Culbertson

Statement of the Case

Defendant appeals from her conviction by jury of oral copulation with a minor under the age of 14 and more than 10 years younger than she (Pen. Code, § 288a, subd. (c)). The trial court denied defendant’s motion to reduce the degree of the offense to violation of subdivision (b)(1) of section 288a, oral copulation with a person under the age of 18, and sentenced defendant to the median term of 6 years in state prison.

On appeal defendant contends (1) the trial court erred in permitting the jury to convict her on a finding that she, as an aider and abettor, was more than 10 years older than the minor victim, and (2) the trial court erred in failing to give CALJIC No. 2.02 (4th ed. 1984 pocket pt.). We agree that the age differential referred to in section 288a, subdivision (c) relates to the two persons directly involved in an act of oral copulation; we do not agree that defendant’s conviction must be reversed. However, we order the conviction modified.

Statement of Facts

In December 1982 seven-year-old Debbie L. (hereinafter L.) was living in an apartment with her mother, defendant herein, and her “dad,” Mark Sherman Forbes. Forbes was not the…