Forcible Lewd Act on a Child Case in California

In People v. Espinoza (2002) 95 Cal.App.4th 1287, the Court concluded that the evidence was insufficient to establish the element of duress. In that case, the defendant was convicted of forcible lewd conduct on a child pursuant to Penal Code section 288, subdivision (b), which, like section 289, subdivision (a), requires proof that the act was accomplished by means of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Espinoza, supra, 95 Cal.App.4th at p. 1295.) The evidence was that on five occasions over a one to two-week period the defendant came into the 12-year-old victim's bedroom at night while her sisters were asleep in the other room. The defendant sat on the edge of her bed and fondled her and on the last occasion attempted to rape her before she moved to prevent him. The victim, who was the defendant's daughter, reported that she was scared. (Id. at pp. 1292-1293.) During one of the molestations defendant said: " 'Do you still love me' " and " 'Please love me.' " He may have cried. (Id. at p. 1295.) The trial court found the evidence sufficient to establish duress based upon the daughter's dependence on the defendant, the disparity in their size and age, the daughter's limited intellectual ability, and her fear of the defendant. (Id. at p. 1319.) The Court determined that because there was no evidence that defendant's lewd acts were accompanied by a direct or implied threat of any kind the evidence was not sufficient to support a conviction of section 288, subdivision (b). (Espinoza, supra, 95 Cal.App.4th at pp. 1321-1322.)