Super. Ct. No. EE504317; Ct.App. 6 H030475 Santa Clara County
The opinion of the court was delivered by: Corrigan, J.
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).)*fn1 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.*fn2 Thus, it is not error to so instruct a jury. Because the lower court here reached a contrary conclusion, we reverse the judgment.
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."*fn3 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.
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).*fn4
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.)*fn5
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.)*fn6
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, ...