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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C070258

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF116646A)

         v.

RODNEY SERNA,

                   Defendant and Appellant.




         A jury found defendant Rodney Serna guilty of violating Penal Code1 section 288,
subdivision (c)(1) (section 288(c)(1)) for committing lewd acts on a 15-year-old girl.2




1        All further section references are to the Penal Code.

2       Section 288(c)(1) provides in relevant part as follows: “Any person who commits
an act described in subdivision (a) with the intent described in that subdivision, and the
victim is a child of 14 or 15 years, and that person is at least 10 years older than the child,
is guilty of a public offense . . . .” The referenced “act” and “intent” found in subdivision
(a) are as follows: “any person who willfully and lewdly commits any lewd or lascivious
act, including any of the acts constituting other crimes provided for in Part 1, upon or
with the body, or any part or member thereof, of a child . . . with the intent of arousing,

                                                             1
Based on five charges under section 288(c)(1), along with two additional charges not at
issue here, the 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



appealing to, or gratifying the lust, passions, or sexual desires of that person or the
child . . . .”

                                               2
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

                                              3
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.

                                               4
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.3 (Hernandez, at pp. 535-536.)




3      California is in the minority in allowing a mistake of fact as to age defense for
charges of statutory rape. (See Annot., Mistake or Lack of Information as to Victim’s
Age as Defense to Statutory Rape (1997) 46 A.L.R. 5th 499, § 2[a] [“The majority rule
in the United States is that a defendant’s knowledge of the age of a victim is not an
essential element of statutory rape. . . . A defendant’s good-faith or reasonable belief that
the victim is over the age of consent is simply no defense”].)

                                              5
       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




                                              6
subdivision (c)[(1)].”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).”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


4       The provision that is now subdivision (c)(1) was originally enacted as subdivision
(c) effective January 1, 1989; it became subdivision (c)(1) by a later amendment effective
January 1, 1996. (Paz, supra, 80 Cal.App.4th at p. 296, fn. 8.)
5        Unlawful sexual intercourse with a child under 18 and statutory rape are the same
crime.

                                               7
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

                                              8
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

                                               9
“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.”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).

6       We disagree with defendant’s contention that Paz should not be followed because
the court did not address the constitutional issue of federal due process. While we
acknowledge the “established principle of statutory construction that when two
alternative interpretations are presented, one of which would be unconstitutional and the
other constitutional, the court will choose that construction which will uphold the validity
of the statute and will be constitutional” (Kortum v. Alkire (1977) 69 Cal.App.3d 325,
334), this principle does not apply to the case at hand. As will be discussed in part II of
the Discussion, interpreting section 288(c)(1) to prohibit a mistake of fact defense does
not create a federal due process violation. Because there is no federal due process
violation, the Paz court was not in the above-described situation where it had to choose
between an unconstitutional and a constitutional interpretation of the statute; thus,
consideration of federal due process in general was unnecessary because it would not
have impacted the outcome of the interpretation. (See Antounian v. Louis Vuitton
Malletier (2010) 189 Cal.App.4th 438, 455 [Courts of Appeal “generally do not address
issues whose resolution is unnecessary to the disposition of an appeal”].)

      We also note that defendant fails to develop any arguments in his briefs as to why
the omission of a federal due process discussion in Paz makes the case any less
persuasive on the issue of statutory interpretation.

                                              10
       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 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

                                              11
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”].)




                                             12
                                               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 offense7 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,


7       Black’s Law Dictionary defines a “strict liability statute” as “[o]ne which imposes
criminal sanction for an unlawful act without requiring a showing of criminal intent.”
(Black’s Law Dict. (5th ed. 1979) p. 1275, col. 2.) The plain language of
section 288(c)(1) does require a showing of criminal intent, specifically, “the intent
described in . . . subdivision [(a)].” Subdivision (a) of the statute requires “the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the
perpetrator] or the child [victim].” Thus, it is somewhat of a fallacy to call section
288(c)(1), as interpreted by this court, a strict liability statute when, on the contrary, it is
clearly a specific intent crime. Nonetheless, this distinction makes little analytical
difference because the intent described in subdivision (a) of section 288 is not a criminal
intent except when the age of the victim is taken into account. In other words, it is not a
crime for a person to engage in a lewd or lascivious act on another person with the intent
of gratifying the lust of either person if the object of the act is an adult. What makes the
act a crime, and the requisite intent criminal, is the age of the victim. Thus, even though
section 288(c)(1) includes a specific intent element, if mistake of fact as to the age of the
victim is taken out of the equation, it still seems like a strict liability offense because what
would otherwise be a completely lawful intent is made criminal because of the age of the
victim. Holding that there is no mistake of fact as to age defense to section 288(c)(1)
means that the perpetrator can be held criminally liable even though he reasonably
believed that the victim was an adult and thus had reason to believe that the intent with
which he acted was entirely lawful. Keeping this in mind, the court will address
defendant’s argument as though section 288(c)(1) creates a strict liability offense, though
in reality, we are aware section 288(c)(1) is a specific intent statute.



                                              13
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 child pornography a criminal offense. In X-Citement

                                              14
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

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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.

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                                 DISPOSITION
     The judgment is affirmed.



                                   ROBIE       , Acting P. J.



We concur:



     MAURO         , J.



     DUARTE        , J.




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