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Name: People v. Veale
Case #: E042561
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/15/2008

Evidence was sufficient to show duress in committing lewd act upon seven-year old stepdaughter. Veale was convicted of three counts of committing a lewd act upon a child under 14 by force, fear, or duress. On appeal, he argued that there was insufficient evidence he used force, fear, or duress in committing the offenses against his seven-year old stepdaughter. The appellate court rejected the argument. Based on the totality of evidence, (including the victim’s age and size, her relationship to defendant, and her testimony that she feared Veale and feared he would harm or kill her or her mother if she told anyone he was molesting her), there was sufficient evidence to support the finding of duress within the meaning of section 288, subdivision (b).
CALCRIM No. 1111 provides a proper instruction on the elements of section 288, subdivision (b). Veale also contended that the jury instruction on duress, CALCRIM No. 1111, was defective because it told the jury that an act is accomplished by fear if the child is actually and reasonably afraid or is unreasonably afraid and the defendant takes advantage of this. He argued that the instruction is an inaccurate statement of the law because the jury cannot find duress or fear unless there is evidence that the victim’s participation was impelled by an implied threat, i.e. that the defendant must do something to instill the fear. The appellate court rejected the argument, finding the instruction sufficient. Veale confused the definitions for fear and duress, which are two different factors by which a defendant can violate section 288, subdivision (b). If the offense is accomplished by duress, a direct or implied threat of force is required, and here the trial court properly instructed as to duress.