California Penal Code Section 288 - Interpretation
Penal Code Section 288 provides:
"(a) Any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
"(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
Thus, to obtain a conviction under section 288, subdivision (b)(1), the prosecution must prove beyond a reasonable doubt that the accused coerced the victim in a manner set forth in the statute.
As regards section 288, subdivision (b)(1), " '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.' " (People v. Bolander (1994) 23 Cal.App.4th 155, 160-161.)
Duress, in turn, includes " 'a direct or implied threat of ... hardship or retribution sufficient to coerce a reasonable person of ordinary sensibilities to ... perform an act which otherwise would not have been performed ... .' " (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)In People v. Cicero (1984) 157 Cal. App. 3d, the Court evaluated the meaning of "force" as used in section 288, subdivision (b). Because forcible lewd acts carry greater penal consequences than nonforcible lewd acts, we indicated subdivision (b) "must . . . proscribe conduct significantly different from that proscribed by subdivision (a)." ( People v. Cicero, supra, 157 Cal. App. 3d at pp. 473-474.)
The Court concluded:
"If commission of a lewd act itself constitutes the minimum proscribed conduct under subdivision (a), then in cases where 'force' is charged under subdivision (b), . . . it is incumbent upon the People to prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (Id. at p. 474; see also People v. Neel (1993) 19 Cal. App. 4th 1784, 1787 24 Cal. Rptr. 2d 293.)
In People v. Jones (1990) 51 Cal.3d 294, the court held that to substantiate charges of abuse under section 288, the victim need merely "describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)"; "describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')"; and "describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period." (People v. Jones, supra, 51 Cal.3d at p. 316.)