Brief Bank # B-869 (Re: F 10.42 n5 [Lewd Act With Child: Duress Does Not Include Threat Of Hardship])
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Date Of Brief: October, 2000.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
NO. H000000
Plaintiff and Respondent, (SANTA CLARA CO.
SUPERIOR COURT
vs. NO. F00000)
JOHN DOE,
Defendant and Appellant.
____________________________________
APPELLANT’S SUPPLEMENTAL OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA,
THE HONORABLE EDWARD F. LEE, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171
Attorneys for Appellant,
JOHN DOE
X.
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THE JUDGMENT MUST BE REVERSED SINCE THE JURY WAS ERRONEOUSLY INSTRUCTED THAT “DURESS” INCLUDES “HARDSHIP.”
As was discussed in appellant’s opening brief, the prosecutor’s only theory of liability was that the lewd and lascivious act was committed by duress. (AOB 59-61.) In its instructions, the court provided the following definition of duress:
“The term ‘duress’ means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibility to: one, perform an act which otherwise would not have been performed; or 2, acquiesce in an act to which one otherwise would not have submitted.” (RT 320-321, emphasis added.)
As will be established below, the Legislature has amended the Penal Code so as to eliminate “hardship” as a basis for a finding of “duress.” Given this legislative decision, it is apparent that the jury was instructed on an erroneous legal theory. As a result, reversal is mandated.
In 1990, the Legislature enacted a definition of “duress” as it related to the offense of rape (Penal Code section 261). (See Stats. 1990, ch. 630, section 1, pp. 2701-2702.) The definition included a threat of “hardship” as a means of proving “duress.” (Id., at p. 2702.) In 1993, the Legislature deleted the term “hardship” from the rape statute. (Stats. 1993, ch. 595, section 1, pp. 2575-2577.)
Without doubt, this legislative history reveals that the Legislature has made an express decision to delete “hardship” as a permissible basis for finding “duress.” In this regard, “duress” is defined solely in Penal Code section 261. However, section 261 is the first section in the Penal Code chapter dealing with major sex crimes. Thus, it must be presumed that the section 261 definition of “duress” was intended to apply throughout the entire chapter wherever “duress” is employed. (Stillwell v. State Bar (1946) 29 Cal.2d 119, 123; “it is a well-established rule of construction that when a word or phrase has been given a particular scope or meaning in one part or portion of a law it shall be given the same scope and meaning in other parts or portions of the law. [Citations.];” accord, Guthman v. Moss (1984) 150 Cal.App.3d 501, 508; in construing the term “invalid” as used in Civil Code section 1677, the court relied on the meaning for “invalid” which was found in Civil Code section 1675.)
In positing this conclusion, appellant notes that the 1990 legislation which introduced a definition of “duress” was intended to redefine rape to be consistent with other major sex crimes. Prior to 1990, rape, unlike other sex crimes, could not be committed by way of duress. (People v. Bergschneider (1989) 211 Cal.App.3d 144, 152.) Thus, the 1990 amendment was intended to cure this anomaly and thereby treat rape just like other major sex crimes. (Stats. 1990, Legislative Counsel’s Digest, ch. 630, p. 2701.)
In short, the Legislature has expressly held that “duress” cannot be proved by a threat of “hardship.” Thus, the trial court erred in instructing on an erroneous legal theory.
Turning to the issue of prejudice, the error must be deemed reversible per se. This is so since the jury was instructed on an erroneous legal theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) Indeed, the error violates appellant’s right to federal due process since he was convicted on the basis of a legal theory which does not exist under state law. (Sandstrom v. Montana (1979) 442 U.S. 510, 526; Keating v. Hood (9th Cir.1999) 191 F.3d 1053, 1062-1063.)
CONCLUSION
For the reasons expressed in both this brief and appellant’s opening brief, the judgment should be reversed.
Dated: October __, 2000
Respectfully submitted,
DALLAS SACHER
Attorney for Appellant,
JOHN DOE
