People v. Barajas CA4/3

INTRODUCTION

Defendant Juan Carlos Verduzco Barajas was convicted of five counts of committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a)), and one count of committing a lewd act upon a child 14 or 15 years old by a defendant who is 10 or more years older than the victim (id., § 288, subd. (c)(1)). (All further statutory references are to the Penal Code.) Defendant was sentenced to a term of 46 years to life in prison. On appeal, defendant argues the trial court should have instructed the jury regarding the defense of mistake of fact on the section 288, subdivision (c)(1) charge because the evidence supported defendant’s reasonable, good faith belief that his then 15-year-old niece was actually 18 years old or older. Alternatively, defendant argues that his trial counsel was ineffective for failing to request such an instruction. Mistake of fact as to the victim’s age is not a viable defense to a section 288, subdivision (c)(1) charge; the trial court did not err in failing to give an instruction on this defense, and defendant’s trial counsel was not ineffective for failing to request one. Defendant also argues CALCRIM Nos. 1110 and 1112 prejudiced…