People v. Scott , 83 Cal. App. 4th 784 ( 2000 )

Opinion

HALLER, J.

In the first of two trials, a jury found Lionel Andrew Scott guilty of unlawful sexual intercourse by a person 21 years or older with a minor under 16 years of age (Pen. Code,² § 261.5, subd. (d)), and two counts of oral copulation by a person over 21 years of age on a person under 16 years of age (§ 288a, subd. (b)(2)), but was unable to reach a verdict on one count of forcible rape (§261, subd. (a)(2)) and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). The trial court declared a mistrial as to the latter three counts. The trial court subsequently found Scott suffered two prior serious/violent felonies or “strikes" (§ 667, subd. (b)-(i)), and sentenced Scott to a total prison term of 50 years to life.

In the second trial, a jury convicted Scott of the three violent sex counts that had been mistried. The trial court set aside the previously imposed sentence and resentenced Scott to state prison for a total term of 75 years to life. Scott appeals both judgments; we have consolidated the appeals.

Scott’s principal assignment of error is the retrial on the forcible sex offenses was barred under double jeopardy principles because his convictions of the nonforcible sex offenses in the first trial were lesser included offenses under an accusatory pleading test. Scott also contends the trial court in the first trial erred by (1) not instructing that Scott’s reasonable belief the victim was 16 years old was a defense to the nonforcible sex offenses, and (2) finding that a prior felony conviction in Minnesota constituted a strike under the “Three Strikes” law. Additionally, Scott assigns error to the giving of CALJIC No. 17.41.1 in both trials, and the calculation of his conduct credits.

Facts

On September 3, 1996, Kristina G. and Pamela G., two 14-year-old friends, were at the Burger King restaurant at the El Camino Real Mall in Carlsbad when they were approached by two men who introduced themselves as “L.A.” and “Goody.” “Goody” was Scott, who was 40 years old, and L.A. was Scott’s 28-year-old brother. Kristina told the brothers she was 16 years old when they asked her age. Pamela said she was 14 years old. The foursome talked about 20 minutes, and L.A. and Kristina exchanged telephone numbers before the men left.

On September 4, L.A. telephoned Kristina and asked if she wanted to go somewhere with him on the following day. Kristina said she would go if she could bring Pamela; and they arranged to meet at the Vista Transit Center. On September 5, L.A. and Scott picked up Kristina and Pamela and drove them to San Diego. On the way, they stopped at a liquor store and bought alcohol, which the men drank during the trip. After stopping in a park, the men took the girls to their apartment to watch movies. The men told the girls there was nothing to worry about because their girlfriends were at the house and they would just watch movies and hang out.

Their apartment was on the second story and had a security screen door with a lock that locked from the inside with a key. Scott’s girlfriend, Michelle, and her baby, and L.A.’s girlfriend, Tammy, were inside. Kristina and Pamela sat down in the living room and watched television.

Scott called Kristina into a bedroom and told her he was going to have sex with her even though she did not want to and that she was not going to die from it. Kristina said she was not going to have sex with him and went back to the living room, where she asked L.A. to take her home. L.A. said he was busy and wanted to eat first. Scott took Kristina to a nearby Burger King and they ordered food from the drive-through window. Kristina considered getting out of the car but did not do so because she did not want to desert Pamela, who was still in the men’s apartment. Pamela also left the apartment once, going with L.A. and Tammy to rent a video. Pamela did not try to get away because Kristina was in the apartment, and Pamela did not really believe she would be raped if she returned to the apartment even though the men had said they were going to have sex with her.

After Kristina and Scott returned, he took her into a bedroom, and again told her that he was going to have sex with her. She repeatedly said no, but Scott was yelling at her with an angry voice and she was scared. She complied with his orders to take off her clothes and lie down because “at that point [I thought] I was going to get raped [and] I would never be able to leave. He was probably going to kill me or something.” Scott proceeded to put his penis in Kristina’s vagina. L.A. entered the bedroom, and when Scott left, L.A. raped Kristina.

After Kristina returned to the living room, L.A. called Pamela into a bedroom and raped her.

Later, L.A. raped Kristina again and made her orally copulate him in the back bedroom. When Kristina returned to the living room, Scott grabbed Kristina’s arm and pulled her into the bathroom and forced her to orally copulate him two times.

Eventually, Tammy and Michelle drove Kristina and Pamela home. Two weeks later, Kristina and Pamela went to a clinic to be tested for venereal diseases. The clinic contacted police. Kristina and Pamela selected Scott and L.A. from separate photographic lineups.

Scott testified in his first trial that he came to San Diego from Minnesota in July or August 1996, and he and his wife and daughter shared an apartment with his brother, L.A., L.A.’s girlfriend, Tammy, and another woman. Scott vaguely recognized Kristina and Pamela and remembered seeing them at the apartment; however, he denied ever sexually touching either girl. The girls went in a back bedroom with L.A. and Tammy, where they had “their own little party going on.” Meanwhile, Scott was sitting on the living room couch watching television with his wife and one-year-old daughter. Scott believed L.A. had herpes, and he would not have sex with any person after L.A. had sex with that person.

Scott did not testify at his second trial.

Discussion

I. Retrial Did Not Violate Double Jeopardy Principles

In count 1 of the information, Scott was charged with the forcible rape of Kristina, and in count 2, Scott was charged with unlawful sexual intercourse by a person over 21 years with a person under 16 years of age—namely, Kristina. In count 3, Scott was charged with forcible oral copulation with Kristina, and in count 4, Scott was charged with oral copulation by a person over 21 years of age with a person under 16 years of age regarding the same incident. Both counts 3 and 4 dealt with the “first instance” of oral copulation involving Scott and Kristina. In counts 5 and 6, Scott was charged with the same offenses concerning the “second instance” of oral copulation involving him and Kristina.³

Scott contends the retrial of the forcible sex offenses should have been barred under section 1023 and double jeopardy principles based on an argument that under the accusatory pleading test the nonforcible sex crimes were lesser included offenses of the forcible sex offenses. The contention is without merit.

Preliminarily, we note this claim has been waived because it was not raised below. A plea of double jeopardy cannot be raised for the first time on appeal. (People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354].) However, we address the merits because Scott has maintained, in a supplemental brief, that his trial counsel’s failure to raise this defense constituted ineffective assistance of counsel.

A defendant cannot prevail on a claim of ineffective assistance of counsel unless the defendant can establish (1) counsel performed at a level below an objective standard of reasonableness under prevailing professional norms and (2) the defense was subjected to prejudice flowing from the deficient performance of counsel. (People v. Hamilton (1988) 45 Cal.3d 351, 377 [247 Cal.Rptr. 31, 753 P.2d 1109].) The ineffective assistance claim fails if defendant cannot make a sufficient showing on either of these components. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [36 Cal.Rptr.2d 235, 885 P.2d 1].)

General Legal Principles

The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution ensure a person shall not be placed twice “in jeopardy” for the “same offense.” (See also § 687.)

As the high court explained in Green v. United States (1957) 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199], “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Id. at pp. 187-188 [78 S.Ct. at p. 223].)

As articulated by the Supreme Court in North Carolina v. Pearce (1969) 395 U.S. 711, 717 [89 S.Ct. 2072, 2076, 23 L.Ed.2d 656], the constitutional prohibition against double jeopardy “consists] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Fns. omitted.)

Scott seeks relief under the first prong of double jeopardy protections as refined by the “implied acquittal” doctrine. An acquittal barring a second prosecution may be either express or implied by a conviction on a lesser included offense when the jury was given the opportunity to return a verdict on the greater offense. (Green v. United States, supra, 355 U.S. at pp. 190-191 [78 S.Ct. at pp. 225-226].) Under the “implied acquittal” doctrine, a guilty verdict on a lesser included offense represents “an implied acquittal of the greater offense of which the jury could have convicted the defendant.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 511 [183 Cal.Rptr. 647, 646 P.2d 809], fn. omitted.) Double jeopardy principles prohibit a second prosecution when a defendant has been implicitly acquitted of an offense; under the “implied acquittal” doctrine, “ ‘a verdict of guilty on a lesser included offense constitutes an implied acquittal of the greater offense of which the jury could have convicted the defendant.’ ” (People v. Fields (1996) 13 Cal.4th 289, 299 [52 Cal.Rptr.2d 282, 914 P.2d 832].)

Thus, under Scott’s argument, in which he posits that the nonforcible sex crimes were lesser included offenses of the forcible rape and oral copulation counts, he was implicitly acquitted of the latter crimes when the jury convicted him of the nonforcible sex offenses. Accordingly, Scott claims double jeopardy principles and section 1023, which incorporates those principles, barred his retrial on the forcible sex crimes.

Section 1023 provides in relevant part: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.” (Italics added.) When a jury deadlocks on the greater offense, but convicts the accused of a necessarily lesser included offense, the conviction bars a subsequent prosecution for the greater offense under section 1023. (People v. Greer (1947) 30 Cal.2d 589, 596-597 [184 P.2d 512], not followed on other grounds in People v. Pearson (1986) 42 Cal.3d 351, 358 [228 Cal.Rptr. 509, 721 P.2d 595], and overruled on other grounds by People v. Fields, supra, 13 Cal.4th at p. 308, fn. 6.) The rationale for the rule is straightforward: “ ‘A conviction of the lesser is held to be a bar to [the] prosecution for the greater on the theory that to [later] convict of the greater would be to convict twice of the lesser.’ ” (30 Cal.2d at p. 597, quoting People v. Krupa (1944) 64 Cal.App.2d 592, 598 [149 P.2d 416].)

As we shall explain, Scott’s double jeopardy argument fails because his basic premise—that the nonforcible sex offenses were lesser included offenses of the forcible sex offenses within the context of double jeopardy principles and section 1023—is incorrect.

The applicable definition of “necessarily included offenses” for purposes of double jeopardy law “is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. [Citation.]” (People v. Greer, supra, 30 Cal.2d at 596, fn. omitted.) This is commonly referred to as the “elements” test, which is met when all the elements of the lesser offense are included in the elements of the greater offense. (People v. Lopez (1998) 19 Cal.4th 282, 288-289 [79 Cal.Rptr.2d 195, 965 P.2d 713].) Under this test, which compares the statutory language, an offense is necessarily included if the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser. (People v. Greer, supra, 30 Cal.2d at p. 597.)

Scott concedes, as he must, that the nonforcible offenses of which he stands convicted are not lesser included offenses under the “elements” test. (People v. Chapman (1975) 47 Cal.App.3d 597, 603-604 [121 Cal.Rptr. 315]; People v. Montero (1986) 185 Cal.App.3d 415, 433 [229 Cal.Rptr. 750].)⁴ The nonforcible sex crimes require the perpetrator and victim to be within certain age limits while the forcible sex crimes do not (see fn. 4, ante); thus, the nonforcible crimes are not lesser included offenses of the forcible sex crimes.

Nonetheless, Scott maintains that these nonforcible sex crimes are lesser included offenses under the “accusatory pleading” test. A lesser offense is included within the greater offense under the accusatory pleading test “ “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” . . .’ [Citations.]” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)⁵ Because the various counts specified the same date and victim, and denominated the two acts of oral copulation as “first instance” and “second instance” (see fn. 3, ante), Scott argues the alleged nonforcible sex counts corresponded to the alleged forcible sex counts and therefore were lesser included offenses under the accusatory pleading test.

Scott is mistaken. The nonforcible sex offenses were separately pled counts, which were not lesser included offenses merely because they were committed at the same time as the forcible sex crimes.⁶

In any event, in the double jeopardy context, it does not matter whether or not the nonforcible sex crimes were lesser included offenses under the accusatory pleading test. The appropriate yardstick is the elements test based on statutory comparison of the crimes. (See United States v. Dixon (1993) 509 U.S. 688, 703-712 [113 S.Ct. 2849, 2859-2864, 125 L.Ed.2d 556]; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166, 170 [282 Cal.Rptr. 228].) This follows because the accusatory pleading test has nothing to do with double jeopardy principles or section 1023, each of which applies when “a given crime, by definition, necessarily and at all times is included within another one.” (People v. Kehoe (1949) 33 Cal.2d 711, 713 [204 P.2d 321], italics added.) The accusatory pleading test, which unavoidably is fact specific, cannot be the benchmark that a crime in the abstract will necessarily and always be included within another one for purposes of double jeopardy.

What Scott fails to recognize is that the broader accusatory pleading test, which is primarily concerned with issues of notice, has limited applications. For example, the accusatory pleading test is used in determining whether it is proper to give jury instructions on lesser offenses. (People v. Geiger (1984) 35 Cal.3d 510, 517, fn. 4 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055], overruled on another ground in People v. Birks (1998) 19 Cal.4th 108, 112 [77 Cal.Rptr.2d 848, 960 P.2d 1073].) Use of the accusatory pleading test also is appropriate in the context of section 1159, which authorizes finding a defendant guilty of a lesser included offense. (People v. Marshall, supra, 48 Cal.2d at p. 405.) (See fn. 5, ante.)

The key term in the double jeopardy context is “necessarily included.” As the Court of Appeal in People v. Scheidt, supra, 231 Cal.App.3d at pages 165 to 166, put it: “[A] statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.” (Italics added.)

Thus, “ ‘[f]actual inextricability does not equal “necessarily included.” ’ [Citation.]” (People v. Ortega, supra, 19 Cal.4th at pp. 697-698, italics in original.) “Some cases suggest mistaken views that an offense may be ‘necessarily included’ in another offense . . . because the evidence proves a ‘lesser’ offense . . . .” (People v. Marshall, supra, 48 Cal.2d at p. 405.)

In sum, neither the constitutional prohibition against being twice placed in jeopardy nor the statutory bar of section 1023 applies because in this context Scott’s nonforcible sex offenses were not necessarily included in his forcible sex offenses.⁷ Trial counsel therefore could not have been ineffective for failing to raise the issue below.

II. No Error in Failing to Instruct on Reasonable Belief as to Victim’s Age

Scott contends the trial court committed prejudicial error when it refused to instruct that his reasonable belief Kristina was 16 years old was a defense to the nonforcible sex crimes. The contention is without merit.

Essentially, Scott is arguing that he was entitled to such an instruction under People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092], in which our Supreme Court held a good faith and reasonable belief that a victim was over the age of consent and had voluntarily engaged in sexual intercourse was a defense to statutory rape.⁸

We conclude that the Hernandez defense does not apply here. Rather, as we shall explain, we find the teachings of People v. Olsen (1984) 36 Cal.3d 638 [205 Cal.Rptr. 492, 685 P.2d 52] are controlling, and the trial court correctly refused to give the instruction.

The Hernandez and Olsen Decisions

In People v. Hernandez, supra, 61 Cal.2d 529, the defendant was charged with statutory rape of a girl who was 17 years and 9 months old, and the trial court refused to allow the defendant to present evidence of his good faith, reasonable belief that the girl was 18 or over. Overruling established precedent such as People v. Ratz (1896) 115 Cal. 132 [46 P. 915], the high court in Hernandez held it was reversible error to exclude such evidence, finding that a reasonable mistake of fact as to age can eliminate the requisite criminal intent. (People v. Hernandez, supra, 61 Cal.2d at pp. 534-536.)

“We are persuaded that the reluctance to accord to a charge of statutory rape the defense of a lack of criminal intent has no greater justification than in the case of other statutory crimes [such as bigamy], where the Legislature had made identical provision with respect to intent. ‘ “At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense [Citations.] Our departure from the views expressed in Ratz is in no manner indicative of a withdrawal from the sound policy that it is in the public interest to protect the sexually naive female from exploitation. No responsible person would hesitate to condemn as untenable- a claimed good faith belief in the age of consent of an ‘infant’ female whose obviously tender years preclude the existence of reasonable grounds for that belief. However, the prosecutrix in the instant case was but three months short of 18 years of age and there is nothing in the record to indicate that the purposes of the law as stated in Ratz can be better served by foreclosing the defense of lack of intent. This is not to say that the granting to consent by even a sexually sophisticated girl known to be less than the statutory age is a defense. We hold only that, in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein a criminal intent is lacking.” (People v. Hernandez, supra, 61 Cal.2d at pp. 535-536, fn. omitted.)

The high court rejected the accepted notion that one who has sexual relations with a young female does so at his peril, assuming the risk that his partner is under the age of consent: “[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been misled, we cannot realistically conclude that for such reason alone the intent with which he undertook the act suddenly becomes more heinous.” (People v. Hernandez, supra, 61 Cal.2d at p. 534.)⁹ In People v. Peterson (1981) 126 Cal.App.3d 396, 397 [178 Cal.Rptr. 734], the Court of Appeal extended the Hernandez rule to oral copulation with a person under 18 years of age.

However, in People v. Olsen, supra, 36 Cal.3d at pages 642 to 649, the Supreme Court distinguished Hernandez and declined to apply a mistake of age defense to a charge of lewd or lascivious conduct with a child under the age of 14 years (§ 288, subd. (a)). “[O]ne who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril.” (People v. Olsen, supra, 36 Cal.3d at p. 649.)

The high court in Olsen noted that the Hernandez decision expressly said it was not withdrawing from the sound policy “ ‘that it is in the public interest to protect the sexually naive female from exploitation.’ ” (People v. Olsen, supra, 36 Cal.3d at p. 644.) Further, the Olsen court, relying on various Court of Appeal decisions,¹⁰ noted that the younger the child victim is the less credible a defendant’s claim of a mistaken belief that the victim is of the age of legal consent becomes. (Olsen, supra, 36 Cal.3d at pp. 646-647.) Moreover, stronger public policy considerations are implicated in protecting children under the age of 14 from sexual exploitation than those involved with unlawful sexual intercourse, and the law reflects this because typically more severe penalties are assigned to sex crimes involving children under the age of 14 than to statutory rape. (Id. at pp. 648-649.)

Analysis

As indicated above (see fn. 8, ante), what was known as statutory rape (former § 261, subd. 1) was recodified in 1970 and is now known as unlawful sexual intercourse (§ 261.5). Until a 1993 amendment, there were no gradations of the offense; now, however, the statute distinguishes between the relative ages of the perpetrator and the victim, assigning misdemeanor status to the offense when the ages of the perpetrator and victim are within a three-year range (i.e., teenagers) and felony status to other situations. (See fn. 8, ante.) The most severe punishment attaches to the offense when the perpetrator is an adult and the minor is under the age of 16 years. (See fn. 8, ante.)¹¹

In Hernandez, the court was concerned with the effect of the mistake of fact on a defendant’s intent in a situation where if there was no mistake— that is, the facts were as the defendant believed them to be—then he would not have committed the crime. Specifically, Hernandez believed the prosecutrix was 18 years old when in fact she was three months shy of the age of legal consent, and therefore, he committed the offense of statutory rape. If, however, the prosecutrix had been 18 years old as Hernandez believed, his conduct would not have been criminal. “ ‘ “At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense . . . (.People v. Hernandez, supra, 61 Cal.2d at p. 535.)

Thus, Hernandez’s good faith, reasonable mistake was a valid defense under section 26, which provides in pertinent part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three—Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. . . .”

But that is not this case.

Scott very well may have been operating under the mistaken belief that Kristina was 16 rather than 14 years old, but even if there were no mistake of fact he still would have been guilty of a crime, which he had intended to commit. In other words, even if Kristina had been 16, Scott would still be guilty of felony unlawful sexual intercourse (§ 261.5, subd. (c)). Scott is not deserving of the Hernandez defense of mistake of fact under section 26 because he intended to commit a crime. “[A] mistake of fact will disprove a criminal charge if the mistaken belief is . . . honestly entertained . . . based upon reasonable grounds and ... of such a nature that the conduct would have been lawful and proper had the facts been as they were reasonably supposed to be.” (Perkins & Boyce, Criminal Law (3d ed. 1982) Ignorance or Mistake of Fact, § 1, p. 1045, italics added.)

This age-old rule reflects the evolution of our criminal jurisprudence and the central concept that every crime consists of two parts: the actus reus or guilty act; and the mens rea or guilty mind—the mental state attendant to the prohibited deed. “Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.” (Morissette v. United States (1952) 342 U.S. 246, 251-252 [72 S.Ct. 240, 244, 96 L.Ed. 288].)

“[J]udges, in the development of the mens-rea doctrine, spoke in terms of the guilty mind (nisi mens sit rea) .... [T]he mind [w]as either innocent or guilty .... One who was intending to commit a crime did not have an innocent mind. Hence he was acting with mens rea and if he committed the actus reus of some unintended crime he was guilty of that crime unless it required a specific intent or some other special mental element. As he was acting with mens rea it was unimportant that the mistake he made was based upon reasonable grounds. The courts also held that the mind was not innocent if the actor was intending to commit a very wrongful act, even if no punishment was provided for that act, and hence he was acting with mens rea and might be guilty of an unintended crime.” (Perkins & Boyce, Criminal Law, supra, Ignorance or Mistake of Fact, § 1, p. 1049, some italics omitted.)

Further, “a mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed.” (People v. Lopez (1969) 271 Cal.App.2d 754, 760-761 [77 Cal.Rptr. 59], quoted with approval in People v. Olsen, supra, 36 Cal.3d at p. 644.)

In sum, whether Scott reasonably and in good faith believed Kristina was 16 years old rather than 14 is of no import; it was not a potential defense. Scott was not entitled to a mistake of fact instruction. There was no error.

III.-V.^*

Disposition

Affirmed.

Huffman, Acting P. J., concurred.

2 All statutory references are to the Penal Code.

3 The information alleged in pertinent part:

“Count 1 - Forcible Rape [¶] On or about September 05, 1996, Lionel Andrew Scott did unlawfully have, and accomplish an act of sexual intercourse with Kristina . . . , a person not his spouse, against said person’s will, by means of force, violence, duress, menace and fear of immediate and unlawful bodily injury on said person and another, in violation of Penal Code Section 261(a)(2).

“Count 2 - Unlawful Sexual Intercourse with Minor Under II6 Years of Age [¶] On or about September 05, 1996, Lionel Andrew Scott, a person over 21 years, willfully and unlawfully engage[d] in an act of sexual intercourse with Kristina . . . , a minor under 16 years of age, in violation of Penal Code Section 261.5(d).

“Count 3 - Forcible Oral Copulation [¶] On or about September 05, 1996, Lionel Andrew Scott did unlawfully accomplish an act of oral copulation with Kristina . . . , which act was accomplished against the victim’s will by means of force, violence, duress, menace and fear of immediate and unlawful bodily injury on the victim, in violation of Penal Code Section 288a(c). (first instance)

“Count 4 - Oral Copulation by One Over 21 on Person Under 16 [¶] On or about September 05, 1996, Lionel Andrew Scott, being over 21 years of age, did unlawfully participate in an act of oral copulation with Kristina . . . , a person under the age of 16, in violation of Penal Code Section 288a(b)(2). (first instance)

“Count 5 - Forcible Oral Copulation [¶] On or about September 05, 1996, Lionel Andrew Scott did unlawfully accomplish an act of oral copulation with Kristina . . . , which act was accomplished against the victim’s will by means of force, violence, duress, menace and fear of immediate and unlawful bodily injury on the victim, in violation of Penal Code Section 288a(c). (second instance)

“Count 6 - Oral Copulation by One Over 21 on Person Under 16 [¶] On or about September 05, 1996, Lionel Andrew Scott, being over 21 years of age, did unlawfully participate in an act of oral copulation with Kristina . . . , a person under the age of 16, in violation of Penal Code Section 288a(b)(2). (second instance)”

4 The elements of forcible rape are: A male and female engaged in an act of sexual intercourse; the two persons were not married; the act of intercourse was against the will of the victim; and the act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to that person or another person. (§261; CALJIC No. 10.00.)

The elements of unlawful sexual intercourse by a person 21 years of age or older with a person under the age of 16 years are: A person 21 years of age or older engaged in an act of sexual intercourse with a person under the age of 16; and these persons were not married to each other at the time of the act of sexual intercourse. (§ 261.5, subd. (d); CALJIC No. 10.40.2.)

The elements of forcible oral copulation are: A person participated in an act of oral copulation with the victim; the act was accomplished against the victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or any other person. (§ 288a, subd. (c)(2); CALJIC 10.10.)

The elements of unlawful oral copulation by a person over the age of 21 years with a person who is under 16 years of age are: A person engaged in an act of oral copulation with a victim; and the victim was under 16 years of age and the other participant was over the age of 21 years. (§ 288a, subd. (b)(2); CALJIC No. 10.45.)

5 In People v. Marshall (1957) 48 Cal.2d 394 [309 P.2d 456], our Supreme Court endorsed the accusatory pleading test as a yardstick for determining whether one offense is included in another in the context of section 1159. The defendant was charged with “ ‘Robbery, in violation of section 211 . . . committed as follows: That [defendant] . . . willfully, unlawfully, feloniously and forcibly [took] from the person and immediate presence of Jack J. Martens . . . Seventy Dollars and an automobile . . . .’” (People v. Marshall, supra, 48 Cal.2d at p. 396.) The defendant waived trial, and the court found him guilty of the lesser offense of taking a vehicle without the owner’s consent. (Ibid.) Even though the lesser offense did not meet the strict “elements test,” the Supreme Court affirmed, finding the language of the accusatory pleading included details of the criminal act and therefore gave the defendant notice of the evidence against which he should be prepared to defend. (Id. at pp. 398, 400, 405.) “[A] pleading which forthrightly alleges not only the statutory language of the greatest offense charged but also known details as to the manner of its commission is . . . more fair and, hence, more worthy of the proper stature of the state’s attorney than a pleading which alleges the general statutory language and no more.” (Id. at p. 407.)

6 “[A] defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.” (People v. Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48].)

7 The dissent’s reliance on People v. Fields, supra, 13 Cal.4th 289, is misplaced because that case did involve a conviction on a necessarily included lesser offense. (Id. at p. 300, fn. 2.)

8 When Hernandez was decided, statutory rape was defined in former section 261, subdivision 1, as an act of sexual intercourse accomplished with a female not the wife of the perpetrator where the female was under the age of 18 years. (Stats. 1913, ch. 122, § 1, p. 212.) A 1970 amendment recodified subdivision 1 as section 261.5 (unlawful sexual intercourse). (Stats. 1970, ch. 1301, §§ 1 & 2, pp. 2405-2406.) As originally enacted, section 261.5 read: “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” (Stats. 1970, ch. 1301, § 2, p. 2406.)

In 1993, the Legislature amended section 261.5 to read: “(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a ‘minor’ is a person under the age of 18 years. [¶] (b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. [¶] (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. [¶] (d) Any person over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.” (Stats. 1993, ch. 596, § 1, pp. 3139-3140.) Subsequent amendments to section 261.5 in 1996 and 1998 did not substantively change the statute with respect to the issues raised in this appeal.

9 The Supreme Court’s 1964 decision in Hernandez was the first in the country to hold a defendant’s mistaken belief as to the age of a victim was a defense to a charge of statutory rape or sex crimes involving minors. (Annot., Mistake or Lack of Information as to Victim’s Age as Defense to Statutory Rape (1997) 46 A.L.R.5th 499.) Most jurisdictions that have considered the issue have declined to follow Hernandez', however, the Model Penal Code section 213.6, subdivision (1) allows a defense of reasonable mistake as to age and various states have some version of the defense by statute. (46 A.L.R.5th at p. 509.) The majority rule in the United States remains that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. (46 A.L.R.5th at p. 508.)

10 See People v. Gutierrez (1978) 80 Cal.App.3d 829, 833-836 [145 Cal.Rptr. 823]; People v. Toliver (1969) 270 Cal.App.2d 492, 494-496 [75 Cal.Rptr. 819]; People v. Tober (1966) 241 Cal.App.2d 66, 72-73 [50 Cal.Rptr. 228],

11 Similarly, section 288a provides for different punishments for the offense of oral copulation based on the age of the minor victim. Under section 288a, subdivision (b)(1), the offense is punishable by imprisonment in the state prison, or in the county jail for a period of not more than one year when the victim is under age 18. Under section 288a, subdivision (b)(2), when the perpetrator is over 21 years of age and the victim is under 16 years of age, the offense is punishable by imprisonment in the state prison for 16 months, two years, or three years (See also § 18.) Under section 288a, subdivision (c), the offense carries a punishment of three, six, or eight years in prison when the victim is under 14 and the perpetrator is more than 10 years older than the victim.

* See footnote 1, ante, page 784.