Jury instruction providing that consent of a minor was not a defense to the “force” element of lewd acts on a child under age 14 was correct. Defendant was convicted of a number of sex offenses against several minors. One issue on appeal challenged a portion of an instruction (CALCRIM No. 1111) providing it is not a defense that the child may have consented to the act. Held: Affirmed. Defendant argued that at the time he allegedly committed the offenses, consent was a defense to the force or duress element of lewd acts on a child under 14 years (Pen. Code, § 288, subd. (b)), but that this defense became unavailable when the California Supreme Court decided People v. Soto (2011) 51 Cal.4th 229. He argued this judicial enlargement of the offense cannot constitutionally be applied to him. The due process clause bars retroactive application of a judicial construction of a criminal statute that is an unforeseeable judicial enlargement of the offense. However, the Soto case was not such a judicial enlargement, but merely clarified that consent has never been a defense to a section 288, subdivision (b) offense because, as a matter of law, children under the age of 14 cannot give valid legal consent to sexual acts with adults.
The jury instruction on sexual penetration of a child incorrectly instructed the jury it was a general intent offense, but this was harmless error. With respect to the charge of sexual penetration of a child (Pen. Code, § 288.7, subd. (b)), the jury was instructed pursuant to CALCRIM No. 252 (concurrence of act and intent), that this was a general intent offense. As to the offense which was based on defendant’s penetration of the minor with his finger, the instruction was erroneous. When based on oral copulation of a child, a violation of 288.7, subdivision (b) is a general intent offense. However, when based on sexual penetration, it requires specific intent because “sexual penetration” is defined by section 289, which requires the penetration to be for the purpose of sexual arousal, gratification, or abuse. But the error was harmless beyond a reasonable doubt based on the instruction given regarding the elements of the section 288.7 offense (CALCRIM No. 1128), which covered the requisite intent and the requirement of a concurrence of act and specific intent. In any event, the evidence was not subject to dispute regarding defendant’s intent.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F073923.PDF