People v. Peterson , 178 Cal. Rptr. 734 ( 1981 )

126 Cal.App.3d 396 (1981) 178 Cal. Rptr. 734

THE PEOPLE, Plaintiff and Respondent,
v.
ROGER RAY PETERSON, Defendant and Appellant.

Docket No. 12657.

Court of Appeals of California, Fourth District, Division Two.

December 3, 1981.

COUNSEL

Philip R. Clarkson, under appointment by the Court of Appeal, for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, A. Wells Petersen and Keith I. Motley, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GARDNER, P.J.

Defendant was convicted of oral copulation with a person under 18 years of age. He testified to a reasonable belief that the victim was over 18 and requested an instruction that this was a valid defense under the rationale of People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal. Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092], which held that such a belief was a defense to the crime of unlawful sexual intercourse with a person under 18 years of age. The instruction was refused.

(1) We are unable to detect any valid distinction between unlawful sexual intercourse and oral copulation within the rationale of Hernandez based upon which orifice of the human body is used. The refusal to so instruct was prejudicial error. It not only deprived the defendant of a crucial defense, it deprived him of his only defense.

Judgment reversed.

McDaniel, J., and Tamura, J.,^[*] concurred.

NOTES

[*] Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.