PEOPLE v. SOTO













Filed 1/20/11



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 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. 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 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 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 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 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 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 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 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 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 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 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]
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 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]
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.).)
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 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 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 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.)


TO BE CONTINUED AS PART II….



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