In Re Hess

SHENK, J.

— I dissent.

The petitioner was charged with forcible rape as denounced by subdivision 3 of section 261 of the Penal Code. Upon his plea of not guilty the cause went to trial before a jury. As revealed by the record, the petitioner stated that he, with the prosecuting witness and some other young people, parked their car near the side of a mountain road in El Dorado County; that he was left alone in the car with the prosecuting witness and that they moved into the back seat of the car; that “necking” and “fondling” were engaged in willingly by the girl, culminating in a voluntary act of sexual intercourse. The prosecuting witness stated that • she entered the back seat willingly, but immediately remonstrated with the petitioner to discontinue his advances; that instead of following her request he became more brutal and aggressive, bruising her neck, face, ribs, and forcibly consummating an act of intercourse.

The trial court instructed the jury that contributing to the delinquency of a minor as denounced by section 702 of the Welfare and Institutions Code was a crime included within the offense charged in the information. The evidence was sufficient to support a conviction of forcible rape as charged; but the jury, obviously choosing to relieve the petitioner of the more serious charge, found him “guilty of contributing to the delinquency of a minor in violation of section 702 of the Welfare and Institutions Code of the State of California, being a lesser offense included in the offense charged in the information.”

Under the law of this state the trial court was justified in so instructing the jury, and in turn it was within the province of the jury to follow those instructions and return the verdict in the form quoted. It is only by specious reasoning and overruling former cases in this state on the subject that the majority has ordered the release of the petitioner.

Section 702 of the Welfare and Institutions Code provides *180 that any person who commits an act which causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of any of the subdivisions of section 700 is guilty of a misdemeanor. Subdivision k of section 700 includes anyone “who is leading, or from any cause is in danger of leading, an idle, dissolute, lewd, or immoral life.” A voluntary act of sexual intercourse with a female under the age of 21 years is unquestionably sufficient to bring the petitioner within section 702. (See People v. Greer, 30 Cal.2d 589 [ 184 P.2d 512 ] ; People v. Young, 44 Cal.App. 279 [ 186 P. 383 ] ; People v. Camp, 42 Cal.App. 411 [ 183 P. 845 ] ; 15 Cal.Jur.2d, Delinquent Children, §29.) The question then is whether the offense against a female under the age of 21 years is a crime included within the crime of rape as denounced in section 261 of the Penal Code.

Penal Code, section 1159, as amended in 1951 provides that “The jury, or the judge if a jury is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged. . . .” In People v. Greer, supra, 30 Cal.2d 589 , at page 596, it was said by Mr. Justice Traynor for an unanimous court that “The test in this state of a necessarily included offense is simply that where .an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” The majority view of the present case stands or falls on the statement in the opinion that “Forcible rape (Pen. Code, § 261, subd. 3) can be committed without contributing to the delinquency of a minor, e.g., forcible rape of a woman 21 years of age or more.” That statement is obviously correct as it stands, but it is not responsive to the issue. It incorrectly assumes that there is a distinct crime of forcible rape separable from the other situations enumerated in section 261 describing the crime of “rape.”

Under section 261 there is but one crime of rape although the condemned act may be committed under any of the various conditions specified in the several subdivisions of the section. In People v. Craig, 17 Cal.2d 453 [ 110 P.2d 403 ], it was said at page 455-: “These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act.” The essential guilt of rape consists in the outrage to the person of the female. (Pen. Code, § 263.) Hence the rule was correctly *181 stated in People v. Snyder, 75 Cal. 323 at pages 324-325 [ 17 P. 208 ] : “We think the true construction of section 261 to be that thereby the legislature meant merely to put beyond doubt the rule that on an information for rape the things mentioned in the subdivisions could be proven, and would establish the crime. It is not intended to alter or establish a rule of pleading; or to create six different kinds of crime. Now, as before the adoption of the code, under an indictment similar to the information in this ease, any of the matters mentioned in section 261 may be proved. They are included in the words ‘by force and violence, and against her will, ’ and ‘did feloniously ravish. ’ ...” (See People v. Craig, supra, 17 Cal.2d 453 ; People v. Jaillies, 146 Cal. 301 [ 79 P. 965 ] ; People v. Vann, 129 Cal. 118 [ 61 P. 776 ].) Guided by these consistently followed principles, our courts have held that evidence tending to show a violation of subdivision 4 where the female is prevented from resisting by threats of harm or administration of narcotics, is admissible to support an allegation and conviction under subdivision 3, where the female resists but her resistance is overcome by force or violence. (People v. Snyder, supra, 75 Cal. 323 ; People v. Tollack, 105 Cal.App.2d 169 [ 233 P.2d 121 ] ; People v. Blankenship, 103 Cal.App.2d 60 [ 228 P.2d 835 ] ; People v. Cassandras, 83 Cal.App.2d 272 [ 188 P.2d 546 ]) ; and that evidence tending to show a violation of subdivision 3 is admissible to support an allegation and conviction under subdivision 2 where the female is incapable, through lunacy or other unsoundness of mind of giving legal consent. (People v. Boggs, 107 Cal.App. 492 [ 290 P. 618 ].) In People v. Jaillies, supra, 146 Cal. 301 , the foregoing principles were applied to the problem here involved. There it is stated that an allegation of forcible rape under subdivision 3 is sufficient to support a conviction on evidence showing a violation of section 261, subdivision 1, voluntary intercourse where the female is under the statutory age. (See also People v. Vann, supra, 129 Cal. 118 .)

In the foregoing cases the allegation in the information of a specific subdivision of the code seems at most to indicate only the prosecutor’s initial theory of the case. By no means is the court or jury bound to remain within the bounds of that theory as stated. For the purpose of determining questions of adequate notice and included offenses, an information charging the violation of a particular subdivision of section 261 must be deemed to charge the general crime of rape as *182 defined in its various circumstances stated in that section as a whole. Since in the present case the petitioner was charged with violating section 261, subdivision 3, he was subject to conviction of rape under section 261, subdivision 1. involving voluntary intercourse with female under the statutory age. (People v. Jailles, supra, 146 Cal. 301 .)

When the petitioner’s liability is comprehended within subdivision 1, it is clear that the majority view in the present case is directly contrary to the opinion of this court in People v. Greer, supra, 30 Cal.2d 589 . In that case it was necessary to determine whether a section 702 violation was included within section 261, subdivision 1, for double jeopardy purposes. Greer had been previously convicted of violating section 702. Upon his subsequent conviction of rape under section 261, subdivision 1, this court reversed, holding that the offense stated in section 702 was an offense necessarily included within section 261, subdivision 1. In reaching that result it was stated at pages 597-598: “Statutory rape (§261(1)) and lewd and lascivious conduct (§ 288) are offenses against minors under 18 and 14 years of age, respectively, whereas section 702 protects minors under 21. Consequently, the age groups covered by sections 261(1) and 288 of the Penal Code are necessarily included within the age group covered by section 702 of the Welfare and Institutions Code. It is inconceivable that the acts described in sections 261(1) and 288 would not contribute to the delinquency of a minor. (See Rodriguez v. Superior Court, 27 Cal.2d 500, 502 [ 165 P.2d 1 ] ; People v. Tenner, 67 Cal.App.2d 360, 366 [ 154 P.2d 9 ] ; People v. Krupa, 64 Cal.App.2d 592, 601 [ 149 P.2d 416 ] at 601.) Since every violation of sections 261(1) and 288 is also a violation of section 702, the offense defined in the latter is an offense necessarily included in the offenses defined in sections 261(1) and 288. (People v. Lopez, 46 Cal.App.2d 857, 858 [ 117 P.2d 10 ].) . . . It is true that each offense is stated differently in the codes and that defendant could have contributed to the delinquency of a minor without committing statutory rape or a lewd and lascivious act. . . . Nevertheless, the converse is not true. We are holding, not that these offenses are identical, but that every violation of sections 261(1) and 288 necessarily constitutes a violation of section 702 and that therefore .the offense defined in section 702 is an offense necessarily included in the offenses defined in sections 261(1) and 2.88.” The conclusion is therefore inescapable that the *183 rule now announced by the majority cannot be reconciled with our holding in the Greer case.

Nor is it consequential that the victim’s age in the present case appears to be 18 years and therefore beyond the age protected under section 261, subdivision 1. The actual age of the victim, as revealed by the evidence, does not control the determination of included offense problems. Under the rule stated in the Greer ease, the test is whether the lesser offense, as a legal proposition, is included within the greater offense. The actual age of the victim as revealed by the evidence is not important for any purpose other than determining the sufficiency of the evidence to support the conviction under section 702, a matter not here involved. By charging forcible rape, the information implicitly but clearly incorporated the crime of rape by voluntary intercourse with a female under the statutory age and hence put the petitioner on notice that the age of his victim was an issue properly within the case.

The writ should be denied.