Opinion
For Opinion on Hearing, see 148 Cal.Rptr. 881, 583 P.2d 735.
Opinions on pages 846- 865 omitted.
[138 Cal.Rptr. 394]Albert L. Gordon, Los Angeles, for defendant and appellant.
Burt Pines, City Atty., and Shelley I. Rosenfield, Los Angeles, for plaintiff and respondent.
COMPTON, Associate Justice.
Defendant was convicted by a jury in the Municipal Court of the Los Angeles Judicial District of a violation of Penal Code, section 647a (annoying or molesting a child under the age of 18) and a violation of Penal Code, section 272 (contributing to the delinquency of a person under the age of 18).
On appeal the Appellate Department of the Superior Court of Los Angeles County, with one judge dissenting, affirmed the conviction. The majority of that court was of the opinion that the case was controlled by People v. Reznick, 75 Cal.App.2d 832, 171 P.2d 952, while the dissenter argued that Reznick had been overtaken if not expressly overruled by People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673. We affirm the conviction but for somewhat different reasons than those advanced by the appellate department.
In Reznick, the defendant was convicted of contributing to the delinquency of a minor (then Welf. & Inst.Code, § 702, a predecessor of Pen.Code, § 272) on evidence that he, while serving as a desk clerk in a hotel, permitted a 14 year old girl to register and occupy a room with an adult male. There was no evidence offered at the trial concerning defendant's belief or knowledge as to the girl's age. On appeal the conviction was affirmed, the Court of Appeal finding the evidence sufficient to support the judgment and rejecting defendant's claims of error concerning statements made by the trial judge and rulings on certain evidentiary questions.
That opinion has been viewed as standing for the proposition that ignorance of the age of the victim is no defense to the charge of contributing to the delinquency [138 Cal.Rptr. 395] of a minor because, as the court there pointed out, that charge does not specifically require as one of its elements knowledge that the victim is under age. In other words there is no burden on the prosecution to prove that the defendant knew the victim to be under age.
On the other hand, People v. Hernandez dealt with a charge of statutory rape (then Pen.Code, § 261, subd. (1) condemning intercourse with a female under 18 years of age, now Pen.Code, § 261.5). There the court held that it was error to refuse to permit evidence by the defendant that he had a good faith reasonable belief that the victim was over 18 years of age.
In People v. Toliver, 270 Cal.App.2d 492, 75 Cal.Rptr. 819, the Court of Appeal refused to apply the Hernandez principle to a charge of violating Penal Code section 288 (lewd or lascivious conduct with a child under 14 years of age). It was there reasoned that the public policy underlying the crime of 'statutory' rape was quite distinct from that policy of protecting children of tender years against lewd or lascivious assaults, which policy underlies Penal Code section 288. Further, in Toliver as in Reznick, there was no evidence that defendant had any belief that the age of the child was beyond that specified in the statute. In fact Toliver's defense was alibi.
A synthesis of the foregoing cases indicates that the Hernandez opinion did not change the elements of the crime of statutory rape nor did it serve to convert various statutes prohibiting certain conduct with children into 'specific intent' crimes. These cases point up the fact that, depending upon the particular circumstances of the offense and the particular policy served by the statute involved, the defendant may negate the requisite mental element for the particular crime charged by showing that he had an honest and good faith belief that the victim was of greater age than specified by the statute.
The Hernandez decision did not place a burden on the prosecution to prove in all cases of that type that the defendant knew of the victim's age. (People v. Zeihm, 40 Cal.App.3d 1085, 115 Cal.Rptr. 528.) The good faith belief that the victim was of age was recognized as a special defense which could be interposed and supported by evidence produced by the defendant in cases where his conduct would be noncriminal but for the age of the victim. Against this background we turn to the facts of the instant case.
The victim Keith W. was a boy 15 years of age and on January 21, 1975, he was hitchhiking on the Golden State Freeway. Defendant gave Keith a ride and took him to his (defendant's) home. At the house, according to Keith, defendant offered him marijuana which he refused, served him wine, exhibited a pornographic movie, unzipped Keith's pants and placed his hands inside the pants. The defendant proposed that the two engage in an act of oral copulation which proposal was refused. Defendant then took Keith back to the freeway and let him out. Keith went immediately to the police and reported the incident.
For his part defendant admitted on the witness stand that he took the boy to his home but he denied that any of the above described activity took place. He produced two persons who were allegedly on the premises, albeit in the bedroom and out of sight, who corroborated defendant's denials. Defendant did, in passing, testify that Keith told him he was 19 years old.
Contrary to the appellate department's view of the case the question here is not whether Reznick or Hernandez are controlling or whether Hernandez overruled Reznick. Assuming arguendo that under certain circumstances as noted above a good faith and reasonable belief that a child is over the age of 18 can be a defense to a charge of violating either Penal Code section 272 or 647a, the issue here is whether [138 Cal.Rptr. 396] defendant is entitled to a reversal of his conviction, because of the failure of the trial court to sua sponte instruct the jury on that issue.
The policy underlying the statutes which condemn contributing to the delinquency of a minor (Pen.Code, § 272, and molestation Pen.Code, § 647a is designed to protect children and to that extent is more analogous to Penal Code section 288 than the policy underlying the crime of statutory rape.
'Unlike the rule obliging the court to instruct on lesser included offenses and to give requested instructions whenever there is 'any evidence deserving of any consideration . . .,' the duty ot give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with defendant's theory of the case.' (People v. Sedeno, 10 Cal.3d 703, at p. 716, 112 Cal.Rptr. 1, at p. 9, 518 P.2d 913, at p. 921.)
Initially it is to be noted that furnishing or giving away marijuana to another is a crime regardless of the age of the recipient. (Health & Saf.Code, § 11360.) Hence when that conduct forms the basis for a charge of contributing to the delinquency of a minor the Hernandez rationale would be of no comfort to a defendant.
Beyond that, however, and as to the entirety of the conduct of the defendant as testified to by Keith, the defense here was denial. To that extent defendant is no different than defendant Toliver who offered an alibi defense.
It 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. The defense offered by the defendant was inconsistent with that principle.
According to defendant's testimony Keith's age had nothing to do with the case. Defendant's conduct, if he were believed, would have been noncriminal whether Keith was 12 or 22. In short defendant did not rely on that defense and he requested no instructions on the issue. Under these circumstances the trial judge was not required to sua sponte instruct on that defense.
Appellate courts should not put trial judges 'under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.' (People v. Sedeno, supra, at pp. 716-717, 112 Cal.Rptr. at p. 10, 518 P.2d at p. 922.) Nor, we add, should a defendant be permitted to 'sandbag' the trial judge by failing to request instructions in order to take advantage on appeal of a lack of instructions which he claims should have been given.
The judgment is affirmed.
BEACH, J., concurs.
ROTH, Presiding Justice, dissenting.
I dissent.
In my opinion, People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673, applies. The instruction given in reliance on People v. Reznick, 75 Cal.App.2d 832, 171 P.2d 952, which required the jury to disregard evidence of reasonable mistake as to age effectively nullified the defense here offered. This is not in keeping with the holding and philosophy of Hernandez.
It is conceded that defendant 'did, in passing, testify that Keith told him he was 19 years old.' Assuming therefore for purposes of argument that Hernandez does not place a burden on the prosecution to prove that defendant knew the victim's age, and also that the court had no obligation to instruct sua sponte on defendant's good faith belief of the victim's age, the fact remains that the court's affirmative instruction that defendant's belief as to the victim's age was immaterial, was gravely prejudicial on the facts.