People v. Gonzalez

Opinion

THOMPSON, J. —

A july having rejected his defense of alibi and his testimony that he did not commit the crimes charged, defendant, Enrique Picharro Gonzalez, was convicted of three counts of lewd and lascivious conduct upon the person of 13-year-old Renee S. and one count of violation of Penal Code section 286, subdivision (c), sodomy committed upon the same victim, a person under the age of 14 by one who is more than 10 years older than the victim. The crimes were committed prior to July 1, 1977, the effective date of the determinate sentence act. In this appeal, Gonzalez contends: (1) subdivision (c) of Penal Code section 286 violates his constitutional guarantee of equal protection because the age classifications neither serve a compelling state interest nor are supported by a rational basis; and (2) the trial court prejudicially erred in failing to instruct on the necessity of a union of general intent and act in relation to the charge of sodomy.

We conclude that while the strict scrutiny test is mandated in the case at bench by

People

v.

Olivas

(1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375], the test is satisfied by the questioned statute. We conclude, also, that error, if any, in the trial court’s failure to instruct on general intent is harmless on the record here. Accordingly, we affirm the judgment.

Penal Code section 286, subdivision (c)

Penal Code section 286 enacted in 1975 redefines the crime of sodomy. While not prohibiting the conduct by consenting adults, the statute retains the crime when a person participates in it with another who is under the age of 18. The statute classifies the crime into three categories. If the victim is under 18 years of age, the crime is either a misdemeanor or felony as the court determines. (Subd. (b)(1).) If the defendant is over 21 and the victim is under 16, the crime is a felony. (Subd. (b)(2).) If the victim is under the age of 14 and the defendant is more than 10 years older than the victim, the crime is a felony which, by the 1975 version of the statute, was punishable by a minimum term in state prison of 3 years,

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