People v. Nigri

HERNDON, J.

Defendant appeals from the judgment convicting him of the crime of statutory rape (Pen. Code, § 261, subd. 1) following a non jury trial based solely upon the testimony of the prosecuting witness contained in the transcript of his preliminary hearing.

This case was tried prior to the decision of the Supreme Court in

People

v.

Hernandez,

61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673], which very substantially changed the previously established law relating to the crime of statutory rape. This recent decision declares it to be the law that a defendant's reasonable belief that the female was above the age of consent constitutes a valid defense.

Here the prosecuting witness testified that she was approximately 15 years and 9 months of age at the time the offense was committed. She had been living with defendant for approximately a month prior to the date of her arrest by the juvenile officers. She had had numerous acts of sexual intercourse with defendant, and prior to taking up residence with

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him, she had been living with another man. Defendant had promised to marry her.

On the question of her age, the following is disclosed by the terse record before us: “Mr. Kronenberg [Deputy Public Defender] : Q. Had you told the defendant how old you were prior to your living with him? Mr. Paoli [Deputy District Attorney] : Objection, Your Honor. That is immaterial. The Court:

It is immaterial as far as the charge itself is concerned,

but it is a matter that might be of some interest at a later time. Mr. Kronenberg: May the question stand, Your Honor? The Court: Yes, I will let it stand. The Witness: No. I lied to him. Q. Had you told him something about your age? A. I told him that I was 18. Q. You told him you were 18; is that right? A. Yes.” Subsequently she was asked by the Deputy District Attorney: “ Q. Debra, why did you tell the defendant that you were 18? A. Because—I don’t really know why.” (Italics added.)