People v. Olsen

Decision Date23 August 1984
Docket NumberCr. 23510
Citation36 Cal.3d 638,205 Cal.Rptr. 492,685 P.2d 52
CourtCalifornia Supreme Court
Parties, 685 P.2d 52 The PEOPLE, Plaintiff and Respondent, v. Edward Einar OLSEN, Defendant and Appellant.

Gregory H. Saldivar, Baker, Brauer, Saldivar & Postelle, San Jose, for defendant and appellant.

George Deukmejian, Former Atty. Gen., and John K. Van de Kamp, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Kristofer Jorstad, Gloria F. DeHart and Mary A. Roth, Deputy Attys. Gen., for plaintiff and respondent.

Christopher G. Money, Dist. Atty. (San Luis Obispo), and Robert Rabe, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

BIRD, Chief Justice.

Is a reasonable mistake as to the victim's age a defense to a charge of lewd or lascivious conduct with a child under the age of 14 years (Pen.Code, § 288, subd. (a) 1)?

I.

In early June 1981, Shawn M. was 13 years and 10 months old. At that time, her parents were entertaining out-of-town guests. Since one of the visitors was using Shawn's bedroom, Shawn suggested that she sleep in her family's camper trailer which was parked in the driveway in front of the house. Shawn's parents agreed to this arrangement on the condition that she keep the windows shut and the door locked.

On the night of June 3rd, Shawn's father, who is partially blind, was awakened by the barking of the family's three dogs. He went out the front door and heard male voices coming from the trailer. Mr. M opened the door of the trailer and heard somebody remark about his presence. He then heard a male voice say, "Let's get the hell out of here."

Mr. M. could see three persons on the bed. One of the males, appellant Edward Olsen, jumped off the bed and tried to get out the door. Mr. M. wrestled with him and held him around the throat. Appellant called for help. The other male, James Garcia, stabbed Mr. M. in the right shoulder. Both appellant and Garcia then ran away.

At trial, Shawn testified to the following events. On her third night in the trailer, she locked the door as instructed by her parents. She then fell asleep, but was awakened by appellant Olsen who was knocking on the window and asking to be let in. Shawn said nothing and appellant left. Approximately a half-hour later, Garcia came up to the window and asked if he could enter. Shawn did not respond so he left. Shortly thereafter, appellant returned and again asked to be allowed in. Shawn did not answer. After both appellant and Garcia left, Shawn went to sleep.

Shawn was then awakened by the sound of barking dogs and by Garcia, who had a knife by her side and his hand over her mouth. 2 Garcia called to appellant to come in, and appellant entered the trailer.

Garcia told Shawn to let appellant "make love" to her, or he--Garcia--would stab her. Garcia gave the knife to appellant who held it to Shawn's neck and then gave it back to Garcia. Shawn asked Garcia to put the knife away and he complied.

Appellant and Garcia then removed Shawn's nightgown and underpants. Garcia told her again to let appellant "make love" to her. Shawn refused. Garcia then took out his knife. Appellant proceeded to have sexual intercourse with Shawn for about 15 minutes. During this time, Garcia knelt on the bed and said nothing. While appellant was still having intercourse with Shawn, her father entered the trailer. Mr. M. grabbed appellant as he was trying to leave, and Garcia stabbed Mr. M. in order to free appellant.

Shawn testified that she knew Garcia "pretty well" and had known him for approximately one year. She had last seen him about four days before the incident. She also testified that she was very good friends "off and on" with appellant and that during one three-month period she spent almost every day at appellant's house. At the time of the incident, however, Shawn considered Garcia her boyfriend. 3

Finally, Shawn admitted that she told both Garcia and appellant that she was over 16 years old. She also conceded that she looked as if she were over 16. 4

Garcia testified to quite a different set of events. He first met Shawn in the summer of 1980 when she introduced herself to him. On the afternoon of June 2, 1981--the day before the offense--Shawn invited him to spend the night in the trailer with her so that they could have sex. He and Shawn engaged in sexual intercourse about four times that evening. Shawn invited Garcia to come back the following night at midnight.

The next night, after two unsuccessful attempts to enter the trailer, Garcia and appellant were told by Shawn to return at midnight. Garcia knocked on the trailer door. Shawn, wearing only a pair of panties, opened the door and invited them in. She told them she wanted to "take both [of them] on." She then told Garcia that she wanted "to make love" with appellant first. When Mr. M. entered the trailer, appellant was on top of Shawn. Garcia denied threatening Shawn with a knife, taking her nightgown off, breaking into the trailer or forcing her to have sex with them. 5

At the conclusion of the trial, the court found 6 Garcia and appellant guilty of violating section 288, subdivision (a). 7 In reaching its decision, the court rejected defense counsel's argument that a good faith belief as to the age of the victim was a defense to the section 288 charge. Appellant was sentenced to the lower term of three years in state prison. This appeal followed. 8

Appellant's sole contention on appeal is that a good faith, reasonable mistake of age is a defense to a section 288 charge.

II.

The language of section 288 is silent as to whether a good faith, reasonable mistake as to the victim's age constitutes a defense to a charge under that statute. Resort is thus made to judicial decisions discussing the defense. Although this court has not considered the question, it has recognized a mistake of age defense in other contexts.

Twenty years ago, this court in People v. Hernandez (1964) 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, overruled established precedent, 9 and held that an accused's good faith, reasonable belief that a victim was 18 years or more of age was a defense to a charge of statutory rape. (Id., at p. 536, 39 Cal.Rptr. 361, 393 P.2d 673.) 10

In Hernandez, the accused was charged with statutory rape 11 of a girl who was 17 years and 9 months old, and who had voluntarily engaged in an act of sexual intercourse. The trial court refused to allow the accused to present evidence of his good faith, reasonable belief that the prosecutrix was 18 or over. (61 Cal.2d at p. 530, 39 Cal.Rptr. 361, 393 P.2d 673.) On appeal, this court held it reversible error to exclude such evidence. (Id., at pp. 535-536, 39 Cal.Rptr. 361, 393 P.2d 673.)

The Hernandez court acknowledged that an accused possesses criminal intent when he acts without a belief that his victim is 18 or over. However, the court determined that if one engages in sexual intercourse with a female and reasonably believes she is 18 or over, then the essential element of criminal intent is missing. (Id., at pp. 534-536, 39 Cal.Rptr. 361, 393 P.2d 673.)

Relying on sections 20 12 and 26 13 and on People v. Vogel (1956) 46 Cal.2d 798, 299 P.2d 850, the court noted that it had recently "given recognition to the legislative declarations" in those two sections when it held in Vogel that a good faith belief that a previous marriage had been terminated was a valid defense to a charge of bigamy. (Hernandez, supra, 61 Cal.2d at p. 535, 39 Cal.Rptr. 361, 398 P.2d 673.) The court stated, "the reluctance to accord to a charge of statutory rape the defense of a lack of criminal intent has no greater justification than in the case of other statutory crimes [such as bigamy], where the Legislature has made identical provision with respect to intent." (Ibid.) Thus, "it cannot be a greater wrong to entertain a bona fide but erroneous belief that a valid consent to an act of sexual intercourse has been obtained." (Ibid.) The court went on to hold that a charge of statutory rape is defensible where a criminal intent is lacking unless there is a "legislative direction otherwise." (Id., at p. 536, 39 Cal.Rptr. 361, 393 P.2d 673.)

The Hernandez court, however, cautioned that its holding was not "indicative of a withdrawal from the sound policy that it is in the public interest to protect the sexually naive female from exploitation. No responsible person would hesitate to condemn as untenable a claimed good faith belief in the age of consent of an 'infant' female whose obviously tender years preclude the existence of reasonable grounds for that belief." (Ibid.) The court then concluded that there was nothing to indicate that "the purposes of the law [could] be better served by foreclosing the defense of a lack of intent." (Ibid.)

One Court of Appeal has declined to apply Hernandez in an analogous context. In People v. Lopez (1969) 271 Cal.App.2d 754, 760-762, 77 Cal.Rptr. 59, certiorari denied, 396 U.S. 935, the court refused to recognize a reasonable mistake of age defense to a charge of offering or furnishing marijuana to a minor (former Health & Saf.Code, § 11532). The court noted that the act of furnishing marijuana is criminal regardless of the age of the recipient and that furnishing marijuana to a minor simply yields a greater punishment than when the substance is furnished to an adult. (Lopez, supra, 271 Cal.App.2d at pp. 760-761, 77 Cal.Rptr. 59.) "[A] mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed. [Citations.]" (Ibid.) 14

In deciding whether to apply the philosophy of Hernandez to the offense of lewd or lascivious conduct with a child under the age of 14, this court is guided by decisions of the Courts of Appeal. The three post-Hernandez Court of Appeal decisions which have considered the issue have refused to apply Hernandez. 15 (...

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