Opinion
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).) 1 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 long-standing 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. 2 Thus, it is not error to so instruct a jury. Because the lower court here reached a contrary conclusion, we reverse the judgment.
BACKGROUND
Defendant Jaime Vargas Soto committed aggravated lewd acts against two girls, his 12-year-old cousin C. and C.’s 11-year-old Mend R. C. gave two *234 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 rоck, 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 arid spoke.with him. When C. noticed that the school’s secretary was watching them, she motioned for defendant to drive around the comer 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, *235 defendant grabbed her again. Holding her tightly, so that she could not move аway, 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.
*236 Based on the two incidents with C. and the incident with R. in the bedroom, defendant was charged with three counts of lewd aсts 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 instmcted 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. [j[] 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.” 3 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 unanimоusly 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.
*237 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.
DISCUSSION
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). 4
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 *238 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)
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.) 5
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 Sexual 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. (See §§ 293, subd. (b), 294, subd. (a), as proposed by Sen. Bill No. 586, § 13, as introduced Mar. 16, 1981.) Unlike the *239 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.) 6
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 *240 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) “[kjill 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, p. 2; see also Conf., Analysis of Sen. Bill No. 586, Sept. 13, 1981, p. 2.)
On September 15, 1981, Senate Bill No. 586 was amended in conference and passed by the Legislature. The final amendments to section 288(b) removed “intimidation” and “coercion” from the aggravated lewd act offense and removed the requirement that an aggravated lewd act be committed “against the will of the victim.” The Legislative Counsel’s Digest explained that the bill would increase the sentencing range for lewd act crimes “and would delete the requirement that the act, when accompanied by force, violence, duress, menace, or threat of great bodily harm, be against the will of the victim.” (Legis. Counsel’s Dig., Sen. Bill No. 586, 4 Stats. 1981, Summаry Dig., pp. 340-341, italics added.)
The Legislature’s intent on the issue of victim consent could hardly be more clear. Committee reports demonstrate that the Legislature specifically considered whether the law should require lack of consent by children under age 14. (See
Southern Cal. Gas Co. v. Public Utilities Com.
(1979) 24 Cal.3d
*241
653, 659 [
II. The People v. Cicero Decision
After these amendments, efforts by the appellate courts to interpret section 288(b) produced mixed results. Despite the removal of the phrase “against the will of the victim” from section 288(b), some courts continued to recognize consent as a defense to an aggravated lewd acts charge because they reasoned consent was inconsistent with the use of force and duress. Much confusion concerning the role of consent stemmed from the divided decision of the Third District Court of Appeal in
People v. Cicero
(1984)
Cicero was charged with committing lewd acts by force on two girls, ages 11 and 12.
(Cicero, supra,
157 Cal.App.3d at pp. 470-471.) The girls testified that 24-year-old Cicero, a twice-convicted felon, had approached and engaged them in friendly conversation as they played by a waterway.
(Id.
at pp. 469-470.) When the girls pretended to push each other in the water, Cicero proposed to throw them both in.
(Id.
at p. 470.) He lifted both girls by the waist and began to carry them. As he did so, he closed a hand around each child’s crotch. The girls laughed, believing the touching was accidental. After he carried them 15 to 20 feet, Cicero sat but continued to hold each girl by the waist. When one child said she was afraid and had to go home, Cicero said they could leave if one of them kissed him.
(Ibid)
The trial court found that one of the girls “ ‘gave him a little brush kiss on the cheek[;] he requested a real kiss[;] and he attempted to kiss her again.’ ”
(Id.
at p. 470, fn. 3.) The girls ran away and reported the incident.
(Id.
at p. 471.) After a court trial, Cicero was convicted of two counts of lewd conduct by force. (§ 288(b).) The trial • court found no evidencе he had used violence or threatened great bodily harm. On appeal, Cicero did not dispute he had committed lewd acts but claimed “no
force
was used as a matter of law.”
(Cicero, supra,
*242
The Court of Appeal therefore had to determine what level of force is necessary to support an aggravated lewd act conviction. To answer that question, the majority reasoned that the harsher penal consequences of a conviction under section 288(b), as compared to section 288(a), require that the force used for a subdivision (b) conviction be “substantially different from or substantially greater than that necessary to accomplish the lewd act itself.”
(Cicero, supra,
In casting about to answer this question, the majority turned “to the law of rape for guidance.”
(Cicero, supra,
In discussing the law of rape, the majority observed that the fundamental wrong punished as rape is not the infliction of physical injury but “the violation of a woman’s will and sexuality” from “intercourse undertaken without her consent.”
(Cicero, supra,
Cicero
based its conclusion that consent is a defense to section 288(b) on a flawed analogy between lewd acts on a child and rape. We have cautioned that significant differences between these crimes argue strongly against importing definitions from one context to the other.
(People
v.
Griffin, supra,
33 Cal.4th at pp. 1026-1027.) Unlike rape, the wrong punished by the lewd acts statute is not the violation of a child’s sexual autonomy, but of its sexual
innocence.
“[S]ection 288 was enacted to provide children with ‘special protection’ from sexual exploitation.
(People
v.
Olsen
(1984)
Next, having been asked only to define “force,” the
Cicero
majority paused to consider the meaning of “duress,” a question that was not presented. It remarked 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.”
(Cicero, supra,
After its diversion into duress, the Cicero majority arrived at the rather startling inference that the Legislature did not intend to ehminate lack of consent from most section 288(b) cases. (Cicero, supra, 157 Cal.App.3d at pp. 478, 482.) It held that consent was not a defense if the child suffered demonstrable physical harm from a forcible lewd act. (Id. at p. 479.) However, if the child suffered no physical harm, the majority held that the prosecution was required to prove “(1) that the defendant used physical force substantially different from or substantially in excess of that required for the *244 lewd act and (2) that the lewd act was accomplished against the will of the victim.” (Cicero, at p. 484.) 8
Quite obviously, this interpretation of section 288(b) directly contradicted the 1981 legislative amendments. As Justice Regan pointed out in dissent, the majority “wr[ote] back into the subdivision precisely what the Legislature wrote out of the subdivision, so that the majority may in turn rest the conviction of the question of ‘knowing consent.’ ”
(Cicero, supra,
In dissent, Justice Regan criticized the majority’s analysis. Regarding the 1981 amendments to section 288(b), he explained: “[T]he Legislature simply recognized the lewd act in subdivision (a) need not be against the [victim’s] will, and thus, it need not be in the use of force under subdivision (b). In fact, under the plain language of the statute, the act in subdivision (b) can be committed with knowing consent and still be a violation of the subdivision, if force is used. Force is limited to something the perpetrator applies; it is independent of the actions or thoughts of the under-14-year-old victim.” (Cicero, supra, 157 Cal.App.3d at pp. 487-488 (dis. opn. of Regan, Acting P. J.).) Justice Regan concluded that “knowing consent” by a child under 14 “is not an affirmative defense to subdivision (a), and cannot be one to subdivision (b).” (Cicero, at p. 488 (dis. opn. of Regan, Acting P. J.).)
III. Consent Is Not a Defense to Aggravated Lewd Conduct
Cicero’s discussion of victim consent has generated disagreement. (See, e.g.,
People v. Cardenas
(1994)
*245
Cal.Rptr. 435].) For example, in his concurring opinion in
People
v.
Bolander
(1994)
In this case, the Court of Appeal majority followed Cicero’s flawed reasoning. We conclude Justice Mihara had the better argument in his dissent below. With respect to force, Justice Mihara explained: “While the fact that the victim actually consents to a lewd act might render the use of force unnecessary, the victim’s actual consent does not eliminate the fact that the defendant actually uses violence, compulsion or constraint in the commission of the lewd act, nor does the victim’s consent diminish the defendant’s culpability or immunize the defendant from suffering the penal consequences that arise from a forcible lewd act.” Likewise, with respect to implied coercion or duress, a “child victim’s actual consent does not eliminate the fact that the perpetrator utilizes duress in the commission of the lewd act, and does not reduce the perpetrator’s culpability or eliminate the penal consequences that attach due to the perpetrator’s conduct.”
When the Legislature amended section 288(b) in 1981 to delete the previous requirement that 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. “The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision.”
(Rich v. State Board of Optometry
(1965)
By intentionally removing the phrase “against the will of the victim,” the Legislature kept the focus on the conduct of the assailant. It recognized that there is an inherent imbalance of power in an encounter between a child
*246
and an adult bent on sexual conduct. It acted to protect young children, who may make ill-advised “choices” when under the coercive influence of an overreaching adult. Accordingly, it set 14 as the age at which a child may legally give consent to sexual conduct. This was a legitimate exercise of the Legislature’s authority. “[T]he Legislature has determined that children are uniquely susceptible to ‘outrage’ and exploitation” and has accordingly broadened the range of sexual acts with children deemed criminal.
(People v. Scott
(1994)
Despite this clear legislative intent, defendant repeats
Cicero’s
error of assuming lack of consent must be proven when the prosecution relies on duress because this term necessarily implies that the victim’s will was overcome. However, the legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim. In
People v. Leal, supra,
Taking a different view of history, the concurring and dissenting opinion asserts that “[a] virtually unbroken line of authority following the 1981
*247
amendments, from
Cicero, supra,
Because no case following the 1981 amendments to section 288(b) has specifically held that cоnsent is a defense to aggravated lewd acts on a child under 14, we also reject the related argument that the Legislature’s failure to alter section 288(b)(1) after
Cicero, supra,
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)
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,
DISPOSITION
The judgment of the Court of Appeal reversing defendant’s convictions on counts 1, 2 and 4 is reversed.
Baxter, J., Chin, J., and George, J., * concurred.
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)),
1
the jury was instructеd: “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)
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.) 2
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 ¡íby 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 *250 amendments to section 288(b), 3 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)
The decision in
People v. Cicero
(1984)
The year after
Cicero
was decided, the court in
People v. Pitmon
(1985)
Cicero
was further followed on this issue in
People v. Quinones
(1988)
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,
*252 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,
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 whеther 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,
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 seсtion 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. 238-241.) 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 5 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.
*254 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)
My conclusion in this regard is reinforced by the Legislature’s subsequent acquiesсence 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,
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. 247.) 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 sеxual acts. Consent in no way prevents a perpetrator’s prosecution under section 288, subdivision (a). 6
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,
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
7
certainly are most commonly employed to overcome the victim’s free will, as in forcible rape. (§ 261,
*256
subd. (a)(2); see
People v. Griffin
(2004)
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)
In light of the evidence and argument before the jury, the error was not prejudicial. As the People note, there was no evidence of consеnt 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.
*258 For the above reasons, I concur in the court’s disposition reversing the judgment of the Court of Appeal.
Kennard, J., and Moreno, J., concurred.
Notes
All statutory references are to the Penal Code. Shortly before oral argument in this case, the Legislature amended section 288. (Stats. 2010, ch. 219, §7; see fn. 3, post.) Unless otherwise specified, all citations to section 288 refer to the former version of this statute. Section 288, subdivisions (a), (b) and (b)(1) are referred to as sectiоns 288(a), 288(b), and 288(b)(1).
The concurring and dissenting opinion agrees that “consent is not an affirmative defense to, charges under section 288(b)(1) . . . .” (Cone. & dis. opn., post, at p. 252.) Accordingly, our disagreement appears to center on the narrow question whether it is confusing or misleading to instruct the jury that a child’s consent is not a defense to the aggravated lewd act crime.
A bench note to CALCRIM No. 1111 recognizes the existing disagreement in published opinions as to whether consent of the minor is an affirmative defense to a lewd act accomplished by force. Accordingly, the note recommends that this portion of the instruction, stating that consent is not a defense, “may be given on request if there is evidence of consent and the court concludes that consent is not a defense to a charge under section 288(b)(1). If the court concludes that consent is a defense and there is sufficient evidence, the court has a sua sponte duty to instruct on the defense.” (Judicial Council of Cal., Crim. Jury Instas. (2011) Bench Notes to CALCRIM No. 1111, p. 932, boldface omitted.)
On September 9, 2010, the Governor signed into law the Chelsea King Child Predator Prevention Act of 2010 (Chelsea’s Law). (Stats. 2010, ch. 219, § 1 et seq.) Chelsea’s Law significantly increases the penalties for sex crimes against minors by imposing longer determinate sentences, indeterminate sentences for some crimes, and longer parole restrictions. (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) as amended June 2, 2010, p. 3.) As amended, section 288(b)(1) now prescribes a sentencing range of five, eight, or 10 years for the crime of lewd or lascivious acts against a child under 14 committed by use of force, violence, duress, menace, or fear. The punishment for a violation of section 288(a) remains unchanged (three, six, or eight years). However, Chelsea’s Law adds significant penal consequences for lewd act offenses that involve the infliction of bodily harm, defined as “any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.” (§ 288, subd. (i)(3), as added by Stats. 2010, ch. 219, § 7.) If the defendant personally inflicted bodily harm on the victim in committing a lewd or lascivious act on a child under age 14, newly enacted section 288, subdivision (i) requires that the defendant be sentenced to life in prison with the possibility of parole. Chelsea’s Law also extends the minimum parole period for persons convicted of violating section 288(b)(1) to 20 years. (§ 3000, subd. (b)(4), as amended by Stats. 2010, ch. 219, § 19.)
Section 288(b) was renumbered as section 288(b)(1) by the 1995 amendments to section 288. (Stats. 1995, ch. 890, § 1, p. 6777.)
We have taken judicial notice of legislative history materials submitted by both sides. (Evid. Code, § 452, subd. (c).)
In discussing the law of rape, the majority relied heavily on the treatise Perkins & Boyce, Criminal Law (3d ed. 1982). (See
Cicero, supra,
We had occasion to consider
Cicero’s
definition of “force” in
People v. Griffin, supra,
The definition of “duress” in CALCRIM No. till is based on
People v. Leal, supra,
The concurring and dissenting opinion complains this conclusion “distorts the holdings of Pitmon and Leal.” (Conc. & dis. opn., post, at p. 252.) To the contrary, the analysis flows directly from the explicit definition of “duress” stated in those cases. That the definition was formulated in the context of a different legal issue does not make it irrelevant to the question we explore here.
The Legislature later raised the age of consent to 18 (Stats. 1913, ch. 122, § 1, p. 212) and removed the crime of unlawful sexual intercourse with a minor from the rape statute (§ 261.5, added by Stats. 1970, ch. 1301, §§ 1, 2, pp. 2405-2406). These changes led us to recognize a defense to statutory rape when the accused had a good faith, reasonable belief that the victim was 18 or older.
(People
v.
Hernandez
(1964)
Specifically, we disapprove of statements in
People v. Cicero, supra,
Retired Chief Justice of California, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All statutory references are to the Penal Code.
As the majority notes (maj. opn., ante, at p. 237, fn. 4), the sentence for violation of section 288(b)(1) has since been increased to five, eight or 10 years in prison. This change makes even clearer that the Legislature regards section 288(b)(1) offenses as significantly aggravated over offenses under section 288, subdivision (a).
As added to section 288 by amendment in 1979, subdivision (b) prohibited the commission of a lewd act “by use of force, violence, duress, menace, or threat of great bodily harm, and against the will of the victim . . . .” (Stats. 1979, ch. 944, § 6.5, p. 3254.) The reference to “against the will of the victim” was deleted in 1981. (Stats. 1981, ch. 1064, § 1, p. 4093.)
In 1995, subdivision (b) was divided into two paragraphs; the former text was placed in subdivision (b)(1) while a new subdivision (b)(2), relating to abuse of dependent adults, was added. (Stats. 1995, ch. 890, § 1, p. 6777.) I refer to the prohibition on lewd acts with a child by force, violence, etc., as section 288(b) or section 288(b)(1), according to the statute’s organization at the time under discussion.
Until 1986, section 288(b) referred to “threat of great bodily harm.” The 1986 amendment substituted the current wording, “fear of immediate and unlawful bodily injury." (Stats. 1986, ch. 1299, § 4, p. 4595.)
Among other things, Assembly Bill No. 457 would have allowed probation in some cases where the defendant had befriended the victim for sexual purposes but the victim solicited the sexual act or shared in the perpetrator’s sexual intent at the time he or she was befriended. (Assem. Bill No. 457, § 3, as amended in Assem., May 6, 1981.) This proposed provision was assertedly designed to exempt from the state prison mandate offenses involving “the 13 year old prostitute and the Lolita situations.” (Assem. Com. on Crim. Justice, Analysis of Sen. Bill No. 586, as amended Aug. 10, 1981, p. 7.)
People
v.
Verdegreen
(1895)
“Force is a general term. When force causes physical harm, it is commonly called ‘violence.’ (Webster’s Collegiate Diet. (10th ed.) p. 1319.)”
(People v. Bolander, supra,