We think the most recently announced judicial construction of section 209 must be applied in this case. (See, e.g., People v. Villalobos, 245 Cal.App.2d 561 [ 54 Cal.Rptr. 60], which applies our Supreme Court's interpretational change in People v. Leal, 64 Cal.2d 504, 511-512 [ 50 Cal.Rptr. 777, 413 P.2d 665] retroactively to a case then on appeal (so-called partial retroactivity); People v. Nigri, 232 Cal.App.2d 348 [ 42 Cal.Rptr. 679], which similarly followed the judicial change that was pronounced in People v. Hernandez, 61 Cal.2d 529 [ 39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092]; see also language in People v. Rollins, 65 Cal.2d 681, 687-688 and footnote 3 at page 685 [ 56 Cal.Rptr. 293, 423 P.2d 221], which seems to be applicable to the instant situation, namely, "even a nonretroactive judicial decision governs all cases which were not yet final when the decision was announced." (At p. 688.)

We think the most recently announced judicial construction of section 209 must be applied in this case. (See, e.g., People v. Villalobos, 245 Cal.App.2d 561 [ 54 Cal.Rptr. 60], which applies our Supreme Court's interpretational change in People v. Leal, 64 Cal.2d 504, 511-512 [ 50 Cal.Rptr. 777, 413 P.2d 665] (quantum of narcotic required for possession) retroactively to a case then on appeal (so-called partial retroactivity); People v. Nigri, 232 Cal.App.2d 348 [ 42 Cal.Rptr. 679], which similarly followed the judicial change that was pronounced in People v. Hernandez, 61 Cal.2d 529 [ 39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092] (age mistake in statutory rape); see also language in People v. Rollins, 65 Cal.2d 681, 687-688, and footnote 3 at page 685 [ 56 Cal.Rptr. 293, 423 P.2d 221], which seems to be applicable to the instant situation, namely, "even a non-retroactive judicial decision governs all cases which were not yet final when the decision was announced." (P. 688).

Courts have held that when a party is not allowed to present any evidence relating to a claim, the error is reversible per se "because it deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114 (Gordon), collecting cases; Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74 Cal.App.4th 1232, 1246, 1248 [erroneous exclusion of extrinsic evidence and all expert reports was prejudicial]; see also People v. Nigri (1965) 232 Cal.App.2d 348, 350-351 [evidence excluded based on law that changed after case was tried; appropriate remedy was reversal to allow for new trial].) Melrose contends Akhtarzad cannot establish prejudice because other factors determined the adverse judgment, including his decision to fire his counsel, his failure to present evidence regarding his knowledge of the permitted uses of the property, and his failure to prove he relied on Melrose's alleged misrepresentations.

The decision in the Hernandez case was filed subsequent to the submission of the present case to the jury and one day prior to Moseley's motion for new trial made at the probation and sentencing hearing. Understandably, Moseley did not offer such an instruction to the trial court. The case of People v. Nigri (1965) 232 Cal.App.2d 348 [ 52 Cal.Rptr. 679], is relevant. That case dealt with a defendant convicted of statutory rape in a trial which occurred before the Hernandez decision.

(Cf. People v. Hillery, 62 A.C. 726, 745, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Kitchens, 46 Cal.2d 260, 262-263, 294 P.2d 17; People v. Nigri, 232 A.C.A. 419, 420-422, 42 Cal.Rptr. 679.)