People v. Soto

Opinion

CORRIGAN, J.

The Legislature has made it a crime to commit a lewd or lascivious act on a child under age 14. (Pen. Code, § 288, subd. (a).) It has mandated additional penal consequences when the act is committed “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim.” (Pen. Code, § 288, subd. (b)(1).)

1

Unlike the crime of rape, there is no requirement that the lewd acts be committed “against the will of the victim.” Indeed, 20 years ago the Legislature specifically deleted language to this effect from the definition of the aggravated lewd act crime. (Stats. 1981, ch. 1064, § 1, p. 4093.)

Despite this change, and despite long-standing precedent holding that a child under age 14 is legally incapable of consenting to sexual relations, some Courts of Appeal have reasoned that consent is a defense to an aggravated lewd act charge because consent is logically inconsistent with the perpetrator’s use of force or duress. We disagree with this conclusion. We hold that the victim’s consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances.

2

Thus, it is not error to so instruct a jury. Because the lower court here reached a contrary conclusion, we reverse the judgment.

BACKGROUND

Defendant Jaime Vargas Soto committed aggravated lewd acts against two girls, his 12-year-old cousin C. and C.’s 11-year-old Mend R. C. gave two

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police officers detailed accounts of defendant’s sexual acts. Although she acknowledged making most of the statements the officers recorded, she disavowed them when testifying at defendant’s trial. At trial, C. denied that any lewd acts took place. She claimed she lied to the police because she was angry at defendant for dating one of her friends. C. was impeached with her statements to the officers. R.’s trial testimony was consistent with her account to the police, which incriminated defendant.