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Ezra Rogers
Ezra Rogers

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A jury having rejected his defense of alibi and his testimony that he did not commit the crimes charged, defendant, Enrique Picharro Gonzalez, was convicted of three counts of lewd and lascivious conduct upon the person of 13-year-old Renee S. and one count of violation of Penal Code section 286, subdivision (c), sodomy committed upon the same victim, a person under the age of 14 by one who is more than 10 years older than the victim. The crimes were committed prior to July 1, 1977, the effective date of the determinate sentence act. In this appeal, Gonzalez contends: (1) subdivision (c) of Penal Code section 286 violates his constitutional guarantee of equal protection because the age classifications neither serve a compelling state interest nor are supported by a rational basis; and (2) the trial court prejudicially erred in failing to instruct on the necessity of a union of general intent and act in relation to the charge of sodomy.


There is a compelling state interest in the protection of children from sexual molestation by persons who are materially more mature. Undeniably, there is a greater likelihood that a young child will succumb to the sexual blandishment of one who is much older than that the child will do so when the conduct is solicited by one close to the child's own age. There thus exists a compelling state interest to classify as a special category sexual misconduct of a materially older person where the victim of the conduct is a young child. Classifications based upon the ages of the victim and the offender are necessary to carry out the state interest.


The trial court instructed the jury on specific intent as related to the three charges of lewd and lascivious acts upon a child. Gonzalez did not request, and the court did not sua sponte instruct, upon the union of general intent and act required for the crime of sodomy. [3a] Gonzalez [81 Cal. App. 3d 279] contends in this appeal that the trial court prejudicially erred in not giving the general intent instruction. 041b061a72


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