Provisions of Cal. Penal Code § 26 create a rebuttable presumption that children under the age of 14 are incapable of knowing the wrongfulness of their actions and, therefore, are incapable of committing a crime. A fortiori, when the child is a victim, rather than an accused, similar special protection, not given to older teenagers, should be afforded.
Defendant was convicted of lewd or lascivious conduct with a child who was 13 years and 10 months old, in violation of Cal. Penal Code § 288(a). Section 288 prohibits lewd or lascivious acts with a child under 14. On appeal, the court rejected defendant's good faith, reasonable mistake as to the victim's age defense.
Is reasonable mistake as to the victim’s age a defense in the crime of lewd or lascivious conduct?
The language in Hernandez, together with the reasoning in Tober, Toliver, and Guiterrez compelled this conclusion. Cal. Penal Code § 1203.066, which rendered eligible for probation certain persons convicted of lewd or lascivious conduct who honestly and reasonably believed the victim was 14 or older, strongly indicated that the legislature did not intend such a defense to a § 288 charge. Section 288 and several other penal statutes reflected the strong public policy to protect children under age 14 from lewd or lascivious conduct.