People v. Atchison, Cr. 20086

• Decision Date: 18 September 1978
• Docket Number: Cr. 20086
• Citation: 148 Cal.Rptr. 881,22 Cal.3d 181,583 P.2d 735
• Court: California Supreme Court
• Parties: , 583 P.2d 735 The PEOPLE, Plaintiff and Respondent, v. Robert Bennett ATCHISON, Defendant and Appellant.

Page 881

148 Cal.Rptr. 881

22 Cal.3d 181, 583 P.2d 735

The PEOPLE, Plaintiff and Respondent, v. Robert Bennett ATCHISON, Defendant and Appellant.

Cr. 20086.

Supreme Court of California, In Bank.

Sept. 18, 1978.

Albert L. Gordon, Los Angeles, for defendant and appellant.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Richard A. Curtis, Deputy State Public Defender, and G. Keith Wisot, Los Angeles, as amici curiae on behalf of defendant and appellant.

Burt Pines, City Atty., and Shelley I. Rosenfield, Deputy City Atty., for plaintiff and respondent.

NEWMAN, Justice.

Defendant appeals from a municipal court judgment ¹ that he was guilty of (1) annoying or molesting a child under age 18 (Pen.Code, § 647a), and (2) contributing to the delinquency of a child under age 18 (§ 272). At the trial he testified: "A. I asked him (the alleged victim) how old he was. Q. How old did he say he was? A. He told me he was 18, 19 in March, and this was in January. Q. He appeared to be at least that, 19 to you? A. He did to me."

The judge instructed the jury on the contributing-to-delinquency charge as follows (italics added): "You are instructed that in a prosecution for contributing to the delinquency of a minor by committing an act causing, tending to cause, or encouraging a person under the age of 18 years to lead an idle, dissolute, lewd, or immoral life, If defendant commits such an act, it is immaterial whether or not he knew the age of the minor."

That instruction was erroneous. (See People v. Hernandez (1964) 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673.) Since the jury may have been misled as to its application to both the Penal Code sections (§ 272 and § 647a) the judgment cannot stand. Because some courts have questioned the scope of the Hernandez ruling, we disapprove the statement in People v. Reznick (1946) 75 Cal.App.2d 832, 837, 171 P.2d 952, 956, that "if appellant committed the act it would be immaterial whether or not he knew the age of the minor."

Further, we do not agree with the suggestion below that "(i)t is hard to see how the defendant here could on the one hand contend that he did nothing improper and at the same time ask that the jury be told that the conduct which he engaged in would be lawful or unlawful depending on whether or not he believed that the victim was over 18." (See Witkin, Cal.Crimes, § 177, subd. (1) ("Inconsistent defenses are normally permitted in criminal as well as civil cases; e. g., not guilty and insanity; denial of act and self-defense. (Citations)").)

The judgment is reversed.

BIRD, C. J., and TOBRINER, MOSK and MANUEL, JJ., concur.

CLARK, Justice, concurring and dissenting.

While brevity is an admirable quality in an appellate opinion, the bench and bar are perhaps entitled to a fuller explanation for today's decision than the majority choose to provide.

The underlying question presented is whether a reasonable mistake as to the victim's age is a defense to charges of molesting a minor (Pen.Code, § 647a) and of contributing to his delinquency (Pen.Code, § 272). ¹ Apparently concluding that a mistake of age defense does lie to both charges, the majority hold that the trial court erred in instructing the jury to the contrary respecting the contributing charge, and that the erroneous instruction may have misled the jury respecting the molesting charge. Accordingly, the majority choose to reverse the judgment as to both counts.

The only explanation offered by the majority is a citation to People v. Hernandez (1964) 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673. This citation is appropriately introduced by "see," signaling that the Hernandez holding does not squarely support today's decision. The sole citation is further weakened by the majority's statement that "some courts have questioned the scope of the Hernandez ruling." (Ante, p. 882, of 148 Cal.Rptr., p. ---- of --- P.2d.) This case demands answers to the following questions: What does Hernandez hold? What are the grounds upon which it has been distinguished in subsequent cases? Finally, should it be distinguished here?

In People v. Reznick (1946) 75 Cal.App.2d 832, 171 P.2d 952, the court held that a reasonable mistake as to the victim's age is Not a defense to a charge of contributing to the delinquency of a minor. The continuing viability of Reznick was placed in doubt by this court's decision in Hernandez, holding that a reasonable mistake as to the victim's age is a defense to a charge of statutory rape. However, Hernandez was distinguished in People v. Toliver (1969) 270 Cal.App.2d 492, 75 Cal.Rptr. 819, holding that a reasonable mistake as to the victim's age is Not a defense to a charge of lewd and lascivious conduct upon a child under the age of 14 years (§ 288). (See also People v. Tober (1966) 241 Cal.App.2d 66, 50 Cal.Rptr. 228.) Finally, in another section 288 case People v. Gutierrez (1978) 80 Cal.App.3d 829, 145 Cal.Rptr. 823 the court followed Toliver, and while the present case has been pending before this court we unanimously denied hearing in Gutierrez.

Toliver distinguished Hernandez on the following ground: "Hernandez points out that in a broad sense consent can be an element of statutory rape, on the principle that a female whom a male may reasonably believe to be older than 18 can consent to the act of intercourse. On the other hand, violation of section 288 does not involve consent of any sort, thereby placing the public policies underlying it and statutory rape on different footings." (People v. Toliver, supra, 270 Cal.App.2d 492, 496, 75 Cal.Rptr. 819, 822.)

In one sense, it is incorrect to state sections 261.5 (statutory rape) and 288 are based on different public policies, for both statutes are directed toward protecting the young from sexual exploitation. However, in a deeper sense, distinction on policy grounds is valid in that section 288 is intended to protect much younger children and there is no possible defense based on consent. The significance of such a distinction was recognized in Hernandez. In overruling People v. Ratz (1896) 115 Cal. 132, 46 P. 915, the Hernandez court observed that the age of consent at the time of the Ratz decision was 14 whereas it was 18 when Hernandez was decided. (People v. Hernandez, supra, 61 Cal.2d 529, 533, 39 Cal.Rptr. 361, 393 P.2d 673.) The Hernandez court further noted that the Model Penal Code provided that a mistake of age defense does not lie to a sexual offense when the criminality of the conduct depends upon the child's being less than 10 years of age, but is available when criminality depends upon the child's being below a critical age higher than 10. (Id. at p. 533, fn. 2, 39 Cal.Rptr. 361, 393 P.2d 673. citing Model Pen.Code (Proposed Official Draft 1962) §...