P. v. Soto

Filed 9/9/08 P. v. Soto CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME VARGAS SOTO,
Defendant and Appellant.
H030475
(Santa Clara County
Super. Ct. No. EE504317)
A jury convicted defendant Jaime Vargas Soto of three counts of lewd conduct
upon a child under 14 by means of force, violence, duress, menace, or fear (counts 1, 2,
and 4) and one count of lewd conduct upon a child under 14 (count 3). It also found true
special allegations for purposes of probation ineligibility that defendant had committed
(1) counts 1, 2, and 4 by means of force, violence, duress, menace, or fear, and (2) the sex
offenses against more than one victim. The trial court sentenced defendant to 12 years in
prison (consecutive three-year terms). On appeal, defendant principally contends that the
trial court erred by instructing the jury in the optional language of CALCRIM No. 1111
(consent is not a defense to lewd conduct upon a child under 14 by means of force, etc.).
He secondarily contends that (1) the prosecutor engaged in misconduct during opening
statement by referring to inadmissible admissions, (2) he received ineffective assistance
of counsel because counsel failed to request a limiting instruction as to certain hearsay
evidence, (3) the prosecutor engaged in several instances of misconduct during argument,
(4) the trial court erred by instructing the jury in the language of CALCRIM No. 1191

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(evidence of uncharged sex offense), and (5) the trial court erred by instructing the jury in
the language of CALCRIM No. 362 (consciousness of guilt). We agree with defendant’s
principal contention. We also agree that the error requires a reversal for retrial of counts
1, 2, and 4. We address defendant’s secondary contentions in the context of count 3 and
reject them.
BACKGROUND
Count 1
Defendant, 19 years old, lived with the family of his cousin, 13-year-old C. Doe.
On certain occasions in the home, defendant would kiss, rub, and “talk dirty” to C. C.
believed that defendant wanted to have a sexual relationship with her. She was “grossed
out” but did not tell anyone. C.’s mother kicked defendant out of the house after seeing
him trying to kiss C. Six months later, C. saw defendant driving by as she was entering
her school grounds. She was angry with defendant because he was secretly going out
with her 13-year-old best friend, A. She motioned towards defendant so as to talk with
him. Defendant drove around the corner into the school parking lot, stopped the car,
exited, and met C. They talked for five minutes. In the conversation, defendant denied
going out with A. The lie made C. angry. When C. tried to leave, defendant grabbed her
arms to stop her. At some point, C. left for her class. The school principal, however,
summoned her to his office because he had heard from his secretary that C. had been with
a man in the parking lot. In the office, C. admitted being with “a friend” but did not
reveal defendant’s name. She told the principal either that defendant had kissed her or
that they had kissed previously. The principal told her that he would telephone her
mother. He called C.’s mother and learned defendant’s identity. When C. left the office,
she used a cell phone and told defendant that the principal had been asking about him.
Defendant told C. not to reveal his name. A police officer arrived at the school, and the
principal summoned C. from class to speak to the officer about the incident. C.
eventually revealed to the officer defendant’s name, phone number, and workplace. She

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also told the officer that defendant had grabbed, hugged, and French kissed her while she
tried to push herself away. A couple of days later, C. told another officer the same thing,
adding that defendant had rubbed her thigh and she could feel that his penis was hard as
he was holding himself against her. At trial, C. testified that she had lied to the officers
because she was angry at defendant for ignoring her and paying attention to A.; she
denied that “any of those things [had] happen[ed]”; she added that she was worried about
what was going to happen to defendant because she still cared about him as a friend.
Count 2
When talking to the second officer, C. described an incident that had occurred a
week previously. She related that, when defendant was driving her to school, he stopped
the car, “put the seat down,” kissed her, got on top of her, “humped” her, and locked the
door when she tried to get out. At trial, C. testified that she had lied to the officer
because she was angry at defendant. She also testified that the seats in defendant’s car
did not recline.
Count 3
When defendant was living with C.’s family, he met C.’s friend and neighbor, 11-
year-old R. Doe. At some point, R. told C. that she thought defendant was nice and gave
C. her phone number so as to give to defendant. One evening, R. entered the apartment
laundry room. Defendant was there. They talked. Defendant then hugged and kissed R.
He took her hand and placed it between his legs. He told her that he wanted to have sex
with her. R. pushed away from defendant and told him that she did not want to do that.
Later, defendant telephoned R. and told her that he wanted to have sex with her.
Count 4
When defendant was living with C.’s family, he telephoned R. and told her that C.
wished to talk with her. R. went to C.’s apartment but only defendant was present. After
the two talked in a bedroom, defendant played a movie that displayed two women
kissing. R. asked defendant to turn off the movie. After defendant did so, he produced a

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condom and told R. that he wanted to have sex with her. R. declined and told defendant
to throw the condom in the trash. Defendant did so. R. started to leave and tripped onto
the bed. She either fell on defendant or defendant got on top of her. Defendant hugged
R., and R. hugged defendant. R. got up to leave but tripped again onto the bed.
Defendant pulled R. and hugged and kissed her. He was not holding onto her hard. At
some point, he tried to touch R. between her legs but R. grabbed his hands so he would
not grab her. He grabbed R.’s hand and put it between his legs. He took off his pants to
his boxer shorts after R. declined to keep her hand between his legs. R. told defendant
that she had to leave because his aunt and her mother might come home. She did not tell
defendant that she did not want to be “doing those things” because she was afraid
defendant would get upset and do something to her another time. R. left the apartment
after spending an hour and a half inside. Later, R. told C. that she had had sex with
defendant. But R. testified that what she had told C. was untrue. She explained that she
had so told C. because she was upset.
CALCRIM NO. 1111
In discussing the elements of counts 1, 2, and 4 during her argument to the jury,
the prosecutor explained as to force, violence, duress, menace, or fear that “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 unanimously agree that it was
accomplished [by one or the other].” She continued by stating the following: “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.”
As to the facts of count 1, the prosecutor argued that defendant had committed the
school-yard incident by force and duress. As to force, she urged that defendant had
grabbed C. as C. tried to get away. As to duress, she stressed that defendant had been in
a position of trust that he abused by threatening to tell C.’s mother that C. had a boyfriend
unless C. kissed him, showering C. with attention and gifts, frightening C. by throwing

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rocks at C.’s window in an effort to convince C. to let him inside the home after he had
moved. As to the facts of count 2, the prosecutor argued that defendant had committed
the car incident by force and duress. As to force, she urged that defendant had climbed
on top of C. and prevented C. from exiting by locking the doors. As to duress, she relied
on the “same factors that applied in Count One.” As to the facts of count 4, the
prosecutor argued that defendant had committed the apartment incident by force and
duress. As to force, she pointed out that defendant held R. and pulled R. as she got up to
leave. As to duress, she stressed that defendant again used flattery and a position of trust
to cultivate a relationship with R. As to the special allegation regarding force, etc., she
stated: “And the force or fear allegation is just a repetition of the same definitions that
are in Count One, Two and Four. And, again, that’s the force or fear or duress or menace
or threat.”
Defendant argued that, as to C., “there was no force, no threats, no duress.” He
explained that C.’s testimony about the school-yard incident was that he merely had
grabbed her. And he denied that he was cultivating a relationship with C. given that the
two were relatives. But he essentially urged that C. should not be believed because she
had told inconsistent stories and the police did not verify the stories she had told them by,
for example, examining his car to see if the seat reclined. He discredited C.’s statements
that she was scared by pointing out that she was the one who had motioned for defendant
to stop in the school yard. He urged: “She is the one who told him to go around, around
the building. She wasn’t scared. And she wasn’t scared because this didn’t happen.”
Defendant argued as to R.: “No force. No duress. No threat. No menace. No fear.
None of it was there. She tripped on a wire, a cable.” He discredited R.’s statements that
she was scared by pointing out that she had spent an hour and a half with him and had
hugged him as she began to leave.
The trial court instructed the jury in the language of CALCRIM No. 1111 as
follows: “To prove that the defendant is guilty of [counts 1, 2, and 4], the People must

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prove that: [¶] 1A, the defendant willfully touched any part of a child’s body either on
the bare skin or through the clothing; [¶] Or, [¶] 1B, the defendant willfully caused a
child to touch her own body, the defendant’s body, or the body of someone else either on
the bare skin or through the clothing; [¶] 2, 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; [¶] 3, the defendant committed the act with the intent of arousing,
appealing to, or gratifying the lust, passions or sexual desires of himself or the child; [¶]
And, [¶] 4, the child was under the age of 14 years at the time of the act. [¶] Someone
commits an act willfully when he or she does it willingly or on purpose. It is not required
that he or she intend[s] to break the law, hurt someone else, or gain any advantage. [¶]
Actually arousing, appealing to, or gratifying the lust, passions or sexual desires of the
perpetrator or child is not required for lewd or lascivious conduct. [¶] 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. When deciding whether
the act was accomplished by duress, consider all the circumstances, including the age of
the child, and her relationship to the defendant. [¶] Retribution is a form of payback or
revenge. [¶] An act is accomplished by fear if the child is actually and reasonably afraid.
[¶] It is not a defense that the child may have consented to the act.” (Italics added.)1
The jury’s verdict did not specify on which basis (force or duress) it found
defendant guilty of counts 1, 2, and 4.
Defendant contends that the above-emphasized, bracketed language of CALCRIM
No. 1111 deprived him of a valid defense. We agree.
1 The emphasized language is bracketed in CALCRIM’s published instructions.

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Penal Code section 288, subdivision (a),2 makes criminal any lewd act upon or
with a child under the age of 14 with the intent of arousing the sexual desires of the
defendant or the child. Subdivision (b)(1) makes criminal the commission of such acts
accomplished “by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury . . . .”
People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), considered the “force”
requirement in the context of section 288, former subdivision (b). Section 288,
subdivisions (a) and (b), drew a “distinction between those lewd acts that are committed
by force and those that are not.” (Cicero, supra, at p. 473.) Section 288, subdivision (a),
criminalized all lewd acts committed with a child under the age of 14 with the requisite
intent. (Cicero, supra, at p. 472; People v. Griffin (2004) 33 Cal.4th 1015, 1026
[discussing Cicero].) Section 288, former subdivision (b), on the other hand, provided
for harsher penalties for the same acts when accomplished by force, violence, duress,
menace, or threat of great bodily harm. (Cicero, supra, at pp. 472-473.) Cicero
concluded that the Legislature must have intended a distinction between the two types of
conduct. In order to effectuate the statutory scheme, Cicero reasoned that the “force”
required to commit a forcible lewd act under subdivision (b) must be substantially
different from, or substantially greater than, the physical force inherently necessary to
commit the lewd act itself. (Cicero, supra, at pp. 473-474; see also People v. Griffin,
supra, 33 Cal.4th at p. 1027; People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
Cicero opined that this standard is clearly met when the child victim suffers injury,
even if no other force is shown. As Cicero explained, “We presume all would agree that
one who inflicts physical harm on a child in the commission of a lewd act is properly
convicted of a violation of subdivision (b) ‘by use of force.’ ” (Cicero, supra, 157
Cal.App.3d at p. 474.) Cicero summarized the relevant principles thusly: “Where a
2 Further unspecified statutory references are to the Penal Code.

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defendant uses physical force to commit a lewd act upon a child under the age of 14, and
the child suffers physical harm as a consequence, the defendant has committed a lewd act
‘by use of force’ under subdivision (b). Consent is no defense. Where no physical harm
to the child has occurred, the prosecution has the burden of proving (1) that the defendant
used physical force substantially different from or substantially in excess of that required
for the lewd act and (2) that the lewd act was accomplished against the will of the victim.
. . . [I]t is an affirmative defense that the victim knowingly consented to the lewd act.”
(Id. at pp. 484-485.)
In concluding that the “Legislature did not intend to eliminate from [section 288,]
subdivision (b) the requirement that a lewd act be undertaken against the will of the
victim where the victim suffers no physical harm,” (Cicero, supra, 157 Cal.App.3d at p.
480) the Cicero court acknowledged that this proposition was somewhat at odds with a
1981 amendment, which deleted language from section 288, subdivision (b), that
required that the act be “against the will of the victim.” But it reasoned that the purpose
of the 1981 amendment “was to make clear that the prosecution need not prove resistance
by the [victim].” (Cicero, supra, at p. 480.)
This court has adopted the Cicero explanation of “force” in lewd touching cases.
(People v. Bolander (1994) 23 Cal.App.4th 155, 158-159 (Bolander); People v. Gilbert
(1992) 5 Cal.App.4th 1372, 1381; People v. Senior (1992) 3 Cal.App.4th 765, 774
(Senior); People v. Schulz (1992) 2 Cal.App.4th 999, 1004 (Schulz); People v. Quinones
(1988) 202 Cal.App.3d 1154, 1158 (Quinones); but see Mihara, J., concurring in
Bolander, supra, at p. 164.) The California Supreme Court has implicitly approved this
description in a rape case. (See In re John Z. (2003) 29 Cal.4th 756, 763.)
In Bolander, we discredited “dicta” in both Schulz and Senior. We stated: “[I]n
light of convincing criticisms set forth in [People v.] Babcock [(1993) 14 Cal.App.4th
383] and [People v.] Neel [(1993) 19 Cal.App.4th 1784], we respectfully disagree with
the interpretation of the ‘force’ requirement of section 288, subdivision (b) discussed in

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Schulz and Senior.” (Bolander, supra, 23 Cal.App.4th at pp. 160-161.) 3 We continued:
“We instead join those courts which have held that ‘[i]n subdivision (b), the element of
force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person is intended as a requirement that the lewd act be undertaken
without the consent of the victim. [Citation.] As used in that subdivision, “force” means
“physical force substantially different from or substantially greater than that necessary to
accomplish the lewd act itself.” [Citations.]’ [Citation.] Applying this standard to the
facts at hand, we conclude that defendant’s acts of overcoming the victim’s resistance to
having his pants pulled down, bending the victim over, and pulling the victim’s waist
towards him constitute force within the meaning of subdivision (b) ‘in that defendant
applied force in order to accomplish the lewd act[] without the victim’s consent.’ ” (Id. at
p. 161.)
Bolander implicitly disagrees with Quinones, supra, 202 Cal.App.3d 1154, in
which another panel of this court had disagreed with the majority opinion in Cicero and
adopted the reasoning of the dissent in that case. In essence, Quinones reasons that
“force” is something the perpetrator applies and, thus, can be committed even with
consent. (See also Bolander, supra, 23 Cal.App.4th at p. 163 (conc. opn. of Mihara, J.)
[“Once lack of consent was eliminated as an element of the prosecution’s case, it was not
reborn as a part of the definition of force . . . consent or lack thereof is simply
immaterial”].)
3 In Schulz, we had stated that “[w]e do not regard as constituting ‘force’ the
evidence that defendant grabbed the victim’s arm and held her while fondling her”
(Schulz, supra, 2 Cal.App.4th at p. 1004), while, in Senior, we had stated that we did “not
regard as constituting ‘force’ the evidence that defendant pulled the victim back when she
tried to pull away from the oral copulations . . . .” (Senior, supra, 3 Cal.App.4th at p.
774.)

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The Judicial Advisory Committee on Criminal Jury Instructions states in its
“Bench Notes” to CALCRIM No. 1111 the following: “There is disagreement as to
whether knowing consent by a minor is an affirmative defense to a lewd act
accomplished by force. [Citing Cicero, Quinones, and dicta in People v. Cardenas
(1994) 21 Cal.App.4th 927, 937, fn. 7.]” It then advises trial courts to either give upon
request the bracketed consent-is-not-a-defense language of CALCRIM No. 1111 if there
is evidence of consent (and the trial court concludes that consent is not a defense) or give
sua sponte consent instructions found in CALCRIM No. 1000 (rape or spousal rape by
force, fear, or threats) if there is evidence of consent (and the trial court concludes that
consent is a defense).
We need not jump into this fray. The People did not limit their lewd-act theories
to force. They also relied on duress. “[A] conviction based on ‘duress,’ . . . necessarily
implies that the ‘will of the victim’ has been overcome.” (Quinones, supra, 202
Cal.App.3d at p. 1158.) It follows that, whether characterized as a substantive element or
affirmative defense, the concept of consent is a defense to a section 288, subdivision
(b)(1), charge if the People rely on duress. 4
Here, the trial court told the jury that consent was not a defense though the People
were relying on duress. This was error and deprived defendant of a defense. A
defendant has a constitutional right to have the jury determine every material issue
presented by the evidence. (People v. Flood (1998) 18 Cal.4th 470, 480.)
4 The People criticize Cicero for ambiguity as to whether consent is an element of
the prosecution’s case or an affirmative defense. But, as a practical matter, the issue of
consent is both an element and a defense where duress is relied upon. Since duress
implies that the will of the victim has been overcome, the People must show beyond a
reasonable doubt that sex acts were performed against the victim’s will, that is without
consent. The defendant in such a case attacks the consent element by arguing that the sex
acts were consensual.

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Defendant argues that the error is reversible per se or, alternatively, prejudicial
under the standard applicable to federal constitutional error. (Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman).)5
The California Supreme Court has suggested that a prejudicial-error test applies
when an instruction erroneously states that a defense is not a defense. (People v. Salas
(2006) 37 Cal.4th 967, 983, fn. 8, 984, fn. 9.) But it has not yet determined the
applicable test. (Ibid.) We conclude that the trial court’s error was prejudicial under
either test. (Ante, fn. 5.)
Here, the People and the trial court implicitly recognized that evidence of consent
existed by telling the jury that consent was not a defense. Indeed, evidence supports that
C. had been annoyed by defendant’s lack of attention toward her and jealous of his
relationship with her friend but cared about him nevertheless; it supports that C. initiated
the school-yard incident, was reluctant to identify defendant as the person with her in the
school yard, and warned defendant that he was under scrutiny because of the school-yard
incident; it supports that the car incident occurred when C. accepted a ride to school from
defendant after he had moved from C.’s home because of his sexualized behavior toward
C.; and it supports that R. was attracted to defendant and remained with him during the
5 Generally speaking, to the extent that a criminal defendant’s appeal raises federal
constitutional claims, courts apply the Chapman rule and examine the record to
determine whether any error was harmless beyond a reasonable doubt. (Chapman, supra,
386 U.S. at pp. 23-24; People v. McClary (1977) 20 Cal.3d 218, 230, overruled on other
grounds in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17.) To the extent that the
appeal rests on other grounds, the Watson standard is generally employed. (People v.
Watson (1956) 46 Cal.2d 818, 836-838; People v. Flood, supra, 18 Cal.4th at p. 490;
People v. Cahill, supra, at p. 492 [Watson “represents the harmless-error test generally
applicable under current California law”].) Under Watson, reversal is warranted only on
a determination that it is reasonably probable that defendant would have obtained a more
favorable result in the absence of any error. (People v. Watson, supra, at pp. 836-838.)

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apartment incident for an hour and a half after discovering the ruse that brought her to the
apartment.
The People do not convince us otherwise. Their argument is that, if consent is a
defense to a lewd act upon a child by force, then the jury could have rested its verdict
upon duress for which substantial evidence exists. But, as we have pointed out, consent
is a defense to a lewd act upon a child by duress and the trial court’s error prevented
defendant from arguing the point. The People also urge that the jury’s finding on the
special allegation demonstrates that the verdict would have been the same in the absence
of the error. They rely upon that the jury was not given the consent-is-not-a-defense
instruction as to the special allegation. We are not convinced given that the prosecutor
argued that the special allegation was a “repetition of the same definitions that are in
Count One, Two and Four.”
PROSECUTORIAL MISCONDUCT DURING OPENING STATEMENT
At a hiatus during jury selection, the trial court heard defendant’s motion to
suppress statements he made to the police. It took the matter under submission and
ordered that “neither party should discuss the content or circumstances of the
statements.” It had not yet made a ruling when the prosecutor began her opening
statement and referenced defendant’s post-arrest police interview. The prosecutor went
on as follows: “And during that interview, he made numerous admissions about his
involvement with these girls. He made numerous –” At this point the trial court
interrupted the statement and conducted a bench conference. During a later break from
testimony, the prosecutor recounted the explanation that she had given at the bench
conference: “I had it as a prepared opening. I had no--when I represented to the Court
that I didn’t intend to refer to it until the decision was made, that was a truthful
representation to the Court. I’m mortified by the fact that I then just sort of got rolling, if
you will, on my opening. And I reviewed it over lunch, and it just didn’t occur to me, as
I was looking over it for accuracy, that that portion needed to be excised. And I had

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forgotten to make a note to myself to take it out of my opening. [¶] I apologize
profusely. It was not willful. But I did forget that that ruling was pending and that,
rightfully so, we shouldn’t mention it in our opening until that ruling had come down
from the Court.” Defendant then moved for a mistrial “based on [the prosecutor’s]
inclusion of those statements.” He acknowledged that the prosecutor had made an honest
mistake. But he urged that, if the trial court granted the motion to suppress, “Jurors
would be questioning whether those admissions were made and what would have been
said.” The trial court explained that it had not yet ruled on the motion to suppress
because of its complexity and invited further briefing on that matter and on whether a
mistrial was justified in the event the motion was granted. The next morning, the trial
court granted the motion to suppress and heard arguments on defendant’s mistrial motion.
Defendant repeated that “My move for a mistrial basically comes as a result of what the
jury may perceive or what the jury may want now that we have a ruling from the Court.
Is the jury going to expect [defendant] to testify. Is the jury going to expect [the
interviewing detective] to testify. If [the detective] is not going to testify, the comments
made by [the prosecutor] yesterday in terms of [the detective] talking about these
statements is going to leave the jury wondering what the statement was or what those
admissions were, especially given the comment that these admissions were in relation to
these two girls. [¶] I’m not exactly sure. Normally I think I would cover it with a request
for an admonishment, but I’m not sure that an admonishment in this case would be
enough. . . . But if he were to be convicted because the jury felt they didn’t have all the
information based on no testimony from the detective or from [defendant] given the
comments that were made, I think is significant prejudice. [¶] Again, I’m not sure that an
admonition would be able to cure that, and that’s basically why I would move for a
mistrial. [¶] . . . [¶] [Y]ou can’t unring the bell. It’s already been rung. Jurors have heard
there are admissions out there made to the detectives and those detectives are going to
come in and talk about them.” The prosecutor countered that “it is only a one-sentence

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mention and it was very general . . . [All] . . . it amounted to was that the defendant made
admissions about his involvement with the girls.” She continued that it was undisputed
that “there was involvement by the defendant with the girls. That’s not even being
denied by either of them. So it doesn’t necessarily even present to the jury an idea that,
hey, I thought we were going to hear the defendant admitted [sic] he was sexually
contacting these girls or sexually involved with these girls.” The trial court denied
defendant’s motion. It explained: “I find, after reviewing the text of the statements made
by the prosecutor in opening statement, that they are sufficiently generic and to the extent
that it will not be--there will not be so much prejudice that could not be cured by
instruction. As [the prosecutor] has pointed out, the--I’ve already given the jurors pre-
instruction to the effect that what the attorneys say is not evidence. [¶] With respect to
the opening statement and in CALCRIM [No.] 104, which I read to the jury, part of that
says nothing that the attorneys say is evidence in their open[ing] statements and closing
arguments, the attorneys will discuss the case but their remarks are not evidence, only the
witnesses’ answers are evidence.” The trial court then asked defendant whether he
desired to request an additional admonition. Defendant replied that “I may request an
admonition.” During a later part of the trial, defendant related the following: “The only
other thing that I should go ahead and clarify now is, given the motion for a mistrial
based on the opening statements, after reviewing the jury instructions this weekend, I
think that the jury instructions themselves can serve as an admonition just because there
are and it is repeated a couple times that opening statements are not evidence. And
looking at how the evidence came in, there were statements made by my client that came
in via the cousin, which could potentially be the ones that [the prosecutor] or perceive to
be the ones that [the prosecutor] was referring to. [¶] So I’m not going to submit an
admonition for the Court. I think that, given the jury instructions, should serve as
sufficient notice that opening statements and anything that’s said then is not evidence.”

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Defendant contends that the prosecutor engaged in misconduct by referencing
“admissions” about “his involvement” with the victims. He alternatively urges that he
received ineffective assistance of counsel because counsel did not request a specific
admonition as to the prosecutor’s references. There is no merit to these claims.
It is misconduct for a prosecutor to mischaracterize the evidence. (People v. Hill
(1998) 17 Cal.4th 800, 823.) But a reversal requires more. “[O]nly misconduct that
prejudices a defendant requires reversal [citation], and a timely admonition from the
court generally cures any harm.” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
“ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the
defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v.
Brown (2003) 31 Cal.4th 518, 553-554.)
In our context, the most damaging meaning from the prosecutor’s statement is that
defendant admitted to the detective the charged offenses or other sex acts with the
victims. Defendant, however, has not carried his burden to show a reasonable likelihood
that the jury construed the statement in this manner. This follows because the most
damaging meaning must be inferred while the least damaging meaning is literal. The
statement does not say that defendant confessed or admitted to sex acts with the victims.
The statement says that defendant made admissions about his involvement with the
victims. Since it was undisputed that defendant was involved with the victims, the
statement literally conveys that defendant admitted what was undisputed. That the
detective did not ultimately testify about the admissions does not affect this point. And
the jury might just as easily have construed the detective’s failure to testify against the
prosecutor (broken promise of proof) rather than for the prosecutor (nonevidential
admission).

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16
Moreover, in the context of defendant’s mistrial motion, the trial court pointed out
and defendant acknowledged that the jury was and would be repeatedly informed that
opening statements were not evidentiary. “ ‘A jury is presumed to have followed an
admonition to disregard improper evidence particularly where there is an absence of bad
faith.’ [Citations.] It is only in the exceptional case that ‘the improper subject matter is
of such a character that its effect . . . cannot be removed by the court’s admonitions.’ ”
(People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) We presume that the trial
court’s instructions cured the potential prejudice from the prosecutor’s, at most,
ambiguous remark.
Defendant’s ineffective assistance of counsel claim is patently without merit. The
record is clear that trial counsel carefully considered whether to request a customized
admonition and rejected that choice because of the existing instructions and evidence
tying defendant’s “involvement” to the prosecutor’s opening statement. Underlying trial
counsel’s choice is the concept that requesting a customized admonition, whether at the
time the prosecutor made the remark or a later time, might call the jury’s attention to an
otherwise brief, forgettable, and ambiguous remark. The record demonstrates a sound
tactical decision. (People v. Jones (1997) 15 Cal.4th 119, 182 [in order to succeed on a
claim of ineffective assistance of counsel, the record must negate the possibility that
counsel’s decision resulted from an informed tactical choice within the range of
reasonable competence], overruled on other grounds in People v. Hill, supra, 17 Cal.4th
at p. 823, fn. 1.)
INEFFECTIVE ASSISTANCE OF COUNSEL
C. testified several times that she knew defendant was dating A. because A. had
told her so. C.’s 26-year-old brother, I., testified that he told defendant that, “if he kept
hanging around with these young girls and had sex with them, he would find himself in
jail.” I. explained that he knew that defendant had young girlfriends because “friends
told [him].”

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17
Defendant points out that the evidence from C. and I. to the effect that each knew
he was dating young girls is hearsay. He acknowledges that such evidence can fall
outside the hearsay rule if it is admitted for a purpose other than the truth of the matter
asserted. He further acknowledges that the dating-young-girls testimony is arguably
admissible to explain C.’s behavior during the school-yard incident and I.’s
admonishment against hanging around and having sex with young girls. He contends,
however, that he received ineffective assistance of counsel because counsel failed to
request an instruction limiting the purpose of the dating-young-girls testimony. 6 He
acknowledges that the trial court instructed the jury in the language of CALCRIM No.
303 (limited purpose evidence in general), but urges that no instruction tied in the dating-
young-girls testimony to the limited-purpose concept. He argues that he was prejudiced
because, if admitted for the truth, the testimony can lead to the inference that he had
committed uncharged sex acts against young girls or was predisposed to do so. He
bolsters this point by referencing the prosecutor’s remark during closing argument: “We
know he likes to hang around young girls. . . . We know he was with [A.].” We reject
defendant’s claim.
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.)
“To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective
6 The People misconstrue defendant’s argument and make much of whether trial
counsel had a tactical reason for failing to make a hearsay objection to the dating-young-
girls testimony. Though this theme may lurk in the issue raised, it is not presented and,
as mentioned, defendant concedes the limited admissibility of the testimony.

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18
standard of reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v.
Washington (1984) 466 U.S. 668, 687-696 [(Strickland)].) ‘When a defendant on appeal
makes a claim that his counsel was ineffective, the appellate court must consider whether
the record contains any explanation for the challenged aspects of representation provided
by counsel. “If the record sheds no light on why counsel acted or failed to act in the
manner challenged, ‘unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation,’ [citation], the
contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v.
Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make
every effort to avoid the distorting effects of hindsight and to evaluate the challenged
conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561;
Strickland, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that
counsel’s acts were within the wide range of reasonable professional assistance.
(Strickland, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to
establish the claim not as a matter of speculation but as a matter of demonstrable reality.
(People v. Garrison (1966) 246 Cal.App.2d 343, 356.)
What defendant overlooks is that the dating-young-girls testimony was admissible,
albeit for a limited purpose, and both C. and I. also testified that they had never seen
defendant with young girls. Thus, trial counsel could have reasoned that (1) the truth
feature of the dating-young-girls testimony was muted by the witnesses’ admitted lack of
first-hand knowledge, and (2) a customized limiting instruction (telling the jury that the
dating-young-girls testimony should not be accepted as evidence that defendant was
dating young girls) would only highlight the testimony. It is true that the prosecutor

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19
highlighted the testimony in argument. But, again, trial counsel could have reasonably
elected against provoking a sure-fire highlight by requesting a limiting instruction in the
hope that the prosecutor would (1) overlook an arguably tangential point, or (2) make the
point briefly (as she did). Defendant simply fails to carry the heavy burden to prevail on
this type of claim.
PROSECUTORIAL MISCONDUCT DURING ARGUMENT
Defendant contends that the prosecutor engaged in misconduct during argument
by (1) misstating the law so as to imply that he had a duty to offer evidence to create a
reasonable doubt of his guilt, (2) misstating the law by telling the jury that it could not
consider the lesser included offenses unless it first acquitted of the charged offenses, (3)
mischaracterizing the evidence by telling the jury that C.’s family coerced C. to lie in
court, and (4) mischaracterizing the evidence by telling the jury that he had demonstrated
consciousness of guilt by making false statements when he was arrested.
We reject the point on procedural grounds. To preserve a misconduct claim a
defendant must make a timely objection and request an admonition; only if an objection
would have been futile and admonition would not have cured the harm is the misconduct
claim preserved for review. (People v. Cook (2006) 39 Cal.4th 566, 598.) In the absence
of timely objection, the claim is forfeited. (Ibid.; see also People v. Noguera (1992) 4
Cal.4th 599, 638-639.)
Here, defendant concedes that he did not object and request admonitions. He
claims that admonitions would not have cured the harm, but we disagree. It is
conceivable that, if asked, the trial court could have admonished the jury to disregard the
prosecutor’s supposed misstatements of the law and follow the instructions for the
applicable law; and it is conceivable that, if asked, the trial court could have admonished
the jury to disregard the prosecutor’s supposed evidentiary mischaracterizations and rely
on the evidence, rather than the prosecutor’s statements, for the facts. Had defendant so

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20
requested, we would be in a position to review the effect of a grant or denial of the
request.
Defendant’s alternate claim of ineffective assistance of counsel fails because he
does not show prejudice from counsel’s failure to object, i.e., he has not established a
reasonable probability of a more favorable verdict if defense counsel had objected to the
prosecutor’s remarks. (Strickland, supra, 466 U.S. at p. 697 [when an ineffective
assistance of counsel claim can be resolved on lack of prejudice, a reviewing court need
not determine whether counsel’s performance was deficient].)
At the threshold, we disregard defendant’s second and third points. That the
prosecutor may have misstated the law about considering lesser included offenses
implicates counts 1, 2, and 4, the aggravated lewd-act counts that we are remanding for
retrial. Defendant acknowledges this by making no argument that the prosecutor’s
supposed misconduct was prejudicial as to count 3, which is the nonaggravated lewd-act
count. Similarly, that the prosecutor may have mischaracterized the facts about the
reasons why C.’s testimony was inconsistent with her police statements, implicates
counts 1 and 2, which involve victim C. Defendant acknowledges this by making no
argument that the prosecutor’s supposed misconduct was prejudicial as to count 3, which
involves victim R.
As to defendant’s first point, we decline to recount the details of the prosecutor’s
assailed remarks because defendant summarizes the remarks as follows: “The
prosecutor’s closing argument implied that the defendant had some duty to offer proof
sufficient to create a reasonable doubt.” Assuming that some of the prosecutor’s
statements can be construed as improperly shifting the burden of proof to defendant, the
question is whether trial counsel’s failure to object was prejudicial which, in turn,
depends upon whether the prosecutor’s statements were prejudicial. But this question is
determined “[i]n the context of the whole argument and the instructions.” (People v.
Marshall (1996) 13 Cal.4th 799, 831.)

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21
The instructions are particularly significant because “ ‘[t]he crucial assumption
underlying our constitutional system of trial by jury is that jurors generally understand
and faithfully follow instructions.’ ” (People v. Delgado (1993) 5 Cal.4th 312, 331.)
Thus, “[w]e presume that jurors treat the court’s instructions as a statement of the law by
a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to
persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see also People v. Smith
(2005) 35 Cal.4th 334, 372.)
Here, the trial court properly instructed the jury on the prosecution’s burden of
proving defendant’s guilt beyond a reasonable doubt (CALCRIM No. 220) and the
prosecutor herself argued that “The most important instruction in your packet is
[CALCRIM] No. 220. That’s the burden in this case. It’s beyond a reasonable doubt.
It’s the highest in the system as well it should be because we’re talking about someone’s
liberty and criminal charges.” The trial court also advised the jurors in the language of
CALCRIM No. 200 that they must accept and follow the law as stated by the court and
“If you believe that the attorneys’ comments on the law conflict with my instructions,
you must follow my instructions.” Defendant’s point that the jury might have construed
from the prosecutor’s argument that a reasonable doubt must be based on evidence is
therefore without merit. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238
[CALCRIM No. 220 does not tell the jury that reasonable doubt must arise from
evidence but instead tells the self-evident principle that the determination of a
defendant’s culpability beyond a reasonable doubt must be based on the evidence].)
Defendant also emphatically informed the jury in his argument that the People had the
burden of proof. Defendant argued: “[Defendant] is presumed innocent until all 12 of
you have agreed that the charges have been proved, if they have been proved, beyond a
reasonable doubt. And that’s the standard. [¶] You have the jury instruction that [the
prosecutor] mentioned. Review that. It tells you what the burden is.” In light of the
instructions given by the court and the argument of the prosecutor and defense counsel,

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22
which accurately placed the burden of proving defendant’s guilt on the People, we
conclude that defense counsel’s failure to object to prosecutorial comments in closing
argument was not prejudicial because there is no “ ‘ “reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ”
(People v. Carter (2005) 36 Cal.4th 1215, 1263.)
As to defendant’s fourth point, the People agree that the prosecutor misstated the
evidence by mentioning that defendant gave false information to a police officer.7 The
mention, however, was brief and in association with several statements more about the
law than the facts. The prosecutor stated: “False statements, motive and flight. This is
additional evidence that you have that was presented to you that goes towards finding
him guilty and supports what [C.] and [R.] have accounted happened to them. False
statements. You may consider the defendant’s false statements as it relates to his guilt.
You may find that he was aware of his guilt of the crime when he made these statements.
The statements that this is addressing is when he’s contacted by [the detective] and he
lies about who he is, he gives him false information about who he is.”8
In short, the false-information mention was momentary and not developed or
emphasized. In any event, as we have recounted, the trial court instructed the jury in the
language of CALCRIM No. 104 to the effect that nothing the attorneys say in argument
7 At the hearing on defendant’s motion to suppress, the detective testified that
defendant gave a false identity when arrested. When the detective testified at trial,
however, this point was not brought out.
8 The prosecutor also mentioned the point in passing, joined to an argument that
defendant showed consciousness of guilt by fleeing and hiding. The prosecutor stated:
“And then the last thing, his flight, may show that he was aware of his guilt. Just before
giving the false information to the police officer, he was found hidden under some
clothes crouching in a closet with a small child who wasn’t saying a peep out in the
bedroom. That’s more information for you to consider towards his guilt. Again, this was
after [the detective] had talked to the girls and after he had started asking around of his
family members to try to find the defendant, and he was found in the closet hiding.”

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23
is evidence, that only the witnesses’ answers are evidence. Indeed, these circumstances
convince us that defense counsel’s failure to object or seek a sidebar conference was
because the supposed misconduct and any potential prejudice are more apparent than
real, more arguable on appeal than actual at trial. There is no reasonable likelihood that
the jury construed or applied the false-information remark in an objectionable fashion.
CALCRIM NO. 1191
Defendant contends the trial court committed prejudicial error by instructing the
jurors in the language of CALCRIM No. 1191, which concerns evidence of uncharged
sex offenses offered as circumstantial evidence to prove predisposition. He argues that
the instruction unconstitutionally “allow[s] the jury to infer by a preponderance of the
evidence that [he] was likely to have committed the charged offenses.” There is no merit
to this claim.
In People v. Cromp (2007) 153 Cal.App.4th 476, the court rejected a similar
challenge to CALCRIM No. 1191, relying on People v. Reliford (2003) 29 Cal.4th 1007,
1012-1015, which had likewise rejected a challenge to the substantially similar language
of CALJIC No. 2.50.01. “[T]here is no material difference in the manner in which each
of the instructions allows the jury to conclude from the prior conduct evidence that the
defendant was disposed to commit sexual offenses and, therefore, likely committed the
current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not
required to draw these conclusions and, in any event, such a conclusion is insufficient,
alone, to support a conviction. Based on Reliford, we therefore reject defendant’s
contention that the instruction violated his due process rights.” (People v. Cromp, supra,
153 Cal.App.4th at p. 480; see also People v. Schnabel (2007) 150 Cal.App.4th 83, 87
[“The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material
respects to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM
No. 1191 (which was given here) in its explanation of the law on permissive inferences
and the burden of proof”].) We similarly reject defendant’s challenge. We are in no

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24
position to reconsider the Supreme Court’s holding in Reliford. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.)
We observe that CALCRIM No. 1191 is even more restrictive than its CALJIC
predecessors because it expressly advises the jury that evidence of another sexual offense
“is not sufficient by itself to prove that the defendant is guilty of [the charged offenses].
The People must still prove each [element of each offense] beyond a reasonable doubt.”
Defendant secondarily argues that giving CALCRIM No. 1191 is “improper
where the prior offenses are offered as proof of charged crimes.” He urges that the
evidence of his sexual interactions with victim C. when he lived with her family is
admissible as both propensity evidence and evidence on the substantive element of
duress. He reasons that, as a matter of due process, propensity evidence must be
excludable under Evidence Code section 352 (risk of undue prejudice outweighs
probative value) but cannot be excluded if the same evidence proves a substantive
element. He also argues that the jury should not be charged with performing the “mental
gymnastics” necessary to first make a preponderance-of-evidence determination that he
committed prior sex offenses for purposes of propensity and second make a beyond-a-
reasonable-doubt determination that he committed the same offenses for purposes of
duress.
The difficulty with defendant’s argument is that defendant never raised it in the
trial court either by (1) objecting to the admission in evidence of his sexual interactions
with victim C., (2) objecting to the prosecutor’s dual use of the evidence in argument, (3)
objecting to CALCRIM No. 1191, or (4) requesting a limiting instruction pinpointing the
“mental gymnastics” required by CALCRIM No. 1191 when applied to the facts. Given
that the argument pertains only to counts 1 and 2 as to victim C., we pass the matter
without consideration. Defendant is free to make and develop the point on retrial.

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25
CALCRIM NO. 362
The trial court instructed the jury in the language of CALCRIM No. 362 as
follows: “If the defendant made a false or misleading statement relating to the charged
crime, knowing the statement was false or intending to mislead, that conduct may show
he was aware of his guilt of the crime and you may consider it in determining his guilt.
[¶] If you conclude that the defendant made the statement, it is up to you to decide its
meaning and importance. However, evidence that the defendant made such a statement
cannot prove guilt by itself.”
Defendant contends the trial court erred by giving the instruction because there
was no evidence to support it. He reiterates that the detective testified about the false
information at the suppression hearing but not at trial and that the prosecutor nevertheless
argued the point.
But the instruction itself is conditional. It applies only “if” the jury concludes that
defendant made a false or misleading statement. As we have mentioned, the trial court
instructed the jury on what is and what is not evidential. We presume that the jury
generally understood and followed CALCRIM No. 362 and the other instructions.
(People v. Delgado, supra, 5 Cal.4th at p. 331.)
CUMULATIVE ERROR
Defendant asserts the cumulative effect of the aforementioned errors requires
reversal of all his convictions. We disagree. As discussed above, defendant’s secondary
claims either fail on the merits or are harmless and, as for the harmless errors, “the whole
of them did not outweigh the sum of their parts.” (People v. Roberts (1992) 2 Cal.4th
271, 326.)
The parties agree that the abstract incorrectly states that defendant committed
count 3 in 2005 rather than 2004. The retrial will generate a new abstract, and the parties
are free to assure that the new abstract is accurate.

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DISPOSITION
The judgment is reversed. The matter is remanded for a retrial of counts 1, 2, and
4. Upon a verdict, the trial court shall pronounce judgment consistent with the verdict
and extant conviction of count 3.
Premo, J.
I CONCUR:
Rushing, P.J.

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Mihara, J., Concurring and Dissenting.
The majority opinion concludes that the trial court prejudicially erred in
instructing the jury that consent is not a defense to lewd conduct by force or duress. Lack
of consent is not a statutory element of this offense, and the victim’s consent is not
inherently inconsistent with the perpetrator’s application of force or duress. While, as a
factual matter, it may not be necessary for a perpetrator to apply force or duress to
commit a lewd act on a consenting child victim, a perpetrator who actually uses force or
duress to commit a lewd act is guilty of committing a lewd act by force or duress
notwithstanding the child victim’s consent. I would find no error in the trial court’s
instruction. In addition, since there was no evidence presented at trial that either child
victim consented to a lewd act, and defendant never even intimated that he was defending
on the basis of consent, the majority opinion’s conclusion that defendant was prejudiced
by this instruction is highly questionable. Since I agree with the majority opinion’s
conclusion that there were no other prejudicial errors, I would affirm the judgment.
I. Evidence Presented At Trial
Defendant is C.’s first cousin, and he resided with her and her family for a period
of time. While defendant lived with them, he gave C. gifts for her birthday and
Christmas. The allegations that led to the current charges arose after an incident occurred
at C.’s school in May 2005, when C. was 12 years old. Although C. made extensive
statements inculpating defendant to the police about that incident and other prior
incidents, C. testified at trial that these statements to the police were false and no lewd
conduct had occurred.
A school employee testified at trial that she saw C. talking to a man in a car at the
school. She thought this was suspicious, and she reported the incident to the principal.
The principal then made contact with C. The principal testified at trial that C. told him

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2
that defendant had kissed her or that defendant had kissed her before. C. testified that,
after she spoke with the principal, she telephoned defendant to tell him that the principal
had been asking about him. Defendant told her not to tell anyone his name. 1
The principal contacted the police. C. was initially reluctant to speak with the
female police officer who came to the school, but she ultimately spoke to the officer for
30 minutes and provided the officer with defendant’s name, telephone number and
workplace. The police officer testified at trial that C. told her that defendant “called to
her and hugged her, grabbed her around the waist, and pulled her towards him, and
proceeded to French kiss her” in the school parking lot. Their tongues touched during the
kiss. C. told the officer that she did not want to kiss defendant, and she tried to shove
him away. C. pulled away from defendant, and he grabbed her and pulled her closer. At
that point, the principal called to C., and she pushed defendant away.
C. also told the female police officer that defendant had kissed her that way in the
past and rubbed her back and buttocks. Sometimes she would push herself away from
him. Defendant would also “talk dirty” to her. “[S]he believed that he wanted to have a
sexual relationship with her, and she told [the police officer] . . . that she was grossed out
. . . .”
C. spoke to a male police officer a few days later. The male police officer testified
that, when he asked her about “French kissing,” she told him that defendant “was going
to tell my mom stuff . . . if I didn’t kiss him.” She said that defendant threatened to tell
her mother that she had a boyfriend if she did not kiss him. He also “would, like, pinch
me on the back and stuff.” C. also told the male police officer that her mother had seen
defendant kissing her, and had blamed her because she “thought I wanted him to do it . . .
1 C. told the police that during this conversation defendant threatened to “do
something” to her if she told anyone of his presence.

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3
.” Eventually, her mother understood, and she asked defendant to move out. C. told the
police officer that defendant had come back after moving out and banged on the window
of her bedroom with a rock. He said “I’ll never give you a last kiss.” C. told the police
officer that, a week before the school incident, there was an incident in defendant’s car.
Defendant “humped” her and touched her, and he locked the car door when she tried to
get out.
C.’s adult brother testified at trial that he had told defendant that “if he kept
hanging around with these young girls and had sex with them, he would find himself in
jail.”
At trial, C. denied that any kissing or other intimate contact had occurred between
her and defendant. She testified that the May 2005 school incident was initiated by her.
She wanted to talk to defendant because she was mad at him. He had stopped talking to
her after he started “going out with” her 13-year-old best friend A. A. had told C. that A.
was dating defendant. C. testified that she and defendant merely talked in the school
parking lot, and perhaps hugged.2 When she tried to leave, defendant grabbed her arms
so that she would not leave. The bell rang, the principal called to C., and she left
defendant.
C. admitted telling the police that defendant had hugged and kissed her “with an
open mouth” during the school incident. She also admitted telling the police that
defendant “rubbed [her] thigh and [she] could feel that his penis was hard as he was
holding [and rubbing] himself against [her]” during the school incident. C. also admitted
that she had told the police about an incident, a week or two prior to the school incident,
when defendant had been driving her to school in his car. She told the police that
2 C. testified that they hugged, but then she denied that defendant put his arms
around her.

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4
defendant reclined her seat, got on top of her, and kissed her. He also “hump[ed]” her
and touched her “butt.” C. described “humping” as when defendant “put his thing, on
mine, but with clothes . . . .” Defendant also touched her stomach, and tried to touch her
breasts. When she tried to open the car door to leave, he locked the door. She told the
police “that I didn’t want him to do it.”
C. also admitted that she told the police about another prior incident during which
defendant pushed her down on a bed, “humped” her, and she “felt his thing and it felt
nasty, but he was holding me so tight I couldn’t do anything.” C. told the police that
defendant had started out by hugging her and kissing her on the cheek. Then he had
progressed beyond that. C. told the police that she would push him away and tell him to
stop, and he would hold her tight and kiss her. C. told the police that her mother had
kicked defendant out of their home after seeing him kissing and rubbing C. After being
kicked out, defendant banged on her window with a rock, which made her fearful that the
window would break, and defendant said “I’ll never give you a last kiss.” C. testified
that she had told the police that defendant had told her aunt and others, including “people
at school” “that it was all [her] fault, that he didn’t do anything wrong . . . .”
Although she admitted at trial making all of these statements to the police, C.
testified that these statements were untrue, and she made these statements only because
she was mad at defendant for ignoring her.
C. and R. were friends, and R. lived in an apartment next door to the apartment
where defendant was living with C.’s family. R. testified at trial about her encounters
with defendant. One day, R. and defendant met and had a conversation as they stood in
the doorways of their apartments. She told him that she was “going to turn 12,” and he
told her she was pretty. R. gave her phone number to C. and asked C. to give it to
defendant. She did this because she thought defendant was “nice” and “good looking.”
A few days after meeting defendant, R. encountered defendant in the apartment
complex’s laundry room. They talked for a few minutes, and defendant “suddenly

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5
hugged” R. and kissed her. R. said “what are you doing?” She tried to push away from
him, and told him “I don’t want to do that.” Defendant tried to touch R.’s chest. She did
not want him to do that, so she told him not to and removed his hand from her body.
Defendant took her hand and put it between his legs on his groin. R. could feel that his
groin was “very hard.” She did not want to have her hand there, and she pulled her hand
away and told him that she did not want to touch him there. Defendant told R. that he
wanted to have sex with her. R. said no because they were “just friends.” During the
laundry room incident, defendant did not threaten R. in any way. Two hours after the
laundry room incident, defendant called R. on the telephone and again said that he
wanted to have sex with her.
About a week later, defendant called R. on the telephone and told her to come over
to C.’s apartment because C. wanted to talk to her. R. arrived at the apartment and found
defendant there alone. R. went into defendant’s bedroom and spent some time talking to
him. Defendant put on a movie in which two women were kissing each other. R. told
him to turn off the movie, and he did. Defendant took a condom out of his pocket and
said “look at this condom.” R. told him to throw it in the trash, and he did. Defendant
said he wanted to have sex with R. She told him that she did not want to have sex.
R. told defendant that she had to leave. However, she tripped on a cable and fell
onto defendant, who was lying on the bed. Defendant hugged her. She hugged
defendant back, and he kissed her. Then R. told him to leave her alone as she needed to
leave. She hugged defendant, who was sitting on the bed, goodbye. He hugged her and
pulled her onto the bed.3 When she was on top of him, defendant tried to grab her
between her legs. She grabbed his hand and pulled it away. He also tried to pull down
her pants, but she told him no. Defendant grabbed R.’s hand and put it in between his
3 During one of the two hugging incidents, defendant was on top of R.

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legs. His groin was hard. R. did not want him to put her hand there. After a few
seconds, R. pulled her hand away. Defendant wanted R. to pull his pants down, but she
refused. He pulled his pants down, but did not pull down his boxers. R. was afraid that
defendant would get upset and “do something to me” if she told him that she did not want
to do these things. Eventually, R. got up and left the apartment. She had been in the
apartment for about an hour and a half. R. never spoke to defendant again. R. testified
that she felt bad for defendant that he had been arrested.
A police officer testified that he had difficulty locating defendant. The police
officer talked to C.’s adult brother who told the officer that he had seen defendant with
girls C.’s age or younger and had “advised him that having any kind of a romantic
relationship with women of that age would be against the law and he can get himself in a
whole bunch of trouble.” Defendant told C.’s brother that he “didn’t care, that the young
girls were fun.” The police officer eventually located defendant hiding in a closet of an
apartment with clothes draped over him.
II. Procedural Facts
Defendant was charged with one count of lewd conduct (Pen. Code, § 288, subd.
(a)) on R., one count of lewd conduct by force or duress (Pen. Code, § 288, subd. (b)(1))
on R., and two counts of lewd conduct by force or duress (Pen. Code, § 288, subd. (b)(1))
on C. It was further alleged that he had committed the three latter offenses by force or
duress (Pen. Code, § 1203.066, subd. (a)(1)) and against more than one person (Pen.
Code, § 1203.066, subd. (a)(7)).
The court pre-instructed the jury with CALCRIM No. 1111, including the
sentence which states “[i]t is not a defense that the child may have consented to the act.”
The defense presented no evidence at trial. At the conclusion of the trial, the jury was
again instructed with CALCRIM No. 1111, and each juror was provided with a copy of
this jury instruction. CALCRIM No. 1111, which was entitled “Lewd or Lascivious Act

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on a Child By Force or Fear,” described the four elements of the offense: the child was
under 14 years old; there was a touching either of or by the child, caused by the
defendant; the defendant had the requisite specific intent; and “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 instruction specified that “[t]he force used must
be substantially different from or substantially greater than the force needed to
accomplish the act itself.”
CALCRIM No. 1111 also defined duress. “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. When
deciding whether the act was accomplished by duress, consider all the circumstances,
including the age of the child, and her relationship to the defendant. [¶] Retribution is a
form of payback or revenge.” The instruction stated that “[a]n act is accomplished by
fear if the child is actually and reasonably afraid.” The final sentence of the instruction
read: “It is not a defense that the child may have consented to the act.”
Near the beginning of her argument to the jury, the prosecutor, after going over
the elements of the offenses, said: “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 prosecutor never explicitly
mentioned consent again. The prosecutor argued both force and duress. The prosecutor
made the following argument to the jury regarding C.’s state of mind when she
encountered defendant in the school parking lot. “She saw someone that she knew was
now involved with a different girl than her and she saw an opportunity to kind of get that
contact going again. She wasn’t mad at him. She wanted to see him. She wanted to talk
to him.”
Defendant’s trial counsel argued that the alleged school incident lewd conduct
“didn’t happen” and did not involve force as C. had merely said there was “a grabbing of

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the arms.” He conceded that the car incident was forcible, if it occurred, but he argued
that C.’s testimony was not credible. Defendant’s trial counsel argued that R.’s
testimony also was not credible and was inconsistent. He contended that the incident in
the apartment did not involve force or duress because the hugging occurred only because
R. tripped and fell on defendant. Defendant’s trial counsel asserted that there was
reasonable doubt as to all the charges and asked the jury to acquit defendant.
The jury deliberated for less than 50 minutes before finding defendant guilty of all
four counts as charged, and finding the Penal Code section 1203.066 allegations true.
Defendant was committed to state prison for a term of 12 years.
III. Analysis
The majority opinion concludes that the trial court prejudicially erred in
instructing the jury that “[i]t is not a defense that the child may have consented to the
[lewd] act.” The majority opinion reasons that this instruction deprived defendant of a
defense to the prosecution’s contention that the offenses were committed by duress. I
cannot agree. The majority opinion declines to consider whether consent is a defense to a
charge of lewd conduct by force, assumes that consent is defense to a charge of lewd
conduct by duress, ignores the fact that there was no evidence whatsoever of consent at
trial, and fails to acknowledge that defendant never gave the slightest indication that
consent played any role in his defense. I would conclude that the trial court did not
prejudicially err in giving this instruction.
Lack of consent is not a statutory element of this offense. The offense proscribed
by Penal Code section 288, subdivision (b)(1) is a lewd act committed “by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person . . . .” (Pen. Code, § 288, subd. (b)(1).) The court properly instructed
the jury that it was an element of these offenses that defendant “in committing the act, . . .
used force, violence, duress, menace or fear of immediate and unlawful bodily injury to

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the child or someone else.” The jury was not instructed, and defendant does not claim
that it should have been instructed, that lack of consent is a necessary element of lewd
conduct by force or duress.
Defendant contends that consent is inherently inconsistent with the perpetrator’s
use of force or duress and therefore consent is a defense to the force or duress element of
the offense. A perpetrator’s use of force is not inherently inconsistent with the victim’s
actual consent. “A defendant uses ‘force’ [in committing a section 288, subdivision
(b)(1) offense] if the prohibited act is facilitated by the defendant’s use of physical
violence, compulsion or constraint against the victim other than, or in addition to, the
physical contact which is inherent in the prohibited act.” (People v. Bolander (1994) 23
Cal.App.4th 155, 163 (Mihara, J., concurring) (Bolander).) Here, the jury was properly
instructed that “[t]he force used must be substantially different from or substantially
greater than the force needed to accomplish the act itself.” 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. “Once lack of consent was eliminated
[by the Legislature’s 1981 amendment of the statute] as an element of the prosecution’s
case, it was not reborn as a part of the definition of force. Lack of consent is not an
element of the offense prohibited by section 288, subdivision (b), and the victim’s
consent is not an affirmative defense to such a charge. The victim’s consent or lack
thereof is simply immaterial.” (Bolander, at p. 163.) The perpetrator may use force
because he or she is not aware that the victim is willing, or may engage in gratuitous
violence notwithstanding the victim’s willing compliance.
The perpetrator’s utilization of duress is also not inherently inconsistent with the
child victim’s actual consent. “Duress has been defined as a direct or implied threat of

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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. .
. . [D]uress involves psychological coercion. Duress can arise from various
circumstances, including the relationship between the defendant and the victim and their
relative ages and sizes. . . . Where the defendant is a family member and the victim is
young, . . . the position of dominance and authority of the defendant and his continuous
exploitation of the victim [are] relevant to the existence of duress.” (People v. Espinoza
(2002) 95 Cal.App.4th 1287, 1319-1320 (Espinoza), internal quotation marks omitted,
italics added.) “Duress cannot be established unless there is evidence that ‘the victim[’s]
participation was impelled, at least partly, by an implied threat . . . .’” (Espinoza, at p.
1321.)
While a perpetrator may not need to utilize actual or implied threats to coerce the
participation of a willing victim in a lewd act, the perpetrator nevertheless may in fact
utilize such threats either gratuitously or due to his or her unawareness of the child
victim’s actual consent. Notably, duress is defined in terms of the objective impact of the
perpetrator’s conduct on a “reasonable person,” rather than in terms of the subjective
impact on the actual victim. As is true with force, the 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.
As neither force nor duress is inherently inconsistent with consent, the premise for
defendant’s contention is absent. Because consent is neither an element of the offense
nor an affirmative defense, the trial court did not err in instructing the jury that the
victim’s consent is not a defense.
Nor is there any merit to the majority opinion’s prejudice analysis. Not the
slightest evidence of consent was introduced at trial. Both C. and R. confirmed that they

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did not consent to the lewd acts. C. never asserted that she kissed defendant or allowed
him intimate contact with her in the school parking lot or in his car due to his threats.
She claimed that defendant’s physical force overcame her resistance on both occasions.
R. did not testify that she acquiesced to the lewd conduct in the apartment. Instead, she
testified that her fear of defendant and his forceful conduct motivated her resistance and
led her to leave the apartment soon after defendant commenced the lewd acts. Defendant
did not testify at trial or introduce any evidence. His trial counsel never intimated or
suggested that either girl consented to a lewd act or that defendant’s defense was
premised on consent. Under these circumstances, there is no reasonable possibility that
the trial court’s instruction that consent is not a defense in any way “contribute[d] to the
jury’s verdict.” (People v. Lamas (2007) 42 Cal.4th 516, 526.)
Consequently, I would affirm the judgment.
____________________________
Mihara, J.

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