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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Einar OLSEN, Defendant and Appellant.


Decided: November 23, 1983

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Cr. Div., William D. Stein, Asst. Atty. Gen., Kristofer Jorstad, Mary A. Roth, Deputy Attys. Gen., for plaintiff and respondent. Gregory H. Saldivar, San Jose, for defendant and appellant.

In this action we reconsider the issue of whether a good faith, reasonable mistake of fact as to age is a defense to the crime of lewd or lascivious acts with a child under the age of 14 years.  (Pen.Code, § 288, subd. (a).)

On the night of June 3, 1981, the parents of Shawn M. were entertaining out-of-town guests.   Since one of the visitors was using Shawn's bedroom, Shawn was staying in the family's camper trailer which was parked in the driveway of the house.   Shawn was, at that time, more than 13 years and 10 months of age.   She had suggested sleeping in the trailer and her parents agreed on condition she keep the windows shut and the door locked.

Some time during the night Shawn's father, who is legally blind, was awakened by the family dogs barking.   He dressed, went out the front door and heard male voices coming from the trailer.   The voices were talking, though not loudly or emotionally.   Mr. M. opened the door of the trailer and somebody remarked that he was there.   The voices then became panicked and one said, “Let's get the hell out of here.”

Mr. M. could see three forms on the bed.   One of the men jumped off the bed and tried to get out.   Mr. M. grabbed him, the two wrestled and Mr. M. put a headlock on him.   Mr. M. then felt a “pounding” on his back and right shoulder.   Suddenly, blood started coming from everywhere and Mr. M. let loose of the male he was holding.   Mr. M. had been stabbed.   Subsequent examination of the trailer revealed that neither the front door lock nor windows of the trailer had been broken.

Shawn M. testified that she had spent three nights in the trailer to make room in the house for the family's guests.   On the third night she unlocked the trailer, gave back the key to her father, then returned to the trailer and locked the front door.   She went to sleep but was awakened by a knock on the window at approximately 10 p.m.   Defendant Olsen asked to be let in.   Shawn said nothing and defendant left.   A half hour later, codefendant Garcia came to the window and asked to be let in.   Olsen returned and again asked to come in.   Shawn did not say anything.   After the two men had left Shawn fell asleep.

Shawn stated that she was awakened a second time.   Garcia was inside the trailer, had a knife by her side and his hand over her mouth.   Garcia called to defendant Olsen that it was okay to come in.   Olsen entered and Garcia locked the door.

Garcia told Shawn to let Olsen make love to her or he would stab her.   Garcia gave the knife to Olsen who held it to Shawn's neck briefly, then returned it to Garcia.   Shawn asked Garcia to put the knife away and he did.   The two men removed Shawn's nightgown and underpants.   Shawn pushed Olsen away once, but he got on top of her again.   Olsen had sexual intercourse with Shawn for about 15 minutes;  Garcia knelt on the bed beside them and said nothing.   While Olsen was still having intercourse with Shawn, her father walked in.   Olsen jumped up, pulled up his pants and tried to leave.   Mr. M. got him in a headlock and Garcia stabbed Mr. M. in order to help Olsen get loose.

Shawn testified that she had known Garcia pretty well for approximately one year.   She last saw him about four days before the incident.   She was also “very good friends” “off and on” with Olsen and had known him for one year.   During that time there was a three-month period when she was over at Olsen's house everyday.   However, on June 3, 1981 she considered Garcia her boyfriend.

In describing the events that transpired in the trailer, Shawn stated that she did not know how Garcia had gotten into the trailer.   Aside from trying to push Olsen away, she did not do anything to indicate that she did not want to make love with him.   She had intercourse with Olsen only one time.

This incident was not the first time Shawn had had intercourse, although she denied having had any prior experience with either Garcia or Olsen.   She admitted having had voluntarily sexual relations, short of intercourse, with both men prior to the night of June 3.   She also said that she was afraid that if her father found out that she had willingly engaged in sexual conduct, her father would be very angry.   She told the doctor who examined her after the offense that she had not previously been sexually active.

Finally, Shawn admitted having told both Garcia and Olsen that she was over 16.   Moreover, she agreed that she looked over 16.

Codefendant Garcia testified on his own behalf.   He said he first met Shawn the summer of 1980 when she stopped her bicycle and introduced herself to him.   On the afternoon of June 2, 1981, Shawn invited Garcia to spend that night in the trailer so that they could have sex.   He had had sex with her one time before, on the first day he met her.   Garcia spent the entire night in the trailer with Shawn, having sex with her about four times.   Shawn invited Garcia to come back on the next night at midnight.

Garcia returned the next night with Olsen.   Garcia approached the trailer and spoke to Shawn through the window.   She told him to come back later with Olsen.   Garcia and Olsen returned between 11:30 and midnight.   Garcia knocked on the trailer door.   Shawn, wearing only a pair of panties, opened the door and invited the two men in.   She said she wanted to take both men on.   Shawn told Garcia that she wanted to make love with Olsen first.   Olsen was on top of Shawn when Mr. M. entered the trailer.

Garcia denied that he ever threatened Shawn with a knife, that Shawn had ever indicated she did not wish to have sex with either Garcia or Olsen and that Shawn pushed Olsen away.

Donna Olsen, defendant's sister, testified that for a three-month period Shawn had visited the Olsen home on a daily basis.   Almost every time she visited, Shawn and her brother would go into her brother's bedroom and close the door.   On one occasion she went into the bedroom and saw Shawn and Olsen in bed under the covers.   Donna often entered Olsen's room after Shawn had visited and found the bed messed up and a strong odor, which she associated with sex, in the air.

Roger Brown, Olsen's next door neighbor, testified that he often encountered Shawn and Olsen emerging from Olsen's bedroom at 8:30 in the morning.

Joseph Williams, a 16-year old friend of Garcia's also knew Shawn for approximately one year.   Shawn had visited Joseph and had babysat for Joseph's mother.   He stated that he and his 15-year old neighbor Chuck Almond had simultaneously been in bed with Shawn on two occasions.   It had been Shawn's idea to have sex together.   On one occasion Chuck's father caught them in bed and ordered Shawn out of the house.   Shawn took her time getting dressed which upset Mr. Almond.   Joseph also testified that Shawn had told him she was 15 or 16.

Chuck Almond and his father each corroborated Joseph Williams' testimony.   Chuck stated that Joseph would watch while he had intercourse with Shawn and he would watch when Joseph did.

Based on this evidence the trial court found both Garcia and Olsen not guilty of burglary and rape.   It found Garcia guilty of assault and it found both defendants guilty of lewd or lascivous conduct with a child under the age of 14 years.  (Pen.Code, § 288, subd. (a).)  In reaching its determination the court specifically stated that it had followed People v. Gutierrez (1978) 80 Cal.App.3d 829, 145 Cal.Rptr. 823.

Olsen's sole contention on appeal is that Gutierrez is wrong and that a good faith, reasonable mistake as to age is a valid defense to a violation of Penal Code section 288.1

The genesis of the concept that an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which a defendant is indicted an innocent act goes back to common law.  (People v. Snyder (1982) 32 Cal.3d 590, 597, 186 Cal.Rptr. 485, 652 P.2d 42;  Matter of Application of Ahart (1916) 172 Cal. 762, 764–765;  Regina v. Tolson (1889) 23 Q.B.D. 168, s.c., 40 Alb.L.J. 250.)   Thus, in People v. Hernandez (1964) 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 our Supreme Court held that such an honest and reasonable belief that a girl was over the age of 18 years was a legitimate defense to the charge of statutory rape.

Subsequent cases, relying on Hernandez, have held that a reasonable mistake as to age is a valid defense to annoying or molesting a child under the age of 18 (Pen.Code, § 647a), contributing to the delinquency of a child under 18 (Pen.Code, § 272), oral copulation with a person under 18 (Pen.Code, § 288a, subd. (b)), and soliciting a minor to use marijuana (Health & Saf.Code, § 11361) and cocaine (Health & Saf.Code, § 11353).   (See, People v. Atchison (1978) 22 Cal.3d 181, 183, 148 Cal.Rptr. 881, 583 P.2d 735;  People v. Peterson (1981) 126 Cal.App.3d 396, 397, 178 Cal.Rptr. 734;  People v. Goldstein (1982) 130 Cal.App.3d 1024, 1036–1037, mod. 132 Cal.App.3d 630 a, 182 Cal.Rptr. 207 (as modified), respectively.)

Three cases have considered the applicability of a mistake of fact as to age as a defense to lewd or lascivious conduct with a child under 14 since Hernandez.  (People v. Gutierrez, supra, 80 Cal.App.3d 829, 145 Cal.Rptr. 823;  People v. Toliver (1969) 270 Cal.App.2d 492, 75 Cal.Rptr. 819, U.S. cert. den. 396 U.S. 895, 90 S.Ct. 193, 24 L.Ed.2d 172;  People v. Tober (1966) 241 Cal.App.2d 66, 50 Cal.Rptr. 228.) 2  All three ruled that a reasonable belief that the victim is over the age of 14 is not a valid defense to a section 288 violation.   Each case relied on the following language in Hernandez:  “Our departure from the views expressed in Ratz [3 ] is in no manner 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.   However, the prosecutrix in the instant case was but three months short of 18 years of age and there is nothing in the record to indicate that the purposes of the law as stated in Ratz can be better served by foreclosing the defense of lack of intent.”  (61 Cal.2d at p. 536, 39 Cal.Rptr. 361, 393 P.2d 673.)

Nobody can question the sound public policy of protecting sexually naive youngsters from exploitation.   However, we do not construe the above-quoted passage from Hernandez as establishing an absolute prohibition to a defense of mistake of age in a section 288 violation.

The transition from naivete to sophistication does not suddenly occur on one's 14th birthday.   The existence of maturity must be a factual determination that necessarily depends on the surrounding circumstances in each case.   This view is inherent in other statutes.   For example, section 26 provides that a child under the age of 14 is incapable of committing a crime unless there is clear proof that at the time of committing an act that the child knew its wrongfulness.

While it is laudable to attempt to protect innocence, there must, in fact, be innocence to protect.   Unfortunately, the presumption that a youth under the age of 14 is naive is all too quickly becoming an anachronism in today's society.   In the instant case, there was testimony that Shawn's sexual encounters commenced the summer prior to the June 3, 1981 incident, if not before.   Her subsequent activities appear to be relatively frequent and varied.   Given the evidence at trial it is difficult to imagine the girl a “sexually naive female” in need of protection from “exploitation.”

The dissenting opinion correctly states that the question of consent is not an issue in a section 288 case.   However, the element of criminal intent is the matter at issue.  Hernandez expressly held that “in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein a criminal intent is lacking.”  (People v. Hernandez, supra, 61 Cal.2d at p. 536, 39 Cal.Rptr. 361, 393 P.2d 673.)   Thereafter, in People v. Toliver, supra, 270 Cal.App.2d at p. 496, 75 Cal.Rptr. 819, the court noted that in response to the Hernandez decision, the Tentative Draft No. 1 of the Penal Code Revision Project prepared for the revision of the Penal Code (§ 1600, subd. (4) had proposed the following statute:  “Whenever in this chapter the criminality of conduct depends on a child's being below the age of fourteen, it is no defense that the actor reasonably believed the child to be fourteen or older.”

Legislative history reveals that the 1971 draft of the proposed California Criminal Code amended the proposed statute to read as follows:  “Whenever the criminality of conduct depends on a person being younger than a particular age, it is no defense that the defendant reasonably believed the person to be older than that particular age.”  (Joint Legislative Comm. for Revision of the Penal Code, The Criminal Code (Staff Draft 1971) § 900, subd. (e) p. 69.)   Subsequently, the above quoted section was totally deleted from the proposed bills.  (See, Sen. Bill No. 1506 (1972 Reg.Sess.) § 9001;  Sen. Bill No. 39 (1973–1974 Reg.Sess.) § 9001.)   Eventually Senate Bill No. 39 was passed by the Senate but died in the Assembly Criminal Justice Committee.  (Joint Legislative Comm. for Revision of the Penal Code, The Criminal Procedure Code (Staff Draft 1975) p. iv.)   In 1976 section 288 was amended as part of the Determinate Sentencing Act.  (Stats.1976 c. 1139, p. 5110, § 177.)   Additional amendments were made to the statute in 1978, 1979 and 1981.  (See, Stats.1978, c. 579, p. 1984, § 17;  Stats.1979, ch. 944, p. 3254, § 6.5;  Stats.1981, c. 1064, p. 4093, § 1 respectively.)   No mention has ever been made regarding the lack of criminal intent.

 “Statutes are to be interpreted by assuming that the Legislature was aware of the existing judicial decisions [Citation.]  Moreover, failure to make changes in a given statute in a particular respect when the subject is before the Legislature, and changes are made in other respects, is indicative of an intention to leave the law unchanged in that respect.  [Citation.]”  (Kusior v. Silver (1960) 54 Cal.2d 603, 618, 7 Cal.Rptr. 129, 354 P.2d 657;  see also, Orr v. Superior Court (1969) 71 Cal.2d 220, 226, 77 Cal.Rptr. 816, 454 P.2d 712 [overruled on other grounds in Rios v. Cozens (1972) 7 Cal.3d 792, 799, 103 Cal.Rptr. 299, 499 P.2d 979].)  In the present case it is clear that the Legislature has had the opportunity to state that a reasonable belief that a person is older than 14 is not a valid defense to a charge of lewd or lascivious conduct but has failed to do so.   Therefore, we must conclude that the Legislature did not intend to omit criminal intent as an element of a 288 violation.

 In the instant action June 3, 1981 was less than two months before Shawn's 14th birthday.   She had led numerous people to believe that she was over 14 and, by her own admission, had told both Garcia and Olsen that she was 16.   Thus, there was sufficient evidence to show that Olsen reasonably believed the girl to be over the age of 14 years.

 The people maintain that a mistake of fact may not absolve liability where a defendant has criminal intent but merely commits a different offense from the one he intended.   Respondent argues that even if defendant is not guilty of lewd or lascivious conduct with a child under the age of 14, he is guilty of unlawful sexual intercourse.  (Pen.Code, § 261.5.) 4  The difficulty with this position is that the People never charged Olsen with unlawful sexual intercourse and such charge is not a lesser included offense of lewd or lascivious conduct with a child under 14.  (People v. Nicholson (1979) 98 Cal.App.3d 617, 623, 159 Cal.Rptr. 766.)

The judgment is reversed.

I respectfully dissent.

In its opening paragraph, the majority opinion states that “we reconsider the issue of whether a good faith, reasonable mistake of fact as to age is a defense to the crime of lewd or lascivious acts with a child under the age of 14 years.”

I find no need, either in the facts of this case or under existing law, for such “reconsideration.”   The law is clear.1  Unlike People v. Hernandez, supra, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, and the other cases upon which the majority relies, it is apparent that the element of consent was not a consideration in the enactment of this statute.   By its enactment the Legislature sought to protect children against their own inability to know and understand the consequences of sexual behavior.   As pointed out in People v. Gutierrez, supra, 80 Cal.App.3d 829, 145 Cal.Rptr. 823, violation of section 288 of the Penal Code does not involve consent of any sort, thereby placing public policies underlying it and statutory rape on different footings.  (People v. Gutierrez, supra, 80 Cal.App.3d 829, 835, 145 Cal.Rptr. 823.)

The majority seeks to extend the rule set down by the California Supreme Court in People v. Hernandez, supra, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673.   Such an extension is unwarranted.   By its very language, the court in Hernandez made it clear that it did not contemplate the application of its rule in a case in which the female obviously is of tender years.  (People v. Hernandez, supra, at p. 536, 39 Cal.Rptr. 361, 393 P.2d 673.)

The majority views the victim's sexual behavior and the fact that she misrepresented her age and appearance as justification for defendant's conduct.   I cannot agree.   I think it inappropriate to assume a degree of adult sophistication simply on the basis of a cold record, which reflects sexually promiscuous conduct on the part of a 13-year-old child.   It is just as reasonable to assume that she was extremely naive and the victim of sexual exploitation by the defendants, neither of whom, it is obvious, much cared whether she was under 14 or over 18 years of age.

The majority opinion suggests that such naiveté in today's society is unrealistic.   It is true that we frequently observe children of both sexes, often under 14 years of age, plying the streets of our cities as male and female prostitutes.   However, I doubt that this unfortunate condition is peculiar to today's “enlightened” society.   It has existed down through the ages and perhaps is the very reason an earlier legislative body saw fit to enact this statute.

I accept the view enunciated in People v. Gutierrez, supra, 80 Cal.App.3d 829, 145 Cal.Rptr. 823, that the public policy consideration relied upon in People v. Toliver, supra, 270 Cal.App.2d 492, 75 Cal.Rptr. 819, and People v. Tober, supra, 241 Cal.App.2d 66, 50 Cal.Rptr. 228, “have not ceased to exist and their rationale is still sound ․”  (People v. Gutierrez, supra, 80 Cal.App.3d at p. 835, 145 Cal.Rptr. 823.)

I would affirm the judgment.


1.   All code sections will refer to the Penal Code, unless otherwise indicated.

2.   It should be noted that the circumstances in the three cited cases that have ruled on this issue are distinguishable from the instant action.   In Gutierrez, despite the fact that defendant testified that he thought the victim was 17, there was evidence that he had been told that she was only 12.   In Toliver, the victim was 13.   However, the defendant never asserted that he believed the victim to be over the age of 14;  his defense was an alibi.   In Tober, the victim was 10 years of age.

3.   (People v. Ratz (1896) 115 Cal. 132, 46 P. 915.)

4.   Penal Code section 261.5 provides as follows:  “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.”

1.   Penal Code, section 288, subdivision (a):  “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part of member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”  (See People v. Hernandez (1964) 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673;  People v. Gutierrez (1978) 80 Cal.App.3d 829, 145 Cal.Rptr. 823;  People v. Toliver (1969) 270 Cal.App.2d 492, 75 Cal.Rptr. 819 (cert. den. 396 U.S. 895, 90 S.Ct. 193, 24 L.Ed.2d 172);  People v. Tober (1966) 241 Cal.App.2d 66, 50 Cal.Rptr. 228.)

MILLER, Associate Justice.

KLINE, P.J., concurs.

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