People v. Hernandez

• Decision Date: 09 July 1964
• Docket Number: Cr. 7386
• Parties: , 393 P.2d 673, 8 A.L.R.3d 1092 The PEOPLE, Plaintiff and Respondent, v. Francisco Angel HERNANDEZ, Defendant and Appellant.
• Court: California Supreme Court

Page 361

39 Cal.Rptr. 361

61 Cal.2d 529, 393 P.2d 673, 8 A.L.R.3d 1092

The PEOPLE, Plaintiff and Respondent, v. Francisco Angel HERNANDEZ, Defendant and Appellant.

Cr. 7386.

Supreme Court of California, In Bank.

July 9, 1964.

Ellery E. Cuff, Public Defender, Fred Kilbride and James L. McCormick, Deputy Public Defender, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

PEEK, Justice.

By information defendant was charged with statutory rape. (Pen.Code, § 261, subd. 1.) Following his plea of not guilty he was convicted as charged by the court sitting without a jury and the offense determined to be a misdemeanor.

Section 261 of the Penal Code provides in part as follows: 'Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of 18 years; * * *.'

The sole contention raised on appeal is that the trial court erred in refusing to permit defendant to present evidence going to his guilt for the purpose of showing that he had in good faith a reasonable belief that the prosecutrix was 18 years or more of age.

The undisputed facts show that the defendant and the prosecuting witness were not married and had been companions for several months prior to January 3, 1961 the date of the commission of the alleged offense. Upon that date the prosecutrix was 17 years and 9 months of age and voluntarily engaged in an act of sexual intercourse with defendant.

In support of his contention defendant relies upon Penal Code, § 20, which provides that 'there must exist a union, or joint operation of act and intent, or criminal negligence' to constitute the commission of a crime. He further relies upon section 26 of that code which provides that one is not capable of committing a crime who commits an act under an ignorance or mistake of fact which disapproves any criminal intent.

Thus the sole issue relates to the question of intent and knowledge entertained by the defendant at the time of the commission of the crime charged.

Consent of the female is often an unrealistic and unfortunate standard for branding sexual intercourse a crime as serious as forcible rape. Yet the consent standard has been deemed to be required by important policy goals. We are dealing here, of course, with statutory rape where, in one sense, the lack of consent of the female is not an element of the offense. In a broader sense, however, the lack of consent is deemed to remain an element but the law makes a conclusive presumption of the lack thereof because she is presumed too innocent and naive to understand the implications and nature of her act. (People v. Griffin, 117 Cal. 583, 585, 49 P. 711; Golden v. Commonwealth, 289 Ky. 379, 158 S.W.2d 967.) The law's concern with her capacity or lack thereof to so understand is explained in part by a popular conception of the social, moral and personal values which are preserved by the abstinence from sexual indulgence on the part of a young woman. An unwise disposition of her sexual favor is deemed to do harm both to herself and the social mores by which the community's conduct patterns are established. Hence the law of statutory rape intervenes in an effort to avoid such a disposition. This goal, moreover, is not accomplished by penalizing the naive female but by imposing criminal sanctions against the male, who is conclusively presumed to be responsible for the occurrence. (See Elkins v. State, 167 Tenn. 546, 72 S.W.2d 550.)

The assumption that age alone will bring an understanding of the sexual act to a young woman is of doubtful validity. Both learning from the cultural group to which she is a member and her actual sexual experiences will determine her level of comprehension. The sexually experienced 15-year old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent. A girl who belongs to a group whose members indulge in sexual intercourse at an early age is likely to rapidly acquire an insight into the rewards and penalties of sexual indulgence. Nevertheless, even in circumstances where a girl's actual comprehension contradicts the law's presumption, the male is deemed criminally responsible for the act, although himself young and naive and responding to advances which may have been made to him. ¹

The law as presently constituted does not concern itself with the relative culpability of the male and female participants in the prohibited sexual act. Even where the young woman is knowledgeable it does not impose sanctions upon her. The knowledgeable young man, on the other hand, is penalized and there are none who would claim that under any construction of the law this should be otherwise. However, the issue raised by the rejected offer of proof in the instant case goes to the culpability of the young man who acts without knowledge that an essential factual element exists and has, on the other hand, a positive, reasonable belief that it does not exist.

The primordial concept of mens rea, the guilty mind, expresses the principle that it is not conduct alone but conduct accompanied by certain specific mental states which concerns, or should concern the law. In a broad sense the concept may be said to relate to such important doctrines as justification, excuse, mistake, necessity and mental capacity, but in the final analysis it means simply that there must be a 'joint operation of act and intent,' as expressed in section 20 of the Penal Code, to constitute the commission of a criminal offense. The statutory law, however, furnishes no assistance to the courts beyond that, and the casebooks are filled to overflowing with the courts' struggles to determine just what state of mind should be considered relevant in particular contexts. In numerous instances culpability has been completely eliminated as a necessary element of criminal conduct in spite of the admonition of section 20 to the contrary. (See In re Marley, 29 Cal.2d 525, 175 P.2d 832 (short-weight); People v McClennegen, 195 Cal. 445, 234 P. 91 (membership in organizations advocating criminal syndicalism); People v. McCalla, 63 Cal.App. 783, 220 P. 436 (violation of Corporate Securities Act); People v. Bickerstaff, 46 Cal.App. 764, 190 P. 656 (sale of liquor).) More recently, however, this court has moved away from the imposition of criminal sanctions in the absence of culpability where the governing statute, by implication or otherwise, expresses no legislative intent or policy to be served by imposing strict liability. (People v. Stuart, 47 Cal.2d 167, 302 P.2d 5, 55 A.L.R.2d 705; People v. Vogel, 46 Cal.2d 798, 299 P.2d 850; People v. Winston, 46 Cal.2d 151, 293 P.2d 40.)

Statutory rape has long furnished a fertile battleground upon which to argue that the lack of knowledgeable conduct is a proper defense. The law in this state now rests, as it did in 1896, with this court's decision in People v. Ratz, 115 Cal. 132, at pages 134 and 135, 46 P. 915, at page 916, where it is stated: 'The claim here made is not a new one. It has frequently been pressed upon the attention of courts, but in no case, so far as our examination goes, has it met with favor. The object and purpose of the law are too plain to need comment, the crime too infamous to bear discussion. The protection of society, of the family, and of the infant, demand that one who has carnal intercourse under such circumstances shall do so in peril of the fact, and he will not be heard against the evidence to urge his belief that the victim of his outrage had passed the period which would make his act a crime.' The age of consent at the time of the Ratz decision was 14 years, and it is noteworthy that the purpose of the rule, as there announced, was to afford protection to young females therein described as 'infants.' The decision on which the court in Ratz relied was The Queen v. Prince, L.R. 2 Crown Cas. 154. However England has now, by statute, departed from the strict rule, and excludes as a crime an act of sexual intercourse with a female between the ages of 13 and 16 years if the perpetrator is under the age of 24 years, has not previously been charged with a like offense, and believes the female 'to be of the age of sixteen or over and has reasonable cause for the belief.' (Halsburg's Statutes of England, 2d Ed., Vol. 36, Continuation Volume 1956, at page 219.) ²

The rationale of the Ratz decision, rather than purporting to eliminate intent as an element of the crime, holds that the wrongdoer must assume the risk; that, subjectively, when the act is committed, he consciously intends to proceed regardless of the age of the female and the consequences of his act, and that the circumstances involving the female, whether she be a day or a decade less than the statutory age, are irrelevant. ³ There can be no dispute that a criminal intent exists when the perpetrator proceeds with utter disregard of, or in the lack of grounds for, a belief that the female has reached the age of consent. But if he participates in a mutual act of sexual intercouse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been misled, we cannot realistically conclude that for such reason alone the intent with which he undertook the act suddenly becomes more heinous.

While the specific contentions herein made have been dealt with and rejected both within and without this state, the courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in...