Filed 4/4/14
                            CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



THE PEOPLE,                                      D063847

        Plaintiff and Appellant,

        v.                                       (Super. Ct. No. CD2438884)

KATHY J. ROWE,

        Defendant and Respondent.


        APPEAL from orders of the Superior Court of San Diego County, Runston G.

Maino and Joan P. Weber, Judges. Reversed.



        Bonnie M. Dumanis, District Attorney, Laura E. Tanney, Chief Deputy District

Attorney, Gary W. Schons and Martin E. Doyle, Deputy District Attorneys, for Plaintiff

and Appellant.

        Law Office of Charles Sevilla and Charles M. Sevilla for the Defendant and

Respondent.
                                    INTRODUCTION

       In this case, we must decide whether a magistrate erred in determining a defendant

should not have to answer charges of soliciting forcible rape and forcible sodomy after

the defendant advertised online for sexual partners for an unwitting victim and then,

while impersonating the victim, invited men who responded to the advertisement to

appear at the victim's home unannounced to engage in "freak show" sexual activity. We

conclude the magistrate indeed erred and, therefore, reverse the superior court's order

denying the People's motion to reinstate the charges.

                                    BACKGROUND

Preliminary Hearing Evidence

       The People filed an amended felony complaint against Kathy J. Rowe alleging,

among other charges, one count of solicitation to commit forcible sodomy and one count

of solicitation to commit forcible rape (Pen. Code, § 653f, subd. (c)).1 At a preliminary

hearing on the charges, the prosecutor presented evidence showing Rowe, impersonating

the victim, posted an online advertisement, entitled, "Carmel Valley Freak Show,"

offering adult entertainment of all types while the victim's husband was not at home.2

Solicitation to Commit Forcible Sodomy Count

       G.M. responded to the posting. In his response, which included a nude frontal

photograph of himself, he stated, "Hey Im 25 and new to SD and I am looking for fun!

1      Further statutory references are also to the Penal Code unless otherwise stated.

2      Rowe continued to impersonate the victim in all subsequent exchanges described.

                                             2
Im tall, attractive, fun, D&D free and I aim to please! I promise Im a nice guy and not a

weirdo or pervert (at least not the bad kind). I want to spoil a lucky lady with massages,

making out, lots of oral, and some great sex! I got a nice tool, and I can use it very well!

I love giving and receiving oral and long sex session trying out all sorts of positions. I

also have some 420 if your into that. Here's a pic. I can host. Let me know if your

interested in getting together sometime."3

       Rowe replied, "Just stop by any Monday-Friday 9am-3pm." G.M. responded,

"What's the address, do you have any pics and a description of yourself?" Rowe sent him

a photograph of the victim obtained from a social media website and replied, "What do

you think of my photo?"

       G.M. responded, "Nice, so you just like guys to stop by for fun? How do I know

if I show up its going to be you there? What are you into, what gets you off?" Rowe

replied, "I'm pretty much home all day every day, bored and incredibly horny. I love to

be surprised and have a man just show up at the door and force his way in the door and

on me, totally taking me while I say no. Anal sex makes me come incredibly hard. Do

you like anal? What are you into? I'm getting wet just thinking about this. What is your

name.?"

       G.M. responded, "I'm [G]. Sounds good. I just moved to SD and looking for fun.

I have not had to[o] much experience with anal, my previous gf's weren't into it. Im into

it, and Im interested in making you cum hard with anal sex, I've never seen a girl do that.


3    Spelling and grammar errors in this and other quotations appeared in source
documents.
                                              3
Im into everything except male male stuff and stuff with my butt. My favorite is 69

where I lay on my back and you can squat me and I eat you while you suck me. I also

like to go multiple rounds. Do you have any more pics? Can I see that nice runners

body?" Rowe never replied to him.

Solicitation to Commit Forcible Rape Count

       Approximately two weeks after G.M.'s response, J.M. responded to the same or

similar post.4 In his response, J.M. indicated he was a 28-year old single guy looking for

"a one night stand or if all is good ongoing, but for now just need to get laid." He

described his height and build and listed his phone number.

       Rowe received J.M.'s response and told him to stop by the victim's home "any

Monday-Friday, 9am-3pm. I like the element of surprise." He replied asking for the

location and Rowe sent him the victim's address.

       Approximately two weeks later, J.M. sent an e-mail asking if the victim was still

available. Rowe replied, "absolutely." The next day, Rowe sent another reply stating,

"I'm available all week. Maybe we can have a nooner on your lunch hour? I will have

my pussy clean shaven every day awaiting your tongue. Just stop on by and surprise me

with your hard-on."

       A few days later, J.M. went to the victim's home and no one was there. He

explained at the preliminary hearing, "There was a gate before the actual front door. I



4      There was evidence Rowe posted the advertisement in multiple places multiple
times.

                                             4
went to the gate. It was locked, so I was unable to knock on the door." He sent Rowe an

e-mail stating he could not knock on the door or use the doorbell and did not know

whether anyone was home. Rowe replied, "I'm SO sorry, want to make it up to you.

Will make it extra wild and worth your time."

       J.M. went back to the victim's home a little later in the day and the victim's

husband was there. J.M. sent an e-mail to Rowe stating "I went back a little later and a

guy was there, had to make up an excuse for why I was there." Rowe replied, "I hope it's

okay with you that I see other guys." J.M. responded, "It's fine with me, but I mean he

answered the door, he lived there."

       The next day, Rowe replied, "Once in awhile my husband drops by during the day

to see if he can catch me in the act. He knows about my men, that I have to get fucked at

least once a day, sometimes more, and he just can't do that anymore. Don't worry, he

won't intrude on us unless we want him to . . . if we want him to join us, he will. Are you

into threesomes? He will do my ass if you to stay in my pussy. It makes my pussy even

tighter, you'll enjoy it. But it's totally up to you. Or you can switch and do my ass too.

Do you like anal sex?" J.M. responded, "I would love to do your ass, but I would prefer

if he didn't drop by."

       The same day, Rowe replied, "Have you had much experience with anal sex? Do

you enjoy it?" J.M. responded, "A few times successfully, most of the times the girl

wouldn't let me get it in more than a bit before pushing me off cuz it hurt. Yes I enjoy it.

Do you have a picture?" Rowe never replied to him.



                                             5
       A few months later, J.M. attempted to let Rowe know he was still available by

sending a message stating, "Haven't heard back from you." The record does not show

Rowe replied to the message.

Other Harassment

       Rowe's advertisement was part of an ongoing campaign of harassment apparently

undertaken to retaliate against the victim and the victim's husband for being the

successful bidders on a home Rowe also wanted to buy. The harassment included Rowe:

(1) listing the victim's home for sale; (2) putting a hold on the victim's and the victim's

husband's mail; (3) having over a $1,000 worth of unsolicited magazines, books, and junk

mail sent to the victim's home; (4) sending Valentine's Day cards from the victim's

husband to the wives of the victim's neighbors; (5) having a county assessor's office

employee contact the victim and the victim's husband about reassessing their home; (6)

having members of religious groups visit the victim's home; (7) posting an online

announcement for a high school New Year's Eve party at the victim's home; and (8)

posting an online announcement for a free Mexican fireworks giveaway at the victim's

home on Independence Day.5




5       All of these acts except the posting of the advertisement for free fireworks
preceded the posting of the Carmel Valley Freak Show advertisement. At the time of the
acts, the victim and the victim's husband lived in the home with their two children, one of
whom was born shortly after they moved in.

                                              6
       When law enforcement officers traced the acts to Rowe and interviewed her, she

initially denied committing them. She later admitted committing the acts, referred to

them as "pranks," and denied any intent to harm the victim or the victim's husband.

Dismissal of Charges

       At the conclusion of the preliminary hearing, the magistrate dismissed both

solicitation charges under section 871, stating he did not have a strong suspicion Rowe

had the specific intent to cause the two men to commit any kind of sexual assault.6

Specifically, the court stated, "As to Count 1 [forcible rape], I just don't find that I have a

strong suspicion there was specific intent to cause that person that went over, which was

[G.M.], to commit any kind of a rape. And I think I can consider the entire picture not

only Count 1 but Count 2 and everything else to figure that out.

       "I think the specific intent has to be with the defendant not with the[G.M.].

Clearly, I don't think he had the specific intent to commit that crime. There's not much

doubt in my mind about that just seeing him and seeing how he testifies. . . . .

       "As to Count 2 [forcible sodomy], there is some language there that would involve

force, the 'Enter even though I say no. Go ahead.' But I don't think that based on




6      Section 871 provides: "If, after hearing the proofs, it appears either that no public
offense has been committed or that there is not sufficient cause to believe the defendant
guilty of a public offense, the magistrate shall order the complaint dismissed and the
defendant to be discharged, by an indorsement on the depositions and statement, signed
by the magistrate, to the following effect: 'There being no sufficient cause to believe the
within named A. B. guilty of the offense within mentioned, I order that the complaint be
dismissed and that he or she shall be discharged.' "
                                               7
everything I've heard that that was the specific intent was in the defendant to cause

someone to do that. And I justI don't have a strong suspicion."

Reinstatement Motion

       The prosecutor subsequently moved to compel reinstatement of the felony

complaint under section 871.5.7 Rowe argued the court could not grant the motion

because the magistrate had made a factual finding Rowe did not have the requisite

specific intent. The court disagreed the magistrate had actually made factual findings.

Nonetheless, the court denied the motion and affirmed the magistrate's decision, finding

the charged crimes were a legal impossibility because Rowe invited the men to engage in

and the men believed they would be engaging in consensual sexual activity.

                                       DISCUSSION

                                               I

                                     Standard of Review

       "In reviewing the court's denial of the prosecution's section 871.5 motion to

reinstate the charge, we disregard the ruling on the motion and directly examine the



7      Section 871.5 provides in part: "(a) When an action is dismissed by a magistrate
pursuant to Section . . . , 871, . . . of this code . . . , the prosecutor may make a motion in
the superior court within 15 days to compel the magistrate to reinstate the complaint or a
portion thereof and to reinstate the custodial status of the defendant under the same terms
and conditions as when the defendant last appeared before the magistrate. [¶] (b) Notice
of the motion shall be made to the defendant and the magistrate. The only ground for the
motion shall be that, as a matter of law, the magistrate erroneously dismissed the action
or a portion thereof. [¶] (c) The superior court shall hear and determine the motion on the
basis of the record of the proceedings before the magistrate. If the motion is litigated to
decision by the prosecutor, the prosecution is prohibited from refiling the dismissed
action, or portion thereof."
                                              8
magistrate's decision to dismiss at the preliminary hearing. [Citation.] We review the

magistrate's legal conclusions de novo, but are bound by any factual findings the

magistrate made if they are supported by substantial evidence. If the magistrate makes

no controlling findings of fact, we review the record independently. If, in carrying out an

independent review, we determine that the evidence supplied a rational ground for

holding the defendant to answer, we must reinstate the charge." (People v. Plumlee

(2008) 166 Cal.App.4th 935, 938-939; People v. Dawson (2009) 172 Cal.App.4th 1073,

1087-1088, 1091.)

       Preliminarily, the parties dispute whether the magistrate made a factual finding or

reached a legal conclusion Rowe lacked the requisite specific intent for the charges

against her. As this dispute affects our standard of review, we address it briefly.

       In the context of dismissal of charges at a preliminary hearing, a court makes a

factual finding when, after resolving evidentiary disputes and/or assessing witnesses'

credibility, it determines there is no evidentiary support for one or more elements of a

charge. Conversely, a court makes a legal conclusion when it accepts the prosecution's

evidence, but determines there is insufficient evidentiary support for one or more

elements of a charge. (See People v. Superior Court (Henderson) (1986) 178 Cal.App.3d

516, 521, disapproved on another point in People v. Beltran (2013) 56 Cal.4th 935, 952,

fn. 10; People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1015.)

       In this case, the evidence before the magistrate was essentially undisputed. It

consisted of e-mail exchanges between Rowe and the two men, the testimony of the two

men authenticating and corroborating the e-mail exchanges, the testimony of the victim

                                             9
and her husband confirming they never authorized Rowe's actions, and the testimony of a

law enforcement officer indicating Rowe initially denied her actions, then later admitted

them, but described them as "pranks" not intended to hurt anyone. The record does not

show the magistrate disbelieved or disregarded any of this evidence. The record also

does not show the magistrate determined there was no evidentiary support for a finding

Rowe possessed the requisite criminal intent. Rather, the record shows the magistrate

accepted the proffered evidence, but determined, there was insufficient evidentiary

support for a finding Rowe possessed the requisite criminal intent. Accordingly, the

magistrate's determination was a legal conclusion, not a factual finding, and we review

the determination de novo. (See Pizano v. Superior Court of Tulare County (1978) 21

Cal.3d 128, 133 [a magistrate does not make factual findings, but instead reaches a legal

conclusion when the magistrate accepts the evidence and simply determines it does not

provide probable cause to believe the offense was committed]; People v. Bautista (2014)

223 Cal.App.4th 1096, 1101-1102 [a magistrate's finding there is insufficient evidence to

support a charge is not binding on a reviewing court and a reviewing court independently

reviews the evidence to determine its sufficiency]; People v. Dawson (2009) 172

Cal.App.4th 1073, 1089 [a magistrate has not made factual findings where the

magistrate's ruling does not contain an express statement of what the magistrate "found"

nor any indication of what evidence the magistrate believed or disbelieved]; People v.

Campbell (2002) 82 Cal.App.4th 71, 76-77 [where the facts are undisputed and the sole

question before the magistrate is whether the undisputed facts support the charges, the

question before the magistrate is one of law, not fact].)

                                             10
       Although the dissent disagrees with our conclusion, the dissent does not identify a

specific flaw in our legal analysis. The dissent also does not cite any authority supporting

a contrary conclusion.

                                             II

        Sufficiency of Evidence for Holding Rowe to Answer Solicitation Charges

       "Every person who, with the intent that the crime be committed, solicits another to

commit rape by force or violence [or] sodomy by force or violence . . . shall be punished

by imprisonment in the state prison . . . ." (§ 653f, subd. (c).) The offense requires (1) a

request to another person to commit a specified crime, which was (2) made with the

intent the crime be committed, and (3) received by the person to whom it was made.

(§ 653f, subd. (c); People v. Saephanh (2000) 80 Cal.App.4th 451, 458; Laurel v.

Superior Court of Los Angeles County (1967) 255 Cal.App.2d 292, 298; CALCRIM No.

441.) The parties do not dispute the evidence presented at the preliminary hearing

supplied a rational ground for believing G.M. and J.M. received Rowe's posting and reply

messages. Rather, they dispute whether the evidence supplied a rational ground for

believing the posting and reply messages constituted requests to G.M. and J.M. to

commit forcible sodomy and forcible rape, respectively. They also dispute whether the

evidence supplied a rational ground for believing Rowe acted intending the crimes of

forcible rape and sodomy be committed.




                                             11
                                              A

                                 Request to Commit Crime

       Whether the evidence supplied a rational ground for believing Rowe requested

J.M. and G.M. to commit forcible rape and sodomy turns on whether the men had to

perceive her request as such. We conclude they did not. Rather, we conclude it is

sufficient Rowe requested they perform acts, which would have amounted to forcible

rape or sodomy if committed.

       We reach this conclusion because the crime of solicitation focuses on the intention

and action of the solicitor, not the solicitee. The crime "is complete once the verbal

request is made with the requisite criminal intent; the harm is in asking, and it is

punishable irrespective of the reaction of the person solicited." (In re Ryan N. (2001) 92

Cal.App.4th 1359, 1377-1378; accord, People v. Wilson (2005) 36 Cal.4th 309, 328; see

also People v. Bell (1988) 201 Cal.App.3d 1396, 1399 [it is irrelevant that the person

solicited did not actually intend to aid and abet the solicitor]; People v. Cook (1984) 151

Cal.App.3d 1142, 1145 [same].) In addition, allowing a person to be held to answer for

solicitation charges under the circumstances presented serves section 653f's "twofold

purpose of protecting the inhabitants of California from being exposed to inducement to

commit or join in the commission of crimes and preventing solicitations from resulting in

the commission of the crimes solicited." (People v. Saephanh, supra, 80 Cal.App.4th at

p. 459, citing Benson v. Superior Court (1962) 57 Cal.2d 240, 243; People v. Burt (1955)

45 Cal.2d 311, 314.)



                                             12
       Although J.M. and G.M. were innocent agents and requesting an innocent agent to

commit a crime does not constitute a solicitation under the Model Penal Code (Model

Pen. Code & Commentaries, com. to § 5.01, pp. 346-347), California did not derive

section 653f from the Model Penal Code. (People v. Saephanh, supra, 80 Cal.App.4th at

p. 457.) Moreover, under some of the more modern statutes, it is typically "no defense to

a prosecution for solicitation that the solicitee is criminally irresponsible or immune to

prosecution; is unaware of the criminal nature of the conduct solicited or of the

defendant's criminal purpose; or is for some other reason incapable of entertaining the

mental state required for the commission of the offense solicited." (4 Wharton's Criminal

Law (15th ed. 2013) § 675, fns. omitted and italics added; LaFave, Substantive Criminal

Law (2d ed. 2013) §11.1, fn. 112 and statutes cited therein.) California criminal law is

consistent with these modern statutes because, under section 31, a person's use of an

innocent agent does not absolve the person of criminal culpability. (§ 31, People v.

McCoy (2001) 25 Cal.4th 1111, 1120-1121; People v. Thomas (2007) 146 Cal.App.4th

1278, 1292, disapproved on another point in People v. Shockley (2013) 58 Cal.4th 400,

405-406; People v. Simon (1995) 9 Cal.4th 493, 522, fn. 19.) Thus, Rowe's use of

innocent agents does not preclude her from being charged with solicitation.

                                             B

                                 Intent for Crime to Occur

       The requisite intent for solicitation can be inferred from the circumstances of the

asking. (People v. Miley (1984) 158 Cal.App.3d 25, 34; People v. Gordon (1975) 47

Cal.App.3d 465, 472, disapproved on another point in Stark v. Superior Court (2011) 52

                                             13
Cal.4th 368, 407, fn. 15.) Here, the evidence shows Rowe's online advertisement was

part of an ongoing, escalating campaign to retaliate against the victim.8 The

advertisement described the available sexual activity as a "freak show," which was "[n]ot

for the faint of heart." The victim did not know of or authorize the advertisement. When

G.M. and J.M. responded to the advertisement, Rowe encouraged them to visit the

victim's home unannounced during the day with the promise they would be able to

engage in sexual activity consistent with the advertisement. Moreover, Rowe strongly

implied G.M. should not take "no" for an answer, and she pressed J.M. to continue trying

to contact the victim even after he made two failed attempts to do so. Consequently,

there is a rational ground for believing Rowe intended for J.M. and G.M. to engage in

forcible sexual activity with the victim against the victim's will.

       The dissent disagrees with our conclusion. To the extent the dissent's

disagreement focuses on whether Rowe intended for any sexual activity to occur, the

requisite strong suspicion is supplied by evidence Rowe placed more than one online

advertisement, attempted over several weeks to send more than one man to the victim's

home, and attempted over several days to send one particular man to the victim's home

multiple times.




8      Rowe disputes this point because the posting for free fireworks occurred after the
posting for the Carmel Valley Freak Show. However, at the very least, her acts of
harassment were escalating to the point of the Carmel Valley Freak Show posting. In
addition, we can reasonably infer from the record the two postings overlapped to some
degree and the free fireworks posting was not aimed at attracting only harmless, law-
abiding citizens to the victim's home.
                                              14
       To the extent the dissent's disagreement focuses on whether Rowe intended for

any sexual activity to be nonconsensual, the requisite strong suspicion is supplied by the

victim's testimony she did not authorize anyone to advertise for and arrange sexual

liaisons on her behalf. It is also supplied by the absence of any evidence from which to

infer Rowe knew the victim, knew the victim's sexual preferences, or reasonably believed

the victim would condone someone impersonating her and inviting strangers to her home

unannounced to engage in "freak show" sexual activity.

       Finally, to the extent the dissent's disagreement focuses on whether Rowe intended

for any sexual activity to be "forcible," the dissent misapprehends this element of the

charges. "Force" for purposes of forcible rape or sodomy is the degree of physical force

sufficient to support a finding the sexual activity was against the victim's will. (People v.

Griffin (2004) 33 Cal.4th 1015, 1023-1024; People v. Hale (2012) 204 Cal.App.4th 961,

978.) It need not be substantially different or substantially greater than the force inherent

in consensual sexual activity. (People v. Griffin, at p. 1023.) Moreover, " ' " '[t]he 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.' " ' " (Id. at p. 1024.) The

ultimate question is whether the force accomplished the sexual activity against the

victim's will, not whether the force overcame the victim's physical strength or ability to

resist. (Id. at p. 1028.)

       Here, the requisite strong suspicion Rowe intended any sexual activity to be

forcible is supplied by evidence Rowe encouraged the men to surprise the victim, led

them to believe the victim would be prepared to engage in "freak show" sexual activity

                                              15
with them immediately upon their arrival, and led them to believe the victim would be

pleased if they were in the same state. At the least, this evidence creates a reasonable

inference Rowe intended the men to take indecent liberties with, lay hold of, or kiss the

victim against her will when they made contact with the victim. This inference is

bolstered by Rowe's indication to one of the men the victim liked to feign resistance to

heighten her sexual experience. Considered collectively, the evidence presented at the

preliminary hearing provided a rational ground for believing Rowe intended for sexual

activity to occur, intended for it to be nonconsensual, and intended for it to be forcible.

Accordingly, the magistrate erred in declining to hold Rowe to answer the solicitation

charges.9

                                       DISPOSITION

       The superior court's order denying the People's motion to reinstate the complaint is

reversed. The superior court is directed to enter a new order granting the motion and

directing the magistrate to reinstate the complaint.


                                                                        MCCONNELL, P. J.

I CONCUR:


HALLER, J.




9      Nothing in our decision is intended to express any opinion about whether a trier of
fact could or would find Rowe guilty of the charged crimes beyond a reasonable doubt.
                                             16
McDONALD, J., Dissenting.

       In my opinion the magistrate correctly determined the defendant should not have

to answer charges of soliciting forcible rape and forcible sodomy. I would therefore

affirm the superior court's order denying the People's motion to reinstate the charges.

       I agree with the majority opinion that the legal conclusions of the magistrate are

reviewed de novo but the magistrate's findings of fact are binding on this court if

supported by substantial evidence. I also agree with the majority opinion that the Penal

Code section 653f, subdivision (c), crime with which the defendant was charged in

counts 1 and 2 requires the defendant to have solicited another person to commit the

crimes of forcible rape and forcible sodomy with the intent the crimes be committed.

       I disagree with the majority opinion's observations the magistrate did not make a

factual finding that the defendant did not make the solicitations with the intent the crimes

of forcible rape and forcible sodomy be committed by the recipient and, if our review is

de novo, that the evidence at the preliminary hearing supplied a rational basis for

believing the solicitations were to commit forcible rape and forcible sodomy.

       At the conclusion of the preliminary hearing, the magistrate first considered count

1, the charge of solicitation of forcible rape in defendant's communications with J.M.

The magistrate concluded "[a]s to Count 1, I just don't find that I have a strong suspicion

there was specific intent to cause . . . [J.M.] to commit any kind of a rape." The

magistrate then considered count 2, the charge of solicitation of forcible sodomy in

defendant's communications with G.M. The magistrate concluded "[a]s to Count 2, there

is some language . . . that would involve force, the 'Enter even though I say no. Go
ahead.' But I don't think that based on everything I've heard that that was the specific

intent . . . in the defendant to cause someone to do that." Furthermore, the magistrate

concluded that both J.M. and G.M. considered defendant's solicitations to be for

voluntary, not forcible, sex. The magistrate then ruled that "I'm not binding over on

Count[s] 1 and 2."

       In my view, the statements of the magistrate in support of not binding over for trial

counts 1 and 2 constitute findings of fact that the defendant did not have the intent that

the persons who received the communications commit the crimes of forcible rape or

forcible sodomy. If those findings were supported by substantial evidence the superior

court's order denying the People's motion to reinstate the charges was legally compelled

and correct, and should be affirmed.

       A review of the transcript of the preliminary hearing confirms there is substantial

evidence to support the no criminal intent finding of the magistrate. That review

establishes that of the numerous solicitations made by the defendant to G.M. or J.M. all

were for voluntary, consensual sex, none were for forcible sex. The only arguable

variation on the solicitation for voluntary sex were statements defendant commented to

J.M. that in the context of a meeting for consensual sex, J.M. could pick a time to surprise

her, force the door and appreciate it if she said "no": In this context, these comments

suggesting force could not be considered other than attributes of consensual sex that

would make consensual sex more exciting.

       Even were our standard of review de novo, as the majority opinion strongly

asserts, a review of the preliminary hearing record does not contain a rational ground for

                                              2
believing the defendant's communications to J.M. and G.M. constituted solicitations to

commit forcible rape and forcible sodomy. In my view, regardless of the appropriate

standard of review, the order of the superior court denying the People's motion to

reinstate the charges against defendant should be affirmed.




                                                                         McDONALD, J.




                                            3
