Belief a Victim Was 18 Years Defense to Statutory Rape Charge
In 1964 the California Supreme Court held that a defendant's good faith and reasonable belief a victim was 18 years or older can provide a defense to a charge of statutory rape (now known as unlawful sexual intercourse with a person under 18 ( 261.5)), if the evidence proves the defendant lacked criminal intent. (People v. Hernandez, 61 Cal. 2d at p. 536.)
In People v. Hernandez (1964), the court reiterated language in People v. Vogel (1956) 46 Cal. 2d 798, 804 299 P.2d 850 good faith belief that former spouse obtained divorce is a defense to bigamy that the severe penalties exacted for bigamy made it " 'extremely unlikely that the Legislature meant to include the morally innocent to make sure the guilty did not escape.' " (Hernandez at p. 535).
The Hernandez court also stated: " ' "At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. . . . So far as we are aware it has never been suggested that these exceptions do not equally apply to the case of statutory offenses unless they are excluded expressly or by necessary implication." '(Hernandez at pp. 535-536,)
The court added that its holding was "in no manner indicative of a withdrawal from the sound policy that it is in the public interest to protect the sexually naive female from exploitation." (61 Cal. 2d at p. 536.)
The facts underlying appellant's subdivision (c)(1) conviction do not raise the same concerns articulated by the courts in Staples, Hernandez and Vogel.
A lewd act, as defined by section 288, subdivision (a) committed with any minor under age 18 is not "entirely innocent" conduct; it would violate at least section 647.6 (annoying or molesting a child under 18) or section 272 (contributing to the delinquency of a child under 18), both misdemeanors.
The jury convicted appellant of annoying or molesting a child ( 647.6). Under the instant facts, it could not be considered a lesser included offense of section 288; the offense of child annoyance requires commission of an objectively irritating or offensive act of annoyance or molestation, an element not necessarily present in the elements of section 288. ( People v. Lopez (1998) 19 Cal. 4th 282, 289-291 79 Cal. Rptr. 2d 195, 965 P.2d 713; People v. Memro (1995) 11 Cal. 4th 786, 871 47 Cal. Rptr. 2d 219, 905 P.2d 1305 288 requires a lewd touching or constructive lewd touching (overt contact or intrusion on body).)
Although an instruction on the defense of reasonable mistaken belief that the victim was 18 or over has been sanctioned in cases involving charges under section 647.6 or section 272 ( People v. Atchison (1978) 22 Cal. 3d 181, 183 148 Cal. Rptr. 881, 583 P.2d 735), the facts established at the trial in this case would, at most, support a reasonable belief by appellant that . was age 16.
Appellant therefore is not in a position akin to that of the "morally innocent" defendants in Hernandez or Vogel--the defendant who believed he was free to marry following a divorce (Vogel) or the defendant who thought he was having consensual intercourse with another adult (Hernandez).
Nor is appellant in the position of the defendant in Staples, whose professed ignorance of the characteristics of a weapon seized from his home would have made his act of possession "entirely innocent." ( Staples v. United States, supra, 511 U.S. at p. 615 114 S. Ct. at p. 1802.)