People v. Zeihm

• Decision Date: 02 August 1974
• Docket Number: Cr. 24014
• Citation: 115 Cal.Rptr. 528,40 Cal.App.3d 1085
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Howard ZEIHM et al., Defendants and Respondents.

Page 528

115 Cal.Rptr. 528

40 Cal.App.3d 1085

The PEOPLE of the State of California, Plaintiff and Appellant, v. Howard ZEIHM et al., Defendants and Respondents.

Cr. 24014.

Court of Appeal, Second District, Division 2, California.

Aug. 2, 1974.

Rehearing Denied Aug. 22, 1974.

Hearing Denied Oct. 10, 1974.

Joseph P. Busch, Dist. Atty., Donald J. Kaplan, Deputy Dist. Atty., and Arnold T. Guminski, Los Angeles, for plaintiff and appellant.

Fleishman, McDaniel, Brown & Weston and John H. Weston, Hollywood, for defendants and respondents Howard Zeihm, Walter Cichy, and Lynn Rogers.

Richard S. Buckley, Public Defender, and Ronald B. Davey, Tarzana, for defendant and respondent Ron Coffman.

COMPTON, Associate Justice.

Pursuant to Penal Code section 1238(a)(1), the People appeal from an order of the superior court setting aside an information under Penal Code section 995.

Defendants Zeihm, Cichy and Rogers were charged in the information with two counts of conspiring to violate Penal Code section 288a, four substantive counts of violation of Penal Code section 288a and one count of violation of Penal Code section 261.5 (sexual intercourse with a female under the age of 18 years). Defendant Coffman was charged in the two conspiracy counts and two of the substantive counts of violation of Penal Code section 288a.

The charge of violating section 261.5 of the Penal Code had been dismissed following the preliminary hearing by the magistrate stating as follows:

'With respect to Count VII, the Court finds from the facts as elicited by the testimony that the People have failed to show that the requisite intent was present on behalf of any of the defendants named in Count VII Because of the reasoning stated in People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673. The Court, entertaining no strong suspicion as to the guilt of any of the defendants Because of that particular decision, orders that count to be dismissed.' (Emphasis added.)

Since defendants had been committed to the superior court on the remaining charges, the district attorney repleaded the 'statutory rape' charge in the information pursuant to Penal Code section 739. ¹ The superior court in granting the 995 motion as to the rape charge stated no grounds therefor, but as to the remaining charges based its ruling on the determination that Penal Code section 288a is unconstitutional.

The case against the defendants as presented before the magistrate rested principally on the testimony of three young women, one of whom was 14 years of age. They testified essentially that they performed acts of sexual intercourse and oral copulation with various individuals during the course of a commercial movie-making venture in which the defendants participated variously as performers, camera operators and producers.

As is usually the case, the defendants offered no evidence at the preliminary hearing, hence the testimony of the People's witnesses was uncontroverted and on its face was abundantly adequate to support all of the charges alleged in the information.

Concerning the charge of rape (Pen.Code, § 261.5) the record discloses simply that as a result of defendants' activities a 14 year old girl engaged in sexual intercourse with defendant Zeihm before an operating motion picture camera. The record is devoid of testimony by anyone that any of the defendants believed the child to be over 18 years of age. In fact there was evidence that at least two of the defendants knew otherwise. The child herself testified that she was 5 4 tall and weighed about 107 lbs. Except for this testimony as to her having reached an average height and weight which might also be descriptive of an older female, we are left in the dark as to why the magistrate felt obliged to apply the doctrine of People v. Hernandez, Supra.

Hernandez held simply that in a Trial of the charge of 'statutory rape' a defendant may establish his lack of criminal intent and thus his lack of guilt by proof of a good faith belief that the victim was of the age of consent. There the victim was of an age of 17 years and 9 months, yet the trial court had rejected defendant's offer to prove his belief that the act was not criminal. The Supreme Court held that the evidence should have been admitted. In short, the act of intercourse in Hernandez would have been a non-criminal act but for the age of the victim and it would remain non-criminal if the defendant in fact believed the victim to be of age. This is a far cry from the position of the defendants here.

The Hernandez court articulated its desire to continue support of the 'sound policy that it is in the public interest to protect the sexually naive female from exploitation.' It also stated that '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. . . . This is not to say that the granting of consent by even a sexually sophisticated girl known to be less than the statutory age is a defense.' (61 Cal.2d page 536, 39 Cal.Rptr. at page 365, 393 P.2d at page 677.)

The heart of the Hernandez decision is contained in the further quote from page 536, 39 Cal.Rptr. page 365, 393 P.2d page 677: 'We hold only that, in the absence of a legislative direction otherwise, a charge of statutory rape is Defensible wherein a criminal intent is lacking.' (Emphasis added.) The implication is clear that belief as to age is a matter of defense and is not part of the prosecution's burden of proof.

In the case at bar the defendants have at this stage neither Defended nor shown any lack of criminal intent. On the basis of the evidence presented to the magistrate it can only be concluded that defendants were engaged in illegal commercial exploitation of sex and perversion. There was no evidence upon which the magistrate or the superior court could have found that defendants entertained a belief that the child victim was over 18 years, and in any event since their conduct was otherwise illegal, 'a mistake of fact relating only to the gravity...