P. v. Diaz CA3
Defendant Frank Diaz had his stepdaughter A. masturbate him on multiple occasions, beginning when A. was eight or nine years old and continuing until she reported it when she was 13 years old. As a result, defendant was convicted of two counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)) (counts one and two), and four counts of lewd and lascivious acts on a child under the age of 14 by either duress (counts three, four, and five) or force (count six) (§ 288, subd. (b)(1)) and sentenced to a 40-year state prison term.
Defendant contends on appeal: (1) the convictions for lewd acts by duress in counts three through five must be reversed for insufficient evidence because the means used to get A. to masturbate defendant—withholding or ending A.’s punishment—is not duress; (2) the flight instruction was not supported by the evidence and the failure to object to the instruction was ineffective assistance; (3) we should review for Brady material A.’s Chi
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