People v. Olsen

BIRD, J.

Is a reasonable mistake as to the victim's age a defense to a charge of lewd or lascivious conduct with a child under the age of 14 years. . . ? [Footnote 1]

========== Footnote 1 ==========
Section 288, subdivision (a) provides in relevant part: "Any person who shall willfully and lewdly commit any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years."

All statutory references are to the Penal Code unless otherwise noted.
========== End Footnote ==========

In early June 1981, Shawn M. was 13 years and 10 months old. At that time, her parents were entertaining out-of-town guests. Since one of the visitors was using Shawn's bedroom, Shawn suggested that she sleep in her family's camper trailer which was parked in the driveway in front of the house. Shawn's parents agreed to this arrangement on the condition that she keep the windows shut and the door locked.

On the night of June 3rd, Shawn's father, who is partially blind, was awakened by the barking of the family's three dogs. He went out the front door and heard male voices coming from the trailer. Mr. M. opened the door of the trailer and heard somebody remark about his presence. He then heard a male voice say, "Let's get the hell out of here."

Mr. M. could see three persons on the bed. One of the males, appellant Edward Olsen, jumped off the bed and tried to get out the door. Mr. M. wrestled with him and held him around the throat. Appellant called for help. The other male, James Garcia, stabbed Mr. M. in the right shoulder. Both appellant and Garcia then ran away.

At trial, Shawn testified to the following events. On her third night in the trailer, she locked the door as instructed by her parents. She then fell asleep, but was awakened by appellant Olsen who was knocking on the window and asking to be let in. Shawn said nothing and appellant left. Approximately a half-hour later, Garcia came up to the window and asked if he could enter. Shawn did not respond so he left. Shortly thereafter, appellant returned and again asked to be allowed in. Shawn did not answer. After both appellant and Garcia left, Shawn went to sleep.

Shawn was then awakened by the sound of barking dogs and by Garcia, who had a knife by her side and his hand over her mouth. [Footnote 2] Garcia called to appellant to come in, and appellant entered the trailer.

========== Footnote 2 ==========
Although Shawn testified she locked the trailer door, she failed to explain how Garcia entered the trailer. A subsequent examination of the trailer revealed that there were no signs of a forced entry.
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Garcia told Shawn to let appellant "make love" to her, or he -- Garcia -- would stab her. Garcia gave the knife to appellant who held it to Shawn's neck and then gave it back to Garcia. Shawn asked Garcia to put the knife away and he complied.

Appellant and Garcia then removed Shawn's nightgown and underpants. Garcia told her again to let appellant "make love" to her. Shawn refused. Garcia then took out his knife. Appellant proceeded to have sexual intercourse with Shawn for about 15 minutes. During this time, Garcia knelt on the bed and said nothing. While appellant was still having intercourse with Shawn, her father entered the trailer. Mr. M. grabbed appellant as he was trying to leave, and Garcia stabbed Mr. M. in order to free appellant.

Shawn testified that she knew Garcia "pretty well" and had known him for approximately one year. She had last seen him about four days before the incident. She also testified that she was very good friends "off and on" with appellant and that during one three-month period she spent almost every day at appellant's house. At the time of the incident, however, Shawn considered Garcia her boyfriend. [Footnote 3]

========== Footnote 3 ==========
Shawn admitted that she had engaged in intercourse before the night of June 3rd, but denied having any such prior experience with either Garcia or appellant. However, she did admit having had sexual relations, short of intercourse, with both of them in the past.
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Finally, Shawn admitted that she told both Garcia and appellant that she was over 16 years old. She also conceded that she looked as if she were over 16.

Garcia testified to quite a different set of events. He first met Shawn in the summer of 1980 when she introduced herself to him. On the afternoon of June 2, 1981 -- the day before the offense -- Shawn invited him to spend the night in the trailer with her so that they could have sex. He and Shawn engaged in sexual intercourse about four times that evening. Shawn invited Garcia to come back the following night at midnight.

The next night, after two unsuccessful attempts to enter the trailer, Garcia and appellant were told by Shawn to return at midnight. Garcia knocked on the trailer door. Shawn, wearing only a pair of panties, opened the door and invited them in. She told them she wanted to "take both [of them] on." She then told Garcia that she wanted "to make love" with appellant first. When Mr. M. entered the trailer, appellant was on top of Shawn. Garcia denied threatening Shawn with a knife, taking her nightgown off, breaking into the trailer or forcing her to have sex with them. [Footnote 5]

========== Footnote 5 ==========
Appellant's sister corroborated Shawn's testimony that Shawn made daily visits to the Olsen home during a three-month period. She testified that during these visits Shawn and appellant would go into the latter's bedroom and close the door. On one occasion, appellant's sister saw the two in bed together. On several occasions, his sister entered the bedroom after Shawn had left and noticed the bedcovers "messed up" and an odor which she associated with sex.

Appellant's next-door neighbor testified that he often encountered appellant and Shawn emerging from appellant's bedroom in the morning.

Joseph W., Garcia's 16-year-old friend who also knew Shawn, testified that he and Chuck A., a 15-year-old neighbor, had simultaneously gone to bed with Shawn on two occasions. On one of the occasions, Chuck's father caught them in bed and ordered Shawn out of the house. Both Chuck and his father corroborated Joseph's testimony.
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At the conclusion of the trial, the court found Garcia and appellant guilty of violating section 288, subdivision (a). [Footnote 7] In reaching its decision, the court rejected defense counsel's argument that a good faith belief as to the age of the victim was a defense to the section 288 charge. Appellant was sentenced to the lower term of three years in state prison. This appeal followed.

========== Footnote 7 ==========
Garcia was also found guilty of assault with a deadly weapon . . . with infliction of great bodily injury. . . . Both Garcia and appellant were found not guilty of burglary . . . , forcible rape . . ., and lewd or lascivious acts upon a child under the age of 14 by use of force. . . . Appellant was also found not guilty of assault with a deadly weapon. . . .
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Appellant's sole contention on appeal is that a good faith, reasonable mistake of age is a defense to a section 288 charge.

The language of section 288 is silent as to whether a good faith, reasonable mistake as to the victim's age constitutes a defense to a charge under that statute. Resort is thus made to judicial decisions discussing the defense. Although this court has not considered the question, it has recognized a mistake of age defense in other contexts.

Twenty years ago, this court in People v. Hernandez . . . overruled established precedent, and held that an accused's good faith, reasonable belief that a victim was 18 years or more of age was a defense to a charge of statutory rape. . . . [Footnote 10]

========== Footnote 10 ==========
One commentator believes that Hernandez marked a clear break from the "universally accepted view of the courts in this country." . . . The view that mistake of age is not a defense to a charge of statutory rape still prevails in the overwhelming majority of jurisdictions. . . .
========== End Footnote ==========

In Hernandez, the accused was charged with statutory rape of a girl who was 17 years and 9 months old, and who had voluntarily engaged in an act of sexual intercourse. The trial court refused to allow the accused to present evidence of his good faith, reasonable belief that the prosecutrix was 18 or over. . . . On appeal, this court held it reversible error to exclude such evidence. . . .

The Hernandez court acknowledged that an accused possesses criminal intent when he acts without a belief that his victim is 18 or over. However, the court determined that if one engages in sexual intercourse with a female and reasonably believes she is 18 or over, then the essential element of criminal intent is missing. . . .

One Court of Appeal has declined to apply Hernandez in an analogous context. In People v. Lopez . . . the court refused to recognize a reasonable mistake of age defense to a charge of offering or furnishing marijuana to a minor. . . . The court noted that the act of furnishing marijuana is criminal regardless of the age of the recipient and that furnishing marijuana to a minor simply yields a greater punishment than when the substance is furnished to an adult. ( Lopez. . . .) "[A] mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed. . . . "

This conclusion is supported by the Legislature's enactment of section 1203.066. . . . Subdivision (a)(3) of that statute renders certain individuals convicted of lewd or lascivious conduct who "honestly and reasonably believed the victim was 14 years old or older" eligible for probation. The Legislature's enactment of section 1203.066, subdivision (a)(3), in the face of a corresponding failure to amend section 288 to provide for a reasonable mistake of age defense, strongly indicates that the Legislature did not intend such a defense to a section 288 charge. . . . ) . . . To recognize such a defense would render section 1203.066, subdivision (a)(3) a nullity, since the question of probation for individuals who had entertained an honest and reasonable belief in the victim's age would never arise. It is well established that courts are "exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary.". . .

Other legislative provisions also support the holding that a reasonable mistake of age is not a defense to a section 288 charge. Time and again, the Legislature has recognized that persons under 14 years of age are in need of special protection. This is particularly evident from the provisions of section 26. That statute creates a rebuttable presumption that children under the age of 14 are incapable of knowing the wrongfulness of their actions and, therefore, are incapable of committing a crime. A fortiori, when the child is a victim, rather than an accused, similar "special protection," not given to older teenagers, should be afforded. By its very terms, section 288 furthers that goal.

The Legislature has also determined that persons who commit sexual offenses on children under the age of 14 should be punished more severely than those who commit such offenses on children under the age of 18. . . .

It is significant that a violation of section 288 carries a much harsher penalty than does unlawful sexual intercourse (§ 261.5), the crime involved in Hernandez. Section 261.5 carries a maximum punishment of one year in the county jail or three years in state prison (§ 264), while section 288 carries a maximum penalty of eight years in state prison. The different penalties for these two offenses further supports the view that there exists a strong public policy to protect children under 14. ...

The legislative purpose of section 288 would not be served by recognizing a defense of reasonable mistake of age. Thus, one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril.

The trial court properly rejected appellant's claim that his good faith, reasonable mistake as to the victim's age was a defense to a lewd or lascivious conduct charge with a child under 14 years of age. Accordingly, the judgment of conviction is affirmed.

DISSENT: GRODIN, J., Concurring and Dissenting. I agree that the enactment of Penal Code section 1203.066, which renders eligible for probation persons convicted of lewd or lascivious conduct who "honestly and reasonably believed the victim was 14 years old or older" is persuasive evidence that in the eyes of the Legislature such a belief is not a defense to the crime. [Footnote 1] What troubles me is the notion that a person who acted with such belief, and is not otherwise shown to be guilty of any criminal conduct, [Footnote 2] may not only be convicted but be sentenced to prison notwithstanding his eligibility for probation when it appears that his belief did not accord with reality. To me, that smacks of cruel or unusual punishment.

========== Footnotes ==========
Footnote 1. I do not agree that legislative intent to eliminate good faith mistake of fact as a defense can be inferred from the imposition of relatively higher penalties for that crime. On the contrary, as this court has stated in connection with the crime of bigamy: "The severe penalty imposed . . . the serious loss of reputation conviction entails, the infrequency of the offense, and the fact that it has been regarded . . . as a crime involving moral turpitude, make it extremely unlikely that the Legislature meant to include the morally innocent to make sure the guilty did not escape." . . .

Footnote 2. The People suggest that defendant was at least guilty of "sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Defendant was neither charged nor convicted of that offense, however, and it is by no means clear from the record that he had sexual intercourse with the victim.
========== End Footnotes ==========

I fully accept that "fault" even for purposes of the criminal law, may at times be predicated upon conduct, short of "intentional," which exposes others to substantial and unjustified risks. I recognize also that our legal system includes certain "strict liability" crimes, but generally these are confined to the so-called "regulatory" or "public welfare" offenses, which "do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. . . . Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize." Moreover, with respect to such crimes, "The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect . . . from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation.". . .

Even in the regulatory context, "judicial and academic acceptance of liability without fault has not been enthusiastic.". . . And "with respect to traditional crimes, it is a widely accepted normative principle that conviction should not be had without proof of fault. At least when the offense carries serious sanctions and the stigma of official condemnation, liability should be reserved for persons whose blameworthiness has been established." . . .

The Legislature has itself determined, in section 1203.066, that a person's belief in the victim's age being over 14 may be not only honest but reasonable. No doubt the standard of what is reasonable must be set relatively high in order to accomplish the legislative objective of protecting persons under 14 years of age against certain conduct. Perhaps it is not enough that a person "looks" to be more than 14; perhaps there is a duty of reasonable inquiry besides. At some point, however, the belief becomes reasonable by any legitimate standard, so that one would say the defendant is acting in a way which is no different from the way our society would expect a reasonable, careful, and law-abiding citizen to act.

At that point, it seems to me, the imposition of criminal sanctions, particularly imprisonment, simply cannot be tolerated in a civilized society.

In this case we cannot ascertain from the record on appeal whether the trial court found some merit in defendant's claim that he honestly and reasonably believed the victim to be over 14 years of age. Since the court apparently considered defendant eligible for probation it is possible that the claim was given credence. If so, and defendant's conduct was in other respects that which we would expect of a reasonable, careful, and law-abiding citizen, I would conclude that imposition of a sentence of imprisonment on defendant is impermissible. Inasmuch as the record is inadequate to resolve either question, however, I would remand for a new probation and sentence hearing at which the court, if probation is again denied, should make express findings as to whether defendant honestly and reasonably believed the victim to be over 14 years of age and, if so, whether his conduct with her otherwise reflected that mens rea traditionally accepted as a prerequisite to the imposition of serious penal sanctions.