(Super. Ct. No. SF116646A)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Rodney Serna guilty of violating Penal Code*fn1 section 288, subdivision (c)(1) (section 288(c)(1)) for committing lewd acts on a 15-year-old girl.*fn2 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 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.
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 ...