in enacting section 261.5(c) as a separate provision from ordinary statutory rape statute, the Legislature “implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations”
How later courts described this case
- in enacting section 261.5(c) as a separate provision from ordinary statutory rape statute, the Legislature “implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations”
Written by the judges who cited it.
The opinion
WERDEGAR, J.
I concur in the majority’s conclusion that accomplice instructions should not have been given. As the majority writes, “[d]espite the unambiguous wording of [Penal Code section 285], which malee[s] no express exception for minors, the Court of Appeal has held, in a consistent line of cases dating back nearly 75 years, that a minor who has incestuous sexual intercourse with an adult is not guilty of incest, even if the minor is older than 14 and participates voluntarily in the incestuous act.” (Maj. opn., ante, at p. 332.) Under these circumstances, the principle of stare decisis has more than sufficient force to justify the court’s conclusion. The principle has special importance in substantive criminal law, because changes in that law can raise ex post facto and due process concerns. “Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.” (Cardozo, The Nature of the Judicial Process (1921) p. 34.)
While I join in the majority’s conclusion, I cannot endorse its analysis. The opinion reflects a strained effort to ground the court’s conclusion in *344 legislative intent. The words of the statute, however, are the best evidence of legislative intent, and the words of the statute prohibiting incest (Pen. Code, § 285) do not purport to exclude minors from the prohibition. Perhaps the Legislature contemplated the prosecution of minors for incest with other minors, as the majority itself suggests (maj. opn., ante, at p. 334), or perhaps the Legislature simply intended to state the prohibition against incest broadly, leaving subtler judgments of culpability to juries and prosecutorial discretion. I write to advocate neither of these interpretations. But given the absolute terms in which Penal Code section 285 speaks, I find entirely unhelpful both the majority’s dogged focus on the term “victim,” which appears nowhere in section 285, and the majority’s effort to find evidence of legislative intent in statutes other than section 285. Neither approach reflects sound legal analysis. Under these circumstances, I am content simply to follow the long-standing rule, knowing the Legislature may do as it wishes but has not seen fit to change the rule.
Appellant’s petition for a rehearing was denied June 13, 2001.