People v. Harris CA3

DISCUSSION

I. Soto, Arguably, Is an Unforeseen Judicial Enlargement of Criminal Liability

but This Does Not Help Defendant on the Facts Here

Due process prohibits the retroactive application of a judicial enlargement of statutory criminal liability, if that enlargement is unexpected and indefensible in light of the law at the time of the conduct at issue. In other words, holding a defendant criminally liable for conduct that could not reasonably be anticipated to be prohibited violates due process. (Bouie v. City of Columbia (1964) 378 U.S. 347, 352-354 [12 L.Ed.2d 894, 899-

than demandingly. According to A.J., however, M.E. was scared and crying when defendant told M.E. to suck defendant’s penis, and also cried when defendant made M.E. have sex with A.J. 3 According to D.J., she was told about inappropriate touching but not about intercourse.

3 900]; People v. Crew (2003) 31 Cal.4th 822, 853; People v. Morante (1999) 20 Cal.4th 403, 431.)

Here, defendant claims the trial court—in line with a 2011 judicial enlargement of statutory criminal liability in Soto, supra, 51 Cal.4th 229—violated due process with a particular jury instruction. That instruction concerned the…