People v. Donald R.

Opinion

TODD, J. Facts

A petition was filed under Welfare and Institutions Code sections 602 and 777 to declare Donald R. (Donald) a ward of the court. The petition alleged that Donald committed lewd and lascivious acts upon a child under the age of 14 with force (Pen. Code,1 § 288, subd. (b)) and committed lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)).

Donald waived the right to remain silent, and the right to subpoena and cross-examine witnesses. The parties stipulated to the following: On May 7, 1992, the victim, J, was 11 years old, and Donald was 16 years old. On May 7, 1992, both J and Donald engaged in an act of sexual intercourse with the specific intent to arouse. The People could not prove beyond a reasonable [1629]doubt Donald knew J was under the age of 14. And, J could reasonably appear to someone to be 14 years old or older.

A medical report received into evidence stated that J was 5 feet 6 inches tall, weighed 178 pounds, and began menstruation at age 10. J was described as being a “full-developed girl.” The court stated that J was “not a small girl,” and “could pass for being over 13.” The deputy district attorney also acknowledged that “it’s fair to say there could be a reasonable doubt that she was under the age of 14. She could easily be mistaken for someone over 14.”

After an adjudication hearing, the court made a true finding on count two, section 288, subdivision (a). The court also found the Welfare and Institutions Code section 777 language to be true. Count one was dismissed.

Donald appeals, contending the court improperly rejected his mistake-of-fact defense. Donald contends that a reasonable, good faith belief that the victim is 14 years old or older should be a defense available to a minor in a section 288 charge. We disagree and, accordingly, affirm.

Discussion

The sole issue on appeal is whether a reasonable, good faith mistake of fact as to the age of a victim should be a defense available to a minor in a section 288, subdivision (a), charge. We answer in the negative and affirm.

A good faith, reasonable belief that the victim was 14 years or over is not a defense to a section 288 charge. (People v. Olsen (1984) 36 Cal.3d 638, 647 [205 Cal.Rptr. 492, 685 P.2d 52].) Although a mistake-of-age defense has been allowed with respect to a charge of unlawful sexual intercourse2 (People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]), the courts of this state have consistently declined to recognize such a defense in the context of a section 288, subdivision (a), violation. (Olsen, supra, 36 Cal.3d at p. 647; People v. Gutierrez (1978) 80 Cal.App.3d 829, 833-836 [75 Cal.Rptr. 819]; People v. Toliver (1969) 270 Cal.App.2d 492, 494-496 [145 Cal.Rptr. 823]; People v. Tober (1966) 241 Cal.App.2d 66, 72-73 [50 Cal.Rptr. 228].)