What constitutes duress for the purposes of section 288, subdivision (a) of the California Code of Criminal Code, and what is the test for duress?

A person is guilty of section 288, subdivision (a) if he or she commits a lewd or lascivious act with a child under 14 years of age. Section 288, subdivision (b) is violated if the lewd or lascivious act is accomplished by the use of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person," making it aggravated. ( 288, subd. (b).) Section 288, subdivision (a) is a lesser offense that is necessarily included in section 288, subdivision (b). (People v. Ward (1986) 188 Cal.App.3d 459, 472.)

For purposes of section 288, subdivision (b), force means "'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'" (People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248 (Soto).) Duress in 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." (People v. Pitmon (1985) 170 Cal.App.3d 38, 50 (Pitmon), overruled on other grounds in Soto, supra, 51 Cal.4th at p. 248.) "The total circumstances, including the age of the victim, and [the victim's] relationship to defendant are factors to be considered in appraising the existence of duress." (Pitmon, supra, at p. 51.) "[C]onsent of the victim is not a defense to the crime of aggravated lewd conduct on a child under age 14. The prosecution need not prove that a lewd act committed by use of force, violence, duress, menace, or fear was also against the victim's will." (Soto, supra, 51 Cal.4th at p. 248.) "'It is true that an assault implies force by the assailant and resistance by the one assaulted; and that one is not, in legal contemplation, injured by a consensual act. But these principles have no application to a case where under the law there can be no consent. Here the law implies incapacity to give consent, and this implication is conclusive. In such case the female is to be regarded as resisting, no matter what the actual state of her mind may be at the time. The law resists for her.' [Citation.]" (Id. at pp. 247-248.)

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3. Analysis.