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Name: People v. Tepetitla-Cruz
Case #: E046846
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/22/2010
Subsequent History: review granted 7/28/10 (S182843)

The jury was properly instructed that the defense of consent does not apply to the crime of lewd acts on a minor committed by force. Relying on People v. Cicero (1984) 157 Cal.App.3d 465, appellant argued that consent is a defense to a lewd act on a minor committed by means of force (Pen. Code, § 288, subd. (b)), and that the jury should have been so instructed. The appellate court rejected the argument, finding Cicero unpersuasive. Section 288 was enacted because the Legislature deemed persons under the age of 14 merit special protection from sexual touching, regardless of whether the victim wanted the touching. Further, if a perpetrator resorts to force or violence to commit a lewd act, in such a situation it would be illogical to say that a victim consented. But even if the instruction was wrong, the error was harmless in this case where there was no evidence the victim consented. The victim would move, leave the room, or push appellant’s hand away when he tried to molest her, and yet he would persist. It did not matter that the victim did not verbally say, “No” because there are many ways to “say no.” In fact, counsel agreed there was no evidence to support a consent defense.