APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed with directions. (Super.Ct.No. RIF139177).
The opinion of the court was delivered by: Ramirez, P.J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant, Jose Tepetitla-Cruz, of seven counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a),*fn1 three counts of engaging in oral copulation with a person under the age of 14 who is more than 10 years younger than defendant (§ 288a, subd. (c)(1)) and one count of committing a forcible lewd and lascivious act on a minor (§ 288, subd. (b)(1).*fn2 The jury found true an allegation that defendant had committed lewd and lascivious acts against more than one victim (§ 667.61, subd. (e)(5)). Defendant was sentenced to prison for 15 years to life, plus 26 years and appeals, claiming the jury was misinstructed and insufficient evidence supports his conviction of committing forcible lewd and lascivious acts. We reject his contentions and affirm, while directing the trial court to correct errors in the Information, the minutes of the sentencing hearing and the abstracts of judgment.
While there were two victims involved, the issues raised by defendant relate only to one of them, which we identify as the second victim.*fn3 The facts related to the first victim are irrelevant to this appeal and the facts related to the second victim will be described below, as they are pertinent to the issues discussed.
1. Jury Instruction on Forcible Lewd and Lascivious Act
The jury was instructed as to the charged commission of a forcible lewd act on a minor (section 288(b)), in pertinent part, "To prove that the defendant is guilty of this crime, the People must prove that, [¶] . . . [¶] . . . [t]he defendant willfully caused a child to touch . . . the defendant's body . . . . [¶] In committing the act, the defendant used force, violence, duress, menace or fear of immediate and unlawful bodily injury to the child or someone else. . . . [¶] . . . [¶] The force used must be substantially different from or substantially greater than the force needed to accomplish the act itself. ["Duress," "menace," and "fear of immediate and unlawful bodily harm to the child or someone else" were defined.] [¶] . . . [¶] It is not a defense that the child may have consented to the act."
Defendant here claims that it was error to instruct the jury that consent of the victim is not a defense to a forcible lewd and lascivious act. As the People correctly note, defendant requested that the above- quoted instruction, including the italicized portion, be given and his trial counsel stated that there was no evidence to support a consent "defense" to this charge.*fn4 The issue of forfeiture aside, we disagree with his assertion that the instruction is erroneous.
As defendant correctly notes, the Sixth District has, after taking conflicting positions on the forcible element of section 288(b),*fn5 managed to get before the California Supreme Court the issue whether consent is a defense when the People rely on duress, not force, as a means of accomplishing a forcible lewd and lascivious act.*fn6 However, here, the People did not argue that defendant had committed the forcible lewd and lascivious act by the use of duress and there was no evidence to support such a theory.
Relying on the opinion authored by the Third District which began the conflicting decisions which culminated in the granting of review by the California Supreme Court in Soto, People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), defendant asserts that consent is a defense to a forcible lewd and lascivious act committed by means of force. However, in our opinion, the analysis in Cicero is fatally flawed.
Cicero begins by analogizing the forcible aspect of section 288(b) to the force element of rape of an adult. (Cicero, supra, 157 Cal.App.3d at p. 475.)*fn7 It points out that rape "primarily guards the integrity of a woman's will and the privacy of her sexuality from an act of intercourse undertaken without her consent." (Ibid.) Because of this, the force used to accomplish the rape of an adult need not result in injury to the victim and "plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim's will." (Ibid.) Finding that the "will and sexuality" of minors deserves no less protection than that of adult rape victims, the Cicero court arrived at the following definition of "forcible" for a conviction under section 288(b): "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, supra, 157 Cal. App. 3d. at p. 476.)
Having so concluded, the Cicero court was then confronted with the uncomfortable fact that section 288(b) was amended in 1981 to delete from its provisions the requirement that the act be "against the will of the victim."*fn8 Cicero conceded that the legislative history of this amendment offered no clue for its raison d'ître. (Cicero, supra, 157 Cal.App.3d at p. 477.) So, it offered reasons why interpreting the amendment to mean that the Legislature wished to make irrelevant whether the act was against the victim's will or with or without the victim's consent was illogical. (Id. at pp. 477-478.) In so doing, it ignored the "force" and "violence" portions of section 288(b) and focused on the alternate means of violating the subdivision, i.e., by duress, by menace or by threat of great bodily harm. (Ibid.) As to these, Cicero pointed out that their ordinary meaning is that the will of the victim has been overborne. (Ibid.) The Cicero court then concluded, "We therefore infer that the Legislature did not intend to eliminate proof an act was undertaken against the victim's will in all circumstances under subdivision (b)." (Id. at p. 478, italics added.) Rather, the Cicero court posited that the purpose of the amendment "was to make clear that the prosecution need not prove resistance by the minor in order to prove an act was committed `by use of force' and against the will of the victim . . . ."*fn9 (Id. at p. 480.)
Cicero rejected the notion that the "force" method of the forcible requirement of section 288(b) was merely "physical force substantially different from or substantially greater than that necessary to commit the lewd act." (Cicero, supra, 157 Cal.App.3d at p. 479.) Its reason was that such a notion "would . . . impose the potential formidable penalties of subdivision (b) on those who are far less culpable" [than] "the stranger who drags the teenage girl into the bushes." (Ibid.) The example Cicero offers of one far less culpable is "the 16-year-old boy who gives his 13-year-old girlfriend a piggy-back ride into her bedroom, there to fondle ...