat

California case law as persuasive authority because many of our statutes derive from California,

see In re Moylan, 

, our CSC statutes differ from California’s and were instead

patterned after Michigan’s statutes, see People v. Ehlert, 

 ¶ 20 (citing People v.

Cummins, 

 ¶ 21). Thus, we look to Michigan cases to aid us in interpreting our CSC

statutes. 

 Any reliance in Tenorio on California case law was misplaced.
People v. Penaflorida, 

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[15]    Turning now to this appeal, Penaflorida references Tenorio’s discussion of People v.

Berlin, 

 (Mich. Ct. App. 1993) (per curiam), in which the Michigan Court of

Appeals held that no force was used when the defendant placed the victim’s hand on the

defendant’s crotch without resistance, and People v. Patterson, 

 (Mich.

1987), in which the Michigan Supreme Court held that there was insufficient evidence of physical

force when the defendant placed his hand on the victim’s underwear but removed it when she

turned away. See Appellant’s Br. at 7. But Berlin and Patterson were both decided before the

amendment of Michigan’s CSC IV statute to include concealment and the element of surprise as

methods of proving force or coercion. The more relevant Michigan case cited in Tenorio is

Carlson.

[16]    In Carlson, the court noted that the “force” contemplated in Michigan’s CSC III statute

“does not mean ‘force’ as a matter of mere physics.” 

. The court held:

        [T]he requisite “force” for [CSC III] does not encompass nonviolent physical
        interaction in a mechanical sense that is merely incidental to an act of sexual
        penetration. Rather, the prohibited “force” encompasses the use of force against a
        victim to either induce the victim to submit to sexual penetration or to seize control
        of the victim in a manner to facilitate the accomplishment of sexual penetration
        without regard to the victim’s wishes.

[17]    Several Michigan cases have been decided clarifying the Carlson test, particularly as it

applies to CSC IV, rather than the CSC III application we used in Tenorio.

[18]    Of these cases, the most on point is People v. Witt, No. 316272, 

 (Mich.

Ct. App. Nov. 13, 2014) (per curiam). In Witt, the Michigan Court of Appeals held that the

defendant exerted force as required by CSC IV when he touched the victim on top of and then

inside the victim’s shorts during a hug. Id. at *1. In applying the Carlson test to the Michigan

CSC IV statute, the Witt court held that whether force or coercion exists is determined considering
People v. Penaflorida, 

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all the circumstances, 

 (citing People v. Brown, 

 (Mich. Ct. App. 1992)),

and that “[t]he actor’s ‘force’ need only be sufficient to induce the victim to submit to the sexual

act or to seize control of the victim in a manner to facilitate the accomplishment of the sexual act

without regard to the victim’s wishes,” 

 (quoting Carlson, 

). The Witt

court held that, viewed in a light most favorable to the prosecution, the victim’s testimony showed

that the “defendant used the pretext of a hug to seize control of the victim in a manner that

facilitated the accomplishment of sexual contact without regard to the victim’s wishes.” Id. at *2.

That evidence was found sufficient to support the defendant’s two convictions for CSC IV. Id.

[19]    Other Michigan cases corroborate this interpretation in CSC IV cases. In People v. Premo,

the Michigan Court of Appeals held that a teacher who pinched students on the buttocks exerted

physical force under CSC IV because “the act of pinching requires ‘the actual application of

physical force.’” 

 (Mich. Ct. App. 1995). In People v. Lechner, the Michigan

Court of Appeals held that “[l]ike the act of pinching at issue in Premo, defendant’s act of grabbing

the victim’s breasts was ‘an act of physical force because it require[d] a person to exert strength

or power on another person.’” No. 288569, 

, at *1 (Mich. Ct. App. Nov. 19,

2009) (per curiam). The court noted that “[a]lthough defendant claims a ‘touch’ does not constitute

force sufficient for a CSC IV charge, [the court] find[s] that the victim’s testimony established that

defendant grabbed her breasts . . . , with further clarification that contact . . . was actually made. .

. . Contrary to what the [trial] court apparently believed, the ‘force’ required by the CSC IV statute

does not have to ‘be so great as to overcome’ the victim.” 

 at *2 (quoting Carlson, 

). As Guam CSC laws are based upon those of Michigan, so, too, do we adopt this

interpretation.
People v. Penaflorida, 

, Opinion                                               Page 10 of 11


[20]    With these considerations in mind, we find that the evidence is sufficient to satisfy the

“force or coercion” element of CSC IV. During direct examination, A.C.C. testified that during

the hug, Penaflorida’s hand was on her “butt cheek” for 20-30 seconds. Tr. at 100 (Jury Trial, July

26, 2021). She said that during the hug, Penaflorida told her, “You are sexy,” and that before he

left, Penaflorida asked her not to tell her father. 

. A.C.C. also testified that when she tried

to kiss Penaflorida goodbye on the cheek out of respect, he kissed her on the lips. 

 A.C.C. said

that while Penaflorida’s hand was on her buttocks, she “didn’t know what to think,” 

 and that

she felt “really shocked and uncomfortable,” 

. Although some contradictory evidence

was presented—e.g., Penaflorida’s statements to Officer Pangelinan that Penaflorida

“accidentally” placed his hand “above [A.C.C.’s] butt area” and that he thereafter apologized, 

at 57—Officer Pangelinan also testified that Penaflorida admitted to telling A.C.C. that she looked

sexy, 

 said that “he [knew he was] in trouble, because his niece, [A.C.C.], was angry about him

kissing her” 

, and admitted that he told A.C.C. not to tell her father “because he knew what

he did was wrong,” 

. Viewing the evidence in the light most favorable to the People, a

rational trier of fact could have found that Penaflorida used the pretext of a hug to seize control of

A.C.C. in order to touch her buttocks, without regard to her wishes, thus satisfying the element of

“force or coercion” beyond a reasonable doubt.

[21]    Finally, we note that throughout his brief, Penaflorida points to inaction on the part of

A.C.C. to support his insufficiency claim. See Appellant’s Br. at 6 (“She did not scream or jump

back when the hug occurred.”); 

 at (“There is nowhere in the evidence that A.C.C. screamed,

said stop, yelled for help, pushed the Defendant’s hand away, or ran away.”); id. at 8 (“She never

did scream, run away, or yell for help.”). Penaflorida relies in part on language in Tenorio that

suggests a lack of evidence of resistance supports a finding of insufficient evidence of force or
People v. Penaflorida, 

, Opinion                                             Page 11 of 11


coercion. See Appellant’s Br. at 7-8. However, Guam’s CSC statutes—and modern rape reform

laws in other jurisdictions—do not require a victim to resist, as such a requirement shifts the focus

from the defendant’s conduct to the victim’s reaction to the sexual contact or penetration. Cf. State

v. Knapp, 

 (Wash. 2021) (en banc). Title 9 GCA § 25.45 states, “A victim

need not resist the actor for a proper prosecution under §§ 25.15 through 25.35.” 9 GCA § 25.45

(2005). To the extent Tenorio could be read to suggest that absence of evidence of resistance or

of an expression of lack of consent supports a finding of insufficient evidence of force or coercion,

we clarify that resistance is not required for a finding of guilt under Guam’s CSC statutes. See id.

[22]    Viewing the evidence in the light most favorable to the prosecution, we find that a rational

jury could find Penaflorida’s hug and subsequent touching of A.C.C.’s buttocks to constitute an

application of actual force, thereby satisfying the “force or coercion” element of CSC IV.

                                          V. CONCLUSION

[23]    The evidence of actual force was sufficient to sustain Penaflorida’s criminal sexual conduct

conviction. We therefore AFFIRM the trial court’s judgment of conviction.




                    /s/                                                 /s/
            ROBERT J. TORRES                                 KATHERINE A. MARAMAN
             Associate Justice                                   Associate Justice



                                                  /s/
                                       F. PHILIP CARBULLIDO
                                             Chief Justice