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Name: People v. Soto
Case #: S167531
Court: CA Supreme Court
District CalSup
Opinion Date: 01/20/2011

Consent of the victim is not a defense to aggravated lewd conduct with a child under the age of fourteen years (Pen. Code, sec. 288, subd. (b)(1)). Appellant was convicted of three counts of lewd acts on a child under fourteen years by force, violence, duress, menace, or fear, and nonforcible lewd conduct. On appeal he argued that, as to Penal Code section 288, subdivision (b)(1), the trial court erred by instructing the jury with CALCRIM No. 1111, which, in pertinent part, states, “It is not a defense that the child may have consented to the act.” Appellant reasoned that consent is relevant because evidence that the child consented rebutted a finding that the perpetrator used force, violence, etc. Resolving differing appellate court decisions, the Supreme Court rejected appellant’s position. A comprehensive review of legislative history, as well as the language of the statue, reveals that the Legislature clearly intended that consent is not a defense to lewd acts with a child under the age of 14 years. There is an inherent imbalance of power between a child of such a young age and an adult, and the child is incapable of giving consent. Consent is immaterial as a matter of law. Rather, the focus is on the defendant’s conduct, measured by an objective standard. (Disapproving People v. Cicero (1984) 157 Cal.App.3d 465 and other cases holding to the contrary.)