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
__________________________________ )


STORY CONTINUE FROM PART I….


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 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.)^[1]
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 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.^[2]
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. *

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)),^[3] 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 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.)^[4]
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),^[5] on which 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 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.)^[6]
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 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 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 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 act^[7] as requiring the victim to “establish that she did not consent to the act of sexual 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, 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.)
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).^[8]
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.
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 violence^[9] 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 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 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 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.

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. S167531
Date Filed: January 20, 2011
__________________________________________________________________________________

Court: Superior
County: 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 MacKay
P.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




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