People v. Leal

• Decision Date: 05 August 2004
• Docket Number: No. S114399.,S114399.
• Citation: 16 Cal.Rptr.3d 869,94 P.3d 1071,33 Cal.4th 999
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Diego LEAL, Defendant and Appellant.

16 Cal.Rptr.3d 869

94 P.3d 1071

33 Cal.4th 999

The PEOPLE, Plaintiff and Respondent, v. Juan Diego LEAL, Defendant and Appellant.

No. S114399.

Supreme Court of California.

August 5, 2004.

J. Courtney Shevelson, Carmel, for Defendant and Appellant.

William Richard Such, Palo Alto, and John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, John H. Deist and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

Penal Code section 288, subdivision (b)(1), makes it a felony to commit a lewd act upon a child under the age of 14 years "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . ." Nearly two decades ago, the Court of Appeal defined the term "duress" as used in this statute to include a threat of hardship. (People v. Pitmon (1985) 170 Cal.App.3d 38, 49, 216 Cal.Rptr. 221.) The Legislature later incorporated this definition of "duress" into the statute defining rape (former Pen.Code, § 261, subd. (b), added by Stats.1990, ch. 630, § 1, p. 3097) but in 1993 amended the definition of duress in the rape statute to delete the term "hardship," and incorporated the same definition into the spousal rape statute. (Pen. Code, §§ 261, subd. (b), 262, subd. (c).)

For the reasons that follow, we conclude that the 1993 amendments of the rape and spousal rape statutes, to delete the term "hardship" from the definition of "duress" in rape, and incorporate that definition into spousal rape did not alter the previously existing judicial definition of the term "duress" as used in Penal Code section 288, subdivision (b)(1), which did, and continues to, include a threat of hardship.

FACTS

Defendant Juan Diego Leal was convicted, following a jury trial, of two counts of committing a lewd act on a child under the age of 14 years by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury in violation of Penal Code section 288, subdivision (b)(1). Defendant was sentenced to 12 years in prison.

The evidence adduced at trial showed that between May 1 and December 7, 1999, 11-year-old Jennifer was in the sixth grade and lived with her parents and her nine-year-old brother Eugene. Jennifer and her brother would be alone in the house each weekday afternoon from the time they returned home from school until about 5:00 p.m. when their parents returned home from work.

Defendant was the boyfriend of Jennifer's Aunt Maria. He had a key to Jennifer's house and would often come to work on the house to make repairs, such as installing a doorknob and lock on Jennifer's parents' bedroom door and painting the kitchen. Defendant was supposed to work on the house when the children were in school. If Jennifer spoke to her mother on the telephone, defendant would tell Jennifer to say that he was not there.

Whenever he saw her, defendant would hug Jennifer in a way she did not like. If no one was around, he would touch Jennifer's breasts, either over or under her shirt, and touch her bottom. On numerous occasions, defendant assaulted Jennifer in her mother's bedroom. He either would enter the bedroom when Jennifer was there doing her homework or using the computer, or he would tell her to come into the bedroom, saying he had to talk to her or show her something. Jennifer went into the bedroom with defendant because she was scared. He would close and lock the door and then touch her breasts either through her clothing or under her shirt. He had her lower her pants and touched her buttocks and her vagina. Twice he put his fingers in her vagina. Defendant would take Jennifer's wrist and place her hand on his penis. Jennifer stated that defendant would "just grab my arm or like my wrist and then put it on his private, and then he would just like move it around." When she hesitated, he would grab her and "pull [her] hands back right away," saying: "Come on, it's nothing scary." He would kiss her, sometimes putting his tongue in her mouth. Jennifer testified she "just wanted to get away" from defendant.

Defendant told Jennifer not to tell anyone about these incidents, warning her that if she did she would not be able to see him anymore. Jennifer was concerned that this would mean that she also would not be able to see her aunt Maria anymore. Defendant did not hurt her, but Jennifer felt disgusted. She tried to avoid being alone with defendant by locking herself in her mother's bedroom or pretending she was sleeping or sick.

The only person Jennifer told about defendant's conduct was her best friend, Jamie. Jamie urged Jennifer to "tell somebody," but Jennifer refused because she was afraid she would be taken away from her parents, as had happened to friends of hers who had been molested, and it scared her to think about that. Upon Jamie's advice that Jennifer had "to get the nerve to say no and start being strong," Jennifer began to say no to defendant and told him not to touch her.

Jennifer and Jamie arranged a signal in an effort to protect Jennifer from defendant. If Jennifer was on the telephone with Jamie and felt scared of defendant, she would make a clicking noise and Jamie would run to Jennifer's house and stay with her. Still, on some occasions when Jamie was present, defendant nevertheless would lock Jamie out of the bedroom and molest Jennifer.¹

Eventually, word of these incidents reached the mother of one of Jennifer's friends, who called the school counselor who, in turn, called the police.

Defendant testified and denied molesting Jennifer and denied ever having been in the bedroom with her. The court instructed the jury in accordance with CALJIC No. 10.42 that "[t]he term duress means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to 1) perform an act which otherwise would not have been performed or, 2) acquiesce in an act to which one otherwise would not have submitted. The total circumstances including the age of the victim and her relationship to defendant are factors to consider in appraising the existence of duress." (Italics added.)

Defendant appealed his conviction and argued, inter alia, that the trial court erred by defining "duress" to include "a direct or implied threat of `hardship.'" The Court of Appeal affirmed the judgment of conviction, declining to follow the contrary holding in People v. Valentine (2001) 93 Cal.App.4th 1241, 113 Cal.Rptr.2d 748. We granted review to resolve this conflict.

DISCUSSION

Penal Code section 288, subdivision (b)(1),² makes it a felony for any person to commit a lewd act upon a child under the age of 14 years "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." The quoted phrase also appears in the definitions of three other sexual offenses: forcible sodomy in violation of section 286, subdivision (c)(2),³ forcible oral copulation in violation of section 288a, subdivision (c)(2),⁴ and forcible acts of sexual penetration in violation of section 289, subdivision (a)(1).⁵

The term "duress" as used in section 288, subdivision (b)(1), was first defined in People v. Pitmon, supra, 170 Cal.App.3d 38, 48, 216 Cal.Rptr. 221. The Court of Appeal in Pitmon observed: "Duress, as an element of a criminal offense has not been previously given legal definition." (Id. at p. 48, 216 Cal.Rptr. 221.) The court in Pitmon rejected the argument that it should adopt the definition used for "duress" as a defense to a criminal charge, which "is established only if one acted out of fear of imminent death or great bodily harm," noting that "the purpose served by the concept of `duress' as a defense is manifestly different from that served by inclusion of the term as an element of a sex offense against minors." (Id. at p. 49, 216 Cal.Rptr. 221.) Instead, the court relied in part on the dictionary definition of "duress" and found "duress as used in the context of section 288 to mean a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (Pitmon, supra, 170 Cal.App.3d at p. 50,216 Cal.Rptr. 221, italics added.) This definition was incorporated into CALJIC No. 10.42, the jury instruction for section 288, subdivision (b)(1). (Com. to CALJIC No. 10.42 (6th ed.1996) p. 798.)

The Pitmon definition of "duress" has been followed consistently for almost 20 years. (People v. Cardenas (1994) 21 Cal.App.4th 927, 939, 26 Cal.Rptr.2d 567; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579; 8 Cal.Rptr.2d 392; People v. Schulz (1992) 2 Cal.App.4th 999, 1005, 3 Cal.Rptr.2d 799; People v. Hecker (1990) 219 Cal.App.3d 1238, 1250, 268 Cal.Rptr. 884; People v. Sanchez (1989) 208 Cal.App.3d 721, 748, 256 Cal.Rptr. 446.) The Pitmon definition also has been used to define the term "duress" as it is used in the sexual offenses of aggravated sexual assault of a child in violation of section 269 (People v. Cochran (2002) 103 Cal.App.4th 8, 13, 126 Cal.Rptr.2d 416), forcible oral copulation in violation of section 288a, subdivision (c) (People v. Senior (1992) 3 Cal.App.4th 765, 775, 5 Cal.Rptr.2d 14; People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, 259 Cal.Rptr. 219), forcible sexual penetration in violation of section 289 (People v. Senior, supra, 3 Cal.App.4th at p. 775, 5 Cal.Rptr.2d 14), and enhancement for prior sex offenses under section 667.6, subdivision (d) (People v. Senior, supra, 3 Cal.App.4th at p. 775, 5 Cal.Rptr.2d 14). The validity of the Pitmon...