Opinion
For Opinion on Hearing, see 39 Cal.Rptr. 361, 393 P.2d 673.
Ellery E. Cuff, Public Defender, Fred Kilbride and James L. McCormick, Deputy Public Defenders, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.
JEFFERSON, Justice.
In an information filed by the district attorney of Los Angeles County, defendant was charged with the crime of statutory rape in violation of section 261, subdivision 1, of the Penal Code. The information further alleged a prior felony conviction, assault with intent to commit murder. Defendant entered a plea of not guilty and denied the prior conviction. A subsequent motion by the district attorney to strike the prior conviction was granted on the ground that it had been inadvertently alleged.
Trial was by the court, defendant and all counsel having waived trial by jury. Defendant was found guilty of statutory rape and the court fixed the offense as a misdemeanor. A probation report was ordered, and probation was granted as follows: Proceeding suspended--probationary period two years, upon condition that defendant pay a fine of $150 and $7.50 penalty assessment
Defendant appeals from the judgment and purportedly from an order denying a motion for a new trial. The record however reflects that defendant made no motion for a new trial. The material facts are as follows:
The victim testified that she was 17 years of age, her date of birth being March 31, 1943; she was acquainted with defendant for approximately two months when she had an act of sexual intercourse with him at his apartment on January 3, 1961, and that as a result of this sexual relationship a child was born; that prior to the act of sexual intercourse, she had not discussed her age with defendant. She stated that a civil judgment was obtained requiring defendant to support the child.
The victim's mother testified her daughter (the victim) was born on March 31, 1943.
Defendant testified in his own behalf. He admitted that he had an act of sexual intercourse with the victim in his apartment on the date alleged in the information. Defendant makes no claim that the evidence is insufficient to justify the judgment. His sole contention is that the trial court committed reversible error in its refusal to permit him 'to present evidence for the purpose of showing that he had in good faith a reasonable belief that the female involved was 18 years of age or over.'
The record reflects defense counsel attempted to question the victim regarding certain statements she had made to the police in the presence of defendant concerning her age prior to the date of the offense with which defendant is charged. An objection to the question was sustained by the court and defendant made an offer of proof as follows: 'I offer that this witness would testify that on an occasion within a couple of months after they had commenced to go together that when she was in his [defendant's] company the police one night in the Lincoln Heights area inquired of her what her age was and she stated audibly * * * that she was eighteen years old.'
Defendant's counsel questioned the victim regarding a second episode in the Lincoln An objection to a question about another similar incident which occurred in the city of Hollywood was also sustained as was an objection to a question concerning the age she gave to her employer. In each instance an offer of proof was rejected by the court.
The court did permit defendant to answer the question 'Now at the time that you had that act of sexual intercourse did you believe that she was 18 years of age?' Answer, 'Yes * * *.' The evidence was received however, only for the limited purpose of 'showing mitigation or aggravation.'
Section 261 of the Penal Code provides in part that, 'Rape is an act of sexual intercourse, accomplished with a female not the wife of the prepetrator, under either of the following circumstances: 1. Where the female is under the age of 18 years; * * *.'
The undisputed evidence here is that an act of sexual intercourse was accomplished with the victim who was not the wife of defendant at a time when she was under the age of 18 years.
It has long been the rule in California that one who has an act of sexual intercourse with a child under a certain age is guilty of statutory rape, even though she has given consent and even though defendant has a bona fide and good faith belief that she is past the age which establishes the crime. (People v. Griffin, 117 Cal. 583, 586, 49 P. 711.)
The law has not been changed since this case was decided although the Legislature has raised the age limit from 14 to 18 years. A similar contention as raised here was made in the case of People v. Ratz, 115 Cal. 132, 134-135, 216 P. 915, 916. At that time the age requirement was 14 years. The contention made was that, 'even though the child be shown to have been under the age of 14 years, yet that, if the defendant had reason to believe, and did believe, that she was over the age of 14 years, then there was an absence of the necessary intent to constitute a crime * * *.' The trial court was asked to give an instruction to the jury embodying this contention as a rule of law. The proposed instruction was refused. The refusal was assigned as error. The court held, 'The object and purpose of the law are too plain to need comment, the crime too infamous to bear discussion. The protection of society, of the family, and of the infant, demand that one who has carnal intercourse under such circumstances shall do so in peril of the fact, and he will not be heard against the evidence to urge his belief that the victim of his outrage had passed the period which would make his act a crime.'
We conclude that illicit sexual intercourse with a female under age 18 is a violation of Penal Code, section 261, subdivision 1, and is so regardless of the belief of defendant as to the female's age. If the law is to be changed to allow this defense, the change must be made by legislative action and not by judicial decision. No error was committed by the trial court in excluding evidence offered to show defendant's belief as to the victim's age.
Judgment is affirmed.
BURKE, P.J., and KINGSLEY, J., concur.