Stanford Law School - Robert Crown Law Library

Filed 8/5/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S114399
v.
) Ct.App.
6
H023031
JUAN DIEGO LEAL,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. C9952837

Penal Code section 288, subdivision (b)(1), makes it a felony to commit a
lewd act upon a child under the age of 14 years “by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury . . . .” Nearly two
decades ago, the Court of Appeal defined the term “duress” as used in this statute
to include a threat of hardship. (People v. Pitmon (1985) 170 Cal.App.3d 38, 49.)
The Legislature later incorporated this definition of “duress” into the statute
defining rape (former Pen. Code, § 261, subd. (b), added by Stats. 1990, ch. 630,
§ 1, p. 3097) but in 1993 amended the definition of duress in the rape statute to
delete the term “hardship” and incorporated the same definition into the spousal
rape statute. (Pen. Code, §§ 261, subd. (b), 262, subd. (c).)
For the reasons that follow, we conclude that the 1993 amendments of the
rape and spousal rape statutes, to delete the term “hardship” from the definition of
“duress” in rape, and incorporate that definition into spousal rape did not alter the
previously existing judicial definition of the term “duress” as used in Penal Code
1

---

section 288, subdivision (b)(1), which did, and continues to, include a threat of
hardship.
FACTS
Defendant Juan Diego Leal was convicted, following a jury trial, of two
counts of committing a lewd act on a child under the age of 14 years by use of
force, violence, duress, menace, or fear of immediate and unlawful bodily injury in
violation of Penal Code section 288, subdivision (b)(1). Defendant was sentenced
to 12 years in prison.
The evidence adduced at trial showed that between May 1 and December 7,
1999, 11-year-old Jennifer was in the sixth grade and lived with her parents and
her nine-year-old brother Eugene. Jennifer and her brother would be alone in the
house each weekday afternoon from the time they returned home from school until
about 5:00 p.m. when their parents returned home from work.
Defendant was the boyfriend of Jennifer’s aunt Maria. He had a key to
Jennifer’s house and would often come to work on the house to make repairs, such
as installing a doorknob and lock on Jennifer’s parents’ bedroom door and
painting the kitchen. Defendant was supposed to work on the house when the
children were in school. If Jennifer spoke to her mother on the telephone,
defendant would tell Jennifer to say that he was not there.
Whenever he saw her, defendant would hug Jennifer in a way she did not
like. If no one was around, he would touch Jennifer’s breasts, either over or under
her shirt, and touch her bottom. On numerous occasions, defendant assaulted
Jennifer in her mother’s bedroom. He either would enter the bedroom when
Jennifer was there doing her homework or using the computer, or he would tell her
to come into the bedroom, saying he had to talk to her or show her something.
Jennifer went into the bedroom with defendant because she was scared. He would
close and lock the door and then touch her breasts either through her clothing or
2

---

under her shirt. He had her lower her pants and touched her buttocks and her
vagina. Twice he put his fingers in her vagina. Defendant would take Jennifer’s
wrist and place her hand on his penis. Jennifer stated that defendant would “just
grab my arm or like my wrist and then put it on his private, and then he would just
like move it around.” When she hesitated, he would grab her and “pull [her]
hands back right away,” saying: “Come on, it’s nothing scary.” He would kiss
her, sometimes putting his tongue in her mouth. Jennifer testified she “just wanted
to get away” from defendant.
Defendant told Jennifer not to tell anyone about these incidents, warning
her that if she did she would not be able to see him anymore. Jennifer was
concerned that this would mean that she also would not be able to see her aunt
Maria anymore. Defendant did not hurt her, but Jennifer felt disgusted. She tried
to avoid being alone with defendant by locking herself in her mother’s bedroom or
pretending she was sleeping or sick.
The only person Jennifer told about defendant’s conduct was her best
friend, Jamie. Jamie urged Jennifer to “tell somebody,” but Jennifer refused
because she was afraid she would be taken away from her parents, as had
happened to friends of hers who had been molested, and it scared her to think
about that. Upon Jamie’s advice that Jennifer had “to get the nerve to say no and
start being strong,” Jennifer began to say no to defendant and told him not to touch
her.
Jennifer and Jamie arranged a signal in an effort to protect Jennifer from
defendant. If Jennifer was on the telephone with Jamie and felt scared of
defendant, she would make a clicking noise and Jamie would run to Jennifer’s
3

---

house and stay with her. Still, on some occasions when Jamie was present,
defendant nevertheless would lock Jamie out of the bedroom and molest Jennifer.1
Eventually, word of these incidents reached the mother of one of Jennifer’s
friends, who called the school counselor who, in turn, called the police.
Defendant testified and denied molesting Jennifer and denied ever having
been in the bedroom with her.
The court instructed the jury in accordance with CALJIC No. 10.42 that
“[t]he term duress means a direct or implied threat of force, violence, danger,
hardship or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to 1) perform an act which otherwise would not have been
performed or, 2) acquiesce in an act to which one otherwise would not have
submitted. The total circumstances including the age of the victim and her
relationship to defendant are factors to consider in appraising the existence of
duress.” (Italics added.)
Defendant appealed his conviction and argued, inter alia, that the trial court
erred by defining “duress” to include “a direct or implied threat of ‘hardship.’ ”
The Court of Appeal affirmed the judgment of conviction, declining to follow the
contrary holding in People v. Valentine (2001) 93 Cal.App.4th 1241. We granted
review to resolve this conflict.
DISCUSSION
Penal Code section 288, subdivision (b)(1),2 makes it a felony for any
person to commit a lewd act upon a child under the age of 14 years “by use of

1
Defendant also was charged with molesting Jamie, but the jury was unable
to reach a verdict on these charges.
2
All further undesignated statutory references are to the Penal Code.
4

---

force, violence, duress, menace, or fear of immediate and unlawful bodily injury.”
The quoted phrase also appears in the definitions of three other sexual offenses:
forcible sodomy in violation of section 286, subdivision (c)(2),3 forcible oral
copulation in violation of section 288a, subdivision (c)(2),4 and forcible acts of
sexual penetration in violation of section 289, subdivision (a)(1).5
The term “duress” as used in section 288, subdivision (b)(1), was first
defined in People v. Pitmon, supra, 170 Cal.App.3d 38, 48. The Court of Appeal
in Pitmon observed: “Duress, as an element of a criminal offense has not been
previously given legal definition.” (Id. at p. 48.) The court in Pitmon rejected the
argument that it should adopt the definition used for “duress” as a defense to a
criminal charge, which “is established only if one acted out of fear of imminent
death or great bodily harm,” noting that “the purpose served by the concept of
‘duress’ as a defense is manifestly different from that served by inclusion of the
term as an element of a sex offense against minors.” (Id. at p. 49.) Instead, the
court relied in part on the dictionary definition of “duress” and found “duress as

3
Section 286, subdivision (c)(2) states: “Any person who commits an act of
sodomy when the act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the state prison for
three, six, or eight years.”
4
Section 288a, subdivision (c)(2), states: “Any person who commits an act
of oral copulation when the act is accomplished against the victim’s will by means
of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by imprisonment in the
state prison for three, six, or eight years.”
5
Section 289, subdivision (a)(1), states: “Any person who commits an act of
sexual penetration when the act is accomplished against the victim’s will by means
of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by imprisonment in the
state prison for three, six, or eight years.”
5

---

used in the context of section 288 to mean a direct or implied threat of force,
violence, danger, hardship or retribution sufficient to coerce a reasonable person
of ordinary susceptibilities to (1) perform an act which otherwise would not have
been performed or, (2) acquiesce in an act to which one otherwise would not have
submitted.” (Pitmon, supra, 170 Cal.App.3d at p. 50, italics added.) This
definition was incorporated into CALJIC No. 10.42, the jury instruction for
section 288, subdivision (b)(1). (Com. to CALJIC No. 10.42 (6th ed. 1996)
p. 798.)
The Pitmon definition of “duress” has been followed consistently for
almost 20 years. (People v. Cardenas (1994) 21 Cal.App.4th 927, 939; People
v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579; People v. Schulz (1992) 2
Cal.App.4th 999, 1005; People v. Hecker (1990) 219 Cal.App.3d 1238, 1250;
People v. Sanchez (1989) 208 Cal.App.3d 721, 748.) The Pitmon definition also
has been used to define the term “duress” as it is used in the sexual offenses of
aggravated sexual assault of a child in violation of section 269 (People v. Cochran
(2002) 103 Cal.App.4th 8, 13), forcible oral copulation in violation of section
288a, subdivision (c) (People v. Senior (1992) 3 Cal.App.4th 765, 775; People
v. Bergschneider (1989) 211 Cal.App.3d 144, 154), forcible sexual penetration in
violation of section 289 (People v. Senior, supra, 3 Cal.App.4th at p. 775), and
enhancement for prior sex offenses under section 667.6, subdivision (d) (People
v. Senior, supra, 3 Cal.App.4th at p. 775). The validity of the Pitmon definition of
“duress” was unquestioned until the Court of Appeal’s decision in People
v. Valentine, supra, 93 Cal.App.4th 1241.
The court in Valentine held that the trial court erred in including the threat
of hardship in its jury instructions defining the term “duress” for purposes of
forcible oral copulation (former § 288a, subd. (c), Stats. 1988, ch. 1243, § 7,
p. 4135), forcible sexual penetration (§ 289, subd. (a)), and the imposition of full
6

---

separate and consecutive terms of imprisonment (§ 667.6, subd. (d)). The Court of
Appeal reasoned that the Legislature intended “to exclude ‘hardship’ from the list
of threatened harms” under these statutes when it amended the rape and spousal
rape statutes (§§ 261, 262) in 1993. (People v. Valentine, supra, 93 Cal.App.4th
at p. 1248.) In order to determine if the Court of Appeal was correct, we must first
examine the history of the term “duress” as used in the rape and spousal rape
statutes.
Before 1990, the crime of rape differed from the sexual crimes discussed
above in that it could not be committed by means of duress. Former section 261,
subdivision (2), defined rape as sexual intercourse with a person not the spouse of
the perpetrator “[w]here it is accomplished against a person’s will by means of
force, violence, or fear of immediate and unlawful bodily injury on the person or
another.” (Stats. 1986, ch. 1299, § 1, p. 4592.) In 1989, the Court of Appeal in
People v. Bergschneider, supra, 211 Cal.App.3d 144, 152, pointed out this
anomaly, stating: “For reasons which escape us, rape is the only major sexual
assault crime which cannot be committed by means of duress. [Citations.]”
The Legislature quickly responded, amending section 261 in 1990 to
renumber former subdivision (2) as subdivision (a)(2) and adding the terms
“duress” and “menace” to expand the definition of rape to include acts
accomplished “by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another.” (Stats. 1990, ch. 630, § 1,
p. 3096.) The Legislature further amended section 261 to include definitions of
the terms “duress” and “menace,” adopting the same definition of the term
“duress” as stated by the court in Pitmon: “As used in this section, ‘duress’ means
a direct or implied threat of force, violence, danger, hardship, or retribution
sufficient to coerce a reasonable person of ordinary susceptibilities to perform an
act which otherwise would not have been performed, or acquiesce in an act to
7

---

which one otherwise would not have submitted. . . .” (Stats. 1990, ch. 630, § 1,
p. 3097, italics added.)
The Legislature did not similarly amend former section 262, which at that
time defined spousal rape as “an act of sexual intercourse accomplished against
the will of the spouse by means of force or fear of immediate and unlawful bodily
injury on the spouse or another, or where the act is accomplished against the
victim’s will by threatening to retaliate in the future against the victim or any other
person, and there is a reasonable possibility that the perpetrator will execute the
threat. . . .” (Stats. 1983, ch. 1193, § 1, p. 4510.)
In 1993, the Legislature rewrote the spousal rape law to define “spousal
rape” in terms similar to the definition of “rape”: “Rape of a person who is the
spouse of the perpetrator is an act of sexual intercourse accomplished under any of
the following circumstances: [¶] (1) Where it is accomplished against a person’s
will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another.” (§ 262, subd. (a)(1); Stats. 1993,
ch. 595, § 2, p. 3121.) Subdivision (c) of the new spousal rape statute defines the
term “duress.” (§ 262, subd. (c); Stats. 1993, ch. 595, § 2, p. 3122.) The
Assembly Bill that proposed this legislation, as introduced, adopted verbatim the
definition of “duress” in the rape statute, section 261, subdivision (b), which
included the term “hardship”: “As used in this section, ‘duress’ means a direct or
implied threat of force, violence, danger, hardship, or retribution sufficient to
coerce a reasonable person of ordinary susceptibilities to perform an act which
otherwise would not have been performed, or acquiesce in an act to which one
otherwise would not have submitted. . . .” (Assem. Bill No. 187 (1993-1994 Reg.
Sess.) § 1, as introduced Jan. 21, 1993, italics added.) The bill was amended in
the Senate, however, to remove the term “hardship” from both the spousal rape
statute and the rape statute. (Sen. Amend. to Assem. Bill No. 187 (1993-1994
8

---

Reg. Sess.) §§ 1, 2, July 14, 1993.) As enacted, therefore, the bill amended the
definition of “duress” in the rape statute to delete the term “hardship” and adopted
this same definition of “duress” in the rewritten spousal rape statute. (§§ 261,
subd. (b), 262, subd. (c).)
Reviewing this legislative history of the rape and spousal rape statutes, the
Court of Appeal in People v. Valentine, supra, 93 Cal.App.4th 1241, concluded
(as noted above) that the Legislature intended “to exclude ‘hardship’ from the list
of threatened harms” in section 288a, subdivision (c) (forcible oral copulation),
section 289, subdivision (a) (forcible sexual penetration), and section 667.6,
subdivision (d) (enhancement for prior sex offense) when it amended the rape and
spousal rape statutes, despite the fact that the Legislature had not amended any of
those statutes. (93 Cal.App.4th at p. 1248.) The court reasoned: “It is true the
Legislature did not bother to amend section 288a or 289, subdivision a—or any
other major sex crime statutes—to incorporate this or any other statutory
definition of duress. Yet it appears absurd to interpret the statutory scheme as
allowing a threat of hardship to justify a conviction for forcible digital penetration
or oral copulation but not for forcible rape or spousal rape.” (Ibid.)
The Court of Appeal in the present case, interpreting section 288,
subdivision (b), rather than the statutes at issue in Valentine, disagreed with the
reasoning in Valentine, stating the court was “not convinced that the fact that the
Legislature removed ‘hardship’ from the definition of ‘duress’ as to the crime of
forcible rape and rewrote the spousal rape statute to include an identical definition
reflects the Legislature’s intent to delete hardship as a permissible basis for finding
duress in any sex crime.” We reach the same conclusion. As we will explain, the
Legislature clearly stated that its deletion of the term “hardship” from the
definition of “duress” applies only to the rape and spousal rape statutes.
9

---

Our task in interpreting a statute “is to ascertain and effectuate legislative
intent. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 621.) In order to
do so, “[w]e turn first to the words of the statute themselves, recognizing that ‘they
generally provide the most reliable indicator of legislative intent.’ [Citations.]
When the language of a statute is ‘clear and unambiguous’ and thus not reasonably
susceptible of more than one meaning, ‘ “ ‘ “there is no need for construction, and
courts should not indulge in it.” ’ ” ’ [Citations.]” (Ibid.)
The statutory language of the provision defining “duress” in each of the
rape statutes is clear and unambiguous. The definition of “duress” in both the rape
and spousal rape statutes begins with the phrase, “As used in this section, ‘duress’
means . . . .” (§§ 261, subd. (b), 262, subd. (c).) This clear language belies any
legislative intent to apply the definitions of “duress” in the rape and spousal rape
statutes to any other sexual offenses.
Starting from the premise that in 1990 the Legislature incorporated into the
rape statute a definition of “duress” that already was in use for other sexual
offenses, defendant argues that the Legislature must have intended its 1993
amendment of the definition of “duress” in the rape statute, and the incorporation
of this new definition into the spousal rape statute, to apply as well to other sexual
offenses that use the term “duress.” Defendant observes: “The legislative history
does not suggest any rationale for why the Legislature would want its 1993
amendment of the definition of ‘duress’ to apply only to rape so that it would have
one meaning when the rape statutes use the phrase ‘force, violence, duress,
menace, or fear of immediate and unlawful bodily injury’ but another, much more
expansive meaning when the identical phrase is used in the statutes defining
sodomy, lewd acts on a child, oral copulation and foreign object rape.”
But the Legislature was not required to set forth its reasons for providing a
different definition of “duress” for rape and spousal rape than has been used in
10

---

other sexual offenses; it is clear that it did so. “When ‘ “statutory language is . . .
clear and unambiguous there is no need for construction, and courts should not
indulge in it.” ’ [Citations.] The plain meaning of words in a statute may be
disregarded only when that meaning is ‘ “repugnant to the general purview of the
act,” or for some other compelling reason . . . .’ [Citations.]” (DaFonte v. Up-
Right, Inc. (1992) 2 Cal.4th 593, 601.) As we said in an analogous situation: “It
is our task to construe, not to amend, the statute. ‘In the construction of a statute
. . . the office of the judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or omit what has
been inserted . . . .’ [Citation.] We may not, under the guise of construction,
rewrite the law or give the words an effect different from the plain and direct
import of the terms used.” (California Fed. Savings & Loan Assn. v. City of Los
Angeles (1995) 11 Cal.4th 342, 349.)
The Legislature clearly confined the definition of “duress” in the rape and
spousal rape statutes to apply in those sections. Had the Legislature intended for
this definition to apply as well to other sexual offenses, it could easily have said
so.
Nor do we have a compelling reason to disregard the plain meaning of the
statutes and apply the definition of “duress” in the rape and spousal rape statutes
to the crime at issue here, committing a lewd act on a child under the age of 14
years, in violation of section 288, subdivision (b)(1). The Legislature might well
have wished to apply a somewhat broader definition of “duress” in cases involving
sexual abuse of a child under the age of 14 years. The Legislature may have
wished to protect children against lewd acts committed by threats of hardship
despite its determination that similar threats of hardship should not provide the
basis for the crime of rape or spousal rape against an adult.
11

---

As noted above, the Court of Appeal in People v. Pitmon, supra, 170
Cal.App.3d 38, established the definition of “duress” that has been consistently
used and has been incorporated in the standard jury instruction for section 288,
subdivision (b)(1). (CALJIC No. 10.42.) Pitmon first held that “duress” as used
in section 288, subdivision (b)(1), does not carry the same meaning as “duress” as
a defense to a criminal charge. The defense of duress derives from the language of
section 26, which provides, in pertinent part, that “[a]ll persons are capable of
committing crimes except . . . [¶] . . . . [¶] . . . Persons (unless the crime be
punishable with death) who committed the act or made the omission charged
under threats or menaces sufficient to show that they had reasonable cause to and
did believe their lives would be endangered if they refused.” The Pitmon court
correctly recognized that duress as an element of section 288, subdivision (b)(1),
is not similarly based upon section 26 and, therefore, does not require a showing
that the victim believed his or her life would be endangered. The court stated:
“First, the purpose served by the concept of ‘duress’ as a defense is manifestly
different from that served by inclusion of the term as an element of a sex offense
against minors. In section 26, the Legislature has allowed only the most serious
kinds of duress to constitute a defense in order to prevent lesser forms of duress
from excusing dangerous criminal conduct. No similar purpose appears from
inclusion of ‘duress’ in subdivision (b) of section 288, a statute designed in part to
punish the obtaining of a child’s participation in a lewd act in violation of the
child’s will. [Citation.]” (People v. Pitmon, supra, 170 Cal.App.3d 38, 49.) We
agree that duress as a defense to a criminal charge carries a different meaning than
“duress” as used in section 288, subdivision (b)(1).
In order to define “duress” for purposes of section 288, subdivision (b)(1),
the court in Pitmon recognized that “courts are bound to give effect to statutes
according to the usual, ordinary import of the language used” (People v. Pitmon,
12

---

supra, 170 Cal.App.3d 38, 50, citing California Teachers Assn. v. San Diego
Community College Dist. (1981) 28 Cal.3d 692, 698), and consulted Webster’s
Third New International Dictionary, which currently includes the following
definition of duress: “restraint or check by force . . . stringent compulsion by
threat of danger, hardship, or retribution . . . . ” (Webster’s 3d New Internat. Dict.
(2002) p. 703, italics added.) We agree. “Courts frequently consult dictionaries
to determine the usual meaning of words.” (In re Marriage of Bonds (2000) 24
Cal.4th 1, 16.)
Amicus curiae California Attorneys for Criminal Justice argues that
including “hardship” in the definition of “duress” would make “duress” overly
vague. But the long application of the Pitmon definition has not demonstrated this
to be the case. Only one published decision has applied the term “hardship” in
this context and no issue was raised that the term was vague. In People
v. Bergschneider, supra, 211 Cal.App.3d 144, the defendant forced his 14-year-
old, “slightly mentally retarded” (id. at p. 150) stepdaughter to have sex with him,
in part, by threatening to put her “on restriction” if she refused, which meant to the
victim that “she couldn’t go anywhere or spend the night with anyone.” (Id. at p.
150, fn. 3.) The Court of Appeal held: “The threatened restriction constitutes
‘hardship or retribution’ within the meaning of Pitmon. It was for the jury to
determine whether a reasonable adolescent in [the victim’s] position would have
been coerced.” (Id. at p. 154.)
For the reasons set forth above, we disapprove the decision in People
v. Valentine, supra, 93 Cal.App.4th 1241 to the extent it is inconsistent with the
views expressed in this opinion and affirm the judgment of the Court of Appeal in
the present case.
13

---

DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
14

---

DISSENTING OPINION BY KENNARD, J.

Unlike the majority, I would hold that the term “duress” in Penal Code
section 288, subdivision (b)(1)1 does not include a threat to inflict “hardship.”
The structure and purpose of the Penal Code provisions defining sexual crimes,
viewed in the light of principles of statutory construction, support this conclusion.
Section 288, subdivision (b)(1), makes it a felony to commit a lewd act
upon a child under the age of 14 years “by use of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury . . . .” The quoted phrase also
appears in the definitions of three other sexual offenses: forcible sodomy in
violation of section 286, subdivision (c)(2),2 forcible oral copulation in violation
of section 288a, subdivision (c)(2),3 and forcible acts of sexual penetration in

1
All further statutory citations are to the Penal Code.

2
Section 286, subdivision (c)(2) states: “Any person who commits an act of
sodomy when the act is accomplished against the victim’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the state prison for
three, six, or eight years.”

3
Section 288a, subdivision (c)(2) provides: “Any person who commits an
act of oral copulation when the act is accomplished against the victim’s will by
means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person shall be punished by imprisonment
in the state prison for three, six, or eight years.”
1

---

violation of section 289, subdivision (a)(1).4 None of these statutes defines the
term “duress.”
Twenty years ago, the Court of Appeal in People v. Pitmon (1985) 170
Cal.App.3d 38 (Pitmon) turned to a dictionary to define the term “duress” in
section 288. Choosing from alternative definitions, Pitmon held that “duress”
means “a direct or implied threat of force, violence, danger, hardship, or
retribution sufficient to coerce a reasonable person of ordinary susceptibilities to
(1) perform an act which otherwise would not have been performed or (2) to
acquiesce in an act to which one otherwise would not have submitted.” (Id. at p.
50, paraphrasing Webster’s 3d New Internat. Dict. (1961) p. 703, italics added.)
When in 1990 the Legislature set out to define “duress” in the rape statute
(§ 261), it codified the Pitmon definition. (Stats. 1990, ch. 630, § 1, p. 3097.)
That legislation expressly limited its definition of “duress” to section 261.
Three years later, in 1993, the Legislature reversed course. It amended the
meaning of “duress” in section 261, the rape statute, to delete the reference to
“hardship.” The statutory definition of duress now reads: “As used in this
section, ‘duress’ means a direct or implied threat of force, violence, danger, or
retribution sufficient to coerce a reasonable person of ordinary susceptibilities to
perform an act which otherwise would not have been performed, or acquiesce in
an act to which one otherwise would not have submitted. The total circumstances,
including the age of the victim, and his or her relationship to the defendant, are
factors to consider in appraising the existence of duress.” (§ 261, subd. (b).) The

4
Section 289, subdivision (a)(1), states: “Any person who commits an act of
sexual penetration when the act is accomplished against the victim’s will by means
of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by imprisonment in the
state prison for three, six, or eight years.”
2

---

1993 Legislature also enacted a spousal rape statute with the just-quoted definition
of duress, a definition that does not include the threat of hardship. (See § 262,
subd. (c).)
Thus, the statutory landscape today shows two statutes (§ 261, subd. (b)
and § 262, subd. (c)) that exclude “hardship” from the definition of duress, four
statutes (§§ 286, 288, 288a, and 289) that contain no definition of duress, and no
statute that includes “hardship” in a definition of duress.
In light of this background, the term “duress” in all these statutes should be
construed by applying the principle of statutory construction that “[i]dentical
language appearing in separate provisions dealing with the same subject matter
should be accorded the same interpretation.” (Walker v. Superior Court (1988) 47
Cal.3d 112, 132; see People v. Contreras (1997) 55 Cal.App.4th 760, 764.) This
leads to the conclusion that courts should adopt the definition of duress in sections
261 and 262, the only statutes to define that term, as the definition of duress in
other statutes proscribing sexual crimes.
Such a uniform interpretation will minimize the risk of confusing juries.
Under the majority’s view, the definition of duress for rape and spousal rape does
not include a threat to inflict hardship, but the definition of duress for child abuse,
sodomy, oral copulation, or sexual penetration does include a threat of hardship.
Hence, when a defendant is charged with rape and other sexual crimes, the trial
court would have to instruct the jury on the statutory definition of duress for the
rape charge, a definition that does not include a threat of hardship; for the other
sexual crimes, however, the court would have to give the jury a different definition
of duress, one that does include the threat of hardship. Also, a single act―sexual
intercourse with a child under 14―could violate both sections 261 (rape) and 288
(child molestation), requiring the jury to apply two inconsistent definitions of
duress to the same conduct.
3

---

A finding of duress is not essential to make an act of child molestation
criminal. Subdivision (a) of section 288 prohibits all lewd acts upon a child under
the age of 14 years, with no requirement that the act be committed by such means
as force or duress. Section 288, subdivision (b)(1), permits more severe
punishment for certain aggravated acts of lewd conduct on a child under the age of
14 years―those committed by force, violence, duress, menace, or fear. Thus, a
conviction under that section triggers the provisions of statutes such as section
1203.066, subdivision (a)(1), which renders the defendant ineligible for probation;
section 667.6, subdivisions (c) and (d), which permit the trial court to impose full-
term consecutive sentences under certain circumstances; and section 667.61,
which provides a sentence of 25 years to life if the defendant later has a conviction
for specified offenses. Each of these statutes applies the same consequences to
convictions for the other sexual assaults that can be committed by means of
duress: rape, spousal rape, forcible oral copulation, forcible sodomy, and forcible
acts of sexual penetration. Therefore, the term “duress” as used in all of these
statutes should be given the same meaning, regardless of whether the offense is
committed against an adult or a minor.
The distinctions between section 288, subdivision (a) (lewd act on child
under 14) and subdivision (b) (lewd act accomplished by force, violence, duress,
menace, or fear) and the harsher punishment permitted by the latter provision
show that the Legislature did not intend a standard under which practically all
sexual touchings of a child may fall under subdivision (b). A definition of duress
that includes the threat to inflict hardship, however, will have such an effect.
“Hardship” is a vague and amorphous concept. It has been defined as “suffering”
or “privation” (Webster’s 3d New Internat. Dict. (2002) p. 1033), a “lack of
comfort” (Random House Webster’s Unabridged Dict. (2d ed. 2001) p. 872), and
“difficulty or suffering caused by a lack of something, especially money” (Encarta
4

---

World English Dict. (1999) p. 816). A threat to withhold a child’s promised
allowance might well fall within these definitions, as would innumerable other
threats.
As noted earlier, in 1985 the Court of Appeal in Pitmon, supra, 170
Cal.App.3d 38, defined the term “duress” in section 288 as including a threat of
hardship, a definition that has been followed in most later Court of Appeal cases.
The majority here asserts that the “long application of the Pitmon definition has
not demonstrated” that the concept of “hardship” is overly vague, because in the
two decades since Pitmon was decided no published decision has considered the
issue of the term’s vagueness. (Maj. opn., ante, at pp. 6, 13.) But published
decisions are a tiny fraction of section 288 prosecutions; thus, the majority
overlooks the impact the Pitmon definition of duress may have on guilty pleas and
plea bargaining. Because the concept of hardship is so vague, almost every
instance of a lewd act under section 288 could be viewed as a lewd act
accomplished by duress, and therefore punishable under section 288, subdivision
(b). The threat of prosecution and more severe punishment under subdivision (b)
would put pressure on a defendant to plead guilty to a violation of subdivision (a)
or some lesser sexual crime.
The Attorney General insists that hardship should be included in the
definition of duress for purposes of section 288, subdivision (b)(1), because
“minors in the main are almost always far more vulnerable to hardship than
adults.” But the Legislature, although recognizing the vulnerability of minors, did
not include the threat of hardship in its definition of duress. Instead, it defined
duress as “a direct or implied threat of force, violence, danger or retribution” and
provided that “the total circumstances, including the age of the victim, and his or
her relationship to the defendant, are factors to consider in appraising the
existence of duress.” (§ 261, subd. (b), italics added.) The italicized language
5

---

shows: (1) The Legislature intended its definition of duress to apply to crimes
against minors as well as crimes against adults, and (2) it implicitly rejected the
notion that including hardship in the definition of duress was essential to protect
minors.
I can discern no reason why “duress” should be defined differently for
sodomy, oral copulation, or sexual penetration than for rape or spousal rape. The
majority asserts that the Legislature is not required to set forth a reason for
defining duress differently for rape and spousal rape than for other sexual crimes.
But if neither the majority nor the Legislature can articulate a reason to distinguish
rape from other sex crimes, the more likely explanation is that the Legislature
never intended such a distinction.
Mindful of our duty to harmonize the statutory scheme as a whole (see
People v. Jefferson (1999) 21 Cal.4th 86, 94), I would interpret the term “duress”
in section 288 to conform to the statutory definition of that term in sections 261,
subdivision (b), and 262, subdivision (c)―a definition that does not include the
threat of hardship. I would therefore reverse the Court of Appeal and remand the
case to that court to determine whether the trial court’s error in instructing on the
meaning of “duress” in section 288 was prejudicial.
KENNARD,
J.
6

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Leal
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 105 Cal.App.4th 133
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S114399
Date Filed: August 5, 2004
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: James C. Emerson

__________________________________________________________________________________

Attorneys for Appellant:

J. Courtney Shevelson for Defendant and Appellant.

Richard Such and John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae on
behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, John H.
Deist and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.

1

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Courtney Shevelson
PMB 187
316 Mid Valley Center
Carmel, CA 93923-8516
(831) 625-6581

Allan Yannow
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5955
2

---

Opinion Information

Date:	Docket Number:
Thu, 08/05/2004	S114399

Disposition
Aug 5 2004	Opinion: Affirmed

Dockets
Mar 18 2003	Petition for review filed   by counsel for aplt. c/a rec req (timely per CRC 40k) also received counsel's notice that rehg was not filed in c/a. Cert. of word count also received.
Mar 19 2003	Received Court of Appeal record   file jacket/briefs/accordian file
Apr 23 2003	Petition for Review Granted; issues limited (criminal case)   The issue to be briefed and argued is limited to the following: Does the element of "duress" for the purposes of forcible sexual offenses other than rape and spousal rape include within its definition the concept of "hardship" that was deleted from the definition of "duress" for forcible rape and spousal rape (Stats. 1993, ch. 595 ? 1), or does the deletion of "hardship" from the definition of "duress" in those statues apply to the meaning of "duress" for all forcible sexual offenses? This issue also is pending before the court in People v. Edmonton, S112168 (#03-13). Granted: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
May 19 2003	Request for extension of time filed   for aplt to file the opening brief on the merits, to 6-22 (23)
May 21 2003	Extension of time granted   to 6-23-03 for aplt to file the opening brief on the merits.
Jun 19 2003	Request for extension of time filed   for aplt to file the opening brief on the merits, to 7-23
Jun 25 2003	Extension of time granted   to 7-23-03 for aplt to file the opening brief on the merits.
Jul 25 2003	Opening brief on the merits filed   by aplt (timely per CRC 40k)
Aug 19 2003	Request for extension of time filed   for resp to file the answer brief on the merits, to 9/24.
Aug 22 2003	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including September 24, 2003.
Sep 24 2003	Answer brief on the merits filed   Respondent's (People)
Oct 14 2003	Request for extension of time filed   by appellant for 10 days to 10-24-2003, to file Appellant's Reply Brief on the Merits.
Oct 23 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the Appellant's Reply Brief on the Merits is extended to and including October 24, 2003.
Oct 24 2003	Reply brief filed (case fully briefed)
Nov 24 2003	Received application to file amicus curiae brief; with brief   by Calif. Attorneys for Criminal Justice in support of aplt.
Jan 6 2004	Permission to file amicus curiae brief granted   by California Attorneys for Criminal Justice in support of aplt. Answers may be filed w/in 20 days.
Jan 6 2004	Amicus curiae brief filed   by Calif. Attys. for Crim. Justice in support of aplt.
Jan 26 2004	Response to amicus curiae brief filed   by Respondent People to the Amicus Brief of California Attorneys for Criminal Justice
Apr 28 2004	Case ordered on calendar   5-26-04, S.F. @ 1:30 p.m.
May 26 2004	Cause argued and submitted
Aug 5 2004	Opinion filed: Judgment affirmed in full   Majority opinion by Moreno, J. -------------------joined by George, C.J., Baxter, Werdegar, Chin, Brown, JJ. Dissenting opinion by Kennard J.
Sep 16 2004	Remittitur issued (criminal case)
Sep 22 2004	Received:   receipt for remittitur CA/6.

Briefs
Jul 25 2003	Opening brief on the merits filed
Sep 24 2003	Answer brief on the merits filed
Oct 24 2003	Reply brief filed (case fully briefed)
Jan 6 2004	Amicus curiae brief filed
Jan 26 2004	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website