People v. Caldwell

KINGSLEY, J.

Defendant was charged with statutory rape (Pen. Code, § 261, subd. 1). Defendant pled not guilty; the cause was tried without a jury; defendant was found guilty as charged; a probation report was ordered

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probation was denied and defendant was sentenced to state prison for the term prescribed by law.

Defendant met the prosecutrix Margaret Jean McCoy after Christmas in December of 1965, and they dated until some time in March 1966. Defendant was married to another woman and living with his wife during the entire period. The prosecutrix was married but separated from her husband the entire time. Defendant engaged in an act of sexual intercourse with the prosecutrix on March 2, 1966, when she was 15 years of age. On different occasions defendant was advised by the prosecutrix’s mother that she was 15 years old and (correctly as we point out) that she was “San Quentin quail.” There was a witness to two of these conversations.

[226]

The prosecutrix also told defendant she was 15. Defendant admitted hearing that she was 15 on one occasion shortly before he was picked up on the statutory rape charge. The prosecutrix’s sisters often teased defendant about her age. During this period prosecutrix attended high school, and defendant claimed that he did not know she was a student until a few weeks before he ‘ ‘ got busted. ’ ’

Defendant testified that the prosecutrix said she was 18 going on 19, and that she wore a wig, stockings, and eye makeup and looked like an adult woman.

Defendant argues that the statutory rape law (Pen. Code, § 261) should not be applied in the case of a previously married female under 18 since Civil Code section 204 terminates parental authority on the marriage of a child, thereby recognizing tire child as an adult. Defendant cogently argues that “The purpose of statutory rape laws is to prevent victimization of immaturity” ((1965) 17 Stan.L.Rev. 309, 310;

People

v.

Hernandez

(1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]), that a previously married person is recognized -as mature by section 204 of the Civil Code, and therefore protection of a married minor is outside the purpose of the statutory rape laws. Defendant gives support to his contention that a married minor is recognized as mature by showing that the parent is relieved of support duty on the marriage of his child.