Opinion
Page 303c
106 Cal.App.4th 303c ___Cal.Rptr.2d___ THE PEOPLE, Plaintiff and Respondent, v. RICHARD A. MINSKY, Defendant and Appellant. B155109 California Court of Appeal, Second District, Eight Division February 20, 2003[Modification of opinion (105 Cal.Rptr.2d 774; 129 Cal.Rptr.2d 583).]
OPINION
THE COURT.
Good cause appearing therefor the opinion filed on January 23, 2003, in the above entitled matter is hereby modified as follows:
Opinion on page 8, delete the entire second paragraph and footnote 9 [105 Cal.App.4th 780, advance report, 2d full par. and fn. 9] beginning with "Relying on recent case authority ..." and replace with the following paragraph and footnote 9:
Relying on recent case authority, Minsky contends that the statutory definition of duress for rape in section 261, which now excludes hardship, applies to the other sex offense statutes. (Valentine, supra, 93 Cal.App.4th at pp. 1249-1252.) Respondent contends it does not, pointing to the language of section 261, which defines duress "[a]s used in this section ...." (§ 261, subd. (b).) Assuming for discussion's sake only that Minsky is correct, because we hold that his ploy constituted duress by threat of danger or retribution under section 261, we also hold that it constituted duress under sections 288a and 289.
Respondent relied on People v. Edmonton (2002) 103 Cal.App.4th 557 [126 Cal.Rptr.2d 836], which disagreed with Valentine, holding that the section 261 definition of duress was limited to that statute and did not trump the case law definition for other sex crimes, which includes hardship. The Supreme Court recently granted review in that case. (Review granted Jan. 22, 2003, S112168.) Even though we do not reach the question whether the section 261 definition of duress applies to other sex crimes, we agree with the Valentine court that there seems to be no good reason for the Legislature to establish inconsistent definitions of duress for different sex crimes. (Valentine, supra, 93 Cal.App.4th at p. 1249.) Whatever the Legislature's intent, however, we believe legislation to clarify the matter may be warranted.