section 288(b) finding of duress in California

2026Because we agree that there was sufficient evidence of duress, we need not address whether other means were also supported. “ ‘Duress’ as used in this context 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 15 performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved of on another ground by People v. Soto (2011) 51 Cal.4th 229 ,

2025Her testimony does not foreclose coercion by duress, for “[t]he very nature of duress is psychological coercion.” (People v. Cochran (2002) 103 Cal.App.4th 8, 15 ; see id. at p. 14, disapproved on another ground in Soto, supra, 51 Cal.4th at p. 248, fn. 12 .) 3 “A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the 3 Defendant argues Veale and Cochran are inapposite because they dealt with the definition of duress used in Penal Code section 288, subdivision (b)(1).

2026Because we agree that there was sufficient evidence of duress, we need not address whether other means were also supported. “ ‘Duress’ as used in this context 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 15 performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved of on another ground by People v. Soto (2011) 51 Cal.4th 229 ,

2025Her testimony does not foreclose coercion by duress, for “[t]he very nature of duress is psychological coercion.” (People v. Cochran (2002) 103 Cal.App.4th 8, 15 ; see id. at p. 14, disapproved on another ground in Soto, supra, 51 Cal.4th at p. 248, fn. 12 .) 3 “A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the 3 Defendant argues Veale and Cochran are inapposite because they dealt with the definition of duress used in Penal Code section 288, subdivision (b)(1).

2026Because we agree that there was sufficient evidence of duress, we need not address whether other means were also supported. “ ‘Duress’ as used in this context 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 15 performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved of on another ground by People v. Soto (2011) 51 Cal.4th 229 ,

2025(People v. Pitmon (1985) 170 Cal.App.3d 38, 49-50 , fn. omitted (Pitmon) [interpreting duress under section 288 to mean “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”]; see also CALCRIM Nos. 1015, 1030, 1045 (2024 ed.).) In applying this standard, courts examine the “totality of the circumstances.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072 (

2026Because we agree that there was sufficient evidence of duress, we need not address whether other means were also supported. “ ‘Duress’ as used in this context 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 15 performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran), disapproved of on another ground by People v. Soto (2011) 51 Cal.4th 229 ,

2025Duress as used in section 288, subdivision (b)(1) has been defined by case law to involve “a direct or implied threat of force, violence, danger, hardship or retribution” (People v. Leal (2004) 33 Cal.4th 999, 1004 .) (Emphasis added) The only difference between that definition and the definition of duress in section 261(b)(1) is the latter does not include the word “hardship.” We are not dealing with a claim of hardship, and nothing in the cases cited by Defendant suggests Veale’s and Cochran’s analysis of duress would not otherwise apply to duress as defined in section 261(b)(1). 11 molestat

2025(People v. Pitmon (1985) 170 Cal.App.3d 38, 49-50 , fn. omitted (Pitmon) [interpreting duress under section 288 to mean “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”]; see also CALCRIM Nos. 1015, 1030, 1045 (2024 ed.).) In applying this standard, courts examine the “totality of the circumstances.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072 (

2025(People v. Pitmon (1985) 170 Cal.App.3d 38, 49-50 , fn. omitted (Pitmon) [interpreting duress under section 288 to mean “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”]; see also CALCRIM Nos. 1015, 1030, 1045 (2024 ed.).) In applying this standard, courts examine the “totality of the circumstances.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072 (

2025(See Cochran, supra, 103 Cal.App.4th at p. 15 ; People v. Senior (1992) 3 Cal.App.4th 765, 776 [expressly disagreeing with the holding in Hecker regarding the lack of a “threat” and noting that “[t]his contention improperly assumes a molestation cannot be accomplished by duress unless the molester knows why the victim is submitting”]; People v. Veale (2008) 160 Cal.App.4th 40 , 48-50 [relying on Cochran to find sufficient evidence of duress where six or seven year old victim was molested by her step-father “based on [the victim]’s age and size; her relationship to defendant; and her testimony

2013(People v. Hecker, supra, 219 Cal.App.3d at p. 1251, fn. 7 .) A threat to “kick [the child’s] ass” if she told anyone about the molestation was found to be a threat directed to “later disclosure of the sex acts and not the sex acts themselves.” (People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, fn. 8 , disapproved on other grounds in People v. Griffin, supra, 33 Cal.4th at p. 1028 .) Duress is judged under the totality of the circumstances and threatened retribution may properly be considered when evaluating whether a defendant used duress to commit molestation.

2013(People v. Hecker, supra, 219 Cal.App.3d at p. 1251, fn. 7 .) A threat to “kick [the child’s] ass” if she told anyone about the molestation was found to be a threat directed to “later disclosure of the sex acts and not the sex acts themselves.” (People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, fn. 8 , disapproved on other grounds in People v. Griffin, supra, 33 Cal.4th at p. 1028 .) Duress is judged under the totality of the circumstances and threatened retribution may properly be considered when evaluating whether a defendant used duress to commit molestation.

2008These factors all bear upon the susceptibility of a typical eight-year-old to intimidation by an adult.” (Pitmon, supra, 170 Cal.App.3d at p. 51 .) Here, viewing the evidence in its totality and assuming the trier of fact resolved all conflicting inferences in favor of the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 576 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ]), we conclude there was sufficient evidence to support the trial court’s finding of duress within the meaning of section 288, subdivision (b). 3.

2008These factors all bear upon the susceptibility of a typical eight-year-old to intimidation by an adult.” (Pitmon, supra, 170 Cal.App.3d at p. 51 .) Here, viewing the evidence in its totality and assuming the trier of fact resolved all conflicting inferences in favor of the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 576 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ]), we conclude there was sufficient evidence to support the trial court’s finding of duress within the meaning of section 288, subdivision (b). 3.

2007(In re Emilio C. (2004) 116 Cal.App.4th 1058, 1065 [ 11 Cal.Rptr.3d 85 ]; In re Gary B. (1998) 61 Cal.App.4th 844, 851 [ 71 Cal.Rptr.2d 824 ].) Courts that have considered this issue did so in direct appeals from the disposition hearing, where the court is required to make a determination of whether an offense falls under section 707, subdivision (b), not in connection with a later order sealing or unsealing the juvenile record. 5 The People have directed us to no cases in which a sealed record was ordered unsealed based on a subsequent determination that the offense was one involving conduct

2007(In re Emilio C. (2004) 116 Cal.App.4th 1058, 1065 [ 11 Cal.Rptr.3d 85 ]; In re Gary B. (1998) 61 Cal.App.4th 844, 851 [ 71 Cal.Rptr.2d 824 ].) Courts that have considered this issue did so in direct appeals from the disposition hearing, where the court is required to make a determination of whether an offense falls under section 707, subdivision (b), not in connection with a later order sealing or unsealing the juvenile record. 5 The People have directed us to no cases in which a sealed record was ordered unsealed based on a subsequent determination that the offense was one involving conduct

2007(In re Emilio C. (2004) 116 Cal.App.4th 1058, 1065 [ 11 Cal.Rptr.3d 85 ]; In re Gary B. (1998) 61 Cal.App.4th 844, 851 [ 71 Cal.Rptr.2d 824 ].) Courts that have considered this issue did so in direct appeals from the disposition hearing, where the court is required to make a determination of whether an offense falls under section 707, subdivision (b), not in connection with a later order sealing or unsealing the juvenile record. 5 The People have directed us to no cases in which a sealed record was ordered unsealed based on a subsequent determination that the offense was one involving conduct

2007(In re Emilio C. (2004) 116 Cal.App.4th 1058, 1065 [ 11 Cal.Rptr.3d 85 ]; In re Gary B. (1998) 61 Cal.App.4th 844, 851 [ 71 Cal.Rptr.2d 824 ].) Courts that have considered this issue did so in direct appeals from the disposition hearing, where the court is required to make a determination of whether an offense falls under section 707, subdivision (b), not in connection with a later order sealing or unsealing the juvenile record. 5 The People have directed us to no cases in which a sealed record was ordered unsealed based on a subsequent determination that the offense was one involving conduct