People v. Moody CA1/4

Filed 2/14/25 P. v. Moody CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A168315 v. DWIGHT MOODY, (Solano County Super. Ct. No. VCR234316) Defendant and Appellant.

Dwight Moody was convicted of willfully committing a lewd or lascivious act on a child under the age of 14 years in violation of Penal Code section 288, subdivision (a).1 At trial, he testified that he accidentally touched the victim, C.M., who at the time was around nine years old, and he had no intent to achieve sexual gratification within the meaning of the statute. He now argues that the trial court erred in failing to instruct the jury on the defense of mistake of fact as to the victim’s identity—i.e., he asserts that he mistook C.M. for his adult wife—and that the failure to instruct was prejudicial. He argues that United States v. Adams (C.M.A. 1991) 33 M.J. 300, although not binding on this court, supports the application of the defense here.

1 Undesignated statutory references are to the Penal Code.

The Attorney General argues that a factual mistake as to a victim’s identity is not a defense to a section 288 charge, just as a mistake as to a victim’s age is no defense, as established in People v. Olsen (1984) 36 Cal.3d 638. Although mistake of age is a defense to statutory rape in violation of section 261.5, the Attorney General contends the relevant policy interests do not support the application of the defense where the victim of the crime is, by definition, of “tender years.” In addition, the Attorney General argues, even if mistake of fact could be a valid defense to a section 288 charge, the trial court did not err in failing sua sponte to instruct the jury on it. Moody’s defense at trial was that the touching occurred inadvertently, not intentionally; a mistake of identity defense would be inconsistent with that defense because it would require him to prove that he intended the touching, but that he believed the person he was touching was his wife. We need not decide whether a mistaken identity defense could be asserted against a section 288 charge in an appropriate case, because we agree with the Attorney General that such an instruction would have been inconsistent with the defense that Moody offered at trial. We therefore affirm. BACKGROUND Moody was charged with three counts of committing a lewd act upon a child under the age of 14, pursuant to section 288, subdivision (a), and one count of continuous sexual abuse of a child, pursuant to section 288.5, subdivision (a). The counts arose from Moody’s interactions with one victim, C.M. The jury found Moody guilty of one count of violating section 288, arising from an incident that occurred when C.M. was nine years old, and acquitted him of the remaining charges.