Metropolitan News-Enterprise


Friday, December 12, 2008


Page 3


Supreme Court to Review if Consent Defense to Lewd Conduct on Minor


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court has agreed to decide whether consent is a defense to a charge of lewd conduct on a child under 14 by means of force or duress.

Justices attending Wednesday’s conference in San Francisco voted unanimously to review the Sixth District Court of Appeal’s Sept. 9 ruling overturning a Santa Clara County man’s three convictions on the basis that the trial court deprived him of a valid defense when it instructed the jury that consent was not a defense.

Jaime Vargas Soto was convicted of violating Penal Code Sec. 288(b)(1) in 2006 after his cousin, C. Doe, alleged that he committed lewd acts on her while living with her family when she was 13-years-old, and then again after he left the home, and C. Doe’s then-11-year-old friend R. Doe made similar allegations.

Soto argued that the girls had consented to the acts, and contended on appeal that the trial court erred when it instructed the jury under CALCRIM No. 1111 that “[i]t is not a defense that the child may have consented to the act.”

By a vote of 2-1, the Sixth District agreed with Soto, and reversed and remanded for a new trial in an unpublished opinion by Justice Eugene M. Premo.

Premo noted a disagreement among authorities whether knowing consent by a minor is an affirmative defense to a lewd act accomplished by force, but wrote that a conviction based on duress necessarily implied that the victim’s will had been overcome, and that consent was therefore a defense.

Pointing to the prosecution’s failure to distinguish the basis of each charge, force or duress, and the trial court and prosecution’s implicit recognition of consent by giving the specific instruction, the justice opined that the instruction deprived Soto of a valid defense, and prejudiced him in doing so.

Presiding Justice Conrad L. Rushing joined Soto in his opinion, but Justice Nathan D. Mihara dissented on the basis that lack of consent was neither a statutory element of the offense, nor always necessary to perpetrate it.

“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,” he wrote, adding that the same held true for duress.

Mihara also took issue with the majority’s determination of prejudice, remarking:

“[S]ince 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.”

The case is People v. Soto, S167531.

In other conference action, the justices:

•Denied review of  June 26 order by the Commission on Judicial Performance removing Orange Superior Court Judge Kelly MacEachern from office for engaging in willful misconduct by claiming reimbursement for attending judicial education classes that she did not, and was not authorized to, take.

•Left standing the First District’s Sept. 18 ruling in Center For Biological Diversity, Inc. v. FPL Group, Inc., C055059, that an environmental group could not rely on the public trust doctrine to sue wind turbine operators in Northern California to prevent the alleged destruction of raptors and other birds.

•Declined to review a Sept. 8 decision by the Fourth District’s Div. One  in Dornbirer v. Kaiser Foundation Health Plan, Inc., D051408, that a medical malpractice arbitrator’s disclosure that he served in a number of prior arbitrations involving the same healthcare provider and counsel gave the claimant sufficient notice of any potential bias despite the omission of specific details.

•Left standing a Sept. 23 opinion by this district’s Div. Three in Hill v. State Farm Mutual Automobile Insurance Company, B194463, that State Farm Mutual Automobile Insurance Company had no duty under Illinois law to provide billions of dollars in dividends to 50 million policyholders from 1983-1998.

•Denied review of an Aug. 22 decision by this district’s Div. Three in Mark v. Spencer, G038314, that the failure by two plaintiffs’ attorneys to disclose their fee-splitting arrangement when they moved to approve a class action settlement precluded one from later enforcing it against the other.

•Left standing an Aug. 27 ruling by the First District in People v. Morris, A119162 that the Sixth Amendment right of confrontation does not bar admission of a certified rap sheet.

•Declined to review a Sept. 25 decision by this district’s Div. Five in Wilkinson v. Zelen, B200074, that a woman who pled no contest to criminal charges after her previous convictions arising from the same incident were reversed for ineffective assistance of counsel was barred from suing her trial attorney for malpractice.


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