People v. Schenberger

Full title: THE PEOPLE, Plaintiff and Respondent, v. JON SCHENBERGER, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Jan 9, 2017

C069146 (Cal. Ct. App. Jan. 9, 2017)

Opinion

C069146

01-09-2017

THE PEOPLE, Plaintiff and Respondent, v. JON SCHENBERGER, Defendant and Appellant.

MURRAY, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F02298) OPINION ON REHEARING

Defendant Jon Schenberger appeals following his conviction on multiple counts of sex offenses against a child, including lewd and lascivious acts committed by means of duress on the victim (Pen. Code, § 288, subd. (b)(1) ¹). Defendant was sentenced to 195 years four months in prison.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

Defendant contends: (1) the trial court erroneously limited his cross-examination of his wife concerning part of e-mails he sent to her before his arrest after she testified on direct examination about another part of the same e-mails; (2) the sequence of jury instructions conferred special deference to the victim's credibility by sequencing the instruction that a sexual assault conviction may be based on the victim's testimony alone after the witness credibility instruction that explains a fact can be proved by the testimony of a single witness; and (3) the trial court violated due process by instructing the jury that victim consent does not negate duress, pursuant to People v. Soto (2011) 51 Cal.4th 229 (Soto), which postdated defendant's commission of the crimes and which he asserts was an unforeseeable expansion of criminal liability.

We affirm.²

2 On November 14, 2016, defendant petitioned for rehearing, asking us to reconsider our decision regarding the second and third issues listed above. We vacated the original opinion primarily to more fully address the third issue concerning the retroactive application of Soto, supra, 51 Cal.4th 229.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

In 2010, defendant was charged with 40 counts of molesting victim C., his biological daughter.

Count one: Lewd and lascivious act on a child under age 14, to wit 9 or 10, between December 19, 2000, and December 18, 2002 (defendant's finger on victim's vagina while applying cream; § 288, subd. (a));

Counts two through seven, nine through sixteen, eighteen through twenty-three, twenty-five through thirty-two, thirty-four through thirty-seven: 32 counts of lewd and lascivious acts upon a child under age 14, to wit 11, committed by duress, between August 7, 2003, and December 18, 2007 (hand on vagina or finger in vagina; § 288, subd. (b)(1));

Counts eight, seventeen, twenty-four, thirty-three: Four counts of aggravated sexual assault upon a child under age 14 by anal penetration, one count occurring in each of August, September, October, and November of 2003 (§§ 269, subd. (a)(5), 289, subd. (a)(1)); and

Counts thirty-eight through forty: Three counts of lewd and lascivious acts on a child between the ages of 14 and 15 between December 19, 2005, and December 18, 2007 (defendant's mouth on victim's breast, mouth on vagina, and finger in vagina; § 288, subd. (c)(1)).

The Prosecution's Case

Defendant and his wife D. had two daughters, C. and A.

When C. was about 12 years old, she had a recurrence of a medical condition that called for the application of medicinal cream to her vaginal area. Defendant applied the cream on three occasions in order, he said, to show her how to do it. On the third occasion, he placed her on the counter and showed her in a mirror how he was applying the cream. She felt awkward but did not say so. After that, she told him she could do it herself, and he stopped doing it. Thereafter, he sometimes asked her if he could do it and she told him no.

A few weeks later, defendant's family moved in with D.'s mother and her husband. D. shared a bedroom with A., while defendant shared the other bedroom with C. According to D., defendant suggested this arrangement after she hurt her back; he said it would be better if she had more space since the beds were really small.

C. testified that one night, when she was in the bedroom with defendant, he said he wanted to show her something. He started giving her a massage, during which he touched her vagina and inserted his finger in her vagina. He told her this was what an orgasm feels like. He told her not to tell her mother. C. was confused and did not understand what was happening. Defendant repeated this act almost every night for the four months the family stayed at that house. Each time, defendant started by stroking C.'s body, then massaged her vagina, then inserted his finger in her vagina about three times. He fondled her all night. About a quarter of the time, he inserted his finger in her anal opening. During these actions and afterwards, he asked her if it felt good and if she was "getting there." He said he wanted to teach her what sex felt like.

C. testified that she did not understand what her father was trying to do with her. Defendant never asked her permission. It made her feel "[u]ncomfortable, not knowing what to do." She never told him it made her uncomfortable, because she wanted to please him. When asked what she meant by that, C. testified, "I wanted to make him happy. And if he wanted to do that, then he could do it, and I wasn't going to stand in the way of that."

C. tried to avoid these incidents by going to bed two hours before everyone else. She did not want to be awake when defendant came into the room. On nights when she could not go to bed early, she would lay on her stomach to deny him "access," but he rolled her over, even when she tried to resist being rolled over. He would also slide his hands under her thighs or her stomach to access her vagina. She would pretend to be asleep as often as she could, but it did not stop defendant from touching her. She was only able to prevent defendant's touching by sleeping with her grandparents.

After defendant's family moved into their own home, C. had her own bedroom, but defendant's touching continued. Defendant tucked her in at night, and on occasion he massaged her, then massaged her vagina, then inserted his finger in her vagina or sometimes in her anus. On about 10 occasions, when she had nightmares, she went to sleep in her parents' bed. She always got into the bed on her father's side. He pulled her close and massaged her vagina. Her mother was there but seemed to be asleep.

In one incident when C. was 15 years old, defendant came into her bedroom, stroked her all over her body, kissed and sucked her breasts, and kissed her vagina. Defendant gave her no advance warning that he was going to do this to her. He said nothing about this being a teaching moment. During a walk the next day, defendant told C. he felt bad for using his mouth and was sorry. She told him it was okay. But the incident made C. feel very insecure and disconnected from her father. Their relationship had changed and had become very sexual, making her think it was even more wrong.

C. testified defendant also molested her when he took her out-of-town overnight for her to compete in soccer tournaments. He massaged her, stroked her, massaged her vagina, and put his finger in her vagina. On one occasion, he gave her sushi and two alcoholic drinks in the hotel room, had her take a bubble bath, laid her on towels on the bed, rubbed her down with oil, kissed and licked her everywhere, and massaged and touched her vagina. C. testified she was feeling "buzzed" because of the drinks defendant had given her. She was concerned because she thought defendant was going to put his penis in her vagina, but he did not do it on that occasion or at any other time. At times, he got on his knees and moved his hand around his penis.

The jury also heard C.'s testimony about subsequent, uncharged sexual conduct by defendant after the family moved to Oregon. In the last uncharged act, he touched her vagina at her grandparents' cabin in South Lake Tahoe on New Year's Eve 2009. Defendant had been drinking beer and was intoxicated. C. went to bed early. Defendant came into her room, laid down on the bed with her, and touched her vagina. C. rolled over onto her stomach because she did not want him to do that. Defendant reached underneath her and she rolled over again. Next, defendant began snoring.

In 2009, C. and a friend confided in each other about their sexual experiences. C. disclosed her father's conduct, which shocked C.'s friend. C. testified she did not think her relations with her father seemed wrong and assumed they occurred in all of her friends' households. C.'s friend threatened never to speak to C. again unless C. told her mother.

Later, while riding in a car with her mother in May 2009, C. made a partial disclosure of only one incident. She told her mother, " 'Dad gave me an orgasm.' " Her mother said that was really wrong, and she was going to talk to him. C. testified she disclosed only one incident because she felt one incident was forgivable, and she did not want her family to split up, and her mother did not ask her any questions, so C. thought she was "off the hook" by having done what her friend wanted her to do. Her father never told her that this could break up the family, but she was concerned about it and felt that "family being together is the most important thing." C. said neither parent came to talk to her later that day. She was feeling like it was her fault, that she was in the wrong. Even after that day, neither parent talked to her about her disclosure.

D. testified that her daughter had said she had been curious and asked her father what an orgasm felt like, and he gave her one through her underwear at the last soccer tournament. D. said C. was scared about how defendant would react when he found out D. knew, because C. was very agitated and kept asking D. what she was going to do.

D. testified she told defendant that night what C. had disclosed. Defendant feigned ignorance, then said he was really, really sorry, it was a mistake, and he did not know why he did it. He said it would never happen again. D. asked no questions. D. decided her daughter must have become curious about sex, and her husband exercised bad judgment. D. said she did not want to talk about it anymore, which was fine with defendant.

In January 2010, while the family was living in Oregon, C. attended a church youth group where the pastor encouraged them not to hide anything from the people they loved. C. disclosed her father's sexual offenses to a friend. The friend had her mother talk to C. and encouraged C. to see a doctor. The following week, C. went to her doctor and, with the doctor's encouragement, called Child Protective Services. A social worker and police detectives in Oregon interviewed C. With their help, she made a pretext phone call to defendant on January 29, 2010.

The recorded pretext call, played for the jury, included the following excerpts:

"[C.]: Okay. So, I was in the counseling office and, um, okay, I'm just going to be honest with you, remember when you gave me an orgasm?

"[Defendant]: Yeah.

"[C.]: In 5th grade?"

Defendant asked why she was talking about this now and calling from a blocked phone number. She said her cell phone was off, and she was using a friend's phone. He said, "[T]his is very dangerous but I thought we talked about this." C. said she told a friend, who was really upset. Defendant said he thought C. and her mother had talked about it. C. said no, she told her mother, but her mother did not tell her anything.

"[Defendant]: Oh, I'm sorry. I thought it was all resolved.

"[C.]: Okay, what did you guys talk about? Like what'd you tell her?

"[Defendant]: Um, well we talked and we decided it was -- it was bad judgment.

"[C.]: Bad judgment?

"[Defendant]: Right.

"[C.]: But

"[Defendant]: And that

"[C.]: I was in the 5th grade, dad. I was nine years old.

"[Defendant]: I know! I don't think it was that long ago, but I know, it was bad. It was wrong.

"[C.]: Okay. Then why then at New Years you try to do it again?

"[Defendant]: I didn't try again New Years, I'm sorry. That was (unintelligible) that did not -- I will never put you in a position again, okay?

"[C.]: I don't trust you.

"[Defendant]: Oh [C.], please!

"[C.]: You

"[Defendant]: I've apolo -- Um, what can I -- what can I do to

"(Simultaneous talking)

"[C.]: -- this was my vagina.

"[Defendant]: I'm sorry.

"[C.]: Like I was in 5th grade. Maybe if I was a little older -- that is not right.

"[Defendant]: I know it's not.

"[C.]: Okay. And you did it during my Soccer tournament. Like you did it almost every single Soccer tournament.

"[Defendant]: Can I come talk to you; can I come talk to you and explain this to you?"

C. insisted on continuing the phone conversation. Defendant asked if anyone was recording the call, "[b]ecause I -- I'm going to jail." She told him the call was not being recorded. He sighed and said, "I screwed up," and "I screwed up big time." She asked him why he did it. He replied, "I thought I was helping you understand." She asked, "Helping me understand what?" He replied, "Your, yourself, your sexuality."

He denied that anything happened on New Year's Eve. She insisted it did. He said he was sorry she "misunderstood New Years" and swore he would never do it again. She berated him and he apologized.

"[C.]: Yeah, okay. Rubbing me down with oil and like licking me, and

"[Defendant]: I thought -- I screwed up.

"[C.]: What'd you tell mom? Did you just tell her it happened once?

"[Defendant]: I didn't tell her anything. She -- she -- all I know is what you told her. She did not want me to talk about it.

"[C.]: Why didn't she want you to talk about it?

"[Defendant]: Cause she was very upset and told me as long as I promised to never do it again, that she wouldn't kick me out of the house, and wouldn't send me to jail.

"[C.]: And she was okay with that?

"[Defendant]: No, she's not okay with it.

"[C.]: I'm still really upset, and I still don't believe you. Why did you -- why did you try in the first place?

"[Defendant]: Because guys are stupid, that's why.

"[C.]: Guys are stupid, that's all you can come up with?

"[Defendant]: What do you want me to say, [C.]? It -- it was very, stupid, dumb thing for me to do.

"[C.]: Ugh!

"[Defendant]: [C.], look, we can talk about the past, but I need to talk about the future right now, kay? Tellin somebody else is just like completely doubled the chances of me going to jail. Maybe I should. Maybe that would be the best thing. I mean, I'd just write my life off for the rest of my life and it'd be done with. But, that's gonna happen if you keep tellin people. As a matter of fact it's probably gonna happen now anyway. Because your friend's gonna tell her mom and her mom is gonna tell somebody, and I'm toast. So I'm gonna pack

"[C.]: You just get what you deserve.

"[Defendant]: You're right, I do. But mom

"[C.]: Because it was like end of 5th grade, then went from 6th grade, 7th grade, 8th grade, like through high school. Ugh, you look like

"[Defendant]: I -- I'm sorry, kiddo.

"[C.]: -- sucking my boobs, um, rubbing me down, like that's just so wrong. I did not know it was wrong. (Sighs) I thought this was right.

"[Defendant]: Sorry kiddo.

"[C.]: I thought like my friends were going through the same thing I was.

"[Defendant]: No! We talked about that. I told you I was wrong a long time ago.

"[C.]: No you did not.

"[Defendant]: I told you -- I told ya I was wrong a long time ago.

"[C.]: When? When did you tell me?

"[Defendant]: When we were walkin down the, um, horse pasture, with the Alpacas, long -- you know I need to -- I need to stop doing this.

"(Simultaneous talking)

"[C.]: -- me because that was the first time you did it.

"[Defendant]: Yes. Yeah, exactly. When I said I should not do that anymore.

"[C.]: And you did.

"[Defendant]: (Sighs) I made a mistake. I am wrong."

Defendant kept apologizing and said, "I wished we would have talked about it sooner cause I know it's been bothering you, and I -- but I wish we could talk about it in person." He said, "It's all my fault. If you -- if you want me to go to jail, I will go to jail." Defendant said, "I loved you too much and I went too far with you."

"[C.]: I'm still not getting why. Like you're not explaining it to me. Like oh, I was confused, I was lost, I did it because I was -- that -- that's not anything to me.

"[Defendant]: I -- I confused my love of you, with sexuality and that's wrong.

"[C.]: You did it almost every month in California. Ever since I was like 10 years old.

"[Defendant]: It -- I remember starting, and I apologized and that didn't happen that often. And you're right and I was wrong. (Sigh) I shouldn't have done it. I don't know what to say."

Defendant asked C. to promise she would not tell anyone else, but she refused. Defendant said, "Just think about your mother before you make another comment, please. I'm thinking of your mother right now."

After learning the police had recorded the phone call, defendant agreed to a voluntary interview with police in Oregon, with his wife present. In the recorded interview, which was played for the jury, defendant said that during the months they lived with his mother-in-law, he petted C.'s bare vagina with his hand, once or twice in the house and at least twice at soccer tournaments, which took place once every few months. After they moved into their own home, he touched her vagina with his hand two or three times. He said he had oral sex with her once when she was 16 and once when she was 17. Defendant said, "I was not doing anything for myself. This was all educational for her, in my mind, as deluded as it may be." He said his actions were for her sexual pleasure, not his.

The detective told defendant he had to move out of the house. He collected his belongings and left, later moving back to California. He was arrested in Fremont on May 5, 2010. While being handcuffed for transport, defendant asked why they arrested him rather than asking him to turn himself in. The arresting officer said they could not take the chance he might run. Defendant replied, "[I]t wouldn't do any good to run, I checked."

D. testified that, after defendant moved out of the home, he sent her approximately four e-mails in April 2010, asking her to send him his passport. She planned to do so but never did, because her divorce attorney told her it might not be a good idea.

The Defense Case

Defendant did not testify.

Defendant's sister testified she considered defendant an honest man; she never noticed any problems between C. and defendant; and she had no qualms about letting her own 16-year-old daughter spend time with defendant and his family.

Defendant's former co-worker, Thomas Nicholas, testified that, when he spent time with defendant's family, he never noticed C. appearing to be uncomfortable. Nicholas said he had a positive opinion about defendant and believed defendant to be honest.

Daniel Mattsson-Boze, who was defendant's employer at the time of the arrest, testified defendant's work was professional and, around the time of defendant's arrest, they planned to send him on a business trip to Korea. They had been talking about it for a couple of months but had not finalized the date.

The Verdicts and Sentencing

The jury returned verdicts finding defendant guilty on all 32 counts of lewd and lascivious acts committed by duress (§ 288, subd. (b)(1)), and guilty on all three counts of lewd and lascivious acts on a child between ages 14 and 15 (§ 288, subd. (c)(1)). The jury acquitted defendant on all four counts of aggravated sexual assault by anal penetration (§§ 269, subd. (a)(5); 289, subd. (a)(1)), but found him guilty on the lesser-included offenses of misdemeanor battery (§ 242). The jury was unable to reach a verdict on the sole count of lewd and lascivious act without force or duress (count one), and that count was dismissed in the interests of justice.

The trial court sentenced defendant to a total aggregate term of 195 years four months in prison.

DISCUSSION

I. Preclusion of Cross-examination - Evidence Code section 356

A. Defendant's Contention

Defendant argues the trial court erred in preventing him from eliciting on cross-examination of his wife that, when he asked his wife for his passport in e-mail communications, he told her he needed it for a business trip. Defendant contends the trial court erred in rejecting his argument that the evidence was admissible under Evidence Code section 356.³ We conclude the trial court erred, but the error was harmless.

3 Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."

B. Background

Defendant's wife testified on direct examination that, after defendant moved away from the family and before his arrest, he communicated with her several times by phone, text messages, e-mail, and in person. In his first e-mail and in a few subsequent e-mails, he asked her for his passport. After consulting her divorce attorney, she declined to give it to him.

On cross-examination, defense counsel asked, "Did [defendant] explain to you that he needed the passport for work?" The trial court sustained the prosecutor's hearsay objection. The court also sustained hearsay objections to defense counsel's questions asking whether defendant gave an explanation for wanting his passport. In a sidebar conference, which was later placed on the record, defense counsel argued that he was asking for the context of defendant's communication and that the evidence was admissible under the rule of completeness (Evid. Code, § 356) to explain defendant's request for the passport. The trial court explained its ruling, acknowledging that it had not researched the matter. "I don't think that Evidence Code Section 356, to wit, the rule of completeness, is an exception to the hearsay rule. Because if it were, it would seem that the exception would consume the rule. And under a theory of completeness, allow virtually the entire content of every conversation to come in, notwithstanding the hearsay rule."

C. Analysis

We review the trial court's evidentiary ruling under the abuse of discretion standard. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.) "[W]hen a trial court's decision rests on an error of law, that decision is an abuse of discretion." (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.)

The trial court was incorrect in its view that hearsay is a valid objection to admission of the evidence defendant sought to introduce here. Evidence Code section 356 contains California's rule of completeness. It is well-settled that " ' "[i]n the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence and are not excluded by a rule of law other than the hearsay rule." ' " (People v. Williams (1975) 13 Cal.3d 559, 565.) The purpose of the statute is to prevent the use of selected aspects of an act, declaration, conversation, or writing, so as to create a misleading impression on the subject addressed. (People v. Clark (2016) 63 Cal.4th 522, 599-600; People v. Arias (1996) 13 Cal.4th 92, 156.) In other words, "[t]he rule of completeness exists to prevent such a misuse of evidence." (People v. Vines (2011) 51 Cal.4th 830, 861.) Our high court has "taken a broad approach to the admissibility of the remainder of a conversation under Evidence Code section 356." (Clark, at p. 600.) The remainder of the conversation need only have " ' " ' "some bearing upon, or connection with, the admission or declaration in evidence." ' " ' " (Clark, at p. 600, quoting People v. Harris (2005) 37 Cal.4th 310, 334-335.) Even self-serving hearsay is admissible in order to avoid the misleading impression. (Arias, at p. 156.) "[T]he jury is entitled to know the context in which the statements on direct examination were made." (Harris, at p. 335.)

The wife's testimony that defendant wanted his passport, together with the arresting officer's testimony that defendant said he checked on the possibility of avoiding arrest, created the impression that defendant intended to flee the country, which was relevant to consciousness of guilt. The prosecutor in closing argument urged the jury to adopt that impression and apply the jury instruction on flight as evidence of consciousness of guilt.

Nevertheless, the error in this case was harmless. Error in ruling on the admissibility of evidence under Evidence Code section 356 does not call for reversal of a judgment unless defendant can show it is reasonably probable a more favorable result would have been obtained absent the error. (People v. Riccardi (2012) 54 Cal.4th 758, 803-804 [applying People v. Watson (1956) 46 Cal.2d 818 (Watson) in the context of allowing the prosecution to introduce more of a conversation than should have been admitted under Evid. Code, § 356], disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956.)

Here there was no prejudice because the evidence against defendant, including C.'s testimony and defendant's own admissions during the pretext call, to his wife and to the police in front of his wife, was overwhelming.

Moreover, the jury heard evidence that served to explain why defendant needed his passport. His employer testified that he was planning to send defendant on a business trip to Korea. Defendant argues the employer's testimony was not good enough. According to defendant, "there was still a missing link in the evidence," because defendant's own statement that he needed the passport for work was precluded and the employer's testimony was "in its function, only corroborative, but it had nothing to corroborate." In our view, the employer's testimony was sufficient in and of itself, did not need corroboration, and came from a better source than defendant's own self-serving comment to his wife.

Defendant also argues, without any supporting evidence whatsoever, that he may have been joking when he told the police he had checked about avoiding arrest, "an off-key jest under stressful circumstances." Defendant views his comment about avoiding arrest as weak evidence of flight, because he could have fled without a passport but did not do so. While it is true defendant could have fled to some other part of the country without his passport, this does not detract from the fact that he admitted he had checked on the viability of fleeing. And if he thought about fleeing and went so far as to check on whether he could successfully elude the law, that activity is evidence of his consciousness of guilt. Moreover, even if the jury disregarded the employer's testimony about the business trip or did not connect that testimony to defendant's request for the passport, it is not reasonably probable that the jurors would have reached a different result had they heard that defendant told his wife he needed the passport for a business trip. As we have noted, evidence of defendant's guilt was overwhelming, including his own admissions in the pretext phone call and in the police interview.

We conclude defendant was not prejudiced by the trial court's erroneous ruling on Evidence Code section 356.

Defendant argues the cumulative effect of this error with other errors produced prejudice. However, there were no other errors, as we next discuss.

II. Sequence of Sexual Assault Victim Testimony

and Single Witness Jury Instructions

A. Defendant's Contention

Defendant contends the trial court's placement of CALCRIM No. 1190 (sexual assault victim's testimony needs no corroboration) among the credibility instructions, and immediately after CALCRIM No. 301 (testimony of only one witness can prove a fact) created a substantial likelihood that the jury would misinterpret CALCRIM No. 1190 as a credibility instruction requiring the jury to give special deference to the victim's credibility. We disagree.

B. Background

The trial court instructed the jury on evaluating witness testimony, union of act and intent, and that neither side is required to call all witnesses.

The trial court then instructed the jury with CALCRIM No. 301 that "[t]he testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."

Immediately thereafter, the court instructed with CALCRIM No. 1190, that "[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone."

The court then instructed the jury on evaluating conflicting evidence.

C. Analysis

Defendant acknowledges he did not complain in the trial court about the sequencing of the instructions. He merely objected to the giving of CALCRIM No. 1190 at all, on the ground it was duplicative. The trial court ruled it was not duplicative, and on appeal defendant acknowledges the trial court was correct on this point. (People v. Gammage (1992) 2 Cal.4th 693 (Gammage) [CALJIC versions of the instructions were not duplicative].)

Defendant's argument on appeal is that the sequencing of the instructions created an ambiguity. An argument that a correct instruction created an ambiguity is forfeited if not raised in the trial court. (People v. Mejia (2012) 211 Cal.App.4th 586, 636.) Accordingly, we conclude that the argument was forfeited.⁴ However, to forestall a claim of ineffective assistance of counsel, we will address the argument on the merits.

4 We reject defendant's request for review under section 1259. That section provides in pertinent part: "The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." That provision authorizes the review of instructions, but does not expressly authorize review of the order in which proper instructions are delivered to the jury when there is no objection in the trial court. We think the reason for this is self-evident. The order in which otherwise proper instructions are given does not implicate a substantial right.

Generally, the order in which jury instructions are given is immaterial and is left to the sound discretion of the trial court, and that discretion is not deemed abused absent a strong showing of prejudice. (People v. Visciotti (1992) 2 Cal.4th 1, 61; People v. Carrasco (1981) 118 Cal.App.3d 936, 942.) However, instructional error may be found if the jury instructions create an ambiguity whereby an otherwise-correct instruction is substantially likely to be misunderstood and misapplied by the jurors. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399] (McGuire); People v. Clair (1992) 2 Cal.4th 629, 663 (Clair).)

Defendant relies on Gammage, in which the court said, "Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 [single witness suffices] focuses on how the jury should evaluate a fact . . . proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60 [sexual assault victim], on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes." (Gammage, supra, 2 Cal.4th at pp. 700-701.)

Defendant argues that Gammage stands for the proposition that failure to separate the instructions is error, and that giving CALCRIM No. 1190 with credibility instructions contravenes the rule that it is improper for the court to single out a particular witness and instruct the jury how that witness's evidence should be considered. (People v. Wright (1988) 45 Cal.3d 1126, 1135, fn. 6.) Defendant argues the sequencing of the instructions created an ambiguity whereby an otherwise correct instruction was substantially likely to be misunderstood as requiring special deference to C.'s testimony, thereby constituting instructional error.

However, Gammage did not address the issue defendant raises here, nor did it hold that the sequencing was critical. Cases are not authority for propositions not therein considered. (People v. Barragan (2004) 32 Cal.4th 236, 243.)

Instead, Gammage rejected the defendant's argument "that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. . . . The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Gammage, supra, 2 Cal.4th at p. 701.)

Moreover, modern courts provide written copies of the jury instructions to the jury, as the trial court did here. (§ 1093, subd. (f) [the court may, at its discretion, provide the jury with a copy of the written instructions given]; § 1137 [jury may take copies of the jury instructions into deliberations].) During deliberations, the jury is free to disassemble the instruction packet and sequence the instructions in any order they desire. Given the jury's ability to consider the instructions in any order they deem appropriate to their deliberations, the order in which the trial court reads the instructions to the jury takes on far less significance than defendant espouses here.

We conclude there was no instructional error. But even assuming error, there was no prejudice warranting reversal.

Defendant argues this was constitutional error requiring reversal unless lack of prejudice is shown beyond a reasonable doubt, because the error somehow deprived him of a meaningful opportunity to present his partial defense that he committed many fewer acts than claimed by C. (Crane v. Kentucky (1986) 476 U.S. 683, 689-690 [90 L.Ed.2d 636, 644-645] [constitutional right to present a defense]; Chapman v. California (1967) 386 U.S. 18, 22-23 [17 L.Ed.2d 705, 709-710] (Chapman).) Defendant argues the placement of CALCRIM No. 1190 "so obscured the playing field, as it were, that [defendant] was effectively denied this meaningful opportunity." We disagree. The placement of the instruction did not interfere with defendant's opportunity to present a defense.

We apply the Watson standard of prejudice, asking whether defendant has established it is reasonably probable that he would have obtained a more favorable outcome had the trial court separated the two instructions,⁵ but even if we were to apply Chapman, we would still conclude that any error was harmless.

5 To establish a claim of ineffective assistance of counsel, a defendant must show prejudice. Prejudice in that context is the same standard applied in Watson. To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Harrington v. Richter (2011) 562 U.S. 86, 104 [178 L.Ed.2d 624, 642].) To show prejudice, a defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland v. Washington (1984) 466 U.S. 668, 691-694 [80 L.Ed.2d 674, 696-698]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

As we have noted, the prosecution's case was strong and included defendant's own very damaging statements. The victim testified in detail about the molestations, and her testimony was corroborated by defendant's numerous admissions during the pretext call and in his interview with the police. That he admitted to fewer molestations than those alleged does not weaken the prosecution's case. We think it obvious he would try to minimize his bad behavior, especially when he discussed that behavior with the police in the presence of his wife.

Defendant admits the prosecution case was strong, but he argues it was not strong enough for 40 counts. He fails to prove his point. Defendant notes his defense was that he molested his daughter only six times, whereas she claimed it was 40 times. He says he thus partially corroborated her testimony, which, combined with the "illegitimate boost to her credibility from the misapplication of CALCRIM No. 1190 rendered it unduly difficult for [defendant]'s credibility to be assessed accurately, and - need it be said? - the difference between a conviction on 40 serious felony counts and 6 is substantial."

However, it seems clear the jury did not defer to the victim's testimony, because the jury acquitted defendant on four counts of aggravated sexual assault for the alleged anal penetrations. Defendant claims the acquittals were due to the fact that the victim's account of anal penetrations was unreliable. But that is exactly the point; the jury did not defer to the victim.

Defendant argues the victim's testimony was suspect because, by her trial account, there would have been hundreds of molestations at home, yet she stated in earlier interviews that the molestations occurred mainly during overnight soccer tournaments. Defendant argues the victim had a motive to exaggerate the number of molestations because she wanted to see defendant punished and, despite her trial testimony that she did not want to hurt him, she told an interviewer that she did want to hurt him and wanted him to feel bad for what he did to her. However, defendant was not charged with hundreds of counts of molestation, only 40.

Defendant says there were "problems" with the victim's testimony about getting into bed with her father and mother, in that the mother had no memory of it. However, the victim testified her mother appeared to be sleeping. We perceive no problem with the testimony.

Defendant asserts the evidence showed restraint on his part, in that he did not threaten violent injury or apply rough coercion; he never inserted his penis in her; and even the victim admitted the molestations tapered off over time. He notes he apologized. Insofar as defendant suggests that any of this weakened the prosecution's case, we simply do not see it that way. Also, that some people in defendant's circle considered him honest did nothing to undercut the strength of the prosecution's case.

Defendant argues the sequencing of CALCRIM No. 1190 was a "significant thumb on the scale for the prosecution." We reach the only reasonable conclusion: it was not.

Any instructional error in sequencing of CALCRIM No. 301 and CALCRIM No. 1190 was harmless.

III. Instruction About Consent and Duress

A. Background and Defendant's Contentions

For the 32 counts of lewd and lascivious acts by force, violence, duress, menace or fear (§ 288, subd. (b)(1)), the prosecution's theory was limited to duress. As set forth in CALCRIM No. 1111, the trial court instructed, "Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and her relationship to the defendant. [¶] It is not a defense that the child may have consented to the act." (Italics added.)

The last sentence was in accordance with Soto, which was published after defendant committed his offenses but before his trial. The Soto court, settling a conflict between Court of Appeal decisions, held that consent does not negate duress in section 288, subdivision (b)(1), offenses. (Soto, supra, 51 Cal.4th at pp. 241-248.)

Defendant argues Soto's holding was an unforeseeable expansion of criminal liability, and its application to offenses committed before the 2011 publication of Soto constitutes a violation of due process. We disagree.

B. Retroactivity of Judicial Construction of Penal Statutes

Judicial opinions have retroactive effect on pending cases. (People v. Hedgecock (1990) 51 Cal.3d 395, 409-410; People v. Guerra (1984) 37 Cal.3d 385, 399.) An exception exists where due process would be offended by retroactive application of a judicial opinion that is an "unforeseeable judicial enlargement of a criminal statute." (Bouie v. City of Columbia (1964) 378 U.S. 347, 353-354 [12 L.Ed.2d 894, 899-900] (Bouie); People v. Crew (2003) 31 Cal.4th 822, 853.) The holding in Bouie is grounded on the unfairness that results from lack of notice that one's conduct is criminal. As the Bouie court explained, "When a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." (Bouie, at pp. 354-355, italics added.)

In Bouie, a South Carolina statute prohibited entry on lands of another after being given notice not to enter. The South Carolina Supreme Court in 1961 construed the statute as also prohibiting the act of remaining on premises after being asked to leave, and the court applied that judicial construction to affirm convictions of African-American persons who in 1960 refused to leave a drugstore luncheonette booth after being asked to leave. (Bouie, supra, 378 U.S. at pp. 348, 353-356.) The United States Supreme Court held the state court opinion was an unforeseeable expansion of the statute's precise language.

"Not all judicial interpretations of statutes having a retroactive effect are prohibited, however." (People v. Wharton (1991) 53 Cal.3d 522, 586 (Wharton).) Rather, only retroactive application of an " 'unexpected' or 'unforeseeable judicial enlargement of a criminal statute' " violates due process. (Ibid.)

For example, in People v. Rathert (2000) 24 Cal.4th 200 (Rathert), the defendant was convicted of burglary for entry into a market with the intent to commit false personation (§ 529), by attempting to cash another person's bad check and presenting that person's driver's license. The trial court did not instruct that the statute required an intent to subject the impersonated individual to liability for suit or prosecution, or to secure a benefit for any person. (Rathert, at pp. 202-203.) The Court of Appeal reversed the judgment, holding the statute required such specific intent. (Id. at p. 202.) In concluding that such specific intent was required, the Court of Appeal relied upon People v. Robertson (1990) 223 Cal.App.3d 1277. But Robertson relied upon People v. Vaughn (1961) 196 Cal.App.2d 622 in so concluding. Vaughn, as the Rathert court noted, was of doubtful authority for the proposition that false personation is a specific intent crime. (Rathert, at pp. 206-207.) Vaughn was a false personation case that was prosecuted on an aiding and abetting theory. As the Rathert court noted, when the theory of liability is aiding and abetting, the prosecution is required to prove that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (Rathert, at p. 207.) The Rathert court concluded that Vaughn had no application to a false personation prosecution where the defendant is alleged to have been the actual perpetrator, and thus the Robertson court erroneously read Vaughn's description of the specific intent required for aider and abettor liability into the definition of the crime of false personation. (Rathert, at p. 207.) Accordingly, the Rathert court held that the statute required no such specific intent. (Ibid.) In addressing the question of whether the Rathert court's interpretation of the statute was an unforeseeable enlargement of a criminal statute, our high court found no such due process violation. (Id. at p. 209.) The Rathert court wrote, "That one appellate decision [citation] erroneously conflated another's [citation] description of the mens rea of an aider and abettor of false personation with the elements of the crime itself did not generate such a firmly established rule as to erect a constitutional bar to [the Supreme Court] applying the present decision to this defendant." (Id. at p. 210, italics added.)

C. Soto

To properly address defendant's due process contentions, a review of Soto is required. In Soto, the case was not prosecuted on a particular section 288, subdivision (b)(1), theory; rather the prosecutor argued any of the theories -- force, violence, duress, menace or fear -- would suffice and further argued that consent is not a defense. (Soto, supra, 51 Cal.4th at p. 236.) The defense was not consent. Rather, the defense argued that both victims were lying and that defendant did not victimize them in any way. (Ibid.) The jury was instructed that consent is not a defense. (Ibid.) Our high court in Soto held that the victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances listed in section 288, subdivision (b)(1), and thus, it is not error to so instruct the jury. (Soto, at p. 233.)

The Soto court first observed that there is no language in section 288 requiring that a lewd and lascivious act be committed against the child's will. (Soto, supra, 51 Cal.4th at p. 237.) Thereafter, the court examined the statutory history of section 288. Of particular import were the 1979 and 1981 legislative changes made to section 288. The Soto court observed that, as amended in 1979, section 288, subdivision (b), included the requirement that the acts be " 'against the will of the victim.' " (Soto, at p. 238.) In 1981, the Legislature eliminated that language. (Id. at pp. 238-241.)

The court in Soto disapproved this court's divided decision in People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero). In Cicero, the defendant was charged with violations of section 288, subdivision (b)(1), and prosecuted under a force theory. (Id. at pp. 469, 471.) On appeal, the Cicero majority analyzed the 1981 change and concluded that the Legislature did not intend to eliminate proof that the lewd act was undertaken against the victim's will. (Id. at p. 478.) The Cicero majority looked to the duress, menace and threat of bodily harm theories in section 288, subdivision (b), and reasoned that the Legislature could not have intended to eliminate the requirement that the lewd act be committed against the minor's will because those theories connoted "psychological coercion to get someone else to do something they don't want to do, i.e., something against their will." (Cicero, at p. 477.) The Cicero majority went on to hold that, where a forcible lewd act causes no physical harm to the child, the prosecution must prove (1) that the defendant used physical force substantially different from or in excess of that required for the lewd act, and (2) that the lewd act was accomplished against the will of the victim. (Id. at p. 484.) The Soto court explained that Cicero was wrong on the second point. (Soto, supra, 51 Cal.4th at p. 248.)

The Soto court rejected what it termed dictum in Cicero related to the theory of duress. (Soto, supra, 51 Cal.4th at p. 247.) The court in Soto also criticized the Cicero majority's legislative history review and the majority's "startling inference" that the Legislature in its 1981 amendment did not intend to eliminate lack of consent from section 288, subdivision (b)(1), cases prosecuted on duress, menace, and threat theories. (Soto, at pp. 243, 247.) Noting that the Cicero majority had remarked that "the terms 'duress,' 'menace,' and 'threat' 'are ordinarily used to demonstrate that someone has used some form of psychological coercion to get someone else to do something they don't want to do, i.e., something against their will,' " the Soto court reasoned that this observation is only accurate if lack of consent must be proven. (Soto, at p. 243.) But the legislative history from the 1981 amendment, according to the Soto court, "clearly shows that the Legislature deleted the phrase in order to eliminate consent as a defense to the aggravated lewd act crime." (Id. at p. 244.) "By intentionally removing the phrase 'against the will of the victim,' the Legislature kept the focus on the conduct of the assailant" and "effectively removed the concept of consent from child molestation cases." (Id. at p. 245.)

Our high court in Soto also noted that "[a] perpetrator may use duress, menace, or threats against a victim even if this conduct does not ultimately influence the victim's state of mind." (Soto, supra, 51 Cal.4th at p. 243.) It is the aggravating behavior that aggravates the crime. Agreeing with the dissenting justice in the Court of Appeal opinion in Soto, our high court added: "[A] 'child victim's actual consent does not eliminate the fact that the perpetrator utilizes duress in the commission of the lewd act, and does not reduce the perpetrator's culpability or eliminate the penal consequences that attach due to the perpetrator's conduct.' " (Id. at p. 245, italics added.) The Soto court went on to emphasize that the "legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim." (Id. at p. 246.)

Thus, as can be seen, the Soto court rendered two major holdings regarding prosecutions under section 288, subdivision (b), aggravated lewd acts on a child under 14, based on the theory of duress. First, consent is not a defense. Second, while the statute punishes defendants who use duress, there is no requirement to prove the victim was coerced or complied because of that duress. Only the first holding is implicated here by defendant's due process claim. As we explain post, the second holding is not.

D. Foreseeability of the Holding in Soto

The Supreme Court began its Soto opinion: "The Legislature has made it a crime to commit a lewd or lascivious act on a child under age 14. [Citation.] It has mandated additional penal consequences when the act is committed 'by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim.' [Citation.] [Fn. omitted.] Unlike the crime of rape, there is no requirement that the lewd acts be committed 'against the will of the victim.' Indeed, 20 years ago the Legislature specifically deleted language to this effect from the definition of the aggravated lewd act crime. [Citation.] [¶] Despite this change, and despite long-standing precedent holding that a child under age 14 is legally incapable of consenting to sexual relations, some Courts of Appeal have reasoned that consent is a defense to an aggravated lewd act charge because consent is logically inconsistent with the perpetrator's use of force or duress. We disagree with this conclusion. We hold that the victim's consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances. [Fn. omitted.] Thus, it is not error to so instruct a jury." (Soto, supra, 51 Cal.4th at p. 233.)

Near the end of the Soto opinion, our Supreme Court stated: "For over 100 years, California law has consistently provided that children under age 14 cannot give valid legal consent to sexual acts with adults. [Citation.] The Legislature has drafted the child molestation laws to make issues regarding the child victim's consent immaterial as a matter of law in these cases." (Soto, supra, 51 Cal.4th at p. 238.) The court added: "The approach we endorse today is venerable. California law has long recognized that consent is not a defense when the victim of a sex crime is a child under age 14. Many early decisions under the rape statute [citation] held that a minor could not legally consent to intercourse. [Citations.] This incapacity was conclusively presumed notwithstanding any 'actual consent' the child may have conveyed. [Citation.] . . . 'Here the law implies incapacity to give consent, and this implication is conclusive.' " (Id. at pp. 247-248.) Given these observations, it cannot be said that the Soto court's holding on consent was " 'unexpected' " or " 'unforeseeable.' " (See Wharton, supra, 53 Cal.3d at p. 586.)

Defendant relies heavily on Justice Werdegar's dissenting and concurring opinion in Soto. In fact, he quotes it verbatim, consuming over three pages of his opening brief. Justice Werdegar dissented "from most of the majority's conclusions and analysis" because she reasoned that instructing the jury that consent is not a defense is confusing, not because consent is a defense. (Soto, supra, 51 Cal.4th at pp. 249, 252 (conc. & dis. opn. of Werdegar, J.).) Indeed, she agreed that consent is not a defense. (Id. at p. 252 (conc. & dis. opn. of Werdegar, J.).) Justice Werdegar wrote, "While consent is not an affirmative defense to charges under section 288(b)(1), evidence of consent tends to negate the statutory element that the lewd act be committed by use of duress, menace or fear. An instruction that consent is not a defense might lead a reasonable juror to improperly disregard any evidence of freely given consent put forward by the defense, rather than considering that evidence, in deciding whether the prosecution has met its burden to prove the child's compliance was in fact produced by duress, menace or fear of bodily injury."⁶ (Soto, at p. 252 (conc. & dis. opn. of Werdegar, J.), italics added.) Thus, Justice Werdegar's opinion also supports the conclusion that Soto was foreseeable on the question of whether consent is a defense.

6 The Soto majority noted that Justice Werdegar's opinion was in accord with the majority's holding that consent is not a defense to any form of section 288, subdivision (b)(1). Rather, the "disagreement appears to center on the narrow question whether it is confusing or misleading to instruct the jury that a child's consent is not a defense to the aggravated lewd act crime." (Soto, supra, 51 Cal.4th at p. 233, fn. 2.)

In addition to the pedigree of the concept that children are legally incapable of consenting, the existence of conflicting decisional authorities on the issue of consent also negates defendant's assertion of unforeseeability.⁷ The Soto court specifically noted these conflicting authorities. (Soto, supra, 51 Cal.4th at p. 244 [noting that "Cicero's discussion of victim consent has generated disagreement"].) One such case cited by the court in Soto is People v. Cardenas (1994) 21 Cal.App.4th 927 (Cardenas).

7 Defendant impliedly recognizes this concept when he criticized the analysis in the respondent's brief on his Bouie claim. Defendant wrote: "Respondent would have spent his [sic] time more fruitfully adducing some evidence that between 1981 and 2011 there was some sort of dissent from the common understanding of [duress]."

In Cardenas, the defendant was prosecuted on both force and duress theories of section 288, subdivision (b). (Cardenas, supra, 21 Cal.App.4th at p. 937.) The defendant in Cardenas held himself out to be a " 'curandero,' " or faith healer. (Id. at p. 929.) One of his victims was 13. (Id. at p. 934.) Defendant contended on appeal, that, at most, he obtained consent of the victim by means of fraud for the sex acts committed during his purported healing sessions. (Id. at p. 937.) At the beginning of its discussion under the heading, "The Issue of Force, Duress, etc.," the Cardenas court noted in a footnote: "We note at the outset that appellant incorrectly focuses upon the concept of fraudulently obtained consent on the counts relating to [the child victim]. At the time of the offenses, [she] was 13 years of age. Consent, or a reasonable good faith belief in the age of a child to give consent, is not a defense to crimes charged under section 288. (People v. Olsen (1984) 36 Cal.3d 638, 647-648 [205 Cal.Rptr. 492, 685 P.2d 52] [(Olsen)].)⁸ Therefore, consent is not an issue whether it be fraudulently obtained or freely given. The only issue is whether the actions of appellant relating to [the 13-year-old] fell within the terms of section 288 , subdivision (b)." (Cardenas, at p. 937, fn. 7, italics added.) The offenses against the 13-year-old victim in Cardenas were committed between April 1, 1990, and August 31, 1990, well after Cicero. (Cardenas, at p. 934.) It was the Cardenas footnote the Soto court cited when listing Cardenas as a case in disagreement with Cicero. (Soto, supra, 51 Cal.4th at pp. 244-245.)

8 In Olsen, supra, 36 Cal.3d 638, the California Supreme Court held that a reasonable mistake as to the victim's age is not a defense to lewd or lascivious conduct with a child under the age of 14 years under section 288, subdivision (a). (Olsen, at p. 647.)

The Soto court also cited People v. Quinones (1988) 202 Cal.App.3d 1154, 1158, a case that agreed with Cicero only on the theory of duress. In Quinones, the prosecution advanced a force theory, but not a duress theory. (Soto, supra, 51 Cal.4th at p. 247.) In dicta, the Quinones court agreed with the Cicero dicta on duress.⁹ (Quinones, at p. 1158.) The Quinones court wrote, "Although we agree with the Cicero majority that a conviction based on 'duress,' 'menace,' or 'threat of great bodily harm' necessarily implies that the 'will of the victim' has been overcome (Cicero, supra, at pp. 477-478), the same cannot be said of a conviction based on the use of force." (Quinones, at p. 1158.)

9 During oral argument, counsel for defendant contended that all of the conflicting cases concerning consent involved the force theory in section 288, subdivision (b)(1), not duress. As for duress, counsel represented, "there was no debate" and listed Cicero, Quinones, and People v. Pitmon (1985) 170 Cal.App.3d 38, 50 (Pitmon), which we discuss, post. Counsel did not mention Cardenas. Defendant reprised this argument in his petition for rehearing. And again, defendant did not mention Cardenas.

Also pertinent to our review of defendant's Bouie claim and his claim that Soto represents an unforeseeable enlargement of criminal liability is the Soto court's observation that no previous court had actually held that consent is a defense to a duress-theory prosecution under section 288, subdivision (b)(1). Specifically, the Soto court wrote: "no decision has actually held that consent is a defense when it is alleged that lewd acts were accomplished by duress. As noted, the issue of duress was not presented in Cicero; therefore, the majority's discussion of it was dictum. Although other decisions have repeated Cicero's dictum, none has directly ruled that a child victim's consent negates a finding of duress under section 288(b)(1). For example, as in Cicero, the issue in People v. Quinones, supra, 202 Cal.App.3d 1154 was force, not duress. The [Quinones] court stated in dicta that it agreed with Cicero's observations on duress but disagreed with Cicero's extension of this reasoning to lewd acts committed by force. (Quinones, at p. 1158.) While duress was at issue in Pitmon, consent was not." (Soto, supra, 51 Cal.4th at p. 247.) No argument was made in Pitmon that the sex acts were consensual. (Soto, at p. 247.)

Given that no court had ever held that consent is a defense to a duress prosecution under section 288, subdivision (b), Soto cannot be said to be an "unforeseeable judicial enlargement of a criminal statute." Quite the contrary, as we noted, California law has consistently provided that children under age 14 cannot give valid legal consent to sexual acts with adults. (Soto, supra, 51 Cal.4th at p. 247.) Moreover, it seems well settled that due process concerns of fair warning do not arise " ' "where the language of the statute is not being expanded in an unforeseeable manner even though the case is one of first impression and even if dicta in prior decisions suggested a narrower application." ' " (People v. James (1998) 62 Cal.App.4th 244, 275, italics added; People v. Taylor (1992) 7 Cal.App.4th 677, 693; People v. Gibbons (1989) 215 Cal.App.3d 1204, 1210; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 509, pp. 572-573 [dicta has no force as precedents].) That rule applies here. The Cicero and Quinones dicta do not support the conclusion that Soto's holding about consent was unforeseeable.

Accordingly, despite this court's opinion in Cicero, the rule from Soto was not an unforeseeable judicial enlargement of a criminal statute.

E. Instructional Confusion

Peeling back the Bouie facade of defendant's contention, his written briefing reveals that his argument is not really focused on an enlargement of criminal liability. Under his Bouie heading, he argues that, by telling the jurors consent is not a defense, the instruction creates a substantial likelihood that jurors would understand this to mean that the evidence of a child's consent cannot negate the element of duress. This argument is based on Justice Werdegar's view in Soto that evidence of consent tends to negate the statutory element that the lewd act be committed by use of duress and thus an instruction that consent is not a defense is potentially confusing or misleading. (Soto, supra, 51 Cal.4th at p. 252 (conc. & dis. opn. of Werdegar, J.).)

But this argument does not implicate the due process analysis in Bouie. As we have noted, our high court has stated: "The United States Supreme Court has explained that the Fifth Amendment forbids only the retroactive application of an 'unexpected' or 'unforeseeable judicial enlargement of a criminal statute.' " (Wharton, supra, 53 Cal.3d at p. 586, citing Bouie, supra, 378 U.S. at pp. 353, 354.) And as we have also noted, Bouie is grounded on the requirement of providing fair notice. Defendant's argument about a likelihood of juror misunderstanding and his reliance on Justice Werdegar's opinion suggests an instructional error claim, not a due process claim related to an enlargement of criminal liability.¹⁰ We could consider this argument waived because it is not set forth under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) However, for the reasons we discuss in our harmless error analysis on the Bouie claim post, we conclude there is no reasonable likelihood the jury applied the challenged instruction in a way that resulted in negating the elements of duress. (See McGuire, supra, 502 U.S. at p. 72; Berryman, supra, 6 Cal.4th at p. 1077; Clair, supra, 2 Cal.4th at p. 663.)

10 Indeed, on this point, defendant cites without additional discussion McGuire, supra, 502 U.S. at page 72; People v. Berryman (1993) 6 Cal.4th 1048, 1077 (Berryman) [applying the reasonable likelihood test to claims related to ambiguous instructions]; and Clair, supra, 2 Cal.4th at page 663 [recognizing the test in McGuire]. In McGuire, the court wrote: "[I]n reviewing an ambiguous instruction . . . , we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (McGuire, at p. 72.)

F. Enlargement of Criminal Liability - Soto's Objective Test for Duress

In his reply brief, defendant argued that Soto's holding that duress in section 288, subdivision (b)(1), is a completely objective concept and the notion that the subjective willingness of the victim is not relevant constitutes an unforeseeable expansion of the statute in violation of his due process rights. At oral argument, counsel argued that the court in Soto converted the meaning of the word "duress" as it is commonly understood into a "specialized term of art" to make the concept of duress solely objective. We do not read Soto as converting duress into a "specialized term of art," and even if it did, this holding in Soto does not impact defendant's Bouie claim.

In People v. Leal (2004) 33 Cal.4th 999 (Leal), our high court adopted the definition of duress from this court's opinion in Pitmon, supra, 170 Cal.App.3d 38. (Leal, at pp. 1004, 1009-1010.)¹¹ Pitmon defined duress as follows: "duress as used in the context of section 288 [means] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (Pitmon, at p. 50, italics added.) This is essentially the same definition the jury received here.

11 Defendant also suggests the Leal court added to the definition of duress. He argues that, according to Leal, duress is "understood in its ordinary sense as ' "stringent compulsion by threat of danger, hardship or retribution." ' " (Italics added.) Defendant misreads Leal. In Leal, the issue addressed by the court was whether duress as that term is used in section 288, subdivision (b)(1), includes a threat of "hardship." (Leal, supra, 33 Cal.4th at pp. 1001-1002.) The Leal court concluded that duress does include a threat of hardship. (Ibid.) In doing so, the court observed that this court in Pitmon consulted Webster's Third New International Dictionary, which included the following definition of duress: " 'restraint or check by force . . . stringent compulsion by threat of danger, hardship, or retribution.' " (Leal, at p. 1009.) But while the court in Pitmon derived a definition of duress from that dictionary source, that court's definition did not include the words "stringent compulsion." (Pitmon, supra, 170 Cal.App.3d at p. 50.) Nor did the Leal court suggest those words should be incorporated into the definition of duress in section 288, subdivision (b)(1).

It is true that the Soto court clarified that duress is not dependent on the response from the victim, specifically noting the " ' "reasonable person" ' " language from the Pitmon instruction italicized above. (Soto, supra, 51 Cal.4th at p. 246.) Rather, the focus is on the defendant's wrongful act, not the victim's response to it. (Ibid.) This interpretation is consistent with the express language of section 288, subdivision (b)(1). (Soto, at p. 246.) Counsel for defendant essentially argued at oral argument that Soto's objective focus for duress is itself an expansion of criminal liability because the previous understanding of duress involved overcoming the will of the victim.¹² But this part of the Soto court's holding was not implicated here, because it was not part of the instructions defendant's jury received. Defendant's jury was instructed that the "direct or implied threat of force, violence, danger, hardship or retribution" had to be "sufficient to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to" (italics added), but this was part of the Pitmon instruction in use pre-Soto. In addition, as suggested in Pitmon, the jury here was instructed: "When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and her relationship to the defendant." (Italics added.) This sentence essentially tells the jury they must decide whether the lewd act was "accomplished by duress." Thus, the instruction can be understood to mean that duress required that defendant's direct or implied threat actually coerced or compelled the victim to do something she would not have otherwise done. Thus, the jury here was not instructed to view duress only from an objective perspective, without regard to any subjective coercive impact on the victim.¹³ We reject defendant's argument, raised for the first time in the reply brief and further emphasized at oral argument, on this basis.

12 In his reply brief, defendant asks "why would anyone not expect 'duress' or 'menace' or 'threat' to be objective terms that suggest nothing about the victim's consent vel non?" Defendant's myopic focus on the word "duress" in the statute prevents him from seeing that the answer to his question is in the statute. Defendant overlooks the fact that section 288, subdivision (b)(1), prohibits the use of duress and does not require that the lewd acts be accomplished by means of duress. Specifically, section 288, subdivision (b)(1), applies to the commission of a lewd and lascivious act against a child under the age of 14 "by use of . . . duress." (§ 288, subd. (b)(1).) Thus, the express wording of the statute punishes the use of duress regardless of whether the sex act was accomplished by means of (i.e., the victim's compliance was achieved as a result of) that duress. An example of an "accomplished by means of" statute that requires a focus on the reaction of the victim to the duress employed by a defendant is rape by duress. The plain language of the rape by duress statute requires that the act of sexual intercourse be "accomplished against a person's will by means of . . . duress." (§ 261, subd. (a)(2), italics added.) Similarly, aggravated sexual assault on a child under 14, section 289, subdivision (a)(1), requires that the sexual penetration be accomplished "against the victim's will by means of . . . duress." (Italics added.) Further, unlike the prohibited sexual conduct in section 288, subdivision (b)(1), the prohibited sexual conduct in section 289, subdivision (a)(1), must be accomplished against the victim's will. The same is true for rape by duress. Thus, both of these statutes require a subjective focus on the victim's reaction to the defendant's utilization of duress.

13 The language in CALCRIM No. 1111 essentially tells the jury it has to decide whether the act was accomplished by duress does not appear in conformance with Soto's holding that the focus should be on defendant's conduct, not the coerced reaction of the victim.

G. Harmless Error

Even if it was error to instruct that consent is not a defense, the error was harmless in this case. Defendant contends that, in considering whether he was prejudiced by the purportedly erroneous instruction, we must apply the "harmless beyond a reasonable doubt" standard from Chapman, supra, 386 U.S. at page 24. Without agreeing Chapman is the appropriate standard,¹⁴ we will apply it because any error was harmless here even under that standard. Under Chapman, we determine whether, beyond a reasonable doubt, the error complained of did not contribute to the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).) An error does not contribute to the verdict when it is " 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (Ibid.) We conclude beyond a reasonable doubt that the court's instruction that consent is not a defense did not contribute to the verdicts on the section 288, subdivision (b)(1), counts.

14 Viewing the inclusion of the "consent is not a defense" language as confusing or misleading, Justice Werdegar, suggested that the harmless error standard from Watson, supra, 46 Cal.2d at page 836, applies. (Soto, supra, 51 Cal.4th at pp. 256-257 (conc. & dis. opn. of Werdegar, J.).)

Defendant asserts that there is "a substantial evidentiary basis for concluding that the acts were not against C.'s will" and thus the error was not harmless. (Italics added.) But defendant mistakenly confuses the concept of acting with free will with legal consent. There is more to the concept of consent than acting with free will.

The term "consent" was defined for the jury in connection with the counts of aggravated sexual assault upon a child under age 14 by sexual penetration of the anal opening. (§§ 269, subd. (a)(5), 289, subd.(a)(1).) Lack of consent was identified as an element of that offense. And consent in the context of sexual crimes is a specialized term of art. The instruction defined consent as follows: "In order to consent, a person must act freely and voluntarily and know the nature of the act." (CALCRIM No. 1045, italics added.) As can be seen by the italicized portion of the instruction, consent requires that the victim: (1) act freely and voluntarily and (2) know the nature of the act. Thus, when told consent was not a defense to the section 288, subdivision (b), acts, the jury necessarily had in mind this definition of consent. The notion that the victim does not act freely and voluntarily can be equated to a defendant's act causing the victim to act against her will, but because the definition of consent requires the victim to also know the nature of the act, it goes beyond the question of whether the defendant's acts were "against the victim's will" as that phrase is commonly understood. As a consequence, the instruction that consent is not a defense is the same as telling the jury it is not a defense that the victim both acted freely and voluntarily and knew the nature of the act. Thus, the instruction did not tell the jury that it was no defense that the acts were not against the victim's will. Since a consent defense would necessarily involve both components -- free will and knowledge of the nature of the act -- the instruction that consent is not a defense did not preclude the jury from considering whether the victim's will was overcome by duress.¹⁵

15 For the same reasons we conclude there is no reasonable likelihood the jury applied the challenged instruction in a way that resulted in negating the elements of duress. (See part III.E. of the Discussion, ante.)

Moreover, the evidence established beyond a reasonable doubt that the victim's will was overcome by defendant's conduct. In asserting there is a substantial evidentiary basis for concluding the acts were not against C's will, defendant argues: that C. was not "spurred to reveal the molestations . . . based on her own sense of indignation"; he "never used strong physical compulsion by pinning her or holding her down";¹⁶ he never told C. not to call the police; he was not the primary disciplinarian in the house; and C. testified that she allowed defendant to touch her because she wanted to make him happy and that she did not think it was wrong.¹⁷

16 In addition to the duress theory advanced by the prosecution, a force theory would have been warranted had there been such "strong physical compulsion."

17 Of course, C.'s testimony that she did not think the touching was wrong plainly demonstrates that she did not know the nature of the act.

In contrast to this evidence, the record reveals that: defendant never asked C. for her permission; defendant's actions made her feel "[u]ncomfortable, not knowing what to do"; there were times when she tried to resist defendant's advances by going to bed early, pretending to be asleep, and lying on her stomach to make it hard for defendant to touch her vagina; defendant would roll her over when she slept on her stomach and he did that even when she resisted being rolled over; she was only able to prevent defendant's touching by sleeping with her grandparents when they were at the grandparents' house; C. feared that disclosure would break up the family and, to her, keeping the family together was the most important thing; defendant told her multiple times not tell her mother about the molestations and explained that her mother was unhappy, weak, and would not be able to handle the stress; and when she first disclosed to her mother, C. was scared about how defendant would react when he found out her mother knew. Added to these case-specific circumstances are the two specific circumstances in the Pitmon instruction set forth in CALCRIM No. 1111. That instruction told the jury to consider "the age of the child and her relationship to the defendant." (CALCRIM No. 1111, as given to the jury in this case.) These circumstances are critical here. For example, defendant seems to place great weight on C.'s testimony that she wanted to please him. But C. said that in the context of explaining why she did not tell defendant his conduct made her feel uncomfortable. Further, the evidence demonstrates that this desire to please defendant was because of her age and the parent-child relationship, not because of an exercise of free will.

Finally, defendant's defense was that C. exaggerated the number and nature of the molestations, not that she allowed defendant to molest her out of acts of free will.¹⁸ In contending C. exaggerated, defendant relied primarily on his responses to the pretext calls and his interview with the police to support this claim. But this defense was not compelling because the evidence showed he was suspicious of being recorded during the pretext call and his wife was present during the police interview. Both of these circumstances provided a motive to minimize his description of his conduct.

18 This defense appears to have achieved partial success on the aggravated sexual assault by anal penetration counts (§§ 269, subd. (a)(5), 289, subd. (a)(1).) The jury brought back verdicts on a lesser included offense of simple battery on those counts. C. testified on direct examination that defendant touched her anus about a quarter of the time he touched her vagina. Then she said he did that every other night. However, as disclosed in cross-examination, during the CARES interview, she told the interviewer that defendant had never touched her butt or buttocks. On redirect examination, she testified that after the CARES interview she remembered these touchings and told a detective. But she told him the anal touches happened only three times. She testified that when she told the detective three times, she meant three times a night. She then testified she did not mean three times per incident. And she added that kind of touching took place once a week.
Counsel did argue that there was circumstantial evidence showing that there was no duress, but that argument was limited to: pointing out that C. had willingly climbed into bed with defendant and her mother; defendant's nondemanding, whining tone during the pretext call; the fact that there were no express threats of harm; the fact that defendant never really disciplined C. and "always defended her"; and the fact that defendant purportedly did not exercise any "physical control of [C.]"

Thus, for the reason that the instruction did not preclude the jury from considering whether the victim acted against her will and for the separate reason that the evidence established she did not act with free will, we conclude beyond a reasonable doubt that any Bouie error related to the challenged instruction did not contribute to the verdicts on the section 288, subdivision (b), counts. (Chapman, supra, 386 U.S. at p. 24; Neal, supra, 31 Cal.4th at p. 86.)

DISPOSITION

The judgment is affirmed.

MURRAY, J. We concur: BLEASE, Acting P. J. HULL, J.