Is there sufficient evidence to instruct the jury on a charge of molestation by duress?

These facts are comparable to those in People v. Cooper (1991) 53 Cal.3d 771. There, in a first degree murder case, defense counsel expressed that he did not believe there was sufficient evidence to instruct the jury on second degree murder, and he and his client opposed any such instruction because they did not want the jury to "compromise" on the lesser charge. (Id. at pp. 826-827.) That is similar to what we have here. By responding to the court, "That's the way I saw it," defense counsel was saying that he did not believe the evidence supported the lesser charge -- it was either touching by duress or no touching at all. In this light, defense counsel's decision not to request an instruction on the lesser -- even though each other charge of molestation by duress was matched with a lesser charge -- can be seen as a tactical decision to avoid any opportunity for the jury to reach a compromise verdict on this charge (as it appears the jury may have done on the other charges, given the opportunity to do so).²

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