[REVIEW GRANTED] People v. Valentine (2000)

THE PEOPLE, Plaintiff and Respondent, v. RANDY ALAN VALENTINE, Defendant and Appellant.

[Modification of opinion (78 Cal.App.4th 719) on denial of petition for rehearing.]

THE COURT. fn. † -It is ordered that the majority opinion filed herein on February 28, 2000, and reported in the Official Reports (78 Cal.App.4th 719) be modified in the following particulars:

1. On page 722, the first paragraph under the heading "Counsel" is deleted and the following paragraph is inserted in its place:

The Law Offices of Dennis A. Fischer, by Dennis A. Fischer and John L. Ryan, for Defendant and Appellant.

2. On page 722, at the last line in the first paragraph of footnote 1, "288a" is changed to "288, subdivision (a)."

3. On page 724, in the first full paragraph, after the words "9 years" insert "and four months".

4. On page 727, at line 5 of the second full paragraph, and at the next to last line of that same paragraph the section numbers "260 and 261" are changed to "261 and 262."

5. On page 728, at the fourth line of the second full paragraph, after the words "on duress and" insert the clause "in the particular circumstances of the instant case".

6. On page 728, at line 8 of the second full paragraph, the word "retaliation" is changed to "retribution."

7. On page 728, in the next to last line of the second full paragraph, after the words "81 years", add "and four months".

8. On page 729, following the final word in the second paragraph, "acts." insert a new footnote number 5 and renumber the succeeding footnotes accordingly. At the bottom of the page insert the following footnote text:

FN 5. In a petition for rehearing respondent urges the acts for which they are charging appellant occurred before the 1994 amendment striking "hardship" as one of the grounds for finding "duress." Respondent argues the Legislature did not expressly declare the 1994 amendment was retroactive in effect and thus appellant should be punished for forcible oral copulation and forcible digital penetration as to those earlier acts even under this court's conclusion the 1994 amendment changed the definition of "duress" for these other categories of sex crimes as well as for forcible rape. This argument ignores In re Estrada (1965) 63 Cal. 2d 740, and its progeny, including People v. Rossi (1976) 18 Cal. 3d 295. In the latter case, the Supreme Court reversed a conviction for lewd conduct under 288a even though the Legislature amended the crime in defendant's favor after her conviction and while the case was on appeal. Here the Legislature redefined "duress" in appellant's favor several years before the prosecution even charged him with these offenses. If amendments redefining a crime while a case is on appeal bar conviction under the prior definition of criminal conduct, it is even more apparent they bar convictions under prosecutions first initiated several years later.

Respondent likewise expresses concern this interpretation will necessarily "open the floodgates" to thousands of convicted child molesters. This argument ignores this court's discussion of whether the instructional error was harmless, as it would be in most such prosecutions. In this case, however, we found the prosecutor had relied heavily, indeed virtually exclusively, on the "hardship" with which appellant threatened his victims in order to make the case for forcible oral copulation and forcible digital penetration.

9. On page 729, at present footnote 5 (to be renumbered as footnote 6), insert the following sentence at the end of the footnote:

On remand, however, respondent may elect to request the trial court to reduce one or more of these counts to lesser offenses and impose the lesser penalties attaching to them.

10. On page 730, the paragraph beginning with the words "We note" is deleted in its entirety and the following is inserted in its place:

We decline to impose a parole revocation fine not requested in the trial court. This court had been refusing to do so, on waiver grounds, in other cases, primarily to treat the prosecution and defendant with "symmetry" when they fail to raise issues favorable to their side during sentencing proceedings. Shortly before this opinion was filed, the Supreme Court endorsed that position and did so largely for the same reasons of fairness and equity as had prompted this court to deny the prosecution's request for appellate relief after failing to seek these restitution fines in the trial court. (People v. Tillman (2000) 22 Cal. 4th 300.)

This modification effects no change in the judgment.

Respondent's petition for rehearing is denied.

JOHNSON, Acting P.J., and NEAL, J.

FN †. Before Johnson, Acting P. J., and Neal, J.