People v. Atchison ( 1978 )

Opinion

NEWMAN, J.

Defendant appeals from a municipal court judgment¹ that he was guilty of (1) annoying or molesting a child under age 18 (Pen. Code, § 647a), and (2) contributing to the delinquency of a child under age 18 (§ 272). At the trial he testified: “A. I asked him [the alleged victim] how old he was. Q. How old did he say he was? A. He told me he was 18, 19 in March, and this was in January. Q. He appeared to be at least that, 19 to you? A. He did to me.”

The judge instructed the jury on the contributing-to-delinquency charge as follows (italics added): “You are instructed that in a prosecution for contributing to the delinquency of a minor by committing an act causing, tending to cause, or encouraging a person under the age of 18 years to lead an idle, dissolute, lewd, or immoral life, if defendant commits such an act, it is immaterial whether or not he knew the age of the minor.”

That instruction was erroneous. (See People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) Since the jury may have been misled as to its application to both the Penal Code sections (§ 272 and § 647a) the judgment cannot stand. Because some courts have questioned the scope of the Hernandez ruling, we disapprove the statement in People v. Reznick (1946) 75 Cal.App.2d 832, 837 [171 P.2d 952], that “if appellant committed the act it would be immaterial whether or not he knew the age of the minor.”

Further, we do not agree with the suggestion below that “[i]t is hard to see how the defendant here could on the one hand contend that he did nothing improper and at the same time ask that the jury be told that the conduct which he engaged in would be lawful or unlawful depending on whether or not he believed that the victim was over 18.” (See 1 Witkin, Cal. Crimes, § 177, subd. (1): “Inconsistent defenses are normally permitted in criminal as well as civil cases; e.g., not guilty and insanity; denial of act and self-defense. [Citations.]”)

The judgment is reversed.

Bird, C. J., Tobriner, J., Mosk, J., and Manuel, J., concurred.

1 The first appeal was to the Appellate Department of the Los Angeles Superior Court, which affirmed the conviction. The case then was certified to the Court of Appeal, which also affirmed.