P. v. Wilkerson

Filed 5/17/04 P. v. Wilkerson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL WILKERSON,
Defendant and Appellant.
D042017
(Super. Ct. Nos.
SCD159400 and SCD160878)
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Michael Wilkerson appeals from a judgment convicting him of 25 counts of lewd
and lascivious conduct upon a child 14 or 15 years of age by a perpetrator at least 10
years older (Pen. Code,1 § 288, subd. (c)(1)); one count of corporal injury to a cohabitant
(§ 273.5, subd. (a)); one count of forcible rape (§ 261, subd. (a)(2)); one count of forcible
oral copulation (§ 288a, subd. (c)(2)); one count of assault by means of force likely to

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produce great bodily injury (§ 245, subd. (a)(1)); three counts of employment of a minor
to sell or carry marijuana (Health & Saf. Code, § 11361, subd. (a)); and one count of
employment of a minor to sell or carry a narcotic (Health & Saf. Code, § 11353, subd.
(b)).
Wilkerson argues: (1) the finding that he was convicted of a prior serious felony
was not supported by substantial evidence; (2) the ruling precluding a mistake of age
defense to the section 288, subdivision (c)(1) charges was unconstitutional; and (3) the
admission of prior sexual offense and domestic violence evidence pursuant to Evidence
Code sections 1108 and 1109 was unconstitutional. We reject his arguments and affirm
the judgment.
FACTUAL BACKGROUND
The issues raised on appeal do not require a lengthy recitation of the facts. The
facts underlying the convictions include Wilkerson's ongoing, and at times physically
abusive, sexual relationship with a 15-year-old girl when he was 45 years old.
Additionally, Wilkerson raped and engaged in forcible sexual conduct with a 14-year-old
girl, and physically assaulted a woman with whom he had a sexual encounter. To the
extent further factual details are relevant to the issues on appeal, we will present them in
our discussion which follows.
1 Subsequent statutory references are to the Penal Code unless otherwise specified.

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DISCUSSION
I. Prior Serious Felony Conviction
Wilkerson was sentenced to a total of 57 years 6 months in prison. His sentence
includes a five-year enhancement for a prior serious felony conviction (§ 667, subd. (a))
based on his alleged juvenile conviction for armed robbery on January 5, 1973. He
asserts there is insufficient evidence to prove his prior conviction.
The prosecution must prove all the elements of an enhancement beyond a
reasonable doubt, including that the defendant was convicted and that the conviction was
for an offense within the definition of the enhancement. (People v. Haney (1994) 26
Cal.App.4th 472, 475.) On appeal, we must ascertain whether there is evidence which is
"'reasonable, credible, and of solid value—such that a reasonable trier of fact could find'"
the allegation to be true beyond a reasonable doubt. (People v. Williams (1996) 50
Cal.App.4th 1405, 1413.) We "presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970)
3 Cal.3d 421, 425.) A trier of fact is entitled to draw reasonable inferences from certified
records offered to prove a prior conviction. (People v. Williams, supra, 50 Cal.App.4th at
p. 1413.) Certified prison records are an acceptable means of proving a prior serious
felony conviction. (§ 969b; see People v. Prieto (2003) 30 Cal.4th 226, 259; People v.
Lizarraga (1974) 43 Cal.App.3d 815, 820.)
To prove the prior serious felony conviction, the prosecution presented a certified
copy of a booking card from the California Youth Authority (CYA) for Wilkerson. The
booking card contains Wilkerson's fingerprints and states that he was "arrested or

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received" on February 13, 1973, and that the "charge or offense" was armed robbery and
possession of a sawed-off shotgun. The portion of the booking card addressing the final
"disposition or sentence" states "Kern County Juvenile Court."
Wilkerson argues there is insufficient evidence to prove he was convicted of
armed robbery because the CYA booking card proves only he was arrested and charged
with armed robbery but does not prove he was convicted of that offense. The People
assert that Wilkerson would not have been sent to the CYA facility unless the allegations
against him were found to be true by the juvenile court.
The trial court could reasonably infer from the booking card that the juvenile court
made a true finding regarding the armed robbery offense referenced on that card. The
fact that Wilkerson was booked at CYA indicates that he was adjudicated to be a
delinquent in need of the highest level of treatment in the juvenile system. (See 1 Cal.
Criminal Law: Procedure and Practice (Cont.Ed.Bar 7th ed. 2004) § 53.45, p. 1579
[CYA commitment for juvenile is akin to adult prison].) At the point of CYA booking,
the juvenile court has rendered its disposition and the juvenile is committed to the
institution. (See In re Teofilio A. (1989) 210 Cal.App.3d 571, 577-578.) CYA is not an
institution which books a juvenile before a true finding for an offense; rather, CYA
booking only comes into operation once a juvenile has incurred the true finding and is
sent for detention at the facility. Thus, contrary to Wilkerson's suggestion, the CYA
booking card does not refer to preconviction arrest and charges, but rather refers to
postconviction placement at a detention facility. Because CYA does not handle detention
of juveniles prior to court adjudication of the charged offense, there would be no reason

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for a CYA booking card to reference any offense other than the one forming the basis for
the CYA commitment. In short, given the nature of CYA, the "charge or offense"
notation on the booking card necessarily refers to the adjudicated disposition by the
juvenile court.
We emphasize there is no contention here that the booking card might be an
inaccurate recordation of the juvenile court's ruling. Absent such evidence, and based on
the presumption that official duty is properly performed, the trial court could reasonably
infer that the officials filling out the booking card accurately set forth the offense found
true by the juvenile court. (Evid. Code, § 664; People v. Martinez (2000) 22 Cal.4th 106,
115-116; People v. Haney, supra, 26 Cal.App.4th at pp. 475-476, compare People v.
Williams, supra, 50 Cal.App.4th at p. 1413 [fingerprint card did not provide substantial
evidence of conviction because it differed from abstract of judgment]; see also People v.
Ruiz (1999) 69 Cal.App.4th 1085, 1091 [fingerprint card properly used to interpret
illegible abstract of judgment].)
We note there is language in the above-cited Ruiz and Williams cases that could be
interpreted to suggest that a fingerprint card might not be sufficient on its own to
establish a prior conviction without an abstract of judgment or other comparable
document. (People v. Ruiz, supra, 69 Cal.App.4th at p. 1091; People v. Williams, supra,
50 Cal.App.4th at p. 1413.) However, the factual posture of those cases involved the use
of a fingerprint card to contradict (Williams) or interpret (Ruiz) an abstract of judgment.
In contrast, here, there is no such ambiguity in the presented evidence. Upon a close
reading of Ruiz and Williams, we do not view these decisions as fashioning a broad rule

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forestalling use of a prison fingerprint card to independently prove a prior conviction.
Although the preferred practice would be to present a document comparable to an
abstract of judgment, under the circumstances of this case the CYA booking card
provided substantial evidence of Wilkerson's prior robbery conviction.
II. Mistake of Age Defense
The 15-year-old victim of the lewd conduct charges testified that she told
Wilkerson she was 19 years old. Based on this testimony, Wilkerson challenges the
constitutionality of the trial court's pretrial ruling that mistake of age was not a defense to
section 288, subdivision (c)(1)2 charges of lewd or lascivious conduct upon a child age
14 or 15 years old by a perpetrator at least 10 years older than the victim. Wilkerson
recognizes that in People v. Olsen (1984) 36 Cal.3d 638, 649 (Olsen), the California
Supreme Court held that a good faith belief the victim was 14 years or older is not a
defense to a section 288, subdivision (a)3 charge of lewd or lascivious conduct with a
child under the age of 14. Olsen was decided before the 1988 enactment of section
288(c)(1), which made the lewd conduct offense applicable to children slightly older than
those covered by section 288(a). (Historical and Statutory Notes, 48 West's Ann. Penal
Code (1999 ed.) foll. § 288, p. 445.) Pointing to the analysis in Olsen which
characterizes children under age 14 as being of tender years and in need of special
protection (Olsen, supra, at p. 647), Wilkerson argues these policy concerns do not apply
when the victim is 14 or 15 years old.
2 Hereafter referred to for convenience as section 288(c)(1).

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The court in People v. Paz (2000) 80 Cal.App.4th 293 (Paz) addressed this precise
argument, and extended Olsen's rejection of the mistake of age defense to the lewd
conduct offense defined in section 288(c)(1). Based on a review of legislative history,
the court in Paz concluded that to allow the mistake of age defense would undermine the
legislative purpose underlying the enactment of section 288(c)(1). (Paz, supra, at pp.
295-296.) The statute was enacted to allow for imposition of felony culpability on
offenders whose victims were 14 or 15 years old if the offender was at least 10 years
older than the victim. (Id. at pp. 296-297.) In order to prevent prosecution of a minor for
sexual conduct short of intercourse between consenting teenagers, section 288(c)(1) was
consciously crafted to apply only when there is a 10-year age differential between the
victim and the perpetrator. (Paz, supra, at pp. 296-297.) Premised on the recognition
that a 14- or 15-year-old minor can be "'sexually naïve'" and fall victim to a more
experienced adult, Paz ascertained that the statutory background showed a "legislative
desire to protect 14- and 15-year-olds from predatory older adults to the same extent
children under 14 are protected by subdivision (a) of section 288." (Id. at p. 297, italics
added.) That is, "section 288 offenses set out a hierarchy of victims, from the most
vulnerable—infants and children under subdivision (a)—to those perceived as less
vulnerable—young teenagers under subdivision (c)(1). The age distinctions help define
the gravity of, and the range of punishment for, the offense." (Ibid., italics omitted.)
3 Hereafter referred to for convenience as section 288(a).

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To support its conclusion, the court in Paz observed that section 288(c)(1) allows
for a lower range of prison terms than section 288(a), as well as the option of
misdemeanor punishment not available under section 288(a).4 Thus, the sentencing
structure of section 288, as well as the absence of any reference to lack of consent as an
element of the offense, indicates that the Legislature did not intend to permit defenses
based on mistake of age, but rather intended any such good faith mistake to be
accommodated at sentencing. (Paz, supra, 80 Cal.App.4th at pp. 297-298.)
The Paz court also reasoned that because the Olsen decision predated the
enactment of section 288(c)(1), the Legislature was aware of its holding and could have
included language allowing the mistake of age defense had it intended Olsen's holding
not to apply to this newly-defined crime. (Paz, supra, 80 Cal.App.4th at p. 298.)
Further, the Legislature's awareness of the mistake of age issue is shown by the fact that
in 1981 it enacted section 1203.066, subdivision (a)(3) which provides that a defendant
convicted under section 288 is not eligible for probation unless he or she had an honest
and reasonable belief the victim was 14 years or older. (Paz, supra, at p. 298; accord
People v. Olsen, supra, 36 Cal.3d at p. 647.)
Wilkerson argues that Paz was wrongly decided. Pointing to the fact that mistake
of age has long been a defense to unlawful sexual intercourse with a minor under age 18
(§ 261.5, subd. (a); People v. Hernandez (1964) 61 Cal.2d 529, 535-536), he asserts that
4 The sentence choices for section 288(a) are three, six, or eight years in prison,
whereas for section 288(c)(1) they are one, two, or three years in prison or not more than
one year in jail.

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the Legislature has not indicated any intent to reject the defense in the context of section
288(c)(1). We are not persuaded. We agree with Paz's analysis and holding—i.e.,
section 288(c)(1) was enacted to protect 14- and 15-year-old children from lewd conduct
committed by adults who are substantially older than the children, and the section should
be interpreted to extend the same protections to these children as to those covered by
section 288(a). Accordingly, absent an express statement by the Legislature to the
contrary, the mistake of age defense is not available for section 288(c)(1) violations.
Attempting to remove his case from the ambit of Paz, Wilkerson contends Paz is
factually distinguishable because the victim in that case told the defendant she was 16
years old (Paz, supra, 80 Cal.App.4th at pp. 295, 300), whereas the victim here told
Wilkerson she was 19 years old. The court in Paz reasoned that because the evidence at
most could support a reasonable belief that the victim was age 16, the defendant's
conduct could not be characterized as "'morally innocent'" comparable to the conduct of
the defendant in Hernandez who thought he was having consensual intercourse with
another adult. (Paz, supra, at p. 300.) We do not find this factual distinction to be
pivotal and it does not alter our conclusion. As noted, we are persuaded by the portion of
the Paz opinion addressing Legislative intent. Because section 288(c)(1) presents a clear
mandate to protect sexually vulnerable 14- and 15-year-old children from predatory older
adults with no reference to a mistake of age defense, the defense is unavailable regardless
of what age the victim pretended to be.
Finally, Wilkerson argues that preclusion of the mistake of age defense results in
imposition of culpability without requiring knowledge of the facts that make the act a

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crime, in violation of his federal constitutional rights. The California Supreme Court's
holding in Olsen implicitly rejects the notion that the mistake of age defense is
constitutionally required. Courts in other jurisdictions have expressly rejected the
argument that the federal Constitution mandates allowance of a mistake of age defense
for sex offenses committed against minors, and we agree with this conclusion. (See, e.g.,
Nelson v. Moriarty (1st Cir. 1973) 484 F.2d 1034, 1035-1036 [mistake of age not
constitutionally required defense to statutory rape]; accord People v. Cash (Mich. 1984)
351 N.W.2d 822, 828.)
III. Prior Sex Offense and Domestic Violence Evidence
As an exception to the general rule against use of propensity evidence, Evidence
Code sections 1108 and 1109 allow admission of prior sexual offense or domestic
violence evidence when a defendant is charged with a sexual or domestic violence
offense, as long as the evidence is not more prejudicial than probative under Evidence
Code section 352. Pursuant to these exceptions and over defense objection, evidence was
presented regarding Wilkerson's prior sexual, physically abusive relationship with a 16-
year-old girl when he was 32 years old.
Wilkerson argues admission of the evidence under Evidence Code sections 1108
and 1109, as well as the instructions permitting the jury to use the evidence to infer
criminal disposition, violated his federal constitutional rights. Assuming Wilkerson did
not waive this constitutional challenge by failing to raise it below, the argument has
already been fully addressed by the courts. As to Evidence Code section 1108, the
constitutional challenge has been rejected by the California Supreme Court (People v.

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Falsetta (1999) 21 Cal.4th 903, 916-922 (Falsetta); see also People v. Reliford (2003) 29
Cal.4th 1007, 1012-1013), and by federal courts evaluating a comparable federal statute
(see Falsetta, supra, at pp. 920-921, and cases there cited). We must defer to the rulings
of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
As to Evidence Code section 1109, lower appellate courts have repeatedly applied
Falsetta to reject constitutional challenges to domestic violence propensity evidence.
(People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1029; People v. Johnson (2000) 77
Cal.App.4th 410, 420; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1313;
People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096, and cases there cited.) We
agree with these appellate court holdings.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.

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