IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S167531
v.
Ct.App. 6 H030475
JAIME VARGAS SOTO,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. EE504317
The Legislature has made it a crime to commit a lewd or lascivious act on a
child under age 14. (Pen. Code, § 288, subd. (a).) It has mandated additional
penal consequences when the act is committed ―by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim.‖ (Pen.
Code, § 288, subd. (b)(1).)1 Unlike the crime of rape, there is no requirement that
the lewd acts be committed ―against the will of the victim.‖ Indeed, 20 years ago
the Legislature specifically deleted language to this effect from the definition of
the aggravated lewd act crime. (Stats. 1981, ch. 1064, § 1, p. 4093.)
Despite this change, and despite longstanding precedent holding that a child
under age 14 is legally incapable of consenting to sexual relations, some Courts of
Appeal have reasoned that consent is a defense to an aggravated lewd act charge
1
All statutory references are to the Penal Code. Shortly before oral
argument in this case, the Legislature amended section 288. (Stats. 2010, ch. 219,
§ 7; see fn. 3, post.) Unless otherwise specified, all citations to section 288 refer
to the former version of this statute. Section 288, subdivisions (a), (b), and (b)(1)
are referred to as sections 288(a), 288(b), and 288(b)(1).
1
because consent is logically inconsistent with the perpetrator‘s use of force or
duress. We disagree with this conclusion. We hold that the victim‘s consent is
not a defense to the crime of lewd acts on a child under age 14 under any
circumstances.2 Thus, it is not error to so instruct a jury. Because the lower court
here reached a contrary conclusion, we reverse the judgment.
BACKGROUND
Defendant Jaime Vargas Soto committed aggravated lewd acts against two
girls, his 12-year-old cousin C. and C.‘s 11-year-old friend R. C. gave two police
officers detailed accounts of defendant‘s sexual acts. Although she acknowledged
making most of the statements the officers recorded, she disavowed them when
testifying at defendant‘s trial. At trial, C. denied that any lewd acts took place.
She claimed she lied to the police because she was angry at defendant for dating
one of her friends. C. was impeached with her statements to the officers. R.‘s trial
testimony was consistent with her account to the police, which incriminated
defendant.
Defendant lived with C. and her mother but moved after C.‘s mother saw
him kissing C. The jury heard evidence of a pattern preceding the charged
offense. When he lived in C.‘s home, defendant often held C. tight, fondled her
buttocks, and ―French-kissed‖ her. He would refuse to release her when she told
him to stop and tried to push him away. He also ―talk[ed] dirty‖ to her when they
were home alone. Defendant threatened to tell C.‘s mother she had a boyfriend if
she did not kiss him. In one instance, C. was in the bedroom watching defendant
and her brother play a video game. After her brother left the room, defendant
pushed her down onto the bed, lay on top of her, and rubbed himself against her.
2
The concurring and dissenting opinion agrees that ―consent is not an
affirmative defense to charges under section 288(b)(1) . . . .‖ (Conc. & dis. opn.,
post, at p. 5.) Accordingly, our disagreement appears to center on the narrow
question whether it is confusing or misleading to instruct the jury that a child‘s
consent is not a defense to the aggravated lewd act crime.
2
C. told a police officer she ―felt his thing and it felt nasty, but he was holding [her]
so tight [she] couldn‘t do anything.‖ After he moved, defendant knocked on C.‘s
window with a rock, saying he wanted to give her a last kiss. His behavior scared
C. because she thought defendant was going to break the window and enter her
room.
The first charged incident with C. occurred in April 2005, when defendant
was driving C. to school. Suddenly, defendant stopped the car, reclined C.‘s seat,
and climbed on top of her. He kissed her, rubbed his clothed penis against her
crotch, and fondled her buttocks. C. pressed her legs together and tried to turn
away. Defendant tried to touch her breasts, but C. pushed his hand away. C. told
defendant she wanted him to stop. She tried to leave the car, but defendant locked
the door.
The second charged incident with C. occurred in May 2005 outside C.‘s
middle school. Before school began, defendant drove into the staff parking lot and
called to C., who walked over and spoke with him. When C. noticed that the
school‘s secretary was watching them, she motioned for defendant to drive around
the corner and followed him there. The secretary became suspicious and alerted
the principal.
C. wanted to talk to defendant because she was angry that he was dating her
best friend, 13-year-old A. At the new meeting spot, defendant got out of the car,
grabbed C. around the waist and pulled her toward him. He hugged her, fondled
her, and French-kissed her. Although C. tried to pull away, defendant grabbed her
again. Holding her tightly, so that she could not move away, defendant rubbed his
erect penis against C.‘s thigh. Defendant eventually released C. when the bell
rang and she told him she had to go to class. The principal saw C. walking toward
the school and brought her into the office. After C. told him that defendant had
kissed her, the principal said he intended to contact her mother and the police. C.
returned to class, borrowed a phone, and called defendant. He told her not to
reveal his name. Later that day, C. was questioned by a police officer, and five
3
days later she was interviewed by a detective. She identified defendant and
described the lewd acts.
C.‘s statements led the police to question her friend and next-door
neighbor, R. One day, when defendant saw R. standing in her doorway, he asked
for her name and told her she was pretty. R. told him she was 11 years old.
Because R. thought defendant was nice and good looking, she asked C. to give
him her phone number.
A few days later, R. encountered defendant in a laundry room of their
apartment complex. After brief conversation, defendant grabbed her and began
kissing her. He tried to fondle her chest, but R. pushed his hand away. He
grabbed R.‘s hand, rubbed it against his erect penis, and said he wanted to have
sex with her. R. tried to push him away. Later that night, defendant called R. and
repeated his desire for sexual intimacy.
Sometime later, after R. had started sixth grade, defendant telephoned and
said that C. wanted her to come over. When she got to C.‘s apartment, however,
defendant was alone. He took R. into his bedroom and started playing a
pornographic movie. R. asked him to turn it off because she was embarrassed.
Defendant turned off the movie, lay on the bed, took a packaged condom out of
his pocket, and told R. he wanted to have sex. R. said she had to leave. As she
began to walk out, she tripped over a television cable and fell onto the bed.
Defendant hugged and kissed her. R. told him to stop because she had to leave.
She stood up, but defendant pulled her onto the bed. He repeatedly grabbed at her
buttocks and ―the part between [her] legs.‖ He tried to pull her pants down, while
R. tried to push his hands away. Defendant removed his trousers but not his boxer
shorts. He took R.‘s hand in a firm, squeezing grip and placed it on his erect
penis. Defendant said he wanted to have sex with her. After a few seconds, R.
pulled her hand away and repeated that she had to leave. R. did not want to do
these things with defendant, but she was afraid he would get upset and do
4
something, like rape her. After she left the apartment, R. avoided defendant
because she was afraid of him.
Based on the two incidents with C. and the incident with R. in the bedroom,
defendant was charged with three counts of lewd acts on a child under 14 by use
of force, violence, duress, menace, or fear. (§ 288(b)(1).) He was also charged
with committing a nonforcible lewd act against R. (§ 288(a)), based on the laundry
room encounter.
As to the section 288(b)(1) counts, the trial court instructed the jury with
CALCRIM No. 1111. This instruction states that the People must prove ―the
defendant used force, violence, duress, menace or fear of immediate and unlawful
bodily injury to the child or someone else‖ in committing the lewd act. It defines
―force‖ and ―duress‖ as follows: ―The force used must be substantially different
from or substantially greater than the force needed to accomplish the act itself.
[¶] Duress means a direct or implied threat of force, violence, danger, hardship, or
retribution that causes a reasonable person to do or submit to something that he or
she would not otherwise do or submit to.‖ Finally, the version of CALCRIM
No. 1111 read to defendant‘s jury stated: ―It is not a defense that the child may
have consented to the act.‖3 Defendant did not object to the instruction.
In her closing argument, the prosecutor told the jury it could convict
defendant of the section 288(b)(1) counts based on his use of force or duress. The
prosecutor explained, with regard to the statutory factors of force, violence,
duress, menace, and fear: ―You don‘t have to find all of them, just one of them is
3
A bench note to CALCRIM No. 1111 recognizes the existing disagreement
in published opinions as to whether consent of the minor is an affirmative defense
to a lewd act accomplished by force. Accordingly, the note recommends that this
portion of the instruction, stating that consent is not a defense, ―may be given on
request if there is evidence of consent and the court concludes that consent is not a
defense to a charge under section 288(b)(1). If the court concludes that consent is
a defense and there is sufficient evidence, the court has a sua sponte duty to
instruct on the defense.‖ (Judicial Council of Cal. Crim. Jury Instns. (2011),
Bench Notes to CALCRIM No. 1111, p. 931.)
5
enough. It‘s also enough if some jurors find force and some jurors find duress, but
you all must unanimously agree that it was accomplished [by one or the other].‖
Referencing CALCRIM No. 1111, she also argued: ―Consent is not a defense. It
is not a defense that one or both of the girls wanted to do it or wanted to be with
the defendant when this happened. Because he‘s the adult in the equation.‖ The
defense presented no evidence. During argument, defendant did not assert that C.
or R. consented to any sexual contact. The gist of the defense was that both girls
were lying. Even if the jury believed that defendant committed inappropriate
touching under section 288(a), the defense maintained there was insufficient
evidence of force or duress to convict under section 288(b)(1). The jury convicted
on all counts, and defendant was sentenced to a total of 12 years in prison.
In an unpublished opinion, the Court of Appeal reversed and remanded for
retrial on the charges involving force or duress. Although the majority declined to
address whether consent is a defense to a charge of lewd conduct committed by
force, it held that consent is a defense to the charge of lewd conduct committed by
duress and that it is error to instruct the jury otherwise. One justice dissented from
this holding, finding no error in the trial court‘s instruction.
We granted review on the question whether consent of the victim is a
defense to the crime of aggravated lewd acts on a child under age 14.
DISCUSSION
Section 288(a) prohibits the commission of a lewd or lascivious act on a
child under age 14 done with the intent to arouse or satisfy the sexual desires of
the perpetrator or the child. Section 288(b)(1) further prohibits the commission of
such an act ―by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person . . . .‖ At the time of
defendant‘s trial, both offenses were punishable by a range of three, six, or eight
years in state prison. However, a defendant convicted under section 288(b)(1) was
ineligible for probation (§ 1203.066, subd. (a)(1)) and subject to full-term
consecutive sentencing (§ 667.6, subds. (c), (d)). Thus, a defendant convicted
6
under section 288(b)(1) was subject to more stringent punishment than one
convicted under section 288(a).4
There is no language in section 288 requiring that a lewd or lascivious act
be committed against the child‘s will. Nevertheless, defendant argues this
requirement must be read into the aggravated offense. He reasons that a sexual act
committed by use of force or duress necessarily implies that the perpetrator
applied these pressures in order to overcome the victim‘s will. Evidence that the
child ―freely consented‖ to a sexual encounter would tend to rebut a finding that
the perpetrator actually used force or duress to accomplish the act. Thus,
defendant maintains, it is error to instruct a jury that the victim‘s consent is not a
defense to charges under section 288(b)(1).
We reject defendant‘s analysis because its premise fails. Lack of consent
by the child victim is not an element of either lewd act offense defined in
section 288. Nor is willingness by the child a defense to either crime. For over
4
On September 9, 2010, the Governor signed into law the Chelsea King
Child Predator Prevention Act of 2010 (Chelsea‘s Law). (Stats. 2010, ch. 219.)
Chelsea‘s Law significantly increases the penalties for sex crimes against minors
by imposing longer determinate sentences, indeterminate sentences for some
crimes, and longer parole restrictions. (Sen. Com. on Public Safety, Analysis of
Assem. Bill. No. 1844 (2009-2010 Reg. Sess.) as amended Jun. 2, 2010, p. 3.) As
amended, section 288(b)(1) now prescribes a sentencing range of five, eight, or 10
years for the crime of lewd or lascivious acts against a child under 14 committed
by use of force, violence, duress, menace, or fear. The punishment for a violation
of section 288(a) remains unchanged (three, six or eight years). However,
Chelsea‘s Law adds significant penal consequences for lewd act offenses that
involve the infliction of bodily harm, defined as ―any substantial physical injury
resulting from the use of force that is more than the force necessary to commit the
offense.‖ (§ 288, subd. (i)(3), as added by 2010 Stats., ch. 219, § 7.) If the
defendant personally inflicted bodily harm on the victim in committing a lewd or
lascivious act on a child under age 14, newly enacted section 288, subdivision (i)
requires that the defendant be sentenced to life in prison with the possibility of
parole. Chelsea‘s Law also extends the minimum parole period for persons
convicted of violating section 288(b)(1) to 20 years. (§ 3000, subd. (b)(4), as
amended by 2010 Stats., ch. 219, § 19.)
7
100 years, California law has consistently provided that children under age 14
cannot give valid legal consent to sexual acts with adults. (See, e.g., People v.
Verdegreen (1895) 106 Cal. 211, 214-215.) The Legislature has drafted the child
molestation laws to make issues regarding the child victim‘s consent immaterial as
a matter of law in these cases.
I.
Relevant Statutory History
As originally enacted, section 288 did not distinguish between forcible and
nonforcible lewd conduct. In 1979, as part of a sentencing overhaul for forcible
sex crimes, the Legislature amended the statute to add an aggravated offense. The
1979 version of section 288(b) stated: ―Any person who commits an act described
in subdivision (a) [i.e., a lewd act on a child under 14] by use of force, violence,
duress, menace, or threat of great bodily harm, and against the will of the victim
shall be guilty of a felony and shall be imprisoned in the state prison for a term of
three, five or seven years.‖ (Stats. 1979, ch. 944, § 6.5, p. 3254, italics added.)5
In 1981, the Legislature revisited section 288 when it enacted Senate Bill
No. 586 (1981-1982 Reg. Sess.) (hereafter Senate Bill No. 586), the Roberti-
Imbrecht-Rains-Goggin Child Abuse Prevention Act. (Stats. 1981, ch. 1064, § 5,
p. 4096.) As originally introduced, this bill proposed sweeping changes to the
laws defining and punishing sex crimes against minors. Among other things,
Senate Bill No. 586 proposed to repeal section 288 and create two new crimes: (1)
unlawful sexual conduct with a child involving sexual penetration, and (2)
unlawful sexual contact with a child involving touching alone. (Sen. Bill No. 586
§§ 9, 13, as introduced Mar. 16, 1981.) If the unlawful sexual conduct or contact
was committed ―by force, violence, duress, menace, or threat of bodily injury,‖ it
was a felony punishable by five, seven, or nine years in state prison. (§§ 293,
subd. (b), 294, subd. (a) as proposed by Sen. Bill No. 586, § 13, as introduced
5
Section 288(b) was renumbered as section 288(b)(1) by the 1995
amendments to section 288. (Stats. 1995, ch. 890, § 1, p. 6777.)
8
Mar. 16, 1981.) Unlike the version of section 288 they were intended to replace,
these new provisions did not require that the sexual conduct occur ―against the
will of the victim.‖ This change did not go unnoticed. For example, a Senate
Judiciary Committee report analyzing an early version of the bill observed that,
because of this change, a 16-year old boy who fondled his 13-year-old girlfriend‘s
breast would be subject to mandatory imprisonment. (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 586, as amended Apr. 20, 1981, p. 5.)6
Senate Bill No. 586 was similar in many respects to an Assembly bill that
was under consideration around the same time. Assembly Bill No. 457 (1981-
1982 Reg. Sess.) (hereafter Assembly Bill No. 457) provided less severe
punishment for child molestation committed within the family, however. In such
situations, Assembly Bill No. 457 required mandatory imprisonment only if the
lewd act was committed by force or threat and was shown to be against the will of
the victim. (See Assem. Com. on Crim. Justice, Analysis of Sen. Bill No. 586, as
amended Aug. 10, 1981, pp. 5-6.) The analysis of the Assembly Committee on
Criminal Justice highlighted this difference between the bills, stating: ―SB 586
requires imprisonment if there is force or threats involved even if it is not against
the victim‘s will. This is contrasted with AB 457 where probation is authorized
only in the unusual in-family case for such offense and not at all if it is
accomplished against the will of the victim.‖ (Id. at p. 7.)
On August 17, 1981, Assembly amendments added ―physical intimidation‖
and ―physical coercion‖ to the list of aggravating conduct in section 13 of Senate
Bill No. 586‘s unlawful sexual conduct and sexual contact crimes. A week later,
the Assembly changed Senate Bill No. 586 drastically, replacing many of its
provisions with those of Assembly Bill No. 457. Among several other changes,
Assembly amendments of August 25, 1981 deleted the unlawful sexual conduct
6
We have taken judicial notice of legislative history materials submitted by
both sides. (Evid. Code, § 452, subd. (c).)
9
and contact crimes proposed by the Senate bill and, in their place, reinstated
section 288. Section 288 appeared in its original form except that the sentencing
range was increased slightly and ―intimidation‖ and ―coercion‖ were added to the
forms of aggravating conduct listed in section 288(b). The Assembly amendments
retained section 288(b)‘s requirement that the aggravated lewd conduct occur
―against the will of the victim.‖ (Sen. Bill No. 586, § 1, as amended Aug. 25,
1981.)
Around the time of these amendments, the Joint Committee for Revision of
the Penal Code circulated a report to all members of the Senate Judiciary
Committee summarizing the major differences between the Assembly and Senate
bills. The report explained that, whereas the Assembly bill was ―primarily a
penalty bill,‖ the Senate bill proposed to make ―a major philosophical change in
the law‖ based on the twin premises that ―children do not generally lie about
sexual abuse‖ and ―the present criminal justice system does nothing to meet the
special needs of the child victim of sexual abuse.‖ (Com. for Revision of Pen.
Code, Summary of Major Differences, Aug. 24, 1981, p. 1.) The report
emphasized that a major difference between the two bills concerned their
treatment of consent: ―Various crimes are redefined in SB 586 to give maximum
support and credence to the child victim. Children under age 14 are presumed to
be incapable of consenting to sexual advances. The victim who is under age 14
need not prove that the sexual assault was accomplished against her will or that, in
entering into a friendship with someone who later molests her, she did not solicit
the act or share in that initial purpose at the time of befriending. AB 457 requires
that a victim over the age of 10 establish that she did not consent to the act of
sexual abuse.‖ (Ibid.) More succinctly, the report stated: ―AB 457 requires,
where force or violence is an issue, that the prosecution prove that force or
violence was against the child victim’s will. SB 586 does not.‖ (Id. at p. 2.)
Clearly concerned by the Assembly‘s recent amendments, the authors of the report
recommended that the Senate either: (1) ―[k]ill AB 457,‖ and ―restore[] [Senate
10
Bill No. 586] to its former strength in Conference‖; (2) hold Assembly Bill No.
457 ―for use as a ‗back-up‘ vehicle in the event the Assembly continues to play
games with SB 586‖; or (3) attempt to merge the two bills. (Id. at p. 3.)
One day before the full Legislature took up the bills, the conference
committee identified as one of the major issues in Senate Bill No. 586: ―Should
children under age 14 be presumed incapable of consenting to sexual advances in
all instances?‖ (Conf., Rep. on Sen. Bill No. 586, Sept. 14, 1981, p. 2; see also
Conf., Analysis of Sen. Bill No. 586, Sept. 13, 1981, p. 2.)
On September 15, 1981, Senate Bill No. 586 was amended in conference
and passed by the Legislature. The final amendments to section 288(b) removed
―intimidation‖ and ―coercion‖ from the aggravated lewd act offense and removed
the requirement that an aggravated lewd act be committed ―against the will of the
victim.‖ The Legislative Counsel‘s Digest explained that the bill would increase
the sentencing range for lewd act crimes ―and would delete the requirement that
the act, when accompanied by force, violence, duress, menace, or threat of great
bodily harm, be against the will of the victim.‖ (Legis. Counsel‘s Dig., Sen. Bill
No. 586, 4 Stats. 1981, Summary Dig., p. 304, italics added.)
The Legislature‘s intent on the issue of victim consent could hardly be
more clear. Committee reports demonstrate that the Legislature specifically
considered whether the law should require lack of consent by children under age
14. (See Southern California Gas Co. v. Public Utilities Com. (1979) 24 Cal.3d
653, 659 [―Statements in legislative committee reports concerning the statutory
objects and purposes which are in accord with a reasonable interpretation of the
statute are legitimate aids in determining legislative intent‖].) The victim consent
issue was consistently described as a key difference between the two bills. Faced
with these competing bills, the Legislature enacted Senate Bill No. 586 and
deleted language from section 288(b) that would have required proof that
aggravated lewd acts were ―against the will of the victim.‖ The legislative intent
11
to do away with consent as a defense in lewd act cases is made manifest by this
history.
II.
The People v. Cicero Decision
After these amendments, efforts by the appellate courts to interpret
section 288(b) produced mixed results. Despite the removal of the phrase ―against
the will of the victim‖ from section 288(b), some courts continued to recognize
consent as a defense to an aggravated lewd acts charge because they reasoned
consent was inconsistent with the use of force and duress. Much confusion
concerning the role of consent stemmed from the divided decision of the Third
District Court of Appeal in People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero).
The Cicero majority‘s faulty reasoning caused it to interpret section 288(b) as
meaning precisely the opposite of what the Legislature intended. Because
Cicero‘s holding and related dicta have led other courts astray, we discuss the
decision in some detail.
Cicero was charged with committing lewd acts by force on two girls, ages
11 and 12. (Cicero, supra, 157 Cal.App.3d at pp. 470-471.) The girls testified
that 24-year-old Cicero, a twice-convicted felon, had approached and engaged
them in friendly conversation as they played by a waterway. (Id. at pp. 469-470.)
When the girls pretended to push each other in the water, Cicero proposed to
throw them both in. (Id. at p. 470.) He lifted both girls by the waist and began to
carry them. As he did so, he closed a hand around each child‘s crotch. (Ibid.)
The girls laughed, believing the touching was accidental. After he carried them 15
to 20 feet, Cicero sat but continued to hold each girl by the waist. (Ibid.) When
one child said she was afraid and had to go home, Cicero said they could leave if
one of them kissed him. (Ibid.) The trial court found that one of the girls ―gave
him a little brush kiss on the cheek[;] he requested a real kiss[;] and he attempted
to kiss her again.‖ (Id. at p. 470, fn. 3.) The girls ran away and reported the
incident. (Id. at p. 471.) After a court trial, Cicero was convicted of two counts of
lewd conduct by force. (§ 288(b).) The trial court found no evidence he had used
12
violence or threatened great bodily harm. On appeal, Cicero did not dispute he
had committed lewd acts but claimed ―no force was used as a matter of law.‖
(Cicero, supra, 157 Cal.App.3d at p. 473, italics added.)
The Court of Appeal therefore had to determine what level of force is
necessary to support an aggravated lewd act conviction. To answer that question,
the majority reasoned that the harsher penal consequences of a conviction under
section 288(b), as compared to section 288(a), require that the force used for a
subdivision (b) conviction be ―substantially different from or substantially greater
than that necessary to accomplish the lewd act itself.‖ (Cicero, supra, 157
Cal.App.3d at p. 474.) This formulation was, and remains, an appropriate
definition of the force required for an aggravated lewd conduct conviction under
section 288(b), now section 288(b)(1). (See People v. Griffin (2004) 33 Cal.4th
1015, 1027.) However, after concluding this definition of force was satisfied by
Cicero‘s conduct, the majority went on to consider whether section 288(b) also
required that the force cause physical injury to the victim. (Cicero, at p. 474.)
In casting about to answer this question, the majority turned ―to the law of
rape for guidance.‖ (Cicero, supra, 157 Cal.App.3d at p. 475.) At this point, the
decision‘s skein of logic began to unravel. As even the Cicero decision
recognized, rape is an act of intercourse ―accomplished against a person‘s will.‖
(§ 261, subd. (a)(2); see Cicero, at p. 475.) Yet, just two years earlier, the
Legislature had specifically deleted from section 288(b) a requirement that the
lewd act be committed against the will of the victim. By drawing an analogy to
rape at the beginning of its journey, the Cicero majority chose a guide destined to
lead it astray.7
7
In discussing the law of rape, the majority relied heavily on the treatise
Perkins & Boyce, Criminal Law (3d ed. 1982). (See Cicero, supra, 157
Cal.App.3d at p. 475.) However, the majority apparently overlooked the treatise‘s
admonition that, while the crimes of rape and carnal knowledge of a child have
much in common, ―[a]t one point they cannot be discussed effectively without
complete separation. The point has to do with the consent, or lack of consent on
13
In discussing the law of rape, the majority observed that the fundamental
wrong punished as rape is not the infliction of physical injury but ―the violation of
a woman‘s will and sexuality‖ from ―intercourse undertaken without her consent.‖
(Cicero, supra, 157 Cal.App.3d at p. 475.) The force used by a rapist need not
cause physical harm, but it is relevant to show that the intercourse was against the
victim‘s will. (Ibid.) The majority concluded the same definition of force should
apply in aggravated lewd conduct cases: ―It seems both logical and fair to us that
if the will and sexuality of an adult woman are protected by the Penal Code, then
the will and sexuality of children deserve no lesser protection. Accordingly, both
logic and fairness compel the conclusion that ‗force‘ in subdivision (b) must
reasonably be given the same established meaning it has achieved in the law of
rape: ‗force‘ should be defined as a method of obtaining a child‘s participation in
a lewd act in violation of a child‘s will and not exclusively as a means of causing
physical harm to the child.‖ (Cicero, at pp. 475-476.)
Cicero based its conclusion that consent is a defense to section 288(b) on a
flawed analogy between lewd acts on a child and rape. We have cautioned that
significant differences between these crimes argue strongly against importing
definitions from one context to the other. (People v. Griffin, supra, 33 Cal.4th at
pp. 1026-1027.) Unlike rape, the wrong punished by the lewd acts statute is not
the violation of a child‘s sexual autonomy, but of its sexual innocence. ―[S]ection
288 was enacted to provide children with ‗special protection‘ from sexual
exploitation. (People v. Olsen (1984) 36 Cal.3d 638, 647-648.) The statute
recognizes that children are ‗uniquely susceptible‘ to such abuse as a result of their
dependence upon adults, smaller size, and relative naiveté. [Citation.] The statute
also assumes that young victims suffer profound harm whenever they are
the part of [the victim]. Unlawful sexual intercourse with a girl under the age of
consent is a crime whether she consents or not.‖ (Perkins & Boyce, supra, at
p. 209.)
14
perceived and used as objects of sexual desire.‖ (People v. Martinez (1995) 11
Cal.4th 434, 443-444.)
Next, having been asked only to define ―force,‖ the Cicero majority paused
to consider the meaning of ―duress,‖ a question that was not presented. It
remarked that the terms ―duress,‖ ―menace,‖ and ―threat‖ ―are ordinarily used to
demonstrate that someone has used some form of psychological coercion to get
someone else to do something they don‘t want to do, i.e., something against their
will.‖ (Cicero, supra, 157 Cal.App.3d at p. 477.) The observation is accurate
when lack of consent must be proven. The majority erred, however, in assuming
that it is impossible to consider the concepts of duress, menace, or threat apart
from their ultimate effect on a victim. A perpetrator may use duress, menace, or
threats against a victim even if this conduct does not ultimately influence the
victim‘s state of mind. In the context of lewd acts with a child under 14, it is the
defendant‘s menacing behavior that aggravates the crime and brings it under
section 288(b).
After its diversion into duress, the Cicero majority arrived at the rather
startling inference that the Legislature did not intend to eliminate lack of consent
from most section 288(b) cases. (Cicero, supra, 157 Cal.App.3d at pp. 478, 482.)
It held that consent was not a defense if the child suffered demonstrable physical
harm from a forcible lewd act. (Id. at p. 479.) However, if the child suffered no
physical harm, the majority held that the prosecution was required to prove ―(1)
that the defendant used physical force substantially different from or substantially
in excess of that required for the lewd act and (2) that the lewd act was
accomplished against the will of the victim.‖ (Cicero, at p. 484.)8
8
We had occasion to consider Cicero‘s definition of ―force‖ in People v.
Griffin, supra, 33 Cal.4th 1015. Although we recited the first part of the
definition, requiring that the force be greater than that necessary to accomplish the
lewd act itself, we did not mention or consider Cicero‘s requirement that the
victim‘s will be overcome when forcible lewd acts have resulted in no physical
harm. (Griffin, at p. 1027.)
15
Quite obviously, this interpretation of section 288(b) directly contradicted
the 1981 legislative amendments. As Justice Regan pointed out in dissent, the
majority ―wr[ote] back into the subdivision precisely what the Legislature wrote
out of the subdivision, so that the majority may in turn rest the conviction of the
question of ‗knowing consent.‘ ‖ (Cicero, supra, 157 Cal.App.3d at p. 487 (dis.
opn. of Regan, Acting P.J.).) Aware of the discrepancy between its conclusion
and the ―perplexing statutory amendment‖ (Cicero, supra, 157 Cal.App.3d at
p. 476) to section 288(b), the majority first sought an explanation for the
amendment in legislative history. After cursorily reviewing Senate Bill No. 586‘s
chronology, however, the majority dismissed the legislative history as
unenlightening. (Cicero, at pp. 476-477.) It observed that the phrase ―against the
will of the victim‖ was not removed from section 288(b) until the final conference
and concluded the reason for this change was not apparent. (Cicero, at p. 477.)
As we have discussed, however, a comprehensive review of the legislative history
clearly shows that the Legislature deleted the phrase in order to eliminate consent
as a defense to the aggravated lewd act crime.
In dissent, Justice Regan criticized the majority‘s analysis. Regarding the
1981 amendments to section 288(b), he explained: ―[T]he Legislature simply
recognized the lewd act in subdivision (a) need not be against the [victim‘s] will,
and thus, it need not be in the use of force under subdivision (b). In fact, under the
plain language of the statute, the act in subdivision (b) can be committed with
knowing consent and still be a violation of the subdivision, if force is used. Force
is limited to something the perpetrator applies; it is independent of the actions or
thoughts of the under-14-year-old victim.‖ (Cicero, supra, 157 Cal.App.3d at
pp. 487-488 (dis. opn. of Regan, Acting P.J.).) Justice Regan concluded that
―knowing consent‖ by a child under 14 ―is not an affirmative defense to
subdivision (a), and cannot be one to subdivision (b).‖ (Cicero, at p. 488 (dis.
opn. of Regan, Acting P.J.).)
16
III.
Consent Is Not a Defense to Aggravated Lewd Conduct
Cicero‘s discussion of victim consent has generated disagreement. (See,
e.g., People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7; People v.
Quinones (1988) 202 Cal.App.3d 1154, 1158.) For example, in his concurring
opinion in People v. Bolander (1994) 23 Cal.App.4th 155, Justice Mihara noted
that ―Cicero‘s legislative intent analysis led it down the wrong path.‖ (Id. at
p. 162 (conc. opn. of Mihara, J.).) He went on to correctly observe: ―Once lack of
consent was eliminated as an element of the prosecution‘s case, it was not reborn
as a part of the definition of force. Lack of consent is not an element of the
offense prohibited by section 288, subdivision (b), and the victim‘s consent is not
an affirmative defense to such a charge. The victim‘s consent or lack thereof is
simply immaterial.‖ (People v. Bolander, at p. 163 (conc. opn. of Mihara, J.).)
In this case, the Court of Appeal majority followed Cicero‘s flawed
reasoning. We conclude Justice Mihara had the better argument in his dissent
below. With respect to force, Justice Mihara explained: ―While the fact that the
victim actually consents to a lewd act might render the use of force unnecessary,
the victim‘s actual consent does not eliminate the fact that the defendant actually
uses violence, compulsion or constraint in the commission of the lewd act, nor
does the victim‘s consent diminish the defendant‘s culpability or immunize the
defendant from suffering the penal consequences that arise from a forcible lewd
act.‖ Likewise, with respect to implied coercion or duress, a ―child victim‘s actual
consent does not eliminate the fact that the perpetrator utilizes duress in the
commission of the lewd act, and does not reduce the perpetrator‘s culpability or
eliminate the penal consequences that attach due to the perpetrator‘s conduct.‖
When the Legislature amended section 288(b) in 1981 to delete the
previous requirement that lewd acts committed by use of force, violence, duress,
menace, or fear be ―against the will of the victim,‖ it effectively removed the
concept of consent from child molestation cases. ―The rejection by the Legislature
of a specific provision contained in an act as originally introduced is most
17
persuasive to the conclusion that the act should not be construed to include the
omitted provision.‖ (Rich v. State Board of Optometry (1965) 235 Cal.App.2d
591, 607.) Since 1981, the lewd act crimes in section 288 have been defined based
on the offender‘s wrongful conduct only. The victim‘s ―consent,‖ such as it may
be, is no longer material in these cases. We cannot interpret section 288(b)(1) to
reinsert what the Legislature intentionally removed. ―To do so would not be
interpreting the legislative intent but would be a gross example of judicial
legislation in contravention of the legislative intent logically implied from the
rejection by the Legislature of an identical provision.‖ (People v. Brannon (1973)
32 Cal.App.3d 971, 977.)
By intentionally removing the phrase ―against the will of the victim,‖ the
Legislature kept the focus on the conduct of the assailant. It recognized that there
is an inherent imbalance of power in an encounter between a child and an adult
bent on sexual conduct. It acted to protect young children, who may make ill-
advised ―choices‖ when under the coercive influence of an overreaching adult.
Accordingly, it set 14 as the age at which a child may legally give consent to
sexual conduct. This was a legitimate exercise of the Legislature‘s authority.
―[T]he Legislature has determined that children are uniquely susceptible to
‗outrage‘ and exploitation‖ and has accordingly broadened the range of sexual acts
with children deemed criminal. (People v. Scott (1994) 9 Cal.4th 331, 341-342;
cf. People v. Leal (2004) 33 Cal.4th 999, 1008 [Legislature could define ―duress‖
more broadly in § 288(b)(1) than in the rape and spousal rape statutes to protect
children under 14 from sexual abuse].)
Despite this clear legislative intent, defendant repeats Cicero‘s error of
assuming lack of consent must be proven when the prosecution relies on duress
because this term necessarily implies that the victim‘s will was overcome.
However, the legal definition of duress is objective in nature and not dependent on
the response exhibited by a particular victim. In People v. Leal, supra, 33 Cal.4th
999, we held that ―duress,‖ as used in section 288 (b)(1), means ― ‗a direct or
18
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.‘ ‖ (Leal, at p. 1004, second italics added,
quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 50.)9 Because duress is
measured by a purely objective standard, a jury could find that the defendant used
threats or intimidation to commit a lewd act without resolving how the victim
subjectively perceived or responded to this behavior.10 Consistent with the
language of section 288 and the clear intent of the Legislature, the focus must be
on the defendant‘s wrongful act, not the victim‘s response to it.
Taking a different view of history, the concurring and dissenting opinion
asserts that ―[a] virtually unbroken line of authority following the 1981
amendments, from Cicero, supra, 157 Cal.App.3d 465, and Pitmon, supra, 170
Cal.App.3d 38, through our own 2004 decision in Leal, supra, 33 Cal.4th 999, has
interpreted duress, menace and threat as behavior inconsistent with the victim‘s
freely given consent.‖ (Conc. & dis. opn., post, at p. 10.) In fact, no decision has
actually held that consent is a defense when it is alleged that lewd acts were
accomplished by duress. As noted, the issue of duress was not presented in
9
The definition of ―duress‖ in CALCRIM No. 1111 is based on People v.
Leal, supra, 33 Cal.4th at page 1004. To make even more clear that the focus is
on the perpetrator‘s actions, not the victim‘s response, this part of the instruction
should be amended along the following lines: ―Duress means the use of a direct or
implied threat of force, violence, danger, hardship, or retribution sufficient to
cause a reasonable person to do [or submit to] something that he or she would not
otherwise do [or submit to]. When deciding whether the act was accomplished by
duress, consider all the circumstances, including the age of the child and (his/her)
relationship to the defendant.‖
10
The concurring and dissenting opinion complains this conclusion ―distorts
the holdings of Pitmon and Leal.‖ (Conc. & dis. opn., post, at p. 6.) To the
contrary, the analysis flows directly from the explicit definition of ―duress‖ stated
in those cases. That the definition was formulated in the context of a different
legal issue does not make it irrelevant to the question we explore here.
19
Cicero; therefore, the majority‘s discussion of it was dictum. Although other
decisions have repeated Cicero‘s dictum, none has directly ruled that a child
victim‘s consent negates a finding of duress under section 288(b)(1). For
example, as in Cicero, the issue in People v. Quinones, supra, 202 Cal.App.3d
1154 was force, not duress. The court stated in dicta that it agreed with Cicero‘s
observations on duress but disagreed with Cicero‘s extension of this reasoning to
lewd acts committed by force. (Quinones, at p. 1158.) While duress was at issue
in Pitmon, consent was not. There, in finding that sufficient evidence supported a
section 288(b) conviction, a panel of the same court that decided Cicero remarked
that the defendant‘s conduct had ―prompted [the child] against his will to
participate in the sexual acts‖ (Pitmon, at p. 51), but no argument had ever been
made that the sex acts were consensual.
Because no case following the 1981 amendments to section 288(b) has
specifically held that consent is a defense to aggravated lewd acts on a child under
14, we also reject the related argument that the Legislature‘s failure to alter
section 288(b)(1) after Cicero, supra, 157 Cal.App.3d 465 indicates it has
acquiesced in Cicero‘s interpretation of ―duress.‖ When the Legislature fails to
act in the face of a direct holding, a conclusion of acquiescence may be in order.
It is a slender reed to depend on indeed to argue that the Legislature acquiesced to
dictum in a case that has been much criticized and that even the concurring and
dissenting opinion acknowledges ―was not free from error.‖ (Conc. & dis. opn.,
post, at p. 3.)
The approach we endorse today is venerable. California law has long
recognized that consent is not a defense when the victim of a sex crime is a child
under age 14. Many early decisions under the rape statute (§ 261) held that a
minor could not legally consent to intercourse. (E.g., People v. Verdegreen,
supra, 106 Cal. at pp. 214-215; People v. Gordon (1886) 70 Cal. 467, 469.) This
incapacity was conclusively presumed notwithstanding any ―actual consent‖ the
child may have conveyed. (Verdegreen, at p. 214.) Moreover, the presumption
20
applied even when the alleged crime was not rape but an assault with intent to
commit rape. In a similar argument to the one advanced here, Verdegreen argued
consent was a defense to such an assault because the crime necessarily implied
resistance by the person assaulted. (Id. at p. 213.) We disagreed, explaining, ―It is
true that an assault implies force by the assailant and resistance by the one
assaulted; and that one is not, in legal contemplation, injured by a consensual act.
But these principles have no application to a case where under the law there can
be no consent. Here the law implies incapacity to give consent, and this
implication is conclusive. In such case the female is to be regarded as resisting, no
matter what the actual state of her mind may be at the time. The law resists for
her.‖ (Id. at p. 215, italics added.)11
Honoring the clear legislative intent expressed in the plain language of
section 288(b)(1), we hold that consent of the victim is not a defense to the crime
of aggravated lewd conduct on a child under age 14. The prosecution need not
prove that a lewd act committed by use of force, violence, duress, menace, or fear
11
The Legislature later raised the age of consent from 14 to 18 (Stats. 1897,
ch. 139, § 1, p. 201; Stats. 1913, ch. 122, § 1, p. 212) and removed the crime of
unlawful sexual intercourse with a minor from the rape statute (§ 261.5, added by
Stats. 1970, ch. 1301, §§ 1, 2, pp. 2405-2406). These changes led us to recognize
a defense to statutory rape when the accused had a good faith, reasonable belief
that the victim was 18 or older. (People v. Hernandez (1964) 61 Cal.2d 529, 536.)
However, no legislative action or judicial decision has altered the long-standing
presumption that children under age 14 cannot give legal consent to sexual
activity. We made this clear in People v. Olsen, supra, 36 Cal.3d 638, when we
refused to extend Hernandez‘s mistake-of-age defense to section 288. Whereas
statutory rape involves an element of consent, in that it is possible to mistakenly
believe a female is older than 18 and capable of consenting to intercourse, we
stated that ― ‘[a] violation of section 288 does not involve consent of any sort,
thereby placing the public policies underlying it and statutory rape on different
footings.‘ ‖ (Olsen, at p. 645, italics added, quoting People v. Toliver (1969) 270
Cal.App.2d 492, 496.) We observed that section 288 was enacted to serve a
―strong public policy to protect children of tender years‖ (Olsen, at p. 646) and
discussed several statutes that afford special protections to children under age 14.
(Id. at pp. 647-649.)
21
was also against the victim‘s will. To the extent they are inconsistent with this
holding, we disapprove People v. Cicero, supra, 157 Cal.App.3d 465, and the
cases following it.12
DISPOSITION
The judgment of the Court of Appeal reversing defendant‘s convictions on
counts 1, 2 and 4 is reversed.
CORRIGAN, J.
WE CONCUR:
BAXTER, J.
CHIN, J.
GEORGE, J. *
12
Specifically, we disapprove of statements in People v. Cicero, supra, 157
Cal.App.3d 465 suggesting that consent of the victim is a defense to a charge of
lewd acts accomplished by use of force, violence, duress, menace, or fear. We
also disapprove of similar statements in People v. Cochran (2002) 103
Cal.App.4th 8, 15-16; People v. Bolander, supra, 23 Cal.App.4th 155, 160-161;
People v. Neel (1993) 19 Cal.App.4th 1784, 1787; People v. Hecker (1990) 219
Cal.App.3d 1238, 1249-1251; People v. Quinones, supra, 202 Cal.App.3d 1154,
1158; People v. Mendibles (1989) 199 Cal.App.3d 1277, 1306; People v. Lusk
(1985) 170 Cal.App.3d 764, 770-771; and People v. Pitmon, supra, 170
Cal.App.3d 38, 51.
_______________________
* Retired Chief Justice of California, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
22
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
I concur in the result. I dissent, however, from most of the majority‘s
conclusions and analysis.
In defendant‘s trial for multiple counts of committing lewd acts with
children under 14 years of age by use of force, violence, duress, menace or fear of
bodily injury (Pen. Code, § 288, subd. (b)(1)),1 the jury was instructed: ―It is not a
defense that the child may have consented to the act.‖ Because consent of the
victim is inconsistent with the use of duress to commit a lewd act, I would hold it
was error to so instruct in this case, where duress as well as force was at issue.
I would, however, find the error harmless because, in light of the evidence and
arguments, it is not reasonably likely (People v. Watson (1956) 46 Cal.2d 818,
836) the jury would have failed to find force or duress had the court refrained from
giving the instruction. On this ground (harmless error), I concur in the judgment
reversing the judgment of the Court of Appeal.
Section 288, subdivision (a) prohibits the commission of any lewd or
lascivious act on a child under the age of 14 with the intent of arousing or
satisfying the sexual desires of the perpetrator or the child. Subdivision (b)(1)
specially prohibits the commission of such acts ―by use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim or another
1
All statutory references are to the Penal Code.
1
person . . . .‖ Although at the time of defendant‘s crimes both offenses specified
punishment by three, six or eight years in state prison, a conviction under section
288, subdivision (b)(1) (section 288(b)(1)) had and has significant consequences
in restricting the availability of probation and in determining consecutive
sentencing. (See §§ 667.6, 1203.066.)2
When the prosecution, to prove a violation of section 288(b)(1), relies in
whole or in part on a theory of duress, menace or threat of bodily injury, an
instruction that consent is no defense is potentially confusing. The statutory terms
―duress, menace, or fear of immediate and unlawful bodily injury‖ (§ 288(b)(1)),
used with their ordinary meanings as they are here, refer to coercion. To commit a
lewd act ―by use of‖ such coercion (ibid., italics added) necessarily means to
coerce the victim into acquiescing to the act. To tell jurors consent is no defense
to such a charge could confuse them as to whether evidence of freely given
consent should be considered on the issue of whether the act was committed by
use of duress, menace or fear. The 1981 amendments to section 288(b),3 on which
2
As the majority notes (maj. opn., ante, at p. 7, fn. 3), the sentence for
violation of section 288(b)(1) has since been increased to five, eight or 10 years in
prison. This change makes even clearer that the Legislature regards section
288(b)(1) offenses as significantly aggravated over offenses under section 288,
subdivision (a).
3
As added to section 288 by amendment in 1979, subdivision (b) prohibited
the commission of a lewd act ―by use of force, violence, duress, menace, or threat
of great bodily harm, and against the will of the victim . . . .‖ (Stats. 1979, ch.
944, § 6.5, p. 3254.) The reference to ―against the will of the victim‖ was deleted
in 1981. (Stats. 1981, ch. 1064, § 1, p. 4093.)
In 1995, subdivision (b) was divided into two paragraphs; the former text
was placed in subdivision (b)(1) while a new subdivision (b)(2), relating to abuse
of dependent adults, was added. (Stats. 1995, ch. 890, § 1, p. 6777.) I refer to the
prohibition on lewd acts with a child by force, violence, etc. as section 288(b) or
section 288(b)(1), according to the statute‘s organization at the time under
discussion.
2
the majority primarily relies, did not focus on this aspect of the statute and cannot
abrogate the statute‘s plain language. That language, referring to commission of
the lewd act by coercive means, must take precedence over general, nonspecific
indications of a legislative desire to reduce the role played by consent in section
288 cases, a desire, as I discuss, seemingly related to punishment, not to proof of
the offense‘s elements.
―Duress,‖ in section 288(b)(1), is not a legal term of art; it is used in its
ordinary sense of ― ‗stringent compulsion by threat of danger, hardship, or
retribution . . . .‘ ‖ (People v. Leal (2004) 33 Cal.4th 999, 1009, italics omitted,
quoting Webster‘s 3d New Internat. Dict. (2002) p. 703; see also Random House
Dict. of the English Language (2d ed. 1987) p. 607 [―compulsion by threat or
force; coercion; constraint‖].) To commit a lewd act on a child ―by use of . . .
duress‖ (§ 288(b)(1)), then, is to use a threat of danger, hardship or retribution to
compel the child‘s compliance with the act. In a violation of section 288(b)(1) by
duress, the duress is employed to overcome the child‘s will, making him or her
perform or acquiesce in the lewd act.
The decision in People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero) was
not free from error, but on this point the decision was clearly correct and, until
now, has stood unchallenged. The Cicero court observed that the terms ―duress,‖
―menace‖ and ―threat‖ ―are ordinarily used to demonstrate that someone has used
some form of psychological coercion to get someone else to do something they
don‘t want to do, i.e., something against their will. Consequently, if the concept of
violation of will is removed from these words, they are left, like shells on a beach,
without substance.‖ (Id. at p. 477.) ―The essential function played by the concept
of ‗menace‘ is to avoid or vitiate consent to an act, so that the act cannot be said to
constitute an exercise of free will. . . . [¶] In light of these authorities, we conclude
it is semantically unreasonable to amputate from the concept of ‗menace‘ the
3
requirement that an act be undertaken ‗against the will of the victim.‘ The latter
concept is necessary to any coherent meaning of ‗menace.‘ We believe similar
arguments could be constructed to demonstrate the terms ‗duress‘ and ‗threats‘
have no useful meaning absent a consideration of their effect on the will of a
victim.‖ (Id. at p. 478.)4
The year after Cicero was decided, the court in People v. Pitmon (1985)
170 Cal.App.3d 38, 50 (Pitmon) held ―duress‖ in section 288(b) should be
interpreted according to its ordinary meaning as ―a direct or implied threat of
force, violence, danger, hardship or retribution sufficient to coerce a reasonable
person of ordinary susceptibilities‖ to perform or acquiesce in a lewd act.
Analyzing the evidence at trial, the court concluded the charged crimes had been
committed by use of duress; ―defendant‘s actions constituted an implied threat of
force, violence, hardship or retribution which prompted [the child] against his will
to participate in the sexual acts.‖ (Id. at p. 51, italics added.)
Cicero was further followed on this issue in People v. Quinones (1988) 202
Cal.App.3d 1154, 1158, where the appellate court agreed that ―a conviction based
on ‗duress,‘ ‗menace,‘ or ‗threat of great bodily harm‘ necessarily implies that the
‗will of the victim‘ has been overcome,‖ though the court disagreed with Cicero‘s
parallel holding as to force, discussed below. (See also People v. Cochran (2002)
103 Cal.App.4th 8, 15-16 [evidence supported a duress finding where victim
―engaged in sex acts only in response to her father‘s parental and physical
authority. Her compliance was derived from intimidation and the psychological
control he exercised over her and was not the result of freely given consent.‖];
People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321 [ ―Duress cannot be
4
Until 1986, section 288(b) referred to ―threat of great bodily harm.‖ The
1986 amendment substituted the current wording, ―fear of immediate and unlawful
bodily injury.‖ (Stats. 1986, ch. 1299, § 4, p. 4595.)
4
established unless there is evidence that ‗the victim[‘s] participation was impelled,
at least partly, by an implied threat . . . .‘ ‖].)
These decisions, forming an unbroken line from 1981 until the majority
opinion in this case, clearly establish that ―duress‖ and its associated terms
―menace‖ and ―fear of . . . bodily injury‖ are used in section 288(b)(1) in their
ordinary meanings, and that to commit a lewd act ―by use of‖ one of these means,
as prohibited in section 288(b)(1), is to coerce the victim, by direct or implied
threat or by exploiting the victim‘s fear, into performing or acquiescing in the
lewd act against his or her will. To coerce an act by duress, menace or fear ―is to
avoid or vitiate consent to [the] act, so that the act cannot be said to constitute an
exercise of free will.‖ (Cicero, supra, 157 Cal.App.3d at p. 478.) Such coercion
is thus inconsistent with the exercise of the victim‘s ―freely given consent.‖
(People v. Cochran, supra, 103 Cal.App.4th at p. 15.)
Because the victim‘s freely given consent is inconsistent with the
commission of a lewd act by use of duress, menace or fear, as section 288(b)(1)
employs those terms, to instruct a jury weighing such charges that the child‘s
consent is not a defense is potentially confusing. While consent is not an
affirmative defense to charges under section 288(b)(1), evidence of consent tends
to negate the statutory element that the lewd act be committed by use of duress,
menace or fear. An instruction that consent is not a defense might lead a
reasonable juror to improperly disregard any evidence of freely given consent put
forward by the defense, rather than considering that evidence, in deciding whether
the prosecution has met its burden to prove the child‘s compliance was in fact
produced by duress, menace or fear of bodily injury.
Against the conclusion that commission of a lewd act by duress, menace or
fear is inconsistent with the victim‘s consent, the majority cites the description of
duress for purposes of section 288(b) — first offered in Pitmon, supra, 170
5
Cal.App.3d at page 50, and later quoted and adopted by this court in People v.
Leal, supra, 33 Cal.4th at page 1004 (Leal) — as a threat ―sufficient to coerce a
reasonable person of ordinary susceptibilities‖ to perform the lewd act. Because
this states an objective standard, the majority reasons, ―a jury could find that the
defendant used threats or intimidation to commit a lewd act without resolving how
the victim subjectively perceived or responded to this behavior.‖ (Maj. opn., ante,
at p. 19.)
The majority‘s conclusion distorts the holdings of Pitmon and Leal. In fact,
these cases are inapposite to the issue here. The definitional discussion in both
cases went to the type and degree of threat that section 288(b) requires, not to
whether a threat must actually overcome the victim‘s will. In Pitmon, the question
was whether a threat of imminent death or great bodily harm (as specified in § 26)
was required (Pitmon held it was not); in Leal, the issue was whether a threat of
―hardship,‖ included in the Pitmon definition, sufficed (Leal held it did). (See
Leal, supra, 33 Cal.4th at pp. 1003-1010; Pitmon, supra, 170 Cal.App.3d at pp.
48-50.)
Neither Pitmon nor Leal held or even suggested that whether the victim is
actually coerced into participating in a lewd act, or freely consents to it, is
irrelevant under section 288(b). To the contrary, in Leal we quoted with approval
Pitmon‘s remark that section 288(b) punished ― ‗the obtaining of a child’s
participation in a lewd act in violation of the child’s will.‘ ‖ (Leal, supra, 33
Cal.4th at p. 1009, italics added, quoting Pitmon, supra, 170 Cal.App.3d at p. 49.)
As explained earlier, the court in Pitmon, consistent with that understanding,
applied its definition to determine that the duress used was not only of an
objectively sufficient magnitude, but actually had the effect of coercing the victim
into participating: the court concluded that the defendant‘s threats ―prompted [the
child] against his will to participate in the sexual acts‖ and that the defendant had
6
thus ―accomplished his lewd acts by means of duress.‖ (Pitmon, at p. 51.) In
holding the People must show that the defendant‘s threats were objectively strong
enough to coerce a reasonable person, then, neither Pitmon nor Leal suggested the
People need not show these threats actually coerced the child into acquiescing to
the lewd act.
The majority also reasons that the Legislature, when in 1981 it deleted the
phrase ―against the will of the victim‖ from section 288(b), intended to eliminate
any consideration of consent from the adjudication of charges under this section.
They rely on the legislative history of the 1981 amendment, which was enacted by
Senate Bill No. 586 (1981-1982 Reg. Sess.) (hereafter Senate Bill No. 586). As
the majority explains, the requirement that a section 288(b) offense be committed
―against the will of the victim‖ was removed in a September 15, 1981, conference
reconciling provisions of Senate Bill No. 586 with those of a competing bill,
Assembly Bill No. 457 (1981-1982 Reg. Sess.) (hereafter Assembly Bill No. 457),
which was not passed. (Maj. opn., ante, at pp. 8-11.) I find the legislative history
less than definitive on the present issue.
The majority relies on an August 24, 1981, report by the Joint Legislative
Committee for Revision of the Penal Code, which was distributed to members of
the Senate Judiciary Committee. This report disparaged the Assembly proposal
allowing probation in certain cases where the child solicited the lewd act5 as
requiring the victim to ―establish that she did not consent to the act of sexual
5
Among other things, Assembly Bill No. 457 would have allowed probation
in some cases where the defendant had befriended the victim for sexual purposes
but the victim solicited the sexual act or shared in the perpetrator‘s sexual intent at
the time he or she was befriended. (Assem. Bill No. 457, § 3, as amended in
Assem., May 6, 1981.) This proposed provision was assertedly designed to
exempt from the state prison mandate offenses involving ―the 13 year old
prostitute and the Lolita situations.‖ (Assem. Com. on Crim. Justice, Analysis of
Sen. Bill No. 586, as amended Aug. 10, 1981, p. 7.)
7
abuse‖ and as reflecting a belief ―that most children want to be molested, that
there exist 11 year old prostitutes who freely and willingly choose that profession,
and that those who molest children should not be harshly treated by the courts.‖
(J. Com. for Revision of Pen. Code, Summary of Major Differences, Aug. 24,
1981, p. 1.) The report reflects a general division between the Assembly and the
Senate over whether and how consent should affect punishment for lewd acts with
children; it sheds no light on how Senate Bill No. 586‘s deletion of ―against the
will of the victim‖ from section 288(b) would affect the prosecution‘s burden of
proving a lewd act had been committed by duress, violence or threat of bodily
harm. It is of limited probative force on the intent of the Legislature, in any event,
because there is no indication the report was presented either to the conference
committee, which agreed to the change, or to the full membership of the two
houses, which approved it.
Also of interest is a conference committee report reviewing ―Major Issues‖
concerning Senate Bill No. 586, dated September 14, 1981 (the day before the
conference committee reported the bill out and it was passed by both houses).
Among the issues this report identified were ―2. Should children under age 14 be
presumed incapable of consenting to sexual advances in all instances?‖ and ―3. In
cases where the offender made friends with the victim for illicit sexual purposes
should the prosecution have to establish that the victim neither consented nor
solicited the act?‖ (Conf. Rep. on Sen. Bill No. 586, Sept. 14, 1981, pp. 2-3.) The
conference report does not mention the Senate‘s proposed deletion of ―against the
will of the victim‖ from section 288(b); indeed, the wording of question No. 3
invokes the language of the probation provision proposed in Assembly Bill No.
457. (See fn. 5, ante.) At this critical stage, then, when the conference committee
sought to resolve differences between the Senate and Assembly bills, debate
focused not on the parameters of proof that a lewd act was committed by force,
8
violence, duress, menace or threats under section 288(b), but on the Assembly
provision allowing probation in child prostitution cases.
A fair reading of the 1981 amendment and its legislative history suggests
the Legislature wanted, in relation to punishment, to deemphasize considerations
of the child victim‘s consent or lack of consent in section 288 prosecutions.
Significantly, the Legislature retained in section 288(b) an element — the
commission of the lewd act ―by use of‖ duress, menace or threats — inherently
inconsistent with freely given consent. Nothing in the language or history of
Senate Bill No. 586 indicates the bill‘s drafters or the legislators who passed it
grappled specifically with how a lewd act could be committed by use of duress,
menace or threat without overcoming the victim‘s free will. The plain language of
the statute, referring to commission of the lewd act by coercive means, must take
precedence over general indications of a legislative desire to reduce or eliminate
the role played by consent in punishing section 288 offenses. (See Vasquez v.
State of California (2008) 45 Cal.4th 243, 253 [―We may not rewrite the statute to
conform to an assumed intention that does not appear in its language.‖].)
My conclusion in this regard is reinforced by the Legislature‘s subsequent
acquiescence in 20 years of unanimous judicial opinion holding that commission
of a lewd act by duress, menace or threat in section 288(b) requires coercive
conduct used to overcome the victim‘s free will. A virtually unbroken line of
authority following the 1981 amendments, from Cicero, supra, 157 Cal.App.3d
465, and Pitmon, supra, 170 Cal.App.3d 38, through our own 2004 decision in
Leal, supra, 33 Cal.4th 999, has interpreted duress, menace and threat as behavior
inconsistent with the victim‘s freely given consent. The Legislature amended
section 288(b) several times in that period without any change affecting this
interpretation, leading to an inference of ratification. (People v. Bouzas (1991) 53
Cal.3d 467, 475.)
9
The victim‘s consent, of course, does not negate any element of a charge
under section 288, subdivision (a). That statute establishes 14 years as a minimum
age, before which children are conclusively presumed incapable of consent to
lewd acts whatever their actual state of mind. In that sense the majority is correct
that California has long recognized ―consent is not a defense when the victim of a
sex crime is a child under age 14.‖ (Maj. opn., ante, at p. 19.) But our concern
here is solely with a particular aggravated form of the offense, section 288(b)(1).
That evidence of consent can under some circumstances tend to negate an element
of that specific aggravated offense is not inconsistent with the principle that
children younger than 14 years cannot legally consent to sexual acts. Consent in
no way prevents a perpetrator‘s prosecution under section 288, subdivision (a).6
On the commission of a section 288(b)(1) offense by force or violence,
I would reach a different conclusion than on commission of the crime by duress,
menace or fear. Though Cicero held force, as well, must be shown to have
overcome the will of the child victim, this aspect of Cicero has since been
criticized in People v. Quinones, supra, 202 Cal.App.3d at page 1158, and in a
separate opinion in People v. Bolander (1994) 23 Cal.App.4th 155, 162-163 (conc.
opn. of Mihara, J.). Consequently, in this respect, previous decisions established
no clear rule in which the Legislature can be deemed to have acquiesced.
6
People v. Verdegreen (1895) 106 Cal. 211, construing section 220 (assault
with the intent to commit rape) before section 288 was enacted, is not illuminating
on the present question. We did not consider there whether evidence of consent
was relevant to a charge the sexual act was committed by use of duress, which was
not an element of section 220. Because section 288 did not yet exist, moreover,
the question presented in Verdegreen was not whether evidence of consent could
negate an element of an aggravated form of that offense, but whether the
defendant was entitled to an instruction that consent was a complete defense to the
charge of assault. (Verdegreen, at pp. 212-213.)
10
Moreover, unlike duress or menace, the use of force or violence to commit
a lewd act is not necessarily inconsistent with the victim‘s consent. While
commission of a sex act by duress inherently involves coercion, use of force is a
more general concept. Force and violence7 certainly are most commonly
employed to overcome the victim‘s free will, as in forcible rape. (§ 261, subd.
(a)(2); see People v. Griffin (2004) 33 Cal.4th 1015, 1027.) But an adult can
freely agree to be subjected to force or even violence as a means, for instance, of
achieving sexual stimulation and gratification for the individual or another person.
More pertinent to section 288, involving children, physical force is sometimes
used to transport or position a child in order to facilitate a lewd act, as in Cicero
itself, where the adult perpetrator picked up the two young victims as part of what
seemed to them a game, using the opportunity of this contact to fondle them.
(Cicero, supra, 157 Cal.App.3d at p. 470.) To say a person consented to the use of
force or violence to commit a sexual act may describe a rare event, but it is not
inherently a contradiction in terms.
It follows that in the unusual section 288(b)(1) case where no theory of
commission by duress, menace or fear is presented and the prosecution‘s theory of
force or violence does not include the use of those means to overcome the victim‘s
will, the court could correctly (albeit superfluously) instruct the jury that the
victim‘s consent is not a defense to the charges. The present case, however, was
of a more common variety: the prosecution relied on both force and duress, and
even as to force the prosecution‘s theory was that defendant used force to restrain
7
―Force is a general term. When force causes physical harm, it is commonly
called ‗violence.‘ (Webster‘s Collegiate Dict. (10th ed.) p. 1319.)‖ (People v.
Bolander, supra, 23 Cal.App.4th at p. 163, fn. 3 (conc. opn. of Mihara, J.); see
also Random House Dict. of the English Language, supra, p. 2124 [defining
violence as ―swift and intense force‖ or ―rough or injurious physical force, action,
or treatment‖].)
11
the victims and overcome their wills. In the circumstances of this case,
defendant‘s alleged commission of the acts by force or duress could have been
negated by the victims‘ freely given consent. For reasons already given, then, the
instruction that consent was not a defense was potentially misleading. A
reasonable juror could have been confused as to whether any evidence that C. or
R. freely consented to the lewd acts should be considered on the issue of whether
defendant committed the acts by force or duress.
I disagree, however, with defendant that giving the instruction violated his
federal constitutional rights and is either reversible per se or subject to the
harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967)
386 U.S. 18, 24. While potentially confusing on aspects of the issue, the
instruction did not purport to define the element of commission of the offense by
use of force, violence, duress, menace or fear. That element was correctly defined
for the jury through other instructions. At most, the instruction that consent is not
a defense could have been read as inconsistent with the instructions defining the
force or duress element. The error thus did not constitute a ―[m]isdescription‖ of
an element requiring either automatic reversal or Chapman prejudice review.
(People v. Hagen (1998) 19 Cal.4th 652, 670.) Neither per se reversal nor the
Chapman standard being implicated by the circumstances here, I would apply the
prejudice standard applicable to errors of state law; reversal is appropriate only if
omission of the erroneous instruction would have been reasonably likely to
produce a more favorable result on the section 288(b)(1) charges. (People v.
Watson, supra, 46 Cal.2d at p. 836.)
In light of the evidence and argument before the jury, the error was not
prejudicial. As the People note, there was no evidence of consent before the jury.
C.‘s friendly relationship with defendant, her solicitation of conversation with him
in the school parking lot, and her recantation of her police statements
12
incriminating him, as well as R.‘s affectionate behavior to defendant in his
bedroom, gave some potential grounds for speculating they consented to being
kissed and fondled on the charged occasions, but there was no actual evidence,
direct or circumstantial, that this was so.
Nor was consent, as such, emphasized in the arguments to the jury. The
prosecutor, reviewing for the jury the instructions they would be given, briefly
referred to the instruction that consent was no defense. But in the portion of his
argument addressing the force or duress element of section 288(b)(1), the
prosecutor made no mention of evidence of consent. He argued simply that
defendant had restrained and held the victims by force, had coerced C.‘s
compliance by threatening retribution, and had exploited R.‘s fear of bodily injury,
using his physical dominance over and his friendly relationships with both young
victims, and his family connection with C., to add weight and credibility to the
duress and fear. On the defense side, counsel argued that as to C. ―there was no
force, no threats, no duress.‖ Counsel asserted the prosecution had not produced
any corroboration that force was used in the car incident, and argued C.‘s
statements that she found defendant‘s actions frightening and disgusting were
inconsistent with the fact she sought to talk with him privately outside her school.
With regard to the incident with R. in defendant‘s bedroom, defense counsel
maintained R. had testified inconsistently as to how she came to be lying on the
bed and hugging defendant, and argued her testimony that she feared a possible
future rape was inconsistent with the fact she had stayed with defendant in his
bedroom for an extended period of time.
The potentially confusing instruction on consent, therefore, did not prevent
the parties from fairly and fully presenting to the jury the factual issue of whether
defendant committed the lewd acts charged in counts 1, 2 and 4 by use of force or
duress. The jury found he had committed the acts by these means. Given the
13
correct definitional instructions on force and duress, the absence of evidence of
consent, and the limited role the concept played in the arguments of counsel, a
different result was not reasonably likely even absent the potentially confusing
consent instruction.
For the above reasons, I concur in the court‘s disposition reversing the
judgment of the Court of Appeal.
WERDEGAR, J.
WE CONCUR:
KENNARD, J.
MORENO, J.
14
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Soto
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 9/9/08 – 6th Dist.Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S167531Date Filed: January 20, 2011
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Clara
Judge: Aaron Persky
__________________________________________________________________________________
Attorneys:
Heather MacKay, under appointment by the Supreme Court, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Manuel M.
Medeiros, State Solicitor General, Gerald A. Engler, Assistant Attorney General, Donald E. de Nicola,
Deputy State Solicitor General, Stan Helfman, Mark S. Howell, Laurence K. Sullivan and Jeffrey M.
Laurence, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Heather MacKayP.O. Box 3112
Oakland, CA 94609
(510) 653-7507
Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5897
Defendant was convicted of three counts of forcible lewd acts on a child under 14 and one count of nonforcible lewd act on a child under 14. Defendant appealed saying the jury was given improper instructions regarding consent. The Supreme Court reversed the Court of Appeal's reversal holding that a victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances, and as such, it is not error to so instruct a jury.
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 01/20/2011 | 51 Cal. 4th 229, 245 P.3d 410, 119 Cal. Rptr. 3d 775 | S167531 | Review - Criminal Appeal | submitted/opinion due |
PEOPLE v. TEPETITLA-CRUZ (S182843) |
| 1 | The People (Plaintiff and Respondent) Represented by Jeffrey Michael K. Laurence Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Soto, Jaime Vargas (Defendant and Appellant) 1750 E. Arica Rd. Eloy, AZ 85231 Represented by Heather J. MacKay Attorney at Law P.O. Box 3112 Oakland, CA |
| Opinion Authors | |
| Opinion | Justice Carol A. Corrigan |
| Concur | Justice Carlos R. Moreno, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar |
| Dissent | Justice Carlos R. Moreno, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar |
| Dockets | |
| Oct 15 2008 | Petition for review filed the People, plaintiff and respondent Jeffrey Laurence, Dep. A.G. |
| Oct 17 2008 | Record requested |
| Oct 21 2008 | Received Court of Appeal record one file jacket/briefs/one accordian folder |
| Nov 5 2008 | Answer to petition for review filed counsel for aplt. (Soto) (8.25(b)) |
| Dec 10 2008 | Petition for review granted (criminal case) The court denies review of the additional issues set forth in appellant's answer brief. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Dec 17 2008 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Heather Mackay is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Dec 30 2008 | Request for extension of time filed Counsel for resp. requests extension of time to February 9, 2009, to file the opening brief on the merits. |
| Jan 8 2009 | Extension of time granted On application of respondent and good cause appearing , it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 9, 2009. |
| Feb 2 2009 | Request for extension of time filed counsel for respondent requests extension of time to March 11, 2009, to file the opening brief on the merits. |
| Feb 10 2009 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 11, 2009. |
| Mar 11 2009 | Received: counsel for resp. (People) over-sized opening brief on the merits |
| Mar 11 2009 | Application to file over-length brief filed counsel for resp. |
| Mar 11 2009 | Request for judicial notice filed (granted case) counsel for resp. |
| Mar 17 2009 | Opening brief on the merits filed counsel for resp. w/permission |
| Apr 9 2009 | Request for extension of time filed counsel for aplt. requests a 32-day extension of time to May 18, 2009, to file the answer brief on the merits. |
| Apr 20 2009 | Extension of time granted On application of appellant 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 May 18, 2009. |
| May 11 2009 | Request for extension of time filed counsel for appellant requests extension of time to June 17, 2009, to file the answer brief on the merits. |
| May 14 2009 | Extension of time granted On application of appellant 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 June 17, 2009. |
| Jun 18 2009 | Received: from counsel for aplt. (Soto) over-sized answer brief on the merits. (8.25(b)) |
| Jun 18 2009 | Application to file over-length brief filed |
| Jun 19 2009 | Answer brief on the merits filed Defendant and Appellant: Soto, Jaime VargasAttorney: Heather J. MacKay Jaime Vargas Soto, Defendant and Appellant. Heather J. MacKay, counsel *** filed w/permission *** |
| Jun 22 2009 | Request for judicial notice filed (Grant or AA case) Defendant and Appellant: Soto, Jaime VargasAttorney: Heather J. MacKay |
| Jul 2 2009 | Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Jeffrey Michael K. Laurence |
| Jul 9 2009 | Compensation awarded counsel Atty MacKay |
| Sep 30 2010 | Request for judicial notice granted Respondent's request for judicial notice filed on March 11, 2009 is granted. Appellant's request for judicial notice filed on June 22, 2009 is granted. |
| Oct 5 2010 | Case ordered on calendar to be argued on Wednesday, November 3, 2010, at 9:00 a.m., in San Francisco |
| Oct 21 2010 | Supplemental brief filed Defendant and Appellant: Soto, Jaime VargasAttorney: Heather J. MacKay *citing additional authorities. |
| Nov 3 2010 | Cause argued and submitted |
| Jan 3 2011 | Justice pro tempore assigned George, C.J. (retired), appointed as justice pro tempore to this case. |
| Jan 19 2011 | Notice of forthcoming opinion posted To be filed Thursday, January 20, 2011 @ 10 a.m. |
| Briefs | |
| Mar 17 2009 | Opening brief on the merits filed |
| Jun 19 2009 | Answer brief on the merits filed Defendant and Appellant: Soto, Jaime VargasAttorney: Heather J. MacKay |
| Jul 2 2009 | Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Jeffrey Michael K. Laurence |
| Brief Downloads | |
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| May 27, 2011 Annotated by Susan Champion | FACTS While living with C. and her mother, defendant committed a number of lewd offenses against C., including “French kissing,” fondling, pinning her down and rubbing himself against her, and holding her tightly and refusing to release her despite her protestations. Defendant threatened to tell the victim’s mother that she had a boyfriend if she did not comply with his advances. The first charged incident occurred when defendant was driving the victim to school. He stopped the car, reclined the victim’s seat and climbed on top of her. He kissed her, rubbed his clothed penis against her crotch and fondled her buttocks. The victim tried to leave but the defendant locked the door. The second charged incident occurred outside of the victim’s middle school. The victim wanted to talk to the defendant because she was angry that he was dating her best friend, a 13-year-old girl. Defendant grabbed the victim tightly, rubbed his erect penis against her thigh, and “French-kissed” her. The school principal saw the two of them walking together, and the victim told the principal that the defendant had kissed her. The principal reported this, and five days later a detective interviewed C. who identified the defendant and described the lewd acts. C’s statements to the police led them to question her 11-year-old next-door neighbor, R. In this interview, R identified the defendant and described a series of lewd acts perpetrated against her by the defendant. The third charged incident occurred when, one day, R encountered the defendant in the laundry room of their apartment complex. After a brief conversation, he grabbed her, began kissing her, and tried to fondle her chest. He then grabbed her hand and rubbed it against his erect penis and said he wanted to have sex with her. R tried to push him away. The fourth charged incident occurred when defendant called R and told her that C wanted her to come over. When she arrived, however, the defendant was alone in the house. He started playing a pornographic movie and then pulled her onto the bed. He grabbed her buttocks and felt between her legs, then tried to pull her pants down while R tried to push his hand away. Defendant removed his pants, but not his underwear, and took R’s hand in a firm, squeezing grip, and placed it on his erect penis. He told her he wanted to have sex with her. R pulled her hand away and repeated that she had to leave. She did not want to engage in these activities with the defendant but she was afraid that he would get upset and do something to her. After she left the apartment, R avoided defendant because she was afraid of him. In her closing argument, the prosecutor told the jury it could convict the defendant of Cal. Pen. Code § 288(b)(1) counts based on his use of force or duress. She also argued that consent was not a defense. During the argument, defendant did not assert that C. or R. consented to any sexual contact. The defense maintained that there was insufficient evidence of force or duress to convict under § 288(b)(1). The jury convicted on all counts, and defendant was sentenced to 12 years in prison. In an unpublished opinion, the Court of Appeals reversed and remanded for retrial on the charges involving force or duress. It held that consent is a defense to the charge of lewd contact by duress and that it was error to instruct the jury otherwise. PROCEDURAL HISTORY ISSUES HOLDING ANALYSIS The defendant argued that 288(b)(1) required that a lewd or lascivious act be committed against the child’s will because a sexual act committed by use of force or duress necessarily implies that the perpetrator applied these pressures in order to overcome the victim’s will. Evidence that a child “freely consented” to a sexual encounter would tend to rebut a finding that the perpetrator actually used force or duress to accomplish the act. Under this reasoning, therefore, it was error to instruct a jury that the victim’s consent was not a defense to charges under 288(b)(1). The California Supreme Court rejected this analysis, finding that there was no language in § 288 requiring that a lewd or lascivious act be committed against the child’s will, therefore, lack of consent by a child victim was not an element of the lewd act offense defined in § 288. Furthermore, willingness by a child to engage in lewd acts was not a defense to either § 288(a) or § 288(b)(1). To support this conclusion, the Court engaged in a thorough analysis of the legislative history and intent of § 288. In particular, the Court discussed the legislature’s introduction of Senate Bill 586 in 1981, which proposed sweeping changes to the laws defining and punishing sex crimes against minors. According to the Court, this bill explicitly intended to replace § 288 with provisions that did not require that the sexual conduct occur “against the will of the victim.” Also at this time, an Assembly bill was under consideration which provided less severe punishment for child molestation committed within the family, requiring imprisonment only if the lewd act was committed by force or threat and was shown to be against the will of the victim. At the time of these amendments, the Joint Committee for Revision of the Penal Code circulated a report to all members of the Senate Judiciary Committee, summarizing the major differences between the Assembly bill and the Senate bill. The report explained that the Assembly bill was “primarily a penalty bill” and the Senate bill proposed major philosophical change in the law based on the premises that children do not generally lie about sexual abuse and that the current criminal justice system did nothing to meet the special needs of a child victim of sexual abuse. The report emphasized that the major difference between the two bills concerned their treatment of consent. On September 15, 1981, Senate Bill No. 586 was amended in conference and passed by the Legislature. The final amendments to § 288(b) removed “intimidation” and “coercion” from the aggravated lewd act offense and removed the requirement that an aggravated lewd act be committed “against the will of the victim.” The Legislative Counsel's Digest explained that the bill would increase the sentencing range for lewd act crimes “and would delete the requirement that the act, when accompanied by force, violence, duress, menace, or threat of great bodily harm, be against the will of the victim.” The Court reasoned that when the Legislature amended § 288(b) in 1981 to delete the previous requirement that lewd acts committed by use of force, violence, duress, menace, or fear be “against the will of the victim,” it effectively removed the concept of consent from child molestation cases. Furthermore, the legal definition of duress is objective in nature and not dependent upon the response by a particular victim. The Court then addressed the fact, despite the changes to the law, many California courts had continued to recognize consent as a defense to an aggravated lewd acts upon a child charge because they reasoned that “consent” was inconsistent with the “use of duress.” The Court specifically addressed the reasoning used by the California Court of Appeals in Cicero, supra. Here, the Court of Appeals held that if the child suffered no physical harm from a forcible lewd act, the prosecution was required to prove (1) that the defendant used physical force substantially different from or substantially in excess of that required for the lewd act and (2) that the lewd act was accomplished against the will of the victim. The California Supreme Court found that the Cicero court had based its conclusion on a flawed analogy between lewd acts upon a child and rape. Furthermore, since the issue of duress was not presented in Cicero, the majority’s discussion of it was dictum. The Court then disapproved all statements in People v. Cicero that suggested that consent of the victim was a defense to a charge of lewd acts accomplished by use of force, violence, duress, menace, or fear and disapproved of similar statements in number of other cases. DISSENT The dissent reasoned that to tell jurors that consent is no defense to such a charge could confuse them as to whether evidence of freely given consent should be considered on the issue of whether the act was committed by use of duress, menace or fear. The dissent also suggested that the majority’s analysis of the legislative history of the 1981 amendments to § 288(b) was flawed and that a more accurate reading of the legislative history was that the legislative desire to reduce the role played by consent in § 288 cases was related to punishment and not proof of the offense’s elements. The dissent referenced the report by the Joint Legislative Committee for Revision of the Penal Code relied upon by the majority and found that it reflected a general division between the Assembly and the Senate over whether and how consent should affect punishment for lewd acts with children, but shed no light on how Senate Bill No. 586's deletion of “against the will of the victim” from section 288(b) would affect the prosecution's burden of proving a lewd act had been committed by duress, violence or threat of bodily harm. The dissent next reviewed the Cicero line of cases disapproved by the majority and noted that “[t]hese decisions, forming an unbroken line from 1981 until the majority opinion in this case, clearly establish that ‘duress’ and its associated terms ‘menace’ and ‘fear of ... bodily injury’ [were] used in § 288(b)(1) in their ordinary meanings, and that to commit a lewd act ‘by use of’ one of these means, as prohibited in section 288(b)(1), [was] to coerce the victim, by direct or implied threat or by exploiting the victim's fear, into performing or acquiescing in the lewd act against his or her will.” People v. Soto (2011) 51 Cal.4th, 229, 252. The dissent distinguished the meanings of the terms “force or violence” from “duress, menace or fear” under §288(b)(1). It noted that, unlike duress or menace, the use of force or violence to commit a lewd act was not necessarily inconsistent with a victim’s consent. Thus, in a § 288(b)(1) case where duress, menace or fear are not presented, and the prosecution's theory of force or violence does not include the use of those means to overcome the victim's will, the court could correctly instruct the jury that the victim's consent is not a defense to the charges. However, in |
