15 Chap. L. Rev. 663 (No PDF)
Chapman Law Review
DIGEST: PEOPLE V. SOTO
Kyle D. Mott
Copyright (c) 2012 Chapman Law Review; Kyle D. Mott
Opinion by Corrigan, J., with Baxter, J., Chin, J., and George, J., concurring. Concurring and dissenting opinion by Werdegar, J., with Kennard, J., and Moreno, J., concurring.
The first charged incident involving the defendant and his twelve-year-old cousin, C., occurred in April 2005, when the defendant pulled his car over while driving C. to school and proceeded to kiss and grope her. C. told the defendant that she wanted him to stop and she tried to leave, but the defendant locked the door.
The second charged incident involving the defendant and C. occurred in May 2005 near C.’s middle school. After driving around a corner at C.’s request so they could talk, the defendant got out of his car and grabbed C. around the waist, pulled her toward him, and then kissed and fondled her. C. again tried to pull away but the defendant would not release her. The principal saw C. return to school and brought her into the school office. At that point, C. disclosed that the defendant had kissed her and the principal alerted the authorities.
The subsequent investigation led police to question R., C.’s eleven-year-old friend. It was revealed that R. had been previously approached by the defendant in the laundry room of their apartment complex. The defendant grabbed R. and began to kiss her and fondle her, despite R.’s attempts to push him away. Within the next year, R. was lured to C.’s apartment by the defendant. The defendant kissed and fondled R., ignoring her protests and attempts to leave.
The two incidents with C. and the incident with R. resulted in the defendant being charged with three counts of lewd acts on a child under fourteen by “use of force, violence, duress, menace, or fear” pursuant to section 288(b)(1). Also, based on the laundry room incident with R., the defendant was charged under section 288(a) with committing a nonforcible lewd act against a minor under fourteen.
The trial court instructed the jury using CALCRIM No. 1111, which requires the prosecution to “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 unlawful act. The instruction defined the term “force” as force used that is “substantially different from or substantially greater than the force needed to accomplish the act itself.” Duress was defined as “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].” Furthermore, the instruction stated “[i]t is not a defense that the child may have consented to the act.” The defendant was convicted on all counts and sentenced to twelve years in prison.
The court of appeal “reversed and remanded for retrial on the charges involving force or duress.” The court of appeal majority “held that consent is a defense to the charge of lewd conduct committed by duress,” but declined to decide “whether consent is a defense to a charge of lewd conduct committed by force.” The Supreme Court of California granted review on the issue of whether consent is a defense to the crime of aggravated lewd acts committed against a child under age fourteen.
The court first differentiated the two subparts of section 288, noting that “[s]ection 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,” while 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.”’
The court then embarked on an extensive analysis of the legislative history of section 288, ultimately concluding that the Legislature intended to do away with the requirement of proof that aggravated lewd acts were committed “against the will of the victim.” The court acknowledged that the present confusion regarding the issue of consent as a defense to a charge of aggravated lewd acts was caused by the divided decision in People v. Cicero. The court opined that the Cicero majority interpreted “section 288(b) as meaning precisely the opposite of what the Legislature intended.” The court noted that the Cicero court improperly looked at principles found in the law of rape when considering section 288(b). The court explained that “rape is an act of intercourse ‘accomplished against a person’s will,”’ but that the “Legislature had specifically deleted from section 288(b) a requirement that the lewd act be committed against the will of the victim.” Furthermore, the court stated that “[u]nlike rape, the wrong punished by the lewd acts statute is not the violation of a child’s sexual autonomy, but of its sexual innocence.”
The court then noted that the Cicero court considered the meaning of the term “duress” even though it was not an issue presented to the court. The court held that the Cicero court erred by assuming that the concepts of duress, menace, or threat could not be analyzed separately from their ultimate effect on a victim. The court explained that a perpetrator may use such tactics against a victim even if they do not influence the victim’s state of mind, and, when the victim is a child under fourteen, it is this threatening behavior alone that aggravates the crime.
The court then rejected the holding of the Cicero court that if a child suffered no physical harm from a forcible lewd act, then the prosecution must prove “that the lewd act was accomplished against the will of the victim.” The court held that when the Legislature eliminated the requirement that the “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 . . . [and that it] cannot reinterpret section 288(b)(1) to reinsert what the Legislature intentionally removed.”
The defendant assumed that lack of consent must be proven when duress is the aggravating factor because the term implies that the will of the victim was overcome. The court rejected this interpretation, holding that because duress is measured by an objective standard, a jury could find that the defendant used intimidation to commit a lewd act without determining the victim’s subjective response to the exhibited behavior. The court noted that the placement of complete focus on the defendant’s conduct is consistent with the statutory language and legislative intent.
The majority then rejected the concurring and dissenting opinions’ assertion that California courts have interpreted duress, menace, and threat as behavior that is inconsistent with the concept of consent. The majority rebuked this argument by noting that no decision has ever held that consent is a defense when duress was employed by the defendant, rejecting the Cicero court’s discussion on the matter as mere dictum. The court stated that California law has long held that consent is not a defense when the victim of a sex crime is under the age of fourteen, even if the child attempted to give consent. For example, the court recalled its holding in a previous case concerning a similar issue where it stated that “[h]ere 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.”
The court reversed the decision of the court of appeal. Per clear legislative intent, a victim’s consent is not a defense to the crime of aggravated lewd conduct on a child under age fourteen. Therefore, defendant’s convictions under section 288(b)(1) were reinstated.
Concurrence and Dissent
Justice Werdegar, joined by Justices Kennard and Moreno, concurred in the result but dissented from most of the majority’s conclusion and analysis. The dissent asserted that consent is inconsistent with the concept of duress, so it was error to instruct the jury that consent was not a defense. However, the dissent found the error harmless because a jury would likely have found force or duress even if the instruction was not given.
The dissent reasoned that amendments made to section 288(b) did not focus on whether consent could be a defense to an act allegedly committed by use of duress, menace, or fear, and therefore, the majority’s reliance on the legislative history is misplaced. The dissent agreed with the reasoning of the Cicero court that acts committed by duress, menace, or threat ordinarily not only imply that the act was committed against the victim’s will, but that this interpretation is required if the terms “duress” and “threats” are going to have a useful meaning. The dissent then argued that consent, under some circumstances, negates an element of the aggravated offense and therefore, the prosecution should proceed under section 288(a). The dissent concluded its argument by noting that a jury instruction that specifies consent is not a defense to duress, menace, or fear, could be misleading to a jury, especially under the facts of the instant case.
The court’s holding removes consent as a possible defense when a defendant is prosecuted under section 288(b)(1) and, as such, the prosecution is not required to prove that a lewd act committed by “use of force, violence, duress, menace, or fear” was also against the victim’s will.