California Penal Code Section 264.1 Interpretation

In People v. Wheeler (1977) 71 Cal. App. 3d 902 [139 Cal. Rptr. 737], the jury was instructed that "force and violence" within the meaning of section 264.1 means any wrongful application of physical force, including the slightest unlawful touching if done in an insolent, rude, or angry manner. The defendant argued this was inconsistent with section 261, former subdivision 2, which at the time called for "that amount of physical force required in the circumstances to overcome the victim's resistance." (71 Cal. App. 3d at p. 907.) This court concluded: "Nothing in the language of section 264.1 or its legislative history supports the conclusion inherent in defendant's argument that the enhanced punishment was to apply only in cases of forcible rape within the meaning of section 261, subdivision 2. We are persuaded, instead, to the alternative conclusion that the statute was designed to discourage gang sexual assaults where any unlawful force is used." (Ibid.)