P. v. Serna

















Filed 4/2/13 P. v. Serna CA3















NOT TO BE PUBLISHED







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(San
Joaquin)

----






>

THE PEOPLE, Plaintiff and Respondent, v. RODNEY SERNA, Defendant and Appellant.

C070258 (Super. Ct. No. SF116646A)

A
jury found defendant Rodney Serna guilty of violating Penal Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 288, subdivision (c)(1) (section 288(c)(1)) for committing lewd acts on
a 15-year-old girl.href="#_ftn2" name="_ftnref2"
title="">[2] Based on five charges under section
288(c)(1), along with two additional charges not at issue here, the href="http://www.mcmillanlaw.com/">trial court sentenced defendant to five
years in prison.

On
appeal, defendant contends the judgment must be reversed because “[t]he trial court erred
prejudicially by failing to give a mistake of fact instruction as to [the] age
of the victim.” We conclude that mistake
of fact as to the age of the victim is not a defense to a section 288(c)(1)
charge and, accordingly, the trial court’s refusal to give such an instruction
was not error. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In
February or March 2010, defendant and the victim, Bailey, began a romantic
relationship. Defendant was 43 years
old; Bailey was barely 15. Bailey,
however, represented her age as 19 when she contacted defendant through an
online Web site. In addition, Bailey
told Stockton Police Officer Todd Valone that when she first met defendant, she
showed him “a fake [identification card] that stated she was nineteen years
old.”

Bailey
testified that until July 2010, she and defendant carried on a sexual
relationship. Bailey also admitted that
on multiple occasions defendant came to her house between midnight and 4:00 a.m.
-- sometimes sneaking in through her bedroom window -- so that her father would
not find out about the relationship.

In
the spring of 2011, defendant was charged with five counts of committing a lewd
act on a child in violation of section 288(c)(1). At trial, defendant’s counsel requested a
jury instruction on mistake of fact as to Bailey’s age, arguing “there is
substantial, uncontradicted evidence in the record that Mr. Serna did not know
Bailey’s true age when there was sexual contact” and that “[n]ot applying the
[mistake of fact] defense here is a violation of this defendant’s state and
federal rights to a fair trial, due
process, and right to present a defense.”
The trial court disagreed. After
recounting the reasoning laid out in People
v. Paz (2000) 80 Cal.App.4th 293 (>Paz), the court found that “at this
point, absent an express statement by the [L]egislature to the contrary,
mistake of [fact] is not a defense to a charge of lewd conduct in violation of
288 (c)(1).” The court instead
instructed the jury with CALCRIM No. 1112, which required the jury to find
defendant guilty if he touched Bailey or had Bailey touch him with “the intent
of arousing, appealing to, or gratifying the lust, passions, or sexual desires
of himself or [Bailey].” The instruction
informed the jury that “It [wa]s not required that [defendant] intend[ed] to
break the law, hurt someone else, or gain any advantage.” In addition, the instruction told the jury
“It [wa]s not a defense that [Bailey] may have consented to the act.”

The
jury found defendant guilty of all charged offenses, and the court sentenced
him to five years in prison. Defendant
timely appealed.

DISCUSSION

Defendant
contends it was prejudicial error for the court to refuse to instruct the jury
that a reasonable, good faith mistake about the victim’s age is a defense to a
charge under section 288(c)(1).
Furthermore, defendant argues that refusal to give the requested
instruction on mistake of fact violated his federal due process rights. The People contend that refusing to give the
requested instruction was not error because mistake of fact is not a defense to
a section 288(c)(1) charge. We agree
with the People.

We
review jury instructions de novo to determine “whether the jury was fully and
fairly instructed on the applicable law.”
(People v. Partlow (1978) 84 Cal.App.3d 540, 558.) In this case, the decision not to give a
mistake of fact instruction was based on the trial court’s understanding that
section 288(c)(1) does not allow for a mistake of fact defense. The proper interpretation of a statute and
its application to undisputed facts is a question of law (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 357) and thus also subject to de novo review
(e.g., Pollak v. State Personnel Bd.
(2001) 88 Cal.App.4th 1394, 1404).
Therefore, this court is not bound by the trial court’s interpretation
of section 288(c)(1) as forbidding a mistake of fact defense, but instead must
make an independent judgment as to the proper statutory interpretation of
section 288(c)(1). (See >Union Bank of California v. Superior >Court (2004) 115 Cal.App.4th 484, 488
[“The proper interpretation of statutory language is a question of law which
this court reviews de novo, independent of the trial court’s ruling or
reasoning”].)

In
this instance, statutory interpretation is necessary to resolve defendant’s
claim of error because the statute itself is silent on the issue of whether
“mistake of fact” is a defense. (See >Waterman Convalescent Hospital, Inc. v.
State Dept. of Health Services (2002) 101 Cal.App.4th 1433, 1439 [“When a
statute is silent on a point, the courts resort to statutory
interpretation”].) “The cardinal rule
governing statutory interpretation is to ‘ascertain the legislative intent so
as to effectuate the purpose of the law.’ ”
(Campbell v. Arco Marine, Inc. (1996)
42 Cal.App.4th 1850, 1856.) Therefore,
we will first analyze the legislative intent behind section 288(c)(1) to
determine whether the Legislature intended to preclude a mistake of fact
defense. Second, we will address whether
our interpretation of section 288(c)(1) violates defendant’s due process
rights.

I

Interpreting Section 288(c)(1)

To
aid our interpretation of section 288(c)(1), the People direct us to >Paz.
Directly on point, Paz provided
an in-depth analysis of the history and legislative intent behind section
288(c)(1) and held that the Legislature intended to prohibit mistake of fact as
a defense to a section 288(c)(1) charge.
(Paz, supra, 80 Cal.App.4th at
p. 301.) Defendant argues that Paz was wrongly decided and should not be followed. We disagree.
We find Paz’s statutory
interpretation of section 288(c)(1) to be accurate and compelling.

In
dealing with the history behind section 288(c)(1), Paz referenced two pivotal cases that addressed legislative intent
in the context of sexual crimes against minors:
People v. Hernandez (1964) 61
Cal.2d 529 and People v. Olsen (1984)
36 Cal.3d 638. Understanding both of
these cases is helpful in understanding the statutory interpretation laid out
in Paz.

In
Hernandez, our Supreme Court analyzed
the legislative intent behind section 261, which defined sex with a female
under the age of 18 years as rape (commonly known as statutory rape). (People
v. Hernandez, supra, 61 Cal.2d at
pp. 529-530.) The issue in the case was
whether “the trial court erred in refusing to permit [the] defendant to present
evidence going to his guilt for the purpose of showing that he had in good
faith a reasonable belief that the prosecutrix was 18 years or more of
age.” (Id. at p. 530.) The court
interpreted the statute as allowing for a mistake of fact as to age defense
because “the governing statute, by implication or otherwise, expresse[d] no
legislative intent or policy to be served by imposing strict liability.” (Id.
at p. 533.) “The primordial concept of >mens rea, . . . expresses the principle
that it is not conduct alone but conduct accompanied by certain specific mental
states which concerns, or should concern, the law.” (Id.
at p. 532.) California enshrined this
concept in sections 20 and 26. Section
20 provides that in “every crime or public offense there must exist a union, or
joint operation of act and intent, or criminal negligence.” Section 26 provides that a person who acts
“under an ignorance or mistake of fact, which disproves any criminal intent”
cannot commit a crime. Because the
statutory rape statute at issue in Hernandez
did not express any legislative intent to override sections 20 and 26, the
court concluded that section 261 must be subject to a mistake of fact as to age
defense.href="#_ftn3" name="_ftnref3" title="">[3] (Hernandez,
at pp. 535-536.)

Twenty years later, in Olsen, our Supreme Court held that a
defendant’s reasonable mistake as to the age of a victim is not a defense to a
prosecution under section 288, subdivision
(a), which criminalizes the same act as section 288(c)(1) but applies when
the victim is under 14 years old. (>People v. Olsen, >supra, 36 Cal.3d at pp. 640,
649.) In so holding, the court limited
the reach of Hernandez.
Distinguishing Hernandez,
the Olsen court explained as follows: “There exists a strong public policy to
protect children of tender years. . . .
[S]ection 288 was enacted for that very purpose. [Citations.]
Furthermore, even the Hernandez court recognized this important
policy when it made clear that it did not contemplate applying the mistake of
age defense in cases where the victim is of ‘tender years.’ ” (Olsen, at p. 646.) The >Olsen court also recognized that under
the statutory rape statute at issue in Hernandez,
“consent can be an element . . . , since a male may reasonably believe that a
female is older than 18 and, therefore, can consent to an act of
intercourse. [Citation.] ‘On the other hand, [a] violation of section
288 does not involve consent of any sort, thereby placing the public policies
underlying it and statutory rape on different footings.’ ” (Olsen,
at p. 645.) Olsen cited a number
of legislative provisions demonstrating that “[t]ime and again, the Legislature
has recognized that persons under 14 years of age are in need of special
protection. . . . By its very terms,
section 288 furthers that goal.” (>Olsen, at pp. 647-648, fn. omitted.)

When
Olsen was decided, section 288(c)(1)
had not yet been enacted. (See >Paz, supra,
80 Cal.App.4th at pp. 295-296 & fn. 8.)
Thus, in Paz, the
Fifth District Court of Appeal addressed, for the first time, whether the
legislative intent behind subdivision (c)(1)
of section 288 also prohibits mistake of fact as a defense.

The Paz court held that allowing a mistake of fact defense to section
288(c)(1) crimes “would undermine the purpose the Legislature sought to achieve
by enacting subdivision (c)[(1)].”href="#_ftn4"
name="_ftnref4" title="">[4] (Paz,
supra, 80 Cal.App.4th at p.
295.) “Assembly Bill No. 3835, which
added . . . subdivision (c) to section 288, . . . was offered to close a
perceived loophole in the felony laws, with respect to 14- and 15-year-olds,
between felonious lewd conduct with a child under 14 (§ 288, subd. (a)) and
unlawful sexual intercourse with a child under 18 (§ 261.5).”href="#_ftn5" name="_ftnref5" title="">[5] (Paz,
at p. 296.) The law had previously
created a gap as to 14 and 15 year olds such that if a lewd or lascivious act
was performed on them, and sexual intercourse did not occur, the perpetrator
could only be charged with a misdemeanor.
(Ibid.) Section 288(c)(1) closed
that loophole by providing a broader range of charging options for persons
committing lewd acts on a 14 or 15 year old.
(Paz, at p. 296; see also §
288(c)(1).)

While the bill was initially challenged
because of a concern that it would lead to “the prosecution of a minor for
sexual conduct short of intercourse between consenting teenagers[,]” that issue
was later resolved by an “amendment to Assembly Bill No. 3835, which added the
minimum 10-year age differential between victim and perpetrator now found in
subdivision (c)(1). . . . [¶] . . . The inclusion of the decade age
difference in the subdivision reflects a recognition that a ‘sexually naive’
[citation] child of 14 or 15 could fall victim to a more experienced adult, a
vice the Legislature was attuned to and took action to prevent.” (Paz,
supra, 80 Cal.App.4th at pp.
296-297.)

Paz
also pointed out that an additional amendment to
Assembly Bill No. 3835 was contemplated that “would have punished the described
conduct only if it occurred without the consent of the 14- or
15-year-old”; however, this language was removed before the bill was
passed. (Paz, supra, 80
Cal.App.4th at p. 297.) >Paz understood the Legislature’s
omission of the element of consent to indicate that “the Legislature did not
intend the ‘understanding’ of the perpetrator to affect the application of the
subdivision. [Citation.] In fact, the Legislature’s prescription of a
lower range of prison terms and alternate misdemeanor punishment for a
violation of subdivision (c)(1) promotes the opposite conclusion. Subdivision (c)(1) permits the trial court to
fashion a sentence consistent with the realities of the particular crime and
discloses a legislative acknowledgement that some 14- and 15-year-olds may be
more sexually sophisticated than others in those two age groups. This difference in the punishments indicates
the Legislature had no intention of permitting defenses based upon the ‘understanding’
of the perpetrator to be raised against a subdivision (c)(1) charge; if in a
particular case there exist extenuating circumstances, such as a mistake about
the victim’s age, the statute allows for consideration of the factor for
sentencing purposes.” (>Paz,
at pp. 297–298, fn. omitted.)

The structure of the statute also
helps shed light on the legislative intent.
(See People v. Connor (2004)
115 Cal.App.4th 669, 691 [“basic principles of statutory construction require
us to interpret a statute as a whole so as to make sense of the entire
statutory scheme and not to view isolated statutory language out of
context”].) While “[b]oth subdivisions
(a) and (c)(1) of section 288 are directed at protecting infants, children and
those in their early teens from sexual exploitation by adults[,]” the structure
of the statute “set[s] out a hierarchy of victims, from the most
vulnerable--infants and children under subdivision (a)--to those perceived as
less vulnerable--young teenagers under subdivision (c)(1). The age distinctions help define the gravity
of, and the range of punishment for, the offense.” (Paz,
supra, 80 Cal.App.4th at p. 297, fn.
omitted.) While this hierarchical
structure creates an inverse relationship between the age of the victim and the
severity of the punishment, it in no way indicates that the Legislature meant
for the intent requirements of subdivisions (a) and (c)(1) to diverge. (See Paz,
at p. 297.)

In addition, “the Legislature is deemed to know of existing laws when it enacts
new statutes.” (Hill v. Newkirk (1994) 26 Cal.App.4th 1047, 1055, fn. 7.) The Paz
court pointed out that “Olsen, supra, 36 Cal.3d 638 was in
the books four years before . . . subdivision (c)[(1)] was enacted. We presume the Legislature was aware of the
decision and its public policy rationale; the lack of any language in . . .
subdivision (c)[(1)] concerning reasonable mistake of age is some evidence the
Legislature did not want to forbid application of the Olsen rationale to this later subdivision, a part of the same
statute dealt with in Olsen.” (Paz,
supra, 80 Cal.App.4th at p.
298.)

Had the Legislature intended to
allow mistake of fact as a defense to a section 288(c)(1) charge, “it had a
ready example of appropriate text in section 1203.066, subdivision (a)(3). This statute, enacted in 1981, provides in
relevant part that probation may not be granted to persons convicted of
violating section 288, subdivision (a) under certain circumstances ‘unless the
defendant honestly and reasonably believed that the victim was 14 years or older.’
” (Paz,
supra, 80 Cal.App.4th at p.
298.) The Paz court also observed that “the public policy rationale of Olsen
for rejecting good faith mistake of age in section 288 cases involving
victims under age 14 holds true for victims of ages 14 and 15 as well--‘to
protect children against harm from amoral and unscrupulous [adults] who prey on
the innocent.’ ” (Paz, at p. 298.)

In addressing the applicability of >Hernandez, Paz determined “[t]he facts underlying appellant’s subdivision
(c)(1) conviction do not raise the same concerns articulated by the court[] in
. . . Hernandez” because “ ‘ “the
philosophy applying to violations of [section 288] is entirely different from
that applying to [unlawful sexual intercourse]” ’ ” (Paz,
supra, 80 Cal.App.4th at pp. 300-301, quoting People v. Olsen, supra,
36 Cal.3d at p. 645.) Going back to the
issue of consent, Paz noted that even
in Hernandez, the
court “recognized that, whereas consent may be considered an element of
[unlawful sexual intercourse], violation of section 288 does not involve
consent of any kind.” (>Paz, at p. 301.)

With the foregoing understanding of >Paz in mind, we turn back to defendant’s
arguments in this case. Defendant argues
that Paz should not be followed
because: (1) it “focused solely on
victim protection, failing to consider the issue of scienter”; (2) it
improperly extended the rationale of Olsen;
(3) it should be limited to its facts; and (4) “it did not consider whether
federal due process was violated.”href="#_ftn6"
name="_ftnref6" title="">[6] All of these arguments miss the mark,
however, for the simple reason that they have no bearing on the persuasive
statutory interpretation set forth in Paz,
as explained above.

When interpreting a statute, the
court must take into consideration “ ‘the manifest objectives of the legislation,
which appear from the provisions considered as a whole, in light of the
legislative history and public policy considerations.’ ” (Masonite
Corp. v. County of Mendocino Air Quality Management Dist. (1996) 42 Cal.App.4th 436, 444.) In addition, “ ‘[t]he statutory language
“must be construed in context, keeping in mind the statutory purpose, and
statutes or statutory sections relating to the same subject must be harmonized,
both internally and with each other, to the extent possible.” ’ ” (Id.
at p. 445.) As laid out above, the court
in Paz properly considered such matters when interpreting section
288(c)(1).

Regarding defendant’s first attack
on Paz, the court impliedly considered the issue of scienter when it concluded
that mistake of fact is not a defense to a section 288(c)(1) charge. (Paz,
supra, 80 Cal.App.4th at p. 301.)
Black’s Law Dictionary defines “scienter” as “[a] degree of knowledge
that makes a person legally responsible for the consequences of his or her act
or omission . . . .” (Black’s Law Dict.
(9th ed. 2009) p. 1463, col. 2.) By
concluding that mistake of fact as to the victim’s age is not a defense to a
section 288(c)(1) charge, the Paz court
was, in effect, saying that no degree of knowledge as to the victim’s age was
necessary for a conviction under section 288(c)(1) and thus, lack of knowledge
could not be used as a defense. (See >Paz, at pp. 294, 301.) While it is true that consideration of victim
protection played a significant role in the Paz
court’s determination of whether the Legislature intended mistake of fact
to be a defense to a section 288(c)(1) charge, such considerations do not
lessen the fact that the whole analysis of Paz
is about whether scienter is a necessary element of a section 288(c)(1)
charge.

To the extent that defendant’s
argument regarding scienter is based on the Paz
court’s omission of a discussion of the common notion that mens rea is a required element of most crimes, this argument is, to
a significant extent, redundant of his claim that the court failed to address
“whether federal due process was violated.”
Both claims are premised on the reasoning that a criminal intent
requirement is the rule -- not the exception -- and therefore omitting a discussion
of the rule and why the rule does not apply in this case makes the court’s
conclusion unjustified. We are not
persuaded. The first rule of href="http://www.fearnotlaw.com/">statutory interpretation is to give
meaning to the intent of the Legislature in enacting the statute. (See Campbell
v. Arco Marine, Inc., supra, 42
Cal.App.4th at p. 1856.) As laid
out above, the factors the Paz court >did consider properly addressed the
legislative history and intent behind section 288(c)(1) and considered, without
explicitly saying so, whether scienter was a required element of the
charge. The decision of the >Paz court to omit a direct discussion as
to the general principle that scienter is
a required element of most crimes does not change the persuasiveness of the
court’s statutory interpretation, an interpretation we find determinative.

Defendant’s next claim, that >Paz improperly extended the rationale of
Olsen, is also without merit. The court in Paz properly justified extending the statutory interpretation laid
out in Olsen regarding section 288(a)
to the subsequently enacted section 288(c)(1).
(Paz, supra, 80 Cal.App.4th at p. 298.)
As detailed above, the Legislature is presumed to know the current state
of the law when enacting statutes (see >Hill v. Newkirk, supra, 26 Cal.App.4th at p. 1055, fn. 7) and Olsen was decided four years before section 288(c)(1) was
enacted. (Paz, at p. 298.) Therefore,
had the Legislature not intended the rationale in Olsen to apply to subsequently enacted subsections of the same
statute, it easily could have included a provision so stating.

Finally, defendant’s case cannot be
distinguished from Paz based on
factual differences. Because we find the
statutory interpretation set forth in Paz
to be determinative, any factual distinctions between this case and that case
are irrelevant when considered against the bright line rule that the
Legislature did not intend mistake of fact to be a defense to a section
288(c)(1) charge. Once the meaning of a
statute has been determined, the rule of the statute does not change based on
the facts of a case. (See >Clark v. Martinez (2005) 543 U.S. 371,
386 [160 L.Ed.2d 734, 750] [warning against establishing “within our
jurisprudence . . . the dangerous principle that judges can give the same
statutory text different meanings in different cases”].)

Because we agree with >Paz that mistake of fact is not a
defense to a section 288(c)(1) charge, we conclude the trial court did not
err in refusing to give such an instruction to the jury here. (See In
re Jennings (2004) 34 Cal.4th 254, 277 [“As a general matter, . . . a
mistake of fact defense is not available unless the mistake disproves an
element of the offense”].)

II

Defendant’s Federal Due Process
Rights Were Not Violated

Defendant
argues that the court’s refusal to give a mistake of fact instruction to the
jury makes section 288(c)(1) a strict liability offensehref="#_ftn7" name="_ftnref7" title="">[7]
and therefore violates his federal due process rights. We disagree.

Defendant
relies on Holdridge v. United States (8th
Cir. 1960) 282 F.2d 302, 310 and contends that “strict criminal liability is
constitutional only where the standard imposed is, ‘under the circumstances,
reasonable and adherence thereto properly expected of a person,’ where the
penalty is ‘relatively small,’ where conviction does not ‘gravely besmirch,’
where the statutory crime is not taken over from the common law, and where
legislative purpose is supporting . . . .”
Defendant’s argument is ineffective.
The Holdridge case on which he
relies specifically noted “there is a class of criminal offenses, theretofore
recognized and approved [by the United States Supreme Court], where motive or
criminal intent is not a factor in the crime.”
(Id. at p. 309.) A sexual offense against a minor is one such
exception. (See U.S. v. Brooks (9th Cir. 1988) 841 F.2d 268, 269.)

Holdridge
cited Morissette v. United States
(1951) 342 U.S. 246 [96 L.Ed. 288] as an example of the United States Supreme
Court’s determination of whether intent is a required element of a crime if the
statute is silent on the issue. (>Holdridge v. United States, supra,
282 F.2d at p. 309.) In >Morissette, the United States Supreme
“Court indulged in a revealing historical approach and observed that at the common law intent, with few exceptions, was a necessary
element in crime.” (Holdridge, at p. 309.)
Detrimental to defendant’s argument here is that one of the “few
exceptions” noted in Morissette where
the common law developed without a corresponding criminal intent requirement
was “sex offenses, such as rape, in which the victim’s actual age was
determinative despite defendant’s reasonable belief that the girl had reached
[the] age of consent.” (>Morissette, at p. 251, fn. 8 [96 L.Ed.
at p. 294].) In addressing the
continuing constitutionality of this practice, “ ‘[t]he Supreme Court has never
held that an honest mistake as to the age of the [victim] is a constitutional
defense . . . and nothing in the Court’s recent decisions . . . suggests that a
state may no longer place the risk of mistake as to the [victim]’s age on the person
engaging in sexual intercourse with a partner who may be young enough to fall
within the protection of the statute.’ ”
(U.S. v. Brooks, >supra, 841 F.2d at p. 270.)

Defendant relies on >United States v. X-Citement Video, Inc.
(1994) 513 U.S. 64 [130 L.Ed.2d 372] as an example of the United States Supreme
Court necessitating an intent requirement under the Protection of Children
Against Sexual Exploitation Act, which makes interstate shipment of href="http://www.fearnotlaw.com/">child pornography a criminal
offense. In X-Citement Video, the defendant, who was charged and convicted
under the act, claimed the act was facially unconstitutional because it lacked
an intent requirement. (>X-Citement Video, Inc., at p. 66 [130
L.Ed.2d at p. 377].) The Ninth Circuit
agreed and reversed the defendant’s conviction.
(Ibid.) The Supreme Court granted certiorari and reinstated the defendant’s conviction
because “the Act [can] properly [be]
read to include such a requirement.” (>Ibid.)
The Supreme Court’s decision was based on its interpretation that the
beginning language of the act, which included a “knowingly” requirement, could
properly be understood to mean the defendant must know someone in the
pornographic materials was under the age of 18 in order to be guilty of the
crime. (Id. at pp. 65-78 [130 L.Ed.2d at pp. 377-385].) The Supreme Court found this interpretation
reasonable even though the “minority of the performers” requirement is “set
forth in independent clauses separated by interruptive punctuation” from the
“knowingly” requirement. (>Id. at p. 68 [130 L.Ed.2d at p. 379];
see also 18 U.S.C. § 2252.) Implicit in
the Supreme Court’s analysis is that, without a mens rea requirement, the act would be facially unconstitutional.

X-Citement
Video is easily distinguishable from defendant’s case. In X-Citement
Video, the Supreme Court acknowledged the exception to the >mens rea requirement observed in >Morissette regarding “ ‘sex offenses,
such as rape, in which the victim’s actual age was determinative despite
defendant’s reasonable belief that the girl had reached age of consent.’ ” (United
States v. X-Citement Video, supra,
513 U.S. at p. 72, fn. 2 [130 L.Ed.2d at p. 381] quoting Morissette v. United States, supra,
342 U.S. at p. 251, fn. 8 [96 L.Ed. at p. 294].) The Supreme Court thus recognized that some
sexual offenses against minors can be prosecuted without a mens rea requirement. (See >X-Citement Video, at p. 76, fn. 5 [130
L.Ed.2d at p. 384].) The Supreme Court
specifically noted that producers of
child pornography “may be convicted . . . without proof they had knowledge of
[the victim’s] age” which “reflects the reality that producers are more
conveniently able to ascertain the age of performers.” (Ibid.) On the other hand, “[t]he opportunity for
reasonable mistake as to age increases significantly once the victim is reduced
to a visual depiction, unavailable for questioning by the distributor or
receiver.” (Id. at p. 72, fn 2 [130 L.Ed.2d at p. 381].) “It thus makes sense to impose the risk of
error on producers” (>id. at p. 76, fn. 5 [130 L.Ed.2d at p.
384] italics added) of child pornography and not on the distributors or
receivers (see id. at pp. 72, fn 2,
76, fn. 5 [130 L.Ed.2d at pp. 381, 384]).


Unlike the defendant at issue in >X-Citement Video, who was never in
contact with the underage victim and who thus could not inquire or confront the
underage victim about her age, defendant here had opportunities to learn of
Bailey’s real age. Defendant’s situation
is much more analogous to the producers of child pornography discussed by the
Supreme Court in X-Citement Video,
who the court said could be held
criminally liable without proof of knowledge of age. (United
States v. X-Citement Video, supra,
513 U.S. at p. 76, fn. 5 [130 L.Ed.2d at p. 384].) Thus, while X-Citement Video does stand for the proposition that some statutes
may be unconstitutional if they do not include a mens rea requirement, it also reaffirms the fact that, in regard to
certain sexual offenses against minors, the mens
rea requirement is not a constitutional mandate.

Far
from finding strict liability in such cases to be unconstitutional, the Ninth
Circuit has held that a sexual offense against a minor “is a recognized
judicial exception to the general principle that mistake of fact is a defense
if it ‘negatives the existence of a mental state essential to the crime
charged.’ ” (U.S. v. Brooks, supra,> 841 F.2d at p. 269.) In fact, in the context of sexual offenses
against minors, it has been noted that “[t]he effect of mens rea and
mistake on state criminal law has generally been left to the discretion of the
states.” (Nelson v. Moriarty (1st Cir. 1973) 484 F.2d 1034, 1035.) “ ‘[The mens rea principle] is
just that--a general principle, not always a constitutionally mandated
doctrine.’ ” (U.S. v. Brooks, at p.
270.) Therefore, defendant’s due process
rights were not violated by prohibiting a mistake of fact as to age defense
against his 288(c)(1) charges.

DISPOSITION

The
judgment is affirmed.







ROBIE , Acting P. J.







We concur:







MAURO , J.







DUARTE , J.