The three post- Hernandez Court of Appeal decisions which have considered the issue have refused to apply Hernandez. ( People v. Gutierrez (1978) 80 Cal.App.3d 829, 833-836 [ 145 Cal.Rptr. 823]; People v. Toliver (1969) 270 Cal.App.2d 492, 494-496 [ 75 Cal.Rptr. 819], cert. den., 396 U.S. 895 [24 L.Ed.2d 172, 90 S.Ct. 193]; People v. Tober (1966) 241 Cal.App.2d 66, 72-73 [ 50 Cal.Rptr. 228].) There appears to be only one pre- Hernandez section 288 case which has considered the issue.
Morgan was later overruled in People v. Kimble (1988) 44 Cal.3d 480, 497-498 [ 244 Cal.Rptr. 148, 749 P.2d 803] on the grounds defendant's statement must be proven false by his or her own statements alone without separate corraborative proof. (See also People v. Gutierrez (1978) 80 Cal.App.3d 829 [ 145 Cal.Rptr. 823] [in prosecution for child molestation, defendant's contradictory statements first denying he had been with the victim, and later admitting being with the girl but claiming she consented, were admissible to show his consciousness of guilt]; People v. Walker (1950) 99 Cal.App.2d 238, 243 [ 221 P.2d 287] ["False statements for the purpose of misleading or warding off suspicion are indicative of consciousness of guilt"]; People v. Turner (1948) 86 Cal.App.2d 791, 801 [ 195 P.2d 809] ["Guilty knowledge, . . . may be shown by the facts and circumstances in the case, including . . . any false or misleading statements he may make . . . with relation to material facts, for the purpose of misleading, or warding off suspicion. Such conduct is receivable in evidence as indicating a consciousness of guilt. . . ."]; People v. Flores (1969) 269 Cal.App.2d 666, 670 [ 75 Cal.Rptr. 231] ["The making of a false statement for the purpose of warding off suspicion is also receivable ev
(See also People v. Tober (1966) 241 Cal.App.2d 66 [ 50 Cal.Rptr. 228].) Finally, in another section 288 case — People v. Gutierrez (1978) 80 Cal.App.3d 829 [ 145 Cal.Rptr. 823] — the court followed Toliver, and while the present case has been pending before this court we unanimously denied hearing in Gutierrez.Toliver distinguished Hernandez on the following ground: " Hernandez points out that in a broad sense consent can be an element of statutory rape, on the principle that a female whom a male may reasonably believe to be older than 18 can consent to the act of intercourse.
Although a mistake-of-age defense has been allowed with respect to a charge of unlawful sexual intercourse ( People v. Hernandez (1964) 61 Cal.2d 529 [ 39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]), the courts of this state have consistently declined to recognize such a defense in the context of a section 288, subdivision (a), violation. ( Olsen, supra, 36 Cal. 3d at p. 647; People v. Gutierrez (1978) 80 Cal.App.3d 829, 833-836 [ 75 Cal.Rptr. 819]; People v. Toliver (1969) 270 Cal.App.2d 492, 494-496 [ 145 Cal.Rptr. 823]; People v. Tober (1966) 241 Cal.App.2d 66, 72-73 [ 50 Cal.Rptr. 228].) When Hernandez was decided, statutory rape was defined in section 261, subdivision (1), which provided inter alia that: "Rape is an act of sexual intercourse accomplished with a female, under either of the following circumstances: 1. Where the female is under the age of eighteen years; . . ."
Acting "in concert" is not necessarily synonymous with "aiding and abetting." As the court in People v. Gutierrez (1978) 80 Cal.App.3d 829, 839 [ 145 Cal.Rptr. 823], noted, the element of multiple parties acting in concert appears to be sufficient whether there are two assailants or six. Consequently, the fact that both men, wearing ski masks or knit caps over their heads, together entered her home and successively raped the victim, each in the presence of the other, was enough to sustain an "in concert" finding. (4) Even if defendant were correct in his assertion that facts establishing accomplice liability were a prerequisite to an "in concert" finding, we have no trouble finding substantial evidence that the second man aided and abetted defendant.
As the Olsen court explains, the tender age of the victim (under 14 years) makes a mistake of age inherently unreasonable. ( Olsen supra, 36 Cal.3d at p. 645-648; People v. Guttierrez (1978) 80 Cal.App.3d 829, 833-36 [ 145 Cal.Rptr. 823]; People v. Toliver (1969) 270 Cal.App.2d 492, 494-96 [ 75 Cal.Rptr. 819]; People v. Tober, supra, 241 Cal.App.2d 66, 72-73.) In Olsen, supra, 36 Cal.3d 638, statutory rape is distinguished from child molestation (§ 288, subd. (a)) in that a mistake of age when the victim is approaching 18 years can conceivably be made in good faith.
(7) Section 288 is intended not just to punish individuals for violating the moral standards of the community, but also to protect infants and children from lewd and lascivious assaults. ( People v. Meacham (1984) 152 Cal.App.3d 142, 156 [ 199 Cal.Rptr. 586]; People v. Gutierrez (1978) 80 Cal.App.3d 829, 834-836 [ 145 Cal.Rptr. 823]; People v. Toliver (1969) 270 Cal.App.2d 492, 496 [ 75 Cal.Rptr. 819]; People v. Hobbs (1952) 109 Cal.App.2d 189, 192 [ 240 P.2d 411].) Implicit in the determination that children must be protected from such acts is a determination that at least some harm is inherent in and inevitably results from those acts.
( Id., at pp. 341-342.) Further, in People v. Gutierrez (1978) 80 Cal.App.3d 829 [ 145 Cal.Rptr. 823], the court rejected defendant's contention that he should not be subject to the enhanced punishment for forcible sex offenses committed in concert because only he and one other had been involved in the sexual assaults. Most recently, the court in People v. Lopez (1981) 116 Cal.App.3d 882 [ 172 Cal.Rptr. 374] held there is no requirement that the defendant either participate in or be personally present during the act for the purposes of acting in concert.
They argue the language of section 264.1 reveals it to be an enhancement. They cite several cases ( People v. Navarro (1981) 126 Cal.App.3d 785, 788 [ 179 Cal.Rptr. 118]; People v. Lopez (1981) 116 Cal.App.3d 882, 886 [ 172 Cal.Rptr. 374]; People v. Wheeler (1977) 71 Cal.App.3d 902, 907 [ 139 Cal.Rptr. 737]; People v. Gutierrez (1978) 80 Cal.App.3d 829, 839 [ 145 Cal.Rptr. 823]; see also People v. Calimee (1975) 49 Cal.App.3d 337, 341 [ 122 Cal.Rptr. 658]) where section 264.1 is mentioned as an "enhancement." Those cited cases did not confront the issue presented here. Our analysis of the statutes and authorities compels the conclusion that Penal Code section 264.1 establishes a separate crime for rape in concert, not merely an enhancement.
Since he admitted that his pretrial statements to police were inconsistent, this case does not involve the concern dealt with by the Rubio court. Moreover, because appellant also admitted that he lied to officers, there was a factual basis in the record which justified a reading of CALJIC No. 2.03. (Accord People v. Vasquez (1979) 94 Cal.App.3d 42, 45 [ 156 Cal.Rptr. 235]; People v. Gutierrez (1978) 80 Cal.App.3d 829, 836 [ 145 Cal.Rptr. 823].) Second, appellant claims error in reading the instruction because it impermissibly singles out his testimony for juror scrutiny.